June 15, 2013 (Page 16)
Lead counsel for the petitioners in the presidential election petition at the Supreme Court, Mr Philip Addison, Thursday suggested to the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, that he had caused financial loss to the state by printing 27,998 duplicate sets of pink sheets without putting them to use during the December 2012 presidential election.
Although one of the Supreme Court judges, Mrs Justice Vida Akoto-Bamfo, directed Dr Afari-Gyan not to answer the question, the witness answered and denied the assertion.
Answering questions under cross-examination from Mr Addison, Dr Afari-Gyan explained that an element of wastage was always included in calculating electoral materials meant for elections.
Duplication of Serial Numbers
A total of 26,002 pink sheets were used in the December 2012 presidential election, but Dr Afari-Gyan agreed with counsel that there was a balance of 27,998 pink sheets which he was prepared to bring to court if the court felt it was necessary.
According to the petitioners challenging the legitimacy of President John Dramani Mahama, there were duplicate serial numbers on pink sheets for 9,921 polling stations and were, therefore, calling for the annulment of 3,924,844 votes cast.
Mr Addison’s question and the subsequent request for the production of the said remainder pink sheets were premised on the fact that the EC could have used some of the extra pink sheets for other purposes to compromise the election.
But counsel for the EC, Mr James Quashie-Idun, objected to Mr Addison’s line of cross-examination, on the ground of relevance and the fact that those issues had not been pleaded to by the petitioners.
Mrs Justice Akoto-Bamfo urged Mr Quashie-Idun to leave the issue of relevance to the court to handle and then directed Dr Afari-Gyan to answer the question on whether or not the EC could produce the said leftover pink sheets (statement of poll and declaration forms).
When she realised that Mr Addison was entering the ambit of impugning criminality to Dr Afari-Gyan, Mrs Akoto-Bamfo stopped that line of cross-examination.
Later, counsel suggested to Dr Afari-Gyan that he did not have in his custody the entire 27,998 excess pink sheets, to which Dr Afari-Gyan responded, “Unless, they are stolen.”
Parliamentary Pink Sheets and 45 New Constituencies
Asked if he printed duplicate pink sheets for the parliamentary election, Dr Afari-Gyan explained that each constituency had its own plan and set of parliamentary candidates and for that the issue of duplication did not rise at all.
The Returning Officer of the December 2012 presidential election informed the court that he was aware there had been controversy surrounding the creation of the 45 new constituencies but that was eventually resolved.
He, however, told the court that he could not tell when it was resolved, but Mr Addison suggested to him that the issue was resolved after the selection of presidential candidates, to which Dr Afari-Gyan said that proposition was not correct.
Mr Quashie-Idun objected to that line of cross-examination, on the grounds of relevance, but Mrs Akoto-Bamfo replied, “I thought I said the issue of relevance will be determined by the court.”
The issue of the biometric verification device (BVD) user manual drew a lot of arguments from the bar when Mr Quashie-Idun objected to a request from Mr Addison to Dr Afari-Gyan to identify the user manual.
Dr Afari-Gyan had indicated that he was not familiar with a blue-coloured user manual shown him and said he had one he could produce.
At that point, Mr Addison alleged that Mr Quashie-Idun was prompting Dr Afari-Gyan to deny the manual on live television, but Mr Quashie-Idun expressed his displeasure at the allegation.
Mrs Justice Rose Owusu intervened and advised Mr Addison to desist from making such allegations, since those petty matters did not augur well for justice delivery.
Asked if the blue booklet was the one given to the New Patriotic Party (NPP) representatives at the Inter-Party Advisory Committee (IPAC), Dr Afari-Gyan indicated he did not know of that.
He then brought out a green and white-coloured manual which had his foreword and indicated that although the blue booklet had his foreword also, it could have been copied from elsewhere.
Nonetheless, he identified the blue manual as containing a foreword with his name beneath in a similar manner as the green and white user manual.
