Sir John, Nana Akufo-Addo, Dr. Bawumia and Yaw Osafo Maafo
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Tuesday May 14, 2013.
The penchant of Tsatsu Tsikata, lead counsel for the
ruling National Democratic Congress (NDC) to conduct cross-examination on old documents
not in evidence in the ongoing presidential election petition at the Supreme
Court attracted the attention of the nine-member panel hearing the case.
Even though the court has already ruled that none of
the parties could refer to the petitioners’ original petition which was
subsequently amended, Mr. Tsikata still insists on asking questions in relation
to it in what looks like a clear disregard for the court.
This situation compelled Justice William Atuguba,
chairing the panel to stop Mr. Tsikata from making references to original
petition which was amended.
Give-And-Take
Counsel:
And I want to just draw your attention Dr. Bawumia….( Picking up the old
petition of the petitioners), now, have a look at your petition , as filed on
the 28 of December [2012]. Just have a
look at paragraph 20…. (Justice Atuguba interrupts)
Justice
Atuguba: The petition has been amended so….
Counsel:
Yes, my lords, the relevance of this question is a contrast between the earlier
petition [and the amended one]. It is important in this case because it shows
the scope of this category, my lords; it is important o show the scope in order
to ask the question that I’m going to ask.
Justice
Atuguba: No, what I’m saying is that, except the amendment
does not affect certain parts of the earlier content [of the old petition], but
if it does, you cannot revisit what has been replaced by the subsequent
amendment because it is entirely replaces the amended version; it ceases to
exist.
Counsel:
My lords, I think it is appropriate to ask about a figure that was expressed in
the petition as against figures expressed later to be able to get a
clarification as to the process which led to the new figures being established.
But, I mean that seems to me to be legitimate, but if
your lordships are insisting that no reference can be made to the petition….It
was the petition that was filed on December 28 that gave this court
jurisdiction. That was the basis on which they came to court originally, if
there is a process which has led them to some changes there, with respect, I
think I’m entitle to cross-examine…..
Justice
Atuguba: What I’m pressing on you is that it is only those
parts that were not amended from the previous petition that you can refer to.
But those that were amended, their amendment, their amendment now come into
existence on 28th, even though later. In law, they come into
existence as from 28th.
Counsel:
Respectfully my lords, that is not my understanding of an amendment…(Murmurs in
court as court clerk screams Order! Order!!).
Respectfully, the reason why an amendment is dated as of a different
date is precisely because it does not take effect on the 28 of December …
Justice
Atuguba: You know, once in a while, you see the view that
you are talking of, but the preponderance of legal opinion is that an amended
pleading takes effect from the original filed pleading.
Counsel:
My lords, I do not wish to drag this point, I will proceed….
Another
Gaffe
Counsel:
Now Dr. Bawumia, in paragraph 27 of your amended petition…in that paragraph,
the number of votes that is indicated that you are seeking to have annulled is
stated as 4,670,504, is that not correct?
Dr
Bawumia: Are we talking about the same thing, the
[paragraph] 27 I’m seeing here is not the [paragraph] 27 you are
reading…(Apparently the counsel was referring to paragraph 27 of the verifying
affidavit attached to the petition and not paragraph 27 of the petition itself)
Counsel:
The verifying affidavit on page 7…. paragraph 27. In the verifying affidavit,
the figure that is being sought to be annulled according to the petition is
4,670,504?
Witness:
Yes my lord.
Counsel:
And that indeed reflects paragraph 20 of the second amended petition, is that
not correct?
Witness:
Yes my lord.
Counsel:
Now in fact, if you look at the table which is included in both the affidavit
and the amended petition…you would see that in respect of this same serial
number of pink sheets with different results, we are talking about 2,583,633
votes, are we not?
Witness:
Yes my lord.
Counsel:
So clearly, a very major part of your current claim is based on that MBP
series, and you would admit that prior to your second amendment being filed,
your committee did not give much significance to this serial number, earlier
on, the number of votes that you were seeking … (Counsel for petitioners, Dr.
