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Brief Report On The Presidential Election Petition In Ghana

Posted by Business in Ghana on February 24, 2013

Prepared by the Executive Director of the Danquah Institute, Gabby Asare Otchere-Darko (gabby@danquahinstitute.org).

The international community, generally, endorsed Ghana’s 2012 general elections as  “free and fair.” Ghana, the star of democracy in Africa, had done it once again for Africa. John Mahama, the declared winner, was duly sworn in, without any violent protests, on January 7, 2013. But, the biggest opposition party in Ghana filed a petition in Ghana’s supreme court, (the first of its kind in the country’s history), challenging the presidential results. It is noteworthy that since the first election of Ghana’s Fourth Republic in 1992, 2012 was the only other time that a majority of the political parties (5 out of 7), which participated in the contest had come out to raise major concerns about the conduct of the polls. Indeed, the second runner-up and leader of the Progressive People’s Party, Dr Papa Kwesi Nduom, is on record as saying, “I have been involved in elections since 1992 and this is the worst in terms of credibility.” See link: http://www.theafricareport.com/News-Analysis/ghana-election-results-another-party-backs-npp-fraud-claims.html. But, what really is the substance of the case of the opposition New Patriotic Party, which is contesting the results in court? Is it, as observed by a cynical senior figure in the UNDP, “another opposition party in Africa crying foul”, or another defining moment in Ghana’s history; a necessary non-violent, constitutional move, worthy of commendation, to correct and secure the integrity of elections, hence, the future of democracy, peace, stability and development in Africa?

Four months before the 2012 general elections in Ghana, the President and ruling party candidate for the December polls, John Atta Mills, passed away. At the time, the incumbent was down in the polls and his Vice President, John Mahama, was sworn in as president and became the ruling party’s presidential candidate. The New Patriotic Party (NPP) in August 2010 re-elected as its presidential candidate, Nana Akufo-Addo, who in 2008, as the candidate of the ruling party, lost to John Atta Mills in the closest of election results in Africa’s history, by a margin of 0.49% or 40,000 votes. The NPP accepted defeat and handed over power peacefully in January 2009.

Ghana went into the recent election with a new voters’ list, compiled earlier in 2012, using biometric technology. This was to help prevent multiple registrations and avoid repeat voting and impersonation, two of the major problems with previous elections. Accordingly, a new law was passed, which effectively meant: “No Verification, No Vote”. Voters were distributed across 275 constituencies made up of 26,002 polling stations.

Allegations of large scale, systemic bribery and systematic vote buying were common with this election. Ghana’s 2012 budget deficit was a record 12.1% (US$4.5 billion), much of it blamed on irresponsible election year over-spending. See link, http://www.reuters.com/article/2013/02/18/idUSWLA006X820130218. Checks show that an estimated $180m of unbudgeted expenditures were made from the treasury in the last 6 weeks before the election, much of which, it is alleged, can be directly traced to efforts to influence the election illegally, by bribing electoral officials and buying votes. “In my own constituency in Elmina,” said Dr Nduom, “we had people handing out money on that very day. Giving polling agents 50 or 100 Ghana cedis, now… multiply that by the 26,000 polling stations across the country… You can’t compete with that.” He received 0.59% of the votes declared. Information provided to the opposition, prior to the election, alleged that the ruling party had set out to compromise electoral officers and other election agents in at least 180 of 275 constituencies across the country.

The election was held on December 7th and 8th and was probably the most peaceful ever held in Ghana. It spanned two days because voting was suspended in places where biometric verification devices broke down and continued the following day. There were remarkably few incidents of violence or intimidation across the 26,002 polling stations nationwide.  In Ghana, during a presidential election, ballots are counted and recorded at polling stations on a Statement of Poll and Declaration of Results for the Office of President, popularly called ‘pink sheet’ because of its colour. Ballot boxes and pink sheets from each polling station are taken to the constituency (or district) collation centres, where all the results from each polling station in a particular constituency are tallied. The constituency results for the presidential polls are then faxed to the EC headquarters in the capital, Accra.

On December 9, the Electoral Commission (EC) prepared to declare the results.  However, the opposing candidate, Nana Akufo-Addo and the New Patriotic Party (NPP), began to notice that while the election was free, it was anything but fair. So they requested a 24-hour delay in the EC declaration so that reported instances of vote rigging could be investigated and presented to the EC.

However, the EC did not grant the delay requested by the NPP and hastily proclaimed the incumbent, John Mahama, the outright victor in the 1st round. The results declared on December 9 by the Chairman of the EC gave Mahama 5,574,761 votes, which translated into 50.7% of the 10,995,262 votes cast. Nana Akufo-Addo of the NPP received 5,248,898 votes or 47.74% of the total declared.

Prior to the vote, the NPP invested resources to set up a parallel electronic data collection centre, which allowed its polling agents in the 26,002 polling stations to rapidly send, via text messages, the results from their respective polling stations to the campaign collation centre, the ‘war room’. It was this system that first alerted the party leadership to some of the inconsistencies in the official results that were being transmitted.

