Pink Sheets Are Not Conclusive – Akoto-Bamfo

Justice Mrs. Vida Akoto-Bamfo, one of the judges who dismissed all the claims brought by the petitioners in the landmark Presidential Election Petition, appears to have de-emphasized the importance of pink sheets in elections in her judgment.

Dr. Afari-Gyan declared John Dramani Mahama winner of the December 2012 presidential elections using results recorded on the Statement of Poll and Declaration of Results forms popularly called pink sheets.

However, in Justice Akoto-Bamfo’s opinion, pink sheets cannot solely be relied on without recourse to the register or the verification machine if one wants to trace the incidence of over-voting or voting without biometric verification – two of the claims that formed the basis for the petition.

Justice Akoto-Bamfo also held in her 21-page judgment that an injustice would perpetrated on the people if the petitioners’ request that because some Presiding Officers failed to sign pink sheets the results should be annulled, was granted.

“Although it is not disputed that the pink sheet was the basic document for the elections it cannot however, be said to be conclusive. It is important to note that an election is not an event, but a process and that the pink sheet derived its source from the Biometric Voters Register. It should therefore be the reference point for a discussion of any issue under this category,” she added.

“Therefore where a dispute arises as to whether a voter had been verified, the best evidence should be the verification machine. Even if the pink sheet were the primary document, it is not conclusive; for it is my respectful view that prints-out from the verification device would have put to rest any arguments as to whether those persons went through the verification process or not,” Justice Akoto-Bamfo held.

Defending the failure of Presiding Officer to sign pink sheets, Justice Akoto-Bamfo said “in my view, visiting the sins of some public official on innocent citizens who have expressed their choice freely would run counter to the principle of universal adult suffrage, one of the pillars of our democracy, and perpetrate an injustice.”

According to Justice Akoto-Bamfo, it is not for the court to determine who occupies the presidency, but rather the citizenry must have that preserve.

“Government, in a democratic system of governance, derives its life from the people and that sacred nexus is made manifest in the electoral system. Among the fundamental precepts in a democracy is the ability to hold periodic free and fair elections together with an effective judicial oversight, bearing in view however, that, as a basic principle, it should not be for the court to determine who occupies the highest office of the land, the presidency; it is the preserve of the citizens.

“Elections therefore offer the citizenry the opportunity to express their satisfaction or otherwise with an incumbent leader or a political party. It is no wonder that this challenge, arising out of the exercise of those rights, has caught the imagination of all Ghanaians.”

Over-voting

Touching on over-voting, Justice Akoto-Bamfo held that it was clear in the circumstances that the total number of polling stations under the category had been reduced by at least 2, by virtue of the KPMG Report, stressing, “Neither the 128,262 nor the 130,136 could have remained unchanged.

“In Court, Dr. Bawumia testified that there had been a number of deletions. He tendered various lists of deleted polling stations. Under Exhibit C-C1-C11, he listed 44 polling stations under this category as having been deleted. These deletions would certainly have affected the number of votes to be annulled. Subsequent thereto, another list of 704 polling stations was tendered as Exhibit D.

“Clearly, the number of polling stations to be affected, and more importantly, the numbers of votes to be affected would see a reduction. One has to bear in mind that numbers are of the essence since they must be used to measure the effect of the irregularity, if any. In this instance however, one cannot determine with precision the number of votes in issue.

“It bears stating that whereas the 2nd respondent denied that there was over-voting, the 3rd respondent did not only deny but went further to assert that there were patent, clerical and sometimes arithmetical errors in the recording which had no material effect on the actual votes publicly cast, sorted, counted and recorded (Paragraph 15 (iii) of the affidavit of Johnson Asiedu filed on 15th April 2013).”

Defining over-voting
Justice Akoto-Bamfo said that even though, in the main, the various definitions offered by both the petitioners and the respondents placed emphasis on the register and ballot paper, the petitioners limited themselves exclusively to what appeared on the face of the pink sheet.

“I am fortified in this view by the fact that all the political parties were given copies of the voters register which the various polling agents of the major political parties carried to the polling stations on the days the elections were held. These pieces of evidence were not challenged.

“Indeed it is common knowledge that the polling agents who were at the polling stations checked the names of persons who were verified and issued with the ballots. Having regard to their role as watchdogs to check impersonation, multiple voting and certification of the results (they had the right to protest by refusing to sign the pink sheet) as provided for under C. I. 75 Regulation 19 (3) coupled with the voting procedures, publicly sorting and counting etc; it would not be safe to rely solely on the entries on the face of the pink sheet to establish the incidence of over-voting.”

She said should any dispute arise as to whether persons who cast the ballot did exceed the number on the voters register, disregarding the register, the genesis of the pink sheet itself, will result in an error.

