Wednesday, July 31, 2013

Parties file addresses - Except NDC

 July 31, 2013 (Lead Story)

ALL is almost set for the Supreme Court to deliver its judgement in the petition challenging the legitimacy of President John Dramani Mahama following the filing of addresses by three of the parties in the petition.
However, the third respondent in the petition, the National Democratic Congress (NDC), had not filed its address as of 5:30 p.m. when staff of the Supreme Court Registry officially closed.
It was not clear why the party had not filed its address by the stipulated time given by the court, but it is likely that it will file before the close of work today.
While the petitioners, in their address, argue that the presidential candidate of the New Patriotic Party (NPP) should have been declared winner of the December 7 and 8, 2012 presidential poll, the respondents hold a different view.
According to the Electoral Commission (EC) and President Mahama, the petitioners had not been able to establish the grounds for the annulment of votes and the subsequent declaration of Nana Akufo-Addo as the winner of the presidential poll.
The court will resume sitting today to iron out issues that may arise before directing the parties on what to do next.
As of 5 p.m. yesterday, the petitioners, President Mahama and the EC had sent emissaries to file their addresses on their behalf.
The petitioners’ address was filed on their behalf by two of their lawyers, Mr Alex Quaynor and Mr Kwaku Asirifi, while Mr Victor K. Adawudu and Mr Joseph Asamoah filed on behalf of the President and the EC, respectively.

NPP’s statement on address
A statement issued by the New Patriotic Party (NPP) in Accra yesterday said the petitioners’ address cited more than 60 authorities and spelt out the case for the petitioners.
According to the statement, the case of the petitioners was mainly on the facts and figures on the pink sheets (statement of poll and declaration of results form), the official document on which the EC relied to declare the results of the presidential poll.
It said the petitioners had also grounded their case on clear breaches of the Constitution and other electoral laws and practices in Ghana.
“The address reiterates the six main categories of irregularities, malpractices, violations and omissions in various combinations which affected the results of the election in 11,842 polling stations,” it pointed out.
To prosecute their case, the petitioners are relying on 10,119 pink sheets “which spoke to the nature of the violations, malpractices and irregularities grounding the petition”. 
The statement said the true results of the 2012 presidential election after they had been cured of all the infractions through the necessary annulments should see Nana Akufo-Addo earning 56.85 per cent, with President Mahama obtaining 41.79 per cent of the valid votes cast.
The petitioners are, therefore, asking the court to declare that Mr Mahama was not validly elected, while it should invoke its constitutional and statutory powers to declare Nana Akufo-Addo as the validly elected President of the Republic.
The statement also noted that the “respondents failed or refused to file any pink sheet, except the 17 pink sheets the President was compelled to tender in evidence”, adding that “beyond reliance on inconsequential reports of election observers, the respondents, in effect, tendered no evidence of substance of their own”.
According to the statement, the final decision of the Supreme Court would have fundamental and far-reaching consequences for the future of democracy in Ghana, pointing out that the petitioners had been able to prove each and every infraction of over-voting, persons voting without undergoing biometric verification, some presiding officers not signing pink sheets and some pink sheets having duplicate serial numbers.
“The petitioners have shown, by the sheer depth and weight of the evidence adduced at trial and the force of legal arguments advanced, that there were, indeed, substantial constitutional and statutory violations, malpractices and irregularities in the 2012 presidential election and these violations, malpractices and irregularities had a material effect on the results of the election as declared by the 2nd respondent,” it said.

President holds a different view
The address filed on behalf of the President by his lawyer, Mr Tony Lithur, states: “There are many reasons why adherence to the doctrine of exhaustion of administrative remedies makes absolute sense in the particular context of this case.
 “It is patently clear from the history of this case that the petitioners failed to make a case for the occurrence of the alleged irregularities at the various polling stations nationwide and to provide the Electoral Commission the opportunity to deal with these allegations administratively and on the spot because they simply lacked the evidence to back their claims.”
According to the President’s lawyer, the strategy the petitioners adopted was simply to trigger the jurisdiction of “this court by filing a petition and then go back to look for the evidence”.
He further submitted that the refusal or neglect of the petitioners to file any complaints relating to the alleged irregularities at the various polling stations and collation centres should have ordinarily denied them the opportunity to invoke the jurisdiction of the court under Article 64 of the 1992 Constitution.
“The petitioners failed to prove their allegations and for that reason the petition must be dismissed by the court,” he held.

EC’s position
In the summary of their address, the lawyers for the EC said the petitioners had failed to establish that the irregularities that occurred in the 2012 presidential election affected the results and urged the court to find that there was no justification for the annulment of any votes.
It said the petitioners hung their entire case on administrative and clerical errors on the face of the pink sheets.
“Given the fact that the EC hires over one hundred thousand temporary officials who are trained for only a short time to conduct the presidential and parliamentary elections in a day or two, administrative and clerical errors are avoidable.
“This is not to say that the EC will not do everything in its power to ensure that such administrative errors are minimised. If elections were allowed to be annulled on the basis of such errors, which do not injure any candidate in particular, there would be loss of public confidence in the electoral system and the tendency to challenge practically the results of every election will be heightened,” it pointed out.
They said the right to vote was a fundamental right given by the Constitution to Ghanaian citizens who were 18 years or older, adding that in the desire to exercise their civic responsibility in relation to that right, Ghanaians spent considerable periods of time to register as voters during the registration period and stood in long queues to vote on election day for the purpose of electing their leaders in accordance with the country’s democracy.
 “At no time did the petitioners allege that a person voted who was not entitled to vote. Neither have the petitioners shown that any candidate or a voter engaged in wrongdoing in connection with the election. At no polling station did the number of persons who voted exceed the number of persons eligible to vote there,” they added.

Parties in election petition to file addresses today (July 30, 2013 - Page 11)

Some of the boxes containing the address expected to be filed by the petitioners before close of work TuesdaySome of the boxes containing the address expected to be filed by the petitioners before close of work Tuesday 













The gathering of evidence is over and parties in the election petition are expected to file their written addresses at the Supreme Court Registry by the close of work today (July 30, 2013).
Addresses are usually filed by parties in both civil and criminal cases after evidence has been led in a case.
Electoral irregularities of over-voting, persons voting without undergoing biometric verification, some presiding officers not signing pink sheets and some pink sheets having duplicate serial numbers have been alleged by the petitioners, but the respondents have refuted the allegations.
The petitioners have since led evidence to justify why the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, should be declared President, but the respondents have cross-examined the petitioners and also led evidence to counter the claims.

Essence of Address
The essence of the addresses is to give the parties the opportunity to sum up the evidence adduced so far in the case, argue on relevant issues raised, punch holes into each other’s case and attempt to convince the court as to why the status quo of the Presidency should be maintained or changed.
Obviously, the stakes are high and the parties are determined to convince the court with their addresses.
Sources close to the legal teams of the parties have indicated that all is set for the filing of the addresses today.

The Nine Wise Men and Women
Remarkably, none of the nine-member panel, presided over by Mr Justice William Atuguba, was ever absent during the 46 days of proceedings and prior hearing of interlocutory applications.
The other panel members are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
These men and women, who have been given enormous powers under the 1992 Constitution and other statutes, will take into account all the issues raised in court, study documents filed, adopt laws and arrive at their final judgement.
There are currently more than 407,000 documents at the Supreme Court Registry. They include pink sheets (statement of poll and declaration of results form), affidavits from 4,000 witnesses of the President and the NDC and other documents relevant to the case.
It is important to note that the court has sweeping powers to come up with its own set of rules and guidelines for the future.

Issues for Determination
The issues the court will consider before arriving at its final judgement are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012.
It will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results of the elections.

Nana Akufo-Addo should be declared President
The star witness of the petitioners, Dr Mahamadu Bawumia, led evidence, while six additional witnesses testified in the form of sworn affidavits, to justify the annulment of votes.
Dr Bawumia led evidence in each category of the allegations. He sought to justify why Nana Akufo-Addo should be declared President.
Led by lead counsel for the petitioners, Mr Philip Addison, Dr Bawumia said Nana Akufo-Addo won the elections by 59.69 per cent, while President John Dramani Mahama polled 39.1 per cent.
Thus, per the calculations of the petitioners, votes in 10,081 polling stations should be annulled due to what they termed “gross and widespread irregularities”.
According to the petitioners, President Mahama benefited from 2,612,788 votes, while the presidential candidate of the New Patriotic Party (NPP), Nana Akufo-Addo, had 1,228,229 votes from the said irregularities.

President Mahama won by 50.70 per cent
On the other hand, the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, testified on behalf of the EC and maintained his declaration of President Mahama as the winner of the polls.
He told the court there was no basis for the court to grant the petitioners their wish.
The General Secretary of the National Democratic Congress (NDC), Mr Johnson Asiedu Nketia, led evidence on behalf of President Mahama and the NDC and also dismissed the claims of the petitioners.
The President and NDC have argued that there is no logical, arithmetical or other basis upon which the petitioners came to the conclusion that the two million plus votes cast in the December 7 and 8, 2012 presidential election should be annulled.
They have also maintained that the elections were generally free, fair and transparent.

