Tony Lithur with Tsatsu Tsikata & Chris Ackumey
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday May 30, 2013.
The beauty of yesterday’s Presidential Election Petition hearing was marred by a rude conduct displayed by Tony Lithur, lead counsel for President John Dramani Mahama who is the 1st respondent in the petition.
Displaying what could be termed as gross disrespect to the bench and in the full glare of the camera, he threw away a huge book containing the further and better particulars where the petitioners are claiming irregularities occurred during the December 2012 presidential election when the petitioners counsel wanted a witness to identify the document.
His behaviour attracted a sharp criticism from a member of the nine-member panel Justice Paul Baffoe-Bonnie who said “This behaviour is very much uncalled for; it is clearly condemnable.”
The incident happened when the 3rd respondent (National Democratic Congress - NDC) represented by its General-Secretary Johnson Asiedu-Nketiah aka General Mosquito was winding up his cross-examination at a packed court.
Philip Addison, lead counsel for the petitioner conducting the cross-examination tried to pass on a document said to be a compilation of a list of Further and Better Particulars of pink sheets in contention and as practice demands the document has to go through the witness’ counsel first.
As the court interpreter presented the document to Mr. Lithur he looked at it for a few seconds before rudely pushing it away to the bewilderment of everybody in the courtroom.
The action attracted a protest from Mr. Addison and eventually a stern reprimand from the bench.
Counsel (Mr. Addison): This is the man who talks about respect in the Supreme Court with this kind of behaviour.
Mr. Lithur: When counsel seeks to bring that kind of document to court as Further and Better Particulars, I don’t know what he expects. The further and better particulars were given in volumes indicating which paragraph is referring to what, and it’s not just one volume …talking about respect, I beg your pardon!
Justice Baffoe-Bonnie: This behaviour is very much uncalled for; it is clearly condemnable. You know your behaviour is towards the court? You should know that. You have been telling your witness that anytime he answers a question, he should say; “Yes My Lord”…. You should know that whatever reaction you put up is clearly an affront to the bench.
In any case, you know you should interject when a document should not be tendered or should not be identified. The document to the person (the witness) is not meant for you, it was supposed to go to the witness. It is after the witness has identified the document that you can come in. But clearly, to throw the document the way you did was wrong.
Mr. Lithur: Apologies my lords.
Justice Atuguba: I was going to say the same thing, but you see, jettisoning of cargo is not something to be done at the bar.
Mosquito’s Tape Recording
Before ending his cross-examnation, Mr. Addison confronted General Mosquito with an interview he purportedly granted Accra based radio station on December 20, 2012, where counsel said he admitted most of the issues he had earlier denied while in the witness box.
He had stated that he did not hear the EC Chairman Dr. Kwadwo Afari-Gyan declare that all polling stations where the votes in the ballot box exceeded the number of people verified to vote would be annulled and said that the Inter – Party Advisory Council never took any such decision.
He told the court that the EC could not have used press conferences to formulate new laws meant for the election and insisted that such a decision was ever taken at the IPAC.
Eventually when the tape was played in open court, the witness admitted that it was his voice and on the recording he was heard clearly stating that at the IPAC meeting, the parties had agreed that no person should be allowed to vote without verification.
“Let somebody come out to say that at this particular polling station there was voting without biometric verification and that those polling stations must be annulled. We agreed at IPAC level that there is no way voting should take place without biometric verification and these were all agreed before we went into the election. So it is surprising that any political party would not inform its agents or the electoral commission would not inform its officials and that would happen,” the court heard.
He even went as far as far as recommending the jailing of such officials for allowing the malpractice in their polling stations when he was confronted by the radio station with the issues.
“I think that those people must be in jail by now, if anything of that nature happened because I would be surprised. You remember that the last two weeks of the elections, the clarion call of all the parties and electoral commission in all the adverts and all was no verification, no vote,” the court heard.
He even said that in polling stations where irregularities affecting the conduct and outcome of the polls should were said to have occurred he called for the annulment of the result and the tallies taken out of the national data.
“If there is evidence that any such thing happened, you and I know that the electoral law provides that where irregularities are detected at particular polling station, the sanctions could be that the results of those particular polling stations would be cancelled and taking out of the national tally; so that is it,” the court heard further.
He also said on the tape that “If something happens that should not have happened according to the electoral law, the results if cancelled and taken out of the constituency tally would affect everybody equally because nobody would know who has cast his ballot there and in much the same way if you open the ballot box and you count and the number of votes inside the ballot box are found to be in excess of the number that actually voted, or if the votes there are in excess of the number of registered voters at the polling station, that is automatic cancellation.”
But in court yesterday, he disagreed with the petitioners counsel when he was confronted with the issues.
