The Electoral Commission (EC) suffered a setback yesterday when the Supreme Court refused to allow its Chairman, Dr Kwadwo Afari-Gyan, to tender in evidence a printout from a biometric verification machine to disprove allegations that it allowed persons to vote without going through the verification process.
In another ruling, however, the court allowed Dr Afari-Gyan to tender in evidence a polling station register to indicate his claim that over-voting did not occur at a particular polling station, as alleged by the petitioners challenging the legitimacy of President John Dramani Mahama.
Counsel for the EC, Mr James Quashie-Idun, had sought to direct the Returning Officer of the presidential election to tender in evidence a print-out from a biometric verification machine used at the CPD Dankyendua Polling Station, but counsel for the petitioners, Mr Philip Addison, opposed the move on the grounds that the EC had not pleaded that in its affidavits.
Opposition to Surprise Evidence
According to Mr Addison, what the EC sought to do amounted to pulling a surprise on the petitioners because there was nothing on the face of the document which showed it was printed originally from the biometric verification device (BVD).
Counsel argued that the petitioners had filed all the necessary papers in the case and had even led evidence to that effect and further held that the EC had had the opportunity to controvert the pleadings of the petitioners.
“Nowhere was it stated that they are going to provide print-outs from machines. They are trying to conduct an entirely new case behind our back,” Mr Addison pointed out, and indicated that the EC had, accordingly, violated the April 2, 2013 order of the court to file all evidence it wished to rely upon.
The action, counsel stated, contravened Section 52 C of the Evidence Act, 1975 which frowned on parties pulling surprises on each other.
Questioning the basis for the tendering of the print-out, counsel alluded to the assertion that the information from the print-out could be manipulated and the petitioners were not in a position to cross-check.
Referring to a BVD user manual, counsel laid claim to the fact that the manual had clearly indicated that the machine was run on software and pointed out that the software could be manipulated.
“This evidence is so crucial they should have done that earlier,” he said, and queried if they were going to produce print-outs for all the 11,842 polling stations when the petitioners had closed their case.
In a 7-2 majority ruling, the court sustained Mr Addison’s objection.
Commenting on a situation where a pink sheet from the CPD Polling Station, Dankyendua, stated that the number of ballots issued to voters was 156, while the number of ballots not verified through the use of biometric verification was 156, Dr Afari-Gyan described the situation as “very odd”.
He said that was because the presiding officer had stated on the same form that the total number of ballots issued was 225, thereby contradicting 312 ballots being the total number of ballots issued.
He said if three spoilt ballots were added to the entire C column, it would add up to make the number 315 and yet again under C5 the total number of unused ballots was 69.
According to him, the addition of C1 and C3 was higher than the number of persons eligible to vote at the polling station, adding that further examination showed that “there is something wrong with the entry”.
Dr Afari-Gyan stated that in his analysis, such a situation could be that either all the persons in that polling station were verified or all of them were not verified, adding, “My inclination is that C3 must be waived because every polling station was supplied with a biometric machine.”
He said officers were instructed not to fill out form 1C because political parties had opposed moves to allow voters whose data had been lost during the registration exercise but had voter ID cards to fill that form and vote without undergoing biometric verification.
Mr Justice Baffoe-Bonnie then questioned what over-voting was, but witness replied that he was not clear in his own mind on what over-voting was, although he had alluded to it as excess votes.
Classical Definition of Over-Voting
In giving what he termed as a “classical definition” of over-voting, the EC boss said that would be where the ballots cast exceeded the number of persons eligible to vote at a particular polling station, and that drew murmurs from the courtroom.
At a point, Mr Justice Baffoe-Bonnie asked what happened to persons who had died or could not turn up to vote on voting day, noting that it then became a problem when Dr Afari-Gyan gave such a definition because over-voting could occur.
In response to that, Dr Afari-Gyan said he had referred to the classical definition and further explained that the EC had spent so much to introduce the biometric system into Ghana’s elections.
Annulment of Votes
He said he had been informed about the annulment of votes by the Brong Ahafo Regional Director of the EC of the presidential ballots at the Roman Catholic Primary School, Kutre in Berekum, and got to know of six others through the petitioners’ filed affidavits.
According to him, he did not know about the others because there had been no protest and explained that there was only one returning officer for the presidential election, which was the EC Chairman.
He cited the other areas where votes had been annulled as Tanoso, Asuokaw and Nalerigu-Gambaga.
Dr Afari-Gyan said even if the cancellation of presidential results had been announced to the EC, he would not have re-run the election because the figures did not have any mathematical significance on the tally of votes obtained by President Mahama and Nana Akufo-Addo.
For instance, he said, President Mahama would have annexed 50.71 per cent and not the current 50.70 per cent, while Nana Akufo Addo would have had 47.73 per cent and not 47.74 if the votes had been annulled.
