NDC SHOT DOWN

Nana Akufo-Addo & Dr. Mahamudu Bawumia 

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday, May 22, 2013.

“I’m saying they behave like children who have been pampered. They go and play football with other children and when a goal is scored against them, they pick the football and say they won’t play again. That’s how they are behaving…”

The Supreme Court has thrown out an attempt by the National Democratic Congress (NDC)  to halt the counting of the number of pink sheets used as exhibits in the Landmark Presidential Election Petition.

The nine-member panel chaired by Justice William Atuguba unanimously ruled that KPMG, the reputable international accounting firm chosen by all the parties as referee, should continue with the exercise and any concerns that would be raised by the parties incorporated into the final report.

The Brouhaha

The request to count the pink sheets was initially made by the NDC before the court, with the consent of all the parties in the petition gave an order for an independent referee to conduct the exercise.

Just as KPMG commenced the exercise in the presence of two observers each from the parties as ordered by the court, the NDC through its lead counsel Tsatsu Tsikata came to court with a story that the exhibits had been compromised and that the boxes containing the pink sheets had increased from 24 to 31.

In fact, the allegation over whether or not the boxes of the exhibits had been tampered with started right after the court’s sitting on Monday when news broke that Mr. Tsikata, Tony Lithur who represents President John Dramani Mahama and later James Quarshie-Idun representing the Electoral Commission (EC) had gate-crashed at the venue for the counting and that they had requested panel chairman Justice William Atuguba to review the order of the court.

According to Mr. Tsikata, there were alleged criminality involved and as a result, they would prefer an extended control mechanism that would take into consideration copies served on at least two panel members to compare with the pink sheets at the court’s registry.

The issue of whether the petition is being unduly delayed has come up strongly since Mr. Tsikata took over the cross-examination of the principal witness Dr. Mahamudu Bawumia who is also the 2^nd petitioner and many are of the view that brouhaha about the pink sheets were part of the ploy to drag the process.

Mr. Tsikata, whose client came into the petition by way of a joinder, is in his 13^th day of cross-examination even though NDC’s co-respondents including President John Dramani Mahama and the Electoral Commission (EC) used about three days each to conclude a similar exercise.

Just as he was winding up on his cross-examination, he brought another motion, seeking to  cross-examine some of the witnesses who filed affidavits in support of the petitioners case but the court threw him together with President Mahama and the EC who made similar applications out.

Mr. Tsikata however, has always denied criticisms that his style of cross-examination is designed to delay the process, often accusing the petitioners of presenting exhibits that forced the respondents to ‘dig deep’ in order to counter the petitioner’s claims.

Tsatsu’s Allegations

Just as everybody thought he was going to continue with his cross-examination, he threw the bombshell and requested a variation of the court’s orders to incorporate the expansion of control mechanism in respect of the counting exercise.

Even before sitting commenced yesterday the NDC propaganda machinery had been set in motion and they were in the courtroom distributing a press statement signed by its General-Secretary Johnson Asiedu-Nketiah to the effect that they wanted a suspension of the counting pending further orders of the court.

Counsel: My lords, at the close of proceedings yesterday, I became aware of a very significant development in respect of your order about the counting of the exhibits. Your lordships would recall that you ordered a true and faithful count to be taken. Those exhibits were filed in the Registry of the court; they had also been provided to us as respondents.

In order to ensure that there was a faithful and true records, it was agreed there be a sort of control mechanism in respect of the exhibits; which would mean that one of your lordships’ set of exhibit would be used as a control to ensure that what was provided to the referee (KPMG) was indeed accurate. My lords, it emerged that a number of boxes of exhibits had been added to the boxes of exhibits that we were aware had been filed in the registry.

My lords, this is a very serious situation, because my lords, as many as seven additional boxes appear to have been added and it is patent that these were additions just in the nature of what was provided to one of our representatives by a Docket Clerk. It is patent because in respect of one particular series (the P series) which indeed our cross-examination has been centred on, we have a situation where there is a box containing one (1) to 170 [exhibits] allegedly and another box containing one (1) to 475. This was never the situation-and that’s only one example - I would not go into other examples for obvious reasons.  

My lords, significantly, all three respondents had the same numbers of the boxes of exhibits provided to us, we have checked with the second respondent as well as the first respondent, in each case, 24 boxes of exhibits were supplied, not 31 as was provided for the start of the work of the referee.

My lords, as at last Thursday, when the preparations for the count were going on, it was confirmed that there were 24 boxes in the custody of the Registrar, as far as the exhibits were concerned. Our representatives confirmed that, together with the referee, they went to where the exhibits were being stored. 

