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.
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