Philip Addison rose to object to the question)
Addison:
I’m objecting to this question is just to find a way to ask questions about the
original petition. This court has ruled on that, he cannot go back there. …
(Mr. Tsikata tried to justify his strategy by saying there is “a changing
series of numbers” by the petitioners in respect of their petition and
concluding that those changes reflect a “lack of evidence”, but Justice Atuguba
steps in again to clarify issues for counsel)
Tsatsu Tsikata
Justice
Atuguba: From what you are saying, if a pleading is amended,
the person who has amended can still be attacked on grounds of inconsistent
statement?
Counsel:
No, no,no, my lords am not asking questions about the earlier pleading, I’m
asking a question about the work of his committee….
Justice
Atuguba: Relating to what?
Counsel:
Relating to the significance that they attached (But Counsel was impressed upon
to redirect his course)
Flashback
On April 30, Mr. Tsikata embarked on a similar
mission trying to make references to the original petition filed on December
28, 2012 and which was subsequently amended by the petitioners.
When Mr. Tsikata insisted that he had the right to
make references, Phillip Addison, lead counsel for the petitioners raised
objection, insisting that the court’s rules must be followed because they were
no longer relying on the document.
Justice Atuguba then said that “normally pleadings
are not required to be verified by affidavit, but in an action like this they
are. I see the point you are making relating to affidavit, but in fairness, one
has to construe the amendment procedure Mutatis
Mutandis also in respect of the affidavit, so that when the amendment is
made, it’s not just the pleadings, but the new affidavit supporting the amended
petition deemed to have amended the earlier one.”
Early
Exchanges
Earlier, taking Dr. Bawumia to polling stations with
same serial numbers, the principal witness told the court that even though some
of the irregularities of polling stations with same serial numbers occurred on
their own, their counterparts might be in different categories.
He said that the category of exclusive same serial
numbers are in pairs but added “some polling stations have I think, 3 same serial
numbers,” and said there was no instance where there were four as put it to him
by counsel.
He said that wherever the pink sheet was found in 2
polling stations with different exhibits numbers that was not counted twice and
added that if the same exhibit is taken to another category the number will
reduce but the overall exhibits will be the same.
“This category will reduce by one but the overall
total will not change because it will also have an increase in another category,”
Dr. Bawumia contended.
Earlier, Tsatsu Tsikata, cross-examination mainly
focused on the duplication of serial number of polling stations as alleged by
the petitioners.
Mr. Tsikata picked up a list of exhibit numbers in
this category and asked the key witness from the petitioners’ side to identify
their counterpart duplicates.
Counsel:
(Picking up a particular exhibit of duplicate polling station serial number
getting a confirmation of its counterpart from Dr. Bawumia). So clearly, it
(the exhibit) has no place in any other category other than category “MBQ”?
Witness:
That’s right
Counsel:
So clearly it was in error to have that within the “P” category is that
correct?
Witness:
I think if my assessment is right, the counterpart is in the “P” and the other
is in the “Q”, that is its proper classification but they are both duplicate
serial numbers.
Counsel:
Dr. Bawumia, it is in error to have this in “MBP” series.
Witness:
Yes, the proper classification for that other one would be in “Q”.
Counsel:
And therefore once again, there is an immediate deduction from your “P”
category, is that not?
Witness:
Yes, if that moves out of the P category, it would be reduced by one, but the
overall total would not change.
Counsel:
The overall total of exhibits would not change?
Gloria Akufo
Witness:
That’s right.
Counsel:
And the overall total in the P category would also not change?
Witness:
I mean if it moves out from one category to the other, you would have a
reduction by one in P and an increase by one in another category.
Counsel:
Dr. Bawumia, you don’t have an increase by one because you’ve given out the
counterpart [of that contentious exhibit of duplicate polling station]: Exhibit
MBQ which is already there….
Witness:
No, I’m just saying that the MBQ is being reclassified from DS (Duplicate
serial number) to Q and that is why you would be seeing DS or the P coming down
and the Q going up, that’s all that is happening.
Counsel:
Dr. Bawumia, exhibit MBQ 00005 is already included in your exhibit, it that not
correct?
Witness:
You gave me a list to say, “ this is a list, where are their counterparts”
and I have shown you that the counterpart
in the P category, can be found in the Q category, so I don’t see what the
problem is.
Counsel:
Well, I see a problem and that’s why I need a simple answer to my simple
question….( The back and forth banter goes on, until Counsel diverted the focus
of the questions). Now, Dr. Bawumia, on the rest of that list, you have a
number of others which are in the P category is that correct?
Witness:
Yes my lord.