My lords, respectfully, it is actually a matter bothering on criminality-where 24 boxes became 31 at the time they were taken as at yesterday. But my lords, we cannot be distracted by criminality from the process of achieving justice in this petition….(He goes on to narrate the incident that happened when he and counsels for the two other respondents sought to meet with the counsel for the petitioners in a bid to present the alleged incident to the presiding Judge, Justice William Atuguba. Incidentally, the counsel for the petitioners waved them off. 

Tsatsu Tsikata leaving court

He also went on to narrate how he and the counsels for the respondents went into the counting room to ascertain things for themselves. Essentially, the respondents are pressing for the court to review the order for the counting). I do underline that we are dealing with matters that borders on criminality, but we do not wish the criminality aspect to interfere with the process of your adjudication of the election petition; that can be a separate matter is pursued accordingly…. (Counsel for the petitioners Philip Addison rose to respond, but preferred for the other respondent to conclude their complaints first)

Philip Addison then told the court that “I am waiting for the others to also comment because they were together when they breached the security of the counting…they can talk first and I will respond.”

Lithur Supports Tsatsu

Lithur: My lord, I was with learned counsel for the third respondent and confirm what transpired. Having mentioned issues about security (referring to Philip Addison), I think we need to clarify the position; When we had the report from our lead representative, we wanted to view the boxes and so we knocked on the door and we were allowed in. In fact we went to try and look at the boxes, and to find out for ourselves.

We indicated to the referee in charge that we had some report that we wanted to verify, but after some time, he thought that the process would be interrupted, so he told us that they would be taking a break shortly so we should retire outside, during the break, we could have that discussion, so the issue about breach of security, I don’t know what the intent is; we did not interrupt anything beyond going to find out what had happened. I say that from very personal knowledge; I was there. The recommendation made by Mr. Tsikata has been discussed and we support that fully.

EC Supports Tsatsu

James Quarshie-Idun: My lords, I arrived at the building of the counting when counsels were outside in discussion. Our representatives were in the respective counting rooms. I arrived at the premises and had discussions with my learned friends outside the counting room; inside the counting room were the two representatives of the EC, we had discussions with Mr. Asirifi (one of the representatives of the petitioners) who said he will consult with Mr. Addison (counsel for the petitioners) and come back to us, he never came back until it was almost time for the resumption of work of the counting. From the information we have received from our representatives in the counting process, we would fully support the control mechanism that has been agreed upon in Chambers and also the expansion of the mechanism to include other members of the panel to ensure that what was served on us and delivered to your lordships is the same as what the referee is being requested to count.

Addison’s Opposition

Mr. Addison: My lords, it is obvious that somebody has a sinister agenda to deprive the petitioners the opportunity to fully put forward their case. That is the only reason that can explain this strenuous attempt to derail a process we have all agreed upon. The order this court made was a Consent Order agreed to by the parties. It started well, except that for some people it did not go well. 

Now the representative of the EC is said to have remarked that they were expecting shortages, but what they started experiencing were “overages”, so quite clearly, it was at that stage that they became alarmed and then informed counsel for the respondents, and started cooking up all these stories about boxes having emerged.

Rising Tempers

Counsel: My lords, there is absolutely no basis for this claim about cooking up of stories…. (Mr. Lithur also rose to protest the allegations of cooking)

Mr. Lithur: My lords, respectfully….(Justice Atuguba intervenes)

Justice Atuguba: We have not heard him out so let him…

Mr. Lithur: Yes my lords, but respectfully, cooking up? There are 31 boxes there, we all had 24, so what is the cooking about this? It is the number of boxes that alerted our observers about the fact that something had been tampered with. At the previous time when they checked, it was 24….My lords, we want to do this civilly and our representation had been very civil, maybe counsel [Philip Addison] can reciprocate…

Mr. Addison: I thought an allegation of criminality has been raised, so if you allow me to go on with what I was saying: Now, we are not aware that an inventory was taken of the boxes and envelopes or pink sheets or whatever in the custody of the registry. Maybe they did the inventory by themselves, but we are certainly not aware, and our representatives have not been involved in any such inventory taking, nor are we aware that the referees had done any such exercise…. (General murmuring in court) Maybe they know more than we do because the submissions made by Mr. Tsikata; they’ve been having meetings with the referee behind our back…. (Mr. Tsikata cuts in)

