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Nana Akufo-Addo and Dr. Mahamudu Bawumia
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday, May 15, 2013.
A near heated argument between Tsatsu Tsikata lead counsel
for the National Democratic Congress (NDC) and Dr Mahamudu Bawumia, principal witness
for the petitioners in the landmark Presidential Election Petition yesterday
compelled Justice William Atuguba, chairing the case to remark that the court
was not a boxing arena.
“It is not a free fight. Just state your answer to
it without any Bukom blows,” Justice Atuguba told Dr. Bawumia, drawing
spontaneous laughter in the packed court.
The
witness, had dared counsel for the 3rd Respondents, Tsatsu Tsikata,
to “get into” the analysis of the 11,138 polling stations whose results the
petitioners are praying the court to annul and show one instance of double
counting or padding as counsel was alleging.
Mr Tsikata had continuously used words like
‘dishonest’ to describe Dr. Bawumia, even when the court had ruled against it a
situation which the witness could not take it anymore.
The witness challenged counsel to stop hiding behind
mislabeled exhibit numbers and get into the substantive analysis.
Since Mr. Tsikata started his cross-examination he
has spent 9 sittings trying among other things to prove a point that the
petitioners duplicated the pink sheets in order to deceive the court.
His persistent position that the petitioners double
counted the pink sheets compelled the nine-member panel chaired by Justice
William Atuguba to invite KPMG, an international auditing firm, as an
independent referee to count the pink sheets used as exhibits.
The accounting firm met the lead counsel for the
parties yesterday to set out the parameters. They are expecting to meet again
today before launching into the counting.
Yesterday, Mr. Tsikata revisited the issue in
respect of polling stations sharing same serial numbers which the petitioners
say amounted to irregularities, malpractice and violations, trying to prove a
point that the petitioners were not truthful to the court.
Bawumia
Explodes
Incensed by counsel’s persistent comment about the
witness’ apparent ‘dishonesty’, Dr. Bawumia exploded: “Counsel, why are you
afraid to see if we have double counted? We cannot double count. If you want
the truth you can check the list to see.”
Dr. Kwabena Adjei (NDC) & Peter Mac Manu (NPP)
Counsel:
Dr. Bawumia, this is an example of your dishonesty to this court because there
is an exhibit that you attached to your affidavit - its Exhibit 5998 with a
certain polling station, now you are giving a different polling station. That
exhibit number which is already in evidence, that’s what you are doing…
Witness:
There is an error, but there is no dishonesty. (Assuming a rare charged tone)
If you want to be honest with the court, let us put down my analysis. If you
are not afraid of the truth, let us put down my analysis and show not a single
repeated polling in my analysis. If you are afraid of the truth, then of course
you will hide behind this exhibit numbers…. (Justice Atuguba steps in)
Justice
Atuguba: It’s not a free fight. Just state your answer to it
without any Bukom blows….
Counsel:
But my lords, with the greatest respect, I do not think we can treat this
lightly; this witness is claiming that I am afraid of the truth, I am asking
him questions, he is not answering them, he is showing his dishonesty
blatantly. I am not afraid of the truth, what bothers me is the dishonesty of
this witness and he cannot just be allowed making statements: “You are afraid
of the truth”…
Justice
Atuguba: That’s why I have called him to order on that
point. Just (chuckled)….oh, I don’t know… (More expression of amusement from
the audience at the Judge’s apparent frustration at the flared tempers). Don’t
fight the battle beyond his confines. Each side can present his case to the
court as per the procedure of the court. There are certain things which are for
Examination-in-Chief, there are certain things for cross-examination, so just
limit yourself to the extent of the question…I know you always understand more
than us….
Counsel:
My lords, is the witness going to be warned not to persist in that? … (Philip
Addison interrupts)
Mr.
Addison: My lords, I think that counsel got the answer that
he asked for. He again accused the witness of being dishonest…so I don’t know
what he is complaining about. You [Tsatsu Tsikata] called him names and he
responded.
Justice
Atuguba: No…., but you see, that’s what I referred to in the
last sitting; this is not like a criminal trial where the prosecution witness
gives evidence and then the accused attacks his credibility and then there is
cross-labeling of characters. This one is one way; He is Counsel, he is
cross-examining him, he can put matters of dishonesty. The only thing is that
counsel should not make an imputation which he cannot establish, but you cannot
cross-fire his standing, No, no, no….that’s not correct….so you (referring to
the witness) are not entitled to cross-label him. You see, in the witness box,
it’s your credibility which is at stake; it’s yours that can be attacked. If
the attack is unfair, we would look into that, but those are legitimate arrows
in cross-examination…. (Afterwards, the counsel resumed his cross examination).
