Mr Justice Atuguba, President of the nine-member panelThe Supreme Court has refused a request from the respondents in the presidential election petition to cross-examine four witnesses who have given evidence in the form of sworn written affidavits.
According to the court, it had received and was still in the process of receiving abundant evidence from the parties in the dispute to enable it to arrive at a conclusion in the petition challenging the legitimacy of President John Dramani Mahama.
In a unanimous decision, the court refused to grant the prayer of President Mahama, the National Democratic Congress (NDC) and the Electoral Commission (EC) which sought leave of the court to cross-examine the four witnesses.
According to the court, various types of evidence had been filed, while one of the petitioners, Dr Mahamudu Bawumia, had given his evidence-in-chief and was in the process of being cross-examined, adding that further evidence to be adduced by other witnesses was enough for the court to draw a conclusion.
The evidence before the court includes 11,138 pink sheets filed by the petitioners who are alleging gross and widespread irregularities, an 83-paragraphed affidavit sworn by Dr Bawumia, six additional affidavits sworn by witnesses for the petitioners, more than 7,000 affidavits from witnesses for the President and the NDC and
several affidavits and supplementary affidavits from the EC.
In the court’s view, the filed affidavits, evidence-in-chief from parties in the case, lengthy cross-examination and re-examination as the case progresses were more than enough for it to make a definite decision on the matter.
The ruling, which took less than five minutes, was read by the President of the court, Mr Justice William Atuguba.
After the court’s ruling, counsel for the President, Mr Tony Lithur, enquired whether or not the respondents could cross-examine the witnesses the petitioners had recommended could be cross-examined, but Mr Justice Atuguba said the ruling applied to the other witnesses and added, “The evidence is flowing.”
The other members of the panel are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Mrs Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
The Four Witnesses
The four, in their affidavit evidence dated April 7, 2013, had laid claim to the fact that votes were annulled because over-voting and/or voting took place without biometric verification.
They are the Member of Parliament (MP) for Berekum East, Dr Kwabena Twum Nuamah; the NPP’s parliamentary candidate for Upper West Akyem in the Eastern Region, Mr Eugene Sackey; the NPP MP for Tano North, Ms Freda Prempeh; a resident of Savelugu, Fuseini Safianu, and the presiding officer of Temporary Booth Chief’s palace polling station at Pong Tamale, Abdulai Abdul Hamid.
Although lead counsel for the petitioners, Mr Philip Addison, had opposed moves to cross-examine the four on the grounds that the issues they had sworn to were not in contention, he was not against the calling of Safianu and Hamid for cross-examination.
Case of the Respondents
Moving the motion earlier, Mr Tsikata had said per the court’s April 2, 2013 ruling, it would serve the interest of justice if it ordered that the four be cross-examined.
Coming under Rule 69 (c) 8 of the Supreme Court Amendment Rules, 2012 (C I 74), which indicates that a person who has sworn an affidavit may be cross-examined by a party after the party had sought leave of the court to cross-examine, counsel argued that the respondents were not seeking to cross-examine all the six additional witnesses of the petitioners but were focusing on relevant matters averred to by the witnesses.
What the respondents were seeking to do, he explained, was to test the truthfulness of witnesses’ evidence to enable the court to arrive at its conclusions.
According to counsel, the rules of evidence under which the court operated also made it clear that the issue of cross-examination was essential to the full determination of a trial.
He said Section 62 (2) of the Evidence Decree of 1975 did not give parties the choice to determine which witnesses to be or not to be cross-examined.
Counsel held that there was no allegation that the witnesses were not available for cross-examination, and for that reason the court might want to wonder why the petitioners were seeking to protect witnesses from cross-examination.
Mr Tsikata argued that the evidence of the star witness of the petitioners, Dr Bawumia, which had been challenged by the respondents, also sought to rely on the evidence of the said four witnesses.
“The witnesses also claim to have personal knowledge of matters they deposed to and there is, therefore, no basis for them not to be directed to appear in court for cross-examination,” he pointed out.
Counsel opined that Sackey and Prempeh were parliamentary candidates in the December 2012 elections and had testified to the issues that occurred at polling stations and collation centres and for that reason their testimonies were crucial to the final determination of the matter before the court.
He said if, indeed, those witnesses were at the said polling stations and collation centres, it was important for them to be cross-examined to enable the court to arrive at the truth.
“Our submission is that the processes of the court will be well served by obtaining testimony from people who
claim to have personal knowledge from facts deposed,” Mr Tsikata said.
He argued that neither the President nor the NDC could be held to an answer allegedly provided by the EC in reference to claims by some EC witnesses that votes were cancelled in some polling stations because of over-voting and voting without verification.
Contesting the claims to the alleged admission of certain facts by the EC, Mr Tsikata said the NDC and the President would cross-examine on them.
