STOP THIS NONSENSE...JUDGES BITE 3

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, June 28, 2013

Justice William Atuguba, President of the nine-member Supreme Court justices hearing the Presidential Election Petition said they would not allow people override the authority of the court.

“We won’t stop until all these nonsense are checked,” Justice Atuguba said yesterday when the court once again summoned three more people to appear before it for comments they purportedly made about the ongoing proceedings on various platforms.

The court has already cracked the whip on NPP Deputy Communications Director, Sammy Awuku, when it banned him from further attending the proceedings after it summoned him on Wednesday to render an apology for comments he made about the case on radio.

The people summoned to appear before the court to explain their purported contemptuous comments are Stephen Atubiga, a member of the National Democratic Congress (NDC) and Kwaku Boahen, Ashanti regional NDC Organiser and Ken Kuranchie, Managing Editor of Daily Searchlight, a private newspaper.

The court took notice of the apology rendered by Mr. Awuku but said ‘in the tradition of politics’, some people were trying to portray themselves as being more powerful than the state and once the authority had been vested in the judiciary to control such people, they will not let the nation down.

Justice Atuguba said that even though Mr. Awuku rendered an apology, it appeared to the court he tried to justify his comment and said “If he wants a re-match we will arrange one for him.”

The court also mentioned the comments made by NDC Communication Team member Gabby Asumin who purportedly said there was going to be civil war if the court declared for the petitioners based on face of the pink sheets but said at the time he made the comment the court had not “drawn the final line.”

The court used reportage in The New Statesman, a private newspaper, which had quoted the Messrs Asumin, Atubiga and Boahen.

In the case of Mr. Atubiga, he reportedly stated on Asempa FM’s Ekosii Sen programme that the ruling party will not sit aloof and watch the Supreme Court hand over power to the opposition NPP.

He had said even if the NPP wins the court case; it will be "a bitter-sweet victory" because "Ghana cannot contain all of us", and added that that the foot-soldiers of the NDC are prepared to protect the presidency to the peril of their lives.

He added that they will not allow President John Mahama to hand over power even if the Supreme Court rules in favour of the petitioners.

In the case of Mr. Boahen, he purportedly said on Angel FM and Boss FM, both Kumasi-based private stations that his party was not going to sit down and allow the Supreme Court to overturn the results of the election in favour of the opposition NPP.

“Do you think NDC will sit aloof and watch the court hand over power to the NPP, never! It will never happen in Ghana and anyone can mark it on the wall,” he reportedly charged.

Mr. Kuranchie is said to have published a front page comment on Thursday, June 27, 2013 issue of the Daily Searchlight about the ongoing petition and the court deemed the publication unacceptable.

All the people are to appear on Tuesday.

SOME PINK SHEETS NOT COUNTED - KPMG

Nii Amanor Dodoo of KPMG

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, June 28, 2013 

KPMG, the accounting firm chosen by all the parties to count the number of Pink Sheets used as exhibits in the Presidential Election Petition yesterday told the Supreme Court that the firm did not count all the exhibits.

Nii Amanor Dodoo, Head of Audit Practice and a senior partner the accounting firm testifying yesterday on the report submitted told the court that there were unspecified number of pink sheets in the custody of both the registry and the president of the nine-member panel that were not counted in each case and therefore were not part of the final report.

Philip Addison (Petitioners’ Lead Counsel): Did you count all the pink sheets in the Registrar's custody.

Dodoo: No...but let me clarify this….The exhibits were filed in a number of lots and we counted only one lot.

Addison: I suggest to you that the count involved more than one set of pink sheets….Could you explain the process that informed your decision to leave out some of the pink sheets in the count.

Dodoo: We matched the information by the labels as presented by the Registrar and so the pink sheets that were counted were deemed to be extra copies.

Addison: Can you tell the identity of the pink sheets that were not counted in the Registrar’s office

Dodoo: They were meant to be extra copies. No, I can’t, he admits.

