Constitutional law – Supreme Court – Original jurisdiction – Challenging election of the President – Grounds for – Voting without biometric verification – Whether or not petitioners, on the evidence, have proved allegation of voting without prior biometric verification – Whether or not to annul votes in all polling stations where voting occurred without prior biometric verification – Constitution, 1992, art 63(2) – Evidence Act, 1975 (NRCD 323), s80(2)(d) – CI 75, reg30(1) and (2).
SUPREME COURT, ACCRA
(Writ No J1/6/2013)
IN RE PRESIDENTIAL ELECTION PETITION;
AKUFO-ADDO, BAWUMIA & OBETSEBI-LAMPTEY (No 4)
MAHAMA, ELECTORAL COMMISSION &
NATIONAL DEMOCRATIC CONGRESS (No 4)
BEFORE THEIR LORDSHIPS: ATUGUBA, ANSAH, SOPHIA ADINYIRA, R C OWUSU,
DOTSE, ANIN YEBOAH, BAFFOE-BONNIE, GBADEGBE, AND VIDA AKOTO-BAMFO JJSC
Judgment on August 29, 2013
The relevant facts were the same as the facts published in PART 1A on Thursday, February 13, 2014. On these facts, the Supreme Court dismissed (per holding (4)) by a five to four majority decision, the petitioners’ claims based on voting without biometric verification (per Atuguba, Sophia Adinyira, Dotse, Gbadegbe and Vida Akoto-Bamfo JJSC — Ansah, R C Owusu, Anin Yeboah and Baffoe-Bonnie JJSC dissenting) for the following reasons:
Per Atuguba JSC. The evidence clearly establishes that the 2012 Presidential and Parliamentary Elections started on December 7, 2012; and due to difficulties with the biometric verification machines, continued on December 8, 2012. The evidence also shows that Form 1C which was meant for those voters who had biometric voter ID cards but their names were not on the register, was not taken to the polling stations due to opposition from the political parties. In consequence, Form C3 was not to be filled but a few presiding officers still filled it in error. Dr Afari Gyan’s conflicting evidence as to the date of the printing of the pink sheets and the instructions concerning Form C3 is such a technical error of recollection that not much weight should be attached to it. The complaint about voting without biometric verification cannot, in addition to the foregoing reasons, therefore hold in the absence of some other contrary evidence…In the circumstances, I do not think that the petitioners have established their allegation of…voting without biometric verification, except to the limited extent admitted by the Chairman of the Electoral Commission, which cannot impact much on the declared results.
Per Sophia Adinyira JSC. …I would hold that the respondents…failed to demonstrate a corresponding interest equally weighty to justify the non- application of regulation 30(2) of CI 75. What has weighed on me to come to this conclusion is that the Electoral Commission during the registration exercise made special provisions to ensure that persons who because of trauma cannot go through fingerprint verification are not disenfranchised by being verified by face only. To prevent abuse, FO (“face only”) is embossed on the voters ID card; indicated in the voters register; and in the biodata on the BVD. I would accordingly hold that the requirement by regulation 30 (2) for a voter to go through fingerprint identification before casting his/her vote does not infringe his or her constitutional right to vote. The requirement is necessary to prevent those who are not entitled to vote from voting and thus ensure the free and fair elections as protecting the integrity of the democratic process is a central core principle of Electoral Justice – citing Opitz & Attorney-General of Canada v Wrzensnewskyj (2012) SCC 55 at para 38 and New National Party of South Africa (The) v The Government of the Republic of South Africa, CCT 9/99;  ZACC 5; 1999(3) SA 191;  5 BCLR 489…
Opportunity was given to the parties in pursuance of the court’s direction on the mode of adducing evidence to file affidavit evidence. The third respondent National Democratic Congress (NDC) filed thousands of affidavits from its polling agents and other persons testifying that they participated in the election that was regularly conducted at their various polling stations and all who voted went through biometric verification. Even though counsel for the petitioners tried to downplay the evidential value of their affidavits, I am of the view that some weight is to be attached to them as they recounted the procedure that everyone went through at the polling stations.
Per Dotse JSC. The claim on no biometric verificatoin,…in my estimation, fails in its entirety…Having considered…the evidence of Dr Afari-Gyan on why the C3 column was initially created but later abandoned at the insistence of the political parties, I am left in no doubt that the whole contention of voting without biometric verification has not been properly made out.
Per Gbadegbe. The petitioners, who bore the initial burden of proof on the allegation of absence of biometric verification, did not file any process that has the effect of challenging those depositions. The effect of this is that in the face of the depositions by persons who actually voted at some of those polling stations and testified from their own knowledge to what actually they saw and participated in, the evidence of the second petitioner, who was not at any of those polling stations, cannot be preferred. I think it is a basic rule of evidence that in considering the credibility of a witness one of the factors to be taken into account is: “the capacity and opportunity of the witness to perceive, recollect or relate a matter about which the witness testifies”: see section 80(2)(d) of the Evidence Act, 1975 (NRCD 323).
One question that the failure by the petitioners to make available a single affidavit from a person who was present at any of the polling stations continually brings up, is: why were they not called? Since the petitioners had polling agents at all the polling stations as appear from the pink sheets exhibited before us, the reasonable inference therefrom is that the said agents are available. It being so, the failures to have them testify to affidavits in support of the allegation of absence of biometric verification has a decisive evidential attribute. The circumstances of this case in as far as the positive allegation of absence of biometric verification is concerned is that those agents have a duty to speak in the face of the depositions made by witnesses for the respondents and as such their silence has the effect of rendering the version testified to by their adversaries unchallenged and also deemed to be an admission: see Bessela v Stern (1877) 2 C P D 265.
Per Vida Akoto-Bamfo JSC. Where a dispute arises as to whether a voter had been verified, the best evidence should be the verification machine. Even if the pink sheet were the primary document, it is not conclusive; for it is my respectful view that, prints out from the verification device would have put to rest any arguments as to whether those persons went through the verification process or not.
It is to be noted that when the petitioners made the allegation which was denied by the second respondent Electoral Commission, it was not enough for the second petitioner to have mounted the witness box and repeated the averments since those facts are capable of proof by some other means, ie producing the prints out of the machine as a form of proof. See Majolagbe v Larbi 1 GLR 190.
Source: Graphic Online