"The interest of justice and fairness will be served if the court allows the respondents to cross-examine the four witnesses," Mr Tsikata held.
Responding to the claim by the petitioners that the calling of the four witnesses would lead to delays in the trial, counsel argued that that claim was “extraordinary” because the respondents were entitled to cross-examine witnesses.
Mr Lithur and Mr Quashie-Idun associated themselves with Mr Tsikata’s submissions.
Mr Philip Addison’s opposition
Mr Addison opposed the call to cross-examine Dr Nuamah, Sackey, Prempeh and Peter Wuni, the NPP parliamentary candidate for Nalerigu-Gambaga in the Northern Region.
However, he did not oppose the cross-examination of Hamid and Safianu, adding that the April 2, 2013 court order was made to facilitate the expeditious hearing of the petition.
According to counsel, the four witnesses gave evidence based on what had transpired at the various polling stations and collation centres where they were present and further indicated that the EC had, indeed, corroborated their evidence, and for that reason there were no issues in controversy to warrant their being called for cross-examination.
For instance, counsel said Prempeh’s evidence attested to the fact that there was cancellation of ballots at the Methodist Primary Polling Station, Tanoso, because there was one vote less in the presidential ballots and a vote more in the parliamentary ballots, while Dr Nuamah said results were annulled at the Roman Catholic Church, Kutre Number One Polling Station because some voters voted without biometric verification.
He also recapped the names of EC witnesses who had also testified in the form of affidavits that some votes were annulled due to over-voting and voting without biometric verification.
Mr Addison argued that nowhere did the President and the NDC challenge the annulment of votes as deposed by the EC, adding, “We need to move forward. It will not serve a useful purpose to allow them to cross-examine on matters that are no longer in controversy.”
“I am happy the issue has been confirmed by the EC. There is consistency here,” he said, in reference to EC’s averments that some votes were cancelled due to over-voting and voting without biometric verification.
Tsikata's Issues on law
In his reply, Mr Tsikata said CI 74 was aimed at ensuring an expeditious trial and not to set aside the rules of evidence and procedures of court, adding, “The allegation of delay is disingenuous because Mr Addison is choosing who and who to be called and not to be called to testify.”
Mr Tsikata’s cross-examination of Dr Bawumia resumed after the court’s ruling, during which witness admitted that some polling stations had been repeated in the exhibits submitted to the court but explained that the final analysis did not include the duplications.
There was a back and forth interchange among the bench, Mr Tsikata and Mr Addison following Mr Tsikata’s refusal to tender in evidence exhibits provided by the petitioners as a result of his request for them.
Mr Tsikata had, on the previous adjourned date, requested for a list of polling stations where the petitioners claimed the same serial numbers were duplicated on many pink sheets for countless different polling stations across the country.
The petitioners provided the full list of more than 2,000 polling stations to Mr Tsikata yesterday, but Mr Tsikata refused to tender the list in evidence before cross- examining Dr Bawumia on them.
Instead, he listed 20 out of the 2,000 polling stations submitted by the petitioners and planned to cross-examine on them and then move into other areas later, but the bench and Mr Addison wondered why he had taken that decision.
Mr Addison insisted that Mr Tsikata tender the document in evidence before cross-examining the witness on it, but Mr Tsikata said he only sought to cross-examine on areas relevant to his client’s case and for that reason he was not going to tender the document in evidence.
Mr Justice Atuguba said Mr Tsikata’s stance was “puzzling”, while Mr Justice Jones Dotse implored him to tender the full document, since the court did not have the list to make reference to.
On realising that Mr Tsikata would not budge, the panel entered into a split decision and accordingly held that Mr Addison was at liberty to tender the list of the 2,000 polling stations during the re-examination of Dr Bawumia.
‘Mind your language’
Mr Tsikata then expressed wonder as to the way and manner the court was proceeding, but Mrs Justice Vida Akoto-Bamfo enquired whether Mr Tsikata was getting angry.
She then advised him to mind his language, but Mr Tsikata later explained that he did not intend to malign the bench.
After the court’s decision, Mr Tsikata then pulled a list of 20 polling stations from his file and sought to cross-examine Dr Bawumia on them, but Mr Addison opposed the move and said he did not see why Mr Tsikata should cross-examine on documents which did not have primary sources.
According to Mr Addison, what Mr Tsikata was seeking to tender was from the original list the petitioners had provided to him.
Mr Tsikata responded and said the source of his document was the pink sheets.
The court is expected to rule on the issue on Monday, May 20, 2013.
The Petition
The petitioners filed the petition on December 28, 2012 and alleged that the December 7 and 8, 2012 presidential election was fraught with malpractices of over-voting, non-signing of pink sheets by presiding officers or their assistants, voting without biometric verification and duplicated serial numbers of pink sheets.
However, President Mahama, the EC and the NDC have denied that any such irregularities occurred during the election.
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