Dissatisfied with Mr Addison’s style of cross-examination, Mr Quashie-Idun objected and said the manual was not in evidence as an exhibit and could, therefore, not be relied on by Mr Addison for questioning.
Although Mr Addison said he was prepared to tender the document in evidence, Mrs Justice Owusu held that under the Evidence Decree, questions could be asked on a document once it had been identified by a witness.
Mr Justice Annin Yeboah then requested Mr Quashie-Idun to look at Section 74 of the Evidence Decree and further asked him what the basis of his objection was, especially when his client had admitted he had written the foreword in the manual.
Mr Addison informed the court he intended to ask questions on the manual when he was questioned by Mrs Justice Owusu what he intended to do with it.
After a back and forth between the bench and the bar, the court indicated that Section 9 of the Evidence Decree gave the court the power to take judicial notice of such issues and eventually ruled that the document be tendered in evidence.
Pages 16 and 20 of BVD User Manual
After Mr Addison’s directive that witness read from pages 16 and 20 of the BVD user manual, Dr Afari-Gyan read out page 16, which said a presiding officer would be alerted to take the final decision if a voter had difficulty in having his/her fingerprint picked up by a BVD machine.
Page 20 also gave a presiding officer the authority to decide on whether or not to allow a voter to be identified by only the image, in the event a voter had difficulty with the biometric machine.
From then onwards, Dr Afari-Gyan was subjected to a barrage of questions, from deliberately training presiding officers to allow voting without biometric verification to directing presiding officers to disobey the law, but the Chairman of the EC disagreed and said he was not a lawyer.
Reasonable Discretion of Presiding Officers
Counsel also accused Dr Afari-Gyan of deliberately violating CI 75 by inserting Section C3 on the pink sheets to allow persons to vote without undergoing biometric verification, but the witness held a different view.
Mr Addison put it to Dr Afari-Gyan that he (Dr Afari-Gyan) had informed the court that presiding officers had the discretion to accept ballot papers without polling station stamps, but Dr Afari-Gyan said it was only based on the grounds that the discretion had been used “reasonably”.
“That discretion is a violation of the law,” Mr Addison responded, but Dr Afari-Gyan replied, “I am not a lawyer. I cannot determine.”
Mere and/or Exalted Observers
Dr Afari-Gyan told the court that polling station agents were not mere observers but conceded they were not electoral officials.
Reading out Regulation 19 (4) of CI 75, Dr Afari-Gyan conceded that presiding officers gave polling agents access to enable them to observe proceedings at polling stations during elections.
The witness also admitted that it was not the business of polling agents to supervise the work of electoral officials and also that the presiding officer had the power to sack a polling agent from a polling station for misconduct in not abiding by the laws governing elections.
Dr Afari-Gyan informed the court that the presiding officer was expected to lead a polling agent to swear an oath and that a polling agent risked committing perjury in the line of his/her work, but Mr Addison informed him that those provisions were not available in CI 75.
According to counsel, Regulation 19 (6) of CI 75 simply indicated that a returning officer shall set a date for a polling agent to swear an oath and abide by the laws governing the conduct of elections, and for that reason no mention had been made of perjury.
Dr Afari-Gyan insisted and indicated, “I have seen an explicit reference to perjury in the law.”
Polling Agents Not Special Voters
To prove his claim that polling agents were mere observers because they were not allowed to cast their ballots as special voters, Mr Addison had sought to rely on CI 15, but Mr Quashie-Idun objected, saying that CI 15 had been revoked.
Mr Addison eventually withdrew the CI 15 document which he had then handed over to Dr Afari-Gyan and decided not to ask further questions on that after the bench had intervened.
Dr Afari-Gyan accepted that while electoral officers fell within the special voters’ category, polling agents did not.
He also conceded that polling agents were not involved in the actual administration of elections and further indicated that polling agents did not inspect the identity cards of voters.