Ato Ahwoi with Kobby Acheampong
EC Takes Over
There was a bizarre legal spectacle in the courtroom when James Quarshie-Idun, lead counsel for the EC took his turn to cross-examine Mr. Asiedu-Nketiah.
Instead of cross-examination, he was clearly seen re-examining the witness compelling Mr. Addison to raise objection to the line of questioning.
In all the questions Mr. Quarshie-Idun asked the NDC General-Secretary, it was questions that Mr. Addison used in pinning down the witness in cross-examination and clearly wanted him (witness) to refine his answers.
As it went on for a while, Mr. Addison asked the court if the EC counsel was cross-examining or re-examining the witness.
He said he the EC counsel could cross-examine the witness but did not have to “cross-examine on my questions…he is clearly doing re-examination.”
Mr. Quarshie-Idun defended his action insisting that “we are entitled to test the credibility and confirmation of our case.”
Mr. Addison came back arguing that “his cross-examination has been turned into re-examination. He is trying to unravel some of the things that we have done and in all fairness he has to restrict himself to the witness examination-in-chief.”
The court in a unanimous decision sustained Mr. Addison’s objection and said the EC counsel was entitled to do cross-examination but not to re-examine the witness.
Put in a tight corner by the ruling, Mr. Quarshie-Idun asked Mr. Asiedu-Nketiah about provisional voters register and sought to know whether or not a CD Rom accompanied the document and when the witness answered the question, he said “that will be all for this witness.”
Mr. Tsikata then said “there will be no re-examination for the witness. That closes our case,” before Mr. Lithur also said “we have no re-examination,” for their witness.
Afari-Gyan in the Box
With Mr. Asiedu-Nketiah completing his cross-examination, the EC Chairman who was the Returning Officer of the Presidential Election is expected to be the next witness to mount the box.
However, unconfirmed reports reaching Daily Guide indicate that he has given Amadu Sulley, the EC’s Director of Finance and Administration the power of attorney to represent him in the box.
It was the same strategy adopted by President Mahama when he gave Mr. Asiedu-Nketiah the power of attorney to represent him in the box.
Since the proceedings started, Sulley Amadu is the person who has been deposing to majority of the affidavits filed in the process.
Centres for Special Voting
The first objection of the day was raised by Tsatsu Tsikata, lead counsel for the NDC when he said the petitioners counsel was trying to ask Mr. Asiedu-Nketiah questions on a list that he (witness) did not generate.
He said the list which contained centres used during the special voting had not been identified or tendered and the witness was not in a position to answer any question but Mr. Addison countered that the witness was in the process of identifying the list and had been asked to go through.
After a back-and-forth argument the court unanimously sustained the objection raised by Mr. Tsikata after which Mr. Asiedu-Nketiah was asked by the petitioners counsel to explain the processes of special voting.
Another heated debate ensued when Mr. Addison tried to ask Mr. Asiedu-Nketiah to identify a form which turned out to be Akwapim South Collation Form.
Mr. Tsikata again raised objection saying that the witness was not in any position to identify a document of that nature since it was produced by the EC who are the custodians of electoral materials.
“The fact that he is familiar with collation forms does not mean he can answer questions on its content. There is no pleadings or exhibits that were attached by the petitioners in respect of this document,” he argued.
Mr. Addison replied that “the witness is giving evidence as to what goes into a collation form. We are seeking to contradict what he said in his earlier evidence in respect of the collation form. We are seeking to confront him on his own evidence.”
The court in a 5-4 majority with Justices Julius Ansah, Rose Owusu, Annin-Yeboah and Baffoe-Bonnie, dissenting, sustained the objection.
In almost all the questions put to him, the NDC General-Secretary preferred not to give direct answers but rather went on a long winding jolly ride, sometimes asking Mr. Addison to repeat his questions.
At a point he said “I am getting confused with your questions …could you repeat that for me?” generating a lot of laughter in the courtroom.
Unknown Polling stations
Counsel: Now, my Asiedu Nketia, you attached to your affidavit, exhibit JAN 5 that sought to explain the polling stations which the petitioners said were unknown, am I right?
Witness: Yes my lord, you are right.
Counsel: Do you have a copy with you?
Counsel: If you can turn to that (Waits as witness assess the exhibit). Now if you have a look at exhibit MBAB2, Ghana National Fire Service, code B023100. You provided it as a special voting polling station in cape coast.
Counsel: This polling station code is not in the list of special voting provided by the second respondent [the Electoral Commission] for the Central region, what do you have to say to that?
Witness: My lord it is in the list, otherwise, special voting would not take place there. My lord, you can see that there is a polling station code attached to it, even though counsel is insisting that special voting does not use codes
Counsel: Now the next one is MBAB3 Aminam. The polling station name is Aminam, the code given is F341100. Now you gave the name as Temporary Booth Aminamu and polling station code F341101?
Dr. Kwabena Adjei, Yaw Boateng Gyan and Johnson Asiedu-Nketiah
Witness: Yes my lord.
