MAHAMA FIGHTS BAWUMIA BLOW FOR BLOW

 Dr. Kwadwo Afari-Gyan enters the courtroom

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday April 23, 2013.

Tony Lithur, lead counsel for President John Dramani Mahama yesterday tried to discredit star witness Dr. Mahamudu Bawumia in the presidential election petition but the economist remained resolute in his answers.

In the course of the 2^nd day of heated exchanges during cross-examination, Mr. Lithur suggested to Dr. Bawumia that the petitioners deliberately duplicated the pink sheets, filed them as exhibits in order to deceive the court.

However, the former deputy Governor of Bank of Ghana and running mate to the NPP Presidential candidate for the 2012 elections said “if it is duplication of pink sheets you are looking for then I can tell you that you have a higher mountain to climb and it is high like Kilimanjaro.”

Respondents Rejected

The Supreme Court also rejected a request by the respondents to have all polling stations in dispute recounted.

According to the nine-member panel presided over by Justice William Atuguba, once the 1^st resp[ondent (President John Mahama) and 3^rd respondents (National Democratic Congress) in their affidavits have been able to ascertain their number of polling stations, there was no need to order a recount.

The issue of how many pink sheets or polling stations - where violations, irregularities and malpractices occurred - were involved in the analysis of the petitioners, has become contentious between the parties.

There was a suggestion by a member of the panel that the team of auditors requested by President Mahama’s lawyer to audit the pink sheet can also go into tallying the votes since that was the core of the petitioners demand.

The first respondent’s lawyer rejected that suggestion indicating that it was too early to tabulate the entire results.

Over 11,000 vrs 8,621

According to the respondents, the petitioners have kept changing the number of pink sheets of polling stations involved starting from over 11,800 to over 11,200 before settling on 11,138 even though when the court ordered the petitioners to serve them (respondents) further and better particulars, they only served them 8,621 pink sheets.

As the cross examination ensued, Mr. Lithur requested the court to have all the pink sheets recounted.

Lithur Grills Bawumia

Mr. Lithur asked Dr. Bawumia that “if we counted the pink sheets one by one, we will not have 11,138 polling stations that have formed the basis of your claim.”

Dr. Bawumia replied that “I disagree,” to which counsel said “I would want to apply to have them counted if not today. I am asking for an order from the court.”

Lithur’s Request

Mr. Lithur said that right from the order for further and better particulars, they “we have indicated that the petitioners have not served us with all of them.”

He said “we want the court to determine the actual number of polling stations involved.”

NDC Joins Lithur

Tsatsu Tsikata, representing the NDC supported Mr. Lithur’s position saying “We need that since the case of the petitioners is founded on the evidence attached as exhibits.”

He said an independent auditing of the numbers involved would go a long way to expedite the trial saying “both sides are clear on the figures so it is important to determine who is clearly wrong.”

EC Supports Mahama & NDC

The Electoral Commission (EC) represented by James Quarshie-Idun also associated himself with the position of President Mahama and the NDC saying that in their second amended answer to the second amended petition, they raised the same issue that the petitioners had failed to serve them with all the further and better particulars they requested.

Nana Akufo Addo and some NPP gurus in court

Judge Intervenes

Justice Paul Baffoe-Bonnie then cut in to ask the respondents whether the pink sheets had not been put in as exhibits not for their individual effects.

He asked again: “Would you go further to talk about the aggregation in terms of figures? It is the aggregation of figures on the Pink sheets based on the various categories of violation that count.”

Mr. Tsikata then said “our point is that the petitioners are saying that in those 11,138 there have been irregularities. The court ordered further and better particulars so we know where they claim irregularities occurred and if they do not have them exhibited then they have not obeyed the court’s order.”

Mr. Lithur came back to say that each polling station represented numbers and therefore they must be able to show those number and not some of them.

Another Judge Queries EC

Justice Jones Victor Dotse, another member of the panel then sought to know from the EC counsel if he was supporting President Mahama and NDC applications to which Mr. Quarshie-Idun said “yes”.

Addison’s Argument

Philip Addison, lead counsel for the petitioners then took the floor and said that should the court decide to do a recount of polling stations it should include an audit of the votes on the pink sheets.

