“The interpretation of Article 49 of the Constitution that has been urged on us in these proceedings does not commend itself to me. That interpretation seeks to constitute Presiding Officers into a special class of actors in the electoral process.

“I am unable to understand that although they actually presided over the elections and the counting of the ballots and caused polling agents to sign the declaration of the results, which they thereafter openly announced to the public and had a copy thereof posted at the polling station, by merely not signing the results sheets,…. the entire process should be invalidated.”

This was contained in the 25-page judgement of Justice Sule Nasiru Gbadegbe, one of the judges who dismissed all the claims brought by the petitioners in the just-concluded landmark Presidential Election Petition.

In Justice Gbadegbe’s opinion, “such an approach is not rooted in shared common sense and undermines the entire process of elections by having innocent voters disenfranchised on purely technical grounds.

“Therefore, in my thinking a mere breach of a constitutional provision does not by itself result in invalidating an election, but it must be proved of the said non-compliance that it has materially affected the declared result at the election.”

Absence of signatures of Presiding Officers Digging deep into the claim of absence of signatures of Presiding Officers, Justice Gbadegbe said he was adopting what he called substantive approach to address the issue instead of the procedural approach urged on him by the petitioners.

“The procedural approach that is urged on us by the petitioners does not commend itself to me and I prefer to adopt the substantive approach in a matter that touches and concerns no mean a right as the right to vote.

“Perhaps, because our electoral history has not had the experience of other jurisdictions where for several years a certain section of the population was not entitled to vote, we tend to take its conferment on us, as a people, lightly.”

Justice Gbadegbe said in the area of legislation regarding requirements of the Constitution that utilises the word ‘shall’, Courts in the United States of America have tended to hold that the mandatory requirement means substantial and not complete or literal compliance.

“In my view, if such an interpretation could be given, regarding the exercise by the legislature of a power conferred on it under the constitution to make laws on behalf of the sovereign people of the United States of America, then by parity of reasoning as regards merely administrative acts such as the failure to sign pink sheets that do not raise any issue that calls into question the totality of votes declared at a polling station, such a failure cannot operate to deprive the declared results of validity.”

He said, “I think to accede to this urging would be subversive of the right to vote and treating its exercise as not being as important as the breach to which the absence of signatures relate. The right to vote according to one’s choice is in my opinion the fundamental pillar of our constitutional democracy and should not be trivialised.”

Justice Gbadegbe said the suggested approach has been given statutory endorsement in section 20 (2) (b) of the Representation of People Law, 1992 (PNDC Law 284).

“Although the court to which reference is made above is the High Court, the amendment to the law that is contained in PNDC Law 296 makes the application of section 50 of the law to cover all public elections.

“I think that the law maker must have been inspired by the substantive approach in jurisdictions outside Ghana, which though not binding on us but of persuasive effect only were delivered in countries with a long and established history of constitutional democracy.

“In my view, the approach that considers the nature of the irregularity and its likely effect on the election is quite frankly preferable to the procedural approach that looks only at the breach of a provision without more. In fact, even in the rules of court of the High Court, there has been since the coming into being of the High Court (Civil Procedure Rules), 2005 (CI 47) a legislative shift from the purely technical approach to the substantive approach that is embodied in Order 81 of the Rules. This approach is purposive as it attempts to unravel the objective that the law was intended to achieve and to effectuate same.

“Several decisions of our courts have over the years adopted the purposive and or substantive approach to construction of statutes in our jurisdiction.

Reference is made to a few such instances. (1) Tuffuor v Attorney-General [1980] GLR 367; (2) Asare v Attorney- General [2003-2004] 2 SCGLR 823; (3) Ampiah- Ampofo v Commission on Human Rights and Administrative Justice [2003-2004] 1 SCGLR 227; (4) Republic v Fast Track High Court; Ex parte Commission on Human Rights and Administrative Justice [2007-2008] SCGLR 213.” Justice Gbadegbe said those developments were not accidental but intended to emphasise the “substantive approach in our jurisdiction.”

“The failure to sign the results sheets in question not having been proved in the slightest manner to have tainted the election or the results declared should be held to be directory and not mandatory.

“I do not think that we can adopt an approach to the interpretation of election laws that is not informed by the experience of jurisdictions that have a considerable jurisprudence that has facilitated the growth of strong and enduring democracies that we aspire to achieve.”

He said democracy was an evolving phenomenon and elections could not be perfect, adding, “So when we are faced with the consideration of irregularities that are alleged to have occurred in an election, we should exercise a reluctance in striking down every single vote just by reference to a provision of the law.

“On the contrary, the irregularity must have affected the integrity of the elections. The substantive approach serves the same purpose as the purposive approach to the interpretation of statutes that our courts have come to embrace in several decisions in this country.”

