Dr Kwame Amoako Tuffuor, a retired lecturer; Benjamin Arthur, an Alternative Dispute Resolution (ADR) Practitioner, and Adreba Abrefa Damoa, a pensioner, are arguing that Constitutional Instrument (C.I.) 94, which states that special voting ballot boxes will be sealed to be opened on close of poll on election day for counting was unconstitutional.

“To brazenly let any provision of C.I. 94 regarding special voting override Article 49 of the 1992 Constitution and Section 13 of PNDCL 284 in the name of an unprovable fear of victimisation of special voters is to assert that in spite of the strides made in over 20 years of constitutionalism, we still creep at the repercussions of our legitimate democratic choices. Security officers vote for and against governments or opposition parties during elections. No fetish should be made about this fact,” the statement of case accompanying the writ seeking to invoke the original jurisdiction of the Supreme Court has noted.

They are accordingly invoking the original jurisdiction of the Supreme Court to declare that upon a true and proper interpretation of Article 49 of the 1992 Constitution, ‘special voting’ as provided for by Regulation 23 of the Public Elections Regulations, 2016; CI.94 is a part of public elections.

The plaintiffs are seeking a declaration that upon a true and proper interpretation of Article 49 of the Constitution of the Republic of Ghana, 1992, and Section 13 of the Representation of the People Law, 1992; PNDCL 284; the ballots to be cast pursuant to Regulation 23 (1), (2), (3)(,(4),(5),(6),(7),(8),(9) and (10) of the Public Elections Regulations, 2016; CI.94 by special voters in the December, 2016 presidential and parliamentary elections ought to be counted and announced there and then on the date (s) of the special voting; by the presiding officers and the results at each polling station; before communicating same to the returning officer.

A declaration that Regulation 23 (11) of Public Elections Regulations, 2016; CI.94 was inconsistent with Article 49 of the Constitution of the Republic of Ghana, 1992, is also being sought for by the plaintiffs.

The plaintiffs want an order striking down Regulation 23(11) of Public Elections Regulations, 2016; CI.94 as being inconsistent with Article 49 (2), (3) (a) and (b) of the Constitution of the Republic of Ghana, 1992 and Section 13 of the Representation of the People Law, 1992; PNDCL 284.

The plaintiffs also want an order directed at the EC to comply with the provisions of Article 49 (2), (3) (a) and (b) of the 1992 Constitution and Section 13 of the Representation of the People Law, 1992; PNDCL 284 in respect of special voting for the 2016 presidential and parliamentary elections and any subsequent public election in the Republic of Ghana.

Statement of case

A statement of case filed on behalf of the plaintiffs by their lawyer, Mr Egbert Faibille Jnr, said article 49 (2) of the 1992 Constitution provided: “Immediately after the close of the poll, the presiding officer shall, in the presence 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.”

Article 49 (3) of the 1992 Constitution provides: “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.”

It further argued that Section 13 (2) of PNDCL 284 also provides: “Immediately after the close of the poll, the presiding officer shall, in the presence of the candidates or the representatives and the polling agents who 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.”

Section 13 (3) of PNDCL 284 states: “The presiding officer, the candidates or the representatives of the candidates and the polling agents shall then sign a declaration stating (a) the total number of voters entitled to vote at the polling station, and (b) the number of votes cast in favour of each candidate 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.”