Same
Old Story
Counsel: (After a lengthy bout of comparing the
duplicate polling stations with their counterparts, counsel asked). With
respect of all these polling stations listed which we reviewed, you had a
polling agent present, is that correct?
Witness: Yes, it is correct as far as I’m aware.
Counsel:
And you have not seen any protest about serial numbers from any of the polling
agents?
Witness:
No, I think that whole phenomenon was too clever…because at the polling
stations my lords, a polling agent cannot detect a duplicate serial number. It
is impossible. It’s only after all the forms come in that you do the analysis
and even with the assistance of computers that we started finding them in any
significant number. It’s not the sort of thing a polling agent would look at
the form and say: “this is a duplicate serial number”. It is being hidden; this
is why the EC, for the first time in our history, printed only for the presidential
election, a set of duplicates.
Tsatsu Tsikata
Counsel:
Now, in fact, Dr. Bawumia, the reason the polling agents would not even look at
the serial number, is that the serial number is irrelevant to the results, the
votes at the place, is that not so?
Witness:
That is not so my lord, the serial number is integral.
As Mr. Tsikata continuously put it to Dr. Bawumia
that serial numbers of polling stations were not important, Justice Sophia O.
Adinyira, a member of the panel cut in to stop counsel from going further with
that question.
She asked “Must we do this every day. This is a
matter for addresses.”
Counsel:
Very well….(at that stage, he tendered the next list that was checked against
the pink sheets the previous day) Number 325, and it is on the first page and
it is on exhibit MBP 000445, is that correct?
Witness:
Yes my lord.
Mr Tsikata then moved away from the area, trying to
box Dr. Bawumia into a corner on other aspects of the duplicated serial numbers
category.
Counsel:
And the counterpart that you have provided according to you, the counterpart is
Funeral Grounds Nakaba B.
Witness:
Yes my lord.
Counsel:
And according to you, the exhibit number, according to the information that
you’ve provided us is exhibit MBP 005998, according to you?
Witness:
Yes my lord.
Counsel:
Now, let me show you in your exhibit attached to your affidavit, let me show
you what numbered exhibit MBP 005998 is, let me show you that…(Shows the
affidavit to the witness). Can you see on this exhibit that this is indeed
numbered 005998, can you see that?
Witness:
I can see that
Counsel:
So Dr. Bawumia, it is not true when you tried to suggest that an exhibit with
that number has been provided to this court, it’s not true in the terms that
are indicated now by you.
Witness:
What I am saying is that there was a mislabeling of this exhibit number, but
the bottom line is that you have two polling stations-Public JSS Prestea and
Funeral Grounds Nakaba, for each, the same serial number was used and that is a
malpractice, which is in dispute….
Jake’s
Letter
Midway into his cross-examination, Mr. Tsikata
pulled out a letter and asked the witness to identify for a subsequent
cross-examination:
Counsel:
....In fact, I would like you to have a look at this letter, can you identify
the signature of your co-petitioner-the third petitioner-, in this letter
(Hands the witness a copy of the letter and witness and his counsel scrutinize
it)
Witness:
Let me just check the dates; hope it’s not like the last letter I had to
identify (laughter in court)….Yes, it looks like his signature…
Tony Lithur
Counsel:
It looks like his signature? It is on the letterhead of the New Patriotic
Party?
Witness:
It is.
Counsel:
And it’s addressed to the second respondent [the EC], is it not?
Witness:
Yes it is.
Counsel:
And it is in relation to the election, December 2012, is it not?
Witness:
It is….(Philip Addison interrupts)
Mr.
Addison: My lords, Once again we have this situation where a
document is supposed to be identified and there are so many supplementary
questions. There last time I objected to it and asked that those questions
should be expunged from the records, I was told I got up late, today again, a
document has been identified and [it comes with] supplementary questions, I
hope I am not too late in getting up to object?
Justice
Atuguba: Those supplementary questions, I have not even got
them on records….
Counsel:
My lords, this is a document that is effectively a document of the witness; he
is testifying on behalf of the third petitioner and he has recognized the third
petitioner’s signature and he’s identified the content of this exhibit in
relation to the December elections…I don’t know if he [Philip Addison] is
objecting. Basically, I’m laying the foundation to tender the document in
evidence….
Justice
Atuguba: (Referring to the witness) you’ve identified it?
Witness:
I said it looks like the signature of the Chairman [Jake Obetsebi Lamptey] of
the party; it’s a photocopy…that’s all I can say.
Counsel:
And attached to it, you see a statement that was issued as a public statement,
is it not?
Witness:
Yes, I see an unsigned statement on the letterhead of the New Patriotic Party.
Counsel:
Just have a look at what is in that statement….
Mr.
