The petitioners in the Presidential Election hearing have explained that the occurrence of over-voting in 1,772 polling stations infringes Article 42 of the 1992 Constitution, the universally acknowledged principle of “one man one vote” and Regulation 24 (1) of C. I. 75.
The petitioners submit that under the Constitution, each registered voter, who casts his/her vote in the manner prescribed by the law, can only have his/her vote counted once, adding that it is the mandate of the Electoral Commission to ensure that this principle is protected.
“It follows necessarily, therefore, that any practice suggestive of over-voting must be outlawed. If there is the occurrence of over-voting, it goes without saying that the franchise constitutionally given to the voter at a polling station has been abused. The result of the election at the polling station in question must be annulled.”
These arguments are contained in the 176-page written address filed by counsel for the petitioners.
The petitioners have long maintained that over-voting takes place when (a) the total number of ballot papers issued to voters on Election Day or (b) where votes cast at various polling stations exceeded the total number of registered voters.
Shedding more light on these two scenarios in the address, the petitioners argue that, firstly, over-voting takes place where all the number of people duly registered to vote at a particular polling station turn up on election day to vote, (and this can be discovered from the number of ballots issued), however, the number of ballots found in the box at the end of the polls end up being more than the number of voters registered to vote at that polling station.
“Secondly, where a number less than the number of registered voters at a particular polling station show up to vote (and this can also be determined from the number of ballots issued), it goes without saying that the number of ballots found in the box at the close of the polls should not be more than the number of ballots issued to the voters,” the petitioners add.
Therefore, in the view of the petitioners, “in an election at a polling station shown to have been affected by over-voting, it is not possible to determine which of the votes cast constitutes the invalid votes and, therefore, which votes cast count as the lawful votes.”
“The practice, therefore, has been to annul all the results of the polling stations where they are proven to have occurred,” the petitioners stressed.
Indeed, the petitioners maintain that the evidence led at the trial supports the view of the EC and the petitioners that when there are cases of over-voting, the results at the polling station cannot be relied upon, and it was on this basis that the EC on two (2) occasions in accordance with its policy, annulled results in polling stations where over-voting occurred.
The petitioners state emphatically that they succeeded in establishing the claim of over-voting in 1,772 polling stations used in the conduct of the December 2012 presidential election, which, in effect, invalidated a total of 745,569 votes.
Giving more details on this figure, the petitioners explain that while over voting occurred in 1,722 polling stations, in 85% of these polling stations, over-voting took place along with no biometric verification, no signature of presiding officer, duplicate serial numbers, and duplicate polling station codes.
“It is only in 264 polling stations where the only irregularity was over-voting,” the petitioners add.
Thus, according to the petitioners, should the results from these polling stations where over-voting took place be annulled, neither John Mahama nor Nana Akufo-Addo would secure the required 50% plus of valid votes cast.
“In the event, John Dramani Mahama’s total votes would be reduced by 504,014, resulting in him securing 49.47% of valid votes cast. Nana Akufo-Addo’s total votes, on the other hand, would be reduced by 226,198, resulting in him securing 49.0% of valid votes cast. The constitutional and statutory violation of over-voting, therefore, would have had a material effect on the election results declared by the 2nd respondent. In that event, there ought to be a second election between the two leading candidates, in accordance with article 63(4) of the Constitution,” the petitioners address states.
Respondents’ argument “unsound and illogical”
The argument pushed by the respondents throughout the “battle of evidence” was that, even in polling stations affected by over-voting, it would amount to a denial of the right to vote of innocent citizens and, therefore, unconstitutional for the whole of the votes at the polling stations to be annulled.
“That argument is also clearly defeated by the evidence of Dr. Afari-Gyan under cross-examination by counsel for petitioners on 17th July, 2013, when he admitted that, in a case of over-voting, consistent with what he told the whole nation before the December 2012 elections, the results of the election at the polling station in question will have to be annulled, as the integrity of the election would have been compromised,” the petitioners note.
The petitioners also noted that when the respondents were confronted with the overwhelming record of over-voting on the face of the pink sheets, the respondents resorted to devising various excuses at rationalising the phenomenon.
According to the petitioners, the first occasion on which the respondents sought belatedly to justify or explain away the entries made in columns on the pink sheets indicating of over-voting was on 23rd April, 2013, when counsel for 1st respondent, Tony Lithur, in his cross-examination made the point that every case of over-voting on the face of the pink sheet was an administrative error.
“Counsel for 1st respondent, at page 39 of the record of proceedings for 23rd April, 2013, then started speculating as to the reasons for the entries indicative of over-voting by evolving a strange theory of electoral practice. Counsel suggested that the reason why there seemed to be over-voting on some of the pink sheets was that the number ‘at the bottom was just lifted and placed in C1’”, the address states.
This explanation, according to the petitioners, was debunked by Dr Bawumia, when he indicated that that constituted an impossible proposition since C1 is filled before the count of ballots.
“Thus, it is highly irregular that a number would be lifted from the total votes cast column and placed in C1 after the counting of the ballots. This irregularity undermines the reliability of the record, i.e., the pink sheet, and compromises the integrity of the results, which should lead to the annulment of the results in that polling station,” the address further adds.