“Indeed there was ample evidence that several errors were made by the presiding officers in making the entries. Many of the entries were made in error.”

She held that in some cases, columns were wrongly filled, others were left blank; while yet in others, the figures and words hardly matched.

“It was evident that some of the errors could simply be corrected by entering the figures in the right columns. Others were sheer errors in the arithmetic.

“Dr. Bawumia left the court in no doubt that the petitioners were relying solely on the pink sheet to establish cases of over-voting, for, he averred that there were neither protests nor complaints lodged, in terms of the complaints procedures laid out in the governing statute at the polling stations.

“Having regard to the fact that credible evidence was led to show that statistics of ballots issued by the 2nd Respondent to each Region, Constituency and Polling Station were provided to all the political parties whose agents were at the polling station and ticked the names of those verified (in these elections), I am of the view that over-reliance on the pink sheet in the face of errors detected clearly led to a dead end, for one cannot use wrong assumptions or data to arrive at the right conclusions.”

Justice Akoto-Bamfo held that “certainly such multiple inaccuracies cannot be the basis for a finding that there was over-voting. Owing to the mistakes, the pink was manifestly unreliable as a basis for establishing the phenomenon of over voting.”

She said that “none of the polling agents made a report of any irregularity; no evidence was led on ballot box stuffing. And more importantly the ballots were cast and their polling agents attested to the results.

“While the presiding officers obviously did make some mistakes and clerical errors, no mischief or advantage can be attributed thereto. Substantially the voting, counting and tallying of votes were carried to a high degree of accuracy.”

Justice Akoto-Bamfo concluded on over-voting that the questions of which polling stations were affected and how many results have to be annulled were questions that the petitioners failed to answer under the category of over-voting and therefore declined the invitation to annul any votes under the category.

Absence of signatures of Presiding Officers

On absence of signatures, Justice Akoto-Bamfo said that even though the petitioners have claimed some of the pink sheets were unsigned by some Presiding Officers, the respondents essentially did not deny that in some cases the Presiding Officers failed to sign the pink sheets.

“Indeed the 2nd respondent tendered Exhibit SA4, a National Summary by Region Results of sheets not signed by the Presiding Officers. According to the said Exhibit, 905 of the pink sheets were indeed not signed by the Presiding Officers. Of the 2009 the pink sheets the petitioners claimed were not signed by the presiding officers, 1,989 were signed by the agents of the candidates.

“Having admitted that there were at least 905 polling stations in which presiding officers failed to append their signatures, the petitioners were relieved of the duty to call further evidence on the issue.

“Article 49 is couched in mandatory terms. Undoubtedly it is an entrenched provision, which can properly be amended in accordance with the procedure set out under Article 290 of the Constitution. Article 49 sets out in detail the duties of the presiding officers and the polling agents immediately after the close of the poll in any public election or referenda. Under Article 45 (c) of the Constitution, the Electoral Commission is vested with the power to conduct and supervise all public elections and referenda.

“Article 51 stipulates that the 2nd respondent shall make regulations for the effective performance of its functions; particularly for the conduct of public elections among others.

“It is evident that even though Article 51 vests the power in the E.C to make regulations for the conduct of the elections; it is only under Article 49 that the steps to be followed by the presiding officers and the polling agents, after the close of the polls, are set out in detail.”

Justice Akoto-Bamfo said since the provision was couched in mandatory terms, clearly where the signature of the presiding officer failed to appear, it did not admit of any argument, on a literal interpretation of the said article, that there had been a breach and therefore the results ought to be nullified.

“However, it has been held in a long line of decisions that a strict, narrow, technical and legalistic approach to interpretation of the Constitution, the embodiment of our hopes and aspirations, must be avoided.

“Was it the intention of the framers of the Constitution that persons who have exercised their rights under art. 42 by going through the electoral procedures, registered as voters, had their names on the register, participated in the election by casting their votes which have been publicly counted, recorded and announced, should have such votes not ‘counted’ on account of the sins of one public officer?

“We have freely chosen the democratic form of governance in which sovereign power resides in the people as a whole. Under that system each citizen must be afforded a genuine opportunity, through the conduct of free and fair elections, to determine who his leaders or representatives should be.

“An election being a process as opposed to it being an event, where all the stages have been gone through and therefore the elections could be said to have been substantially held in accordance with the regulations, to nullify the results on this ground per se, would amount to putting in the power of some unscrupulous presiding officer in some polling station to nullify the solemn act of the whole constituency by his single act of omission.”

She said since the Constitution required that both the Presiding Officers and polling agents sign, looking at their duties, and obviously the reason for signatures in terms of the credibility of the process, “a purposive interpretation would not defeat the objectives of Article 49(3), in that even though the Presiding Officer had failed to sign, the polling agent’s signature, to my mind, is a bold declaration for the integrity of the whole electoral process.”

