TSATSU PUNCHED OVER HONESTY

Nana Akufo-Addo

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, May 9, 2013.

Tempers flared at the ongoing Presidential Election Petition at the Supreme Court yesterday when Tsatsu Tsikata, the National Democratic Congress (NDC) lawyer was cut to size by Philip Addison lead counsel for the petitioners who told him point blank that he should be ready for more reprisal attack.

This followed the use of unsavoury words by Mr Tsikata on the petitioners’ key witness, Dr Mahamudu Bawumia who was being cross examined.

It all started when Mr. Tsikata described Dr. M Bawumia, the 2^nd petitioner and principal witness in the petition as being ‘dishonest’ in some of his answers during the NDC counsel’s 6^th day of cross-examination.

The persistent description of Dr. Bawumia as not being honest did not go down well with the Mr Addison who fired back at Mr. Tsikata for his use of indecorous language.

 "My Lords, I don’t know why counsel can’t ask questions without using words like honesty. It’s quite surprising coming from him (Tsatsu Tsikata) talking about honesty. Really, coming from him is quite rich,” Mr Addison charged.

Addison Blows Tsatsu

The statements ruffled Tsatsu who was temporarily dazed, struggling for words to continue with his cross examination of the witness.

His body language suddenly changed with Justice Atuguba coming to his rescue.

Counsel: Dr. Bawumia, I’m putting it to you that this obvious disparity in your attempt to annul votes that were in favour of the President as against votes in favour of your presidential candidate. The obvious disparity is because you chose to ignore similar practices in areas where your presidential candidate had more votes than John Dramani Mahama….

Witness: No, that’s not the case, the evidence speaks for itself; we brought 11,842 polling stations where irregularities occurred. Some were won by the first respondent; some were won by the first petitioner….

Counsel: I am putting it to you that if you were honest in examining the 24,000 polling stations that you claim you examined, you would have found numerous instances of practices that you are now claiming are malpractices….(Philip Addison interrupts)

Mr. Addison: My lords, I don’t know why counsel can’t ask questions without using words like honesty etc. It is quite surprising coming from him talking about honesty. These kind of words that he has been using, playing to the gallery. We have said that we do not want to reply in kind, he should choose his words carefully; there was no need at all to address the witness as being dishonest. Coming from him, it’s quite rich….

Justice Atuguba: Let us try to be impersonal and professional in this matter and civil too. The question he is putting has nothing to do with his personal…he is not the witness, so his particular…is not an issue….(Addison intervenes again)

Mr. Addison: My lords, I have raised several times, the issue of words that counsel for third respondent has been using in this court, there’s been no pronouncement from the court and he keeps doing it. I’m saying that we are very much capable of throwing those words at him…..

Yaw Boateng Gyan and Johnson Asiedu-Nketiah

Justice Atuguba was forced to wade in to calm tempers, saying; “the mud-slinging was evened. So now, there should be no generation of it the personal attacks whether manually or electronically.”

Previous Incidence

Previously, Mr. Tsikata had described the petitioners’ legal team as being unethical and when Mr. Addison called on him to retract the statement after the court’s ruling vindicated the petitioners’ stance, the NDC counsel flatly refused in open court.

Again on Monday, May 6, Mr. Tsikata asked Mr. Addison to “shut up” in full glare of television cameras beaming the hearing live, when the petitioner’s counsel tried to object to his line of cross examination.

Mr. Addison demanded that the NDC lawyer withdraw the insulting words but the judges overlooked it as if insults were allowed at the Supreme Court, setting bad precedent in the court proceedings.

Interestingly, Justice William Atuguba, chairman of the nine-member panel hearing the petition rather advised the petitioners legal team to seek redress from the bench if any when Mr Addison protested over Mr. Tsikata’s indecorous language.

The court could not ask Mr. Tsikata to withdraw his comment and the NDC counsel was also clearly not prepared to retract his statement either.

Court’s Resolution

Yesterday, sensing that things could degenerate into open confrontation casting slur on the panel, Justice Atuguba quickly stepped in and issued an ultimatum for all the parties in the case to immediately cease using insulting language.

Justice Atuguba made it clear that henceforth, anybody who used indecent language in the proceedings would have to render an apology before the trial could proceed.

The Give-and-take

In the cause of Mr. Tsikata’s cross-examination, counsel for the petitioners felt the line of questioning was repetitive, forcing him to intervene…

Mr. Addison: My lords, this question has been asked and answered. This is why he brought in that pink sheet that he said he wanted the witness to identify….Counsel keeps repeating himself, and my lords, if he does that, he should allow the witness to fully answer these repeated questions.

Counsel: My lords, I have not asked this question, and my lords, this question arises directly from the line of cross-examination that I’m pursuing, this interruption again-with respect-, is prejudicial to my line of cross-examination. It is clear that the witness had answered some of my earlier questions, and we are leading in a certain direction in order to make it clear to the court his lack of credibility in this matter.

