The petitioners in the ongoing Presidential Election Petition have reiterated the constitutional requirement that only valid votes gets counted in an election and the power of the Court to annul invalid/ unlawful votes in order for a declaration to be made on only the valid votes. This is contained in the 176 paged address of the petitioners filed a week ago.

In dealing with “The Legal Effect of the Constitutional and Statutory Violations, Malpractices and Irregularities”, the petitioners stated that “the manner in which the Constitution has formulated the basis on which a person may be deemed to be elected President is a pointer to the fact that the Constitution itself envisages that it is only valid votes cast at an election, which must be counted.

Article 63(3), which is material for this purpose, stipulates thus: “A person shall not be elected as President of Ghana unless at the presidential election the number of votes cast in his favour is more than fifty percent of the total number of valid votes cast at the election.”

The petitioners submitted that the Constitution itself, by this provision, recognises that in an election there shall be valid votes and invalid votes. This provision, according to the petitioners, clearly empowers the Electoral Commission to take into account in the declaration of a person as President of Ghana only valid or lawful votes and mandates it to disregard unlawful or invalid votes.

The petitioners noted “that the Constitution does not indicate the number of people who must vote in a presidential election before the legality of the election of a person as President will be upheld. Neither does it specify the quantum of votes in relation to the population of the country that a person must obtain before he can become President.”

Unlike provisions for a referendum with respect to entrenched provisions in the constitution where there is a specific threshold of votes which must be attained, in the case of the election of a president “all that the Constitution is concerned about is that, the person so elected has obtained more than 50% of the valid votes cast”, the petitioners said.

The address reminded the Honorable Court of its “duty to uphold the integrity of elections only in polling stations where the results of the elections have not been affected by violations, malpractices and irregularities” since a valid mandate for the person occupying the office of the President is an integral bedrock of Ghana’s constitutional democracy.

“It is respectfully further submitted that a ‘valid vote’ is a vote cast in accordance with the mandatory regulations affecting elections or lawful instructions issued to all registered voters in advance of the elections. For a vote to be valid, a person who has the right to vote must first cast it. Article 42 of the 1992 Constitution does not only give every citizen of Ghana of eighteen years of age or above and of sound mind the right to vote but also an entitlement to “be registered as a voter for the purposes of public elections and referenda. The requirement that a voter must be first registered to vote is a constitutional imperative. The Constitution has, therefore, connected the registration requirement genetically to the right to vote; so it is a requirement for the right to vote and not a limitation of the right. That requirement in itself requires certain processes to be in place to realise it and the mandatory use of a Biometric Verification Device is what the nation has agreed, by way of a constitutional instrument properly enacted, to be the current enhancing method of realising that right to vote statutorily prescribed by Regulation 30 (2) of C. I. 75.”, the address said.

The petitioners summarized the following elements of an invalid vote;

“

• that it violates the provisions of the Constitution
• that it is a rejected ballot paper as defined by Regulation 37 of C.I. 75
• that the voter did not comply with the provisions of C.I. 75
• that it was procured in a way manifestly inconsistent with the principles of a free, fair and transparent election, the very principles underlying the legitimacy of constitutional democracy.

It is further submitted that an election is valid when it is conducted in accordance with the Constitution and in compliance with the laws enacted to govern the proper conduct of elections. These are important safeguards aimed at ensuring appropriate protection for citizens who desire to exercise their fundamental right to vote. The Constitution, under article 49, makes express provisions on how the polls at the polling station are to be conducted. It is instructive that the Constitution made it mandatory for the presiding officer, to sign the pink sheet before declaring the polling station results and sending same to the returning officer,” the address stated.

As well as citing cases from England, Canada, Kenya, Uganda and other Nigerian cases, the petitioners notably cited a Nigerian Court of Appeal case where the court cancelled election results in 14 out of 18 Local Governments in Edo State and overturned the results.

The case involved a gubernatorial election (election for a governor) which was held on 14th April, 2007 in Edo State. The People’s Democratic Party (PDP) candidate, Prof. Oserheimen Osunbor was declared by the Independent Nigerian Electoral Commission (INEC) as winner of the election. However, Comrade Adams Oshiomole who contested on the ticket of the Action Congress challenged the declaration by filing a petition at the Court.

The Court, as stated earlier, annulled 14 out of the 18 Local Governments election results in Edo State for substantial non-compliance with the law and declared Adams Oshiomole as the validly elected Governor of the state “being the candidate who scored the highest number of valid votes cast”.

“The legitimacy and in fact, constitutionality of a presidency is derived from the validity of the votes that went into the declaration of the presidential election results. It is on the strength of this that the 2nd respondent at every election rejects certain votes and, actually, annuls results from some polling stations plagued by infractions”, the petitioners stated.

