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.
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.
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.
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.”