Don’t Endorse Illegality – Says Justice Anin Yeboah

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Created on Wednesday, 11 September 2013 00:00

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Don’t Endorse Illegality – Says Justice Anin Yeboah

“In my respectful opinion, any attempt to endorse a clear illegality in the nature of over-voting which is contrary to and inconsistent with our constitution and the constitutional instrument made there-under, would itself be unconstitutional in the sense that it would defeat the principle of Universal Adult Suffrage stated in our constitution.”

This was contained in the judgment of Justice Kwasi Anin Yeboah, one of the justices on the panel that heard the just concluded landmark Presidential Election Petition.

Justice Anin Yeboah, together with three other justices, among other claims, granted the reliefs regarding unsigned pink sheets by Presiding Officers, over-voting and voting without biometric verification, which three petitioners sent to the Supreme Court following the declaration of John Dramani Mahama as winner of the 2012 presidential election.

Over-voting

Dealing with the claim of over voting, the judge said, “I am of the opinion that no matter the number of votes involved that may constitute over-voting, it is a clear illegality and should not be endorsed by a court of law, more so by the highest court of the land.

“I will therefore proceed to annul all votes which were proved by the petitioners to be so. The figures and the polling stations would be addressed later in this delivery,” he held in his 53-page judgement.

Definition Of Over-voting

Justice Anin Yeboah said a look at all the statutes governing elections in the country including even the Constitution “is bereft of the definition of over-voting. The People’s Representative Law, PNDCL 284 of 1992, C.l. 75 and any other statutes, touching on elections have not defined over-voting.”

He said in the course of his evidence, the second petitioner (Dr. Mahamudu Bawumia) who gave evidence for and on behalf of the other petitioners, stated that over-voting might occur when the total number of votes cast exceeded the number of ballots issued to voters.

“Another instance of over-voting is when the total number of votes cast in the polling station exceeded the number of registered voters at that particular polling station,” the judge quoted the Economist as testifying.

“The representative of the first and third respondents, Mr. Johnson Asiedu-Nketia disagreed with the second petitioner on the definition. He was of the view that over-voting would occur only when the total number of votes cast exceeds the registered voters for the polling station in controversy.”

Justice Anin Yeboah said the definition of over-voting by Mr. Asiedu-Nketia was supported in its entirety by the second respondent (Electoral Commission) through its Chairman (Dr. Kwadwo Afari-Gyan) when he said that a classical definition of over-voting is when the total number of votes cast exceeds the total number of registered voters.

“This so-called classical definition prompted my brother Baffoe-Bonnie, JSC to question him whether this definition holds, as there would never be hundred percent turnout in any elections. The second respondent’s representative, that is, Dr. Afari-Gyan, insisted on this definition. However, when he was subjected to rigorous and far-ranging cross-examination, he admitted that certain pink sheets qualified to be declared as over-voting (sic) notwithstanding that the total number of votes did not exceed the registered voters in some polling stations.”

Justice Anin Yeboah said the lack of any statutory definition “presents an invidious situation for the court to decide the fate of several polling stations which the petitioners have presented to us to annul the votes on the simple but cogent grounds that the results had been compromised and that there was clear want of transparency at the affected polling stations.”

He said the representative of the first (President Mahama) and third respondents (NDC) , Mr. Asiedu-Nketiah was of the view that in the course of voting a ‘foreign material’ might be found in the ballot box to lead to over-voting.

“I must confess that I found it very difficult to agree with him on how a so-called transparent electoral process could be so. In any case he was not re-examined on what a `foreign material’ meant and I can safely presume that a `foreign material’ may be some material that is foreign to the ballot paper in the ballot box or something different from the ballot papers in the ballot box.

“In my opinion, over-voting may occur when the total number of ballot papers issued to voters at a particular polling station is exceeded by the total number of ballot papers in the ballot box.”

He noted that over-voting might occur when the total number of ballot papers in the ballot box exceeded the number of registered voters on the polling station register, adding that “to define over­-voting by limiting it to the second part of the definition would not hold, in that it is a fact of history that it is always impossible to get a hundred percent turnout at any public elections.”

Justice Anin Yeboah said, “I am of the opinion that in the exercise of the right to vote if it turns out that an individual has voted more than once as required under the constitution in an election, the whole electoral system is compromised by the abuse of that right.”

Apart from the principle of Universal Adult Suffrage boldly stated in the preamble to the constitution, C.l. 75 which regulates elections also grants ‘statutory injunction’ against the abuse of electoral process when one voter casts more than one vote as required by law.