Addison: Don’t you think if you had examined those pink sheets you would have found some of the pink sheets you claimed were not located in the President’s set of pink sheet?

Mr. Dodoo then explained that they did not count those pink sheets because they were deemed to be extra copies.

He told a packed court under cross-examination that 2,876 exhibits were found in Justice William Atuguba’s set which were not found in the Registrar’s set and said that a further 6,629 exhibits were also found in the registrar’s set which were not in the presiding judge’s set.\

Registry Pink Sheets

Addison:  Now, from our calculations based on your report, we say that the unique count for the Registrar’s set is 9,974.

Dodoo: …but when you say unique numbers, with regard to exhibit numbers or with regards to polling station codes?

Addison: In regards to everything in your report that can identify polling stations.

Dodoo: It cannot be with regard to everything because we need to look at these things and relate them to specific descriptions; I mean we need to describe them appropriately, because there were instances where exhibit numbers did not tie into polling station code numbers and vice versa….

Addison: Mr. Amanor Dodoo, did you by any chance have a full list of the 26,002 polling station names and codes, was that supplied to you?

Dodoo:  No my lords, that was not supplied.

Atuguba’s Pink Sheets

Addison: What is the total number of pink sheets counted from the set of the president of the panel?

Dodoo: We would have two numbers for that, but I will explain that: In terms of count by sheet, what we got was 9,856 but there were four instances where the exhibit numbers were on the other side of the pink sheet, so when you take that into consideration, what you get is 9,860. So I will say 9,860 would be the number that we need to work with if you are looking at exhibit numbers.

Addison: Now, this number 9, 860 does not include pink sheets labeled as MBP 3,836 to 4,796, am I right?

Dodoo: That is so

Counsel: So that the figure given us here as 9,860 is an incomplete figure.

Dodoo: That is so, and it is also stated in the report…we did not have a number for that missing lot but we stated that those were not made available. There were some explanation that was given for that.

Addison: Can you tell the court the total unique pink sheets from the president’s set?

Dodoo: I don’t recall; from the president’s set, what we were asked to do was to crosscheck, so what we did was to limit that to checking copies in the president’s set to copies in the registrar’s set.

Addison: You did not check the unique pink sheets with regards to the president’s set, is that what you are saying?

Dodoo: I would have to check on that but I don’t recall that.

Justice Dotse: In the report which I state as volume 1 page 12 (he reads the relevant paragraphs that points to the comparison of the presiding judge’s copies and the registrar’s copies in relation to what the petitioners claimed they filed) can you take us through those findings or fact?

Dodoo: to carry out a test of that nature, you needed to link the exhibit number and the polling station numbers as one item, and then compare that to the same criteria in the president’s set…. So anything that fell outside that would now be deemed to be different from both sets of records.

Justice Dotse: If I understand you, if say this particular exhibit is in the registrar’s set but is not in the presiding judge’s set, it will be in a different category. You will not add it to any of the two sets?

Dodoo: No, it would be itemized separately...

Addison: Mr. Amanor Dodoo, I believe there were 2,876 pink sheets that were in the president’s set that were not in the registrar’s set?

Dodoo: Yes, that is so, that is actually set out in page 438 under appendix C3.20

Addison: Did you also identify any pink sheets in the registrar’s set that were not part of the president’s set?

Dodoo: Yes we did

Addison: Can you tell us how many?

Dodoo: They came up to 6,629….

Pink Sheet Tussle

Addison: Now, Mr. Amanor-Dodoo, are you aware that pink sheets were also served on all the respondents in this case?

Dodoo: I would expect so my lords, in fact we were informed that others were served with pink sheets.

Addison: In our comment, we provided a list of 4,089 pink sheets used by counsel for first and third respondents in cross-examining second petitioner, you received that?

Dodoo: Yes, they were set out in your comment.

Addison: We actually gave you the list of the 4,089 pink sheets that were used in cross-examination.

Dodoo: I am not disputing that, but again, as I said, that fell outside the scope of our work.

Addison: I’m just asking you if you received this document.

