Monday, July 29, 2013

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.

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