“As the second respondent failed to prevent the abuse of electoral process, it stands to reason that its own regulations governing the elections was clearly breached when it recorded several instances of over-voting as presented by the petitioners….It is a clear case of illegality proved to my satisfaction on the evidence presented to this court in the nature of documentary evidence, that is, the pink sheets.”

He said it should also be noted that all elections here and elsewhere, especially in constitutional democracies, are regulated by statutes. “It is within the limits of the statutes that elections elsewhere and in this country are conducted.

“In the very recent case of Republic V High Court (Fast Track Division) Accra; Ex-Parte National Lottery Authority (Ghana Lotto Operators Association & Others, Interested Parties) (2009) SCGLR, the worthy president of this court Atuguba JSC said: “It is communis opinio among lawyers that the courts are servants of the legislature. Consequently any act of a court that is contrary to a statute such as Act 722 s 58(1)-(3) is unless expressly or impliedly provided, a nullity’. The question is; if a court of law does not give effect to the law, who will?”

Absence of Signatures of Presiding Officers

Digging deep into the effect of the absence of signatures of Presiding Officers’ debate, Justice Anin Yeboah said “if Article 49 (3) would work injustice against the citizenry who registered, queued and voted, it is regrettable that I cannot in upholding the very constitution engage in any manipulation of language and deny its effect when it has been thrown to us for the first time ever in the history of this court.

“I will uphold the constitution and proceed to give effect to it by annulling the votes cast which were not, on the face of the pink sheets, signed by the presiding officer to reflect what actually took place at the various polling stations involved.

“The arguments that the agents signed and the result publicly declared by the presiding officers would not hold as in my opinion there is a clear breach of a vital constitutional provision which is a condition precedent to the declaration of the results involved in the affected polling stations.

“My constitutional duties would be fulfilled as a judge if I enforce the constitution. Our judicial oath taken on our appointment as judges enjoins us to at all times uphold the constitution which is the supreme law as clearly stated in the second schedule to the 1992 constitution,” the judge held.

He said it should be clear beyond question that on this allegation of fact the parties did not join issues adding that “the only disagreement on this issue was the legal effect of the lack of signature of the presiding officers at the polling stations involved.”

Justice Anin Yeboah said it had been argued vigorously in the closing address of the petitioners that the non-signing of the pink sheets by some of the Presiding Officers amounted to a serious irregularity as it was a clear breach of a constitutional provision.

“I think all the respondents against whom this allegation of no signature of the presiding officer has been made agree that it was a mere irregularity. It is to me the duty of the court to form an opinion what would be the legal effect of lack of signature of the presiding officer.”

Historical Fact

Digging deep into history on the claim, Justice Anin Yeboah said that “in interpreting a provision of a statute and constitutions for that matter, at times it would assist the court for guidance if reference is made to the law as it then stood before the coming into effect of the provisions under consideration.”

He said that the requirement of the presiding officers’ signature on polling stations declaration forms or Pink Sheets emerged as a constitutional requirement for the first time in post-republican constitution of 1992.

“As a country with a desire to entrench democracy based on universal adult suffrage and transparency and accountability, the framers of the 1992 constitution had cause to debate and insert this very important provisions in the constitution,” he disclosed, adding that “care must be taken to avoid any attempt to multiply words through linguistic manipulations to deny it effect as a constitutional provision, entrenched for a purpose.”

Justice Anin Yeboah took time to examine in detail the role of the presiding officer whose lack of signature on “vital electoral document has sparked controversy.”

He said that apart from Article 49 of the Constitution which deals with the role of presiding officer in an election, nowhere in the constitution is presiding officer mentioned.

“However, Article 51 of the constitution mandates the second respondent to make regulations for elections and referenda. It is a fact of electoral history that several of such regulations were made by the second respondents prior to the coming into force of the current one which is: Public Election Regulations, 2012 (CI 75). Regulation 17 spells out the functions of the Presiding officers and polling assistants.”

Presiding Officer’s Role

“From the functions imposed by the instrument on the presiding officer, it stands out clearly that virtually all the administration and even including security matters for the smooth running of the polls are vested in the presiding officer,” he held.

Justice Anin Yeboah said the constitutional duties imposed on the presiding officer apart from signing a declaration stating the polling station and the number of votes cast in favour of each candidate also includes announcing the results.

“It stands to reason that he is deemed as the representative of the Electoral Commissioner at the polling stations. In my respectful opinion, the signatures of the polling agents and the representatives of the political parties at the polling station may be dispensed with as from the available Pink sheets most of the political parties never presented their representatives or polling agents at many polling stations.

