“…So everything was in error in these elections,” Counsel Philip Addison puzzles. “My Lords; I don’t see how anybody can come to that conclusion,” the EC Overlord- Dr Kwadwo Afari-Gyan, rebuts with an obligatory smiles…
The Samaritan Research Group
Keywords: Classical Over-voting, Biometric Verification Device (BVD), Pink Sheets, Constitutional Violations and Malpractices, Signatures on Pink Sheets, Special Voting, No Verification, No Vote (NVNV), Double-Registrations, Overseas Votes, Discrimination
MEMO: The Presidential Election Petition
On 17 April 2013, the New Patriotic Party’s [NPP] Star Witness Dr Mahmoud Bawumia, began his evidence-in-chief with NPP lead Counsel Philip Addison, alluding that the presidential election of 7th and 8th of December 2012, was characterized by irregularities, statutory and constitutional violations and malpractices leading to illegal votes of some 3,924,844 votes collated and counted by the Electoral Commission [EC] in favour of the then candidate and incumbent President John Dramani Mahama of the ruling National Democratic Congress [NDC], and pleaded accordingly, to the Supreme Court of Ghana, to annul what he described as illegal votes, which if expunged from EC’s declared result, would leave the then president-elect and now the sitting-president John Mahama, with some 41.96% of the valid votes, while his co-petitioner and flag-bearer: Nana Addo-Dankwa Akufo-Addo, settles at 56.65%. Both the Article 64 of the 1992 [Fourth] Republican Constitution of Ghana and the Supreme Court (Amendment) Rules, 2012 (C.I. 74), particularly Section 68, provide that after a period of twenty one (21) days after the declaration of election result, a citizen of Ghana can challenge in the Supreme Court, the validity of the result so declared or being contested, if he or she so desires, by filing a petition in the Registry of the SC to that effect…
CASE COMMENTARY AND ANALYSIS
The Chairman of the Electoral Commission [EC] of Ghana- Dr Kwadwo Afari-Gyan, finally, mounted the witness box with confidence on 30 May 2013. He was led in evidence-in-chief for three consecutive days by the EC’s Lead Counsel James Quashie-Idun; to reconcile among others, the electoral balance sheet of the said 241,000 overseas votes. As it stands now and, in what appeared to be obligatory smiles on the face of Dr Afari-Gyan: the sole Returning Officer for the presidential contest, who declared candidate Mahama as the winner, submits to the depressing suggestions from NPP Lead Counsel Philip Addison that there had been indeed double-registrations in the voters’ register used for the 2012 general elections.
This “hesitant admission” from the EC Boss, follows the tendering of a list of 51 of such infractions that Dr Afari-Gyan, had been too meek to rebut. This runs counter to Dr Afari-Gyan’s earlier response to Counsel Addison that the use of the biometric registration and verification system which cost the Ghanaian tax payer some millions of US Dollars [xxxxx], had in the words of the EC Overlord, helped to improve the conduct of elections, specifically in helping to prevent double registrations and impersonation. The EC Boss states having supervised six successive presidential polls since Ghana finally reconciled with the ballot-box in 1992; he thinks the 2012 election was the most transparent of all in the Republic of Ghana?
So in his closing remarks of 04 June 2012 with Counsel Quashie-Idun, the EC overlord Dr Afari-Gyan- pleaded with the Supreme Court, to dismiss the petitioners’ claims of gross and widespread irregularities during the presidential poll, as unsubstantiated. He endorsed the declaration of President John Dramani Mahama as the “undisputed winner” of the 7th and 8th December, 2012 presidential election. When quizzed by counsel for the EC- James Quashie-Idun, what he wanted the court to do; Dr Afari-Gyan had this to say: “I will say that the reliefs [over-voting, voting without biometric verification], should not be granted because in the view of the commission, no firm basis has occurred to merit the granting of those reliefs.”
It is contended that Dr Afari-Gyan had stated before the 2012 polls that even if one vote was detected to have been in excess of the number of ballot papers issued, the results of that polling station would be annulled. In the words of Dr Bawumia, this decision was indeed implemented in polling stations such as Arabic Primary School in the Upper West Akyem Constituency, as well as another polling station in the Tano North Constituency. Justice Baffoe Bonnie- a panel member on the election case, seemed to have issues with this position, prompting him to inquire from Dr Bawumia, if he was suggesting to the Supreme Court to go ahead to annul the figures in all the affected polling stations merely because some people had voted without verification. Biometric Verification Machine is designed to establish our true identity at polling station as having not yet voted. But we are reminded that a simple Voter ID and face-to-face identification at the polling station, settle this requirement.
On the crucial roles of Returning Officers and Polling Agents of the December 2012 polls, Dr Bawumia’s description of polling agents as “mere” and/or “exalted” observers during the election, is being resisted by Dr Afari-Gyan, stating that there were local and foreign observers whose role was just to observe and write a report at the end of the polls. But not polling agents, who played a crucial role in elections because they [attest] their signatures on the pink sheets issued at various polling stations and took copies for their various political parties. Taking official responsibility for some of the glaring shortcomings on the completed pink sheets, the EC Boss told the 9 Law Lords that he had looked at some of the pink sheets and concedes that there were errors but avers that irregularities with “built-in intention” must be sieved from genuine errors- fore, “a person perpetuating fraud knows what he has done”.
