Erring Presiding Officers Can Be Jailed For 2 Years

Nii Ayikoi Otoo 
Former chairman of NPP’s Constitutional and Legal Affairs, Nii Ayikoi Otoo has tumbled on a law that eluded the entire judiciary during Ghana’s landmark election petition.

The law details criminal prosecution for presiding officers who do not sign against election results.

Hitherto, it had been assumed that there was no law to punish erring presiding officers, with civil society organisations, lawyers, and judges calling for laws to sanction erring officers.

Apparently, no new law would be needed as the old one has been found tucked away in the Representation of the People’s Law, under Section 30, titled Offences of Electoral Officers.

As read out by former Attorney-General Nii Ayikoi Otoo on Joy FM’s Newsfile last Saturday, the law prescribes a two-year prison sentence or GH¢100 fine or both for officers found not to have signed to certify the results.

The absence of presiding officer’s signature was a key contention held by the New Patriotic Party (NPP) during the trial to challenge the election of John Dramani Mahama as winner of 2012 presidential elections.

The NPP, described as the petitioners during the trial last year, called for the annulment of 2,009 pink sheets because of this irregularity.

The electoral law escaped everybody, including the Supreme Court.

During the last 20 months, under the nose of four respected lawyers, nine seasoned Supreme Court justices, two presidential candidates, and despite an Electoral Commissioner with over 20 years’ experience, this game-changing law escaped everybody.

Despite this cream of legal prowess, the nation’s brains scratched their heads on what to do with presiding officers who do not sign to certify election results.

Do we strike out these votes as invalid and thereby visit the sins of the presiding offer on the voters? Or doggedly reject the law which mandates that they sign?

The Supreme Court did not strike out the votes, but it simply perhaps, even shockingly, did not know what to do with the 2,009 culprits if you believe the petitioners or 905 presiding officers if you believe the EC.

A key witness and vice-presidential candidate of the NPP, Dr Mahamudu Bawumia led a strong charge that 2,009 pink sheets which did not bear the important certification of scribbled drawings, otherwise known as signatures, should be rejected.

In effect, 659,135 votes should be annulled, according to the petitioners.

Of this staggering figure, 447,655 benefited President Mahama, and 197,628 votes also went to Nana Akufo-Addo.

But the EC, on the other hand, said only 905 pink sheets were unsigned, which amounted to 3.5% of the votes.

A year after this epic battle, the nation continues to ponder over what to do when a presiding officer does not sign. In fact political parties, civil society groups and many well-meaning Ghanaians have lamented that nothing is being done by the EC to make it punishable by law.

But on Newsfile last Saturday, a lawyer for the NPP, a former chairman of the party’s constitutional affairs committee and an election co-ordinator, literally wiped every tear from the nation’s eye after he read out a law that punishes erring presiding officers.

It was a shocking revelation found in Section 30 of the Representation of the People’s Law under the heading – Offence of an electoral officer.

An election officer, clerk, interpreter or other person who owes a duty to perform, whether under this law makes or under any other in relation to election and who

a] makes in any record return or other document which is required to keep or make in pursuance of this law or regulations made under it, any entry which he knows or has reasonable cause to believe to be false or does not believe to be true

b] permits a person whom he knows or has reasonable cause to believe not to be a person who is blind or incapacitated by other physical cause to vote in a manner provided for such persons only

c] refuses to permit a person whom he knows or has reasonable cause to believe to be a person who is blind or incapacitated from voting by other physical cause to vote in a manner provided for such persons only

d] wilfully prevents a person from voting at the polling station at which he knows or has reasonable cause to believe the person is entitled to vote at

e] wilfully counts a ballot paper as being cast for a candidate when he knows or has reasonable cause to believe was not validly cast for the candidate

f] without reasonable cause acts or fails to act in breach of his official duty commits an offence and is liable on conviction to a fine not exceeding one million cedis or to imprisonment or to a term not exceeding two years or both

Two years’ imprisonment or GH₵100 fine for about 2,009 presiding officers, or 905 of them, according to the EC’s calculations.

So there is a law after all?
It escaped the notice of counsel for the governing NDC, Tsatsu Tsikata, the President’s lawyer Tony Lithur, the EC’s lawyer, James Quarshie Idun, and the petitioners’ lawyer, Philip Addison.

‘Can you explain why it was lost on the entire election petition?’ a bemused host and lawyer Samson Ayenini asked Ghana’s legal ‘Christopher Colombus,’ Nii Ayikoi Otoo.

It was almost like an epiphany.
‘Well, when I saw your synopsis my mind went back to this law and I decided to find out and whilst reading it, I found out.’

Nii Ayikoi Otoo, who once saved his party’s General Secretary of a jail term from nine angry Supreme Court Justices, has saved this nation the havoc that can be caused by reckless presiding officers.

And as 2016 approaches, some political activists are arming themselves with the knowledge that anybody can do anything and get away with it as long as the end secures victory.

To them, that victory at the polls is forged in vigilance not reasoned out in court.

‘This has cured the mischief,’ Amaliba, who had been very quiet as the law was read by his senior, volunteered an answer. As a lawyer and spokesperson for the NDC during the gruelling petition, he knew what this meant.

So what do we do with the presiding officers who didn’t sign the pink sheets in view of the revelations afforded by this game-changing discovery?

‘It is a criminal offence,’ Ayikoi Otoo emphasised and explained that it is only the Attorney-General who can prosecute every criminal matter in Ghana.

How a sitting Attorney-General will take up this challenge of a negligence which their political rival, the NPP, believes brought them to power remains to be seen, he submitted.

But the ball is certainly, most definitely, in her court.

Source: The Finder

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