Counsel: Now both the name and polling station code you have given is not on the pink sheet in contention?
Witness: My lord, but the physical location of the polling station is not in doubt.
Counsel: Can you answer my question? The name and code you have provided is not on the pink sheet in contention.
Witness: My lord, the name and code are to identify the polling station and the physical location of the polling station is known, elections took place at that place…
Counsel: Can you answer my question?
Witness: My lord, the spelling may be different, but the physical location of the polling station is known.
Counsel: Can you please answer my question? The name and code of the polling station is not on the pink sheet, is it there or not?
Witness: My lord, the identity and the physical location of the polling station is known and it is not in doubt (Justice Baffoe-Bonnie intervenes)
Justice Baffoe-Bonnie: Answer the question; you can explain, but you have to answer the question.
Witness: Well my lord, the spelling is not what you see on the pink sheet, but the idea of the name and code is to identify a polling station, and the identity of that polling station is not in doubt.
Counsel: Now, I’m further suggesting to you that the name and code you have even provided is not in the list of polling stations provided by the second respondent…?
Witness: My lord, we know the polling station to have this name, and the code…
Counsel: Is it in the list or is not in the list?
Witness: My lord, I may need to check, but I know that this is the name of the polling station and that is the code as is assigned to it and the physical location is not in doubt.
Counsel: Let’s look at the next one: MBAB4 Din Ayo Royal Rising School with code C10166. Now you give the name as Royal Rising School, Gyenayo A with code C160504, again the name and the code you have provided is not on the pink sheet.
Witness: My lord, the spelling-as I have explained, goes by my initial explanation.
Counsel: (Repeats the question) answer that and explain.
Witness: My lord, it is not on the pink sheet as is given but the physical location has never been in doubt and my lords, I went the length to explain how the coding is done; that is to facilitate the identification of any polling station
Counsel: Mr. Asiedu Nketia, I am further suggesting to you that that name and polling station code you have given is even not in the list of polling stations provided by the EC.
Counsel: My lords it is in the list of polling stations provided by the EC 9Counsel went on to show exhibits of three more polling stations which do not appear on the official list of the EC)
Counsel: I’m suggesting to you that the petitioners supplied information on 11,842 polling stations.
Witness: My lord in my affidavit, I spoke about pink sheets that was when I spoke about numbers, I didn’t talk about a list having been supplied or not supplied.
Counsel: My question is that information on 11,842 polling stations had been provided to you?
Witness: My lord, I disagree.
Counsel: Can you tell the court how many witness affidavits you filed in this court?
Witness: My lord, we filed 5,316 affidavits
Counsel: So you did not file 7,200?
Witness: No my lords, there was an attempt to file 7,200 but I understand we were beaten by time so we couldn’t get everything through.
Counsel: The petitioners have been served with 4,941
Witness: My lord, we filed 5,316…
Counsel: And of this 4,941affidavits, 1,278 were duplicates
Witness: I can’t confirm that
Counsel: I’m suggesting to you that 1,278 of these affidavits were in fact duplicates
Witness: My lord, I can’t confirm that.
Counsel: And a further 291 were not at all in the list of 11,842 polling stations.
Witness: My lord, again, I can’t confirm that.
Counsel: 291 did not relate to the polling stations in contention, now again, 171 are included in the list of 704 polling stations that we are no longer relying on…?
Witness: My lords, I can’t confirm that.
Nana Akufo-Addo, Dr. Owusu Afriyies Akot & Dr. Mahamudu Bawumia
Serial Numbers Vrs Deposit Slips
Counsel: (Showing the witness a pink sheet exhibit) Now, you see that on the top right hand corner is embossed certain numbers in red?
Witness: Yes my lords.
Counsel: Now, that is the serial number on the pink sheet and you would notice that it is the only number that is embossed on the form?
Witness: Yes my lord, it is the only number that is embossed on the form, I cannot call it serial or otherwise.
Counsel: Now, all other figures or numbers on that form is hand-written?
Witness: Yes my lord.
Counsel: I’m suggesting to you that the purpose for that number being embossed on the pink sheet is for security reasons.
Witness: My lord, I can’t tell because in the training before the elections, we all were told about the security features and what our agents should look for, so the agents act as checks on the election officials and the officials also would act as checks on the EC. We did not discuss anything like this. My lord if you look into the Guide to election officials, there is a specimen form which was used in training, there is nothing like serial number on the specimen form, so I disagree with you when you suggest that this number there is for security reasons.
Counsel: Yesterday, you gave an analogy of a deposit slip; does a deposit slip have a serial number?
Witness: There could be numbers on the deposit slip, depending upon the printing; some printing houses would put the numbers to check the quantity….
Counsel: I’m suggesting to you that deposit slips don’t have serial numbers and the reason it is so is because it can be used interchangeably, am I right?