Issues tackled so far
Hearing and disposal of preliminary issues took place between January 10, 2013 and April 2, 2013.
Issues that were determined during the period included the NDC’s application to join the petition, the court’s permission to the petitioners to amend their petition, the grant of the respondents’ application for the petitioners to furnish them with further and better particulars and the refusal of the court to allow the petitioners to inspect and make photocopies of collation forms for 275 constituencies.
Other issues disposed of by the court during the period also comprised the blocking of 327 persons from joining the petition to support President Mahama, filing and amendment of pleadings by the parties and the court’s subsequent setting out of two issues for determination, among many other issues.
In all the court disposed of more than 21 applications after 10 days of sitting.
With all interlocutory issues resolved, the hearing of the substantive petition ended exactly three months from the day it began. It began on April 17, 2013 and ended on July 17, 2013.
Another significant observation was that the petitioners and the EC, who are the main actors in the petition, took only two days to lead their witnesses in evidence, but their witnesses were each subjected to 13 and 14 days of cross-examination respectively.

July 30, 2013 fixed for filing of addresses simultaneously
As per the rules, the court, on July 17, 2013, gave lawyers in the case up to July 30, 2013 to file their addresses simultaneously.
The court will resume sitting tomorrow (July 31, 2013) to iron out issues that might arise and finally give a date for its judgement.
The “Heart Beat” of the Petition are Pink Sheets
The petition, which was filed on December 28, 2012, had initially alleged gross and widespread irregularities at 4,709 polling stations but on January 31, 2013 the petition was amended to request the court to annul votes in 11,916 polling stations.
After careful scrutiny, the petitioners are now relying on 10,081 polling stations to make their case for annulment.
The issue surrounding the actual number of pink sheets filed by the petitioeners was so controversial that the court on May 9, 2013 contracted internaitonal audit firm, KPMG to audit the pink sheets submitted by the petitioners. The firm presented its report on June 24, 2013.


Monday, July 29, 2013

Professor Justice Date-Bah retires with honour

 July 29, 2013 (Page 34)


Prof S. K. Date-BahProf S. K. Date-Bah














HE will be fondly remembered by the bench, the bar, the media and litigants for his eloquence, poise and erudite lead judgements.
Prof. Justice Samuel Kofi Date-Bah, for the last time on the Supreme Court bench, delivered a judgement on the fair distribution of property after the dissolution of marriage.
In a unanimous decision on  Friday, July 26, 2013, the court affirmed its earlier decisions that there must be equal distribution of property between a husband and his wife after a divorce.
Other members of the panel were Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice A. A. Bennin and Mr Justice Joseph B. Akamba.
It was an emotional moment on the premises of the Supreme Court before he delivered the judgement when other members of the bench converged to bid a formal farewell to their long-time colleague, Prof. Justice Date-Bah.
They later took group photographs with him. Other members of staff of the Supreme Court Registry also took memorable photographs with the celebrated judge.
Appointed as a Supreme Court judge in September 2003, Prof Justice Date-Bah is billed to formally retire from the bench on August 26, 2013.
Messages
Expressing appreciation for the support lent him by his colleagues, Prof. Justice Date-Bah said it was "a rare and fruitful privilege to have served on the Supreme Court of Ghana".
For his part, Mr Justice William Atuguba described Prof. Justice Date-Bah as an “illustrious brother” and wished him well in his future endeavours.
"We are happy because it’s our obligation to do honour to our illustrious brother whom I have appropriately nicknamed Lord Halsbury of Ghana.
“Our brother coming to the bench with the usual first -distinction, he has always been a man with first-class achievement,” Mr Justice Atuguba said fondly.
Wishing the retired Supreme Court judge well, a member of the bar, Mrs Margaret Yaa Ntiriwaah Acheampong, stated, “I know you very well and I know the calibre of person you are. You have always been a first-class achiever. We pray that what you have done will go down in history for generations upon generations. Even though you are leaving the Judiciary today, we know you are still going to contribute until the day the Almighty will call you to rest."

Recent Judgements
Three classical judgements recently delivered by the Supreme Court were all presided over by Prof. Justice Date-Bah.
On June 14, 2013, the court directed the international construction firm, Waterville Holdings Limited (BVI), to refund all moneys paid to it by the Ghana government on the premise that it had no valid and constitutional contractual agreement with the government.
Waterville is expected to refund 25 million euros it received from the government following the court’s unanimous judgement that the contract it entered into with the government for stadia construction for CAN 2008 was unconstitutional because it had contravened Article 181 (5) of the 1992 Constitution which requires such contracts to go to Parliament for approval.

International warships
On June 20, 2013, the Supreme Court, with Prof. Justice Date-Bah presiding, barred all lower courts from detaining any international warship on the territorial waters of Ghana.
In giving the order, the court held that the High Court exceeded its jurisdiction when, in October, 2012, it grounded the ARA Libertad, an Argentine warship, from leaving the shores of Ghana.
In a unanimous decision, the court held that it was wrong for the lower court to have detained the vessel in the first place and accordingly restrained the lower courts from making such decisions in future.
It held that such acts were dangerous because they had the tendency of endangering the territorial sovereignty of Ghana and accordingly quashed an October 2 and 11, 2012 order of the High Court which detained the vessel.

Isofoton Order
In another judgement supervised by the renowned judge, the court, on June 21, 2013 ordered the Spanish energy company, Isofoton S.A., to refund the cedi equivalent of $325,472 it received from the government in March 2011.
The court also directed the company to refund all moneys it had so far received from the government on the grounds that the agreements resulting in the payment were unconstitutional and, therefore, null and void.
The suits against Waterville and Isofoton were both filed by a former Attorney-General, Mr Martin Amidu, who had argued that both payments were illegal, null and void, of no legal effect and in breach of Article 181 of the 1992 Constitution which requires such contracts to receive parliamentary assent.

He was a Gem
Most lawyers the Daily Graphic spoke to were full of accolades for Prof Justice Date-Bah, whom they described as a “gem”, “intelligent”, “eloquent”, “thorough”,  “Ghana’s Lord Denning,” among a host of impressive names.

Profile
Prof. Justice Date-Bah, who is the Chairman of the University of Ghana Council, attended Achimota School from 1956 to 1962 and obtained an LL.B (First Class Honours) from the University of Ghana in 1965.
He subsequently qualified as a Barrister at Law Ghana in 1966; obtained an LL.M  from the Yale Law School in 1967 and a Ph.D from the London School of Economics, London University, in 1969.

Work Experience:
• 2008 – February 2013: Justice of the Supreme Court of the Gambia;
• 2003 – to date: Justice of the Supreme Court of Ghana, responsible for many leading judgments;
• Chairman, Ghana Law Reform Commission; Chairman, Council of the University of Ghana, Legon.

Previous Record
• 1984 – 2003: Special Adviser (Legal) at the Commonwealth Secretariat, London, responsible for effective legal advisory and negotiating services to developing member states of the Commonwealth. He played an instrumental role as leader of a multidisciplinary Commonwealth Secretariat team which assisted the first independent Government of Namibia to negotiate a joint-venture agreement with De Beers that has been the bedrock of the Namibian economy since then and several petroleum exploration agreements with international petroleum companies on behalf of the government.
• 1969 – 1984: Taught Contract, Tort, Commercial law and Public International Law during earlier academic career.
Positions held include:

1969 to 1981, Lecturer, Senior Lecturer and then Associate Professor, Faculty of Law, University of Ghana;

1979-1980, Associate Professor of Commercial Law, University of Nairobi;
1980-84, Professor and Head of Department of Private Law, University of Calabar, Nigeria;
He also held visiting academic positions at Lincoln College, Oxford University (1972), Yale Law School (1976) and at the University of Fribourg, Switzerland (1998).
• 1969-1979, Part-time legal practitioner in Accra.
• In the 1970s, Member of the Ghana Law Reform Commission.
• In the 1970s, Representative of the Ghana Government to the United Nations Commission on International Trade Law. He was elected Chairman of the commission in 1978.
• 1996 to date: A member of the International Institute for the Unification of Private Law (UNIDROIT), Rome, Working Group that produced the UNIDROIT Principles of International Commercial Contracts.
Membership of learned societies:
• Since 2000, Fellow of the Ghana Academy of Arts and Sciences; and
• Since 1996, Member of the International Academy of Commercial and Consumer Law.

State to appeal against Ken Agyapong's acquittal

July 26, 2013 (Page 16)

THE state has declared its intention to appeal against the discharge and acquittal of the Member of Parliament (MP) for Assin North, Mr Kennedy Agyapong, of any wrongdoing in an allegation of him pitting Ashantis against Gas and Ewes.
Subsequently, the Circuit Court in Accra, which on July 2, 2013 upheld a submission of no case from Mr Ayikoi Otoo, lawyer for the MP, yesterday, granted the state permission to pursue its appeal.
A Chief State Attorney, Mr Anthony Rexford Wiredu, had filed an application on behalf of the state praying the court to permit the state to file an appeal at the Court of Appeal.
In a terse ruling, the presiding judge, Mr Ebenezer Osei Darko, granted the state permission but gave no reasons for the court’s decision.