Dr Kwadwo Afari-Gyan, who thwarted the efforts of presidential hopefuls such as Nana Konadu Agyeman-Rawlings and Madam Akua Donkor due to “minor errors” and omissions on their completed presidential candidature application forms, not forgetting, indeed the EC’s own administrative guidelines and deadlines, did not shy away from mistakes/errors and omissions as presented on the face of the pink sheet by his own trained officers. He was quick however, in conceding that mistakes could be detected and corrected. That the Commission was prepared to take responsibility for those errors because we all make mistakes in the course of our work so candidates in elections should take responsibility for the agents they appoint? Dr Afari-Gyan vows in declaring that persons [the village chief, the local priest or the soothsayer or Imam], who fails to undergo verification test, could be allowed to vote.
Who, then, could be blamed for the seemingly poor entries of the crucial pink sheets that went at the heart of the elections? Dr Afari-Gyan- who had little compassion for Nana Konadu and Madam Akua Donkor, and struggles to define over-voting, states that each occurrence, must be looked at on its own merit because there were various scenarios. Dr Bawumia has told the Supreme Court that having examined some 24,000 pinks sheets, it was discovered that there is a case of many irregularities: over voting, voting without verification, duplication of polling station serial numbers, and pink sheets without signatures of presiding officers. So, Dr Afari-Gyan’s declaration of John Mahama as winner could not be supported by the primary evidence? By the pre-election definition of over-voting as advocated by the Chairman of the Electoral Commission, this could have been yes, a clear case of over-voting.
But Dr Afari-Gyan- the EC Overlord, had explained what he called ‘classical definition’ of over voting to mean that when the votes at a polling station exceeded the total number of registered voters in that particular polling station. He was however, pushed to strict proof when counsel Addison prey over him to revise his notes on the definition of over-voting. Dr Afari-Gyan submitted, conceding that over voting goes beyond the “classical definition” and that it could also occur if the votes were more than the number of voter turnout in a particular polling station. Counsel Philip Addison pressed further that over-voting, which the petitioners are claiming as an irregularity, also included a situation where the number of ballots in the box were more than ballots issued to voters at a particular polling station. “I am saying that over-vote is based on the number of ballots issued and the total votes found in the ballot box, do you agree?” Dr Kwadwo Afari-Gyan- the EC boss says Yes, to the admiration of Counsel.
In his evidence-in-chief with Lead Counsel for the EC- James Quashie-Idun, Dr Kwadwo Afari-Gyan, forcefully, undermined the petitioners’ allegations of over-voting; arguing that classical definition of over-voting was either 150 per cent or 175 per cent, as had been alleged in the past to have occurred in the Volta and the Ashanti regions, respectively and that if such incidents had occurred, the EC would not have hesitated in cancelling the results outright because those scenarios constituted a classical definition of over-voting. Dr Afari-Gyan states that nowhere in Ghana had it been shown that a classical definition of over-voting occurred: “no place in Ghana shows more people voted than the number of persons on the register”. Dr Afari-Gyan was so confident on his submission that he seemed swayed in addressing the issues at stake. Justice Jones Dotse, therefore, prompted Counsel Quashie-Idun to focus the EC Boss in line with courtroom procedures, to which counsel was most thankful.
Thus, Dr Afari-Gyan’s December 2012 “Electoral Sermon” at the Supreme Court, seeks to oscillate around the redefinition of over-voting, stating that if the Commission had noticed any form of irregularity in the form of excess votes, he would subjected that pink sheet to close scrutiny and re-do what the presiding officer had done before taking a decision. It is argued that voters had the constitutional right to vote and it was, accordingly, crucial to carefully scrutinise and indeed reconcile the pink sheets with the voters’ register before firm decision could be arrived. Dr Afari-Gyan has surprisingly, told the court that he was unaware that some polling stations results were not included in the traditional 26002 polling stations on the EC’s list in the declaration of the presidential result due to over-voting and annulment.
The Petitioners’ Counsel Philip Addison had inquired whether the declaration of 09 December was grounded on the total number of eligible voters on the register. Dr Afari-Gyan: the EC Boss says yes, explaining that the total number of persons entitled to vote is recorded in that declaration. “What was the total number?” Dr Afari-Gyan responds: “14,301,680, my Lords”. Counsel Addison suggested that the total number of registered persons on each polling station far exceeded the total number of registered persons the EC supplied to the NPP and that the total number of registered voters gazetted for the presidential elections was different from that of the Parliamentary election. Dr Afari-Gyan disagrees, stating, “that cannot be true”. Addison says the gazetted number for the Parliamentary elections was 14,301,680 and when the declaration was made for the presidential elections, the figure Dr Afari-Gyan gave was 14,158,890. Dr Afari-Gyan says yes, but “it was in error”.