He said a careful reading of the provisions revealed quite clearly that the duty that it creates is not exclusive to only the presiding officer and involves not only the execution of the declaration of results, but beyond that, openly announcing the results and communicating them to the returning officer who is the Chairman of the Electoral Commission. Over-voting

Touching on the claim of over-voting, Justice Gbadegbe said the petitioners based their claim on two interpretations.

“To prove their claim of over-voting, the petitioners relied on entries on the pink sheets at the end of the elections at the various polling stations. No reference was made to the register of voters at any of the polling stations to sustain this ground of complaint.

“On the contrary, great reliance was placed on portions of the pink sheets which were required to be filled by the presiding officers in answer to questions numbered as A1, C1, C3 and C6. The questions that presiding officers were required to answer are as follows. C1: What is the total number of ballots issued to voters on the polling station register? C3: What is the number of ballots issued to voters verified by the use of Form 1C (but not by the use of BVD)?”

He said “C6 asks a question that provides a formula that adds C1, C2, C3 and C4 to get an aggregate that must be equal to A1, the total number of ballots issued to the polling station,” adding that “from the two interpretations placed before us, it is clear that they each seek to protect the integrity of the electoral process.

“It is also plain that as the total number of ballot papers issued at any polling station is based primarily on the registered list of voters, both interpretations seek to ensure that no person is enabled to vote who is not on the register of voters.

“Although the word ‘over-vote’ and or ‘over-voting’ do not come within any of the specifications in the electoral laws, it does appear to me that as a matter of common sense, votes that come within any of the two interpretations are evidence of over-vote.”

He said that it looked to him that as the petitioners did not rely on the list of registered voters at the various polling stations, they relied mainly on the answer to C3 – the total number of ballots issued to a particular polling station – and added, “I think that the exhibits in the MB-C series were offered to prove this.

“And in the evidence to sustain this head of irregularity, the petitioners case appears simply to be that whenever the ballots cast as found in the ballot box exceed the ballots issued then there is an over vote for which reason the results must be annulled. In this regard, great reliance was placed on the information contained in the pink sheets and in particular the space provided for ballot accounting.”

Justice Gbadegbe said that from the available evidence, there were matters of great weight, which rendered it “unreliable to rely on the second interpretation of over-voting on which the claim of the petitioners is planked. “When one carefully peruses the ballot accounting section of the pink sheets in the evidence before us, the question numbered C6 has a formula provided by which the aggregate of C1, C2, C3, and C4 is to be equal to A1, the total number of ballot papers issued to the polling station.

A careful reading of the sheet reveals that C5, unused ballots, has been left out of the constituent elements of C6 that is to be equal in number to A1. In the face of this obvious error that was admitted by the Chairman of the Electoral Commission in the course of his oral testimony, it is interesting if not surprising that notwithstanding the absence of C5 which had the effect of making it impossible going by the formula provided, to have C6 being equal to A1, most of the pink sheets were filled for the purpose of having C1 + C2+ C3+ C4 making up C6 that should be equal to A1.

“As the formula provided in C6 is incorrect, it stands to reason that when the question to which it relates is answered it cannot be right.

“I am of the opinion that this is in an area of arithmetic, this is a classic instance of the convergence of an answer in arithmetic converging with the oft-quoted statement that you cannot put something on nothing as it cannot hold. Therefore, the objective sought to be attained by way of ballot accounting cannot be achieved.

“This, in my view, renders the interpretation of over-voting that leaves out unused ballots (C5) out of the equation, not worthy of the great reliance that is sought to be placed on it.

“Clearly, in the midst of this, many presiding officers must have transferred the missing information elsewhere in order to get a healthy balance sheet regarding the ballots at the end of the polls. In this regard, I am of the opinion that utilising the portion on the pink sheets for the purpose of ballot accounting is quite unreliable. One needs to be more than a human being to be able to achieve a balance on the sheet, but many attempted to do this without taking account of C5.

“In the circumstances, the question that arises is: Can the Court rely on the answers therein to determine over-votes without a process of careful tally of the ballots cast? I think that in view of the incorrect formula and the consequences flowing from it, one needs evidence beyond the pink sheets to prove the allegation of irregularity to which they relate.”

He said the question of an over-vote in the circumstances not being a matter that was plain from the face of the pink sheets, was a matter which could be established only by evidence through a careful inquiry under the law through the process of ballot accounting to enable such ballots to be rejected.

“In my opinion as agents for the petitioners who signed all the pink sheets in evidence without exception, although by Regulation 35 (4) they can withhold their signature and provide reasons therefore, their conduct in signing the declarations means that in their view that the entire process of voting was regular. These signatures bring into being the evidential attribute provided for in section 26 of the Evidence Act, NRCD 323 of 1975.