Dodoo: Ok, yes we did receive them, sorry my lords.

Addison: Now, I’m suggesting to you that 1,097 pink sheets out of the 4,089 that were used by counsel for first and third respondents were not part of the registrar’s set.

Dodoo: We wouldn’t have had any basis of confirming that because we did not carry out any checks to confirm that.

Inventory

Mr. Dodoo told the court that KPMG as a referee did not take any inventory of the pink sheets in the custody of the Registry before commencing its work.

Addison: Did you take inventory of all the pink sheets in the custody of the Registry prior to the counting.

Dodoo: No we did not.

This is contrary to claims by counsel for President Mahama and the NDC in open court that KPMG before the start of the count took an inventory of the boxes and that the boxes in the custody of the registry had without explanation increased from the number on the inventory of KPMG to a new figure.

Addison: Were you informed as to who filed the pink sheets.

Dodoo: Yes we were told the Petitioners filed.

Addison: Did it come to your attention that the Respondents had filed any pink sheet?

Dodoo: Not that I recall.

Addison: You were asked to do a faithful count of the pinks right.

Dodoo: Yes 

Addison: How many were the pink sheets in the custody of the Registry. 

Dodoo: 13,926

Addison: There were a number of pink sheets with respect to the Registry there were remarks you made. What were those remarks.

Mr. Dodoo explained that information on those pink sheets were not legible.

Addison: Are you aware that a polling station can be uniquely identified by a polling station code.

Dodoo: I guess so. It was not the mandate of the KPMG to identify the polling station by its code.

Addison: The total number of pink sheets with these remarks were 1045 is that right?

Dodoo: Yes, that is right.

The Remarks

Mr Dodoo explained to the court that the reason why KPMG did not incorporate the remarks made by the petitioner in the final report was because they did not have the order given by the court in the count was limited.

Mr. Addison then said the petitioners were not impressed with the explanation and said if KPMG knew they did not need the comments from the parties they ought not to have asked for them in the first place.

Addison: Mr. Amanor –Dodoo did you receive the petitioners’ comment on your draft report?

Dodoo: Yes we did.

Addison: I believe it came to you in the form of a letter and annexes?

Dodoo: That’s the case my lords.

Addison: Did you do anything with these comments?

Dodoo: My lords, to the extent that they were pertinent to the task we were requested to carry out.

Addison: In the petitioners’ comment, your attention was drawn to 171 errors that were inadvertently made by you in your report.

Dodoo: Yes, that is what your comment that you issued indicated.

Addison: Did you verify the accuracy of that statement?

Dodoo: Yes we did my lords.

Addison: And what were the results?

Dodoo: The results were that the information that we had captured reflected what was extracted from the pink sheet that we examined.

Addison: Those were entry errors; 171 were entry errors by your staff in entering the polling station codes and so it was for you to verify, did you verify?

Dodoo: I just said that we did check to the details that were extracted and we did indeed confirm that what has been extracted was a true reflection of data that had been captured…

The Confusion

Justice Sule Gbadegbe interrupted apparently because the explanation was not exactly clear).

Justice Gbadegbe…Even me, I cannot understand what you actually wanted me to say. Did your verification, according to your question, confirm their query or it went otherwise?

Dodoo: My lords, we went through a process, what that process entails is that extracts that were made at the end of each day were confirmed to be a true and accurate reflection of the details that reflected each of the pink sheets, now, copies of those things were actually circulated them to each of the parties and neither at any point did any of them come back with any corrections that needed to be made. The 171 items that he mentioned here; in cross-checking, 34 of those items were found indeed to be errors on their part….so for that reason the 34 could not even have been said to be error. Now, the rest, what was done was to confirm that to be data that was extracted which had been confirmed and there was no error that were highlighted.

Addison: Mr. Dodoo, I must confess; I don’t understand your answer. Were you able to cross-check against the pink sheets which you have wrongly entered their polling station codes, were you able to do this?

