Dr. Bawumia after the testimony
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Friday, May 10, 2013.
The landmark presidential election petition received
a major boost yesterday when the Supreme Court ordered a count of all Pink
Sheets involved in the petition.
The issue of how many pinks sheets was attached as
exhibits by the petitioners continue to be hotly contested by the parties in
the ongoing proceedings and the court’s order will settle the matter once and
for all.
The
Order
The order followed an extensive behind-closed-doors meeting
between the justices and all the lead counsel for the parties in the petition,
where they settled on KPMG, a renowned an international accounting and auditing
firm to do the counting.
According to the nine-member panel chaired by
Justice William Atuguba, the accounting firm has the duty of “specifying in
respect of each pink sheet, polling station name and its code number and
exhibit number if any.”
“In doing so the said referee should make a true and
faithful count of the said exhibits of pink sheets according to and under the
various categories of alleged electoral malpractices in issue before this court.
“The said allegations as appearing contained and
specified in paragraph 44 to 67 of the affidavit of the 2nd
petitioner relating to the Presidential Election petition pending in this court
filed in the registry of this court on April 7, 2013, specifying in respect of
each pink sheet, polling station name and its code number and exhibit number if
any,” the order said.
The court said the professional fees to be charged
by KPMG should be shared equally between the parties and added that each party
is at liberty to choose two representatives for the counting exercise as
observers.
The court said that KPMG “should do it a submit the
report to the Registrar forthwith”
How
It Happened
The issue of counting of the pink sheets resurfaced
when Tsatsu Tsikata lead counsel for the ruling National Democratic Congress
(NDC) and Dr Mahamudu Bawumia, the principal witness in the petition, clashed
over who is right with the number of pink sheets in exhibition during Mr.
Tsikata’s 7th day of cross-examination.
Tsatsu said the NDC had a little over 7,000 pink
sheets, while Dr Bawumia insisted that the petitioners submitted 11,842.
The NDC and President John Mahama in their joint
affidavit sworn to by Johnson Asiedu Nketia had indicated that they received
over 8400 pink sheets.
Now the NDC says the pink sheet they received is
short of 3337, according to Nana Ato Dadzie, a member of the party’s legal
team.
It will be recalled Tony Lithur, lead counsel for
President John Dramani Mahama as 1st petitioner during his
cross-examination of Dr. Bawumia made similar request and later backed down
when Philip Addison, the petitioners’ lead counsel submitted that if there was
going to be any audit, then it should include audit of all the violations,
malpractices and irregularities on the face of the pink sheets.
The court had to ask him to withdraw the request with
liberty to re-apply for the counting if Mr. Lithur so wished because the
request appeared premature.
Tsatsu Tsikata
Quantum
of Evidence
Counsel:
Now, in respect of your affidavit which I have referred you to in the context
of these pink sheets, I want you to look at paragraph 44 to 67 just to confirm
that those are the paragraphs where you set out the arrangement of your
exhibits.
Witness:
Yes my lords.
Counsel:
Those are the only paragraphs were you are dealing with the exhibits you
brought to this court, is that not correct?
Witness:
That is correct, my lords
Counsel:
…It is clear that under each category, you have enumerated how many exhibits
fall into those categories…..is that not correct?
Witness:
That’s correct
Counsel:
And so those characterizations in those categories are the exclusive
categorization we can use for your exhibit
Witness:
They are; as I’ve said, we’ve moved from 11,842 to 11, 138. All of them are
contained in the analysis that I have here before me. So, as I said in my
Evidence in Chief, there is an updated analysis that we’ve done since deposing
to this affidavit and I think, when we have the chance, we would let the court
have the various categorization for each irregularity….
Counsel:
Dr. Bawumia, you talked about your updated list in cross-examination?
Witness: No, I think I talked about my updated list
in my Evidence in Chief. I f I recall, that was when I brought up my updated
list.
Counsel:
(He goes to argue that the third respondent did not get up to 11,842 pink
sheets as claimed by the petitioners)…I am putting it to you-my lords, we have
a count , but I’m not sure we necessarily need to put it to the witness -,
6,833, they did not supply. They did not supply pink sheets in respect of 6,833
polling stations….(According to Counsel, the MBP category of the petitioners
evidence relating to duplicate serial numbers of polling stations was
inconsistent with the number of evidence released to respondents. There was a
continuous banter between counsel and witness over the number of pink sheets supplied.