Mr Agyapong’s Case for Acquittal
Mr Otoo, a former Attorney-General and Minister of Justice, filed a written submission of no case, which prayed the court to free Mr Agyapong on the grounds that the state had failed to prove two counts of provocation of riot and offensive conduct conducive to breaches of the peace.
But the state holds a different position and argues that the MP must be made to answer the charges.
Coming under the common law authority in Ghana for making submissions of no case, Mr Otoo held the view that the prosecution had not led any evidence to prove an essential element in the alleged offence to warrant a conviction.
According to counsel, the ingredients to prove the offence of provocation of riot must include five or more persons acting together to commit the riot in a public or private place with the persons executing a common purpose to commit violence without lawful authority.
Applying this principle of the law to Mr Agyapong’s case, counsel submitted that a prosecution witness under cross examination informed the court that Mr Agyapong was in custody when some party activists besieged the police station, engaged in rowdysm, vandalism and demanded his release.
According to counsel, it was clear Mr Agyapong was in custody while five or more persons engaged in riots, adding “it is therefore, submitted that the prosecution has woefully failed to prove that the accused person was part of that magical five or more persons.”
Counsel held that it was abundantly clear that Mr Agyapong was not involved and for that reason the charge of provocation of riot was not applicable to his client at all.
On the count of offensive conduct conducive to the breaches of the peace, Mr Ayikoi submitted that the prosecution should have proven that the accused person was in a public place or at a public meeting before he could be charged with having used threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace.

No offence was committed
The evidence in support of the charge against the accused person was that he phoned into a radio programme and made remarks which in the opinion of the prosecution amounted to the breach of the peace.
Disproving that allegation, Mr Otoo in his written submission held that it was admitted during cross examination that Mr Agyapong made the said phone call from his private residence.
That broadcast, counsel submitted, was of no moment to the commission of any offence since what determined the offence “is the place where the words were uttered.”

Chronology of Events
Mr Agyapong was said to have committed the offence on April 13, 2013 when he called into a radio programme and directed Ashantis to attack Gas and Ewes.
The state on July 6, 2012, dropped first degree felony charges against  Mr Agyapong exactly 48 hours after the Supreme Court threw out its request to quash proceedings against the MP, who was standing trial at the Fast Track High Court for allegedly pitting Ashantis against Gas and Ewes.
Initially charged with three counts of treason felony, attempted genocide and engaging in terrorism act for allegedly inciting Ashantis against Ewes and Gas, as well as declaring war, the MP is now faced with two counts of provocation of riot contrary to section 200 and section 196 (1) (a) of the Criminal Offences Act, 1960, (Act 29) and another count of offensive conduct conducive to the breaches of the peace contrary to section 207 of the Criminal Offences Act, 1960 (Act 29).

Court “trotting”
The MP has since April 17, 2012 been trundled between the Adjabeng District Magistrate Court where the magistrate declined jurisdiction; the Human Rights Court which granted him bail; the Fast Track High Court, which was billed to commence his trial and the Supreme Court where the prosecution had prayed it to quash proceedings at the Fast Track High Court.
He was first put before the Circuit Court presided over by Mr Ebenezer Osei Darko on July 19, 2012.
 The prosecution called three witnesses.

Amidu files for review of Isofoton Waterville judgements

July 23, 2013 (Page 20)

HAVING succeeded in prevailing upon the Supreme Court to order two foreign companies to refund more than GH¢60 million to the state, a former Attorney-General and Minister of Justice, Mr Martin A. B. K. Amidu, is still not happy with aspects of the court’s decision.
Consequently, he wants the Supreme Court to review aspects of its decision which declined to order a businessman, Mr Alfred Woyome, to refund GH¢51.2 million he received from the government in the form of judgement debt.
The applicant is also urging the court to reconsider its decision not to hold the Attorney-General and the country representative of Isofoton S.A., an energy firm which was ordered to refund $325,472 to the state, liable.
According to the Supreme Court, which gave its judgements on two separate occasions, the government’s contract with the construction firm, Waterville Holdings Limited (BVI), and the Spanish energy firm, Isofoton S. A., were unconstitutional and, therefore, null and void.

Background to the Case
The Supreme Court, on June 14, 2013, directed Waterville Holdings refund all moneys paid to it by the Ghana government on the premise that it had no valid and constitutional contractual agreement with the government.
Waterville is expected to refund 25 million euros it received from the government following the court’s unanimous judgement that the said contract it entered into with the government for stadia construction for CAN 2008 was unconstitutional because it had contravened Article 181 (5) of the 1992 Constitution which required such contracts to go to Parliament for approval.
In the other judgement, the court, on June 21, 2013, ordered Isofoton S.A. to refund the cedi equivalent of $325,472 it received from the government in March 2011.
The court also directed the company to refund all moneys it had so far received from the government on the grounds that the agreements resulting in the payments were unconstitutional and, therefore, null and void
The two suits were filed by Mr Amidu, who had argued that both payments were illegal, null and void and of no legal effect.
He had prayed the court to order Mr Woyome to refund moneys he had received as a result of the void contract the government had entered into with Waterville.
The court declined jurisdiction over the issue, with the reason that the Attorney-General was currently pursuing the matter at the Commercial Court to retrieve the GH¢51.2 million paid to Mr Woyome.
With respect to the suit against Isofoton S. A., Mr Amidu had joined the local agent of Isofoton, Mr Anane Agyei-Forson, and prayed the court to jointly order him to refund all moneys the company had received, but the court held a different view and exonerated Mr Agyei-Forson.
The court freed Agyei-Forson from any wrongdoing on the ground that Mr Amidu had failed to show a cause of action against him.
The court also refused to hold the Attorney-General liable, but Mr Amidu said the exclusion of Mr Woyome, Mr Agyei-Forson and the Attorney-General could amount to a miscarriage of justice.

The Review
According to the applicant, who filed the applications for review on July 12 and July 19, 2013, respectively, he had read the two judgements delivered by the Supreme Court very carefully, with other Ghanaians of like thinking, and had come to the conclusion that some aspects contained “exceptional circumstances that have resulted in what we perceive may constitute miscarriage of justice”.
Hearing of both applications has been slated for October 15, 2013.

Contract Null and Void
In the Waterville judgement, the court declared as null and void and of no operative effect a contract titled “Contract for the Rehabilitation (Design, Construction, Fixtures, Fittings and Equipment) of a 40,000 Seating Capacity Baba Yara Sports Stadium in Kumasi, Ghana” entered into on April 26, 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town, Tortola, British Virgin Islands.
The court agreed with the plaintiff, Mr Amidu, that the contract was an international business or economic transaction under Article 181(5) of the 1992 Constitution that could only have become operative and binding on the Government of Ghana after it had been laid before and approved by Parliament.
It also held that the two separate but similar agreements, both dated April 26, 2006, were in contravention of Article 181 (5) of the 1992 Constitution and further declared that a bridge financing agreement arising between the Republic of Ghana and Waterville Holding (BVI) Limited, pursuant to the two agreements between the two bodies, was a loan transaction within the meaning of Article 181 (3), (4) and (6) of the 1992 Constitution whose terms and conditions had to be further laid before Parliament and approved by a resolution of Parliament to be operative and binding on the Republic of Ghana.
Isofoton, which is involved in designing, manufacturing and supplying solar energy products, was expected to engage on a project for agricultural irrigation and rural electrification based on solar technologies in 2006 but the then government abrogated the contract and re-awarded it to another Spanish firm.
Isofoton was demanding judgement debt of $1.3 million, for which the government had started paying in instalment, but the Supreme Court, on February 8, 2013, put a hold on further payment until the final determination of the suit brought against it by Mr Amidu.
The Supreme Court, in its judgement, held that the lower court hearing an action instituted against the government by Isofoton S.A. on the abrogation of the contract had no locus to continue hearing the case because the court was of the view that it did not have jurisdiction.

Quick Read
• The court was full of praise for Mr Amidu for his public spiritedness which fuelled the meticulous and industrious presentation of the cases which resulted in the court’s order for a refund.
• It, however, chastised civil society for failing to lend support to Mr Amidu who fought the legal battle alone.