Dodoo: If the extract from the pink sheet that was made was correct on the document which we checked to, then the end result will be that what we crosschecked against would be the correct number.

Addison: My question is that you have given a draft report, we have pointed out certain errors, where do you crosscheck these errors from; the same draft report? (Justice Dotse interrupts)

Justice Dotse: Mr. Amanor-Dodoo, do I understand you to say that 34 out of the 171 were found out by you to be errors on the part of the petitioners?

Dodoo: That is so, my lord.

Justice Dotse: Then the rest were confirmed to be correct according to your report?

Referee: That is so my lord….

Addison: The Petitioners gave a list of 850 pink sheets from the 1045 pink sheets on which those remarks were made and explained that those pink sheets could be identified by the polling station code is that right.

Dodoo: Yes but our mandate was not to identify those pink sheets by the code. We were asked to make a faithful count. We could not have done anything other than that. Another court order can be given and those concerns could be addressed.

Addison suggested to Mr. Dodoo that out of the 1045 remarked by KPMG, the Petitioners found 1,086 with unique polling stations but Mr. Dodoo said he had no answer to that question before the court intervened to ask Mr. Addison restrict his questions to the level of knowledge of the witness on the matter.

Addison: How many unique pink sheets were counted in the Registrar's set.

Mr. Dodoo said a straight answer could  not be given because the count was based on three issues; exhibit numbers, polling station codes and polling station names.

He said each situation generated different numbers because some of the exhibit numbers were repeated.

Addison: Were you given the list of the 26,000 polling stations in your counting.

Dodoo: No

Addison: What is the total number of pink sheet counted from the President's set.

Dodoo: 9,856, but four instances where the exhibit numbers were on another sheet so the total was 9860.

Addison: The 9,860 does not include a set of series which was not counted.

Dodoo: Yes

Addison: So the figure given is an incomplete figure.

Dodoo: That is so and we have stated it in the report.

Addison: Can you tell the court the total unique pink sheets from the President’s custody.

Dodoo: We were limited to checking the President’s set in comparison to that of the Registrar’s. So I cannot tell the total unique pink sheets.

Addison: There were 2,876 pink sheet in the President’s set but not in the Registrar’s set is that correct?

Dodoo: Yes that is correct.

Addison: Did you identify any pink sheet in the Registrar’s set that were not part of the President’s set?

Dodoo: Yes, and the number is 6,629

Addison: Are you aware that pink sheets were also served on all the Respondents.

Dodoo: I presume so.

Soft Copy Reloaded
After the tendering of the comments had been dismissed, Mr. Addison turned his attention the soft copy issue finding out from the witness if  he recalled telling the court that the KPMG as a risk management policy did not give out soft copies to their clients

Mr. Dodoo said they did not "ordinarily" give out the soft copies and when Mr. Addison probed further to find out under what circumstance were soft copies given out the KPMG representative read the company’s manual to explain his point.

Mr. Addison however, suggested to the witness that KPMG had no such policy with regards to the clients and that there are KPMG copies on the internet and said what the witness read was in respect of third parties.

Justice Atuguba came in to find out the relevance of the question and said the issue about soft copy was raised and ruled upon.

Justice Baffoe-Bonnie also intervened and said the request for the soft copy was to facilitate the perusal of the report but that was over and Mr. Addison told the court that they went through great pains in arriving at their conclusions.

Another judge intervenes. He says he understood the Petitioners' request for soft copy was to facilitate their perusal of the final report of the KPMG but even without the soft copy they have done a good work in perusing the report and have come out with valid comments. He wonders why the petitioners will now go back to the issue of soft copies.

On Tuesday July 2, 2013, when the court resumes sitting, counsel for the respondents are expected also cross-examine the PKGM representative.

Mr. Lithur was due to start yesterday but had to cut everything short due to time constraints.

SAMMY AWUKU BANNED FROM SUPREME COURT

Sammy Awuku

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, June 27, 2013

The Supreme Court yesterday slapped a ban on Sammy Awuku, a member of the New Patriotic Party (NPP) Communication Team from attending the proceedings of the ongoing Presidential Election Petition.

