NDC PINK SHEET BOUNCE AS 'PALM WINE TAPPER' MOUNTS BOX

Nana Akufo-Addo & Dr. Mahamudu Bawumia

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, May 14, 2013.

An attempt by the ruling National Democratic Congress (NDC) to tender a pink sheet in support of their case that the presidential election petition has been brought in bad faith, backfired big time when the document bounced in court yesterday.

Indeed, the same document (MA Primary School Polling Station at Asokwa Constituency in the Ashanti Region) had been tendered for the purposes of identification by Tsatsu Tsikata, lead counsel for the NDC on his 5^th day of cross-examination of Dr. Mahamudu Bawumia, the 2^nd petitioner in the case.

At that time Mr. Tsikata, had said he was trying to prove a case that over-voting also occurred in the strongholds of the petitioners party NPP and in his estimation; the petitioners had brought the petition in bad faith.

Interestingly, the NDC as 3^rd respondent together with President John Dramani Mahama (1^st respondent) and the Electoral Commission as 2^nd respondent have all vehemently denied that over-voting occurred during the December 7 & 8, 2012 general election since the petition was filed.

Even Johnson Asiedu-Nketiah, the NDC General-Secretary who is being led in his evidence-in-chief after a the power of attorney  from President John Dramani Mahama as 1^st petitioner, insisted in the dock that there was no over-voting and even added that even if indeed it happened it was a “clerical error.”

Tsatsu Tsikata

The Funny Side

The NDC General-Secretary’s testimony was spiced with intermittent smiles and gestures.

At one point, there was spontaneous laughter in the courtroom when Mr. Asiedu-Nketiah requested for the calculator used by Dr. Bawumia to put figures together during his cross-examination.

He had mentioned 100 in answer to a tally of ballots on a pink sheet when asked to assess one of the petitioners claim regarding over-voting.

Realising that he might have given a wrong figure to the court he quickly told the court that the figure should have been 1,000 saying “perhaps I could borrow Dr. Bawumia’s calculator.”

In another instance, when he appeared to be confusing the court with his reference of respondents instead of petitioner and vice versa, he remarked that “I am a village palm-wine tapper testifying in court,” generating more laughter.

The Rush

In his eagerness to parry the respondents’ allegations, Mr. Asiedu-Nketiah would not even allow his counsel to conclude a question on a letter written by the NPP Chairman to the EC when he started referring to a statement purportedly made by the EC Chairman instead, and had to be brought back on track by Mr. Tsikata.

Seeking to tender the pink sheet which was later bounced in the court generated heated debate between Mr. Tsikata and Philip Addison, lead counsel for the petitioners.

Exchanges

Counsel: Have a look at this document which was identified during the cross-examination of the second petitioner (Hands the witness the exhibit). Now, what is the nature of that document that you have identified as ID 1.

Witness: My lord, it is the pink sheet of the polling station relating to MA Primary School, Asokwa with polling station code, F 191201

Counsel: Now, You indicated that from the polling station code, you could identify where a polling station is, from the code of that polling station, are you able to tell what region or constituency is was?

Witness: Yes my lord, it’s evident from my narration that F is Ashanti Region.

Addison’s Objection

Counsel: Now, that sheet, does it have relevant information in respect of the December elections? ….

Mr. Addison: My lords, I object to this question. It is a question that goes to the content of a document that is not in evidence.

Captain (Rtd) Kojo Tsikata in a handshake with Johnson Asiedu-Nketiah

Counsel: My lords, I’m clearly laying the foundation to tender this document and the question that I asked was whether the sheet on its face has any information relevant to the election. That is a necessary basis on which this document can be tendered, therefore my lords, it is important for the witness to be able to testify that that sheet relates to the December elections….So my lords, this is clearly a relevant basis for proceeding with the tendering of what has already been identified...(Amidst heightened sense of anticipation in the court room, the judges conferred in a bid to giving a ruling on whether that document can be tendered or not, in the process, Mr. Addison rose to re-emphasize his objection)

Mr. Addison: My lords, we object to the tendering of the document. The attempt to tender this document is in contravention of the directions of this court given on 2^nd April, which directed the parties to attach to an affidavit all documents they would be relying on. This is a document that the first and third respondents clearly are relying on as part of their case and so it should have been properly attached to their affidavit….They have attached documents they are relying on, and this document is not one of them. Allowing this document would mean that the directions of your lordships no longer holds. The petitioners complied with your lordships’ order, indeed, as a result of the order of your lordships; the petitioners went through quite some difficulties in compiling the pink sheets. My lords, in attaching the document that the petitioners would be relying on, sufficient notice was afforded the respondents who then reacted to it in their affidavits, there was no mention of this document in the affidavit of the first and third respondents; it is not part of their case. We have closed our case, and we are now being confronted with such documents, in the circumstances, we pray that the tender of this document should be disallowed.