“From the evidence on record apparent on the pink sheets, many political parties did not send agents or representatives to many of the polling stations. None of the parties herein is making a case out of that, in that, the interpretation one can put on Article 49(3) is that political parties are not bound under the constitution to send agents to the polling stations. Their absence at any polling station and for that matter not signing any pink sheets as representatives or agents of the political parties would not amount to any irregularities or malpractice in the electoral process.”

He said a close reading of regulation 19 Of C.1 75 showed the limited role the polling agents play at the polling stations adding, “The polling agent does not have any major role to play in the course of the elections. It is clear under regulation 44 of C.l 7 that the non-attendance of the polling agent shall not invalidate the act or a thing done. The role of the polling agent is to detect impersonation and multiple-voting and certifying that the poll was conducted in accordance with the laws and regulations governing elections.”

The judge noted that the constitutional duties imposed on presiding officers at polling stations as regards the result of elections are repeated in C.l 75 under regulation 36 saying, “The presiding officer is enjoined to sign the declaration stating the name of the polling station, the number of votes cast in favour of each candidate, and the total number of rejected ballots, before proceeding to announce the results to the public.”

Mandatory Provision

“The signature of the presiding officer is mandatory in the constitution and the regulations made there-under which is under consideration,” the judge held.

“Some statutory provisions may express the performance of an act in several forms. It may be permissive or mandatory. The courts in Ghana have shown remarkable consistency in this regard. In all statutes, the courts apply mandatory provisions as expected and failure of non-compliance is not waived in some circumstances. The current constitution has been interpreted in line with the time-honoured principle that mandatory provisions must be respected.

“If in an ordinary statute shall should be construed as imperative and mandatory, what interpretation should we place on the same word ‘shall’ if it appears in our constitution and calls for construction?” he queried.

“I am of the firm view that the framers of the constitution inserted the word ‘shall’ is there for a purpose and should be construed as imposing a mandatory duty on the presiding officers to perform their statutory duty, which appears clearly as a condition for the declaration of the results at the polling stations. When there is clear breach of mandatory provisions of a constitution, it must be so declared and no effect is given to the act performed in breach of the provisions in issue.

“In my opinion, the article under consideration, that is, Article 49(3) is very clear and unambiguous. It is trite law that when the provision of a statute and constitution for that matter is clear and unambiguous, it is not the duty of a court of law under the guise of interpretation to scan the provision to interpret the clear and unambiguous provisions.

“If the fundamental law of the land, which is the constitution, has entrenched Article 49(3) to make it a constitution precedent for the validity of the election results, I am of the view that effect must be given to it notwithstanding the fact that Article 42 reserves the right to vote.”

Voting without biometric verification

Justice Anin Yeboah said in his respectful view, the issue of voting without biometric verification could be resolved by determining whether indeed some voters were not biometrically verified and also whether or not lack of the biometric verification should lead to the annulment of votes cast.

“The petitioners contend that some voters did not undergo any verification as required under the regulation as it then stood. The respondents deny vehemently this allegation of lack of biometric verification. Like any other denials in civil litigation, it calls for proof by preponderance of probabilities.

“On this issue, it is clear that the petitioners bear the burden of proof to satisfy this court that indeed some voters were not biometrically verified as pleaded in their pleading, based on which further and better particulars of the allegations were filed later.

“The respondents, to be precise, the second respondent, said the challenges which emerged from the use of the biometric verification machines were later successfully overcome and nobody voted without biometric verification and therefore there was no breach of the regulations.”

Justice Anin Yeboah said, “I have gone very far to quote the crucial evidence of the second respondent on this matter of no biometric verification. In his view (column) C3 was not to be filled but they were filled by some presiding officers. The case of the petitioners on this matter, as pointed out earlier in this delivery, is only limited to the entries on the face of the pink sheets and no more.”

He said that the second respondent on this issue tendered Exhibit EC 2 on 24th April 2013. Exhibit EC 2 is: A guide to Election officials’ – Election 2012 Presidential and parliamentary Elections.

“This book or manual as one may call it, was prepared by the second respondent to guide the public on voting procedure on the face of the pink sheets or the statement of poll for the office of President of Ghana the C column of which C3 should be filled or not to be filled is designated as the Ballot Accounting (To be filled in at END of the poll before counting commences).”