The Justices said the NPP man had made comments on Peace FM and the comments were deemed scandalous to the highest court.

The nine-member panel therefore invited Mr. Awuku to the courtroom to explain his comments and after a back-and-forth debate, ordered the NPP man to retract the comment on the radio station by 6pm yesterday, which he accordingly did.

Apology

At the time of going to press, Mr. Awuku had retracted the said comments and rendered unqualified apology to the court on numerous radio stations including Peace FM.

The issue came up yesterday in the morning when the court hearing the petition challenging the validity of the Electoral Commission (EC) declaration of John Dramani Mahama as President in December 2012 resumed after a one-day break.

“Before we proceed, we wish to deal with a few matters. The first one is about this reportage; in the last ruling, it was unanimous against the issuance of the softcopy, Justice William Atuguba, chairman of the panel said.

“I have been informed by my colleagues that some carried it the other way, saying that the decision on the softcopy issue was 7 to 2, that’s a complete misrepresentation, however, it appears that the way the ruling was delivered might involve difficulties in technically separating out the two matters, so we don’t intend to be hard on that,” the judge conceded.

“Nonetheless, it is not such an innocent matter because we said long ago, court proceedings are technical, if you don’t understand, accost a lawyer and get the proper explanation,” he added.

DAILY GUIDE Again

Holding a copy of DAILY GUIDE, Justice Atuguba for the second time said the private newspaper had done what the court did not like.

“I hold DAILY GUIDE, I was supposed to have gone wild, there is an insinuation there that it was singled out…well, we do not want to be too hard on these matters. We are judges, a judge and wildness…I don’t know if they would be prepared to receive a wild sentence. We are not wild, if we are wild, we would react wildly to this type of thing, I mean use decent language. You want to sell your paper etc, but you know decency is important.”

Sammy Awuku

The court then expressed grave concern about a statement Mr. Awuku is supposed to have made on radio about the case and sought to find out if he was in the courtroom but he was absent.

“Then when we issued our final touchline warning, on Monday, since then, it has come to our notice that Mr. Sam Awuku…that he reacted to that statement in a certain way. Is he here?”

Realising he was not available, Justice Atuguba said “we would deal with this matter in due cause, because we have issued final warnings.”

“We explained the powers vested in us by the State, but some people seem to be above them. Our worry is that these things…it has some detrimental effect on the ordinary people, they rely on the leaders for information about important matters…Kenya, we saw what happened, when confidence was lost in the judiciary, thousands of lives [were lost] we cannot sit here and allow that”

Justice Atuguba then signaled the legal teams to present the menu for the day before he came back to say that “The touchline we issued last Monday covers everybody in this country, from the President down to anybody. Everybody is covered, everybody. We want to make that clear that the coverage area of our warning.”

Enter Sammy Awuku

The court proceeded to hear the petitioners application to produce documents in respect of collation forms for 13 constituencies before lunch break and after the court resumed, Mr. Awuku had apparently come to turn himself in after the observation from the Presiding judge…

Justice Atuguba: Are you the one? (Referring to Sammy Awuku when he stood up to present himself to the court)

Mr. Awuku: Yes, I decided to produce myself.

Justice Atuguba: Then do so properly, come fully to the front…(Mr. Awuku moves to the front) You said you have tendered yourself?

Mr. Awuku: Yes my lords.

Justice Atuguba: For what purpose have you tendered yourself?

Mr. Awuku: My lords, I offer an unconditional apology and withdraw the comments and the choice of words that were used which might have embarrassed the court, or embarrassed your lordships on that said programme yesterday.

Justice Atuguba: What did you say on that programme?