47 Days of pink sheets palaver - Going to court not easy - Atuguba tells Afari-Gyan

July 18, 2013 (Lead Story)

HEARING of the election petition drew to a close at the Supreme Court yesterday after seven months of a legal marathon, with the presiding judge exclaiming, “At long last the battle of evidence has ended.”
Mr Justice William Atuguba made the remark when lawyers in the case announced they had no further questions for the Returning Officer of the December 2012 presidential election, Dr Kwadwo Afari-Gyan.
Dr Afari-Gyan, who had been discharged by the court after he had been subjected to 13 days of cross-examination from lead counsel for the petitioners, Mr Philip Addison, was walking towards his seat when Mr Justice Atuguba said, “I hope you’ve seen that ‘go to court, go to court’ is not easy.”
The comments drew a huge applause from the audience who had, for the past 46 sitting days, heard legal jargons, seen courtroom wranglings, listened to fierce legal arguments and occasional humour and endured long hours of sitting.
It would be recalled that on December 9, 2012, some leading members of the NPP appealed to Dr Afari-Gyan to suspend the declaration of the results because the party had discovered some irregularities, but the EC Chairman dismissed their claim and asked them to go to court if they so wished.
It was all joy, smiles, hugs and cheers among lawyers, party big wigs and members of the public who had been given accreditation to witness proceedings when it finally emerged that the hearing of the petition had ended.
Remarkably, the hearing of the substantive petition ended exactly three months after it began. It began on April 17, 2013 and ended on July 17, 2013.
Another significant observation is that the petitioners and the Electoral Commission (EC), who are the main actors in the petition, took only two days to lead their witnesses in evidence, but their witnesses were subjected to 13 and 14 days of cross-examination, respectively.
The star witness of the petitioners, Dr Mahamadu Bawumia, took two days to give evidence on the irregularities recorded during the presidential poll but was subjected to 13 days of cross-examination by counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata.
Another witness who underwent gruelling cross-examination from Mr Addison for 14 days was Dr Afari-Gyan.
The General Secretary of the NDC, Mr Johnson Asiedu Nketia, testified on behalf of President Mahama and the NDC.
Following the court’s April 2, 2013 order which gave dispensation to parties in the case to give only oral evidence, six other witnesses gave their testimonies in the form of written sworn affidavits on behalf of the petitioners to back claims of irregularities, while more than 4,000 witnesses gave affidavit evidence to support the claim of the President and the NDC that the elections were won freely and fairly.
Prior to the hearing, the court had to deal with more than 21 interlocutory applications from January 10, 2013 to April 2, 2013 when it set out two issues for trial.

Issues for Determination
The issues the court will consider before arriving at its final judgement are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the presidential election held on December 7 and 8, 2012.
It will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results of the elections.
Some of the irregularities, malpractices, omissions and violations complained of and due to be determined by the court are allegations of persons being allowed to vote without biometric verification, some presiding officers and/or their assistants not signing declaration forms (pink sheets), total number of votes cast exceeding total number of registered voters, total number of ballot papers issued and pink sheets with duplicated serial numbers.

July 30, 2013 fixed for filing of addresses
As per the rules of court, the court gave lawyers in the case up to July 30, 2013 to file their addresses simultaneously.
The court will resume sitting on July 31, 2013 to iron out issues that may arise and finally give a date for its judgement on whether or not to annul 3,916,385 votes due to statutory violations, omissions, malpractices and irregularities recorded during the polls.
According to the petitioners, President Mahama benefited from 2,612,788 votes, while the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, had 1,228,229 votes from the said irregularities.
The petitioners claim Nana Akufo-Addo won the election by 59.69 per cent, while President Mahama polled 39.1 per cent.

Categories of irregularities according to the petitioners
Total over-voting: 742,492. President Mahama had 502,013 votes, while Nana Akufo-Addo got 225,155 votes.
No Biometric Verification: Total votes – 810,827, with 558,236 votes going to President Mahama and Nana Akufo-Addo annexing 234,161.
No signatures of Presiding Officers: Total votes – 659,135 votes. Out of the number, President Mahama got 447,655, while Nana Akufo-Addo received 197,628.
Duplicate Serial Numbers: Total figure – 3,499,308 votes. President Mahama benefitted from 2,612,788 votes, while Nana Akufo-Addo had 1,228,229 .
But President Mahama, the EC and the NDC have denied each of the claims and argued that the elections were held on a clean slate, with President Mahama winning transparently and fairly.

Lawyers thank the court
The first person to thank the court for its indulgence was Mr Addison.
He said it had been a “hectic” period and expressed joy that the matter had drawn to a close.
Lead lawyers for President Mahama, the EC and the NDC, Mr Tony Lithur, Mr James Quashie-Idun and Mr Tsikata, respectively, shared Mr Addison’s sentiments.

“Heart Beat” of the petition are Pink Sheets
 Pink sheets (statement of poll and declaration of results for the office of president) were at the heart of the petition because the petitioners are alleging that 10,081 pink sheets were not fit to be added to the tally of polls as they were fraught with gross and widespread irregularities.
Heavy reference was made to the pink sheets during the hearing and, in fact, hearing ended with 17 original pink sheets submitted by the EC being subjected to close scrutiny by Mr Addison, who discredited them as being recently originated, not authentic and fraught with many discrepancies.
The EC had attempted to disprove claims by the petitioners that there were triplicate and quadruplicate serial numbers on some pink sheets.
The issue on duplicate serial numbers on some pink sheets had not been controverted by the EC.
The petition, which was filed on December 28, 2012, had initially alleged gross and widespread irregularities at 4,709 polling stations but on January 31, 2013 the petitioners amended the petition to request the court to annul votes in 11,916 polling stations.
After careful scrutiny, the petitioners are now relying on 10,081 polling stations to make their case for annulment.
The international audit firm, KPMG, was contracted by the Supreme Court on May 9, 2013 to conduct an audit into the pink sheets submitted by the petitioners and subsequently presented its report on June 24, 2013.

Background to the Petition
Nana Akufo-Addo; his running mate, Dr Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are the petitioners in the case.
Three days after the filing of the petition, the NDC applied to join, and after a fierce legal battle between lawyers for the NDC and the petitioners, who saw the move by the NDC as a ploy to delay the petition, the court, in a 6-3 majority decision, on January 22, 2013 allowed the NDC to join as the third respondent.

327 Booted out
On March 14, 2013, 327 people who had applied to join the petition to maintain the status quo were thrown out. The court held that their presence was neither necessary nor convenient.

Live Coverage
The Supreme Court, on April 16, 2013, broke the convention of cameras not being allowed into courtrooms by endorsing the live telecast of its proceedings via television and radio to allow the public to listen to and watch proceedings live.
Article 125 (1) of the 1992 Constitution states: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary, which shall be independent and subject only to this Constitution.”
Article 125 (2) continues: “Citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and assessor systems.”
These underpinnings and the powers of the highest court of the land, coupled with the permission of the Chief Justice, Mrs Justice Georgina Wood, made it possible for Ghanaians to have firsthand knowledge of this historical presidential petition.
Interestingly, Ghanaians were so engrossed in the hearing that hardly does any interaction end without the introduction of one legal jargon or another.

Voluminous Documents Filed
Volumes and volumes of documents were field at the Supreme Court Registry by parties in the case.
There are currently more than 407,000 different documents in the possession of the registry.
They include pink sheets from the 11,842 polling stations in contention (the petitioners are now relying on 10, 081 polling stations), 7,200 sworn affidavits from witnesses for the President and the NDC, affidavit evidence from the EC and other documents relevant in assisting the Supreme Court to arrive at its decision.
Several pleadings and counter pleadings were also filed.
The documents are so voluminous that the court was, at the beginning of the hearing of the substantive petition, inundated with heaps of boxes of documents which took days to be stamped, filed and served on parties in the case.
 At a point in time court clerks from other courts had to step in to assist their colleagues at the Supreme Court Registry to file affidavits sworn to by witnesses for the NDC and President Mahama.

Legal Brains Merge
Perhaps this petition can claim credit for being the only case that has managed to pull the highest number of legal brains together on a daily basis.
Aside from the team of lawyers who are representing the parties in the case, it is common to find lawyers filling the gallery of the Supreme Court simply to observe proceedings on a daily basis.
The petitioners, for instance, are being represented by 12 lawyers, namely, Mr Addison; a former Deputy Attorney-General and Minister of Justice, Ms Gloria Akuffo; Mr Stephen Dapaah-Addo, Mr Frank Davies, Mr Alex Quaynor, Mr Akoto Ampaw, Nana Asante Bediatuo, Mr Kwame Akuffo, Mr Kwaku Asirifi, Mr Godfred Yeboah Dame, Mr Egbert Faibille and Professor Ken Attafuah.
President Mahama is being represented by Mr Tony Lithur and Dr Abdul Baasit Aziz-Bamba; while the NDC’s interest is being protected by Mr Tsatsu Tsikata and Mr Samuel Codjoe.
The EC, on the other hand, is being represented by Mr James Quashie-Idun, Mr Stanley Amarteyfio, Ms Freda Bruce-Appiah and Ms Stephannie Amarteyfio.
Other members of the panel are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.


