Philip Addison and Tsatsu Tsikata
Philip Addison and Tsatsu Tsikata

The landmark presidential election petition received a major boost yesterday when the Supreme Court ordered a count of all Pink Sheets involved in the petition.

The issue of how many pink sheets were attached as exhibits by the petitioners continue to be hotly contested by the parties in the ongoing proceedings and the court?s order will settle the matter once and for all.

The Order

The order followed an extensive behind-closed-doors meeting between the justices and all the lead counsels for the parties in the petition, where they eventually settled on KPMG, a renowned international accounting and auditing firm, to do the counting.

According to the nine-member panel chaired by Justice William Atuguba, the accounting firm has the duty of ?specifying in respect of each pink sheet, polling station name and its code number and exhibit number if any.?

?In doing so the said referee should make a true and faithful count of the said exhibits of pink sheets according to and under the various categories of alleged electoral malpractices in issue before this court.

?The said allegations as appearing contained and specified in paragraph 44 to 67 of the affidavit of the Second petitioner relating to the Presidential Election petition pending in this court filed in the registry of this court on April 7, 2013, specifying in respect of each pink sheet, polling station?s name and its code number and exhibit number if any,? the order said.

The court said the professional fees to be charged by KPMG should be shared equally between the parties and added that each party is at liberty to choose two representatives for the counting exercise as observers.

The court said that KPMG ?should do it and submit the report to the Registrar forthwith?

How It Happened

The issue of counting of the pink sheets resurfaced when Tsatsu Tsikata, lead counsel for the ruling National Democratic Congress (NDC) and Dr Mahamudu Bawumia, the principal witness in the petition, clashed over who was right with the number of pink sheets in exhibition during Mr. Tsikata?s seventh day of cross-examination.

Tsatsu said the NDC had a little over 7,000 pink sheets, while Dr Bawumia insisted that the petitioners submitted 11,842.

The NDC and President John Mahama, in their joint affidavit sworn to by Johnson Asiedu Nketia, had indicated that they received over 8400 pink sheets.

Now the NDC says the pink sheets they received are short of 3337, according to Nana Ato Dadzie, a member of the party?s legal team.

It will be recalled Tony Lithur, lead counsel for President John Dramani Mahama as First petitioner, during his cross-examination of Dr. Bawumia made similar request and later backed down when Philip Addison, the petitioners? lead counsel submitted that, if there was going to be any audit, then it should include audit of all the violations, malpractices and irregularities on the face of the pink sheets.

The court had to ask him to withdraw the request with liberty to re-apply for the counting, if Mr. Lithur so wished because the request appeared premature.

Quantum of Evidence

Counsel: Now, in respect of your affidavit which I have referred you to in the context of these pink sheets, I want you to look at paragraph 44 to 67 just to confirm that those are the paragraphs where you set out the arrangement of your exhibits.

Witness: Yes, my lords.

Counsel: Those are the only paragraphs where you are dealing with the exhibits you brought to this court, is that not correct?

Witness: That is correct, my lords.

Counsel: ?It is clear that under each category, you have enumerated how many exhibits fall into those categories?..is that not correct?

Witness: That?s correct.

Counsel: And so those characterisations in those categories are the exclusive categorisation we can use for your exhibit.

Witness: They are; as I?ve said, we?ve moved from 11,842 to 11,138. All of them are contained in the analysis that I have here before me. So, as I said in my Evidence in Chief, there is an updated analysis that we?ve done since deposing to this affidavit and I think when we have the chance, we would let the court have the various categorisations for each irregularity?

Counsel: Dr. Bawumia, you talked about your updated list in cross-examination?

Witness: No, I think I talked about my updated list in my Evidence in Chief. If I recall, that was when I brought up my updated list.

Counsel: (He goes to argue that the third respondent did not get up to 11,842 pink sheets as claimed by the petitioners)?I am putting it to you-my lords, we have a count , but I?m not sure we necessarily need to put it to the witness -, 6,833, they did not supply. They did not supply pink sheets in respect of 6,833 polling stations?(According to Counsel, the MBP category of the petitioners evidence relating to duplicate serial numbers of polling stations was inconsistent with the number of evidence released to respondents. There was a continuous banter between counsel and witness over the number of pink sheets supplied. Justice Atuguba had to intervene)

Justice Atuguba: On this controversy about the number of pink sheets delivered to the respondents? (Counsel steps in)

Counsel: No, no, my lords, I have made a further step; I said if you looked at what he has identified and numbered in his affidavit and you? just count, you will not get to 11, 842, that is a very important point.

