Monday, August 26, 2013

The Story of the Pink Sheets - Journey So Far

August 26, 2013 (Centre Spread)

IT has been a long torturous and sometimes exciting legal journey on the “corridors of pink sheets.” Followers of the landmark presidential election petition have for the past eight months been treated to pink sheet legal battles embedded with legal jargon, humour, occasional legal fights and intermittent advice and warnings from the Supreme Court panel for decorum.
Legal matters related to the petition are expected to officially come to a close on August 29, 2013 barring the decision of the losing party to apply for review.
The journey has been particularly exciting because Ghanaians from April 16, 2013 to August 14, 2013 were given the opportunity to follow proceedings of a landmark case challenging the highest office of the land, live on television and radio stations across the country.
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” while Article 125 (2) states, “citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and assessor systems.”
On the premise of this constitutional principle, viewers and listeners for the past eight months had ample opportunity to witness lawyers for parties in the petition making a case for and against the annulment of votes, the deposing of President John Dramani Mahama and the subsequent declaration of the presidential candidate of the New Patriotic Party (NPP), Nana Addo-Dankwa Akufo-Addo as President of the Republic of Ghana.
Internet websites, facebook, twitter and other social media platforms were not left out in the hearing. Supporters of the governing National Democratic Congress (NDC) and the opposition NPP gave and are still giving “their versions” of proceedings on social media and other platforms.
The stakes are so high both sides are challenging each other on social media, and are said to  have gone to the length of betting huge sums of money on the outcome of the petition.
There is an uneasy calm among Ghanaians, businessmen, businesswomen and investors on the possible violence after the delivery of judgement by the nine Supreme Court justices on August 29, 2013.
But the security agencies and leaders of the two contending parties have given numerous assurances that their supporters would not cause mayhem after the delivery of judgment.
With the enormous powers vested in them by the 1992 Constitution, Justices William Atuguba, Julius Ansah, Sophia Adinyira, Rose Constance Owusu, Jones Victor Dotse, Anin Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe and Vida Akoto-Bamfo will determine the fate of the presidential candidates of the NDC and the NPP in the December, 2012 presidential election.
Justice Baffoe-Bonnie precisely pointed out on July 2, 2013 when a member of the NDC Communication team, Mr Stephen Atubiga appeared before the court to answer contempt charges that, “there, will be a judgement, whichever way the axe falls.”
“You will live in a fool’s paradise to think we won’t give a decision. People like you cannot stop us from giving a decision,” Mr Justice Baffoe-Bonnie emphatically stated while looking in the direction of an apologetic Atubiga, who has since served a three-day jail term for contempt and is now serving as a peace ambassador.

Pink Sheets supremacy at election petition

At the heart of the election petition are pink sheets (statement of poll and declaration of results for the office of President and Parliament). They are so called because they are pink in colour.
 The petitioners say they studied 24,000 out of the 26,002 pink sheets used in declaring President Mahama as the winner of the polls and arrived at their analysis of gross and widespread irregularities of over-voting, persons voting without undergoing biometric verification, some presiding officers not signing pink sheets and some pink sheets having duplicated serial numbers.
According to the petitioners, their investigation uncovered six main categories of constitutional/statutory violations, commissions, irregularities and malpractices, namely:  Over-voting, widespread instances of polling stations where there were no signatures of the presiding officers or their assistants on the pink sheets in clear violation of Article 49 (3) of the Constitution and Regulation 36 (2) of C. I.75, widespread instances of polling stations where voting took place without prior biometric verification in breach of Regulation 30 (2) of C. I. 75 as well as widespread instances where there were the same serial numbers on pink sheets with different poll results, when the proper and due procedure established by EC required that each polling station have a unique serial number in order to secure the integrity of the polls and the will of lawfully registered voters.

The Rules and Onus of Proof

The petitioners brought the petition under Article 64 of the 1992 Constitution; Section 5 of the Presidential Election Actr, 1992 (PNDCL 285); and Rule 68 and 68 A of the Supreme Court (Amendment) Rules 2012, C.I. 74.
Article 64(1) of the 1992 Constitution provides: “The validity of the election of the President may be challenged only by a citizen of Ghana, who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the results of the election in respect of which the petition is presented” while Article 64(2) says: “A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.’’
Part VIII of the Supreme Court Rules — Challenge Of Election of President, Rule 68 — provides: “A petition presented pursuant to Clause (I) of Article 64 of the Constitution shall state (a) the full name and address of the petitioner and of his counsel, if any, which shall be an address for service; (b) the grounds for challenging the validity of the election; (c) a statement of the facts relied on to be verified by affidavit, and of the law in support of the petition; (d) the number of witnesses to be called, if any; and by (e) such other matters as the court may determine.”
Since the petitioners have alleged irregularities in 10,119 polling stations, the burden of proof is on them to prove each of the alleged infraction.
At the close of the case, the petitioners are arguing that they have succeeded in producing a “mountain of evidence, sufficient to discharge the burden of proof” that the law placed on them and to obtain a decision in their favour but the respondents are of the opinion that the petitioners failed woefully to discharge their burden of proof.

Issues for determination

After 10 sittings to consider and resolve more than 21preliminary issues raised by parties in the case; the nine-member court has set out two issues for trial.
They are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections 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.

Controversy over pink sheets and KPMG audit

Matters surrounding the actual number of pink sheets filed by the petitioners were so sensitive and controversial, the court had to eventually order an audit to be conducted into the definite number of pink sheets filed at the Supreme Court registry in order to put the matter to rest.
While the petitioners insisted they filed 11,842 pink sheets, the respondents insisted the petitioners filed less than that.
International audit firm, KPMG was on May 9, 2013 accordingly directed to audit pink sheets and subsequently submitted its final report in five volumes on June 24, 2013.