Counsel: That is completely unwarranted, my lords, my learned friend cannot be allowed…I never said we had any meeting with the referee; we have not had any such meeting. There is no basis for this allegation that we’ve had meeting with the referee behind their back… (Mr. Lithur jumps in to buttress the point made by his ally)

Mr. Lithur: My lords, all the discussions with the referee were along the corridor... (Angry comments from some of the court audience were aimed at him, forcing him to reply in kind). Maybe I should be telling those there to shut up.  I mean, this is not a market place, so they can’t direct insults at me while I’m on my feet….(Justice Atuguba intervenes)

Justice Atuguba: Let’s avoid the situation of stadium scenario where you have supporters here and there, but there is a need for a clear language across board. These things can be avoided if you just stick to the raw facts of the matter and forget about insinuations…decorum is important across board.

Mr. Lithur: The registrar was around throughout… (He was asked to sit down as Justice Atuguba repeats his admonitions)

Addison: My lords, I hope this time around, they would allow me to finish? I did not interrupt them once they said all they wanted to say, so please allow me. My lordships would recall that the other day, Mr. Tsikata indicated that they had so much confidence in the registrar and the registry and that we should not put our problems or blame the registrar, we wonder what happened now. As for the number of boxes or whatever in the custody of the registrar, I believe that’s a matter that the registrar can answer to, we don’t hold brief for the registrar. Indeed, we do not know how many boxes are still there in the vaults and it surprises us very much that the respondents know the number of boxes in the vault. 

In this court, they were asked to disclose the number of pink sheets, they failed to disclose it. To them, it is state secret. Today, they come here and tell us that there are so many boxes in the vault of the registry…Now my lords; the order of this court is plain for all to see; the matter they allude to are not in the order. I had been told this is a consent order, we had once sought to have it varied, we were told it cannot be changed, so the things that they are now bringing up are matters completely strange to us; they have no bearing on this order. My lords, the representatives appointed by the parties according to this order, are to be observers-nothing more than observers. 

Yet we had a situation where these observers are alleged to have audited boxes and pink sheets, the word audit was a word the respondents avoided and therefore this order says count…(After a brief pause, he resumed his line of response)

Pampered Children

Mr. Addison: My lords, since the inception of this petition, it has always been the habit of the respondents to bring up one issue, when the petitioners agree to it, then they back out. This is the latest example of this conduct….At each of these stages that they have taken the initiative, they have backed down… (The bench urged him to get to the point). My lords, I’m building a case; I am saying that a course of conduct of these respondents who behave like children… (The bench cuts in again to urge him to make his point)

Justice Adinyira: …please address the issue

Justice Atuguba…Counsel, the employment of term children is in breach…

Mr. Addison: My lords, I was going to make an analogy, I haven’t finished. In using the word “Children”, if you want me to finish…I’m saying they behave like children who have been pampered. They go and play football with other children and when a goal is scored against them, they pick the football and say they won’t play again. That’s how they are behaving… (General laughter in court)

Justice Atuguba…these are the insinuations we try to disallow in order to rehabilitate the process….

Mr. Addison: My lords, whenever any matter is going against them, then they pull back, that is the point I’m saying; that is again the situation we have here, it is a clear order of the court….They’ve interfered with it [the counting] they went there without accreditation and stopped the process. Now they are rather talking about criminality when they are rather in clear contempt of this court by stopping the process…My lords, we are strongly opposed to this application that seek to vary clear orders of this court….My lords this application is simply based on suspicion upon suspicion, it has no basis whatsoever.

Your lordships would recall again that shortly after this order was made, at the instigation of the respondents, operatives of the National Security came to this court, ostensibly to protect this pink sheets, they came on their own accord, having been instructed by the respondents.  Now they are telling us that in spite of the process of these entire national security operatives, we have been able to spirit seven (7) boxes into the registry….My lords, lastly, no report has been made by the referee –KPMG…they are clearly comfortable with what was going on until they were rudely interrupted by counsel for respondents…. 

What happens next, if tomorrow  we also stop the process? We would never make any headway….My lords, at the end of the day; they are contesting the credibility of the registry, if they do not trust the registry, why do they trust the documents that have been distributed to the judges? That should also be in dispute; everything should be in dispute then... (Counsel responds by insisting their application to review the order was within the framework of the orders made in chambers. (eventually the court rose to rule on the application).

Short Ruling

Justice Atuguba held that the concerns raised by the NDC counsel were within the purview of the earlier order given by the court to the referee (KPMG) and that Mr. Tsikata’s concerns could be channeled through the accounting firm who in turn would incorporate the concerns in the final report to be submitted to the court.