Witness: My lords, pink sheets don’t have serial numbers…
Counsel: Answer the question, (He repeats the question)
Witness: Yes my lord, deposit slips don’t have serial numbers, but pink sheets don’t have serial numbers either.
Counsel: Mr. Asiedu Nketia, do you know how many polling stations were involved in the special voting?
Witness: My lord, I can check, but I believe it’s below 40, I don’t remember the figure immediately.
Counsel: So special voting took place in places other than polling stations?
Witness: They all took place in polling stations, as far as I could remember.
Counsel: I’m suggesting to you that special voting took place in other places apart from polling stations.
Witness: My lord, I can remember that all special voting took place in polling stations, unless for special reasons, the polling station is relocated, the name, the code and everything would reflect the same polling station.
Counsel: I’m suggesting to you also that special voting does not have any code number.
Witness: My lord, I disagree with you. Special voting uses the same code number of the polling station where the voting takes place.
Counsel: Now, Special voting takes place at one place in the constituency, are you aware of that?
Witness: There are constituencies without special voting at all, but there are places where you could have more than one in a particular constituencies, depending on the number of people involved in the special voting.
Counsel: Now take a look at this document (Showing the witness a document) can you identify the document?
Witness: No my lord it is some list without title. I see District, Constituency, Constituency Centre and Number of voters, but I cannot identify what the constituencies represent.
Counsel: You have not come across the list of special voting centres…?
Witness: My lords, I haven’t dealt with it myself.
Counsel: So do you know the procedure for special voting?
Witness: Yes my lord.
Counsel: And you haven’t dealt with this list?
Witness: Yes my lord
Counsel: You do not know the centres where special voting took place?
Witness: Well…if I’m confronted with the list of districts, constituencies centre, number of votes, I do not know what it is for…
Counsel: You are not answering my question; you do not know the centres where special voting took place?
Witness: My lords, I can know the centres where the special voting took place but if I’m confronted with the list…
Counsel: You are saying that you are not familiar even with this list and I am asking you a simple question; do you know the centres where special voting took place?
Witness: My lords, I haven’t dealt at the… (Stammers a bit) level of voting with this special voting, so am not able to tell immediately when I am confronted with a list of names and centres….I cannot be carrying the names and centres in my head wherever I go….
Counsel: Forget this document for the time being. I’m asking you as Asiedu-Nketia, do you know the centres where special voting took place?
Witness: I cannot remember all the names of the centres of special voting.
Counsel: Do you remember some at all?
Witness: Yes my lord.
Counsel: So can you tell us?
Witness: I can remember Jauso Court Hall for instance, special voting took place there.
Counsel: Juaso Court Hall is in what constituency?
Witness: It is in Asante Akyem South constituency.
Counsel: If you go through the list, if it was one of the centres for special voting, it would be in the list… (Asked the witness to go through the list but Tsatsu Tsikata, counsel for the third responded interrupted, saying the list has not been identified and cannot be a subject of the witness’ testimony. But counsel replies to the objection). My lords, we are in the process of identifying the list and I’m assisting witness in refreshing his memory in that regard, so that he can identify the document. He cannot remember all the centres unless he refreshes his memory, and ones he does that, he would be in a position to identify the document. (However, the bench sustained the objection from the third respondents)
Justice Atuguba: The objection is sustained.
Counsel: As the court pleases. Now, did the second respondent supply the NDC with a list of centres for the special voting?
Witness: Yes my lord.
Some NPP gurus
Counsel: And the list that was supplied to the NDC was different from the list I gave you?
Witness: I can’t tell. That list was on a proper letterhead of the Electoral Commission, so I knew where it was coming from, but this [referring to the list that was rejected] I don’t know where it’s coming from.
Counsel: I’m suggesting to you that Juaso Court Hall which you named as one of the centres, was not one of the centres for special voting.
Witness: My lord, it was a centre for special voting
Counsel: Do you know the procedure for special voting at the centre?
Witness: Very well, I do my lord.
Counsel: Can you tell the court?
Witness: (He recounts his version of how the special voting is conducted, after which counsel hands him a collation form)
Counsel: Mr. Asiedu Nketia which constituency collation form is that?
Witness: Akuapem South.
Counsel: Are you familiar with this collation form?
Witness: Yes my lord.
Counsel: You are? We would like to tender it through you (Counsel for third respondent, Tsatsu Tsikata rose to object to the tendering. By a 5 to 4 majority ruling, the objection was sustained, so counsel takes on a different line of questioning). My Asiedu Nketia, I am suggesting to you that on the collation form, the result of the special voting is entered without a code?
Witness: My lords, as I have indicated earlier the results are entered with the code of the special voting centre.
Counsel: The results are with the code?
Witness: Yes my lord.
Sitting continues today.