BLOWS OVER AFARI-GYAN

Nana Akufo-Addo & Dr. Mahamudu Bawumia leave the court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday, June 5, 2013

The Presidential Election Petition hearing at the Supreme Court came to a standstill yesterday when the parties were locked up in a disagreement over who should first cross-examine Dr. Kwadwo Afari-Gyan, Chairman of the Electoral Commission (EC).

Matters came to a head immediately the EC boss, led in evidence by the commission’s counsel James Quarshie-Idun, concluded his three days of examination-in-chief.

After Dr Afari-Gyan declaring that the petitioners had no case, ending his evidence in chief, a heated argument then ensued between the petitioners lead counsel, Phillip Addison on one hand and Tony Lithur representing President John Dramani Mahama together with Tsatsu Tsikata, lead counsel for the NDC on the other, with the parties haggling over who should cross-examine first.

The situation eventually saw the nine-member panel, chaired by Justice William Atuguba, retiring to their chamber before returning to give a definite ruling on the matter.

Araba Tagoe

Just as the Justices bowed to leave the courtroom, Araba Tagoe, the NDC Western Regional Women’s Organizer as if on a campaign platform or cheering her beloved Sekondi Hassacas shouted: “Sir John running away!” thereby attracting the attention of Justice Atuguba who asked: “Who shouted?”

Araba Tagoe

There was obvious silence before an incensed Justice Atuguba added “The next time I will throw that person out!”

Give-and-take

For several minutes, there was silence in the courtroom and no counsel was willing to fire the first shot after Justice Atuguba asked them to start the cross examination.

Mr. Addison:  My lords, maybe first and third respondents do not wish to cross-examine, if they do not wish to cross examine then they should tell us. (Lawyer for first respondent, Tony Lithur rose to reject the offer of starting the cross-examination)

Mr. Lithur: My lords, respectfully, we are not supposed to cross-examine, it’s never done….it would be completely unprecedented.  We are not the same parties, in fact, if you are alleging a conspiracy between the defendants, as it where, then perhaps you may make a special case for that. We are very independent parties and I’m honestly yet to see a precedent. This precedent was demonstrated when he [Addison] started cross-examining our witness before the EC. (Counsel for third respondents, Tsatsu Tsikata also declined to begin the cross-examination)

Mr. Tsikata: My lords, we do intend to cross-examine the witness, but it is quite clear that the petitioners’ counsel has to go through his cross-examination as he did previously and when he’s completed his cross-examination, we would proceed respectively with our cross-examination (Another long silence, eventually Mr. Tsikata rose again to talk) My lords, I may just respectfully add that counsel for the petitioners had no hesitation the previous time in beginning the cross-examination and we do not see anything that has changed in relation to the situation. He proceeded according to the order of counsel for the petitioners cross-examining, and after that the second respondent cross-examined our witness as well. Now, that is the same order that we expect would be followed on this occasion.

Mr. Lithur: My lords, if I may ask, this court has clearly distinguished the matter to the extent that we are not even allowed to interfere with cross-examination of objections, etc. I don’t see when it comes to cross-examination; we are bunched together as one. While when it comes to raising objections, we are not allowed to. The essence, the underlying reason for that, as I understand, is that the parties are distinct…

Mr. Addison: My lords, clearly, the respondents do not have adverse interest in this court, we have all seen the way they have conducted this case thus far, where the second respondent, given the opportunity to cross-examine, rather goes ahead to do re-examination. His [Tony Lithur’s cross examination of witness for the first and third respondents, Johnson Asiedu Nketia] evidence-in-chief, has sought to do re-examination instead of cross-examination of the representative of the first and third respondent, quite clearly, if the petitioners should cross-examine now, the same thing is going to happen again. They are going to do reexamination behind our backs. That is why it is important that the respondent go ahead and cross-examine, then we cross-examine last. My lords, I would like to refer your lordships to the Evidence Act…. (He picks up the Evidence Act and read section 71, which in his opinion, lays out the guides to cross-examination in such situation)

Mr. Lithur: Hopefully, that provision does not determine the order of cross-examination. It talks about how the court treats it; it does not talk about how, and in fact, how it treats it is also discretionary. …If it was intended by the Act that none-adversaries should cross-examine first, it should have stated it. After cross-examination, how the court treats the contents of the cross-examination is a matter of discretion, it speaks nothing of order.

Dr. Kwabena Adjei & Hackman Owusu-Agyemang

Mr. Addison: My lords, if its treated as examination-in-Chief, that would cause us to cross examine again, that is what we are trying to avoid….