Justice Atuguba: As far as what I can recollect, I think he asked a question before ID 1 came in. The question was; “You would agree that if they were other areas in respect of which similar practices occur, the same annulment will ensue”, That is as far as I can recollect but not this particular one [question]. But if you have it on your record, let’s see.

Mr. Addison: We don’t have yesterday’s record [now], but we are very confident it’s on the record; he did refer to the fact that all these malpractices have been taken from the stronghold of the NDC. He did say so, he did ask a question on that and it is on the record, we are very sure about that.

Dr. Bawumia

Justice Atuguba: You say yesterday?

Mr. Addison: Yes.

Justice Atuguba: Well for the avoidance of doubt, let it go…. (Consequently, Mr. Tsikata was allowed to resume his line of questioning)

Counsel: I am suggesting to you that you cannot make such a statement…

Witness: Oh yes, I can.

Counsel: You cannot make such a statement when you have not evenly covered every constituency; every polling station in this country. You cannot do that. 

Witness: Yes I can, I’m only making this statement about the 11, 842 polling stations that we brought to court; Just on those alone, it shouldn’t be interpreted as 26,002 polling stations…so that map is a distribution of those irregularities, violations and malpractices in those 11,842 polling stations.

Counsel: And am suggesting to you that if you take the category of biometric verification for instance, everything that you said in relation to the exhibits that you’ve tendered on that, everything that you’ve said, can be found in other polling stations which you did not put into account in this analysis.

Witness: Well, I can only speak to what I have seen and brought to the court, I cannot speak to what you are thinking about.

Counsel: I’m going to ask you to identify another pink sheet in respect of another pink sheet… and I’m going to ask you if it was part of the 24,000 that you examined. (Pulling out another pink sheet which is apparently not in evidence)

Witness: I cannot identify …(Counsel for petitioners interrupted)

Mr. Addison: My lords, I’m wondering whether now counsel wants to defy the court because this is a matter that was ruled on yesterday. This morning, clarity has been given to this issue, and he is now raising it again. Is he defying the court? Because I don’t understand what is going on here. Why is he insisting on bringing in pink sheets outside the 11,842 that is in contention in this court? We are not going to identify any pink sheet (an eruption of excitement in court as court clerk shout for calm).

Justice Atuguba:  the “Returning Officer” of this court has ruled on the matter….

Justice Atuguba: We took the view that that would involve going about it piecemeal, so we said you should put a composite question….. (Counsel was finally impressed upon to change his direction of cross-examination on that particular issue)

Ruffling Tsatsu’s feathers

In the morning when the trial commenced, it was visible that Mr. Tsikata was being ruffled by series objections by Mr. Addison on the NDC counsel’s attempt to ask questions on the original pink sheets that he sought to ask Dr. Bawumia to identify about over voting which he contended the petitioners deliberately refused to add to their case.

Mr. Addison’s contention was that once the pink sheets were not part of 11,842 in contention, Mr. Tsikata was not entitle to ask questions on the pink sheets which the 3^rd respondent had brought in droves.

Anytime Mr. Tsikata would try to direct his questions into those pink sheets which are not exhibits, Mr. Addison would object and the court mostly sustained the objections.

Philip Addison: My lords, following the ruling yesterday, it is our respectful contention that questions and answers after the identification of the document should be expunged from the records, because it went beyond just identifying the document. My lords, it was as a result of these questions that I got up to raise the objections.

Justice Atuguba: …after that sample Pink Sheet, the next question should be a rolled up on concerning all other similar things. So I don’t see why….the application is refused.

Mr. Addison: As your lordships pleases.

Mr. Tsikata: Dr. Bawumia, can you also identify this pink sheet (Presenting another alien pink sheet)?

Mr. Addison: My lords, I thought a ruling has been given on this matter; we are now confronted with another new pink sheet, we are surprised that in spite of the ruling of yesterday, we are now again confronted with a new pink sheet outside the 11,842 (number of pink sheets presented by the petitioners as part of their evidence).

Jake Otanka Obetsebi-Lamptey

Justice Atuguba: Yes, even before we rose yesterday, we sent a signal that the cut-off point was the first one, then the subsequent ones, you just roll them up. I put it quite clearly….( referring to Counsel for third respondent, Tsatsu Tsikata).

Counsel: But my lords, we did have a list prepared, we gave it to counsel for the petitioners, they declined to go through the list with our lawyers, so what I’m just about to do is indeed-starting with this one-, I was going to put a list to him….

Justice Sophia Adinyira: To start all over again?

Counsel: No, not to start all over again, I’m saying that as your lordships ordered, we prepared the list that has further documents….Yesterday, the indication was that if we had any further identified document ….(interrupted by the bench who apparently thought counsel did not understand the ruling of yesterday)

Justice Adinyira: Can we read the order for you? I think we better read the order again for you, it will solve the problem.

