Sunday, June 9, 2013
Afari-Gyan blocked (June 6, 2013)
A move by the Electoral Commission (EC) to introduce printouts from biometric verification machines used at 50 polling stations to refute allegations that some people voted in the December 2012 elections without undergoing biometric verification was foiled by the Supreme Court in Accra on June 5, 2013.
According to the court, it had made it clear from the onset that matters pertaining to the election petition had to be treated with utmost urgency and it would do just that for the benefit of the voter, especially when the court had given the parties ample opportunity to file all the necessary documents.
Unanimously rejecting the EC’s move, the court held that it had given copious time to all the parties to file their pleadings, amend pleadings, file further and better particulars, affidavits and supplementary affidavits and lead both oral and written evidence, adding that it was inappropriate to allow the EC to “roll back” the successes chalked up so far by the court.
Upholding an objection raised by counsel for the petitioners, Mr Philip Addison, in the challenge to the EC’s declaration of Mr John Dramani Mahama as the winner of the 2012 presidential election, the court held that allowing the EC to introduce fresh evidence would amount to opening the “floodgates” for all sorts of pleadings.
That, in the court’s opinion, could not be countenanced, especially when the case had travelled six months and Ghanaians who had exercised their sovereign right by exercising their franchise could not be held back in knowing who they voted for.
According to the petitioners challenging President Mahama’s legitimacy, 535,723 voters did not undergo biometric verification during voting on December 7 and 8, 2012 and for that reason those votes should be annulled.
The EC, has, however, disproved that claim and explained that the C3 column of the pink sheet which required presiding officers to list the number of persons who were allowed to cast their ballots without undergoing biometric verification was not supposed to have been filled out.
That, according to the EC, was because the political parties had objected to the addition of form 1C, which was to enable voters whose bio data had been lost but had been issued with identification cards to vote without undergoing biometric verification.
The Chairman of the EC, Dr Kwadwo Afari-Gyan had informed the court that he had requested for Section C3 of the pink sheet to be deleted after the political parties had objected to the EC’s proposal but the technical officials had stated it was too late because the printing of the pink sheets had almost ended.
With the resolve not to relent in its efforts at disproving allegations that some people were allowed to vote without undergoing biometric verification, the EC, through its Director of Finance and Administration, Mr Amadu Sulley, filed a supplementary affidavit on Tuesday seeking the court to allow those exhibits in evidence.
The attention of the audience in the courtroom was drawn to the filed document when counsel for the President, Mr Tony Lithur, sought to cross-examine Dr Afari-Gyan on the said documents.
The 50 print outs were drawn from 147 pink sheets Mr Lithur had given to Dr Afari-Gyan to study while cross-examining him on Tuesday.
Subversion of Court Orders
Opposing moves by Mr Lithur to cross-examine Dr Afari-Gyan on the said print outs, counsel for the petitioners, Mr Addison, described the move by the EC as professionally unethical because it had failed to comply with the court’s April 2, 2013 orders which directed the parties to file all affidavits and evidence before commencement of the hearing.
Counsel argued that the EC Chairman had completed his evidence-in-chief and it was, therefore, improper for Mr Lithur to cross-examine him on affidavit evidence which had not been properly laid before the court.
He queried if the action of the EC meant all parties could file and attach all documents rejected by the court, adding, “This is fresh evidence. It did not come about in evidence-in-chief. It is subversive of both the court orders and justice in this case.”
Mr Addison, accordingly, prayed the court to strike out the supplementary affidavit.
Mr Lithur’s Response
In his reply, Mr Lithur debunked the professionally unethical allegation by Mr Addison and explained that he was entitled to elicit information from Dr Afari-Gyan.
Counsel maintained that the evidence was relevant because Dr Afari-Gyan was seeking to ascertain the veracity or otherwise of the information on the pink sheets.
He said he did not file the affidavit and for that reason he would leave it to the EC to respond appropriately but prayed the court not to allow Mr Addison to interject in his cross-examination.
He submitted that the petitioners had no locus to intervene in his cross-examination, just as the court had stated in an earlier ruling which barred him and Mr Tsatsu Tsikata, counsel for the National Democratic Congress (NDC), from interjecting while Mr Addison was objecting to an issue raised by the EC.
Alluding to the popular expression, “What is good for the goose is good for the gander,” Mr Lithur prayed the court to stop Mr Addison from interfering in his cross- examination.
Apparently not moved by Mr Lithur’s explanation, Mr Addison shot to his feet and informed the court that he was objecting to the document which had been wrongly filed by the EC and obviously being relied on by Mr Lithur.
However, Mr Lithur replied that Mr Addison’s objection was raised within the “context” of his cross-examination, but Ms Justice Rose Owusu informed him that if his question did not make reference to the document, his objection would have been upheld.
Making a case for the EC, Mr Quashie-Idun explained that the documents in question did not contain the print out for the CPD Dankyendua Polling Station which had not been allowed by the court on June 3, 2013.
He admitted that the EC should have filed affidavits on the print out earlier and indicated that his client was not aware of the kind of evidence Dr Mahamudu Bawumia, the star witness for the petitioners, would lead.
