Hanson Agyemang writes: Understanding the mathematics of the 2020 election petition

More than 16 sittings have so far been held in the ongoing election petition case. About 10 applications have been filed by John Mahama’s team with the court unanimously dismissing all except the one requesting an amendment of their petition. As expected, the case had its fair share of excitement and controversy in the court of public opinion. Indeed, even before the case started, it was clear it was going to be both a legal and political battle. Therefore, parties (in the case) needed to be sure they were winning the battle on both fronts.

This is the second properly instituted election petition under Ghana’s Fourth Republican constitution. The first was the 2012 episode. But just as many have intimated, the 2020 petition is different in form and substance from that of the 2012 petition. Unlike 2012, the 2020 petition is largely a mathematical game. The petitioner is simply accusing the Electoral Commission of declaring Nana Akufo-Addo as President-elect when he had not crossed the constitutional threshold of 50% plus one required.

Article 63 (3) of the Ghanaian Constitution, 1992 makes it clear:

A person shall not be elected as President of Ghana unless at the presidential election the number of votes cast in his favour is more than fifty per cent of the total number of valid votes cast at the election.”

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Regulation 44 of C.I 127 also buttresses the point:

• In a presidential election, the candidate who receives more than 50 percent of the total number of valid votes cast shall be declared elected as President.
• Where in a presidential election there are more than two candidates and none of the candidates obtains the percentage of votes specified in sub-regulation (1), the Commission shall conduct a second election within twenty-one days after the previous election.
• The candidates for a presidential election held under subregulation (2) shall be the two candidates who obtained the two highest number of votes at the previous election.

The purpose of this article is to simply breakdown the figures involved in the case so far, as contained in the petition, responses from the respondents and the cross examination of the witnesses of the petitioner.

The key figures contained in the petition

There are four basic numbers of concern in this petition all relating to either the total number of valid votes cast or total number of votes cast.

The first set of numbers is what is contained in the December 9 declaration. Thus, the 13,434,574 used as total number of valid votes cast during the declaration as well as the number of registered voters of 128,018 in Techiman South.

Then the December 10 press release of the Electoral Commission meant to clarify the December 9 figures which revealed that the Chairperson of the Commission had ‘inadvertently’ interchanged the number of valid votes of 13,119,460 with the total votes cast of 13,433,573 (a number the petitioner has identified to be different from the 13,434,574 figure mentioned as the number of valid votes in the December 9 declaration). The Press release from the commission read:

“The Chairperson of the Electoral Commission inadvertently used 13,433,573 as the total valid votes cast. The total valid votes cast is 13,119,460. This does not change the percentages stated for each candidate and the declaration made by the Chairperson.”

There is yet another figure for valid votes cast given as 13,121,111 which the EC has stated in its response to the petition as the number of valid votes. The petitioner also claims in paragraph 12 of his petition that this number should be the total valid votes if one is to sum up all the valid votes given to candidates that took part in the election. A point Nana Akufo-Addo’s lawyers have sought to agree with during cross-examination. But the petitioner insists that the only true declaration is the one on December 9 and any conclusion on whether or not any of the candidates attained the 50% plus one threshold should be based on that.

Jean Mensa’s December 9 declaration and Mahama’s contention

EC Chairperson, Jean Mensa while declaring the results stated that the number of valid votes was 13,434,574. When the EC chairperson expressed the individual votes obtained by the candidates in percentages in relation to the said valid votes above, Nana Addo of the NPP (2^nd respondent) obtained 51.59% of total votes cast while Mahama of the NDC (petitioner) obtained 47.34%. This was without the votes of Techiman South. But the Chairperson claimed that the total registered voters of Techiman South of 128,018 when added to John Mahama will not even affect Nana Akufo-Addo’s percentage of meeting the 50% plus one threshold to be declared president-elect.

Currently, the election results we have declared exclude that of the Techiman South Constituency, with a voter population of 128,018. The said election results are not ready because they are being contested …even if we were to add the 128,018 full results to the second candidate, it would not change the outcome of the election hence our declaration of the 2020 presidential results without that of Techiman South”

But this is where Mr. Mahama has a problem with the EC as he believes if the EC was to stick to these figures, the assumption of Techiman South would have made it fundamentally impossible for the Chairperson and returning officer of the presidential election to declare Nana Akufo-Addo as president-elect.

In his Petition, Mahama for instance avers that if the Techiman South assumptions used, then the valid votes will rather stand at 13,562,592. He argues that if the votes of the candidates are expressed as a percentage of the new valid votes cast and the Techiman South registered voters of 128,018 are added to his tally as the EC Chairperson posited, Nana Addo will attain 49.625% of the total votes which falls short of the constitutional threshold, while he attains 46.768% of the votes cast. The prayer of the petitioner is for the bench to find favour with this reasoning and order a re-run of the election for the two candidates.

