Petitioners challenging the declaration of President John Dramani Mahama as the winner of the December 2012 presidential polls are praying the Supreme Court to refer issues on 1,545 pink sheets to the international audit firm, KPMG, for further consideration.
According to the applicants, the grant of the application, “will facilitate a fair and speedy determination of the issues in controversy in this petition, as same would establish a comprehensive unique count of pink sheets filed by the petitioners.”
The audit firm which was contracted by the Supreme Court on May 9, 2013 to conduct the audit of the pink sheets (statement of poll and declaration of results for the office of president) submitted its final report, but the report dated June 24, 2013, indicated that out of the total of 13,926 pink sheets filed by the petitioners, 1,545 were ineligible.
According to the KPMG report, either some of the pink sheets did not have eligible polling station names, codes and/ or exhibit numbers.
As a result, the firm formed its final analysis based on 12,381 pink sheets, but the motion is praying the court to remit part of the issue it originally referred to KPMG for further consideration.
The MotionThe motion, dated July 5, 2013 and filed on behalf of the petitioners by their lawyers, Akufo-Addo, Prempeh and Co., is asking the leave of the court to remit part of the issue originally referred to KPMG, for the firm to:
•determine the polling station names and codes of the 1,545 pink sheets with incomplete data and determine the unique count thereof with the aid of: (a) the further and better particulars filed by petitioners; and/or (b) the official list of 26,002 polling stations established by the Electoral Commission (EC) for the 2012 general elections to be supplied to the KPMG by the EC.
•the unique count of the 2,876 pink sheets that the KPMG’s report established as part of the set of the President of the panel but which were not contained in the set of the Court Registrar.
•to determine and produce the full list of the unique count of the aggregate of the 8,675 unique pink sheets, the unique pink sheets in the 1,545 pink sheets described in the report as having unclear data, and the unique pink sheets in the 2,876 pink sheets of the set of the President of the panel which were not contained in the Registrar’s set.
Background to exclusion of 1,545 pink sheetsThe exclusion of 1,545 pink sheets from the final analysis of final KPMG audit report took centre stage at the July 3, 2013 hearing of the petition.
A total of 1,545 pink sheets were left out from the final analysis of the lot of 13,926 pink sheets filed by the petitioners on the grounds that either, the polling station names, codes or exhibit numbers on those pink sheets were not eligible.
At the Supreme Court’s sitting in Accra on July 3, 2013, lead counsel for the petitioners, Mr Philip Addison, told the court that there were ways of ascertaining the eligibility of those pink sheets, and said indeed the petitioners had found 1,291 of those pink sheets legible after careful scrutiny.
Counsel argued that in the instances where there were polling stations without names, those polling stations could be ascertained with code numbers.
He further argued that polling stations without code numbers could be identified by either names and/or codes and vice versa, adding that the 1,545 pink sheets should have been included in the KPMG’s final analysis.
Thus, the motion has been filed to officially put the petitioners’ disagreements in portions of the report on record.
Dr Mahamadu Bawumia’s Affidavit in Support of the Motion
An affidavit in support of the motion which will be moved at the Supreme Court on Tuesday, July 9, 2013 was sworn on behalf of the three petitioners by their star witness, Dr Mahamadu Bawumia.
The other petitioners are the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential polls, Nana Addo Dankwa Akufo-Addo and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey.
According to the affidavit in support, Mr Addison on June 26, 2013 cross examined a representative of KPMG, Nii Amanor Dodoo, and drew the witness’ attention to several inconclusive portions of the report, including: ” the failure of the report to conduct and specify a unique count of the 1,545 pink sheets with remarks which according to the report were not clear or legible; and the failure of the report to conduct and specify a unique count of the 2,874 pink sheets that the report established were in the set of the President but not contained in the Registrar's set.”
“That, even though the Referee stated in its report that it had been able to identify 34 out of the 1,545 pink sheets with incomplete data, the report fails to include these unique counts in the 8,675 unique counts set out in the report.
That, in addition the report of the referee states in respect of the 1,545 unclear or not legible pink sheets at page 12 paragraph 3 as follows: after the control checks were performed, exhibits presented by the registrar were cross-checked against the presiding judge’s set of exhibits. The cross-check was able to clarify 34 of the 1,545 exhibits that were identified as having incomplete data.
A decision will need to be made as to whether the missing information of the remaining exhibits will have to be provided or sourced to determine whether or not they indeed qualify to be included in the list,” the affidavit in support pointed out.
According to the affidavit, most of the pink sheets the KPMG classified as having incomplete data however can be identified by their polling station codes or in some cases their polling station names adding, “the petitioners have since been able to identify the polling station names and codes of these 1,545 pink sheets and out of these pink sheets identified 1,291 unique pink sheets.”
Each polling station can be uniquely identifiedThe affidavit pointed out that each polling station could be uniquely identified by its polling code, and further stated that “2,876 pink sheets found in the set of the President of the panel but not in the Registrar's set, no reason whatsoever has been given by the Referee for its failure to establish a unique count of the same, even though same can be identified by their polling station names, codes and exhibit numbers.”
It said the petitioners have identified 871 unique counts of these 2,876 pink sheets, using the information in vol. 4 of the report”.
Aspects of report incomplete
“That even though the report of the Referee notes that 8,675 pink sheets of the Registrar's set are unique, the report does not provide a list of these pink sheets with their polling station names, codes and exhibit numbers, if any. This renders this aspect of the report incomplete,” the affidavit in support stated.
The grant of the application, according to the affidavit in support, will make the report more conclusive as well serve the interest of “substantive justice,” adding that “ and in order that legitimate evidence before this court is not suppressed, this court ought to exercise its discretion in favour of this application.”
The affidavit further stated that the grant of the application will make the KPMG report more conclusive, adding that “it is estimated that the further consideration of the issues subject of this application will not take more than two days to be completed, and in the meantime, petitioners will continue with cross examination of the representative of the second respondent.”
Mr Addison is currently cross examining the Chairman of the EC, Dr Kwadwo Afari-Gyan.