Analyzing the substance in the JDM Supreme Court petition

On December 30, 2020, Mr. Mahama filed a petition with the Supreme Court of Ghana (the petition) that none of the presidential candidates achieved more than 50% of the valid votes cast in the 2020 elections.

The Petition seeks, among others:

1. A runoff election between him and Nana Addo under article 63 (3) (4) and (5) of the Constitution of Ghana.
2. A restriction on President Akuffo from being referred to as the president-elect.

Mr. Mahama indicated in the Petition that due to the inconsistency in the declaration of the results of the presidential elections by Ms. Jean Mensa (President of the EC), the EC violated Articles 23 and 296 (a) and (b) of the Constitution of Ghana by acting arbitrarily and not being fair to him.

CE declaration

The EC declared on December 9, 2020 that Nana Akuffo Addo had won the elections by achieving 6,730,413 (51.3%) of the 13,434,573 valid votes cast compared to 6,214,889 (47.37%) obtained by Mahama. The EC statement excluded the result of the Tachiman South constituency, but explained that if the 128,018 registered voters in the constituency were added to Mahama’s votes, Nana Addo would still achieve more than 50% of the total valid votes cast.

The EC subsequently issued a statement in which it inadvertently used 13,433,573 as the total valid votes cast, the correct figure should have been 13,119,460 (excluding Tachiman South), as the previously disclosed figure (13,433,573) included rejected votes.

The EC further clarified that the proportion of total valid votes of 51.3% and 47.37%, which Nana Addo and Mr. Mahama received respectively, were not affected because they were based on the total valid votes cast (correct ) restated from 13,119,460 (excluding Tachiman South).

The basis of Mr. Mahama’s request

Mr. Mahama states in the petition that:

• the results declared by the EC were incorrect and that without Tachiman Sur, the count of the total valid votes cast should have been 13,121,111 (that is, 1,651 more than the 13,119,460 reiterated by the EC). Therefore, the total valid votes cast for all presidential candidates if expressed as a percentage is equal to 100.3% and not 100% (based on 13,121,111).

The problem with Mahama’s argument is that using the 13,121,111 as the total valid votes cast (without Tachiman South) does not change the outcome of the election, as Nana Addo still achieves 51.295%, just a slight reduction from 51.301%, revealed the EC.

• Mahama also claims that the EC declared on December 9, 2020 that the total of valid votes cast was 13,434,573 and regardless of the result of Tachiman South, Nana Addo had won. But according to his analysis, none of the candidates would get 50% + if all 128,018 registered voters (100% turnout) voted for him (Mr. Mahama), therefore a second round is required.

Unfortunately, Mr. Mahama’s argument is very simplistic and unfounded because the EC issued an amendment statement that the total valid votes cast (excluding Tachiman South) was 13,119,460. If Mahama can prove that the total valid votes cast (excluding Tachiman South) was 13,434,573 and not the restated figure of 13,119,460, then he may have a valid point, otherwise he is being misleading and came to a conclusion based on a fallacy. .

In any event, and for the sake of argument, the Tachiman South results have been published. Nana Addo and Mr. Mahama achieved 46,379 and 52,034 respectively out of a total of 99,436 valid votes cast. Consequently, if the 99,436 of the valid votes cast by Tachiman South are added to the incorrect figure of 13,434,573 that the EC inadvertently disclosed on December 9, 2020 as the total votes cast, the total rises to 13,534. 009. Based on this total and the new totals (including Tachiman South) of 6,776,792 and 6,266,923 for Nana and Mahama respectively, Nana receives 50.072% (still the winner) compared to 46.305% for Mahama. Please refer to the table below / attached for a more detailed discussion.

conclusion

Based on the above analysis, Nana Addo actually won the elections and the EC did not violate any of Articles 63 (3) (4) and (5), 23 and 296 (a) and (b) of the Constitution of Ghana only because of the inadvertent error in the disclosure made by Ms. Jean Mensa.

Since the election results were announced, Mahama and some NDC leaders have encouraged and incited their supporters to demonstrate because they claimed that Mahama won the election. This has led to the burning of tires and the destruction of property, including the burning of markets. However, Mr. Mahama has not indicated in the Petition that he won the election.

It is shocking that Mr. Mahama is taking advantage of the inadvertent mistake the EC made in his statement (which has been rectified) to claim that no one won the elections. There is an accounting / legal doctrine (i.e. substance over form) that prescribes that the substance rather than the technical form of a transaction governs the true nature of a transaction. Also, the inadvertent error in the presentation made by the EC (subsequently corrected) cannot nullify the actual results of the elections.

In any event, while Mr. Mahama accuses the EC of making an unfair and arbitrary decision due to the filing error, his own Petition prepared by various attorneys contains basic errors that include:

• a reference to the EC and Nana Addo interchangeably as 1^{S t} and 2^{North Dakota} surveyed; and
• a request for repetition between him and the EC (instead of Nana Addo).

Consequently, Mr. Mahama and his NDC members are acting absurd and reckless, knowing full well that he lost the election.