“If indeed this was what was officially used to train the presiding officers it does not contain C3 but on the right hand side of it a provision is made for C3 to be filled. On the left hand side column it commences from C 1, C2, C3, C4, C5 and C6.

“At C6 it is stated thus: What is the total of Cl, C2, plus C3, plus C4? (This number should equal A.1 above). Why the deletion of C3 appeared on the left hand side and was stated on the right hand side is incomprehensible to me. Whether it was as a result of bad printing was not explained. When it was printed and how the training was done as regards this problem is still shrouded in doubt.”

Presiding Officers Control Pink Sheets

“My problem is that these pink sheets cumulatively form mass documentary evidence amassed by the petitioners. They were filled and given to the agents of the parties after the close of polls. The only contribution from the agents in generating pink sheets at a polling station is that they sign the form if they are present. If they also want to protest formally, this they could do, and no more.”

He said to him, pink sheet is under the exclusive control of the presiding officer from the time polls start till after he has signed them and issued them out. “This is a statutory document required by law and even under the constitution to be signed by the presiding officer.

“It stands to reason that if entries are made thereon, prima facie, the entries are deemed as the official recordings of whatever took place at the polling station and no more. I do not think that any of the parties to this petition will dispute the fact that the recordings on the face of the pink sheets are deemed to reflect what the presiding officer in his official capacity recorded at the polling station for the declaration of the results.

“This is a documentary evidence of a transaction very serious and vital in every respect. To me it raises a strong presumption of regularity and satisfies, in my view the best evidence under the circumstances provided the evidence is admissible,” Justice Anin Yeboah held.

Prima Facie Evidence

He said that the evidence by the presentation of the pink sheets by the petitioners “in my opinion raises prima facie evidence of what officially took place at the various polling stations,” adding that “in my opinion the petitioners have discharged the burden of proof as none of the pink sheets supplied in respect of lack of biometric verification attracted any objection on admissibility.

“The respondents who on the pleadings and the evidence doubted what is officially recorded on the pink sheets must satisfy this court that the recordings are incorrect or suffer from any defects known to admissibility of evidence.”

Justice Anin Yeboah said that as regards the EC whose agents, that is the presiding officers, prepared, signed and issued the pink sheets to the petitioners agents at the various polling stations “they are estopped from denying their authenticity.

“From the evidence of the second respondent’s representative he relied on all those pink sheets to declare the results and he cannot just deny its contents. He is bound by the entries on the face of the pink sheets.”

He continued: “I find his explanation as most unsatisfactory in that he could not indeed tell the court when and by which means it was officially made known to the presiding officers not to fill C3. lf he was in serious doubt, a court of law must not leave this vital evidence led in rebuttal to guess or conjecture. I am aware of the submissions from counsel for the first and third respondents that this evidence on C3 was left unchallenged by counsel for petitioners.”

Justice Anin Yeboah said that he accepts the proposition of law that when evidence led against a party is left unchallenged under cross-examination the court was bound to accept that evidence saying “but it was clear that Dr. Afari-Gyan who gave evidence on this issue was just conjecturing and it would be a sad day for me to believe such evidence, more so when throughout his evidence under-examination he demonstrated want of credibility.

“I find that the respondents, especially the second respondent who led evidence to rebut a documentary evidence prepared by his duly authorized agents failed to lead credible evidence to rebut the presumption of regularity of officials acting in their statutory capacity and performing their constitutional duty.”

Justice Anin Yeboah said the evidence on the face of the pink sheets that there were no biometric verification “has not been rebutted by the second respondent as required by law in civil cases.

“I find as a fact that the petitioners have proved that the entries show conclusively that those voters were not verified biometrically.”

“In my opinion the various affidavits filed against this issue of lack of biometric verification do not in the least rebut the documentary evidence duly prepared by the second respondent’s agents, signed by them and duly used for the declaration of the results which is in controversy. I feel that this is not the type of evidence needed to rebut the presumption of regularity raised in favour of the pink sheets covering lack of biometric verification.”

Unknown polling stations, duplicate polling station codes, and duplicate serial numbers

Justice Anin Yeboah dismissed the claims of Unknown Polling Stations, Duplicate Polling Station Codes, and Duplicate Serial Numbers saying “these categories in my view could be dealt with together.

“I had a draft copy of the opinion of my esteemed brother Dotse JSC on these remaining categories. I took time to have detailed discussion with him on his draft. It appeared that my learned brother had put a lot of industry in preparing his opinion on these categories of electoral irregularities or malpractices.