Mr. Lithur: My lords, it’s discretionary; it’s after the evidence is given, you wouldn’t know what I’m going to cross-examine with so you cannot preempt by asking me to cross-examine first….

Mr.Tsikata: My lords, our position is that we have separate and independent interests (Mr. Addison interrupted apparently because Mr. Tsikata did not seek leave from the court. Eventually the mini impasse was settled). My lords, the third respondent is an independent and separate party from the second respondent. In respect of the first respondent, we are also independent and separate parties, but in the interest of expedition in this matter, we conferred with the first respondent and we offered to this court, one witness who also testified on behalf of the first respondent. That was really out of our desire to achieve the objectives of this court in terms of expedition.  When it comes to cross-examination of the witness of the second respondent, our clear position is that as independent and separate parties, we are entitled to cross-examine. My lords, the section of the evidence degree that has been referred to has absolutely no relevance for the suggestion that is being made by counsel for the petitioners … (He went ahead to read the section from the Evidence Decree)

Mr. Addison: My lords, I wish to point out that he [Mr. Tsikata] quoted the evidence degree; I was referred to the Evidence Act section 71, which is different from what he quoted. (Afterwards, Justice Atuguba asked for the commentary to the Evidence Act to be read. This was the precursor to the Judges retreat to chambers to decide on a ruling for the stalemate)

The ruling

In its short ruling the judges unanimously ordered the 1^st and 3^rd respondents, Messrs Lithur and Tsikata to do their cross-examination before the petitioners would follow suit.

“Under Section 69 of the Evidence Act “The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence, so as to: (a) Make the interrogation and presentation as rapid, as distinct and as readily understandable as may be. (b) Protect witnesses from being unduly intimidated, harassed or embarrassed”

Applying this provision-as particularly paragraph (a) thereof-, we have experienced the tendency when counsel for the second respondent was cross-examining the third respondent to treat the same as if it were re-examination, leading to a sustained objection in that regard by counsel for the petitioners.

To avoid such a pitfall, we are of the view that counsel for the first respondent and third respondents, should first cross-examine the witness, second respondent-per Dr. Afari-Gyan, before the cross examination by counsel for the petitioners,” Justice Atuguba read.

Controversial Register

In the course of Dr. Afari Gyan’s Evidence-in-Chief, Counsel for the Electoral Commission, James Quashie-Idun tried to tender a polling station voter register to counter petitioner’s claim that there were over-voting in that polling station. But Counsel for the petitioners (Philip Addison) got suspicious with the document being tendered.

Mr. Addison: My lords, we are objecting. The document has not been tendered

Counsel: What would you like to do with the document?

Gloria Akuffo

Witness: I would like to tender it in evidence.

Mr. Addison: My lords, we object to the tendering of this document, my lords it is not part of their case, they have said in their pleadings that when they received the further and better particulars, they made an examination and analysis of their records, in particular, the Statement of Poll and Declaration of Results, and they came to the conclusion that there was no over-voting, there was no voting without verification. So their primary record which they use was the pink sheets; nowhere in the pleadings and in the affidavit, have they made any reliance on the register. This has come to us as a surprise.  My lord, this register is not the register that was used for the elections at the polling station; there is no indication that this was the register that was used. There are no markings on it and we all recall that-the witness himself said it-, that the register at the polling station is marked whenever somebody is verified. There are no markings in this register and this is not the register that was used on that day. My lords, yesterday the court ruled on a similar matter…. (He quoted the Evidence degree). We believe this document also falls in line with the same document they tried to tender yesterday.

Counsel: My lord we have been through this exercise yesterday, the same objection was raised with regard to exhibit EC6 which is the register in respect of one of the five polling stations on which Mr. Addison presented an exhibit to Mr. Asiedu Nketia and suggested to him that it showed an excess of ballots over the registered voters on the list, so we are entitled to lead evidence in rebuttal….It is because it was suggested to Mr. Asiedu Nketia that this was evidence of an excess of ballots in the box over the registered voters for that polling station that we tendered EC6 and it was accepted, my lord. It is for the same purpose that we are tendering this document…..So I will say that the objection should be overruled.

Mr. Addison: My lords, with the leave of the court, just a couple of points: First, it is not automatic that every document must meet the requirement for admissibility. My lords yesterday, I wasn’t quite done with the objection I raised to this document, but when your lordships came back, you dealt with the objection. The critical point I wanted to raise with regard to the register that was tendered yesterday is what I have said today; that it is not the register that was used for the election. There are no markings in it, it is not the register; we cannot vouch that this was the register that was used….