Addison: We are objecting to this question. You asked him to
identify a signature, this is not a document coming from him [the witness], and
he cannot answer the questions you are asking him to answer. My lords, the
document is not in evidence, therefore he cannot speak to the content of the
document. It’s just for identification, he was asked to identify the signature,
he has done that, you cannot go on to ask about the content of the document
when it is not in evidence. (Counsel stood up to continue his
cross-examination)
Nana Ato Dadzie and Gabby Asare Otchere-Darko
Mr.
Addison: My lord, is he responding to my objection?
Justice
Atuguba: Yes, I think so.
Mr.
Tsikata: My lords, I am laying the foundation to tendering a
document, he has objected to the witness looking at the content of the
document. I am proceeding to ask the witness a question which would justify the
earlier question….
Justice
Atuguba: You are doing repair works... (Counsel laughs and
proceeds)
Addison:
My lords, we took an objection to his question, is counsel withdrawing that
question?...(Justice Atuguba comes to the aid of counsel)
Justice
Atuguba: As I understand it, he is rephrasing…
Mr.
Addison: So he should say he is withdrawing the question
that led to the objection…
Justice
Atuguba: In practice, what is the difference between
rephrasing a question and withdrawing? It is an amended question now…
Mr.
Addison: My lord, I got up and raised an objection, this is
the highest court of the land, if he agrees with his objection, he should say
he agrees with the objection and he is going to rephrase it.
Justice
Atuguba: This is the substance of what he has done. This is
the substance, let’s deal with substance, not microcosms….let us make progress.
Mr. Tsikata proceeded to ask his questions on the
document he produced, a development that attracted protests from Mr. Addison
who read portions of the Evidence Act. Eventually, the Bench was forced to rule
on the matter. After a brief consultation, a ruling was developed, upon which
Justice Atuguba read out.
Justice:
Okay this is the ruling: By majority decision of 8-1. Justice Annin-Yeboah
dissenting, the objection is overruled.
Early
Exchanges
When the trial started, Mr. Tsikata pointed out to
the court that the situation that compelled the court to adjourn the
proceedings early on Monday was persisting because the petitioners after
receiving the list from the NDC had not arranged their list according what had
been given them.
He said “there is no clarity and the list supplied to
us is not part of the list we gave them. They generated completely a new list.”
“We propose that the list should be refashioned in
accordance with what is in evidence so that we can get their counterparts.”
E.T. Mensah
Mr. Addison responded that the petitioners provided
all the information the NDC counsel asked for except that due to time
constraint they were unable to prepare the list in the appropriate order.
“If they want it to be arranged by the numbers then
we will need more time to prepare it but as far as we are concerned, we have
done what the court instructed to do,” counsel told the court.
When Mr. Tsikata continued his cross-examination, he
pointed out to Dr. Bawumia that the counterparts of polling station in respect
of same serial numbers were in different categories and not what the
petitioners had exhibited, the witness replied that it could be mislabeling but
added that the counterparts existed and that the situation did not change the
analysis at all.
When counsel pressed that the data showed same polling
station with different exhibits, Dr. Bawumia said “by the nature of our
analysis you cannot use one twice.”
Counsel:
You were misleading this court when you put some of your exhibits in the
category that you should not have done.
Witness:
You asked for counterparts and we have provided them to you.
Motion
to cross-examine witnesses
Before the trial started, the much anticipated
motion that was filed by the NDC seeking eave to cross-examine four witnesses
of the petitioners could not be moved because, the 1st (President
Mahama) and 2nd (Electoral Commission) respondents had also filed
similar applications.
The court’s registry had given President Mahama and
the EC returning dates of May 16 for their motions to be moved and as a result,
the court pushed the NDC motion to Thursday so that all the three motions could
be moved on the same date.
Mr. Tsikata wanted the court to give him the go-ahead
to move his motion in spite of what the court pronounced.
Frank Davies & Godfried Yeboah Dame
Counsel
(Tsatsu): My lords, with respects, that’s actually not the
only alternative. The other alternative is that our application can be heard
and the other applicants [the first respondents] would advice themselves depending
on the outcome because my lords, we are concerned that if the application is
not heard and a witness has to be cross-examined, who is not close by, that may
occasion delay, because that witness may have to be brought down. There is a
witness for instance, from Savelugu that we are seeking to call to
cross-examine, and so some notice need to be given for the witness to be made
available…but my lords, as your lordships direct.
Justice
Atuguba: I didn’t hear anything from [Counsel for the
petitioners]…(Philip Addison, counsel for petitioners rose to express his view
about the decision on the application )
Mr.
Addison: My lords, we would abide by the direction of the
court… (Consequently, the key witness from the petitioners’ side, Dr. Mahamudu Bawumia mounted the witness dock to commence the cross examination from Mr.
Tsatsu Tsikata)
Sitting continues today.
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