“By the rules of evidence, we are precluded from considering any other fact to the contrary. I also venture to say that issues relating to elections are intended to be quickly resolved and that the procedure laid down in Regulations 35-37 of CI 75 serves the purpose of ensuring that the votes counted satisfy the various rules laid down for the conduct of elections.”

Justice Gbadegbe said he had no doubt that, if indeed, there were over votes in the disputed elections as the petitioners alleged, by resort to the elaborate procedure under the Regulations, they would have been discovered and rejected in the course of ballot accounting, subject to the right of appeal that is conferred on an aggrieved party under Regulation 38 of CI 75.

“I do not think that it is proper for us to ignore the laid down procedures provided by the electoral laws in the absence of compelling evidence to the contrary. I think it is important that we give effect to the legitimate expectations of the law in this matter.”

Voting Without Biometric Verification

Justice Gbadegbe said in the course of the trial, it became clear that the process of biometric verification that was provided for in Regulation 30 was captured by the verification equipment, and as such the primary evidence on whether or not a voter was verified before voting was recorded therein.

“In such a case, I am surprised that the information regarding the important process of verification is sought to be proved by reference to C3 only. I am unable to accept that piece of evidence as the primary evidence, as it is in its nature secondary. In order to be able to rely on the pink sheets as evidence of what they purport to be, the petitioners ought to have shown that the better or best evidence to which they relate are not available.”

Justice Gbadegbe said that even the originals of the pink sheets in the instant case “belong to the category of secondary evidence as the information they seek to prove is obtainable in the best form in the register of voters at polling stations and the biometric verification equipment.

“The record of list of voters verified by the biometric verification equipment is the primary evidence and it is the one from which the information contained in the pink sheets was made.”

He said for proof of that information to be of evidential value it “must satisfy section 163 of the Evidence Act, NRCD 323 of 1975.”

“The purpose of the rules is to enable the court as the trier of fact and in keeping with the prime duty placed on it under section 2 of the Evidence Act to decide all questions of fact.

“By not placing the best or primary evidence before the court, the petitioners have sought their inferences from the information that is available elsewhere to be the basis of our decision. But that is not sanctioned by law. The rule of evidence to which reference is made here is that inferences about irregularities can be drawn from facts, but not from inferences.

“As the said record of the voters verified at every polling station is available and capable of proof in the manner acceptable, I am unable to fall upon information from pink sheets that are based on some other primary source as evidence of irregularity.”

Justice Gbadegbe said another reason that rendered the evidence of voting without biometric verification unproven was that the petitioners, who bore the initial burden of proof on the allegation of absence of biometric verification, unfortunately did not file any process that had the effect of challenging those depositions brought by the 3rd respondents.

“The effect of this is that in the face of the depositions by persons who actually voted at some of those polling stations and testified from their own knowledge to what actually they saw and participated in, the evidence of the 2nd Petitioner who was not at any of those polling stations cannot be preferred.

“The circumstances of this case, insofar as the positive allegation of absence of biometric verification is concerned, is that those agents have a duty to speak in the face of the depositions made by witnesses for the Respondents and as such their silence has the effect of rendering the version testified to by their adversaries unchallenged and also deemed to be an admission.”

He said there was the evidence that the disputed elections were postponed to a second day, 8 December 2012, at polling stations where the verification machines had broken down saying, “A legitimate inference to be made from this unchallenged fact is that voting at all polling stations took place after biometric verification of those entitled to vote.” Serial Numbers

“The contention regarding serial numbers, though apparently attractive, appear to me on closer examination to be untenable,” he said, adding that “the petitioners unfortunately did not place before the court in what manner the mere repetition of the slight number of duplicated pink sheets that was proved in evidence affected the declared results.

“There was no challenge to the fact that the results declared were in respect of elections held at designated polling stations. Also not in dispute is that there occurred no infraction or violation of any of the electoral laws. Added to these, none of the results declared at any of the polling stations is under challenge.”

Serial Number Suggestions

Though Justice Gbadegbe dismissed the claim, he suggested that the political actors needed to take a second look at the way they placed emphasis on serial numbers on pink sheets.

“In my view if the actors in the political scene consider the issues arising from the serial numbers that have just been considered of some importance to the integrity of the electoral process, then they should consider for the purpose of future elections the adoption either by way of an amendment to the existing regime of laws on elections, or by a clear understanding and or agreement between all the stakeholders in our electoral system that serial numbers of pink sheets be better protected in the same manner as is the case regarding ballot papers and polling stations.”

He said “until then, the complaint regarding serial numbers in the form that they have been revealed in the petition herein is a constraint that is unknown to the law and as such lacks the nature of an irregularity and accordingly, I am unable to yield to it as a legitimate ground.”