Asked if a polling agent could confront a voter at a polling station, Dr Afari-Gyan answered that nobody had the right to confront anybody directly at the polling station and explained that a polling agent was expected to inform a presiding officer if he/she had an objection.
Counsel then stated, “So the presiding officer is in charge of the polling station,” to which Dr Afari-Gyan answered, “Absolutely.”
130,000 Temporary Staff
Asked how the EC selected temporary staff for the polls, Dr Afar-Gyan explained that it put up advertisements in the media, as a result of which 130,000 people were recruited to man the December elections at polling stations across the country.
He explained that the returning officers were interviewed by the commission members, while the presiding officers were selected by district officers, in conjunction with regional officers of the EC.
Queried if the EC had conducted background checks on presiding officers, Dr Afari-Gyan indicated that the EC set out the qualification criteria for the selection of officers but conceded he did not know about the backgrounds of the presiding officers.
Asked what the qualification of presiding officers was, Dr Afari-Gyan said the minimum was senior high school education.
Dr Afari-Gyan said political parties were not involved in the recruitment of temporary electoral officers because the parties could attempt to push in persons who owed allegiance to them (political parties).
According to him, a shortlist of the selected temporary electoral officials was given to the political parties, so that they could raise objections if the need arose.
Dr Afari-Gyan informed the court that teachers were used in previous elections and the EC would continue to use them in later elections.
However, he could not tell the number of teachers who were used in previous elections.
Party Agents Presence at Polling Stations
The witness could not tell if all the political parties had agents at all polling stations across the country but was emphatic the New Patriotic Party (NPP) and the National Democratic Congress (NDC) had agents in all 26,002 polling stations.
Asked if that meant a party without a polling agent could not raise a protest after elections, Dr Afari-Gyan answered in the negative and explained that security officers and electoral officers had a collective responsibility to man the polls and protect the interest of all.
He also stated that the appointment of a polling agent was not mandatory but a right. He further admitted that it was not a requirement for anyone challenging results to have a polling agent.
Asked if he had heard President Mahama directing the EC to allow persons whose fingerprints were rejected by biometric machines to vote without undergoing biometric verification, witness answered in the affirmative and indicated that “we could not do anything. You cannot change the law in the middle of an election”.
The witness informed the court that it was not necessary to go on air to clarify the issue, adding, “The law must work.”
He also stated that he did not hear electoral officials on radio stating that persons were being allowed to vote without undergoing biometric verification and further pointed out that none of those issues was brought to his notice.
Answering a question on whether or not he had heard the General Secretary of the NDC, Mr Johnson Asiedu Nketia’s interview on the issue of biometric verification, Dr Afari-Gyan said he was too busy solving problems on Election Day to listen to radio.
He also indicated that even if he had heard that persons had voted without undergoing biometric verification, he was not in the position to verify and further indicated that the district and regional officers of the EC did not report incidents of persons voting without biometric verification to him.
Mindset of Returning Officer
Dr Afari-Gyan told the court that he did not know the mindset of returning officers and said it was unrealistic for the EC to expect all electoral officers to perform up to task.
He disagreed with a suggestion that the EC engaged the services of low quality staff but indicated that the EC had accepted responsibility for lapses in the elections and expressed the hope that the political parties would do same.
Asked if he had heard a Deputy Commissioner of the EC, Mr Sarfo Kantanka, stating during a regional tour that many mistakes occurred during the 2012 elections, Dr Afari-Gyan said he had not received any formal report to that effect.
He said Mr Kantanka was in charge of the Eastern and Greater Accra regions, while he (Dr Afari-Gyan) was in charge of the Volta and Ashanti regions during the regional tour to solicit views on the conduct of the polls and other matters.
Dr Afari-Gyan admitted that the results of a candidate could be given to another candidate and further conceded that transpositional errors had occurred in past elections which had resulted in the defeat of a candidate.
He said he did not check pink sheets before declaring the results because he had not received any protest to that effect.