Mr. Awuku: On that programme, tempers flared up; it was a political discussion and my colleague from the NDC made a comment that did infuriate me. That is no justification to have followed suit to have embarrassed the court, though he did indicate that all these things that we are going to court for would amount to nothing. I got infuriated and I said when these comments come, and orders from the court do not cover that, then it is selective. But then, upon sober reflection, I withdraw those words and those comments unreservedly. My lords, if I happen to have that same opportunity next week Tuesday on Peace FM, I’m sure I will take the opportunity also to offer the same [apology].

Justice Atuguba: Did you disclose what you said in anger or whatever to your NDC colleague?

Mr. Awuku: Yes I did, I told him that such comments are not helpful and undermines the administration of justice.

Justice Atuguba: Is that all you said.

Mr. Awuku: That was my reaction to him, my lords.

Justice Atuguba: Are you sure that if those were your remarks, they are inappropriate apologizing here [in the Supreme Court]?

Mr. Awuku: My lords, I earlier on said the choice of words out of anger, describing the order as being selective, that is what I withdraw unconditionally and apologize to your lordship. 

Justices Sulley Gbadegbe and Jones Doste at a point cut in to ask Mr. Awuku some questions.

Justice Atuguba: You said if you get the same opportunity [to apologize]?

Mr. Awuku: Yes my lords.

Justice Atuguba: What opportunity would you be looking for; because it is that programme [on Peace FM] that was your opportunity for the utterance of these things you are quite sure that the same thing would be there on Tuesday…?

Mr. Awuku: My lords, I mean by the same opportunity, I mean if I get to represent my party again next week Tuesday, I will repeat the apology.

Justice Atuguba: And if you don’t?

Mr. Awuku: If I don’t, but I’m hoping I will, but if I don’t, any opportunity that I do get, I will speak to them.

Justice Atuguba: Is it out of your power to get that opportunity?

Mr. Awuku: As the deputy director of communication of my party, I work with the media houses and when we do have issues to clarify, they [the media houses] work hand-in-hand with the political parties.

Justice Atuguba: We are not forcing you to do anything, but we want to be clear about what you are undertaking to do. You are saying that if you get the chance, you would repeat the withdrawal of those comments?

Mr. Awuku: Yes My lords…I have declined commentary on the matter the whole of this afternoon; I wanted to appear before your lordships first. So afterwards, I’m sure Peace FM has representatives here and the rest of the media, so my lords, I can take the opportunity to do that….I commit myself to speak on that [radio] network and repeat the same apology there.

The Interventions

 Justice Atuguba then asked the counsel for both petitioners and respondents if they had any comments before the court made a ruling.

Philip Addison: My lords, I believe Mr. Awuku has expressed his remorse at the words that he used; we have already met your lordships in Chambers to also add our voice to it that you temper Justice with mercy. He has appeared here publicly to render an apology; I think it should serve as a warning to others because I do not think that really, I can lead anybody again into Chambers on a similar matter. I would like to thank my colleagues for joining me in coming to see your lordships in Chambers.

Mr. Tsikata: My lords, respectfully, I would like to associate myself with my learned friend’s remarks that you temper justice with mercy. I believe that the objectives that you’ve set out, your earlier indication are quite clear; your lordships are here upholding the integrity of the judicial system and the whole State, and I believe that those indications have gone down publicly and clearly. 

I think that your lordships may take into account the fact that Mr. Awuku did offer himself to come to court, and he has rendered an unqualified apology and I believe that it’s appropriate that your lordships do temper justice with mercy…I think the example would be clear to the whole country like your lordships said; from the President to everybody else.

Tony Lithur and James Quarshie-Idun also expressed similar sentiments.

The ruling

Justice Atuguba: We have considered the candid admission of Mr. Sammy Awuku’s utterances on Peace FM on the 25^th day of June 2013 in reaction to the final warning of this court with regard to improper reportage and the previous warnings of this court, concerning contemptuous comments, utterances and altitudes towards this apex court of Ghana issued just on the 24^th day of June 2013.

He has apologized and withdrawn the same before this court and has further undertaken to repeat the retraction by 6pm today. We have also considered with admiration on the pleas put in on his behalf both in Chambers and in open court by lead counsel for the parties on both sides of this case.