“For us what is important is the number of votes we are seeking to annul and not the number of polling stations.”

“We are saying that the votes if annulled will have material effect on the results declared by the 2^nd respondent. There is the need for audit of the votes on the Pink Sheets.”

Nana Ato Dadzie speaks for the NDC

He said that the petitioners complied with the court’s order to serve the respondents with further and better particulars saying “at the time we did so it was in the region of 11,842 polling stations and it is on the basis of the numbers that we filed our affidavit. Subsequent to that we reduced it to 11,138.”

Mr. Addison said that it is the audit of the votes that would determine whether or not the votes were affected adding that after filling manually they followed it up with electronic copies.

Audit vrs Headcount

“We are not opposed to the audit but the referee should do more than the auditing of only polling stations and look for the numbers involved in irregularities.”

“We want a head count of the pink sheets and not audit. Audit is not too far away,” Mr. Lithur replied Mr. Addison, adding “when you have not proved that there is over-voting, voting without biometric, no signatures on pink sheets, how do you call for an audit?”

But Mr. Addison replied that “we want a full audit in respect of the case we have made. Audit will establish the numbers of these violations.”

Unanimous Decision

The court after a short break held that “we have noticed from the affidavits filed by the 1^st and 3^rd respondents that they have 8,621. If that is so, it means they have been able to ascertain 8,621. It is a question of demonstrating their case in the course of leading their evidence.”

The court held that it did not have any difficulty if the respondents insist they filed 8,621 polling stations saying “it is a question of demonstrating that this is what we received.”

The court then overruled the respondents request for audit of the pink sheet but added that they had liberty to reapply at any time.

Parliamentary Pink Sheet

After the ruling, Mr. Lithur was able to pinpoint on pink sheet which he said was that of parliamentary results added as presidential and accused the petitioners of shoring up the number of pink sheets to deceive the court.

Dr. Bawumai leaves court after being grilled by President Mahama's lawyers

Missing Polling Stations

Counsel also found out from Dr. Bawumia if the 22 polling station that the petitioners claim are not part of the 26,002 endorsed by the EC, were in the system and due diligence on the part of the petitioners would have proved otherwise but the witness insisted that the codes of those polling stations could not be found and they had to categorize it as not part of the main system.

On the issue of over-voting, Dr. Bawumia did not  agree with counsel that because NPP polling agents did not complain, the petitioners cannot raise the issue.

Mr. Lithur again suggested to the witness that the EC in its answers had admitted that some errors committed by their officers might have led to over-voting to which Dr. Bawumia said “we only looked at the records in our analysis…Over-voting is over-voting.”

He said that over 95 per cent of the incidence of over-voting did not appear in the category of zero as suggested by counsel.

Other Transcription done by Raphael Ofori-Adeniran

Counsel: In your affidavit, you alleged that and I am quoting; “there were 6,823 polling stations where…” (paused to quickly retract and correct himself on the line of questions). In paragraph 46 of your affidavit, you stated that there were combined infractions….oh my lords I am sorry… (Makes a mistake again and quickly corrects himself). I quoted the correct one the first time, which is paragraph 56, now in that paragraph, you exhibited the MBP series. Now take a look at exhibit MBP…

Counsel: Now doctor, you also alleged that the same polling station had different results and that is an irregularity. It is one of the groups of irregularities which you alleged, is that correct?

Witness: Correct

Counsel: Now look at exhibit MBE 245, same polling station, my lords. I am suggesting to you, Doctor, that your introduction of parliamentary result into this case by affidavit is yet another attempt by you to pad up the numbers that you claim make up your case of irregularity? (After a long pause) I will move to something else for now…. (Justice Atuguba interrupts)

Justice Atuguba: has he admitted that MBE 245 is from the same polling station?

Counsel: Those two are from the same polling station aren’t they?

Witness: My lords, it’s the same polling stations, with different serial numbers…that is highly irregular. My lords, since my affidavit we have dropped the number of polling stations from 11,842 to 11, 138, it is almost 700 difference. If I cannot check to see whether what I received from Counsel is still part of what we are relying on…I don’t have the sort of memory where I can remember every polling station, I don’t know whether this is relevant and maybe you may just be wasting your energy.