Sunday, July 28, 2013

Petitioners backdown on vote padding in Ledzokuku

 July 17, 2013 (Page 55)

LEAD counsel for the petitioners in the ongoing presidential election petition yesterday withdrew allegations of vote padding in favour of President John Dramani Mahama in the Ledzokuku Constituency in the Greater Accra Region.
Mr Philip Addison had, on Monday, July 15, 2013, confronted the Returning Officer of the December 2012 presidential election, Dr Kwadwo Afari-Gyan, with his clients’ version of collated results from the Ledzokuku Constituency which showed vote padding in favour of President Mahama.
According to the petitioners, the President polled 53,710 votes, instead of the 67,710 declared by the Electoral Commission (EC) in his favour, while the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, polled 40,662 votes, instead of the 30,605 declared by the EC.
Those discrepancies, according to counsel, resulted in President Mahama gaining 14,000 additional votes, while Nana Akufo-Addo lost 10,057 votes. But the respondents in the case opposed that line of cross-examination on the grounds that the issues had not been pleaded, as well as the fact that they were prejudicial to their case.
However, Mr Addison withdrew those figures during the court’s sitting in Accra yesterday on the grounds that his attention had been drawn to the fact that the figures he had churned out on Monday were not correct.
His withdrawal came after the court had, in a 7-2 majority ruling, allowed the question on the Ledzokuku Constituency put to Dr Afari-Gyan to stand. The ruling also gave the petitioners the chance to furnish Dr Afari-Gyan with lists of nine constituencies which had some of their pink sheets missing.
One of the judges, Ms Justice Rose C. Owusu, questioned counsel why he did not notify the court on the withdrawal until after arguments had been made and a ruling given on the issue.
Counsel explained that he could not do that earlier because the respondents were on their feet raising objections to his question on the Ledzokuku Constituency.
But one of the lawyers for President Mahama, Dr Abdul Aziz Basit Bamba, did not take kindly to the withdrawal and sought  permission from the court to raise issues with the withdrawal.
Lead counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, who had earlier accused Mr Addison of deliberately churning out false figures, also attempted to make an interjection, but Mr Justice William Atuguba stopped both of them.
Reminding Mr Tsikata that Mr Addison had conceded to his (Mr Tsikata’s) assertion that the figures from the Ledzokuku Constituency were wrong, Mr Justice Atuguba told the respondents that Mr Addison should rather be commended for withdrawing the figures.

Arguments on Ledzokuku
Prior to the withdrawal of the figures, Mr Tsikata had referred to the record of proceedings on May 14 and May 15, 2013 which quoted the star witness of the petitioners, Dr Mahamadu Bawumia, as saying that the petitioners were only relying on allegations of irregularities and statutory violations in the December 7 and 8, 2012 presidential election.
Counsel had argued that the witness had, in his testimony, stated that the allegations of padding had been abandoned and also added that Mr Addison’s allegations with respect to the Ledzokuku Constituency were “patently false”.
Mr Addison responded that he was conducting his cross-examination and advised Mr Tsikata to raise those issues later.
Mr Tsikata, however, stood his ground and insisted that Mr Addison could not put false issues to Dr Afari-Gyan, but Mrs Justice Sophia Adinyira advised him to use the word “incorrect” instead of “false”.
Mr Tsikata obliged and insisted that what Mr Addison’s action on the Ledzokuku Constituency figures was “not professionally correct”.
At that point, Ms Justice Owusu asked Mr Tsikata, “Who determines what is correct and not correct?”
Answering that question, Mr Tsikata said, “What is correct is much public record,” adding, “The numbers are frankly out of nowhere — that is professionally unacceptable.”
He also stated that the figures on the EC’s website were different from the figures churned out by Mr Addison.
Intervening, Mr Justice Atuguba advised Mr Tsikata to draw his colleague’s attention without tagging him in a certain perspective.

Argument Continues
Lead counsel for the EC, Mr James Quashie-Idun, also opposed the line of cross-examination with respect to the Ledzokuku figures and also held that Dr Bawumia had told the court that the issue on vote padding was not part of the petitioners’ case.
He further argued that the petitioners had not pleaded those issues in their original pleadings.
According to Mr Quashie-Idun, the question was different from the pleadings of the petitioners who had said they would no longer rely on any such discrepancy.
Continuing with his argument, Mr Addison told the court that Dr Bawumia did not have the full complement of the pink sheets from some constituencies but that did not prevent the petitioners from confronting the EC, which had the full complement of documents and also had answers to issues on the elections.
According to counsel, the petitioners were challenging the legitimacy of President Mahama which raised questions on the collation of results.
Counsel held that the objection from the respondents must not be encouraged by the court and maintained that Dr Afari-Gyan was capable of answering all the questions put to him by the petitioners.
Mr Addison held that the issue of vote padding in favour of President Mahama was part of the pleadings of the petitioners and also submitted that the essence of his cross-examination was to touch on the credibility of the witness.
He submitted that the issues related to constituency results declared by Dr Afari-Gyan which had been found to be in accordance with pink sheets.
He said the petitioners were relying solely on pink sheets, but Mr Justice Paul Baffoe-Bonnie reminded counsel that his side could not go outside what had been pleaded in court.
Mr Addison then informed the court that paragraph 24 of the amended petition had named particular constituencies where complaints of irregularities were made and wondered why the respondents were objecting to “these simple, simple questions”.
The court, after considering the arguments from the parties, returned with the 7-2 ruling and explained that the two dissenting judges had done so because the further and better particulars provided by the petitioners with respect to padding were restricted to three polling stations.
Mr Addison then withdrew the allegations on the figures from the Ledzokuku Constituency, but the court’s ruling gave his side the room to bring out a list for nine constituencies whose pink sheets were missing.
Dr Afari-Gyan was made to read out the nine constituencies with missing pink sheets to the court.
They were Ledzokuku, Techiman North, Yilo Krobo, Berekum West, Upper West Akim, Mpohor, Yendi, Ketu North and Oforikrom.
Asked if he had seen the list, Dr Afari-Gyan said he saw the list “this morning”, to which Mr Quashie-Idun explained that his side received an e-mail on the list at 10.18 p.m., saw it at midnight and subsequently forwarded it to his clients.
According to counsel, there were no exhibit numbers on the said missing pink sheets as listed.
Mr Justice Jones Dotse urged Mr Addison to allow Dr Afari-Gyan to go through the list, but Mr Addison said the EC had ample time to go through the constituencies because the petitioners had put them in the picture from the scratch.

Analysis on the List from the Nine Constituencies
Mr Addison took Dr Afari-Gyan through each of the nine constituencies and told the witness that total valid votes cast in each of those constituencies were exceeded by the tally of pink sheets from those constituencies.
In all, it emerged that the number of valid votes collated on pink sheets was exceeded by 18,593 votes, but the witness denied each of the allegations.
The court eventually did not allow the list on the said nine constituencies to be tendered in evidence after it had upheld an objection from the respondents.
Mr Quashie-Idun said the alleged discrepancies in the total votes declared could be tackled by the petitioners in their address, while Mr Tsikata was of the view that “a brand new case seem to be emerging from questions being posed”.

List of 451 deleted pink sheets
The list of 451 deleted pink sheets from the list of 1,219 unique pink sheets from 1,545 pink sheets could not be tendered because the court said there was no need, so long as those pink sheets had been identified in the KPMG report.

Sum Up of Irregularities
 Mr Addison summed up the statutory violations, omissions, malpractices and irregularities and told the witness that 3,916,385 total votes were affected by the said violations.
According to counsel, President Mahama benefited from 2,612,788 votes, while Nana Akufo-Addo had 1,228,229 votes from the said irregularities.
Responding to that suggestion, Dr Afari-Gyan said, “My Lords, I have no basis of knowing that.”
Counsel told the witness that President Mahama benefited largely from the violations recorded but the witness denied the claim and said he announced the results of the elections as presented by officers in the field.
He said he had no basis to change the results as announced, adding, “I do not have figures other than those announced.”
The irregularities recorded in the election, according to the petitioners, pertained to over-voting, persons voting without undergoing biometric verification, no signatures of presiding officers and duplicate serial numbers on the same pink sheets.

Room Mate
The witness confirmed that Nana Akufo-Addo was his roommate at the university and also told the court that he registered as a voter at the Du Bois Centre.
He also told the court that he was 66 at the time of registering but had now turned 68.

Editors Forum and Dr Afari-Gyan’s voice played in court
Asked if he had addressed the Editors’ Forum of the Ghana Journalists Association (GJA) in the run-up to the elections, the witness answered in the affirmative,  as a result of which his voice was played in court.
His voice on the tape was basically a confirmation that he had, indeed, declared that no voter should be allowed to vote without undergoing biometric verification.
He also gave a concession to persons who had no fingerprints and or persons whose fingerprints could not be captured by the biometric machine during registration.
Those persons fell under the category face only (FOs).
It also emerged during the playback that in the event votes in ballot boxes exceeded the number of persons verified to vote, the results should be cancelled automatically.
He also said in the event that the results at that particular polling station could mathematically affect the outcome of the entire votes cast, there would be a re-run.
Mr Addison announced that he had ended his cross-examination, but he had to change his mind when Dr Afari-Gyan brought out originals of 17 pink sheets to disprove claims that some pink sheets had triplicate and quadruplicate serial numbers.
After a back and forth interaction between the bench and the lawyers in the case, the bench gave Mr Addison the chance to cross-examine Dr Afari-Gyan on the said pink sheets.
Meanwhile, the pink sheets have been marked and tendered in evidence as exhibits.