“I find his reasons very convincing in law based on the evidence adduced before us by the parties. I am in support of the reasons canvassed by him for the dismissal of these categories and I cannot multiply words to justify my agreement with him. I therefore, like my brother, proceed to dismiss these categories as not proved by the standard expected of a suitor.”

EC Lambasted

He said, “I must confess that I was very uncomfortable with the way and manner this highest court of the land was left unassisted by the second respondent in whose custody the original pink sheets are kept.

“It appeared from the reports of the official referee (KPMG) that as many as 1,545 of the pink sheets supplied by the petitioners as filed exhibits were not legible. In a serious matter in which the mandate of the entire voters of this country is being questioned through a judicial process one expected the second respondent as the sole body responsible for the conduct of elections to have exhibited utmost degree of candour to assist the court in arriving at the truth.”

Justice Anin Yeboah said “surprisingly, the second respondent opted for filing no pink sheets leaving this court unassisted and thereby placing reliance only on the pink sheets supplied to the agents of the petitioners at the various polling stations in issue. Why the second respondent elected to deny a court of law in search of the truth in a monumental case of this nature is beyond my comprehension.”

Burden of Proof

Justice Anin Yeboah said that under the Evidence Act, NRCD 323 of 1975 a party who bears the onus of proof has, an obligation to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court. “It has been urged on this court that the evidential burden has not been discharged by the petitioners.

“In an election in which results were officially published, the results must be deemed as correct and any person challenging same ought to prove that it wasn’t so.

“Another point worthy of mention is that, the second respondent, which is the only statutory body constitutionally charged to conduct such elections in its official capacity must be presumed to have regularly performed its official functions as it did in this case. This common law position is statutorily supported by section 37(1) of the Evidence Act, NRCD 323 of 1975. The presumption of regularity therefore holds in favour of the second respondent.

“Applying basic common law principles and the Evidence Act, it appears that the burden of proof is squarely on the petitioners. This was indeed acknowledged by the petitioners in their written address submitted to the court at the close of the case.”

Standard of proof

Justice Anin Yeboah said that the petition was simply a civil case by which petitioners were seeking to challenge the validity of the presidential elections. “From the pleadings and the evidence, no allegations of fraud or criminality were ever introduced by the petitioners.”

He said that “the standard of proof of allegations in civil cases is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt.”

“The fact that this petition is brought under Article 64 of the 1992 Constitution does not make any difference in the applicability of the standard of proof. The allegations in the petition that were denied by the respondents in their answers to the petition ought to be proved as required in every case. The fact that the petition is a constitutional matter is also entirely irrelevant. The standard of proof in all civil cases is the usual standard of proof by preponderance of probabilities and no more.

“From the various written submissions on record, none of the parties has raised any question or issue as to any higher standard of proof required to be applied in a purely civil litigation of this nature.”

Conclusion

“I do not think that from the evidence of the petitioners, both documentary and oral, any one would doubt that the petitioners failed to prove multiple irregularities, malpractices and statutory violations against the second defendant. I am of the firm conviction that issue (1) was proved to my satisfaction by the available evidence on record and I accordingly proceed to resolve same in favour of the petitioners.

“On Issue (2), I find from the evidence that given the number of votes affected by the violations, omissions and malpractices and the irregularities appear to be such that they impacted adversely on the results, I would also resolve issue (2) in favour of the petitioners.

“I would have readily proceeded to grant the reliefs sought in its entirety but the ONLY problem is that from the available evidence, the widespread violations, omissions and malpractices appeared to be of such proportions that it would not be proper for me to declare the first petitioner as winner of the elections in controversy in terms of the reliefs sought.

“I find the malpractices, omissions and violations enormous which rock the very foundation of free and fair elections as enshrined in our constitution which was itself breached through over-voting, lack of presiding officer’s signature and lack of biometric verification which takes its validity from Article 5l of the very constitution.”

He also commented on the Canadian case of OPTIZ V BORYS WRZESNEWSKYS (2012) SCC 55, which “so much reliance was placed on,” saying “it must be pointed out that this Canadian case which was cited by all must be read within its own context for its persuasive value.

“It was decided on the legislation as it then stood, that is, Canada Elections Act, S.C 2000, C9, SS. 524 (1) (b), 531(2) involving an electoral petition in which a candidate in federal election was defeated by margin of twenty-six votes alleging irregularities.”

He concluded that “no matter the persuasive effect of this decision which was split, care must be taken not to allow foreign decisions to persuade us when our own legislations or constitution are placed before us for interpretation.”

By William Yaw Owusu

Source: Daily Guide/Ghana

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