On 2nd April 2013, the Supreme Court resumed sitting on the Presidential Election Petition to give directions on how the case should proceed. Firstly, the Court narrowed the issues filed by the parties to two issues: (1) whether or not there were violations, irregularities, omissions and malpractices in the December 2012 presidential elections; and (2) whether or not those violations, irregularities, omissions and malpractices affected the outcome of the December 2012 presidential elections.

The narrowing of the parties’ issues in the presidential election petition is generally in line with the jurisprudence on election petitions, which make it clear that where there has been noncompliance with constitutional provisions and the law, and such noncompliance affect the outcome of the elections, the results of the said elections ought to be set aside. The Petitioners therefore bear the burden of proof to show that the Electoral Commission did not comply with the law resulting in irregularities and malpractices and that the Electoral Commission's noncompliance with the law affected the outcome of the December 2012 presidential elections.

The relevant law is the Public Elections Regulations, 2012 (CI 75), which was passed solely for the December 2012 presidential elections and it provides inter alia that every voter must go through a biometric verification process prior to voting.[1] One of the Petitioners’ main allegation is that the Electoral Commission did not comply with the requirement of biometric verification prior to voting thereby allowing 743,415 votes to be added to the total valid votes and therefore, according to the Petitioners, the said 743,415 votes were invalid and ought to have been disregarded in the final tally.[2] The Petitioners also allege that the Electoral Commission did not comply with the requirement that all pink sheets must be signed by the presiding officer[3] and thereby allowed 751,528 votes to be added to the total valid votes, which votes, according to the Petitioners, were invalid and ought to have also been disregarded in the final tally.[4]

The Petitioners must also demonstrate that the addition of these invalid votes, amongst other alleged irregularities, omissions and malpractices, affected the outcome of the December 2012 presidential elections. According to the Petitioners, the noncompliance with the law by the Electoral Commission was substantial and affected the outcome of the December 2012 presidential elections in that if the alleged irregularities are removed, the 1st Petitioner ought to have been declared President of Ghana with 59.69% of the valid votes cast.[5]

The Supreme Court also directed that the parties may give oral evidence and be cross-examined however all other evidence must be by way of an affidavit. The Court ordered the Petitioners to file their affidavits on or before 7th April 2013 and thereafter, the Respondents have five days to file their affidavits in response. Hearing of the substantive petition is scheduled to commence on 16th April 2013.

Written by Kow A. Essuman, Esq.

[1] See section 30(2) of the Public Elections Regulations, 2012 (CI 75)

[2] See paragraph 20 (Ground 3) of the 2nd Amended Petition

[3] See Section 36(2) of the Public Elections Regulations, 2012 (CI 75)

[4] See paragraph 20 (Ground 3) of the 2nd Amended Petition

[5] See paragraph 23 of the 2nd Amended Petition