Counsel: Oh my lords…. (Trying to protest the re-enactment of the order, but Justice Atuguba steps in)

Justice Atuguba: But we’ve explained to you that in just one rolled up question. We explained it yesterday, and just now that is not by going by any list. What will be the use of a list of things he hasn’t seen?

Counsel: My lords, you indicated that we could ask a composite question in respect of the list of other documents and so, that is the list that we prepared and that is the list that indicates these other documents. My lords, I think that the ruling that you gave was clearly stamped that we would be able to ask the composite question in respect of the other documents that we would have identified by the witness. So we have prepared the list of these documents….(Judges went into conference to make a ruling on the objection raised by Philip Addison)

Justice Atuguba: This is our ruling: The objection is upheld. The composite questions allowed the third respondent does not allow any list of documents to be put to the witness. To that extent, the objection is sustained.

Counsel: My lords, I have not yet asked the composite question. The composite question is in relation to other documents. Now Dr. Bawumia, in respect of other polling stations where your allegations of over-voting and your definition of over-voting are also found, would it be your claim that those should also be affected in the same way? (Justice Atuguba interrupts)

Justice Atuguba: You have asked this question the previous day, so when we upheld the objection and was talking about the composite question in the ruling, all it means is that all that you are left with as far as this line is concerned is putting the composite question as to the incidence of similar occurrences elsewhere; that is all.

Counsel: So Dr. Bawumia…. (Changes his mind). My lords it would perhaps assist me-as your ladyship indicated-, it would assist me if you read the ruling that you gave again, just for my guidance.( Justice Atuguba obliges and read out the ruling again)…

Justice Atuguba: Is there any problem about this?

Kojogah Adawudu - NDC

Counsel: So Dr. Bawumia, in respect of ID 1 [the first strange document presented to the witness for identification] which I showed you yesterday, your case would be that the votes on that sheet for instance, should be annulled (General protest from the court room. Justice Atuguba intervenes)

Justice Atuguba: It  (the question) is  the same thing….

Justice Adinyira: I think you even asked that question yesterday when he (the witness identified the pink sheet)… and he (the witness) said yes, didn’t he?

Counsel: Very Well…Now Dr. Bawumia, we went through yesterday -in respect of your allegations-, we went through a list tended, and I would like just.

The Switch

Not finding his way through, Mr. Tsikata moved to other already addressed issues including placement of figures on the pink sheet by the election officials and the discrepancies in words and figures on the pink sheets and in each case suggested to Dr. Bawumia that those were error.

Dr. Bawumia parried all the suggestions and told the court that the errors should not benefit someone’s presidency.

Trick Question

Counsel: According to your testimony also, your committee first examined 24,000 pink sheets, is that correct?

Witness: Yes my lord, I thing we have roughly about that?

Counsel: And that was all before you filled your petition?

Witness: Yes my lord.

Counsel: 24,000 pink sheets have been examined by your committee before you filled your petition on 28^th of December 2012. How much longer did it take to examine the remaining pink sheets?

Witness: Which are the remaining?

Counsel: Well, you said 24,000; we know that there are 26,002…

Witness: We didn’t have all the pink sheets…. (Counsel for petitioners Philip Addison intervenes)

Mr. Addison: My lord, that is not a fair question because the witness at all times have indicated that he had access to 24,000 pink sheets, and a question that is intended to trick the witness that he has seen 26,002 is not fair. It is completely unfair.

Counsel: My lords, I do not see anything unfair about the question; I think what is unfair is the way that counsel (referring to Philip Addison) is basically trying to assist the witness in giving testimony, that’s what is unfair…. (murmuring in court).

Justice Atuguba: Well, it appears that you had answered that question (referring to Witness). You  said you examined 24,000?

Gloria Akufo - NPP

Witness: yes my lords.

Justice Atuguba: Ok….(Minor argument on the bench as judges decides whether to sustain or overrule the objection from counsel  for petitioners). Objection overruled.

The admission

Dr. Bawumia in rare occasions admitted that some of the pink sheets they exhibited regarding over voting should not have been part of the category assigned but insisted that he was not being dishonest when he swore the oath.

He also told the court that it was possible that some of the exhibits the NDC counsel was referring to were part of the 704 pink sheets that they said they were no longer relying on and requested to trace the document but Mr. Tsikata would not allow him to do so.

Primary Record

Mr. Tsikata put it to Dr. Bawumia that the pink sheet cannot be described as the primary record of the election and rather it was the voters register at each polling station which is the primary record.

Kwadwo Owusu Afriyie 

Dr. Bawumia insisted that the primary record for the election was what was on the face of the pink sheet and it was based on those documents that the 2^nd petitioner (Electoral Commission) declared the results.

He also insisted that he had not kept moving his categorization of the irregularities and that there was no double-counting of their analysis as suggested by Mr. Tsikata.