Counsel: My lords, yesterday in this court, the petitioners tendered a list of 704 polling stations as an exhibit in this proceeding. That list was not part of any affidavit that was sworn before you and your lordships allowed that list clearly because of its relevance, so with the greatest respect, in the same manner as a relevant document was submitted by the petitioners after the stage of the affidavit being sworn. We are submitting that this document is a relevant document identified as a statement of poll and declaration of results at an identified polling station. My lords, the relevance of this document cannot be contested because on its face the identified document- it was identified during the cross-examination-, on its face the identified document is a statement of poll in respect of a particular polling station in this country. My lords, it is part of our case that the issue in contention relates to 22,002 polling stations because it in respect of 26,002 polling stations that a declaration of result was made. We have also pleaded the selective manner in which pink sheets have been provided by the petitioners in this case, and in the affidavit that has been filed, there is an indication that the petition is brought in bad faith (quotes paragraph 27 of the amended answer of the third respondent). We have pleaded that in bringing the petition before the honorable court, the petitioners are acting in bad faith… (Again quotes paragraph 17 of the affidavit of the third respondent). The exhibit that we are seeking to tender is a relevant part of our case as pleaded and as indicated in the affidavit.

Mr. Quarshie-Idun: My lords, I would like to make an observation, since a reference was made to the decision of the court made on the 2^nd of April….As regards the tendering of documents, it will also affect the second respondent, but I can wait and make my submissions later…

Dr. Kwame Addo Kufuor & Moctar Bamba

Mr. Addison: We raised an objection; counsel [Mr. Quarshie-Idun] if the objection is ruled on, you can give your observations to the court. Respectfully, with leave of the court, I would like to certain issues raised by my learned friend. It is about the 704; my lords, the list of 704 polling stations are part of the 11, 842 polling stations to which pink sheets were attached to our affidavit, so they are matters that were already in evidence. They were also in the Further and Better Particular, so there is full knowledge of that list by the respondents. My lords, we are not talking about the relevancy of the document here-it not about relevancy-, we are saying that there’s been directions from this court as to the conduct of this petition and we have abided by it and we have closed our case following those directions. Now, the first and third respondents by bringing this document are setting up an entirely new case behind our backs. The paragraphs referred to in their affidavits, made no reference to this document and they further alleged that they are trying to establish “Bad faith”. Again, no particulars of bad faith were given in their affidavit for the petitioners to react to it; no such particulars were given.

Counsel: My lords, may I with your leave, just draw attention to what your order said and how we understood your order; My lords, that order made it clear that we could tender the document that was identified in cross-examination of the second petitioner. That order was in very clear terms and that is why I limited myself just to establishing relevance of the document in terms of your order. It was because of that that we did not proceed to tendering it through the second petitioner during cross-examination, but we were allowed to questioning him in relation to the ID1 and that order has not been set aside….(Judges continued to consult among one another for a final ruling on the issue. Eventually, Justice Atuguba announced the ruling)

Justice Atuguba: Very well, the objection is sustained.

Mr. Addison: My lords, the document has to be marked as “Rejected”…

Justice Atuguba: Yes, I think that must be done.

Prologue

Led in evidence by Mr. Tsikata, the NDC General-Secretary popularly called General Mosquito told the packed court that he was testifying on behalf of both President Mahama and the NDC because the ruling party sponsored the President in for the December 2012 general elections.

He said as the General-Secretary of the NDC, he was deeply involved in all the meetings the political parties held with the EC in the run up to the election.

“I led the 3^rd respondent’s team to the Inter Party Advisory Committee (IPAC) meetings and was involved in all the processes.”

He told the court that he was also involved in the planning, recruitment and training of the NDC party agents and added that they had 52,004 polling agents which meant they were able to position two each at every polling station.

Mr. Asiedu-Nketiah said the agents were trained to play four key roles namely: check impersonation, multiple voting, ensuring nobody tampers with the ballot papers in the ballot box and making sure election officials conducted their duties in accordance with the rules on election day.

He said he had been involved in elections in the past 34 years either as candidate or an agent and in respect of the 2012 general election played a key role for his party.

He mentioned the determination of the positions of candidates on the ballot papers, review of the outcome of the Biometric Registration Exercise, printing of ballot papers and how to manage issues on election day as some of the key issues that were discussed at IPAC meetings.

NPP gurus

He recounted how the Biometric Voters Register was compiled and how the EC told them about the total number of those registered as the provisional data and how the EC said it was going to conduct a mop up exercise as well as registration of some Ghanaians abroad.

He told the court that the voters register kept changing and said it moved from 13,917,366 to 14,158,890 and then to 14,031,680 adding at one point at IPAC meeting all the parties settled on 14,031,680 as the figure for the election.

Printing Ballot Paper

Mr. Asiedu-Nketiah told the court that in the printing of ballot papers, the NDC as well as all participating political parties and other candidates were involved in the process saying “there was 24 hour monitoring of the printing.”

He also said that the packing, distribution up to utilization of the ballot papers were strictly monitored by all the parties and said they all tracked the distribution process.

