It should have instead determined whether there were the electoral irregularities, omissions, violations and whether they affected the results as the court had set down for trial. The justices’ reasons for
their votes would have been revealed in their written opinions on the alleged six electoral irregularities. Our Supreme Court does not have the leeway to impose a rigid sequence of voting per irregularity because it is standard legal practice that majority decisions, in this case a decision that the irregularities affected the outcome of election and a preference for a run-off in the same set of polling stations, can be supported by different reasons or legal opinions. This explains why
even consenting justices have the option of writing separate opinions. Indeed, this is common.

It is also mind-boggling that the Court had set down the issues for trial on April 2, 2013 and yet in delivering its verdict, the Court gave the impression that the issues set for trial only became known to it (the Court) upon reading the written address of the counsel for the petitioners: "Upon a scrutiny of the petition, we found that the issues to be determined are as set out at page 125 of the counsel for the petitioners’ written address were as follows ..."

It is tempting to justify the Supreme Court's voting process by drawing an analogy between an election petition and, for example, a criminal trial. The six alleged irregularities by the petitioners could be seen as six different charges (e.g., first-degree murder, manslaughter,
kidnapping, etc) brought by the plaintiff (the State) against a defendant in a criminal trial. A jury or a panel of judges votes on one charge (count) at a time. The defendant is acquitted if s/he is
found "not guilty" on each count.

In my opinion, there is a pitfall in this analogy because the alleged electoral irregularities were not only charges of wrongdoing but were also the pieces of evidence on the vote tally forms (i.e., "on the face of the pink sheets") to support the reliefs sought by the petitioners. For example, the allegation of pink sheets with no signatures of the presiding officers could be determined by simply looking at the pink sheet. Therefore, as is the case in a criminal trial, it is the totality of the evidence which should form the basis for determining the validity of the president's election.

In a murder trial, the ultimate question before the Court of jury is "Did the defendant commit the crime of murder?". In an election petition, the ultimate question before the Court is "Was the election valid?". In either case, the Court or jury should look at the evidence in its totality.

A justice who ordered a re-run must have believed that a re-run would have affected the outcome of the election. Otherwise, a re-run, in his/her view, would be a pointless exercise. For example, Justice Dotse in his opinion stated that:

"In a vast majority of the categories, I can conclusively say that they have had no effect on the outcome of the elections whatsoever. However, when cumulatively put together, the said violations may affect the outcome of the elections.… since I have upheld in its entirety the “No presiding officer signature category”, albeit with a
different and much reduced set of pink sheets, I must admit these may affect the outcome of the results of the presidential elections. The petitioner’s relief one (i.e., 1) will therefore be granted in respect of the No Presiding Officer Signature Category ..." Parenthesis mine.

Relief 1 was "That John Dramani Mahama, the 2nd Respondent herein was not validly elected President of the Republic of Ghana." It stands to reason that the five justices who ordered a rerun did not believe that John Mahama was validly elected. Therefore, how did the Court come to the conclusion, as announced by Justice William Atuguba, that the overall effect of the justices' votes on the six irregularities was that John Mahama “… was validly elected ...” There is an
inconsistency or conundrum here which smacks of a subtle and repugnant feature of the voting process adopted by the Supreme Court. Can the Court tell us or can we glean from the Court’s
judgment whether a majority of the justices held that President Mahama was validly elected? I don’t think so. This is puzzling. Therefore even if, on the basis of a legal technicality, one insists
on arguing that voting on each irregularity at a time was valid, there appears to be a worrisome implication of the Court's voting process.

This suggests that the application of a standard feature
of voting in legal trials to election petitions may lead to paradoxical outcomes. But without voting separately on each irregularity, how could the Supreme Court have given us directions on future elections or interpreted our electoral laws?

I have three responses to this question.

First, given that the petition was primarily filed to challenge the validity of the 2012 election, a bigger weight should be put on determining the validity of the 2012 election than the Supreme Court’s verdict acting as a guide to future elections. Future elections will be judged on their merits.

Second, the Court’s verdict on some of the alleged irregularities like over-voting will not be necessarily applicable to all future allegations of over-voting. The quality of the evidence of over-voting may differ in future election petitions (e.g., the polling agents of the
petitioners’ party may not sign the pink sheets). In fact, some of the justices (e.g., Atuguba) did not give an opinion on whether voting with biometric fingerprint verification was lawful because they argued that the petitioners did not establish their allegation of voting without biometric verification.

Finally, dismissing all the irregularities one at a time does not necessarily imply that the majority of the justices do not believe that the cumulative effect of all the irregularities did not affect the outcome of the election. These are two different issues and the latter issue (i.e., the validity of the election in general) should not be sidestepped in the maze of legal technicalities.

This boils down to the ultimate question before the Court. Was it (a) did each alleged irregularity, viewed in isolation from all the others, affect the validity of the election?, or (b) did the alleged irregularities cumulatively affect the validity of the election?

The outcome of the petition may be seen as a variant of a well-known paradox of voting. The paradox of voting was discovered over 200 years ago by Nicolas de Condorcet, a French mathematician, philosopher, economist, and social scientist. Its basic insight is that voting may not lead to optimal preference aggregation. The paradox of voting is the coexistence of coherent individual valuations and a collectively incoherent choice by majority rule. In an election with three or more alternatives (candidates, motions,, etc.) and three or more voters, it may happen that when the alternatives are placed
against each other in a series of paired comparisons, no alternative emerges victorious over each of the others: Voting fails to produce a clear-cut winner. (William H. Riker, 1982).

Since there is no unique outcome of the voting process, it follows that one can choose what to vote on and in what sequence to produce a given outcome. The rules of voting can be manipulated in subtle ways that do not allow the will or preferences of the majority to be
expressed. A different set of questions was asked to get the verdict of the Supreme Court. I don't think that this was deliberate.

John Mahama is my president and yours. I believe that he would have been victorious even if there had been a re-run of the election in the affected polling stations. But that is not the point of this article. The point is whether our election petitions should be adjudicated on the basis of the voting rule adopted by the Supreme Court.

J. Atsu Amegashie, September 6, 2013