The NPP Petition Placed in Context

After some waiting, the much anticipated NPP petition to the Supreme Court to overturn the declaration of the 2012 Presidential Elections has been filed. So far the majority of comments, mostly from the NDC camp, have not addressed the veracity of the sample evidence presented to the public. They rather appear to belittle the impact of the alleged irregularities. I really do not think the dismissals have got any basis.

The impact of the irregularities comes from the closeness of Ghanaian elections, the number of votes involved, the distribution of the alleged irregularities and the refusal of the EC to investigate them before the declaration. Thus contrary to what others are saying that this case would not deepen our democracy, I say it would and that it would go even beyond the EC to how public institutions operate in Ghana. We cannot grow as a democracy when public institutions, mandated to work in the interest of the public can easily dismiss the concerns of a sizeable number of Ghanaians by merely asking the aggrieved to go to court. We are at this juncture simply because the EC became intransigent in discharging its duties.

The NDC and NPP are about of equal popularity amongst the electorate. Thus for this election and others to follow, if the smaller parties do not manage to increase their attraction, we shall continue to have knife-edge elections. In this situation, the transparency of the electoral process has to be just that. Otherwise we should prepare ourselves in the future for similar challenges with different petitioners. That is why I think the NPP petition is timely. Its outcome will ensure that in future the EC, at the minimum, would set time aside to investigate alleged abuses of the electoral process. Beyond that, this landmark case has the potential to change our inclination to ignore laws and rules and the oft pleadings for victims of injustices to 'give all to God'.

From the EC's official declaration, President Mahama won the elections with a little less than 3% margin equating to some 325,000 votes. The number of 'illegally' counted votes, as alleged by the NPP, is about 1.34 million votes, representing about 12% of the total valid votes cast. The relevant statutes have it that where irregularities have the capacity to change the outcome, they should at least be investigated, and if borne out, the results concerned should be invalidated. It is clear from the relative percentages involved that, if the NPP allegations are proven, the Supreme Court cannot fail to give weight to the impact of the irregularities. Apart from the “words and figures do not match” and “the same serial number for different polling stations” categories of irregularities, the upholding of any one of the other categories of irregularities will change the results as declared.

I have heard some say that these irregularities are mere 'administrative inefficiencies' but at least I have also heard Mr Asiedu Nketiah confess on Peace FM News that when such irregularities happen, the results of the polling stations involved should be invalidated. The case of the NPP will be further strengthened if they can additionally prove that these irregularities form a systematic pattern that favoured some candidates above others. This is quite easy to prove statistically. If the irregularities were genuine errors, they should occur randomly and they should be distributed equally amongst all constituencies nationwide – they should not cluster around constituencies, which are perceived to be the strongholds of one party or candidate. Secondly the benefits and disbenefits should also be spread equally amongst all candidates for the irregularities to be considered as genuine administrative errors.

Some have also argued that even if the irregularities occurred, what is there to say President Mahama got 100% of the votes involved? I do not think that is what the NPP is alleging – they are rather pointing out that the President received nearly 70% of these 'illegally counted' votes. All that the Justices need to consider is whether the allegations are borne out by the evidence submitted; that the irregularities are clustered around certain constituencies and or candidate; and that the scale has the capacity to affect the results as declared.

The weakness in the argument of those dismissing these irregularities as inconsequential is founded on the fact that the laws governing the elections cannot be selectively or partially applied. At several polling stations across the country voters were turned back because their identities could not be verified by the biometric verification devices. Some went through unusual methods: washing their hands with coke and tomato juice to be able to exercise their franchise. It is reported that some went home to wash down and yet others could still not vote even after as many as six attempts. What explanation would be given to such voters if it is proven that some people voted without verification and their votes were counted as valid? Would these voters be justified in suing the EC for disenfranchising them if the Supreme Court were also to ignore these facts?

Further, upon review of the categories of rejected ballots, ballots could be rejected on the misconduct of the electoral officer rather than any action by the voter. Ballots on which the voter has correctly selected a candidate could be rejected if they do not bear the polling station stamp. It is not within the power of the voter to stamp the ballot, yet it could be rejected. It will be interesting to know how many of the over 250,000 rejected ballots fell into this category and whether it had the effect of reducing the total number of valid votes with implications for attaining the threshold of '50% plus one' votes required to be the winner. My view is that if all these rules were applied, we cannot fail to apply the rules regarding the invalidation of votes affected by irregularities.

Having put the petition in context, however, the Ghanaian in me says that the best way to resolve this matter is through runoff elections. For the sake of peace and stability of the country, I would be very uncomfortable if the Supreme Court were to make the final determination without the broad participation of Ghanaians. I do not know how the Justices would arrive at this though – perhaps by upholding and dismissing some of the irregularities? If Ghana were to be a country where the Judiciary is not viewed with suspicion, I would have said that the Justices' pronouncement should be accepted by all but I do not think it would be if it turns out to be the final pronouncement on the 2012 elections without the participation of the broad masses of Ghanaians. The budget allocation for a runoff may have already been made. If President Mahama indeed won the first time round, I see no reason why he should not win again but he would have strengthened the 'legitimacy' of his 'win'. On the other hand, if with all 'deliberate' irregularities eliminated, Nana Addo wins, he would have proved his claims in the Court of the Ghanaian electorate.

Going forward from this, the EC should do well to enforce all our electoral laws and not only those which attend general elections. It should enforce the rules that govern political party funding and submission of accounts to create some sort of a level playing field that will allow the smaller parties to grow to break up the NPP-NDC duopoly. This is the only way we are going to move away from closely contested elections, whose outcome could be potentially affected by irregularities, however slight.

May God Almighty grant our Justices courage and the Wisdom of Solomon as they sit to consider this landmark case!

Dr Yaw Ohemeng