Election Day

He said on election day, the party’s agent undertook specific assignment by focusing on the tally of votes of all candidate and said the agents monitor sorting of ballots, counting and declaration of the results and added that every party is given the analysis of ballot papers.

He told the court that he was the first person to vote  at his polling station in Seikwa in the Tain District before visiting about 20 other polling stations across three regions.

He said he went through the Biometric Verification devise before casting his ballot and took steps to show the court how the process of casting ballot is done but Mr. Addison cut in to object saying the 1^st and 3^rd respondents had not been pleaded.

“What he is doing is completely outside his pleadings before this court. There is nothing in the pleadings mentioned. They filed 7200 affidavits from their witnesses but did not say this.”

Mr. Tsikata countered that the witness in his pleadings made mention of the evidence he was leading and he was recounting his personal knowledge.

The court in a 5-4 majority decision with Justices Julius Ansah, Rose Owusu, Annin-Yeboah and Sulley Gbadegbe dissenting, overruled the objection and asked Mr. Asiedu-Nketiah to proceed.

He admitted that because of the problems encountered as a result of the BVR machines to function effectively, the EC had to conduct further elections the next day.

He recollected the meeting with the Ghana Peace Council where all the parties and the EC were present and added that the NPP had impressed on the commission to suspend the declaration of the results due to reported irregularities, malpractice and violation but EC eventually went ahead to declare.

He stated emphatically that there was nowhere in all the 26,002 polling stations where over-voting took place saying “I haven’t seen evidence of voters voting without verification…I disagree with the petitioners if they say there was over-voting. I don’t know which figures they are referring to.”

Same polling station with same result

Counsel: There is one other category under which the petitioners are seeking to allege that there were irregularities in this election; that is the category they say the same polling station code with different results, what do you have to say in respect of that?

Witness: My lords, in reading the petition, I came across this allegation, again my lords, I consider it to have come from a situation where the petitioners are not appreciating how voting is done because on a careful study of the polling stations it is alleged that there are double pink sheets, you realize that these were polling stations that were used for Special Voting. In any polling station that special voting took place, at the end of the elections, you would have two (2) statements of poll and declaration of results.  F1 indicates the results of special voting and then the second one indicates the results of the regular voting. So my lords, I have looked at the allegation and I have confirmed that all the cases where it is being alleged that there is double pink sheets, they relate to polling stations that were used for special voting.

Counsel: And what does special voting mean?

Witness: My lords, special voting is voting that is conducted to allow persons whose duties on the voting day would take them away from the normal polling stations, such that it would be difficult for them to cast their vote. A list is made of such persons and then the second respondent conduct elections for them. This special voting is special only in the sense that it happens before the voting day and the counting, sorting and declaration of results are not done on the day of voting, otherwise, everything about special voting is like the regular voting….

Captain Tsikata

Changing Allegations

Counsel: In your affidavit, you have actually claimed that the representatives of the New Patriotic Party have made changing allegations about the alleged irregularities and malpractices which they claim accounted for their defeat, what do you mean by that?

Witness: My lord, before the close of polls, representatives of the NPP started indicating that there were malpractices and this happened after the same representatives have come out to acclaim the result as free and fair and that nobody should come out to contest the outcome the second respondent should be allowed to do their work without fear or favour. Not long after that, there were other press statement that there were malpractices all over, and that the results are not acceptable. I believe this came when it became evident that the NPP and the first petitioner was losing the election.  After that, I remember the claim they made at the second respondent’s office were contained in this document. Subsequent to that, they came out after the declaration making all sorts of things that were substantially different from any other claims they had made in the past, including the allegation that voting took place outside this country and that the external votes were inflated by a certain number-more than 200,00 votes.  The hang onto this, then at a later time, the claim was dropped and then they started claiming that the result has been padded….they kept changing the claims, so my lords, in this courtroom, we have witnessed the changing of claims for each passing day….

Definition of over-voting

He said his definition for over-voting is simply when the number of ballot papers in the ballot box is more than the number of registered voters in a particular polling station.

Serial Numbers

In his eveidence-in-chief Bawumia had said that serial numbers are not "decorations" on the pink sheet and that the EC paid “good money” to go through tender in order to uniquely attach a serial number to a polling station code or name.

“The only number that comes embossed on the [pink sheet] is the serial number. It is the feature just as you have for cheques or passports. The serial number is a security feature and if you breach that, you compromise the elections”, he had explained.

Jake Obetsebi-Lamptey

However Mr. Asiedu-Nketiah disagreed and said the 2^nd petitioner’s claim was not correct and that serial numbers could not be primary documents in the election.

He said there were only two ways to identify polling stations and it comes by the name of the polling station which was invariably related to the locality and code numbers of the polling station.

He said that an experienced polling agent could identify the polling station by observing the code number.

He went ahead to give the alphabetical manner in which the EC has assigned polling stations in all the regions adding  Western region is identified by ‘A’, Ashanti region by ‘F’ and Brong Ahafo region by ‘G’ among others.