BLOWS IN COURT...JUDGES WARN LAWYERS

Some NPP gurus with Dr. Mahamudu Bawumia after the proceedings

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, June 13, 2013

There were fireworks yesterday at the ongoing Presidential Election Petition hearing at the Supreme Court when lead counsel for the parties slugged it out over exhibits and some polling station registers.

The persistent arguments compelled the nine-member panel presided over Justice William Atuguba to throw caution to the lawyers to watch their utterances or face sanctions from the bench.

In fact, the issue of whether or not the petitioners had filed 11,842 pink sheets as exhibits and whether or not the respondents were served with all the documents has been raging.

Justice Atuguba was not happy with the allegation of unfairness imputed on the justices with a warning that they are ready to apply the rules.

Petitioners' counsel Philip Addison had told the court that he does not trust the respondents for him to leave his documents in their custody, especially when they had also exhibited similar tendencies.

He said that since they did not trust him, he could not trust them.

Mr. Addison had sought to cross-examine Dr Afari-Gyan on a voter register from Adaklu in the Volta region where multiple registrations had been captured.

Phillip Addison

But the witness said he would need to cross-check with the copy in the custody of the Electoral Commission before answering questions on the document.

Counsel then demanded that his copy be returned to him and that he would instead give the witness an electronic copy.

The court could not understand the reason behind this demand and enquired from counsel.

In a passionate response, counsel said he did not trust any of the respondents “one bit”, highlighting a number of incidents of mistrust exhibited by the respondents.

“They don’t trust me but they want me to trust them. I don’t trust them one bit”, he charged.

He added that “for the avoidance of doubt” he would leave it with the court but not with the respondents.

The justices then said they would not tolerate imputation of mistrust, which they said was contemptuous.

How Mr Addison protested that far more serious and derogatory comments had been made by counsel for the respondents referring to Tsatsu Tsikata, imputing ‘criminality’ to the petitioners but did not attract reprimand from the Bench.

Justice Atuguba with anger said the justices have powers to deal with any counsel who show disrespect to the court.

Since the trial commenced, the respondents have insisted they were not served with all the exhibits but appeared to have taken the argument to another level when they alleged on Tuesday that the pink sheets being introduced by the petitioners’ counsel in the cross-examination of Kwadwo Dr. Afari-Gyan, Chairman of the Electoral commission (EC) are not even part of the exhibits tendered.

Wild Allegation

Tsatsu Tsikata counsel for the ruling National Democratic Congress (NDC) and Tony Lithur, counsel for President John Dramani Mahama supported by James Quarshie-Idun who is leading the Electoral Commission, took turns to insist that some of Phillip Addison’s pink sheets sometimes bore different polling station codes and names.

Mr. Tsikata, who in the previous proceedings imputed ‘criminality’ when he claimed the boxes containing the exhibits at the Supreme Court Registry had changed from 24 to 31, again repeated his claim in the court that the exhibits had been ‘compromised’.

Mr. Lithur also gave another version when he claimed the boxes had changed from 24 to 34 and gave indication that the exhibits had been tampered with.

To set the records straight, the court has already asked KPMG, a reputable international accounting firm to count the number of pink sheets attached as exhibits by the petitioners and it was just as the process began that the respondents led by Mr. Tsikata raised the issue of additional boxes, forcing the court to use the copies served on Justice Atuguba to crosscheck what was in the registry as a form of ‘control mechanism’.

The court has for the time being, asked Mr. Addison to concentrate on cross-examining Dr. Afari-Gyan on questions that had nothing to do with pink sheets in contention and just as counsel tried restrict himself to those questions the respondents led by Mr. Quarshie-Idun have persistently tried to raise objections to every move by counsel thereby delaying the proceedings.

At a point it appeared that the respondents wanted the proceedings stayed for KPMG to submit its report so that issues could be straighten up but Mr. Addison said he could go ahead with the pink sheets that were not in dispute.

I don’t Trust You

As Mr. Addison tried to avoid the pink sheets and go unto a couple of polling station registers where he was seeking to disprove Dr. Afari-Gyan’s position that there could not be double registration in register, the EC commissioner said he needed time to check the petitioners register given him for identification.

