Atuguba JSC on Missing Signatures of Presiding Officers: "The right to vote is fundamental to our democratic advancement and must be protected unless there is some compelling reason not to. Hence, in Article 42 of the Constitution, the framers entrenched the fundamental right to vote. It has been contended by counsel for the petitioners that the second respondent is mandated under the Constitution to oversee the conduct of public elections in this country. Counsel further contends that Article 49(3) makes it mandatory for the presiding officer to sign the declaration forms in the prescribed manner. Counsel for the first respondent has invited this Court to note that authentication is required to be done not only be the presiding officer but by the polling agents who are present at the polling station on election day. I find that the petitioners do not dispute that their polling agents signed the declaration forms in the prescribed manner. I also find that the effect of the signatures of the petitioners’ polling agents is to confirm the information contained therein. There is no evidence before this court that the petitioners’ polling agents disputed or raised any protests regarding the information contained on the declaration forms at any of the polling stations complained of. Thus, the petitioners’ polling agents by signing the declaration forms in the prescribed manner represented to the world at large that the results recorded and declared by the presiding officer were a true reflection of the outcome of the elections at the polling stations complained of. At this stage, it is vital to discuss the constitutionall y entrenched right to vote discussed extensively in the cases of TEHN-ADDY and AHOMAH-OCANSEY (supra) as against the duties of the presiding officer to sign a declaration form that has been witnessed by all parties. Should this Court annul votes merely because of a presiding officer on polling day omitted to sign the declaration form in the prescribed manner? Especially, since the polling agents of all the parties involved were present and signed the declaration forms in the prescribed manner? I do not think so. We have been urged by the respondents to apply the case of OPITZ V. WRZESNEWSKYJ SCC 55 [2012] 3 SCR. I am aware that this authority is persuasive but I find the principles set out by the Canadian Supreme Court to be relevant to the petition before us. Paragraphs 46, 56 and 66 of the OPITZ case are worthy of mention and proceed to do so: “(46) The practical realities of election administration are such that imperfections in the conduct of election are inevitable. As recognized in Camsell v. Rabesca [1987] N.W.T.R. 186 (S.C.), it is clear that ‘in every election, a fortiori those in urban ridings, with large number of polls, irregularities will virtually always occur in one form or another’ (p. 198). A federal election is only possible with the work of tens of thousands of Canadians who are hired across the country for a period of a dew days or, in many cases, a single 14- hour day. These workers perform many detailed tasks under difficult conditions. They are required to apply multiple rules in a setting that is unfamiliar. Because elections are not everyday occurrences, it is difficult to see how workers could get practical, on- the-job experience. (56) In our view, adopting a strict procedural approach creates a risk that an application under Part 20 could be granted even where the result of the election reflects the will of the electors who in fact had the right to vote. This approach places a premium on form over substance, and relegates to the back burner the Charter right to vote and the enfranchising objective of the Act. It also runs the risk of enlarging the margin of litigation, and is contrary to the principle that elections should not be lightly overturned, especially where neither candidates nor voters have engaged in any wrongdoing. Part 20 of the Act should not be taken by losing candidates as an invitation to examine the election records in search of technical administrative errors, in the hopes of getting a second chance. (66) By contract, if a vote cast by an entitled voter were to be rejected in a contested election application because of an irregularity, the voter would be irreparably disenfranchised. This is especially undesirable when the irregularity is outside of the voter’s control, and is caused solely by the error of an election official.” [Emphases added.] I find the above paragraphs very pertinent to the petition before us. The petitioners have not proved that the absence of the presiding officers’ signature was willful. Accordingly, I would dismiss the petitioners’ claim that the absence of the presiding officers’ signature on the declaration form is an irregularity, violation or malpractice and that same affected the outcome of the 2012 presidential elections."
Posted on: Mon, 02 Sep 2013 09:06:58 +0000
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