COMMENTARY: Ghana’s 2012 Election Petition: the Supreme Court’s Verdict And A Voting Paradox
BY: J. Atsu Amegashie
On August 29, 2013, the Supreme Court of Ghana announced its verdict on the petition filed by Nana Addo Dankwa Akuffo-Addo, Mahamadu Bawumia, and Jake Obetsebi-Lamptey challenging the validity of the election of President John Dramani Mahama in the December 2012 presidential election.
John Mahama was deemed by the Court to have been validly elected as president based on the following votes by the nine justices on the six irregularities, violations and malpractices (hereafter irregularities) alleged by the petitioners:
Over-voting: dismissed 5-4,
Voting without Biometric Verification: dismissed 5-4,
Absence of presiding officer’s signature: dismissed 5-4,
Duplicate Serial numbers: dismissed unanimously,
Duplicate Polling Station Codes: dismissed unanimously,
Unknown Polling Stations: dismissed unanimously.
However, five justices (Julius Ansah, Rose Owusu, Anin-Yeboah, Jones Dotsey, and Paul Baffoe-Bonnie), a majority, annulled the votes and ordered a re-run in affected polling stations and yet this was not the Court’s verdict. Why?
Before I answer this question, let me state that this article is not about the quality of the justices’ legal
opinions or the strength of the petitioners’ evidence. Its focus is the voting rule adopted by the Supreme Court.
The five aforementioned justices did not order a re-run based on the same electoral irregularities. For example, Baffoe-Bonnie’s order was based on voting without biometric verification while Dotsey’s was based on over-voting and absence of signatures. These two justices did not agree on the same irregularity. Therefore, a majority of the judges did not vote for the same electoral irregularity. If Dotsey and Baffoe-Bonnie had agreed on only one irregularity, there would have been a re-run in some polling stations.
Ansah, Owusu, Anin-Yeboah granted the three irregularities of over-voting, lack of signatures, and no biometric verification and ordered a re-run in affected polling stations based on these irregularities.
In the KPMG report (audit), there were several instances in which the alleged irregularities of (a) over-voting, lack of signatures, and no biometric verification or (b) no biometric verification and either over-voting or lack of signatures, occurred in the same polling stations. This point is not crucial because what matters is that the five justices had seen what they believed was evidence of such polling stations.
Therefore, even without the commonality of reasons between Baffoe-Bonnie and Dotsey, had the justices been asked to list the polling stations in which they wanted a re-run, a majority of them (the five above) would have listed a common set of polling stations but not necessarily for the same reasons (electoral irregularities).
Therefore, a majority of the judges (the five above) indeed agreed on a common set of polling stations for a re-run. But because they had different reasons (irregularities) for doing so and given that the Supreme Court voted on one alleged irregularity at a time (not irregularities in general), this preference of the majority was suppressed. In effect, the subtle implication of the Supreme Court’s voting process was as follows: “although a majority of the justices preferred a re-run in polling station X, that could not be the outcome of the voting process because they
all did not agree on the reason (electoral irregularity) for ordering the re-run in that polling station. There must be a majority of justices granting a particular irregularity for there to be a re-run on the basis of that irregularity alone.”
On April 2, 2013, the Supreme Court set down the issues for trial as follows:
1. Whether or not there were violations, omissions, malpractices and irregularities in the conduct of the presidential election held on the 7th and 8th December, 2012;
2. Whether or not the said violations, omissions, malpractices and irregularities, if any, affected the results of the election.
The Court chose to deal with these two issues for determination in six separate ways. So it, in effect, determined:
(a) whether or not there was the electoral irregularity of voting without biometric verification and whether it affected the results,
(b) whether or not there was the electoral irregularity of over-voting and whether it affected the results, and so on.
It should have instead determined whether there were the electoral irregularities, omissions, violations and whether they affected the results as the court had set down for trial. The justices’ reasons for their votes would have been revealed in their written opinions on the alleged six electoral irregularities.
Our Supreme Court does not have the leeway to impose a rigid sequence of voting per irregularity because it is standard legal practice that majority
decisions, in this case a decision that the irregularities affected the outcome of election and a preference for a run-off in the same set of polling stations, can be supported by different reasons or legal opinions. This explains why even consenting justices have the option of writing separate opinions. Indeed, this is common.