A Summary
Lead counsel for the petitioners, Mr Philip Addison, categorised the various forms of irregularities at 10,081 polling stations and how they inured to the benefit of President Mahama and Nana Akufo-Addo as follows:
Total Over-voting: 742,492. President Mahama had 502,013 votes, while Nana Akufo-Addo got 225,155 votes.
No Biometric Verification: Total votes, 810,827, with 558,236 going to President Mahama and Nana Akufo-Addo annexing 234,161.
No Signatures of Presiding Officers: Total votes, 659,135, out of which President Mahama got 447,655, while Nana Akufo-Addo received 197,628.
Duplicate Serial Numbers: Total figure – 3,499,308 votes, with President Mahama benefitting from 2,612,788 votes, while Nana Akufo-Addo had 1,228,229.
The respective answers from Dr Afari-Gyan to the four categories of irregularities were, “If there is an over-vote, we cannot prove who got it. I can’t answer the question.” “I cannot answer the question.” “My Lords, I have no basis of knowing that” and “I don’t know that for a fact.”

Petitioners confront Afari-Gyan with over-declaration

 July 16, 2013 (Page 55)

DRAMA unfolded at the Supreme Court on July 15, 2013 when the Chairman of the Electoral Commission (EC) and Returning Officer of the December 2012 presidential election, Dr Kwadwo Afari-Gyan, was confronted with collated results of the petitioners from the Ledzokuku Constituency in the Greater Accra Region which showed that there was vote padding in favour of President John Dramani Mahama.
According to the petitioners in the 2012 presidential election petition, the President polled 53,710 votes, not the 67,710 declared by the EC in his favour.
Lead counsel for the petitioners, Mr Philip Addison, in his further cross-examination of Dr Afari Gyan, told the court that the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, polled 40,662 votes, not the 30,605 declared in his name by the EC.
Those discrepancies, according to counsel, resulted in President Mahama gaining 14,000 additional votes, while Nana Akufo-Addo lost 10,057 votes.
However, the respondents in the case opposed that line of cross-examination on the grounds that it had not been pleaded and would be prejudicial to their case.
Displeased with that line of cross-examination, the lead counsel for the EC, Mr James Quashie-Idun, opposed the question on the ground that the petitioners had not pleaded those issues in their original pleadings.
According to Mr Quashie-Idun, the question was different from the pleadings of the petitioners who had said they were no longer relying on that discrepancy.

I am not bound by pleadings in cross-examination
Responding to the objection from Mr Quashie-Idun, Mr Addison said he was not bound by pleadings in the cross-examination of the returning officer of the December 7 and 8, 2012 presidential poll.
At that moment, the President of the nine-member panel asked Mr Addison whether pleadings were thrown overboard in cross-examination, to which Mr Addison said, “The question goes to touch on the credibility of the witness, as well as forms part of the very foundation of the petition.”
Mr Quashie-Idun shot to his feet again and said the EC admitted one transpositional error and re-echoed his argument that the petitioners had said they were not relying on discrepancies in votes counted and subsequently announced.

This is prejudicial
Lead counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, objected to the issue on the Ledzokuku Constituency results and said he did not continue the cross-examination of the star witness for the petitioners, Dr Mahamadu Bawumia, on those issues because Dr Bawumia had said the petitioners were not relying on the allegation of vote padding.
“We will be severely prejudiced because we have completed our cross-examination,” Mr Tsikata said, but Mr Addison told the court that Dr Bawumia was not the returning officer of the presidential election.
Counsel further submitted that those matters were raised in paragraphs 20 and 21 of Dr Bawumia’s affidavit evidence.

Question Stood Down
The question on the alleged vote padding in favour of President Mahama was stood down to enable the court to go through the records of the court on the issue.
Dr Afari-Gyan also told the court that he had verified the issue on alleged triplicate and quadruplicate serial numbers on pink sheets and is expected to give his findings on it to the court later.
Mr Addison had said Dr Afari-Gyan could leave that and state his findings during re-examination, but Ms Justice Rose C. Owusu held a different view.

List of 547 pink sheets
Counsel for the EC, Mr Quashie-Idun, informed the court that he had received a list and set of 547 pink sheets from the petitioners, adding that some of the pink sheets were blank.
Counsel for the President, Dr Abdul Aziz Basit Bamba, said he also received a list for 547 pink sheets but the list was not accompanied by pink sheets.
He said his team had a chance to look at the 547 pink sheets and observed that some of the polling station names and codes were not clear.
Nonetheless, counsel indicated that the petitioners could proceed with their cross-examination of Dr Afari-Gyan.

There should have been deletions
Counsel for the NDC, Mr Tsikata, said although his side received a list for the 547 pink sheets, a random check of the pink sheets submitted to the EC revealed that the list did not correspond with the pink sheets.
According to counsel, the petitioners must endeavour to delete the names of polling stations which they claimed were not captured in the registrar's set but in the President of the court's set because his side had issues with some of them.

We had some challenges
Mr Addison told the court that his team could not supply counsel for the President and the NDC with the 547 pink sheets because some challenges were encountered during printing.
He explained that 850 out of the 1,545 pink sheets which were excluded in the KPMG report had polling station codes.
Counsel explained that pink sheets for those 850 polling stations were not given because their codes could be checked.
He said 547 pink sheets were ineligible and for that reason if the respondents were able to demonstrate which pink sheets in the registrar's set were present and for which petitioners held a different view, the petitioners would delete them.

Eight pairs of polling stations with same codes
Mr Addison queried Dr Afari-Gyan if he had verified if a list of eight pairs of polling stations with same codes had been used for special voting, to which the witness said he could not confirm that.
Mr Addison then suggested to the witness that none of the 16 polling stations had been used for special voting as he (witness) had stated in court.
Counsel then told the witness which centres had been used for the various towns where special voting took place.
The witness, in response, said he did not say special voting took place at the various polling stations listed by counsel, and in an answer to areas counsel cited as being places where special voting took place, Dr Afari-Gyan said, "It could well have been."
Asked if the results for the eight pairs of polling stations with the same serial numbers went into the declaration of results for the office of President, the witness answered in the affirmative.

Voters’ Register, Anglican Primary School, Mampong
Counsel for the petitioners brought an extract from the Anglican Primary School Polling Station register and asked Dr Afari-Gyan to identify the names on pages five and six of the register and compare them with the full register handed to him by Mr Addison.
The name on page five read, Adwoa Gyamfua, aged 47, while the name on page six read Afua Agonno, 75.
The issue in the register had to basically do with double registration by some voters.
Answering questions on the two persons, Dr Afari-Gyan said, “As far as the eye can see, the faces are the same,” but explained that it was only when the fingerprints were checked that one could tell if they were the same or not.
Dr Afari-Gyan also told the court that the register for the Anglican Primary School Polling Station, which the petitioners had brought, had 1,074 registered voters, just as the EC’s register, but explained that the arrangement of the names was different.
It also emerged that the EC’s register was dated July 9, 2013, while the petitioners’ register was dated November 21, 2012.

I do not know PDF
Mr Addison told the court that the EC gave the petitioners a copy of the register for that polling station in PDF format which he said could not be altered, but Dr Afari-Gyan told the court in an answer to a question from Ms Justice Owusu that he did not know what a PDF format was.
Nonetheless, Dr Afari-Gyan conceded that soft copies of EC’s documents were given to the political parties in a format which could not be altered.
Counsel for the President and the NDC, who initially opposed the tendering of the two registers, later changed their position and said they would let it go in for what it was worth.

List for 1,545 polling stations excluded in report
Following from the court’s permission to the petitioners to compile a list of the 1,545 polling stations excluded in the final analysis of the KPMG report due to either ineligible polling station name, code and/or exhibit number, Dr Afari-Gyan was cross-examined on lists compiled from that number.
Out of the list of 1,545 polling stations excluded in the final analysis, it emerged that 1,219 were unique, while the names of 850 polling stations could be identified by their codes.
Counsel also suggested to the witness that 547 out of the remaining polling stations could be identified by names but the witness said the EC had identified 15 additional polling stations with clear names.
A list of 1,540 polling stations left out in the KPMG final analysis was consequently tendered in evidence as an exhibit without objection from the respondents.
The EC’s list of 1,234 polling stations which included the identified 15 polling stations was also tendered in evidence without objection from the parties in the case.
However, the tendering of the list of 833 polling stations as being polling stations identified by the petitioners as being unique in the president of the panel’s set and not captured in the registrar’s set had to be deferred to enable Dr Afari-Gyan to cross-check.
The line of questioning and comments from the bench clearly indicated that the court had accepted the list because it was captured in the KPMG report, but Dr Afari-Gyan insisted he needed to cross-check to find out their uniqueness.

Recommendations for the Nigerian presidential election
Mr Addison brought out recommendations made by Dr Afari-Gyan, who had led a five-member delegation to Nigeria to make recommendations for Nigeria’s 2011 presidential election, which were presented in a report in January 2010.
Counsel read out the content of the said recommendations which included modalities to be instituted by the Nigerian government to guarantee a credible, free, transparent and fair election.
Mr Addison had sought to put it to Dr Afari-Gyan that he had done exactly the opposite of what he (Dr Afari-Gyan) had recommended for Nigeria, but Dr Afari-Gyan denied the claims and said the team had in effect recommended what pertained in Ghana to Nigeria.
Writer’s email: mabel.baneseh@graphic.com.gh.