Snippets of the Final Audit Report

The final report stated that the registrar’s copy of the pink sheets was 13,926 with 3,593 duplicates.
It also indicated that the count of Mr Justice Atuguba’s pink sheets revealed a total of 9,860 pink sheets while 871 of pink sheets in Mr Justice Atuguba’s were sets not included in the registrar’s set.

The Genesis

On December 7 and 8, 2012, Ghanaians exercised their right under Article 42 of the 1992 Constitution by casting their ballots in the presidential and parliamentary elections.
Voting had to be suspended and continued on December 8, 2012 at 412 polling stations across the country due to the breakdown of newly introduced biometric machines.

The Declaration
With the powers conferred on him under Article 63 (9) of the 1992 Constitution, the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, on December 9, 2012 declared President John Dramani Mahama as the winner of the presidential poll with 50.7 per cent of the valid votes cast, with the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, placing second with 47.7 per cent.
Prior to the declaration of the results, the NPP leadership had reportedly prevailed upon Dr Afari-Gyan to suspend the declaration because they had uncovered some discrepancies which could affect the final results of the presidential election.
After a marathon meeting with EC officials and members of the Peace Council, Dr Afari-Gyan declined to suspend the announcement of the results on the grounds that the party leadership had failed to prove why the declaration should be halted.
He, accordingly, advised the leadership of the NPP to sue the EC if it felt dissatisfied with the results he was billed to declare.
Reminding him of his words to the party leadership to sue, the presiding judge of the petition, Mr Justice William Atuguba, on July 17, 2013 said to Dr Afari-Gyan who had been discharged from the witness that, “I hope you’ve seen that ‘go to court, go to court’ is not easy.”

Threat to Sue and the Petition
Irked by the EC’s declaration of President Mahama as the winner of the presidential poll, three leading members of the NPP, namely, Nana Addo Danquah  Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed a petition at the Supreme Court Registry on December 28, 2012.
They initially alleged gross and widespread irregularities at 4,709 polling stations, but they later amended their petition to indicate irregularities  at 11,916, 11,842, 11,138, 11,115, 10,081 and finally settled on 10,119 polling stations.
In all, a total 3,931,339 votes are affected by the various irregularities in the 10,119 polling stations challenged by the petitioners. 

Reduction in votes and Rebuttal

According to Nana Akufo-Addo, his running mate, Dr Bawumia and the National Chairman of the NPP, Mr Obetsebi-Lamptey, if the results of these polling stations are annulled, President Mahama’s votes would be reduced by 2,622,551 which will result in him securing 41.79 per cent of the new tally of valid votes.
They said Nana Akufo–Addo’s votes would also be reduced by 1,233,186 but that will still see him securing 56.85 per cent of the new tally of valid votes, much more than the needed 50 per cent plus one to be declared as winner of the Presidency.
But the respondents have argued that the petitioners have failed to meet their evidential burden of proving the alleged infractions and are accordingly praying the court to dismiss the petition and maintain the status quo.

Options for the court

The court will on August 29, 2013 decide whether or not to annul votes, affirm President Mahama or declare Nana Akufo-Addo president.
It will also determine whether or not to order for a re-run in the event it finds that the irregularities affected the outcome of the poll.

The Journey So Far

For the past eight months, lawyers for the petitioners have led evidence seeking to justify why votes in 10,119 polling stations should be annulled by the Supreme Court, but the respondents have also led evidence, which they say, point out inconsistencies in the case of the petitioners in their bid to maintain the status quo.
As expected in litigations, the lead counsel for the petitioners, Mr Philip Addison entered into occasional altercations with Messrs Tony Lithur, James Quashie-Idun and Tsatsu Tsikata, who are lawyers for President Mahama, the EC and the National Democratic Congress (NDC) respectively.
The judges have in the course of disagreements between the lawyers either ruled affably, arbitrated or displayed their authority with firm decisions.
Interestingly, the arbiters have also been caught in the crossfire on a few occasions, but those did not undermine proceedings in any way.
This article attempts to walk readers through events that transpired from December 7 and 8, 2013 being voting days, preliminary issues disposed of by the court, the filing of the necessary documents including affidavits from witnesses for the parties, the hearing of the petition, filing of addresses as well as other issues that cropped up during the hearing of the petition.

December 7 and 8, 2012 – presidential and parliamentary elections held.
December 9, 2012 – Dr Afari-Gyan declared President Mahama winner of polls with 50.7 per cent with Nana Akufo-Addo 47.7 per cent.
Between December 8 and 27, 2012 – Both the NPP and NDC organised press conferences and counter press conferences. Both said they won the elections.
December 28, 2012 – Petition filed challenging results in 4,709 polling stations
December 31, 2012 – Petition amended due to typo errors
December 31, 2012 – NDC applies to join petition on grounds that it sought to protect the interest of President Mahama, who the party fielded for the presidential poll.

January 2013 Events
January 2, 2013 - President Mahama and EC enter appearance in the petition.  Mr Lithur entered appearance on behalf of President Mahama while Lynes-Quashie-Idun and Co entered appearance on behalf of the EC.
January 3, 2013 – Supreme Court Registry sets date for hearing of NDC’s joinder application.
January 5, 2013 - Nana Akufo-Addo opposes NDC’s application for joinder and says it was calculated to delay the trial.
January 10 – Hearing of joinder begins but petitioners object to the composition of the panel. Mr Victor Jones Dotse, also denied claims that he was a member of the NPP as was being alleged in some circles.
January 11, 2013 – Petitioners withdraw opposition to the panel.
January 16, 2013 – The court heard NDC’s application to join the petition as well as the petitioners’ opposition to it.
January 22, 2013 – The court in a 6-3 majority decision gave the NDC the nod to join the petition.

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To be continued.

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