The address cited several cases from across the globe where various courts had annulled results from various areas and made declarations based on whether the annulments affected the outcome or not.

The petitioners in the case before the Supreme Court challenging the declared outcome of the December 2012 Presidential election, are asking the Court to annul election results from a total of 10,119 polling stations affected by various constitutional and statutory violations, malpractices and irregularities which have rendered the votes from such polling stations invalid.

The petition is seeking the court to annul the polling stations due to four main irregularities identified on the face of the primary records on the conduct and outcome of the election in those polling stations. These irregularities which have tainted these results are over voting, voting without biometric verification, the absence of presiding officer’s signature and same serial numbers on different polling station pink sheets. The petitioners are also seeking the court to annul polling stations in two other statistically minor categories, that is, different results for the same polling stations and locations not included in the official list of polling stations where elections were held.

The total number of votes from the 10,119 polling stations, the petitioners have restricted themselves to, is 3,931,339. Should the Court uphold the arguments of the petitioners and annul these votes tainted by invalidity, 2,622,551 votes will have to be deducted from the votes declared for John Mahama. These annulments and deductions of the invalid votes will mean that John Mahama will have 41.79% of the valid votes cast in the December Elections. Nana Akufo-Addo’s vote total will come down by 1,233,186 votes as a result of these infractions and as a result will have 56.85% of the valid votes cast in December.

Indeed from the case presented by the petitioners, any of the four main irregularities, if sustained by the Court and the polling stations annulled, will be enough to bring John Mahama down as it will mean he did not achieve the mandatory 50% + 1 of valid votes to be declared winner of the election.

For example, should the court annul votes from the 4,487 polling stations affected by over voting, voting without biometric verification and the constitutional violation of the absence of presiding officer’s signature, 1,802,221 votes will be affected in total. Out of these, 1,229,966 votes will be deducted from the total votes declared for John Mahama as they have been tainted by the various irregularities while 534,999 will be deducted from the votes of Nana Akufo-Addo. With these annulments and deductions, John Mahama will have 47.26% of the valid votes cast while Nana Akufo-Addo will have 51.28% of the valid votes cast.

Should the court also sustain the petitioners’ arguments on only the twin categories of over voting and voting without biometric verification, 1,365,723 votes will have to be annulled from the 3,371 polling stations whose results have been tainted and rendered invalid by one of the two irregularities or both. When annulled, John Mahama’s votes will be reduced by 932,501 which will result in him having 48.21% of the valid votes while Nana Akufo – Addo’s votes will be reduced by 404,531 and will see him having 50.31% of the valid votes.

Again, should the court annul the 3,069 polling stations affected by over voting and the absence of presiding officer’s signature, a total of 1,270,682 votes will be affected. Out of these, John Mahama will see a reduction in his votes of 861,775 while Nana Akufo-Addo’s votes will similarly be reduced by 382,472. These annulments and deductions of the votes rendered invalid by the irregularities of over voting and the absence of presiding officer’s signature will see John Mahama having 48.46% of the valid votes while Nana Akufo-Addo will have 50.04%, more than the required 50% + 1 of valid votes needed to be declared as the winner of the election.

Also, if the Court decides to annul the votes from the 8,987 polling stations affected by the phenomenon of same serial numbers for different polling station pink sheets, a total of 3,508,491 votes will be annulled. John Mahama will see a reduction in his votes of 2,344,540 which will reduce his share of the valid votes cast therefore to 43.15% while Nana Akufo – Addo’s votes will also be reduced by 1,097,169 giving him 55.45% of the valid votes.

The malpractice of duplicate serial numbers is, therefore on its own, enough to overturn the declared outcome of the election.

On the individual categories, should the Court decide to annul votes from the 1,722 polling stations affected by over voting, a total of 745,569 votes will be affected and annulled. Out of this total, 504,014 votes will be deducted from the votes of John Mahama. This will give him 49.47% of the valid votes cast, below the required 50%+1 of valid votes needed. Nana Akufo-Addo’s votes will also be reduced by 226,198 giving him 49.0% of the valid votes.

Also, if the Court sustains the petitioners’ arguments on voting without biometric verification, results from 2,131 polling stations with a total of 813,866 votes will be affected and annulled. When annulled, John Mahama’s votes will see a reduction of 560,399 while Nana Akufo-Addo’s votes on the other hand will be reduced by 234,970. These deductions will result in John Mahama having 49.25% of the valid votes while Nana Akufo-Addo will also have 49.25% of the valid votes.

The constitutional violation of the absence of presiding officers’ signature affects 1,638 polling stations with a total of 659,814 votes. When annulled, 448,153 votes will be deducted from the votes of John Mahama while 197,890 votes will be deducted from the votes of Nana Akufo-Addo. This will result in John Mahama having 49.60% of the valid votes cast while Nana Akufo-Addo will have 48.87% of the valid votes.