Pink sheets with same serial numbers pop up at Supreme Court

July 13, 2013 (Page 16)

PINK sheets with triplicate and quadruplicate serial numbers and different polling stations with same codes were the main highlights of proceedings at the Supreme Court hearing of the presidential election petition in Accra on July 12, 2013.
There was an instance when four pink sheets from the Onyai Shi, Katamanso Presbyterian Primary A, Assembly of God Church Ataa Sackey B and Finger of God Church polling stations, all in the Greater Accra Region, had the same serial number 0025200.
Another set of pink sheets from the Michelle Camp JHS B, Methodist Church Zenu B, Garrison Primary School, Michelle Camp and St. John Bosco Catholic Polling stations, all in the Greater Accra Region, also had 0025194 written on them as their serial number.
Three lists, all containing three sets of pink sheets with the same serial numbers, were also tendered in evidence, alongside the two lists each inclosing four pink sheets with the same serial number.

List of 1,823 pairs of pink sheets with same serial numbers

Lawyers for the petitioners challenging the declaration of President John Dramani Mahama as the winner of the December 7 and 8, 2012 presidential poll also tendered in evidence a list of 1,823 pairs of pink sheets with same serial numbers.
The entire list of pink sheets with triplicate or quadruplicate serial numbers was tendered in evidence as exhibits through the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, who is currently being cross-examined by lead counsel for the petitioners, Mr Philip Addison.
Prior to the tendering of the lists, Mr Quashie-Idun had told the court that he had studied the lists and realised there were 10 of them that did not have duplicates but stated that he would not object to the tendering of the lists because he would deliver an address on them later.
On his part, counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, said he also observed there were some of the lists that had no triplications, adding that it was also observed the pairings were not correct.
Nonetheless, counsel said he would not object to the tendering of the list because his side would eventually point out the errors in the lists.
He said the EC did not print the pink sheets and further held that there were no indications of triplications, adding, “We are quite content to go with the list.”
The witness looked through each of the list of pink sheets and confirmed they had either triplicate or quadruplicate serial numbers but sought permission from the court to cross-check those pink sheets with the records of the EC and the printers of those pink sheets.

Mr Addison disagrees
Responding to Dr Afari-Gyan’s request, Mr Addison disagreed with him on the grounds that the pink sheets were already part of the court’s records.
According to counsel, his side was seeking to lay the foundation for duplicate and triplicate pink sheets with same serial numbers which had been captured in the KPMG audit report.
Counsel argued that his side had not had the benefit of seeing the original pink sheets, but Dr Afari-Gyan said, “My Lords, KPMG does not have original copies.”
At that moment, the court granted Dr Afari-Gyan’s appeal but Mr Addison insisted that the EC was bound by the records of pink sheets in the court’s record.
However, the President of the nine-member panel, Mr Justice William Atuguba, told Mr Addison that the panel members had consulted among themselves before giving Dr Afari-Gyan permission to cross-check the pink sheets with same serial numbers with the originals.
Mr Addison then told the court that following Dr Afari-Gyan’s request to cross-check the pink sheets, the petitioners might have to suspend their cross- examination.
But Mrs Justice Vida Akoto-Bamfo reminded counsel that the respondents had not objected to the list of pairs of 1,823 pink sheets on which the witness was being cross-examined.
Dr Afari-Gyan told the court that the EC would like to make its findings known to the court after the cross-checking, while Mr Addison continued with his cross- examination of the witness.

You printed more than two sets of pink sheets – Mr Addison
Mr Addison reminded the Chairman of the EC that he had told the court that the EC printed more than two sets of pink sheets and for that reason he should explain how come there were triplicate and quadruplicate sets of pink sheets with same serial numbers.
“I cannot understand how there could be triplicate and quadruplicates. That is why we have to check. We did not print more than two sets,” the witness answered.
Counsel for the petitioners pushed further and told the witness that the exhibits in court clearly showed there were four sets of pink sheets, but the witness answered, “My Lords, we printed two sets.”
Mr Addison then suggested to the witness that he was misleading the court, but the witness disagreed with that suggestion.

We are being given new set of polling stations with duplicate polling station codes
Counsel for the EC, Mr James Quashie-Idun, shot to his feet while the cross-examination was going on to draw the court’s attention to a set of 20 lists containing polling stations with the same code numbers which, according to him, had been handed to him “less than five minutes ago”.
Mr Justice Sophia Adinyira advised counsel to allow the cross-examination on the pink sheets with the same serial numbers before making his interjection.

Piecemeal approach won’t help – Mr Justice Jones Dotse
Mr Addison informed the court that his team working on the exhibits had just handed him the list of the polling stations with the same codes but counsel for the EC said his team needed time to go over the list.
Mr Quashie-Idun had by then handed the list over to the IT experts working for the EC.
Mr Justice Jones Dotse told Mr Addison that the “piecemeal approach” to the cross-examination would not help the court to facilitate the hearing and reminded counsel that the list of1,545 pink sheets which had been excluded in the final analysis of the KPMG report had still not been produced by the petitioners to enable the respondents to cross-check.
Mr Addison explained that it was difficult for his team to state the specific time the technical team would complete working out the list for cross-examination.
That, according to him, was because exerting pressure on the technical team would result in mistakes which counsel said his side wanted to avoid.

 We have tried not to intervene – Mr Justice Gbadegbe
 Mr Justice N. S. Gbadegbe told counsel that although the court had tried not to intervene on how cross-examination should be done in order not to send a wrong signal, it was important, and in the interest of the administration of justice, to have the matter settled expeditiously to meet the expectations of Ghanaians.
Mr Addison replied that his team did not want to push the technical team too much in order to avoid errors, but Mr Quashie-Idun enquired when his team would get the full list from the petitioners to work on.
Mr Justice Dotse then suggested that it would be better for the bench to rise for a break in order to give the petitioners enough time to come out with a definite timeline to submit all lists to the respondents to scrutinise.
After the break, it emerged that the petitioners were to submit lists on irregularities to the respondents to study for hearing to continue in “full blast on Monday”, as captured in Justice Atuguba’s words.
Hearing continues on Monday, July 15, 2013.

List of eight pairs of polling stations with same codes
After the break, Mr Addison handed Dr Afari-Gyan a list of eight pairs of pink sheets from eight different polling stations.
Information on the said pink sheets, as read out by Dr Afari-Gyan, indicated that each of the two polling stations had different names but the same code number.
Although the witness admitted the polling stations had different names but the same code numbers, he explained that one of the pink sheets was for the general polls while the other was for special voting.
He, however, could not tell which of the pink sheets was for special voting and stated that he could only tell after referring to the collation forms that had captured information on the said pink sheets.
But Mr Addison suggested to the witness that he (witness) was misleading the court with that explanation.
Counsel also stated that nowhere in the EC manual or anywhere in the laws governing elections had it been stated that pink sheets could be used for special voting.
But the witness dissented.

Duplicate 26,002 codes
Mr Addison asked the witness if the EC had duplicate codes in the list of 26,002 polling stations used for the December 2012 elections, to which the witness said, “In the official list, no.”
Counsel then reminded Dr Afari-Gyan that he had had in his possession the pink sheets with different names and same codes since April 2013, but the witness answered, “I have just seen this pink sheet today.”
Mr Quashie-Idun intervened and told the court that those issues were best left for the address stage.

Extract of Register from Anglican Primary Polling Station, Mampong
Mr Addison showed a register from the Anglican Primary Polling Station, Mampong to prove a point of double registration but had to withdraw the document after Mr Justice Paul Baffoe-Bonnie had intervened and drawn his attention to the fact that the pages on the extract did not tally with the pages in the original register.
Another panel member, Mr Justice N. S. Gbadegbe, also stated that the petitioners would not be fair to the EC if they proceeded in that direction because it was now public knowledge for pictures to be taken and put on other backgrounds.
Mr Addison then stated, “We disagree, but we will withdraw the document,” and the bench unanimously permitted him to withdraw.
Writer’s email: mabel.baneseh@graphic.com.gh.

A summary
The presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are the petitioners in the case.
The petition, which was filed on December 28, 2012 is alleging gross and widespread electoral irregularities of over-voting, persons voting without undergoing biometric verification, some polling stations having duplicate serial numbers and some presiding officers not signing pink sheets.
But the respondents, namely, President Mahama, the EC and the National Democratic Congress (NDC), have denied the claims.