Counsel:
And in each of those cases, basically, it is a duplicate; each of those
pairing?
Witness:
Yes my lord.
Counsel:
So would I be right to-in understanding your evidence, would I be right to say
that if the exclusive category of duplicate serial numbers-if we assume that
they were in pairs-, then it would really be 3,300 plus (number of petitioners
alleged duplicate polling stations with duplicate serial numbers) serial
numbers, if we just assume that they were in pairs, is that a fair
understanding of the evidence you are bringing?
Witness:
Actually, you have to think about this in context of different polling
stations, not pairs of the same polling stations. If you think about it in the
context of the same serial numbers, then you would be mistaken. It is separate
polling station; the same serial number with different results, so you cannot really
try to divide them by two. You would be mistaken.
Counsel:
you are right, there are different results and different polling agents, isn’t
that right?
Witness:
Yes my lords
Counsel:
Different names of polling stations?
Witness:
Yes my lord.
Counsel:
And different codes of polling stations?
Witness:
Yes my lord.
Counsel:
Now, the question that I ask that...if you had 3,400 serial numbers which are
repeated twice, you would have 6,800, is that not correct…?
Witness:
This is the issue of the duplication; if you pick the same serial number, if it
is one and you use it at another polling station, you would have two polling
stations using the same serial number.
Counsel:
Yeah, that’s what I’m saying, so it would be 3,400 multiplied by two if you are duplicating the same serial
number, is it not correct?
Witness:
In
terms of the polling stations, yes.
Unique
Serial Numbers
According to Mr. Tsikata each political party was
involved in the printing of the booklets used in the election and the NPP
agents endorsed the serial numbers assigned to each polling station but Dr.
Bawumia replied that even though he was not aware to the extent of the
involvement of his party’s agents, each pink sheet should have a unique serial
number.
The witness disagreed with Mr. Tsikata’s suggestion
that the serial number was not a security feature and added that without serial
numbers the process is prone to manipulations.
Mr. Tsikata put it to Dr. Bawumia that pink sheets
are identified by name of polling station, the code, name of presiding officer
among others and not the serial number but the witness insisted that the serial
number of the pink sheet is key for the purposes of auditing.
Give-And-Take
On Pink Sheet Serial Numbers
Counsel:
Dr. Bawumia, I am suggesting to you that the serial number on the pink sheet is
not a security feature.
Witness:
I think you are wrong, they paid for this, the EC goes for tender and paid-got
money- for this serial number to be embossed on the form, it is not a mere
decoration. One you attach a serial number to a polling station, or name, it
becomes unique to that polling station.
Counsel:
Dr. Bawumia, you see, it cannot be unique because if the Electoral Commission
issues that pink sheet to another polling station, so it cannot be unique.
Witness:
Precisely, it cannot be unique, so this is what we are saying; that they gave
us a reason for why they issued this additional serial numbers, and that reason
flies in the face of the evidence; it is not truthful...!
Counsel:
Dr. Bawumia, you need to address my question, you see Dr. Bawumia, no polling
agent of the NPP was asked to check to see what the serial number on the pink
sheet was, do you agree?
Nana Ato Dadzie
Witness:
I agree, we all assumed that the Electoral Commission would maintain the
integrity of all of these result forms by making sure as understood, that the
serial number is unique to each polling station, but they went ahead to print
duplicates and lied about why they printed it, this is what worries us a lot.
They did not tell the truth about how they printed the duplicate serial
numbers. Once you start lying about why you did it, then your motives are
questionable, especially when we point that over 74% of over-voting has to do
with duplicate serial numbers; over 74% No-Biometric Verification has to do
with duplicate serial numbers; over 75 % of No Signature has to do with
duplicate serial numbers and over 80 % of duplicate polling station codes has
to do with duplicate serial numbers. That is not a mere coincidence.
Counsel:
Dr. Bawumia, none of those percentages of yours make sense to the question I’m
asking you, so let’s stay on the question.
Witness:
They actually do
Ballot
Paper Argument
Counsel:
Very well. Now, Dr. Bawumia, you also know that in each polling station, in
fact, when it came to ballot papers, there were again, serial numbers used. You
are aware of that aren’t you?
Witness:
Yes my lord.
Counsel:
And in fact if you look at the column A2,-just take a random sheet-if you look
at A2, that is where the serial numbers of ballot papers are entered, is that
not correct?