We have however, noted with great concern, the steady decline of respect for the authority of the judiciary; the third arm of government of this country over the past years. It appears that the warnings of this court, particularly that of the 24^th day of June 2013, have not been taken seriously.

It is quite apparent that the pompous show of private power in the pursuit of the right to engage in political organization and activities by which the passions of the humble members of society are stirred up on deliberately false political propaganda is a recipe for chaos and conflict in this country.

Kenyan Scenario

We have seen the Kenyan precedent in this context, and much as we are concerned not to exercise our undoubted powers in the court of law with iron fist, we cannot allow the emergence of over-mighty subjects in this country as we said on the 24^th day of June 2013, however, in order to show that we mean well for this country, with regard with the exercise of our awesome powers, we have decided to stop short of invoking our powers of contempt and we invoke, in the alternative, our power to control the attendance of our proceedings as a public court by members of the public, we take judicial notice of the fact that Mr. Sammy Awuku has been attending the proceedings of this court in this ongoing case, we think the exclusion of Mr. Sammy Awuku from attending the proceedings of this court for the rest of the duration of this case should suffice for a start in this direction.

KPMG IN THE BOX

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, June 27, 2013

KPMG, the accounting firm chosen by all the parties to count the number of Pink Sheets used as exhibits in the Presidential Election Petition will today enter the witness’ box for cross-examination.

The firm’s representative is expected to explain certain aspects of the report it submitted to the court after all the legal teams in the petition requested their presence.

Currently, the cross-examination of Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan’s testimony has been put on hold and the court would come back to him after the KPMG issue has been sorted out.

Motion Denied

Before the request for KPMG was made, the nine-member panel chaired by Justice William Atuguba dismissed the petitioner’s application seeking to ask the EC to produce for inspection, Presidential Collation Forms for 13 constituencies in the December 2012 general elections.

The constituencies are Akuapem North, Berekum West, Ketu North, Kintampo South, Ledzokuku, Lower Manya Krobo, Mporhor, Oforikrom, Tamale South, Techiman North, Upper West Akim, Yendi, and Yilo Krobo.

Arguments

Moving the “Application to produce documents for inspection and to make copies thereof,” Philip Addison lead counsel for the petitioners told the packed court that the application was brought under Regulation 43 (5), (6) and (7) of C.I. 75.

He said that after Dr. Afari-Gyan had indicated to the court that he could produce upon request from the court, the collation forms in respect of the 13 named constituencies. 

He told the court that the petitioners subsequently sent a letter EC for the collation forms but the request was declined and that had necessitated the instant motion.

Mr. Addison argued that in the previous application where they were asking for interrogatories, the petitioners brought the application under order CI 47 and that was even in respect of volumes of pink sheets and other collation result forms.

He said at that point, the court had affirmed the EC’s position that the petitioners had been given copies of what they sought to discover from the second respondent and insisted that the current application was different from the earlier application.

He said the instant application was brought in respect of only 13 presidential election collation results forms and added that it was evident that those forms were not given to the parties that contested the 2012 elections.

Mr. Addison said the petitioners had indicated that they did not have some 2,000 pink sheets and that included the 13 constituencies being requested adding that the petitioners had been confronted by the respondents that the petition had been brought in bad faith and that the petitioners are setting an entirely new case.

He cited the second amended answer to the second amended petition by the EC in which 7 out of the 13 constituencies were named with the petitioners accused of not providing details, saying it was precisely the reason why the petitioners did not raise the issue of the constituencies in their affidavits.

He added that the application will show that indeed the first Respondent (John Dramani Mahama) was indeed not validly elected in the 2012 presidential election.

“The motion is intended to assist us to maintain and defend a matter raised in this petition and the issue of bad faith raised by respondents,” he argued.

He said information in the custody of the EC should not be exclusive to the commission and interested parties can apply for same adding “the second respondent is a body that organizes the election and has custody over these documents and are mandated to keep those documents and make them available when where necessary.”