Justice Atuguba: That is what I?m going to address also. I?m thinking about this question of audit which we deferred, whether it is necessary at all. This is what I?m trying to see that the numerical total can easily be ascertained from the numbers quoted in their affidavit as the exhibits they are relying on and supplied to you. The only question is whether they?ve taken out any, but that is subsidiary. You can ascertain that [the number in the affidavit].

Counsel: My lords, respectfully, you cannot. Let me respectfully explain why. In the affidavit where he says exhibit MBP 1-6,822, on the face of it, we should have 6,822, now, there can be exhibit 1 and exhibit 6,822, but in-between, there are lots missing, and when they are missing, they can give the impression of 6,822 by duplicating sheets. So in that respect, it is important that I take him through exactly what he attached to his affidavit evidence?. (Justice Atuguba interrupts)

Justice Atuguba: But the other side of the coin is that, if you were to list out all the exhibits you claim have been supplied to you numerically, we would see the total that you say has reached you, and then the difference would then begin to show in relation to the number they are claiming they, in fact, delivered to you.

Counsel: But, my lords, there are serious legal consequences. For instance, if all we received is 7,092, then basically, our answer and our cross-examination is limited to some proportion of the exhibits that they claim are in issue in this case?So my lords, if we are able to establish that even on the face of his affidavit, we do not have 11,842 then my lords, we have a big problem legally? (Philip Addison rises to intervene)

Mr. Addison: My lords, if counsel has been served with an affidavit supposed to have attachments amounting to 11,842 and he takes delivery of this service and he doesn?t get 11,842, I would have thought that he would have referred it to the registrar instead of coming here to say that he is missing so much?Now coming here and saying that I don?t have A,B,C, we supposed to believe that?

These exhibits, there is no stamp from the registrar, there are no stamps at all on them, so how would we know what he has been served with and what he has not been served with??(A mini argument ensued, but was quelled as Justice Atuguba asked counsel to continue his cross-examination)

Counsel: ?If this court ordered a count of that, we should have 11,842 polling stations?

Witness: Yes, my lords?I think if an audit is done, I believe that we will find 11,842 pink sheets for separate polling stations in the data we?ve submitted to the court ?(Justice Atuguba intervenes)

Justice Atuguba: If I may suggest that since the audit is coming up strongly as a medium that can settle this issue, maybe you can proceed with other aspects.

Counsel: My lords, respectfully, I am going to make an application in respect of the count at this stage for the simple reason that I would not be able to complete my cross-examination?(Justice Baffoe-Bonnie interrupts)

Justice Baffoe-Bonnie: What did you say is the figure that they submitted?

Counsel: My lords, I?m not sure I need to disclose?

Justice Baffoe-Bonnie: No, no, you just disclose?

Counsel: It?s not 11,842. I?m certain about that, that?s why I put it to him?..but my lords, respectfully; I have a reason for not disclosing the number at this point. We would give the number ultimately. I have every reason not to give the number, because the credibility of the witness is at stake.

If the witness says that he exhibited and attached 11,842 polling station pink sheets and we count even his own affidavit identification and it doesn?t come to that, respectfully, that is a huge issue about his credibility?..(He formally applied for a count of the evidence on the pink sheet ?in the interest of justice?.

Mr. Lithur rose to back Mr. Tsikata after which James Quashie-Idun Counsel for the EC also affirmed his support for the counting. Philip Addison interrupts)

Mr. Addison: My lords, the respondent has still failed to first of all, tell us how many polling stations they can count on the affidavit. They have also failed to disclose to us how many exhibits they have actually received.

We, as petitioners, are saying that we have provided 11,842 polling stations. Now, after receiving the affidavit, if you have not received that number, what do you do?

Do you wait and come to court to now tell the court that you did not get up to that number, or you go back to the registry??They had the opportunity and they failed to take advantage of that?We have done the check on the affidavit, you say you have done it, so tell us how many you got?

Mr. Lithur came again and insisted that per the affidavit deposed to by Johnson Asiedu-Nketia, they did not receive that number.

