The Supreme Court on Wednesday descended heavily on the Electoral Commission (EC), describing its persistent absence from court over matters of national interest as disrespectful.
The seven-member panel of judges presided over by Justice William Atuguba, were incensed when it became apparent that there was nobody to represent the commission in court.
Thaddeus Sory, the lawyer who had always led the EC, was absent and had directed his junior, Sean Poku, to hold brief for him in the case in which three plaintiffs – Dr Amoako Tuffuor, Benjamin Arthur and Adreba Abrefa Damoa – want the court to order the counting of special voting soon after voting is over.
Disrespect
Justice Anin-Yeboah, one of the panel members, noted that the case is a sensitive one and so the commission should have put in some appearance, stressing that the absence of the EC was shear disrespect.
Justice A.A. Benin, who was equally not enthused about the incident, said if the commission was in court it would have an idea of what happened.
He said the EC, having failed to do so, rely on information from journalists who misreport court proceedings for reasons he could not tell.
According to Justice Anin-Yeboah, Sean, who was answering questions from Justice Atuguba in respect of special voting, was speculating and that the lawyer had still not seen the need for the EC to be in court.
Secrecy
Justice Jones Dotse, another member of the panel, was emphatic that it was prudent officials of the commission appeared in court because they had no time on their side.
He wondered whether the secrecy of the voters would not be compromised if the votes were counted.
In the view of the judge of the apex court, the counting of the votes could send signals to candidates which might not be good for the country.
He argued for instance, “What if the special election results were declared and it goes a certain direction?”
To that, Egbert Fabille Jnr., counsel for the plaintiffs, told the court that their case was set out in their statement of case filed at the court.
He said it had been the position of sections of the people that the special votes do not reflect in the results of the general poll.
Mr. Fabille explained that the Constitution does not make room for special voting, indicating that the plaintiffs were not challenging the constitutionality of the special voting but the mode.
Plaintiffs’ Case
According to him, the special voting will be held on December 1, 2016 but the EC, notwithstanding the clear provision of Article 49 of the 1992 Constitution, rely on Regulation 23 (11) of C.I. 94, which is a subsidiary legislation.
Justice Benin wondered if the applicants could not have suggested something (ways) of securing votes after the exercise (until it is added and counted during the general votes).
Answering, Mr. Fabille said the seal in such instances gets broken.
Earlier, Justice Atuguba among others, inquired from the parties if it was the practice the world over for special votes to be counted and declared, a question they all answered in the negative.
He accordingly set Monday, November 14 for judgement.
Meanwhile, Sean said the EC would rely on its statement of case filed on November 7, 2016.
Dorothy Afiriyie, representing the Attorney General (AG), said the state would also rely on its statement of case filed on the same day.
The plaintiffs argued in their writ that Section 23 of C.I. 94 – the law which regulates the conduct of the 2016 general election – was inconsistent with Article 49 of the 1992 Constitution.
Per the C.I. 94, the Returning Officer shall at the end of the special voting, ensure that the ballot boxes used in the special election are kept in safe custody after the poll has closed.
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