Akoto Ampaw’s ‘calculator game’ with General Mosquito

It is therefore not surprising that counsel for Nana Akufo-Addo during the cross-examination of Asiedu Nketiah attempted to discredit the above narrative by the petitioner. Akoto Ampaw started by trying to prove that the figure 13,434,574 as mentioned by the EC chairperson in the 9th December declaration was an error and could not have been used by anyone as the total number of valid votes. To prove his point, he asked the first witness of the petitioner Johnson Asiedu Nketiah to sum up figures of all valid votes obtained by the candidates as was contained in the December 9 declaration. Asiedu Nketiah’s calculation arrived at 13,121,111 (The figure contained in EC’s response to be valid votes) as the total number of valid votes and not the 13,434,574 contained in the December 9 declaration of the EC. Having arrived at this, the witness was asked to express it as a percentage of the votes obtained by the candidates using the 13,121,111 as valid votes. His calculation put Nana Addo above 50%. But the NDC’s General Secretary disagreed with this point as he argued that the results as declared on December 9 by the Returning Officer remained the outcome of the 2020 polls and not any other computation by any other person or group.

Counsel for Nana Akufo-Addo also during cross-examination attempted clarifying issues surrounding the impact of the Techiman South presidential results on the December 9 declaration. Akoto Ampaw disagreed with claims by Mahama in his petition that all 128,018 registered voters should be added to Mahama’s vote before expressing the votes attained as percentages. He was of the view that the results of the Techiman South were known before the filing of the petition hence the actual votes attained should be used and even if the total votes will be used, it should the total number of valid votes.

On Exhibit C of Asiedu Nketiah’s witness statement, he alleges of some wrong aggregation of votes which included Techiman South. The point by the petitioner was that the tabulation of individual valid votes of candidates was at variance with the number captured as total valid votes in the summary sheets. In the case of Techiman South, the number of valid votes was stated as 97,227 while the total number of votes cast was 99,436. But the individual valid votes of the candidates were however not equal to the total number of valid votes on the summary sheet.

Akoto Ampaw however clarified that there were clerical errors on the summary sheet from Techiman South and that the valid votes should rather be 99,436 and not total votes cast. To prove his point, he asked General Mosquito to sum up the votes of all candidates on the summary sheet. The calculations confirmed Akoto Ampaw’s point. But Asiedu Nketiah will have none of that. He argued that it cannot be taken to be just a mere clerical error.

Regardless of the interjection, Akoto Ampaw used the new total valid votes of 99,436 from Techiman South as calculated by Asiedu Nketiah to continue a mathematical game that sought to establish that no matter which figure of the EC is used, Akufo-Addo crossed the 50 percent plus one threshold. He asked the witness of the petitioner to add this new figure to the total valid votes of 13,121,111 (which was arrived at during cross-examination and in the response of the 2^nd Respondent) to get another figure for valid votes cast. Adjusting the votes of the two candidates with actual votes attained in Techiman South, Asiedu Nketiah’s calculation put Nana Akufo-Addo at 51.26% and Mahama at 47.67%.

Akoto Ampaw also suggested during the cross examination that the subsequent press releases by the Electoral Commission put Nana Addo above the 50% plus one threshold. He first tackled the December 10 press release which was to address the errors contained in the December 9 declaration. That release contained another number described to be the total number of valid votes of 13,119,460 different from the December 9 figure and the 13,121,111 contained in the EC’S response. Not providing a justification and clarification on the origin of that figure, Akoto Ampaw asked Asiedu Nketiah to express the individual votes of Mahama and Nana Akufo-Addo as a percentage of this ‘new’ figure of 13,119,460 valid votes. This same calculation put Nana Addo above the 50 percent plus one constitutional threshold.

In a similar fashion, separate calculations were made by adding the number of valid votes in Techiman South to the different valid votes cast except for the December 9 declaration figure (13,434,574). In those instances as well, the calculations put Nana Addo above the 50% plus one threshold. It is however worthy to note that General Mosquito suffixed his answers with the condition ‘if the figures are accurate’. Essentially insisting that to the best of his knowledge the outcome of the polls is the figures contained in the December 9 declaration. 

Allegations of ‘vote padding’

Nana Addo’s lawyers also attempted refuting the allegation of vote padding in the petition of Mahama. Asiedu Nketiah in his witness statement provided a sample of 4,693 votes which have been allegedly padded in favour of Nana Addo. But the president’s lawyers insist that, this number in no way affects the constitutionality of Nana Addo’s percentage. Even though John Mahama’s lawyers are yet to provide the figures of all the padded votes, they claim the assertion by Nana Akufo-Addo’s lawyers is misconceived as the figure they have provided is a sample and cannot be used for any tabulation.

Aside from the Mathematical case, Mr. Mahama has backed his claims by alleging that the EC chairperson acted in bad faith and unconstitutionally in the declaration of the results. Dr. Kpessa-Whye and Rojo Mettle Nunoo who were representatives of Mahama at the National Collation Centre formerly called the ‘strongroom’ of the EC have testified in support of these claims.

Supreme Court to deliver judgement on March 4

With Mahama’s team having failed to subpoena the EC Chairperson to testify, the court will on March 4 deliver judgement on the matter primarily based on the merit of the evidence adduced by the petitioner.

While the respondents are of the view that the petitioner has not been able to discharge the burden of proof, the petitioner believes that his case has been convincing so far and looks forward to the judgement of the court.

Source: CNR