Dr. Afari-Gyan then held on to the register to enable him take it to the office to crosscheck but Mr. Addison insisted it did not belong to him and wanted it back.

Counsel: So you Dr. Afari-Gyan can vouch that the final voters’ register has totally been cleaned of double registration?

Witness: My lords, we have done our best to eliminate multiple registrations as is humanly possible.

Counsel: I don’t understand your answer; does it mean you accept that there are some double registrations?

Witness: I don’t know of any double registrations, but on the other hand, when you are dealing with millions of people, I cannot say there isn’t any….

Counsel: My lords, yesterday, I tried to point one out to you, and you said that was not a register?

Witness: My lords, yesterday’s register, I remember correctly, bore the date of 11^th November [2012]. I have to enquire, but by 11^th November, we had not printed the final voters’ register…so those extracts could not have come from our final voters’ register.

Counsel: So Dr. Afari-Gyan, does it mean that the register you gave to the parties was not the final register?

Witness: No, we had exhibited a provisional register; those excerpts could have come from the provisional register.

Counsel: You see, you keep shifting the goalpost, but we would go till you hit a wall and you can’t move again (He passes on a copy of a polling station register to the witness through his counsel). Can you identify the document in your hand?

Witness: My lords (Witness identified the register from a polling station in the Adaklu District of the Volta Region)

James Quarshie-Idun

Counsel: Now, this is a voters’ register, a soft copy of which was given to the NPP who printed this copy out of the soft copy.

Witness: Well, we [the EC] also gave you hard copies.

Counsel: The NPP has no hard copy, they were provided with soft copy and this was printed from the soft copy.

Witness: My lords, we also gave hard copies. If that is the case, I would have to check.

Counsel: Dr Afari-Gyan, do you dispute that what you have there is the register given to the NPP? (Witness tries to look at his lawyers on the bench, warranting a sharp caution from counsel) Please don’t look at your lawyers, just answer my question.

Witness:  My lords, I’m not looking at my lawyers…If you are shown a document without going through the document…. (Counsel interrupts)

Counsel: You should know more than your lawyers….

Witness: If you are shown a document…you look at the back and you say this is the document? I say give me a chance to check.

Counsel: Okay

Witness: My lords, I can check and tell you what the truth is tomorrow morning….tomorrow morning, I can check and tell you what the situation is.

Counsel: So what are you going to check? (Lawyer of the second respondent, James Quashie-Idun steps in)

Mr. Quarshie-Idun: My lords, I think it is pretty obvious what he is going to check, the witness cannot be intimidated…the witness is being harassed my lords…. (General laughter in the court room)

Witness: My lords, we have custody of the voters’ register and I’m saying that I will go the source and tomorrow confirm whether this is what we have or not

Counsel: Dr. Afari-Gyan, I’m suggesting to you that this is the register 

supplied to the New Patriotic Party.

Mr. Quarshie-Idun: My lords, I object to this question, the witness has stated that he is the custodian; he is ready to check and bring it back tomorrow. Mr. Addison cannot proceed in this manner my lord.

Counsel: I don’t understand what his objection is all about; are you suggesting that the witness cannot answer?  (Justice Rose Owusu intervenes)

Justice Rose Owusu: …he says he cannot answer until he goes to check. Give him the opportunity to go and check…

Counsel: I have no problem with that. My lords, except that I am suggesting to him that this is the copy we have ….(Justice Sule Gbadegbe  joins the fray)

Justice Gbadegbe: ….he’s been quite fair to you, he says I would go and look at it and come back tomorrow, otherwise, the best thing is that the one from which you extracted the copy, since he is not the makers, he would look at it and see whether it’s the same thing.

Counsel: My lords, if we bring the soft copy, he would need time again to check on that. They are always shifting the goalpost; we never get there…we would bring the soft copy. (Referring to the witness) Can I have the document [the voters’ register given to the witness a few minutes ago].