He also indicated that he did not send anybody to Kenya to observe the elections in that country and said the EC had a way of monitoring elections in other countries.
Chorus of Constituencies and Collation Sheets
There was a chorus in the line of questioning and the answers given with respect to whether or not the presidential election had been held in 13 constituencies.
Counsel separately asked if elections had been held in each constituency and Dr Afari-Gyan answered each question: “My Lords, as far as I know, yes.”
The constituencies in question were Tamale South, Lower Manya Krobo, Techiman North, Yilo Krobo, Akropong, Berekum West, Kintampo South, Upper West Akyem, Mpohor, Yendi, Ledzokuku, Ketu North and Oforikrom.
Observing the trend of the chorus, Ms Justice Owusu interjected and informed counsel that Dr Afari-Gyan had informed the court that elections had taken place in all constituencies across the country.
Mr Justice Gbadegbe stepped in and advised Mr Addison to confront Dr Afari-Gyan with the question, “otherwise we will have this rhyme”.
That comment drew laughter from the courtroom.
Mr Addison then asked if Dr Afari-Gyan could make available the collation forms for all the mentioned constituencies, but Mr Quashie-Idun objected and said those issues had not been pleaded.
But Mr Addison told the court the petitioner needed the documents to confront the EC with them.
Mr Tony Lithur objects
Counsel for the President, Mr Tony Lithur, objected and said the petitioners were out of time to cross-examine on such matters and said the court would be opening the floodgates for numerous documents to be introduced if it allowed the witness to produce those documents.
He also informed the court that the petitioners had copies of collation sheets.
Counsel for the NDC, Mr Tsatsu Tsikata, supported Mr Lithur by stating that the petitioners had copies of collation sheets.
However, Mr Addison denied that assertion.
Mr Lithur then cross-checked and later informed the court that it was rather a constituency result summary sheet and not a constituency collation form that the political parties had.
Adding his voice to the objection to the request for constituency collation forms for the 13 constituencies, Mr Tsikata prayed the court not to allow that because it would lead to “an endless situation” if that happened.
He conceded that there was an amount of latitude to cross-examination, but as it stood Mr Addison was abusing it.
Mr Addison had insisted that the court had earlier in the trial refused the petitioners the chance to inspect constituency collation forms and pink sheets with the reason that it was premature and indicated the time was ripe for such documents to be inspected.
But Mr Justice Dotse asked Mr Addison why he did not lay a strong foundation on a single pink sheet to warrant the call for the 13 constituency collation forms. Failure to do that, according to Mr Justice Dotse, would amount to “fishing” for documents.
For his part, Mr Justice Gbadegbe reminded counsel that the rules were clear and it was not good for the signal to be given to the international community that the rules were lax in Ghana.
Mr Addison informed the court that the petitioners did not have the full complement of pink sheets and stated that the petitioners needed information on some to put it across the witness in order to help the court arrive at the truth.
Mr Justice Gbadegbe agreed with counsel but reminded him that justice must be dispensed according to the rules.
Mr Addison eventually withdrew his request for the 13 constituency collation forms and informed the court he could not finish with his cross-examination because it had been hindered by objections from the other parties.
He also indicated that he had not completed with his cross-examination with regard to pink sheets as well.
Pink Sheets and KPMG
The Registrar of the Supreme Court, Mr James Mensah, informed the court that the international audit firm, KPMG, needed a week and a few days to complete its audit into pink sheets submitted to it by the court.
Following that information, the presiding judge, Mr Justice William Atuguba, adjourned hearing to June 24, 2013.
Dr Afari-Gyan is also expected to furnish the petitioners with the voters register used for some constituencies during the conduct of the 2012 general election on the next adjourned date.
The petitioners — the presidential candidate of the NPP, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey — are alleging gross and widespread irregularities in 11,115 polling stations and are calling for the annulment of 4.3 million votes.