Supreme Court’s Wrong Analysis on Presiding Officers

By John K. Akpalu, Esq.

I have perused the recent Ghana Supreme Court decision on the election petition and found the reliance by Justices Dotse, Anin-Yeboah, Ansah and Owusu, on Article 49 of the 1992 Constitution to annul votes at polling stations where Presiding Officers did not sign the pink sheets, misplaced and lacking in context. The honorable Justices underappreciated the competing legal and constitutional issues at stake and missed an opportunity to flesh out the 1992 Constitution.

Article 49 of the Ghana 1992 Constitution provides as follows: ‘ (1)At any public election or referendum, voting shall be by secret ballot. (2) Immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot papers of that station and record the votes cast in favour of each candidate or question. (3) The presiding officer, the candidates or their representatives and, in the case of a referendum, the parties contesting or their agents and the polling agents if any, shall then sign a declaration stating

 (a) the polling station, and (b) the number of votes cast in favour of each candidate or question,

 and the presiding officer shall, there and then, announce the results of the voting at that polling station before communicating them to the returning officer.’

 The question that readily comes to mind is this: Assume that the Presiding Officer and all the polling agents signed the pink sheet at a particular polling station and that the voting was impeccable, but the Presiding Officer failed to publicly announce the results as required by Article 49, will Justices Dotse, Anin-Yeboah, Ansah and Owusu annul the results on that basis and have the elections conducted all over again? Going by their logic, this should be the case since Article 49 makes it unconstitutional for the Presiding Officer not to announce the results.

 Again, if it can be proven that a Presiding Officer has been bribed not to sign the pink sheet of a losing candidate, will the honorable Justices nevertheless rely on a strict reading of Article 49 to annul the votes?

 Nowhere in Article 49 or in the entire Constitution is it provided that votes must be annulled due to non-signature by a Presiding Officer. Yet these Justices cloaked their decisions in a constitutional imperative as if they had no choice, but that Article 49 compelled them to annul the votes – a case of fiat justitia ruat caelum.

 Contrary to the reasoning of the learned Justices, not all constitutional violations lead to a pre-determined result. Since they cited copiously to other jurisdictions, they could perhaps have addressed themselves to the ‘harmless constitutional error’ doctrine developed in the US beginning with the 1967 case of Chapman v. California. The gravamen of the harmless error doctrine is that the courts will not nullify a decision – even in the face of a constitutional violation – if the error caused by the violation is harmless.

 If the learned Justices had addressed their minds to this doctrine or principle, which is also applicable in several constitutional regimes, their proper attention should have been focused on the effect of the non-signature of the Presiding Officers, especially as to whether or not, it, in fact, affected the results of the election. Instead, the constitutionality or unconstitutionality of the absence of the Presiding Officer’s signature on the pink sheet became the sole focus without any serious examination of the larger election context and the constitutional rights of the electorate.

 The crux of my argument is that their Lordships spent too much valuable time analyzing the constitutional duty of Presiding Officers – which was unnecessary and beside the point. It is readily ascertainable that Article 49, by using ‘shall’ in context, imposed a constitutional duty on Presiding Officers to sign the pink sheets. That was trite knowledge that did not require any deep legal analysis.

 The real question which should have detained them – but which unfortunately, they gave short shrift to – was what should happen if a Presiding Officer does not sign the pink sheet- a question to which Article 49 and the Constitution does not provide any answer. Justice Anin-Yeboah’s assertive gallantry that he was doing his constitutional duty by annulling the votes, is, with due respect, unsupportable. The decision to annul votes where the Presiding Officers had not signed the pink sheets, was his and his alone – and not one mandated by the Constitution or any extrapolative interpretation of Article 49.

 Justice Anin-Yeboah made the following findings: (a) that the Presiding Officer is a representative of the Electoral Commission; (b) that the signatures of polling agents and representatives may be dispensed with; (c) that under C.I. 75 Polling Agents have limited role at polling stations; but more importantly, that the signature of Presiding Officers are mandatory under Article 49.

 In a very telling language which buttresses my point he goes on to say: ‘My constitutional duties would be fulfilled as a judge if I enforce the constitution. Our judicial oath taken on our appointment as judges enjoins us to at all times uphold the constitution which is the supreme law as clearly stated in the second schedule to the 1992 constitution.

 If Article 49(3) would work injustice against the citizenry who registered, queued and voted, it is regrettable that I cannot in upholding the very constitution engage in any manipulation of language and deny its effect when it has been thrown to us for the first time ever in the history of this court. I will uphold the constitution and proceed to give effect to it by annulling the votes cast which were not, on the face of the pink sheets, signed by the presiding officer to reflect what actually took place at the various polling stations involved.

 The same analysis goes for Justice Ansah. Relying on Article 49 he states emphatically that: ‘I hold in my concluding comments on this ground, that the failure to sign the pink sheet was a monumental irregularity unmitigated by any circumstances. I am further fortified in this view by the observation that in establishing the duty for presiding officers to sign pink sheets before results of the polls at the polling station, Article 49 (3) of the Constitution does not merely constitute a mandatory constitutional duty on presiding officers to do so prior to announcing the election results, but it is also one of the entrenched provisions of the Constitution. In the face of the full force of this entrenched constitutional requirement, I am unable to make any exception to save the pink sheets impugned by the omission of the presiding officers on the basis of the explanations offered by the respondents.’ Again, an instance of using Article 49 to annul votes as if that is the only logical result.

 Justice Owusu also commits the same fallacy by treating Article 49 as if it mandates a specific outcome. She states: ‘If the presiding officers failed to sign the pink sheets, that constituted infringement of Article 49 (3) of the constitution and to me that is fatal. It renders the result declared null and void.’ No, Justice Owusu, an infringement of Article 49 does not automatically render the results null and void – nowhere is that result provided for in Article 49 or in the Constitution.

 Justice Dotse, follows suit by declaring that: ‘And since it is to this Supreme Court that the Petitioners have come to for the interpretation and enforcement of the breach of this article 49 (3) of the Constitution 1992, I hold that notwithstanding the conduct of the Petitioner’s agents in signing the pink sheets that act, cannot clothe the unconstitutional conduct of presiding officers in not signing the pink sheets with constitutionality.

 Justice Dotse, respectfully, also misses the point. The issue is not whether it is constitutional for the polling agents to sign the pink sheet and the Presiding Officer not to sign. The proper question is what should flow from the unconstitutional act of the Presiding Officer in not signing the pink sheet.

 One hopes that in the future, our Justices will better appreciate the nuances of constitutional interpretation and engage in a more sophisticated analysis and development of the Constitution than what happened here.

 John K. Akpalu, Esq. LL.M. (Harvard)

The writer practices law in New York City

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Posted by on Sep 16 2013. Filed under Community News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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