On 09 December 2012 when the EC chairman declared the results of the election, he gave a figure of 14,158,890, a difference of 127,210 from the one EC had earlier on provided. But Tony Lithur- lead counsel for President John Mahama, not forgetting the other defence counsels, accused Dr Bawumia of misleading the court- suggesting that he desperately wants to make up the numbers needed to overturn the declared results that favoured his client. Yet the NPP Star Witness insisted on ‘Ghost’ Polling Stations, alleging that voting took place at some 22 polling stations which were not among the legally mandated 26002 polling stations. In relation to this Counsel Addison focused on a pink sheet which he gave to the EC Boss Dr Kwadwo Afari-Gyan and asked him to confirm if there was over voting on that pink sheet. Dr Afari-Gyan, who had vehemently dismissed this claim, finally admits there was an over vote.
The question of pink sheets without signatures has featured prominently in this ongoing presidential election petition. It is in evidence that pink sheets containing records of voting at some 1039 polling stations. It is submitted that some 705, 305 total votes cast in the 2012 presidential election, did not have the signatures as legally, required of presiding officers. In an answer to the claim that some 2,009 pink sheets did not have confirmation signatures of presiding officers, Dr Afari-Gyan states that the EC’s analysis indicated that 905 pink sheets had, undoubtedly, not been signed by presiding officers but that represents just 3.5 per cent? In the words of the EC Boss, this means 96% of the pink sheets were signed by presiding officers. “We also noticed that 99 per cent of polling agents signed the pink sheets,” he said.
Dr Kwadwo Afari-Gyan maintains that while a presiding officer not signing a pink sheet constituted an irregularity as it is one of the many roles they play during elections, that would not affect the validity of the results, especially when polling agents signed the sheets. According to the EC Boss, nobody could have signed on behalf of the presiding officer. Attempted to justify the 3.5% unsigned pink sheets by highlighting some of the roles of presiding officers which included among others, the supervision of election all day, making entries on pink sheets, counting ballots in the open and announcing results. For these reasons Dr Afari-Gyan states that the EC acknowledged why some of the pink sheets were not signed.
Notwithstanding, Dr Afari-Gyan, seems to be struggling with the issues relating to overseas registrations and proxy voting and more so with; Form A1- the column dealing with the number of ballots issued to the polling station which the Omanhene analogy, had centred. Counsel for Petitioners suggests that EC permanent staff went abroad in 28 locations to register Ghanaians biometrically, and they did indeed register 705 and managed to have 50 double registrations, representing about 7 per cent of the 705 that EC Boss agrees as correct.“Now, most of these foreign registrations, voting were done by proxies… Different people can come by proxy with two different IDs and they would be allowed to vote…Do you agree…,” Addison asked. “My lords, I couldn’t say…I cannot tell you who were here and who were not… If the pictures occur two times, it is possible…,” Dr Afari-Gyan replied.
Dr Afari-Gyan had explained that if for example, your picture is taken during the registration and you don’t want the picture, if the registration officer does not edit the first picture taken, but take another picture, then it would come as double registration and that there were many instances during the main registration where this occurred. This prompted another suggestion from Counsel Addison who argued that if Dr Afari-Gyan’s explanation were to be sustained then it means that the national register [in dispute] is in fact, bloated by 50 per cent. The EC Overlord disagreed to this suggestion, stating “We have a process we go through to eliminate the multiple registrations, in fact in the main exercise, we eliminated about 8,000 multiple registrations after going through that process. We call it a process of de-duplication…” But Dr. Afari-Gyan appeared uncertain in persuading the Court that information about the biometrically unverified paramount chief would be recorded on C1 on the pink sheet which reads: what is the number of ballot issued to voters on the voters Register?
So Counsel Addison suggested to him that if a chief is not verified by the machine before voting that information will be entered in C3 but Dr Afari-Gyan disputed this. The Counsel then asked him to read the instruction in C3 which he said it was voters who were identified but not with the verification machine. Dr. Afari-Gyan said at the time he put out the register he did not know exactly the number of people who did not appear on the provisional register even though they registered. On the claims of two polling stations having two different pink sheets with two different results, he lectured that that situation arose out of special voting and that serial numbers did not have any significance on the declaration of results. He averred that the EC had demonstrated that the alleged 22 unknown locations where voting was alleged to have taken place were all part of the total 26,002 polling stations across the country?
On Tuesday, 04 June 2013, Dr Afari-Gyan, mechanically, attempted to overrule his long-held view about over-voting, which as it turned out, hampered his own thought process. “I think I am not too clear in my own mind what the connotation of over-vote is,” Dr Afar-Gyan unbelievably, had told the world and the Supreme Court. The Presiding Judge in this Petition- Justice Atuguba, advises the EC Boss to be more direct with his answers before any relevant explanation but he seems nervous about the subduing technicalities of the cross-examination.
Researched and Compiled By Asante Fordjour for The Samaritan Research Group