Justice Atuguba had to intervene)
Justice Atuguba: On this controversy about the
number of pink sheets delivered to the respondents…..(Counsel steps in)
Counsel:
No, no, my lords, I have made a further step; I said if you looked at what he
has identified and numbered in his affidavit and you just count, you will not get to 11, 842, that
is a very important point.
Justice
Atuguba: That is what I’m going to address also. I’m
thinking about this question of audit which we deferred, whether it is necessary
at all. This is what I’m trying to see that the numerical total can easily be
ascertained from the numbers quoted in their affidavit as the exhibits they are
relying on and supplied to you. The only question is whether they’ve taken out
any, but that is subsidiary. You can ascertain that [the number in the
affidavit].
Counsel:
My lords, respectfully, you cannot. Let me respectfully explain why; In the
affidavit where he says exhibit MBP 1-6,822, on the face of it, we should have
6,822, now, there can be exhibit 1 and exhibit 6,822, but in-between, there are
lots missing, and when they are missing, they can give the impression of 6,822
by duplicating sheets. So in that respect, it is important that I take him
through exactly what he attached to his affidavit evidence…. (Justice Atuguba
interrupts)
Justice
Atuguba: But the other side of the coin is that if you were
to list out all the exhibits you claim have been supplied to you numerically,
we would see the total that you say has reached you, and then the difference
would then begin to show in relation to the number they are claiming they in
fact delivered to you.
Counsel:
But my lords, there are serious legal consequences, for instance, if all we
received is 7,092, then basically, our answer and our cross-examination is
limited to some proportion of the exhibits that they claim are in issue in this
case….So my lords, if we are able to establish that even on the face of his
affidavit, we do not have 11,842 then my lords, we have a big problem
legally.... (Philip Addison rose to intervene)
Mr.
Addison: My lords, if counsel has been served with an
affidavit supposed to have attachments amounting to 11,842 and he takes
delivery of this service and he doesn’t get 11,842, I would have thought that
he would have referred it to the registrar instead of coming here to say that
he is missing so much….Now coming here and saying that I don’t have A,B,C, we
supposed to believe that? These exhibits, there is no stamp from the registrar,
there are no stamps at all on them, so how would we know what he has been
served with and what he has not been served with?...(A mini argument ensued,
but was quelled as Justice Atuguba asked counsel to continue his
cross-examination)
Nana Ato Dadzie
Counsel:
…If this court ordered a count of that, we should have 11,842 polling stations?
Witness:
Yes, my lords…I think if an audit is done, I believe that we will find 11,842
pink sheets for separate polling stations in the data we’ve submitted to the
court …(Justice Atuguba intervenes)
Justice
Atuguba: If I may suggest that since the audit is coming up
strongly as a medium that can settle this issue, maybe you can proceed with
other aspects
Counsel:
My lords, respectfully, I am going to make an application in respect of the
count at this stage for the simple reason that I would not be able to complete
my cross-examination….(Justice Baffoe-Bonnie interrupts)
Justice
Baffoe-Bonnie: What did you say is the figure that
they submitted?
Counsel:
My lords, am not sure I need to disclose…
Justice
Baffoe-Bonnie: No, no, you just disclose….
Counsel:
It’s not 11,842. I’m certain about that, that’s why I put it to him…..but my
lords, respectfully; I have a reason for not disclosing the number at this
point. We would give the number ultimately. I have every reason not to give the
number, because the credibility of the witness is at stake. If the witness says
that he exhibited an attached 11,842 polling station pink sheets and we count
even his own affidavit identification and it doesn’t come to that,
respectfully, that is a huge issue about his credibility…..(He formally applied
for a count of the evidence on the pink sheet “in the interest of justice”. Mr.
Lithur rose to back Mr. Tsikata after which James Quashie-Idun Counsel for the
EC also affirmed his support for the counting. Philip Addison interrupts)
Mr.
Addison: My lords, the respondent has still failed to first
of all, tell us how many polling stations they can count on the affidavit. They
have also failed to disclose to us how many exhibits they have actually
received. We, as petitioners, are saying that we have provided 11,842 polling
stations. Now, after receiving the affidavit, if you have not received that
number, what do you do, do you wait and come to court to now tell the court
that you did not get up to that number, or you go back to the registry….They
had the opportunity and they failed to take advantage of that….We have done the
check on the affidavit, you say you have done it, so tell us how many you
got…..
Mr. Lithur comes again and insisted that per the affidavit
deposed to by Johnson Asiedu-Nketia, they did not receive that number.