Justice Atuguba suggested that the court should go on break and come back to read the ruling on whether to count or not, but not before he had asked Mr. Addison whether he objects to the counting; ?We can do it now,? counsel replied and asked the counsel for the third respondent to disclose the specific number they calculated.

Mr. Tsikata responded that, ??., I will not, in the hearing of the witness, give the number that we have counted?because that is going to prejudice my cross-examination.?

In the process, Justice Baffoe-Bonnie calculated the figures in the affidavit and announced that it was indeed 11,843, one more than what the petitioner have put out.

After The Order

Immediately the court ordered the count, Mr. Tsikata took Dr. Bawumia straight to the polling stations with same codes category, trying to throw a few punches at the witness.

He told the court that the petitioners exhibited parliamentary pink sheet as part of the case to which Dr. Bawumia admitted that it was not relevant to the petition.

Counsel again pointed to Dr. Bawumia that the petitioners attached same polling station code with two different exhibits and the Economist again replied ?Yes, but only one was used in the analysis.?

The witness admitted that there had been mislabelling of exhibits but none of them had been used in the analysis twice.

Mr. Tsikata also pointed Dr. Bawumia to two exhibits in different series as categorised in respect of same polling station and the witness? response was that still none of the pink sheets featured in the analysis twice.

The NDC counsel at this point told the court that he had given a huge list of polling stations with same serial numbers, which they needed time to sort out and requested for an adjournment for him to cross-examine Dr. Bawumia, which the court obliged.

Earlier Exchanges

Proceedings started as usual and for more than 30 minutes the cross-examination progressed with the laborious identification of each pink sheet. This prompted Mr. Addison to protest.

Mr. Addison: Earlier on in the morning, your lordships talked about composite questions, but we have started on the same vein of same repeated questions of each pink sheet when a composite question could have taken care of that group of pink sheets?

Counsel: My lords, you gave a ruling in respect of composite questions when we were dealing with identification of documents.

We have given a list since yesterday, each document in that list has some specific features which the court?s attention can be drawn to and it is important for this case and for the questions that I?m going to raise in cross-examination that he identifies in each case, the specific document that are unique to each of the pink sheets in this list? (He went on further to justify his style to the bench, but the judges were a bit unsure about his explanation. Justice Sophia Adinyira tried to explain the contention expressed by Philip Addison)

Justice Adinyira:? Mr. Addison?s point is that you have given him a list-like the previous list-, where basically you were saying ?look whether there are signatures?.

This list, we expected that from the three or so questions you have asked for about three sheets, the issue is that there is date, name and time, so perhaps what he meant was that after giving him that list, you may say ?look whether these (dates, names and time) are there so that he flips through?Perhaps that is what he meant, not that you should not ask the questions you want.

That?s what I think he meant by ?composite?. We have noticed that you are bringing batches of specific (pink sheets) for specific questions and for specific challenges. So if these eight, the challenge is the same, perhaps you ask him to look through and you ask him one question?

Counsel: No my lords, it?s not really feasible to do it that way because there are different elements for each of them.

Adinyira: Okay, okay. As for that one, we can prevent you from dealing with them one by one?(Afterwards, counsel continues with his cross-examination. He showed the witness a number of pink sheets to identify specific features on them, particularly the endorsement of pink sheets by polling agents)

Counsel: (Showing witness a particular pink sheet)?On this pink sheet, your polling agent actually signed, isn?t that correct? But there is still something written in the column to the right, your polling agent signed, is that correct?

Witness: That?s correct.

Counsel: And what is written in the column where you normally give your indication as to any protest?

Witness: It is very interesting; the polling agents [the NDC and the NPP agents]. Those are the only two polling agents in this polling station. The NDC wrote ?Accepted/Good? and then under the NPP column, [agent wrote] ?Accepted?.

Interestingly, the two are exactly the same handwriting for what the NDC wrote as ?Accepted? and what the NPP wrote as ?Accepted?. So I found this very curious (Sends the courtroom roaring with laughter).

Counsel: That?s a major malpractice, is it?

Witness: A curiosity? (Sends courtroom roaring with laughter again)

Counsel: That?s why I showed it to you. Now, you really are not a handwriting expert, are you?

Witness: No, I?m just talking about what I can see on the face of the pink sheet.

Counsel: I will suggest we do not?because the first ?Accepted? there is some poor spelling unfortunately from the NDC polling agent?