Sir John answers questions from the media

Counsel: The Irregularities, as you say, are on the face of the pink sheets, I am suggesting to you that on the face of the pink sheets, you are trying to use parliamentary result in the presidential election, you don’t need any document.

Witness: I do, actually, to see if this polling station is still part of our case because we have dropped about 700 as I have told you.

Counsel: Can I have the exhibit C series and see whether it is one of those you have dropped.

Witness: My lords, C series would contain about 83 polling stations, but the entire reduction from what we swore to in the first affidavit. It is almost 700, so this is why I say that one has to look at the details to see what is actually in the 11,138.

Counsel: Did I hear you right that you reduced your polling stations by 700?

Witness: I am telling you that we swore to 11,842 and we are relying on 11,138, this is the difference.

Counsel: I am confused, what was exhibit C series supposed to do? Was it not supposed to indicate the number of reductions you’ve made to your existing [evidence]?

Witness: What we said was that we are providing 11,842, but what we actually provided was 11,221 and it is from that 11,221 that we reduced by 83 to get to 11,138.

Counsel: So doctor, as we sit here now, we don’t know exactly what polling stations you’ve deleted?

Witness: We do

Counsel: I don’t

Witness: What I am saying is that we have “further and better particulars”, you have what exactly we are relying on now and this is why I want you to know what we are relying on now: the 11,138, which you are very reluctant to know.

Counsel: I think you succeeded in confusing me. I am suggesting to you, doctor, that this exhibit MBE 245 is not one of the documents you have expunged.

Tsatsu Tsikata

Witness: Well, counsel I can only confirm if I check, if I don’t check, I cannot confirm.

Counsel: You also alleged that initially 23 polling stations were not on the polling list, 26,001 polling list of the electoral. That number somehow was reduced to 22. According to your counsel, you have provided 23. Before I continue, I have a list of 23 polling stations, I am going to put you to election of one of them that I should not ask you questions about. If you look on my affidavit….(Counsel for petitioners, Philip Addison interrupts)

Addison: My lords, I thought we have settled on 22; the respondent said they have information on 22 polling stations, so he should ask questions on the 22 that he has and not put the witness to his election, if he does that, it means they are accepting 23.

Justice Atuguba: I don’t know whether that number was finally settled one way or the other, but it seems the last seating was settled at 22.

Counsel (Tony Lithur): Yes.

Justice Atuguba: So if it was agreed across board, then work on 22.

Counsel (Tony Lithur): Very well. Have you got our affidavit, affidavit sworn by Johnson Asiedu Nketia, have you seen a copy?

Witness: I have seen a copy, but I don’t think I have one here

Counsel: Your counsel may wish to give you one, but I will be happy to give you mine as well. We have attached to that affidavit exhibit JAN 5. Have you presented this court with a list of polling station based on which you can make a decision as to whether you are right or wrong (26,001 polling stations)?

Philip Addison

Witness: (Corrects) 26,002 polling stations.

Counsel: (Accepting the correction) 26,002 polling stations.

Witness: I don’t think so

Counsel: I am suggesting to you…look at exhibit MBAB 1, can you read out to the court, the code number on that?

Witness: EO5011

Counsel: No it’s not

Witness: That is what I have seen

Counsel: What is the name of that polling station?

Witness: (Unsure about the legibility of the code)

Justice Atuguba: Take it and suggest to him what it is (referring to Counsel).

Counsel: My lord, it is essential that he should tell me what he has identified…I am suggesting to you that it is CO50118 B (Counsel for petitioners interrupts)

Counsel (Philip Addison): My lord, counsel should look closely at his own exhibit, what he has put there is CO5091 AB and not 5011, a completely different code number from what has been written on the pink sheet.

Counsel (Tony Lithur): Now, what is the name of the polling station…(Addison interrupts again)

Addison: My lord, counsel should agree with me that the number he quoted was wrong.

