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Press Release
August 06, 2013
NPP
ONLY
VALID VOTES MUST COUNT – PETITIONERS AFFIRM
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;
“(i) that it violates the provisions of the Constitution
(ii) that it is a rejected ballot paper as defined by Regulation
37 of C.I. 75
(iii) that the voter did not comply with the provisions of C.I.
75
(iv) 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.
NPP
August 08, 2013
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