July 9, 2013
RESPONDENTS in the ongoing presidential election petition have opposed calls by the petitioners to the Supreme Court to refer issues on 1,545 pink sheets to international audit firm, KPMG, for further consideration.
The petitioners are praying the court to grant their request in order to ensure justice, facilitate fair and speedy determination of the issues in controversy in the petition in order to establish a comprehensive unique count of pink sheets filed by the petitioners, but the respondents have objected to the request.
According to President Mahama, the Electoral Commission and the National Democratic Congress (NDC), the request of the petitioners was not necessary and would only lead to delays in the petition.
President Mahama’s affidavit in opposition
An affidavit in opposition deposed on behalf of President Mahama by his Campaign Co-ordinator for the 2012 presidential elections, Mr Elvis Afriyie-Ankrah, said the request of the petitioners went beyond the mandate of the KPMG.
“The modes suggested by Petitioners for identifying the exhibits go beyond the task or mandate of the referee and the data required to analyse the report submitted by the Referee has been captured and are contained in the Referee’s report,” the affidavit stated.
According to the affidavit in opposition, there was no need to burden the KPMG beyond what it had provided, adding that “identifying the 1545 exhibits is a matter of evidence”.
“The burden of such identification lies on Petitioners. The effect of the orders they seek, if granted, would be to shift that burden onto the Referee,” the affidavit said and indicated that the petitioners had the opportunity to apply for originals of pink sheets that were unclear before the beginning of trail but failed to do so.
“Remitting the report over the issues raised by the Petitioners would merely open up new areas of disagreement between the parties, thereby occasioning delay,” the affidavit added.
Electoral Commission’s Position on the petitioners’ request
An affidavit in opposition deposed on behalf of the EC by its Deputy Chairman in-charge of Finance and Administration, Mr Amadu Sulley, said “the instant application by the Petitioners, who have the burden of proving their case, is belated and not necessary at this point in the trial, will cause an undue delay in the trail and is not made in good faith.”
“That the Petitioners having contested the 2012 Elections in all the 275 constituencies in Ghana and having appointed Polling/Counting Agents, for that purpose, in all the said constituencies, were able to file the initial petition, the first amended petition, the second amended petition, several applications to this Honorable Court by Motion and the affidavit sworn to by the 2nd Petitioner and filed on 07/04/2013 to which the Exhibits, the subject of the instant application, were attached ,” the affidavit in opposition said.
The second petitioner is Dr Mahamadu Bawumia, who was also the running mate of the first petitioner, Nana Addo Dankwa Akufo-Addo. The Chairman of the New Patriotic Party (NPP), Mr Jake Obetsebi-Lamptey is the third petitioner.
Johnson Asiedu Nketia’s Affidavit in Opposition for the NDC
The affidavit in opposition sworn on behalf of the NDC by its General Secretary, Mr Johnson Asiedu Nketia, said the task assigned to the KPMG was specific, adding that, “the referee performed the tasks ordered and produced a comprehensive report which is now in evidence in this case.”
“In the report, the referee provided a list of 1545 documents filed in relation to which information regarding polling station name, polling station code, for instance, were unclear or illegible.
The list was compiled with the full participation of representatives of the parties in this case, as testified to by the representative of the referee, court witness, Mr Dodoo.
The representative of petitioners duly signed the daily entries made of the information that was entered about those 1545 pink sheets,” the NDC’s affidavit in opposition said.
It said the petitioners’ application was “essentially an attempt to have the referee to undertake the fundamental responsibility of the Petitioners to prove their case by specifying what polling stations they claim had regularities, malpractices or any electoral violation that should lead to the annulment of votes.”
It said, “the claims about “the failure of the report to conduct and specify a unique count of the 1545 (above referred to) pink sheets” and “the failure to conduct and specify the unique count of the 2874 pink sheets that the report established were in the set of the President but not contained in the Registrars set” were put to the representative of the referee in cross examination by Counsel for the Petitioners and he clearly indicated that those further counts were not part of the ordered of the court. The report cannot, therefore, be claimed to be inconclusive. This application, I am advised and verily believe, seeks to reopen that cross-examination of the representative of the referee.”
According to the NDC’s affidavit in opposition, the details of the 1545 pink sheets had been provided in the referee’s report and, “whatever observations and deductions Counsel for the Petitioners wishes to make in the report, including their claims about the identity of polling stations, can be made on the basis of information provided by the referee in the report or other evidence before the court.”
It denied petitioners’ claims that the audit report was inconclusive and further argued that “when the issue came up of the number of exhibits field not being in respect of 11,842 polling stations as alleged by the petitioners resisted the application each time. Petitioners also resisted the application to cross check the count of the exhibits in the registrars set of exhibits by using the Presiding judge set as control as a control.”
It said that the remarks made in respect of the 1545 exhibits started from the very first day of the count, adding that the petitioners had ample opportunity to the court “for leave either to present clear and eligible exhibits or to ask the court to expand the terms of reference of the referee to incorporate the request that the Petitioners are now bringing before the court but Petitioners did not. Petitioners did neither and the court cannot now bend over backwards to enable them at this stage to expand the terms of reference of the referee.”
“Even though the referee provided its services at no cost to the parties, it is clear that the new assignment being proposed to be performed by the referee would involve significant additional cost but no additional benefit to the determination of this Petition,” the NDC’s affidavit in opposition stressed.
“It has become evident that Petitioners are seeking to delay the resolution of the petition and leave a cloud of uncertainty hanging over the nation even as their case is being shown to be entirely without merit,” and further pointed out that the “continuing distraction that will be caused by the significant delay that will result from the grant of this application would not just be the prejudice and detriment of 3rd Respondent but would be to the prejudice and detriment of the nation at large.”
NDC is the third respondent in the case.
“For petitioners who seek, at all cost, to have the court find fault with the conduct of the election after their own representative declared it has the cleanest and most transparent election in the history of the country and despite the similar conclusion reached by local and international observers, there appears to be an effort to delay case and have the cloud of uncertainty continue over the Presidency of 1st Respondent so as to disable him from pursing the mandate that he has received from the people of Ghana,” the affidavit in opposition added.