Mr. Quarshie-Idun: He needs it to check (slight confusion ensues)…

Counsel: Dr. Afari-Gyan, can you return my document to me?

Mr. Quarshie-Idun: My lords, he needs to check, what is Mr. Addison afraid of? (Justice Annin-Yeboah steps into the ensuing confusion following the request for the return of the document)

Justice Annin-Yeboah: …This document has not been identified, it has not been tendered; it is not in the custody of the court, but in fairness to each side, if he wants to have it and get it compared to the other, fine. But technically, it is not in evidence….

Mr. Quarshie-Idun…As it has been already identified by the witness, it should be marked. He would go and check it and come back tomorrow…that is the proper procedure. (The bench tries to convince counsel to allow the witness to go cross-check his register against his, but counsel remained adamant)

Counsel:..They seem not to trust me, they want me to trust them: I don’t trust them one bit; I don’t. The document can be in the custody of the court but I will not let them take this document away. I don’t trust them one bit…. (Court erupts into an uneasy atmosphere Justice Vida Akoto-Bamfo cuts into the apparent confusion)

Justice Akoto-Bamfo: Mr. Addison, isn’t it sad you making this statement at the Bar?

Counsel: My lords, I have said what have not been said: Their altitude,… look at the altitude they put up here, it’s so sad. I’m sad that they should even think that I will take this document because I have doctored it

Justice Baffoe-Bonnie: Mr. Addison, you were a few minutes ago, talking about the shifting of the goalpost; you are seeking to put this document in evidence and ask questions on it and the witness says, I want to check and compare, so if you decide to take the document back, what would he be comparing with?

Counsel: That is why, if your lordships would recall, yesterday for the avoidance of all these and this kind of petty mistrust, I said they should bring their register, and they didn’t accept it….I have brought this and look at all these doubt that is being created: Now, it is that they want the soft copy, so I say bring me back the document, I will bring you the soft copy….

Justice Baffoe-Bonnie: You see you are not getting it; the witness says he supplied you with the final voters’, you said that you didn’t get any hardcopy and that you made it out of the soft copy given to you, even that alone suggest that this is not what they gave you.

Dr. Kwadwo Afari-Gyan

Counsel: Well my lord, or the avoidance of doubt, we would leave this copy with the court; they should also bring their copy. It’s as simple as that…I do not want to leave it to this witness, they have been so untruthful throughout this proceedings, I don’t trust them one bit.

Justice Baffoe-Bonnie: But those statements are clearly wrong; you see, this message has been delivered so many times. Whatever you say is to the bench. If you say you don’t “trust”, if you use any negative words, they impact negatively on the bench, so you shouldn’t be using these words. This is in clear and simple, I don’t see why you don’t get it. What can we be doing here if we have to throw words at each other? People of Ghana want the truth and justice, so if you don’t trust them, there is a way of going about it. Keep it to your head. You don’t have to say this; this whole thing is being broadcast live and the whole international community gets to know that this is the language that is used in the Ghanaian court. Clearly, it’s wrong.

Counsel: My lord, I hear you, except to say that far serious and stronger words have been used in this court without any comment from the bench. Criminality has been used to apply to us, not a word came from anywhere.

Eventually Presiding Judge, Justice Atuguba steps in to issue a general caution to the parties to watch their utterances in court. “The clear implication of this is that we now have to apply the rules of the ethics; the rules courtroom procedure….”

Ideal Situation

Counsel continued his cross-examination of alleged minors still contained in the final voters register:

Counsel: EC 1 is a document prepared by the Electoral Commission, am I right?

Witness: Yes my lords.

Counsel: And it’s a guide to candidates and their agents?

Witness: Yes my lords.

Counsel: (Asks the witness to read page 20 of the guide. Page 20 gives a guide on how biometric data of voters can be captured only once) ..So what you are telling candidates and their agents is that the voters’ register is clean of any double registration?

Witness: My lords, that is an ideal world situation. We try as much as possible to minimize the occurrence as is humanly possible.

Counsel: So in other words, nothing in this booklet should be believed, it’s not an ideal world.

