Analysing the Substance in JDM’s Supreme Court Petition

On the 30 December 2020, Mr Mahama lodged a petition at the Supreme Court of Ghana (the Petition) that none of the presidential candidates achieved more than 50% of the valid votes cast in the 2020 elections.

The Petition is seeking among others:

1. A runoff election between him and Nana Addo under article 63(3)(4) and (5) of the Ghana Constitution.
2. A restrain on President Akuffo from being referred to as the President-Elect.

Mr Mahama indicated in the Petition that due to the inconsistency in the declaration of the presidential election results by Mrs Jean Mensa (the Chairperson of the EC), the EC contravened articles 23 and 296(a) and(b) of the Ghana Constitution by acting arbitrary and not been fair to him.

The EC’s Declaration

The EC declared on 9 December 2020 that Nana Akuffo Addo had won the elections by achieving 6,730,413 (51.3%) of the 13,434,573 valid votes cast compared with 6,214,889 (47.37%) achieved by Mr Mahama. The EC declaration excluded the result of Tachiman South constituency, but explained that if the 128,018 entire registered voters in the constituency were added to Mr Mahama’s votes, Nana Addo would still achieve more than 50% of the total valid votes cast.

The EC issued a statement subsequently that it inadvertently used 13,433,573 as the total valid votes cast, the correct figure should have been 13,119,460 (excluding Tachiman South), as the figure (13,433,573) previously disclosed included rejected votes.

The EC clarified further that the proportion of the total valid votes of 51.3% and 47.37%, which Nana Addo and Mr Mahama received respectively were not affected because they were based on the restated (correct) total valid votes cast of 13,119,460 (excluding Tachiman South).

The Basis of Mr Mahama’s Petition

Mr Mahama claims in the Petition that:

• the results the EC declared was incorrect and that without the Tachiman South, the tally of the total valid votes cast should have been 13,121,111 (i.e. 1,651 more than the 13,119,460 restated by the EC). Therefore, the total valid votes cast for all presidential candidates if expressed as a percentage is equal to 100.3% and not 100% (based on 13,121,111).

The problem with Mr Mahama’s argument is that using the 13,121,111 as the total valid votes cast (without Tachiman South) does not change the outcome of the elections as Nana Addo still achieves 51.295%, just a slight reduction from 51.301%, the EC disclosed.

• Mr Mahama also claims that the EC declared on the 9 December 2020 that the total valid votes cast were 13,434,573 and irrespective of the outcome of Tachiman South, Nana Addo had won. But based on their analysis, none of the candidates would get 50%+ if the entire 128,018 registered voters (100% turn out) voted for him (Mr Mahama), therefore, a runoff is required.

Unfortunately, Mr Mahama’s argument is very simplistic and lacks substance because the EC issued an amendment statement that the total valid votes cast (excluding Tachiman South) were 13,119,460. If Mr Mahama can prove that the actual total valid votes cast (excluding Tachiman South) were 13,434,573 and not the restated figure of 13,119,460, then he may have a valid point, otherwise he is being deceitful and made a conclusion based on fallacy.

In any case and for argument sake, the results of Tachiman South have been released. Nana Addo and Mr Mahama achieved 46,379 and 52,034 respectively out of 99,436 total valid votes cast. Accordingly, if the 99,436 of the Tachiman South’s valid votes cast are added to the 13,434,573 incorrect figure that the EC inadvertently disclosed on 9 December 2020 as the total votes cast, the total comes to 13,534,009. Based on this total and the new totals (including Tachiman South) of 6,776,792 and 6,266,923 for Nana and Mr Mahama respectively, Nana receives 50.072% (still the winner) compared to 46.305% for Mr Mahama. Please see table below/attached for further analysis.

Conclusion

Based on the foregoing analysis, Nana Addo genuinely won the elections and the EC did not breach any of the articles 63(3)(4) and (5), 23 and 296(a) and (b) of the Ghana Constitution just because of the unintentional error in the disclosure Mrs Jean Mensa made.

Since the declaration of the results of the elections, Mr Mahama and some NDC leaders have encouraged and incited their supporters to demonstrate because they claimed Mr Mahama won the elections. This has led to burning of tyres and destruction of properties including burning of markets. Yet, Mr Mahama has failed to indicate in the Petition that he won the elections.

It is shocking that Mr Mahama is exploiting the unintentional error that the EC made in her declaration (which has been rectified) to claim that no one won the elections. There is an accounting/legal doctrine (i.e. Substance over Form) which prescribes that the substance rather than the technical form of a transaction governs the true nature of a transaction. Similarly, the unintentional error in the presentation made by the EC (subsequently corrected) cannot override the actual results of the elections.

In any case, while Mr Mahama is accusing the EC of making an unfair and arbitrary decision because of the presentation error, his own Petition prepared by several lawyers contain basic errors including:

• a referral to the EC and Nana Addo interchangeably as 1^st and 2^nd respondents; and
• a request for a re-run between him and the EC (instead of Nana Addo).

Accordingly, Mr Mahama and his NDC members are acting preposterously and recklessly, knowing very well that he lost the elections.