Justice Atuguba: Yes, yes…

Counsel: My lord that is on the face of it he [Addison] is correct. CO5091 AB. (Picking up an exhibit). The name of this polling station is St. Peters’ Mission…Have you got any other result covering St. Peters School CO50113 B that you quoted in your better particulars?

Tony Lithur

Matching Pink Sheets

Witness: My lords, when you get a pink sheet, you have to match it with the 26,002 list from the Electoral Commission, by name, by code, they have to match, if it does not match, it has to be unknown and this is why this [St Peters Mission School polling station code CO50113 B] is unknown.

Counsel: Now look on that polling sheet and find out are there results on that polling sheet?

Witness: Yeah, in this category as a whole, you have over 9,685 for the 22 polling stations; less that 10,000 votes in all, so there are votes as we have said, it’s just that we couldn’t match them one-for-one with what was on the list [EC list] either by code to make them unique.

Counsel: Now your polling agents signed all those pink sheets, didn’t they?

Witness: Absolutely, it looks like so

Counsel: Do you know the process of appointing polling agents to polling stations?

Witness: But I know when something doesn’t match

Counsel: You haven’t answered my question.

Witness: No, am saying that the candidates would choose their polling agents, but this is not to do about polling agents signing.

Counsel: It has

Witness: It has to do about whether the polling station, as provided on the pink sheet can be found exactly one-on-one mapping with the polling stations as provided by the second respondent [the EC]. If you cannot find it, it doesn’t match and it is unknown.

Counsel: Doctor, I put it to you that before you appoint a polling agent, you must have known what polling station he is going to go to.

Witness: Not necessarily, actually on the day of the election, a lot of our candidates were told, we are going to open a polling station here, bring some agents. This was very normal on the day of election, so that is no surprise to us, the second respondent can explain it. Yes, that is normally the case that you should know, 42 days before that that is where the polling stations are, but if you don’t and if you get the pink sheets and you can’t identify the polling station, you can’t identify them.

The Tilapia Analogy

Counsel: You designated polling agents to specific polling stations, did you know this?

Witness: Absolutely, if you open a station where voting would take place, our agents would go there, but that doesn’t mean that those stations have to be on that register.

Counsel: Your agents participated in the election, didn’t they?

Witness: Yes, but they cannot validate an illegality

Counsel: Now they observed voting, did they not?

Witness: Yes my lord, they observed voting, but that does not have anything to do with whether this polling station legally existed or not.

Counsel: Now the voting was based on a register, was it not?

Witness: Presumably, yes.

Counsel: Did your polling agents tell you in those polling stations that somebody came there who was not properly identified and yet was allowed to vote

Witness: Well we have a lot of evidence in this particular case where about 535,000 people were not properly identified but were allowed to vote in this election.

Counsel: I am just asking you that what you sent polling agents to the polling station to do is to actually check and make sure that people who appear to vote are actually those whose names appear in the register, it that not correct?

Witness: Well, that is what they are supposed to do…(cuts in)

Counsel: Yours didn’t do it?

Witness: I am telling you, just as they are supposed to do it, they may not have done it as strictly as they were supposed to do, or they observed. Our agents are largely observers at these places; the presiding officer can actually get rid of an agent from a polling station. So the idea that because an agent is there validates everything that happens in that polling station cannot be consistent with the law.

Counsel: Doctor, are you suggesting that in certain instances, your polling agents did not do their job properly.

Witness: Am not suggesting anything, all am suggesting is that many candidates did not even have agents so we rely on the EC to do their work properly….

Counsel: Doctor, your party have gone on a campaign of let every vote count, are you suggesting to this court that because a polling station does not exist on EC’s list, assuming you were right, supervised voting, there was no over voting etc…those votes should not count?

Witness: My lords I am telling the court that every legal vote should count, so if it is an illegal vote, we should not count it. That is the bottom line.

Counsel: Now, I understand you to be saying that your polling agents may not have been very observant?

Witness: I am saying, just like you may have your watchman that allows somebody to steal your Tilapia, even if that happens, you don’t hold the watchman; the person who stole your Tilapia you take them to court and get your money’s worth from them, regardless of what role the watchman played. This what am just telling you.