Witness: My lords, on the contrary, everything in this booklet must be believed.

Counsel: So why are we talking of an ideal world?

Witness: My lords, just in the same way as we talk about an ideal democracy.

Counsel: Oh, I have not used those words here, maybe your counsel did, but I have never used ideal democracy.

Mr. Quarshie-Idun: My lords, a certain measure of politeness to the witness is demanded, my lord.

Justice Atuguba: What is the impoliteness?

Mr. Quarshie-Idun: My lords, the reference “Maybe your counsel used that expression,” when the witness has answered the question should not come in at all.

Justice Atuguba: Well, Mr. Addison, these are some of the things, you remember yesterday, Mr. Tsatsu Tsikata used some expression, I took issue with that: I said that there is no need to add sour grapes to any package of communication in the court…At your instance, we just freshly warned that we would be enforcing the ethics, and this type of insinuation you think it’s ethical?

Counsel: My lords, I am getting confused now. I am having great difficulty now; because I asked the question and the witness replied using certain words, if I use those words he’s used, the usage by me is improper, so what about what the witness said…?

Justice Atuguba: You have stated the issue: he talked of an ideal situation, he did not co-opt his counsel, and you, in your replication, were tapping counsel onto it.

Another back and forth ensued again between Mr. Addison, counsel for the Electoral commission and the bench. Eventually, Justice Atuguba had to step in again to repeat his warning about decorous utterances.

Ballot Accounting

Mr. Addison presented a number of pink sheets on which the figures in either the figures in A1 were the same as the figure in C6 without adding the figure in C3 or where C3 had been added to A1 to get C6 and in each occasion Dr. Afari-Gyan affirmed.

Mr. Addison suggested further that the C3 included has been put there in error and should have be C5 but Dr. Afari-Gyan said “I disagree”.

Registration of Aspirants

Mr. Addison again asked Dr. Afari-Gyan what accounted for certain presidential aspirants not to be registered by the commission for the 2012 election and the commissioner said “there are laid down requirements to be followed for one to be made a presidential aspirant and if those requirements are not followed one cannot be deemed to have satisfied all criteria.”

Tony Lithur & Tsatsu Tsikata

Mr. Addison then asked if signing of forms was one of the criteria to which Dr. Afari-Gyan affirmed.

Counsel then asked if indeed 905 pink sheets were not signed by the Returning Officers and Dr. Afari-Gyan agreed but said he could provide exactly the polling stations involved by Monday.

This again led to a give-and-take argument between Mr. Addison and Mr. Quarshie-Idun over the document after the EC counsel submitted that the document was already in the custody of the court but Mr. Addison insisted it was not properly before the court.

Inducements
Mr. Addison asked  the witness if he said there were presiding officers who could be induced not to sign the pink sheets and Dr. Afari-Gyan tried to explain that he only made that comment when the petitioners argued that all votes be cancelled in polling stations where presiding officers failed to sign.

Counsel: Could the presiding officer be induced to enter wrong figures too and by who

Witness: Yes, it could be done by interested parties.

Counsel: Are you aware there were polling agents signing blank pink sheets before the election actually started

Witness: I am not aware

Dr. Afari-Gyan denied that he saw or heard a Metro TV report of observers who clearly saw polling agents signing in pink sheets when voting had not began could refresh your memory

Counsel: Would you say the failure to stamp a ballot paper makes that particular vote irregular

Witness: No and added that by circumstances, presiding officers are allowed to accept ballot papers that are not stamped and called that a discretion.

Counsel: Is there a rule that says a presiding officer has the discretion to or not accept a ballot that has not been stamped

Witness: Yes

The Hold Up

Just as the trial started, the pink sheet issue held proceedings close to two hours as Mr. Addison wanted Dr. Afari-Gyan to answer questions concerning the signature of presiding officers and protests of party agents at the polling station.

He asked the commissioner if he was aware that signatures of returning officers are mandated by law to which he said ‘Yes’, and also asked if a declaration could be made without the EC chairman’s signature to which the witness said ‘No.’

Sitting continues today.