Petitioners confront Afari-Gyan with unsigned pink sheets

 July 11, 2013 (Page 60)

LAWYERS for the petitioners in the presidential election petition yesterday confronted the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, with lists of unsigned pink sheets, duplicated voters register and some polling stations with same names and codes, as well as having duplicate pink sheets.
Dr Afari-Gyan admitted the infractions as pertaining on the documents handed to him by the lawyers but had explanations for some.
He was also taken through 18 duplications in a list of 905 polling stations the EC had prepared as having pink sheets without signatures of presiding officers.
In his response to the list of 18 as put to him by the lead counsel for the petitioners, Mr Philip Addison, the witness said, “I have not done the count but I wil take it.”
The witness, however, stated that with respect to same polling stations having two different pink sheets, the EC could ascertain what actually went wrong after studying the collation sheets containing those pink sheets.
Mr Addison brought out 12 lists containing 371 pink sheets which, he said, were not signed by presiding officers and stated that those pink sheets were not part of the 905 the EC had stated in its defence that they were not signed by presiding officers.
Dr Afari-Gyan explained that he had earlier told the court that some pink sheets that were not signed at polling stations were signed by presiding officers at collation centres at the instance of returning officers.
According to the witness, the list of 371 pink sheets was part of the pink sheets that were signed at collation centres, but Mr Addison disagreed with him and wondered where the caveat was coming from.
One of the judges, Mr Justice Jones Dotse, told Mr Addison that from Dr Afari-Gyan’s explanation, it might have been the case that some polling agents left the polling stations with unsigned pink sheets.
But Mr Addison said the case of the petitioners was that more than 905 pink sheets were not signed by presiding officers and informed the court that the petitioners were ready to bring the unsigned pink sheets to court to prove their case.
Counsel for the EC, Mr James Quashie-Idun, said some of the pink sheets were not relevant to the issue of non-signatures because they were already in evidence.

Issue of 553 unsigned pink sheets
Mr Addison averted Dr Afari-Gyan’s mind to earlier 553 unsigned pink sheets which he had been confronted with in earlier proceedings and stated that those pink sheets were not part of the 905 pink sheets, but the witness answered that he could not confirm unless he saw those pink sheets.
Counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, told the court that the claim of signed or unsigned pink sheets was already before the court and for that matter that issue could be reserved for the address stage.
Mr Addison disagreed with Mr Tsikata and argued that the foundation the petitioners sought to lay bordered on the credibility of the witness.
The witness had earlier stated that he could not “carry” a list of 905 polling stations in his head unless he physically checked, but Mr Justice N. S. Gbadegbe and Mrs Justice Akoto-Bamfo advised him to use appropriate language in addressing the court.
Dr Afari-Gyan then responded, “With all due respect, I cannot remember all 905 names.”

Duplicated Codes
Mr Addison took Dr Afari-Gyan through the list of 905 polling stations with unsigned pink sheets and it emerged that 18 polling station codes had been duplicated.
Counsel for the petitioners then told the court that interestingly the respondents did not discover the pattern of duplicates in the 905 polling stations but were quick to discover discrepancies in the list provided by the petitioners.
Mr Tsikata objected to that on the grounds that the NDC had completed its cross-examination of the witness and demanded that Mr Addison’s insinuation be withdrawn.
Mr Addison obliged, withdrew the comment and said he made the comment in “jest”, to which Mr Justice William Atuguba stated, “We are making a headway.”

Finger of God Church Polling Station
The witness was shown three pink sheets with the same polling station code from the Finger of God Polling Station at Kubekrom in Accra.
Dr Afari-Gyan admitted that the three pink sheets bore the same name with the same polling station code but explained that one of them had not been signed by a presiding officer.
He said one of the pink sheets did not have the signature of a presiding officer and did not contain names of polling agents.
The witness disagreed with Mr Addison’s suggestion that two of the pink sheets had the same presiding officer.

Gladys Koranteng Polling Station
In what appeared to be odd, the space provided for the “name of polling station” for one of the Finger of God Polling Station had been filled with “Gladys Koranteng”.
Dr Afari-Gyan pulled out collation sheets to cross-check how information on the Finger of God Polling Station pink sheets had been entered, but Mr Addison indicated that the petitioners would call for all the 275 collation sheets if the court allowed Dr Afari-Gyan to make reference to them.
The court returned after a short break and struck out evidence led on the collation sheet which had information on the Finger of God Polling Station.

How do we know the results are not in the Collation Sheet?
Mr Justice Dotse asked the witness how one could tell if the results on the three pink sheets had not been entered in the constituency results, to which the witness answered, “It can be known from the collation form.”
Afterwards, Mr Addison suggested to the witness that the results on the three pink sheets from the Finger of God Polling Station went into the declaration, but Dr Afari-Gyan replied, “Only two went into the results as indicated by the collation sheet.”
Mr Addison told the witness that several pink sheets were not properly executed but the witness disagreed.
Counsel asked the witness why one polling station had two pink sheets, but Dr Afari-Gyan said, “No polling station should have two pink sheets. Every polling station has one result.”
He further explained that it was only on occasions that polling stations were split into A and B that such situations arose.
Mr Addison, however, held a different view.

Double Registration
Some instances of double registration in the voters register for the LA Primary School in the Adaklu Constituency and the EP Primary School Polling Station in the Afadjato Constituency in the Volta Region were shown to the witness.
On page 45 of the Adaklu Register, there was an instance of one person engaging in double registration. That person had two different voter identity cards.
Responding to that, the witness said, “If it is double registration, the identities will be different.”
In the Afadjato Register, it came up that pages 16 and 25 of the register had an instance of double registration, but Dr Afari-Gyan told the court that there was a difference because page 16 was a “Face Only” voter, while page 25 was not a “Face Only” voter.
“It may or may not be the same person. The only way is to establish personal contact to remove the person,” he said, and added that the name, age and sex of the voter were the same and further intimated that they could be twins or not twins.
The two registers containing double registration were tendered without objection from the respondents.

Biometric Register and Double Registration
Mr Addison said in spite of the biometric register, a person could register twice, but Dr Afari-Gyan said that could be discovered.
Mr Addison gave Dr Afari-Gyan a list which contained extracts of double registration in the register for the MA Primary School in the Mampong Constituency, but the witness said he would prefer to have a look at the real register.
Counsel then suggested to the witness to cross-check the extracts with the register and return with it at the next hearing, but Mr Quashie-Idun said no foundation had been laid for the tendering of the extract.
Mr Justice Sophia Adinyira then responded, “He is not tendering it.”

We will not object to “P” Series exhibit
Mr Addison told the court a list on “P” series (polling stations with duplicate serial numbers) had to be withdrawn for correction because there were some errors, but Mr Tsikata said his side was fed up with having to cross-check the list to point out any errors.
He said his side would not object to any document that was tendered on the “P” series on the  grounds that he would leave his comments to the address.
After a few minutes of argument between Mr Addison and Mr Tsikata on the issue, the court ended its session for the day.
Mr Addison said his side was almost set with a list of 1,545 pink sheets that the court had granted permission to the petitioners to cross-examine Dr Afari-Gyan on.
The international audit firm, KPMG, left out the 1,545 pink sheets in its final analysis with the reason that the polling station names, codes and or exhibit numbers were not eligible.
But the court has given the petitioners the chance to cross-examine on the said pink sheets after they said they had been able to identify the said pink sheets by  name, polling station code and or exhibit number.
Hearing continues today.

Stop afflicting court with letters - Atuguba

 July 11, 2013 (Front page)

THE nine-member Supreme Court panel hearing the presidential election petition has advised the public to stop afflicting the bench with letters bordering on the petition.
Before the beginning of the hearing of the petition at the court’s sitting in Accra yesterday, the President of the panel, Mr Justice William Atuguba, drew the public’s attention “to a development afflicting us.”
According to Justice Atuguba, some highly placed persons were writing letters to the panel about the ongoing petition, making suggestions, adding that “technically, it is wrong to write to the court in this manner.”
Other members of the panel hearing the petition are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose C. Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
Serving a warning to persons to desist from the practice of inundating the court with letters, Justice Atuguba said such acts were contemptuous and must, therefore, “cease.”
He said some of the authors included professors and further reminded the public that contempt issues did not only relate to publishing articles in the media.
The court, on June 24, 2013 issued a final warning to lawyers, political activists, social commentators and journalists to desist from making prejudicial and contemptuous comments on the election petition.
Three persons have so far been a casualty of the court’s wrath for disobeying its orders.
First to suffer the legal wrath of the court was the Deputy Director of Communications of the New Patriotic Party (NPP), Mr Sammy Awuku, who has since been barred from the court until the final determination of the case.
The Editor of the Daily Searchlight newspaper, Kenneth Agyei Kuranchie, who was jailed 10 days for making contemptuous remarks about the bench, ends his incarceration today.
Another person, a member of the communication team of the National Democratic Congress (NDC), Stephen Atubiga, has completed a three-day sentence by the Supreme Court for a similar offence.
The court is currently on the heels of the General Secretary of the New Patriotic Party (NPP), Mr Kwadwo Owusu-Afriyie, for allegedly passing contemptuous comments about the court.
His fate will be decided after the court hears a tape on the alleged comments.

The petition
The Presidential Candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the New Patriotic Party (NPP), Mr Jake Obetsebi-Lamptey, are the petitioners in the case.
The petition, which was filed on December 28, 2012 is alleging gross and widespread electoral irregularities of over-voting, persons voting without undergoing biometric verification, some polling stations having duplicate serial numbers and some presiding officers not signing pink sheets (statement of poll and declaration of results form for the office of president).
But the respondents, namely President John Dramani Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC) have denied the claims.