Turning to President Mahama’s affidavit in opposition, he described as unacceptable the President’s explanation that the petitioners request is likely to open the floodgates for the petitioners to demand for further documents deep in the proceedings and may delay the process.

He also referred to another affidavits from the NDC which accused the petitioners of embarking on a fishing expedition and argued that the constituencies in question were already before the court and will therefore be erroneous to say they were embarking on a fishing expedition.

In the affidavit in support of the application, deposed to by Dr. Mahamudu Bawumia, the petitioners had said it had become necessary for them to make the request on the grounds that “all citizens of Ghana have a constitutional right, by virtue of Article 21 (1) (f) of the Constitution, to access information on such public documents as the Presidential Election – Collation Results Forms in the custody of the 2nd respondent, after the close of elections and declaration of results”.

The Opposition

James Quarshie-Idun counsel for the EC vehemently opposed the application and asked the court to take a critical look at the document being requested for by the petitioners.

After reading a manual for election officials, counsel brought out a copy of the results collation form which he said was only listing the results at the various polling stations and said it was just a repetition of results of votes cast at each polling station which were added up.

He said the documents the petitioners were seeking was not necessary and said it had not been the petitioners case that there was a discrepancy between the votes declared by the EC and results on counted at the collation centres.

He mentioned Dr Bawumia's testimony of May 14 and 15 where he quoted the Economist as saying that discrepancies in results declared at the polling stations and the ones declared by the EC was not "part of their case."

He says as to the 2000 missing pink sheets, it is the first time the EC was hearing of it and said the belated attempt to obtain the documentation had pushed the petitioners into making the claim.

He said the request, if granted, was going to delay the proceedings and urged the court to dismiss what he called "belated application".

President Mahama

Tony Lithur representing President Mahama cited Paragraph 24 of the seconded amended petition in which allegations of padding was made but later the petitioners retracted the claim.

He said the petitioners request to produce documents outside their particulars was wrong and added that they were asking the EC to give them evidence upon which they will turn around to use it against the commission.

"Why are you in court if you do not have any basis to be in court in the first place,” he charged and added that it is not just 13 collation forms but that those forms have a huge number of polling stations with huge numbers which was likely to delay the process.

He said the petitioners had adequate notice at the time of the pleadings but did not request for it saying “it is clear this application is not deep fishing but pair-trawling,” and added the application is an "abuse of the process and should be dismissed".

The NDC

Tsatsu Tsikata, counsel for the NDC described the petitioners application as “incompetent” and said the petitioners reference to CI 75 in their application was without basis because no mention was made to the Supreme Court. 

He said the petitioners could be better served by reference to CI 47 and added that the provisions there gave an idea of the discretionary powers of the court in terms of the production of documents.

He says the petitioners submission about missing pink sheets has come to settle the matter against the application made and said there was no issue about 2000 missing pink sheets before the court adding that the court was being asked to deal with the matter on matters filed or alleged to have been filed and not on missing 2000 pink sheets. 

Addison Rebutts

Mr. Addison with leave of the court came back again to rebut the respondents on points of law citing a ruling by the Supreme Court in 1996 which it relied on a provision by the High Court for its ruling on CI 47.

He argues therefore that the Supreme Court could similarly rely on CI 75 another High Court rules to make a decision on this matter.

Gbadegbe’s Intervention
Justice Sulley Nasiru Gbadegbe, a member of the panel asked Mr. Addison if he was following the right process and said it was rather late in the proceedings for counsel to request for the documents.

He appeared to have shut the door on the petitioners when he said “if you had come earlier we would have considered it.”

But Mr. Addison said he agreed in part with the judge but added that the application had come rather late because the accusations of bad faith made against them came rather late and prayed the court to exercise its discretion and allow for the production of the collation forms of the 13 constituencies.

Ruling

After a long break, the court unanimously ruled that it was not going to grant the petitioner’s request.

It said it was adopting its earlier ruling in the petition where it denied the petitioners request to order the EC to present some documents to the court.