Those same agents also obtained a carbon copy of the already described ‘pink sheets’ from each of the polling stations. To get a true picture of the presidential poll, the NPP quickly put together a crack team to analyse the nearly 25,000 ‘pink sheets’ collected.

As noted above, the pink sheets are used to document the official results from each polling station. Every polling station has its own code number and one pink sheet with its own unique serial number. The NPP investigative team went through a painstaking process, the findings of which have exposed the true extent of manipulation of results that took place.  It may be instructive that during this process, the incumbent regime sent truckloads full of armed soldiers and police to ransack the private property where young Ghanaian men and women, many of them university students and Ghanaians living abroad, were merely inputting “pink sheet” data into computers and the offices of the NPP’s lead counsel were broken into and a computer server stolen.

Based on the results of the investigative team, it became abundantly apparent to the NPP that the results declared by the EC did not at all reflect the sovereign will of the Ghanaian electorate.  And, thus, the NPP began to consider what recourse it had to contest an invalid election and an improperly declared result. The party, being committed to peace, democracy and the rule of law since its founding in 1992, adamantly opposed any violence on the part of its supporters and instead looked toward legal remedies.

The Constitution of Ghana requires that to win outright in the first round, a candidate must receive more than 50% of the valid votes cast, otherwise the top two candidates compete in a run-off election 21 days later. The Constitution also says that a citizen who wishes to challenge the results must file a petition with the Supreme Court within 21 days of the results being declared. The NPP Presidential Candidate, Nana Akufo-Addo, his running mate Dr Mahamudu Bawumia and NPP Chairman, Jake Obetsebi-Lamptey, accordingly, filed a petition at the Supreme Court on December 28, 2012. The respondents are John Mahama (whose election is being challenged), the EC (which conducted the polls) and, later on, the ruling party, the NDC, which applied to be joined to the suit.

It is the case of the petitioners that:

“[W]hen due account is taken of the statutory violations as well as of the gross and widespread irregularities and malpractices, and the necessary deductions effected from the votes wrongfully credited to 1st Respondent [John Mahama] by the 2nd Respondent [the EC] and the nullification as required by law of the results declared at the polling stations where those infractions occurred, 1st Respondent did not obtain the total of more than fifty per cent of the valid votes cast as required by Article 63 (3) of the Constitution in order to become president, and accordingly ought not to have been declared president.”

The Constitution does not specify how long the hearing should last but makes it clear that the Supreme Court can overturn the results of the elections, even after a declared winner has been sworn into office as president. The Supreme Court has several options, including, declaring a new winner thereby compelling the President to step down to be replaced or calling for the entire election to be run again or requiring a run-off election between the top two candidates. The petitioners have presented more than sufficient evidence to make the case that Nana Akufo-Addo was duly elected by a majority of Ghanaians and must therefore be duly declared president by the court.

 

The reliefs being sought by the petitioners are as follows:

(i)     That John Dramani Mahama, the 2nd Respondent herein, was not validly elected president of the Republic of Ghana.

(ii)   That Nana Addo Dankwa Akufo-Addo, the 1st Petitioner herein, rather was validly elected President of the Republic of Ghana.

(iii)  Consequential orders as The Supreme Court may deem fit.

Even per the declared results, the margin of victory was so slim that some 77,000 votes the other way could have seen Nana Akufo-Addo as the winner. Sequestering the illegal votes from the results would reverse the outcome and give Akufo-Addo 59.69% of the valid votes and Mahama 39.1%.

THE EVIDENCE

The case presented to the court by the petitioners is that in nearly 46% — or 11,916 of the 26,002 polling stations where voting took place — the election was marred by gross and widespread irregularities, infractions and/or malpractices which fundamentally impugned the validity of the results in those polling stations as declared by the Chairman of the Electoral Commission.

The petitioners have found several instances of irregularities which vitiate the votes cast in those areas and the sheer volume of these irregularities had “a material and substantial effect on the outcome of the election as a whole.” This affects 42.48% of the votes, numbering 4,670,504, out of a total of 10.9m votes (from a voter population of 14 million). Per the law and practice, ‘unlawful’ or ‘irregular’ votes must be annulled.

 

Key point:  This was an election where John Mahama was declared winner with only 50.7% of the votes cast.

Even if a mere 154,000 votes are taken out from his vote tally, he drops below the mandatory 50% mark. A total of 3 million of his votes are in dispute. Deducting some 324,000 from John Mahama’s votes makes Akufo-Addo the outright winner. The petitioners are challenging far in excess of what is constitutionally required and there is enough documented evidence on this to back their claims.

For example, the petitioners are asking for 634,825 votes to be annulled because they were illegal as voting took place in those areas without biometric verification. They have also discovered 918,344 votes affected by over-voting whereby more votes were counted than ballot papers issued.