The complaints, he said, were that the votes in the ballot boxes exceeded the number of persons verified by the machine to vote.
Serial Numbers duplication
Responding to allegations by the petitioners that different polling stations had the same serial and code numbers and that there were 9,921 polling stations with such an anomaly on the pink sheets, Dr Afari-Gyan said he strongly disagreed with that suggestion.
The petitioners are calling for the annulment of more than 2 million votes at the said polling stations, but Dr Afari-Gyan informed the court that unlike the ballot paper which the law required serial numbers to be different, polling stations were known by their unique names and codes.
According to him, it was important to note that pink sheets were distributed randomly and their serial numbers did not have any relevance on the compilation and declaration of results.
In any case, he argued, it was the EC that printed pink sheets, adding that two polling stations had two sets of different candidates, two different sets of presiding officers, different sets of polling agents and two different results in tallying.
The EC boss informed the court that he, therefore, did not see the basis of allegations surrounding serial numbers on pink sheets.
Unknown Polling Stations
Rebutting claims by the petitioners that voting took place at 22 different locations which were outside the original 26,002 polling stations, Dr Afari-Gyan said the EC had always maintained that results in the December 2012 elections were collated on the basis of 26,002 polling stations.
According to him, “nobody has shown anything to the contrary” and further stated that it was not strange for the petitioners to claim those polling stations were unknown, as he, as the Chairman of the EC, did not know all the 26,002 polling stations in the country.
He said saying that those polling stations were not known was understandable, but that did not mean they did not exist, and attributed the situation to a probable entry of wrong polling station codes and names.
“In any case, from the pink sheets they themselves supplied, there is proof that they sent agents to those 22 polling stations,” he said, adding that their agents signed the said pink sheets and collected copies.
After studying the 22 pink sheets, Dr Afari-Gyan said there were instances when there were more than one agent signing them.
Mr Quashie-Idun sought to lead the witness to make reference to a list of 21 polling stations prepared by the EC, but Mr Addison objected and said they were 21 and not 22 plus and the exhibit numbers did not match what was in the court’s records.
After back and forth arguments, Mr Quashie-Idun withdrew the document and relied on exhibits in the court’s records.
Issue on Voters Register
Mr Addison opposed the tendering of the register for the LA Primary School, Volibu in the Shai Osudoku Constituency, on the grounds that the proper foundation had not been laid for it to be tendered.
He argued that the EC had ample opportunity to tender in evidence the register but failing to do that it had waived that chance, adding what the EC sought to do amounted to surprise and ambush litigation.
Mr Quashie-Idun disagreed with Mr Addison’s position and said the register was for a polling station which was part of a list of five polling stations the petitioners had cross-examined the General Secretary of the National Democratic Congress (NDC), Mr Johnson Asiedu Nketia, on.
Counsel for the President and the NDC, Mr Tony Lithur and Mr Tsatsu Tsikata, respectively, supported Mr Quashie-Idun’s move but Mr Addison objected and said they did not have the locus to do that in that particular instance.
The court went into a short recess, returned and sustained Mr Addison’s opposition to the intervention of Mr Lithur and Mr Tsikata.
However, it allowed the polling station register to be tendered in evidence as an exhibit.
“What is Good for the Goose …”
Responding to concerns by Mr Lithur that he was having difficulty locating the five polling stations used by the petitioners to cross-examine Mr Nketia because either the exhibit numbers or code numbers were mixed up, the bench advised the litigants to compromise and exchange the necessary documents for an expeditious hearing of the petition.
One of the lawyers for the petitioners, Mr Akoto Ampaw, explained to the court that he had promised to give Mr Lithur the needed document but had forgotten. He went on to remind Mr Lithur of his objection to the petitioners’ move to tender in evidence on exhibits on the re-categorisation of irregularities.
He teasingly added, “What is good for the goose is good for the gander,” and at that point one of the judges, Mr Justice N. S. Gbadegbe, advised counsel for the parties to compromise, since the whole world was watching them.
Mr Ampaw then shot to his feet and said the petitioners would then make a case for the re-categorisation of irregularities, but Mr Justice Gbadegbe reminded him that “all documents must pass the test of admissibility”.
The court’s reaction was in apparent answer to numerous objections and counter-objections from the parties which, in another sense, were coming back to “haunt” them due to their inability to rely on some documents they might need to make their case.
The presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamudu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are alleging that over-voting, non-signing of pink sheets by some presiding officers or their assistants, voting without biometric verification and duplicated serial numbers of pink sheets occurred during the December 7 and 8, 2012 presidential election.
They are, therefore, calling for the annulment of 4.3 million votes.
However, President Mahama, the EC and the NDC have denied that any such irregularities occurred during the election.
So far, Dr Bawumia and Mr Nketia have testified.
Dr Afari-Gyan began his evidence-in-chief on May 30, 2013.