It is also mind-boggling that the Court had set down the issues for trial on April 2, 2013 and yet in delivering its verdict, the Court gave the impression that the issues set for trial only became known to it (the Court) upon reading the written address of the counsel for the petitioners: “Upon a scrutiny of the petition, we found that the issues to be determined are as set out at page 125 of the counsel for the petitioners’ written address were as follows …”
It is tempting to justify the Supreme Court’s voting process by drawing an analogy between an election petition and, for example, a criminal trial. The six alleged irregularities by the petitioners could be seen
as six different charges (e.g., first-degree murder, manslaughter, kidnapping, etc) brought by the plaintiff (the State) against a defendant in a criminal trial. A jury or a panel of judges votes on one charge (count) at a time. The defendant is acquitted if s/he is found “not guilty” on each count.
In my opinion, there is a pitfall in this analogy because the alleged electoral irregularities were not only charges of wrongdoing but were also the pieces of evidence on the vote tally forms (i.e., “on the face of the pink sheets”) to support the reliefs sought by the petitioners. For example, the allegation of pink sheets with no signatures of the presiding officers could be determined by simply looking at the pink sheet. Therefore, as is the case in a criminal trial, it is the totality of the evidence which should form the basis for determining the validity of the president’s election. In a murder trial, the ultimate question before the Court of jury is “Did the defendant commit the crime of murder?”. In an election petition, the ultimate question before the Court is “Was the election valid?”. In either case, the Court or jury should look at the evidence in its totality.
A justice who ordered a re-run must have believed that a re-run would have affected the outcome of the election. Otherwise, a re-run, in his/her view, would be a pointless exercise. Then it stands to reason that the five justices who ordered a re-run did not believe that John Mahama was validly elected. Therefore, how did the Court come to the conclusion, as announced by Justice William Atuguba, that the overall effect of the justices’ votes on the six irregularities was that John Mahama “… was validly elected …”
There is an inconsistency or conundrum here which smacks of a subtle and repugnant feature of the voting process adopted by the Supreme Court. Can the Court tell us or can we glean from the Court’s judgment whether a majority of the justices held that President Mahama was validly elected? I don’t think so.
This is puzzling. Therefore even if, on the basis of a legal technicality, one insists on arguing that voting on each irregularity at a time was valid, there appears to be a worrisome implication of the Court’s voting process. This suggests that the application of a standard feature of voting in legal trials to election petitions may lead to paradoxical outcomes.
But without voting separately on each irregularity, how could the Supreme Court have given us directions on future elections or interpreted our electoral laws? I have three responses to this question. First, given that the petition was primarily filed to challenge the validity of the 2012 election, a bigger weight should be put on determining the validity of the 2012 election than the Supreme Court’s verdict acting as a guide to future elections. Future election petitions will be judged on their merits. Second, the Court’s verdict on some of the alleged irregularities like over-voting will not be.necessarily applicable to all future allegations of over-voting. The quality of the evidence of over-voting may differ in future election petitions (e.g., the polling agents of the petitioners’ party may not sign the pink sheets). Finally, dismissing all the irregularities one at a time does not necessarily imply that the majority of the justices do not believe that the cumulative effect of all the irregularities did not affect the outcome of the election. These are two different issues and the latter issue (i.e., the validity of the election in general) should not be sidestepped in the maze of legal technicalities. This boils down to the ultimate question before the Court. Was (a) each alleged irregularity, viewed in isolation from all the others, affect the validity of the election?, or (b) did the alleged irregularities cumulatively affect the validity of the election?
The outcome of the petition may be seen as a variant of a well-known paradox of voting. The paradox of voting was discovered over200 years ago by Nicolas de Condorcet, a French mathematician, philosopher,
economist, and social scientist. Its basic insight is that voting may not lead to optimal preference aggregation.
The paradox of voting is the coexistence of coherent individual valuations and a collectively incoherent choice by majority rule. In an election with three or more alternatives (candidates, motions,, etc.) and three or more voters, it may happen that when the alternatives are placed against each other in a series of paired comparisons, no alternative emerges victorious over each of the others: Voting fails to produce a clear-cut winner. (William H. Riker, 1982).
Since there is no unique outcome of the voting process, it follows that one can choose what to vote on and in what sequence to produce a given outcome. The rules of voting can be manipulated in subtle ways that do not allow the will or preferences of the majority to be expressed. A different set of questions was asked to get the verdict of the Supreme Court. I don’t think that this was deliberate.
John Mahama is my president and yours. I believe that he would have been victorious even if there had been a re-run of the election in the affected polling stations. But that is not the point of this article. The point is whether our election petitions should be adjudicated on the basis of the voting rule adopted by the Supreme Court.