The electoral commission’s (EC) written address to the Supreme Court panel hearing the presidential election petition (WRIT No. J1/6/2013) reveals an unassailable fact: the EC prematurely declared a winner in the 2012 election and is using the judicial arena to defend the premature declaration rather than assist the Court to determine whether the declaration was valid.
Because the EC is a taxpayer-funded
entity, which is expected to be non-partisan and disinterested in the
outcome of an election, this partisan posture is unfortunate indeed.
In paragraph 14 of the address, the EC acknowledges what all Ghanaians have come to know – “that
in completing the ballot accounting part of the pink sheet, many of the
Presiding Officers made clerical errors and left blank spaces wrongly
and made errors which were not logical.”
In paragraph 27, the EC justifies the incidence and frequency of these errors by reminding the Court that, “the
EC hires over one hundred thousand temporary officials, who are trained
for only a short time, to conduct the presidential and parliamentary
elections in a day or two.” As a result, the EC invites the Court,
and the nation, to accept that such administrative, clerical and logical
errors are unavoidable.
To be sure, it cannot be gainsaid that
election officials are fallible (to err is human, as they say). But the
notion that election officials can err is not a license to ignore
detected errors, an injunction against correcting known errors or a
covenant to accept outcomes that are pregnant with errors.
As such, the discovery of election errors, regardless of what they are called, raises four issues: (i) when
did the EC become aware of these so-called administrative, clerical and
logical errors? (ii) What was the nature and effect of these errors?
(iii) were these errors known before the declaration of the results and
if so were the errors corrected prior to the declaration? (iv) if these
errors were found after the declaration, what steps have the EC taken to
Alas, the EC does not address these pertinent issues but simply invites the Court to accept its bald assertion that the administrative, clerical and logical questions did not affect the outcome of the elections. Bald, because, nowhere in the address does the EC attempt to explain the nature and effect of these so-called errors.
is apparent that the EC seems unwilling or unable to appreciate the
implications and seriousness of these so-called administrative, clerical
and logical errors. It is almost as if the EC believes that errors
become self-correcting merely by qualifying them with certain
The EC’s invitation for the nation to accept
election results contaminated with known and uncorrected administrative,
clerical and logical errors must be declined, precisely because such
errors undermine the integrity and credibility of our elections.
paragraph 15 of the address, the EC invites the Court to reconstruct
the pink sheets so as to render them logical. The invitation is cloaked
in high-sounding legal parlance –“the pink sheets must be read as a
whole with the eye of a person desirous of conducting careful analysis
of its contents.” The EC’s reconstruction logic proceeds as follows: If
the number in A1 is illogical, ignore it and use the number in A2. If
both are illogical, ignore them and use the sum of C1+C2+C3+C4. If you
cannot make sense out of all the numbers, just grab the statistics of
ballots issued to each region, constituency and polling station and it
will help careful eyes to comprehend the errors on the face of the pink
According to the EC, this innovative, even mysterious, way of reading a pink sheet is permissible because “the
pink sheets are intrinsically or extrinsically verifiable.” There is
just one little problem with this argument: the EC does not give an iota
of evidence that it engaged in this so called intrinsic and extrinsic
verification of the pink sheets before declaring the EC acknowledged
error-ridden results of December 9, 2012. The theory is what it is: an
ex post intrinsic and extrinsic verification theory to rationalize a
rush to announce tainted election results.
Next, the EC
addresses each of the categories of irregularities, malpractices,
omission and statutory violations (IMOV) for which petitioner led
evidence and are the basis of the reliefs so sought.
The petitioners’ case is that over voting occurs where (a) the
ballots cast exceed the number of registered voters or (b) the ballots
cast exceed the number of ballot papers issued to the polling station.
Further, over voting should lead to an annulment of the votes because it
violates Article 42 of the Constitution and Regulation 24(1) of C.I.
75. Article 42 relates to the right of a citizen to vote and her
entitlement to be registered as a voter and Regulation 24(1) states that
a voter cannot cast more than one vote when a poll is taken.