They are also presenting evidence of 7,000 duplicates of pink sheets in the system and their contention is that the EC systematically swapped results to favour the incumbent.  Investigations have shown that the Electoral Commission did something very inappropriate by ordering duplicate pink sheets to be printed for each polling station and allegedly went ahead to use them to alter results. Each polling station has its unique serial number but the evidence before the court now is that some 7,000 of such duplicates were used and the combined votes on those sheets give John Mahama more than 65%.

The “Petitioners say that all of the irregularities and electoral malpractices captured above, were nothing but a deliberate, well calculated and executed ploy or a contrivance on the part of the Respondents with the ultimate object of unlawfully assisting the 1st Respondent to win the 2012 December presidential Election.”

THE DECISION OF THE SUPREME COURT

The petitioners have a very strong, evidence-based case; Ghana’s Supreme Court has a reputation for independence. There is ongoing pressure on the President and the ruling party to commit to accepting the final decision of the nine justices of the Supreme Court in the court’s role as the final arbiter in election disputes. Nana Akufo-Addo and his party have given that commitment to the nation. Recently, on Tuesday, February 12, the President was asked by a delegation of chiefs who went to see him to commit to abiding by whatever decision the Supreme Court arrives at on the petition challenging the results that declared him victorious, and he said he has no choice but to abide by it. See link: http://politics.myjoyonline.com/pages/news/201302/101280.php

The hearing of the case before the court is expected to begin in early March; once it starts, the law provides that the Supreme Court will sit everyday to hear the case, including weekends and public holidays. This is expected to expedite proceedings. The law further provides that the court gives its ruling not later than 15 days after the end of hearing.

CREDIBILITY OF THE ELECTORAL COMMISSION

The case of the petitioners is based largely on the facts and figures officially documented by the EC as indicating what took place on Election Day and the evidence appears very compelling.  For instance, there is evidence before court that 352,554 votes were recorded on duplicate pink sheets and bore no signature of the presiding officers of the polling stations, who have a legal duty to authenticate the results.  This may explain all the reported and some confirmed attempts by officials of the EC to tamper with the evidence. For example, on Sunday, February 17, 2013, EC officials in the Northern Region — a stronghold of the ruling party, where many of the instances of malpractices are alleged to have taken place — were arrested by citizens and handed over to the police. The suspects were accused of conspiring to get presiding officers from polling stations in the region to falsify information on the pink sheets in order to help the defence of the EC in court. At least two of the three accused persons have reportedly confessed to these charges.

See link: http://www.modernghana.com/news/446098/1/three-ec-officials-arrested-over-forgery-of-pink-s.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+GeneralNews+(Ghana+News)

A week earlier, the EC failed to respond sufficiently to a court order to supply to the petitioners the full list from the voter register of 241,524 Ghanaians which it claimed in its answer to the petition that they account for an inflation of the voter register as pointed out by the petitioners. The EC claimed that increase was as a result of the registration of eligible Ghanaians working in embassies abroad, Ghanaian students abroad on government scholarship, Ghanaians working in international organisations and Ghanaian peace keepers who returned to Ghana after registration was closed. But, in response to the court order, the EC was only able to supply a list of 2,883 people. Thus, even before hearing begins the integrity of the EC has been badly hurt by its inability to justify some unusual inflation in the voter register, which occurred shortly before the election. It is the case of the petitioners that the voters’ register was illegally padded to allow for a greater tolerance space for rigging.

See link: http://elections.peacefmonline.com/politics/201302/156270.php

Nana Akufo-Addo and the NPP leadership have worked to keep their supporters calm, refrain from any form of violence and have rather directed their grievances via constitutional means – to the Supreme Court, the final arbiter in electoral disputes. This legal challenge is a plus for Africa because elections in Africa must NOT be determined by the capacity of a candidate to rig the contest. Opposition leader Dr Besigye took a similar path in Uganda in 2001 and 2005, but on both occasions he lost by a split decision (5-4 in 2005, 2-3 in 2001) from the court that he failed to show that the violations were substantial enough to affect the outcome of the election. In Akufo-Addo’s case, there is every belief that the sheer weight of the evidence and the relatively stronger judiciary in Ghana can do justice to the facts, figures and the law. The numbers potentially involved call into serious doubt the slim margin of John Mahama’s declared victory. The court will have to rule. The hearing may take 2-3 months.

In concluding, these words from a 20th December press conference from one of the smaller parties, sum up what is confronting Ghana’s democracy today:

“In addition to [the] systematic abuses of incumbency which mar the integrity of the December 7th 2012 polls, the PPP has concluded that the results of the 2012 Polls do not reflect the will of the people. The figures released by the EC are inaccurate and, in demonstrable cases, fraudulent. If we continue to focus our attention on the outcome of the elections as opposed to the integrity of the process of running elections, the will of the people will continue to be perverted. The very essence of our fragile democracy will remain at serious risk of collapse.”

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