Witness: He may have corrected it the second time? (Courtroom roars again in laughter)

Counsel: On the face of it, I think the ?Good? doesn?t seem to have been written in the same handwriting, but I think we would gloss over it. Now, Dr. Bawumia you would be familiar where at the polling station where initially, there is a context and it is settled and a situation is accepted by all parties. You are familiar with that isn?t that correct?

Dome Kwabenya in court

Witness: Yes, I?m sure. I think Dome Kwabenya comes to mind.

Counsel: And in the end, there was an accepted result in Dome Kwabenya?

Witness: That?s right.

Counsel: And in that case, probably the NPP agent wrote ?Good??

Witness: He didn?t, he was very upset with what was about to transpire (Laughter again)

Counsel: Of course you know that in Dome Kwabenya, the issue was really about collation, was it not?

Witness: That?s right.

Counsel: It was about collation, it was an issue that arose at the collation centre.

Witness: That?s right.

Counsel: And it was not an issue that arose from any pink sheet from any polling station, is that not correct. No tallies, no vote attributed to any candidate were in contest in Dome Kwabenya, you know that?

Witness: I think the right votes were not being entered for specific candidates?. (Interrupted by Counsel)

Counsel: Please answer my question. In Dome Kwabenya, no votes attributed to any candidate at the polling station were an issue.

Witness: Actually they were in issue because the vote tallied for the first petitioner was being reduced artificially and that was not on the basis of the pink sheet, and this was the basis for the protest.

Counsel: My question is not answered. I said that at the Dome Kwabenya collation centre, the issue was not about what was on any pink sheet?

Witness: It was because the pink sheet did not support what was being written for the results of the first petitioner.

Counsel: So is the Dome Kwabenya Pink sheets part of the allegations that you brought before this court?

Witness: But we said that issue was resolved before [the petition was drawn] because the parliamentary candidate stood her ground and made sure the right thing was done.

Counsel: Dr. Bawumia, please let?s deal with this in a straight-forward manner; you are saying there was an issue at Dome Kwabenya. I put it to you that that issue had nothing to do with the pink sheet in respect of the different polling stations and you said it had to do with the pink sheet in the polling station, is that not what you said?

Witness: I said that the results that were being entered or trying to be entered for the first petitioner were not consistent with the results on the pink sheets.

Counsel: So the answer to my question about the votes attributed at each polling station to each candidate-was not the issue?

Witness: It was the issue because if you enter the wrong votes for the first petitioner, it would mean that the votes attributable to each candidate would not be consistent with that.

Public declaration

Counsel: Dr. Bawumia, in fact, you know that at each polling station, as results were declared, not only was it in the full view of the public, but as results were declared, there were for instance television stations; there were radio stations capturing the declarations, you are aware of that?

Witness: I don?t know how many TV stations were in 26,002 polling stations across the country. In some places, yes, there was coverage, but in the vast majority of the places [don?t have access to the electronic media coverage]

Counsel: Dr. Bawumia, I didn?t say there was TV coverage in all polling stations. What I? m saying that you are aware that there was coverage at polling stations?

Witness: At some polling stations; relatively few.

Counsel: And you are also aware that there was coverage by radio stations throughout the country, you are aware of that?

Witness: In some polling stations, this is how we found out voting without biometric verification in Nadowli Kaleo, for example. It was on radio.

Counsel: And so, in fact, there are records available also from the media networks about these declarations. There are records available, are you aware of that?

Witness: The only records we are going by is the record on the face of the pink sheet.

Counsel: I fully appreciate that you have your selective record, but I?m asking you that are you aware that there was [records]?

Witness: Oh yes, I?m aware. Some TV stations and some radio stations were announcing their own election results.

Counsel: I?m not talking about them announcing their own election results. I?m saying that the declarations at specific polling stations were in some case, captured either on radio networks or on TV networks?

Witness: I will not doubt that, there might have been some declarations captured.

Counsel: By the night of 7th, you were watching TV; you were watching news from different places, weren?t you? You were expecting to be Vice President, you were watching?

Witness: (Laughs) we were expecting the country to move forward on the 7th. We were not expecting me to be Vice President; as I keep saying, this is not a personal endeavour; we are fighting for the democracy of this country; for the future of this country?

Sitting continues on Monday May 13, 2013.

By William Yaw Owusu & Raphael Ofori-Adeniran

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