EC’s argument against this case is that the petitioner failed to show
that any person voted or attempted to vote more than once. Therefore,
the petitioner’s claim that over voting violates Article 42 of the
Constitution and Regulation 24(1) of C.I. 75 must fail.
opinion, the EC has utterly misconstrued Article 42 and Regulation 24(1)
of C.I. 75. Together, the laws suggest that every registered voter is
entitled to cast a single ballot and that ballot is entitled to be
counted once. It follows that those who are not registered to vote are
not entitled to vote and, logically, their votes are not entitled to be
Thus, failing to show that any person voted or
attempted to vote more than once is not the only way of showing that the
laws have been violated. The law is also violated when a valid
ballot is counted more than once, even if nobody votes more than once.
It is likewise violated when someone who is not entitled to vote casts a
ballot, even though this person does not attempt to vote more than once.
course, because casting a ballot is done secretly, it is unreasonable
to expect petitioners to show that a voter cast more than one ballot.
Where a secret ballot is used, the presence of over voting, as defined
in (a) and (b) above, is conclusive evidence that a ballot has been
counted more than once or that a voter has cast more than one ballot.
voting violates Article 42 and Regulation 24(1) of C.I. 75 on a “res
ipsa loquitur” theory! Without additional proof, ballots cast that
exceed the number of registered voters or the number of ballot papers
issued to a polling station conclusively establishes a violation of the
“one man one vote” principle in Article 42 and Regulation 24(1).
over voting raises questions about the credibility and integrity of the
elections in the affected polling station. It is for this reason that
the EC annulled the presidential election in Upper West Akim-Arabic
Primary School A in the Asuokaw polling station. Thus, the EC’s defense
*NO SIGNATURE BY THE PRESIDING OFFICER:
According to Article 49 (3) of the Constitution and Regulation 36 (2) of C. I.75, the EC-appointed presiding officer shall
sign the statement of declaration of the polling results (i.e., the
pink sheets). It is the petitioners’ case that 995 pink sheets were not
signed and should not therefore have gone into the collation of the
The EC does not deny this in its address. Rather, the EC
argues that the petitioners’ polling agents signed 99% of these pink
sheets. According to Afari Gyan, he considers the polling agents’
signature acceptable for the purposes of the declaration of the
Put more vividly but accurately, Afari
Gyan has suo moto amended Article 49 (3) of the Constitution. The
mischief that this Article was intended to cure is so grave that it
happens to be one of the few entrenched provisions of the Constitution.
It is not up to the EC, Afari-Gyan or anyone to decide which of the
provisions of the Constitution they are going to enforce or not enforce.
It is abundantly clear that the presiding officers’ signature is necessary to validate a pink sheet. It
is for good and obvious reasons that the Constitution requires a
signature of a non-partisan EC-appointed official. Accepting pink sheets
signed by only partisan agents is an invitation to fraud and chaos in
Absent the signature of the presiding officer, the pink sheets MUST NOT
enter the collation of the Presidential results. It is a willful
violation of an entrenched provision of the Constitution for the EC to
have included these inchoate and invalid pink sheets in its collation.
Regrettably, that several months after the violation, the EC does not
seem to realize the harm that this reckless conduct had caused.
the EC does not offer any explanation for why 995 Presiding Officers
failed to sign the pink sheets. In fact, the EC offers no evidence of
any internal investigation to understand and remedy the problem.
one of the reasons cited for the EC to disqualify the NDP Presidential
candidate from contesting the 2012 elections was the absence of
signatures for those who endorsed her. Either our constitutional
provisions matter or they do not matter.
But we cannot have it both ways.
*NO BIOMETRIC VERIFICATION:
to its written address, the EC insists that everyone who voted was
biometrically verified. I found this to be rather amusing because I
happened to be in the Courtroom when the EC testified that an “Omanhene”
does not have to go through biometric verification in order to vote.
That is, what I heard him say was that the election officials had
discretion in deciding whether or not to use biometric verification. In
this vein, Afari Gyan’s oral testimony is in conflict with the EC’s
The biometric verification tools were
procured at high cost to enhance the integrity of the elections and to
cure the mischief of impersonation, multiple voting, etc. The enactment
of C. I. 75, Regulation 30(2), which provides that, “the voter shall go
through a biometric verification process before being allowed to vote,”
and the “NO VERIFICATION NO VOTE” mantra put the country on notice that
polling stations, which recorded ballots cast in excess of biometrically
verified voters, will have their results annulled.
now invites the Court to set aside the algorithm for detecting the
biometric infraction above. Rather, the EC claims no biometric
verification occurred because the petitioners did not produce a person
who saw anyone voting without having been biometrically verified.
is palpably misleading because, as discussed previously, the secret
nature of voting is such that most infractions can only be
circumstantially proven. And such circumstantial evidence formed the
basis of the EC cancelling the results of 4 polling stations for
The EC must apply its rules consistently!
