EC Loses Fight Over Collation Sheets - As Supreme Court Orders Copies For Party Agents

The Supreme Court yesterday directed the Electoral Commission to provide political parties and their agents with copies of signed Collation Sheets for both the presidential and parliamentary results in the upcoming December 7 elections.

The directive followed a writ filed by a former Director of Research at Parliament, Kwesi Nyame Tease-Eshun, asking the Court to declare as inconsistent with the Constitution and the duties of the EC the commission’s “failure to make provision in CI 94 requiring the Returning Officer and the contesting candidates or their representatives or counting agents to sign the Parliamentary Elections Results Collation Form and the Presidential Elections Collation Form.”

Following the 2012 Presidential Election Petition, the Electoral Reforms Committee recommended that the Constituency Collation Sheet should be endorsed by agents of the candidates and copies given to them. But the EC did not take that recommendation into accounts when drafting the current CI.

Akoto Ampaw, counsel for the plaintiff, reminded the Supreme Court that in the 2013 presidential election petition, even though the collation sheet was shown to be critical, only the EC had exclusive custody of it and denied the plaintiff’s request for all 275, with the court supporting the EC at the time, and as it turned out, under the false impression that all candidates or their agents were entitled to copies of the collation sheet.

The writ pointed out the fact that at the Polling Station all agents, for parliamentary and presidential candidates, are allowed to sign the Statement of Poll, given copies before a copy is posted at the Polling Station, stressing: “The processes and procedures therefore permit of little legal loophole that may be easily exploited.”

It added: “From a period of relative transparency, fairness and involvement of the candidates, and/or their agents at the polling station, the election process, to the extend that it relates to the presidential elections, is thrust into a phase of opaqueness with a significantly reduced participation of candidates and/or their agents.”

The writ further pointed out a lot of confused directives at the constituency collation centre even with the parliamentary results. Unlike the presidential election results where no role of agents are stated, for the parliamentary results, Regulations 42(1)(d) says that the Returning Officer shall “invite the counting agents of the candidates to sign the declaration of result [sic] form and when signed post a copy at the constituency collation centre.”

Based on these, the petitioner prayed the court for a declaration that on a true and proper interpretation of Articles 42, 43,45C and 51 of the constitution, 1992, the function of the 1ST Defendant under Article 45(c) of the constitution “to conduct and supervise all public elections and referenda implies a duty to conduct such election in a free, fair, transparent and credible manner.”

The plaintiff also sought “A declaration that, on a true and proper interpretation of Article 51 of the constitution, 1992, the power of the 1st Defendant under Article 51 by constitutional instrument to make regulation for the effective performance of its functions under the constitution or any other law implies a duty to make regulations that promote free, fair, credible and transparent elections.”

Accordingly, the 7-member panel, presided over by Justice William Atuguba, gave a consequential order directing the parties to the suit to confer and draft provisions to rectify the anomaly identified in the CI 94.

Below is what they came out with, which was accepted by the Court and given to the EC for implementation:

1. Regulation 3(1) (k) of the Public Elections Regulations, 2016 (C.I. 94) refers to Form One EL 1 A at page 36 of C.I. 94 headed "Part II CERTIFICATE TO BE ENDORSED ON WRIT" (for the parliamentary election) and not a reference to the Parliamentary Elections-Collation Form (Form One EL 23 A) on page 37 of C.I. 94.

2. Regulation 3(1)(m) refers to Part II Certificate to be endorsed on the writ (Form One EL 1B) to be found at page 39 of C.I. 94 headed "Part II CERTIFICATE TO BE ENDORSED ON WRIT" and not a reference to Form One EL 23B.

3. The reference to the declaration of results form provided for in regulation 42(1)(d) which does not refer to any Form in the Schedule shall be understood to be a reference to Form One EL 1A for the parliamentary election.

4. For the Presidential election the declaration of results form shall be understood to refer to Form One EL 1B.

5. Provision shall be made on the Parliamentary Elections-Result Collation Form (Form One EL 23A) and on the Presidential Elections-Result Collation Form (Form One EL 23B) for the names and signatures of the returning officer at the constituency collation centre, the candidates or their representatives or counting agents.

6. The returning officer, the candidates or their representatives or counting agents shall sign Form One EL 23A (for the parliamentary election) and Form One EL 23 B (for the presidential election).

7 The returning officer shall give each candidate or their representative or the counting agent a completed and signed copy of Form One EL 23A (for the parliamentary election) and Form One EL 23 B (for the presidential election).

8. The returning officer at the constituency collation centre shall apply the same procedure set out in regulation 42(1) for collating the polling stations results for the presidential election. Regulation 42(1)(e) requiring the returning officer to name the person elected shall not apply to the presidential election.

9. The "Constituency Collation Sheet" in regulation 49(1) shall be understood to mean "PARLIAMENTARY ELECTIONS- RESULTS COLLATION FORM (Form One EL 23A) and PRESIDENTIAL ELECTIONS-RESULTS COLLATION FORM (Form One EL 23B).