How She Sees Polling Agents

Justice Akoto-Bamfo appears to put the role to be played by the Presiding Officer and the polling agent on the same level saying “the notion that polling agents are ornamental pieces adorning the polling stations must be discarded.

“Their roles are clearly defined by the Constitution and other statutes governing the elections. A vigilant polling agent would detect some of the wrongful acts at the polling station. He could then set in motion the complaint mechanism in the governing statute, designed at addressing the complaints at the polling stations or collation centres’ with minimum delay. This costly exercise of combing through a mountain of election materials, with a view of unearthing irregularities, well after the declaration of the results, would be greatly reduced.”

Voting without biometric verification

Touching on voting without biometric verification, Justice Akoto-Bamfo said “it is obvious that the petitioners simply went through the pink sheets and totalled all the figures in Form C3.

“The issue is whether that sole exercise discharges the burden placed on the petitioners, in terms of Sections 10 and 11 of the Evidence Act, 1973. Dr. Afari-Gyan in his testimony stated that the column C3 was not required to be filled by the presiding officers.”

“It is to be noted that when the petitioners made the allegation which was denied by the 2nd respondent, it was not enough for the 2nd petitioner to have mounted the witness box and repeated the averments since those facts are capable of proof by some other means i.e. producing the prints-out of the machine as a form of proof. It could be argued that since the evidence led was documentary, parole evidence was inadmissible to vary or contradict same.

“That there are exceptions to the rule is beyond doubt. Dr. Afari-Gyan tendered the form 1.C. With the introduction of the said document the question in C3 became meaningful. It became obvious, that one could not answer the question in that column without any reference to E. C. 5 which were not taken to the polling stations, in other words, E C. 5 was consistent with the contents in C.3.”

She said the 2nd respondent was emphatic that no person voted without being verified and that while admitting that there were challenges with the equipment, voting in those areas were adjourned to the next day.

“It is a notorious fact that the poll was adjourned in some areas and therefore there were two days of voting. If persons were allowed to vote without verification would there have been any need for the adjournment? I think not. In the absence of any credible evidence to the contrary (some polling agent or voter testifying) I would prefer the pieces of evidence of the respondent’s on this issue to the bare assertions of the petitioners based on the face of the pink sheets.

“It became obvious that the attack mounted under that category was premised on a misconception and therefore impossible to stand. I would accordingly decline the petitioners’ invitation to annul the votes under that category.”

Duplicate Serial Numbers

“Under this head, the petitioners request that 3,508,491 votes be invalidated. In answer, the respondents asserted that the serial numbers had nothing to do with the Declaration Form; that its unique features were the name of the polling station and its unique code. I must say that the pieces of evidence offered by both Mr. Johnson Asiedu-Nketiah and Dr. Afari-Gyan shredded into pieces the petitioners’ case under this head. It became evident that Dr. Bawumia was not too familiar with the processes and procedures leading to the conduct of the presidential elections.”

Justice Akoto-Bamfo said that the exact nature of the malpractice under duplicate serial numbers was not clear from Dr. Bawumia’s testimony, how the serial numbers affected the recording of the results, but more importantly how the alleged opportunity offered by the duplicate series got exploited so as to result in any irregularity was never established.

“It is trite learning that an election cannot be overturned on the basis of mere speculation. For it is not about what could have happened; but what did take place. I do not therefore feel able to grant the prayer of the petitioners under this category.”

Unknown polling stations

She said the petitioners had a duty to establish that those polling stations did not exist, adding, “Exhibit EC 3 showed that the petitioners knew about the existence of those polling stations and had indeed appointed agents thereto.

“If they did not know of the existence of those polling stations, they obviously could not have sent their agents there. I must say that no evidence was led on when those polling stations were created. I would in the circumstances, find that the petitioners have failed to lead evidence sufficient for a finding in their favour on this ground.”

Duplicate polling station codes on different pink sheets

Under this category, Justice Akoto-Bamfo said that even though the petitioners took the view that the votes were insignificant, “I would only find the explanation by the 2nd respondent credible; that some polling stations were so large as to be divided into sections A and B; while the others constituted polling stations where special voting took place, I would so find and dismiss the petitioners’ case under this ground as well.”

In her conclusion, she said among other things that “the political parties have been active participants. Even though the IPAC is not backed by law, it has played a pivotal role at every stage of the process. The registration of voters, printing of ballot papers, training of polling agents, the sorting and counting done publicly, the transparent ballot boxes and the photo identification cards raise the level of transparency to a very high degree.

“It became evident however, that the myriad of errors and blunders were committed by the election officials. Such errors did no credit to the system. It is therefore recommended that the calibre of persons recruited for the exercise must be scrutinized.”

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Pink Sheets Are Not Conclusive – Akoto-Bamfo

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