*DUPLICATE SERIAL NUMBER ON PINK SHEETS:
before the EC blames others. Here, the blame is not on the ill-trained
workers but the printers who inserted the numbers. The EC does not
address the real possibility that it was this duplication that enabled
the over voting, non-biometric voting and the missing signatures. The EC
makes similarly unpersuasive arguments about the same polling codes
with different results and the unknown polling stations.
in its conclusion, the EC refers the Court to the Canadian case of
Opitz v. Wrzesnewskyj SCC 55, ( 3 S.C.R). While the EC correctly
points out that the case has a persuasive effect on the Court, it was
less than diligent in properly situating the case for the Court and
provided out of context quotes from paragraphs 46, 56 and 66 that could
mislead the Court. In reality, the Opitz case was about disputed
elections in an electoral district, not a presidential election, and the
issue was whether votes should be annulled because of votes cast by
individuals who were not entitled to vote under the Canada elections
The case has nothing to say about constitutional
violations in the form of over voting, absence of presiding officers’
signatures. Nor does it shed any light on voting without biometric
violation or duplicate pink sheets.
The quote in paragraph
46 is misleading in that it gives the impression that imperfections in
the conduct of elections are inevitable as a result of inexperienced
workers performing under unfamiliar condition. This gives the impression
that anything goes.
However, a fuller version of the quote is in paragraph 2, which ends as follows: “Only
irregularities that affect the result of the election and thereby
undermine the integrity of the electoral process are grounds for
overturning an election.” Clearly, the irregularities, malpractices,
omissions and statutory violations at issue in WRIT No. J1/6/2013
undermines the integrity of the electoral process.
paragraph 56 of the Opitz case, which talks about the risk in adopting
the strict procedural approach, the EC should have been more forthcoming
in revealing to the Court that the position taken by the Opitz Court
obliterates the distinction between qualification and entitlement to
vote. As the Chief Justice of the Opitz Court stated in his dissent
(this case was a 4-3 decision), “my colleagues take the position that
everyone who is qualified to vote and ordinarily resident in the
electoral district is entitled to vote. Thus, a voter who is not on the
electoral list and has not filed a registration certificate can be later
held to have been “entitled” to vote if he was qualified to vote and
ordinarily resident in the electoral district. I cannot accept this view.”
the issue is not before our Court, I believe most Ghanaians will be
wary of any system that entitles a qualified voter to vote on voting day
without having gone through prior registration.
reference to paragraph 66 is misleading without context. Paragraph 67
provides an example, which could have put paragraph 66 in context and
highlight the real issue before the Opitz Court:
compare the situation of two voters who arrive at the polling station
with inadequate identification. The deputy returning officer (DRO)
personally knows one of the voters, and vouches for him, enabling him to
cast a ballot. The DRO does not live in the polling division, so he has
vouched in a manner not permitted by the Act. However, the voter leaves
the polling station believing that he has cast a valid vote. If a court
later rejects the voter’s vote, he is irreparably disenfranchised,
through no fault of his own. In the case of the second voter, the DRO
properly refuses to let her vote without proper identification. This
voter can return to the polling station later in the day, accompanied by
a voucher who lives in the polling division, and cast her ballot. She
has not been disenfranchised.”
identification is not the IMOV that our Court is dealing with. Thus,
Opitz is of little relevance and use to the Court.
To sum up,
we invest a lot of resources in the EC to manage our electoral process,
to declare the results and, where necessary to provide unbiased and
relevant information for our Court to determine whether declared results
are valid. It is my assessment and opinion that the EC has woefully
failed to carry out this burden. If the EC cannot defend its processes
and outcomes, it is hard for me to see how anyone can!
Source: Prof. S. Kwaku Asare