Justice Atuguba suggested that the court should go
on break and come back to read the ruling on whether to count or not, but not
before he had asked Mr. Addison whether he objects to the counting; “We can do
it now,” counsel replied and asked the counsel for the third respondent to
disclose the specific number they calculated.
Mr. Tsikata responded that, “…., I will not, in the
hearing of the witness, give the number that we have counted….because that is
going to prejudice my cross examination.”
In the process, Justice Baffoe-Bonnie calculated the
figures in the affidavit and announced that it was indeed 11,843, one more than
what the petitioner have put out.
After
The Order
Immediately the court ordered the count, Mr. Tsikata
took Dr. Bawumia straight to the polling stations with same codes category,
trying to throw a few punches at the witness.
He told the court that the petitioners exhibited parliamentary
pink sheet as part of the case to which Dr. Bawumia admitted that it was not
relevant to the petition.
Counsel again pointed to Dr. Bawumia that the
petitioners attached same polling station code with two different exhibits and
the Economist again replied “Yes, but only one was used in the analysis.”
The witness admitted that there had been mislabeling
of exhibits but none of them had used in the analysis twice.
Yaw Buaben Asamoah, Gloria Akufo and Prof Ken Attafuah
Mr. Tsikata also pointed Dr. Bawumia to two exhibits
in different series as categorized in respect of same polling station and the
witness’ response was that still none of the pink sheets featured in the
analysis twice.
The NDC counsel at this point told the court that he
had given a huge list of polling stations with same serial numbers which they
needed time to sort out and requested for an adjournment for him to cross-examine
Dr. Bawumia which the court obliged.
Earlier
Exchanges
Proceedings started as usual and for more than 30
minutes the cross-examination progressed with the laborious identification of
each pink sheet. This prompted Mr. Addison to protest.
Mr.
Addison: Earlier on in the morning, your lordships talked
about composite questions, but we have started on the same vein of same
repeated questions of each pink sheet when a composite question could have
taken care of that group of pink sheets…
Counsel:
My lords, you gave a ruling in respect of composite questions when we were
dealing with identification of documents. We have given a list since yesterday,
each document in that list has some specific features which the court’s
attention can be drawn to and it is important for this case and for the
questions that I’m going to raise in cross-examination that he identifies in
each case, the specific document that are unique to each of the pink sheets in
this list….(He went on further justify his style to the bench, but the judges
were a bit unsure about his explanation. Justice Sophia Adinyira tried to
explain the contention expressed by Philip Addison)
Justice
Adinyira: Mr.
Addison’s point is that you have given him a list-like the previous list-,
where basically you were saying “look whether there are signatures”. This list,
we expected that from the three or so questions you have asked for about three
sheets, the issue is that there is date, name and time, so perhaps what he
meant was that after giving him that list, you may say “look whether these (dates,
names and time) are there so that he flips through….Perhaps that is what he
meant, not that you should not ask the questions you want. That’s what I think
he meant by ‘composite’. We have noticed that you are bringing batches of
specific (pink sheets) for specific questions and for specific challenges. So
if these eight, the challenge is the same, perhaps you ask him to look through
and you ask him one question…
Counsel:
No my lords, it’s not really feasible to do it that way because there are
different elements for each of them.
Adinyira:
Okay, okay. As for that one, we can prevent you from dealing with them one by
one…(Afterwards, counsel continues with his cross-examination. He showed the
witness a number of pink sheets to identify specific features on them,
particularly the endorsement of pink sheets by polling agents)
Counsel:
(Showing witness a particular pink sheet)…On this pink sheet, your polling
agent actually signed, isn’t that correct? But there is still something written
in the column to the right, your polling agent signed, is that correct?
Witness:
That’s correct.
Counsel:
And what is written in the column where you normally give your indication as to
any protest?
Witness:
It is very interesting; the polling agents [the NDC and the NPP agents]. Those
are the only two polling agents in this polling station. The NDC wrote
“Accepted/Good” and then under the NPP column, [agent wrote] “Accepted”.
Interestingly, the two are exactly the same handwriting for what the NDC wrote
as accepted and what the NPP wrote as accepted. So I found this very curious
(Sends the court room roaring with laughter).
Counsel:
That’s a major malpractice, is it?
Witness:
A curiosity… (Sends court room roaring with laughter again)
Counsel:
That’s why I showed it to you. Now, you really are not a handwriting expert,
are you?
Witness:
No, am just talking about what I can see on the face of the pink sheet.
Counsel:
I will suggest we do not….because the first “Accepted” there is some poor
spelling unfortunately from the NDC polling agent….
