According to the court, granting such a request would “gravely prejudice the secrecy of the ballots of the easily identifiable voters concerned, contrary to Article 49 (1) of the 1992 Constitution”.

It said the practice would further prejudice the freedom and fairness of the electoral process, as captured by the EC.

The court, therefore, upheld the EC’s argument that the integrity of the national elections could easily be compromised or even jeopardised because once the results of the special voting were declared even before the election, persons who had not yet voted could be influenced.

It further held the EC’s counsel’s submission that the results of the special voting would be discussed on every platform, a situation that had the potential to influence other voters.

Another argument by the EC’s lawyer, Mr Thaddeus Sory, which was embraced by the court was that the various spins that could attend such public declaration of the results of the special voting would not augur well for a transparent electoral process.

It said the backlash would be blamed on those special voters whose only wrong was service to the nation and, in so far as the electoral process was concerned, ensuring that its integrity was preserved.

The court further agreed that it would be paradoxical that selfless citizens whose avowed aim was to promote free and fair elections would rather have their actions innocently undermining the very process which they sought to protect.

The court was presided over by Mr Justice William Atuguba, with Messrs Justice Jones Dotse, Anin Yeboah, Paul Baffoe-Bonnie, A.A. Benin, Yaw Appau and Gabriel Pwamang as the other panel members.

Legal action

Some members of the security agencies, journalists, presiding officers, polling agents and election observers are scheduled to vote on December 1, 2016.

Voting earlier would enable them to engage in special duties on December 7, 2016.

But three Ghanaians dragged the EC and the Attorney-General to court over the rules governing special voting.

Dr Kwame Amoako Tuffuor, a retired lecturer; Benjamin Arthur, an alternative dispute resolution (ADR) practitioner, and Adreba Abrefa Damoa, a pensioner, had argued that the Public Election Regulations, 2016 (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.

The decision

Disagreeing with the plaintiffs, the court held that Article 49 of the 1992, when read in its entirety, related to the holding of one and the same election and that the fractional declaration of results was not an effective way of conducting elections.

It said the definition of “close of poll” in Regulation 49 (1) C.I 94 reflected the letter and spirit of Article 49 of the 1992 Constitution, adding that “the plaintiffs’ writ seeks to compel the premature and unconstitutional declaration of the results of the special voting in the manner they contend for”.

No jurisdiction

The court was emphatic in stating that in every litigation the courts and parties were subject to the Constitution.

It, accordingly, held that it had no jurisdiction to grant a relief that was contrary to the Constitution or any law that was inconsistent with or contrary to the 1992 Constitution.

Custody of ballot boxes

It held that the fears of the plaintiffs with regard to the sanctity of the special vote and the absence of candidates’ polling agents were unfounded in the face of Regulation 23 (11) of C.I. 94 and the Guide to Election Officials 2016.

Regulation 23 (11) of C.I. 94 provides that “the returning officer shall, at the end of the special voting (a) ensure that the ballot boxes are kept in safe custody after the poll has closed; (b)  ensure that the ballot boxes are sealed with the seals of the commission and any candidates who wish to add their seal; and (c)  arrange for the ballot boxes to be opened at the time of the counting of the votes cast on the polling day and the ballot papers shall be counted in the same manner as those contained in the ballot boxes used on the polling day”.

Be vigilant

In his reaction, Dr Tuffuor said he respected the decision of the court, describing it as something that “will move our democracy forward’’.

He, however, called on Ghanaians, especially the media, to be vigilant during the special voting exercise to ensure that it was conducted in a free and fair manner.

“Do not play with the special voting; you must count the number of people who come there to vote and let’s have a national result of the number of people who will vote on that day, so that we do not run into any misfortune later,” he added.