The Presiding Judge in the just-ended 2012 Presidential Election petition has stated in his judgement that the “scenario where the number of ballots in the ballot box exceeds the number of ballot papers issued to the relevant polling station” does not constitute over-voting.

According to Justice William Atuguba, in his 48 paged judgement, such a scenario, which was proved in court, according to Justice Julius Ansah, “is rather an instance of ballot stuffing as testified by Johnson Asiedu Nketia.”

This view by Justice Atuguba even runs contrary to the admissions made in court by the Chairman of the Electoral Commission, Kwadwo Afari Gyan, who on June 6, 2013, finally accepted the petitioners’ definition of over-voting which he had earlier denied in his evidence-in-chief.

It is recalled that lead counsel for the petitioners, Philip Addison, in ending his cross-examination on the day presented Dr Afari-Gyan with a pink sheet from Temporary Booth Jinpenhi with polling station code K030405, on whose face over-voting could be seen as the total ballots cast totalled 67, though the number of registered voters on the polling station register indicated on the pink sheet was 21.

Counsel Philip Addison pointed out to Dr Afari-Gyan that, on the face of the pink sheet, one could see a situation of over-voting per the EC boss’ ‘classical definition’ of over-voting. Dr Afari-Gyan who claimed that was not the case quickly pointed out that he would prefer referring to the voters’ register to cross-check which he was allowed to do.

After cross-checking with the register, Dr. Afari-Gyan stated boldly that the register had a total of 71 voters instead of the 21 which had been indicated.

It was at this point that Counsel Philip Addison suggested to Dr Afari-Gyan that over-voting occurred at the polling station as a result of the total votes in the ballot box being more than the total ballots issued to voters at the polling station. To the surprise of many, Dr Afari-Gyan immediately agreed to this statement of Counsel Philip Addison, contradicting his statements and posture during his examination-in-chief.

The pink sheet from the Temporary Booth Jinpenhi showed that although 66 ballots were issued to voters at the polling station, 67 ballots were found in the box and counted as part of the results at the end of voting, which went into the declaration of John Mahama as the winner of the 2012 election.

It would be recalled that the petitioners in their petition and during the evidence-in-chief of Dr Bawumia, star witness of the petitioners, defined over voting in two ways. They indicated that over voting would be said to have occurred where the total ballots cast was more than the voters’ register at the particular polling station and secondly where the total ballots cast was more than the ballots issued to voters at the polling station.

The second definition by the petitioners was strongly denied by General Secretary for the NDC, Johnson Asiedu Nketia, when he took the witness box. Johnson Asiedu Nketia stated categorically that there was no way over-voting could have been said to have happened even if more votes were found in the ballot box than the ballots issued to voters as long as the votes in the box was not more than the register at the polling station.

Following in Asiedu Nketia’s footsteps, Dr Afari-Gyan also tried strongly to avoid accepting the petitioners’ second definition of over-voting. He stated that there was only one classical definition of over-voting, which was where votes in the ballot box were more than registered voters. Even when confronted with the reality that the so-called classical definition could not be realistic as it did not take into account the fact that people could die or would fail to show up on Election Day, Dr Afari-Gyan still failed to accept the petitioners’ definition and said he had a problem with it.

Justice Atuguba acknowledged that “according to the evidence where the votes in the ballot box are exceeded by even one vote the integrity of that vote is said to be compromised and must be annulled and depending on the impact of that vote on the overall results, the election in that polling station must be rerun.”

However, Justice Atuguba was of the opinion that the petitioners had not established their allegations of over-voting “except to the limited extent admitted by the Electoral Commission’s chairman, which cannot impact much on the declared results.”

But, Justice Julius Ansah, who agreed with the definition offered by the petitioners, was convinced over-voting occurred in the elections and the petitioners were able to prove that claim.

“There was credible evidence that where there was proof that there was over -voting, the Electoral Commission annulled the votes at the particular polling station. This step by the commission was justified because they apparently were violations of statutory provisions quoted above in this opinion. That much was also admitted by the second respondent; he only sought to mitigate the effect of these errors when he made a half hearted effort by saying that he was not made aware of those cancellations, and if he had been he would have checked the records further before cancelling the results. The fact that they had been cancelled for over voting was not doubted; by that the second respondent set an example he ought to follow wherever there was an over-voting,” he stated in his judgment.

He added: “I am of the view that our electoral laws will be given a lot of impetus and strength and respect if they are given teeth to bite and all breaches are given uniform treatment; what is good for the goose is equally good for the gander.”

“Reduced to simple practical terms polling stations where over voting took place, the results were cancelled, and there was no reason why the same thing ought not to be done to where the same thing took place.

My overall assessment of the evidence on the ground of over-voting is that the petitioners proved their case on the preponderance of evidence and that looking at the weight of the votes affected by that irregularity, it affected the outcome of the results so much that I have no option other than annulling those votes, and I do so annul them,” he concluded on over-voting.