Election Petition: Petitioners Won By 5-4 Majority—Lawyer Okudzeto

A former President of the Ghana Bar Association, Sam Okudzeto, says his analysis of the 588 paged election petition judgment of the Supreme Court shows the decision went 5-4 in favour of the petitioners.

Mr. Okudzeto told XYZ News in an interview, after making similar comments at a symposium organised by the Danquah Institute on Wednesday to review the Supreme Court's decision, that the nine-member panel of the apex Court that sat on the matter did not establish the fact that the petitioners lost the case.

He therefore expressed surprise that the Court ruled in favour of the respondents in the case and validated President John Mahama's election.

Danquah Institute file

In explaining his analysis, he stated that before the commencement of the substantive case, the Supreme Court set out only two issues for determination which were (1) Whether or not there are statutory violations in the nature of omissions, irregularities and malpractices in the conduct of the Presidential Elections held on the 7th and 8th December 2012; and (2) Whether or not the said statutory violations, if any, affected the results of the elections.

According to Sam Okudzeto, Justices Atuguba, Adinyirah, Gbadegbe and Akoto-Bamfo, dismissed, unanimously, all the six grounds of infractions filed by the petitioners in the court and as such decided to sustain President Mahama as the duly elected President.

He noted, however, that Justices Ansah, Owusu and Anin-Yeboah were of the opinion that President Mahama wasn't duly elected, as contained in their judgments.

This, according to him, meant that 4 judges had ruled for John Mahama, whilst 3 had ruled that John Mahama wasn't duly elected.

'What happened to the other two? This is where the issue becomes dicey,' he noted.

Sam Okudzeto stated that Justice Dotse, in page 405 of the judgment, dismissed the claims of the petitioners with regards to the use duplicate serial numbers, voting without biometric verification, unknown polling stations and duplicate polling station results.

However, Justice Dotse, Sam Okudzeto noted, upheld the claims of the petitioners in the categories of no signatures of presiding officers as well as in over-voting and ordered a re-run of the elections in the affected polling stations.

Touching on Justice Baffoe-Bonnie's judgment where he dismissed all the claims of the petitioners, Sam Okudzeto stated that Justice Baffoe-Bonnie upheld the petitioners' claims of voting without biometric verification, and ordered a re-run of the election in the affected polling stations.

Thus, as per the issues set out by the court, Sam Okudzeto noted that it was clear from the judgment that 5 of the Supreme Court judges determined that the irregularities affected the elections whereas 4 of the judges noted that the irregularities did not.

This, in his opinion, established the fact that the judgment handed down by the Supreme Court judges went 5-4 in favour of the petitioners.

The former President of the Ghana Bar Association was not done.

Delving deeper into the judgment handed down by Justice Baffoe-Bonnie, Sam Okudzeto, was however surprised that Justice Baffoe-Bonnie did not give any figures to buttress his claims that the petitioners did not have enough numbers to sustain their claims of over-voting.

Justice Baffor-Bonnie, in page 538 stated that 'However, sifting the ones actually affected by over voting from the many affected by the many clerical errors, one is left with very few pink sheets whose results will not impact positively on the outcome of the overall results. I will therefore dismiss the claim on account of this ground.'

'Baffoe-Bonnie didn't give any figures, so how did he come by his decision [on dismissing over-voting]?' Sam Okudzeto asked.

Sam Okudzeto was also baffled by the order made by Justices Dotse and Baffoe-Bonnie to order a re-run of the elections in selected polling stations, where they determined that infractions affected the results of the elections.

He stated that the 1992 constitution made it emphatically clear that once a presidential candidate did not obtain 50%+1 of the votes obtained, then Electoral Commission is mandated, by law, to conduct a run-off of the entire election, and not in selected polling stations as proposed by the judges.

According to him, once the judges have found that irregularities affected some polling they had no business ordering, according to the law, to order run-off between the two candidates in selected polling stations.

On the issue of 'No signatures by Presiding Officers', Mr Sam Okudzeto stated that under Article 49 of the Constitution of Ghana, and as captured in Regulation 36(2) of C.I. 75, the presiding officer is required to sign the results declaration form before he can validly announce the results of the election.

He explained that the Article 49 of the constitution used the word 'shall' in reference to presiding officers signing the pink sheets.

Quoting the definition of 'Shall' from the Black's Law Dictionary, the most trusted law dictionary in the world, Sam Okudzeto stated that 'Shall' is defined as 'imperative or mandatory.'

He further noted that the 1992 constitution uses the word 'Shall' several times with regards to the duties of the President, Ministers of State, the Electoral Commissioner, etc.

Sam Okudzeto was therefore surprised that 5 of the judges decided to employ the use of a 'purposive interpretation' of the word 'shall', adding that this was an error. According to him, a 'purposive interpretation' is only allowed when there is an ambiguity in the meaning of a word.

'Shall is a word of command and must be giving a compulsory meaning ad noting obligation. It is an error to explain otherwise,' he stated.