Mr Quashie-Idun had attempted to allude to the fact that a witness for the petitioners, Ms Freda Prempeh, had filed her affidavits outside the time permitted by the court, but Mr Justice Annin Yeboah reminded him that Ms Prempeh had filed her affidavits on the same day Dr Bawumia had filed his.
Indeed, the court records indicate that Ms Prempeh, together with other witnesses for the petitioners, filed her affidavit on April 7, 2013, the same day Dr Bawumia filed his 83-paragraph affidavit.
Mr Quashie-Idun then abandoned his argument on the day Ms Prempeh filed her affidavit and informed the court that the EC was seeking to tender in evidence the print out from the 50 biometric machines to rebut the petitioner's’ claim that some voters voted without undergoing biometric verification.
Mrs Justice Vida Akoto-Bamfo queried Mr Quashie-Idun when he was expected to have filed the evidence on behalf of his clients, to which he admitted he should have done it earlier.
Case made clear
Still on Mr Quashie-Idun, Mr Justice Yeboah informed him that the petitioners made their case clear from the very onset because they were put on the alert on the nature of the case.
He said now that Dr Afari-Gyan was being cross-examined, the EC was attempting to do something it was time bound to have done earlier, adding, “This is very, very serious.”
I will Ask for leave Now
Realising the bench was not amused with his non-adherence to the rules, Mr Quashie-Idun said he would ask for leave to file the supplementary affidavit.
He also argued that the EC had not pulled any surprise because it had maintained from the onset that all voters underwent biometric verification.
Referring to a citation from page 249 of a book on civil procedure written by a renowned lawyer, Mr Kwami Tetteh, counsel argued that the court could allow the EC evidence on merit for as long as judgement had not been delivered on the case.
The court returned after a recess and rejected the EC’s request.
Continuing with his cross-examination of Dr Afari-Gyan, Mr Lithur asked him to give an assessment of the 2012 general election, compared to previous ones, to which Dr Afari-Gyan replied, “This is the most transparent election we have ever had.”
Witness told the court that polling agents signed declaration of results forms in accordance with rules governing elections in the country and added that he had not heard any evidence in court to make him change his mind about his declaring President Mahama the winner of the 2012 presidential poll.
Mr Tsatsu Tsikata begins and ends cross-examination
During cross-examination of Dr Afari-Gyan by counsel for the NDC, Mr Tsikata, the EC Chairman stated that the star witness for the petitioners, Dr Bawumia, had not been present at any Inter-Party Advisory Committee (IPAC) meeting and explained that those meetings were usually attended by chairpersons and general secretaries of the political parties.
According to him, he also met presidential candidates at Akosombo and Accra but Dr Bawumia did not attend any of the meetings.
He also explained that serial numbers had no relevance on pink sheets, but conceded that the EC would factor them in the next elections if the court deemed it necessary.
Cancellation of Results
Sustaining his earlier admission that 905 pink sheets, representing 3.5 per cent, were not signed by presiding officers, Dr Afari-Gyan indicated that he would cancel the results across board if the Supreme Court gave an order to that effect.
He, however, stressed that a presiding officer not signing a pink sheet did not injure any candidate, especially when polling agents had signed those pink sheets.
According to him, the non-signing of a pink sheet by a presiding officer in election language did not amount to a malpractice, adding that it would constitute “a simple irregularity”.
He also informed the court that electoral officers who performed abysmally had in the past been blacklisted by the EC, which also inculcated errors created by such officers into subsequent training for future electoral officers.
“I know Nana Akufo-Addo”
Asked if he knew Nana Akufo-Addo, Dr Afari-Gyan answered in the affirmative but declined to go further to state his personal relationship with him on the grounds of keeping that information as privileged information and also because it was not a subject before the court.
After insistence from Mr Tsikata, Dr Afari-Gyan said, “I was privileged to be his roommate” and also made reference to knowing Mr Tsikata in school.
Mr Tsikata at that point brought his cross-examination to a close.
Mr Addison cross-examines Dr Afari-Gyan
There was an initial simmering hostility from Dr Afari-Gyan towards Mr Addison when he answered Mr Addison’s question with a question.
Asked what a Form 1A was, Dr Afari-Gyan also asked Mr Addison what a Form A was, to which one of the judges, Mrs Justice Vida Akoto-Bamfo, directed Dr Afari-Gyan not to ask questions but answer questions.
Dr Afari-Gyan then relaxed his stern posturing and answered that a Form 1 A was the form on which information on a voter was captured for onward entry into the biometric registration system.
Mr Quashie-Idun had objected to the use of Form 1A to cross-examine his client when it had not been tendered in evidence.
Mr Addison responded and informed the court that he did not intend to tender in evidence the said Form 1A but to refresh the memory of the witness.
I am not a Registration Officer
Apparently not comfortable with answering a barrage of questions posed by Mr Addison on the process involved in the filling of the Form 1A and asked if the lower part of Form 1C was subsequently torn and given out as a voter’s identity card, Dr Afari-Gyan answered, “I am not a registration official and so I do not know about the little, little details.”
Realising Mr Addison would not take his answer as the final answer, Dr Afari-Gyan went on to say that the lower part of Form 1C was eventually issued to the voter as an identity card.
Asked if he knew what an SD card was, Dr Afari-Gyan said he did not know.
Cross-examination continues today.