Witness:
He may have corrected it the second time….(courtroom roars again in laughter)
Counsel:
On the face of it, I think the “Good” doesn’t seem to have been written in the
same handwritten, but I think we would gloss over it. Now, Dr. Bawumia you
would be familiar where at the polling station where initially, there is a
context and it is settled and a situation a situation is accepted by all
parties. You are familiar with that isn’t that correct?
Dome
Kwabenya in court
Witness:
Yes, I’m sure. I think Dome Kwabenya comes to mind.
Counsel:
And in the end, there was an accepted result in Dome Kwabenya?
Witness:
That’s right.
Counsel:
And in that case, probably the NPP agent wrote “Good”?
Witness:
He didn’t, he was very upset with what was about to transpire (Laughter again)
Counsel:
Of course you know that in Dome Kwabenya, the issue was really about collation,
was it not?
Witness:
That right
Counsel:
It was about collation, it was an issue that arose at the collation centre
Witness:
That right.
Counsel:
And it was not an issue that arose from any pink sheet from any polling
station, is that not correct. No tallies, no vote attributed to any candidate
were in contest in Dome Kwabenya, you know that?
Witness:
I think the right votes were not being entered for specific candidates…..
(Interrupted by Counsel)
Counsel:
Please answer my question. In Dome Kwabenya, no votes attributed to any
candidate at the polling station were an issue.
Witness:
Actually they were in issue because the vote tallied for the first petitioner
was being reduced artificially and that was not on the basis of the pink sheet,
and this was the basis for the protest.
Counsel:
My question is not answered. I said that at the Dome Kwabenya collation centre,
the issue was not about what was on any pink sheet…
Witness:
It was because the pink sheet did not support what was being written for the
results of the first petitioner.
Counsel:
So is the Dome Kwabenya Pink sheets part of the allegations that you brought
before this court?
Witness:
But we said that issue was resolved before [the petition was drawn] because the
parliamentary candidate stood her ground and made sure the right thing was
done.
Counsel:
Dr. Bawumia, please let’s deal with this in a straight-forward manner; you are
saying there was an issue at Dome Kwabenya. I put it to you that that issue had
nothing to do with the pink sheet in respect of the different polling stations
and you said it had to do with the pink sheet in the polling station, is it
that not you said?
Witness:
I said that the results that were being entered or trying to be entered for the
first petitioner was not consistent with the results on the pink sheets
Counsel:
So the answer to my question about the votes attributed at each polling station
to each candidate-was not the issue?
Witness:
It was the issue because if you enter the wrong votes for the first petitioner,
it would mean that the votes attributable to each candidate would not be
consistent with that.
Public
declaration
Counsel:
Dr. Bawumia, in fact you know that at each polling station, as results were
declared, not only was it in the full view of the public, but as results were
declared, there were for instance; television stations; there were radio
stations capturing the declarations, you are aware of that?
Witness:
I don’t know how many TV stations were in 26,002 polling stations across the
country. In some places, yes, there was coverage, but in the vast majority of
the places [don’t have access to the electronic media coverage]
Counsel:
Dr. Bawumia, I didn’t say there was TV coverage in all polling stations, what
I’ m saying that you are aware that there was coverage at polling stations….
Witness:
At some polling stations; relatively few.
Counsel:
And you are also aware that there was coverage by radio stations throughout the
country, you are aware of that?
Witness:
In some polling stations, this is how we found out voting without biometric
verification in Nadowli Kaleo, for example. It was on radio.
Counsel:
And so in fact, there are records available also from the media networks about
these declarations. There are records available, are you aware of that?
Witness:
The only records we are going by, is the record on the face of the pink sheet.
Counsel:
I fully appreciate that you have your selective record, but am asking you that
are you aware that there was [records]
Witness:
Oh yes, am aware. Some TV stations and some radio stations were announcing
their own election results.
Counsel:
I’m not talking about them announcing their own election results. I’m saying
that the declarations at specific polling stations were in some case, captured
either on radio networks or on TV networks….
Witness:
I will not doubt that, there might have been some declarations captured.
Counsel:
By all nights on the 7th, you were watching TV; you were watching
news from different places, weren’t you? You were expecting to be Vice
President, you were watching…
Witness:
(Laughs) we were expecting the country to move forward on the 7th. We were not
expecting me to be Vice President; as I keep saying, this is not a personal
endeavour; we are fighting for the democracy of this country; for the future of
this country…
Sitting continues on Monday May 13, 2013.
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