Witness:
That is right, and for most of the pink sheets, they were not very clear.
Counsel:
But indeed, the serial number relating to ballot papers was quite significant
for the polling station in question, you would agree, wouldn’t you?
Witness:
Yes my lord, but the serial number of the form is what we are talking about.
Counsel: And in the case of the serial number of the
ballot papers, you were aware of a whole procedure that the Electoral
Commission had segregate ballot papers for polling stations according to
[polling station] serial number, are you not?
Witness:
I would hope that is the case; that you can uniquely identify ballot papers
just as you can uniquely identify the result form.
Counsel:
Dr. Bawumia, please I’m not asking for your hope. I am asking: are you aware of
the procedures that the Electoral Commission had for designating serial numbers
of ballot papers according to polling stations, are you aware?
Witness:
I’m not aware of any detail procedures. What I am aware of is that ballot
papers taken to polling stations have serial numbers.
Counsel:
And you are also not aware that when it came to printing the ballot papers,
each party was involved in terms of observing and checking that the printers
were doing exactly what they were required to do in entering serial numbers and
printing those serial numbers uniquely,
are you aware, or you are not?
Witness:
Well, I thing that the issue is about…. (Counsel interrupts)
Counsel:
Are you aware or you are not? Don’t tell me that what the issue is, I know it
very well, but are you aware that each party was involved in monitoring, in
checking how this printing of serial numbers on the ballot papers were done?
Witness:
I’m not totally aware the extent that our party was involved, but you can use
the right ballot papers and still enter the wrong results on the form.
Counsel:
I take it that you are also not aware that apart from the stage where the
printing was done, when the ballot
papers for each polling station were being dispatched, each party again was
involved in monitoring that process, are you aware?
Swipe
at EC
Witness:
I am aware that there was some monitoring but the second respondent basically
told an untruth about why it printed duplicate forms for the alone. In their
response, they lied basically to this court in saying that they printed these
duplicate forms because they expected more candidates. We all know that the
same names appeared on the duplication forms, but they could not have expected
more candidates since they printed them after October 19, 2012 when the ballot
took place. It is that lack of veracity of the Electoral Commission in this
case as to the rationale of printing these duplicate forms that makes them very
suspicious.
Counsel:
Dr. Bawumia, we are going to stay with your veracity for now, that’s what we
are dealing with at the moment….now, are you aware that this allocation of
serial numbers to polling stations is one of the first things that is checked
on voting day at each polling station, are you aware of that?
Witness:
I would hope so, but then, I would also hope the allocation of serial numbers
on the pink sheet is also one of the first things they check.
Counsel:
Dr. Bawumia, in fact when these ballot papers and their serial numbers are checked
and noted in the column A2 that enables the presiding officer and the polling
agent, at the end of the count to determine if any ballot paper for instance,
has gone into the box, which was not part of that series, clearly, would you
not agree?
Witness:
Yes, I would agree, the entries for the ballot papers’ serial numbers as with
the polling station codes are all done by hand. The only number that comes
embossed on this form is the serial number [of the polling station]. It is a
security feature, no matter what the second respondent [the EC] says, it is a
security feature, just like you have for cheques or passport numbers. The
serial number is a security feature and if you breach that, you compromise the
integrity of the results form.
Issues
For Addresses
Mr. Tsikata brought out EC’s manual for party agents
and sought to take Dr. Bawumia through the responsibilities of a party agent at
the polling station but the court advised that counsel could reserve that for
his addresses.
Mr. Tsikata would not budge and insisted on going
ahead to cross-examine Dr. Bawumia on the responsibilities of a polling agent
saying that the document was tendered through the witness by the EC counsel and
he had every right to ask questions on that.
Mr. Addison cut in to say that since the proceedings
started the petitioners have taken every decision of the court that did not go
their way in good faith but Mr. Tsikata has always argued with the bench over a
ruling saying “I think that is very dangerous precedent.”
Mr. Tsikata then found a way to ask another question
in relation to the responsibilities of a polling agent but Justice Atuguba cut into Dr. Bawumia’s answer
saying “We are not going to record this. It is for addresses.”
The court closed proceedings quiet early yesterday
because the exhibits that were yet to be sorted out were huge and both parties
needed time to sort them out.
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