Counsel: The submission my learned friend made, goes to weight and not admissibility my lords….My lords, this is the register of the polling station, the number of voters at the polling station, which is all. It is not the number of ticks [marks] it is the voters on the register in that polling station…..(Justice Rose Owusu sought clarification)

Nana Ato Dadzie

Justice Rose Owusu:  On the pink sheet, there is a column where a question is asked “Number of people who are entitled to vote” and then that column was filled in. I don’t know whether what you are saying is that that answer should be the number of people you have in the voters register because on the pink sheet, a specific question has been asked.

Counsel: That is not correct respectfully….(A mini back and forth ensued between counsel and the bench about the wordings on the pink sheet)

Justice Rose Owusu… As stated in the pink sheet…so not as recorded in the register.

Counsel: But my lords, we can only get the correct figure from the register itself…(The arguments continued until the judges ruled. The ruling of 8 to 1 overruled the objection of Mr. Addison. The register was thus allowed to be tendered and counsel resumed his leading in evidence. Counsel pulled out another register of a different polling station with the intention of tendering, compelling the petitioners to object once more based on the same ground, but Justice Sule Gbadegbe advised Mr. Addison to bring up his reservations during his cross examination.)

Justice Gbadegbe: …that is the purpose of your cross-examination, if he testified about a register and in cross-examination; you are able to demonstrate that that is not the register used for the election, then the matter is before the court to determine the issue that arises from it. Now if you prevent him from tendering it on the grounds that that was not the register used for the elections, you are taking the matter out of our hand. Anyway, that is my thinking, it’s your case.

Initially, Mr. Addison who was worried that the respondents would use the opportunity to smuggle in all sorts of documents, saw reason with the admonition from Justice Sule Gbadegbe and decided he would bring the issue up during his cross-examination.

Irregularity

Dr. Afari-Gyan told the court that any act that does not conform to the strict adherence of the rules and regulations governing the election become an irregularity.

He said among other things that if the names of party agents should reach the EC four clear days and it is submitted two days to the deadline it is an irregularity and also said that if the ballot box is expected to have four seals and it is found that it has only three, it is an irregularity.

He said the party agents cannot be mere observers line local and international observers saying “the observers have no role in actual administration of the election and that is what separates them from polling agent.”

Responsibility

He told the court that the EC was prepared to take responsibility for the actions of its officers but said errors needed to be distinguished from wrongdoing adding “I hope the candidates will also take responsibility for the agents they appointed.”

Controversial Statement

Dr. Afari-Gyan admitted making the statement that “no verification no vote” but said the commission agreed on the issue with the parties in principle and each occurrence needed to be examined on its own merit.

Joe Ghartey

“If I notice on the face of the pink sheet that there appears to be excess vote, I will subject it to close scrutiny before deciding.

I will look at the ballot papers and look at whether they fell in the range of serial numbers on the ballot paper”.

He said “certain tests had to be carried out to be 100 percent certain that there was over-voting,” before annulling particular results on the pink sheet.

He said with the introduction of biometric registration and verification machines, previous counter-accusation between political parties on alleged over-voting had been effectively dealt with.

There was “nowhere in Ghana has it been shown that over-voting occurred”, the E.C claimed.

He went back to his ‘classical definition of over-vote that “by classical over-voting I mean a number of voters being more than the number on the register.”

He said “We deny that a large number of people were not biometrically verified. We supplied biometric verification machines to every polling station and where there were difficulties with those machines, the election went into a second day where functioning biometric machines were provided for the election to be completed.

Unsigned Pink Sheets

The EC Boss said after scrutinizing the further and better particulars, they realized that the unsigned pink sheets by the Presiding Officers attached by the petitioners as exhibits were only about 905 (3.5 per cent) saying “More than 96 per cent of the Presiding Officers signed the Pink Sheets.”

He said about 99 per cent of the party agents also signed the Pink Sheets and said the Presiding Officers had so much to do on election day and the absence of their signature did not make the declaration invalid.

Same polling stations, but different results
Dr. Afari-Gyan said that polling stations with two pink sheets and different results was because of special voting saying “for the petitioners to claim that this was an irregularity which called for annulment was untenable.”

Same serial numbers, different polling stations
Dr. Afari-Gyan said that “Serial numbers have no significance in the preparation and collation of results” after a question was put to him that the petitioners had said there were same serial numbers on pink sheets for different polling stations which meant the results should be annulled.

22 Unknown polling stations
He said that “the 22 unknown polling stations alleged by the petitioners was not true. There were no such extra polling station apart from the 26,002 polling stations that formed the basis of their declaration.”

Contrary to claims by the petitioners, the E.C said every polling station was supplied with a Biometric Verification Machine (BVM). Where the BVM broke down, voting was postponed to the next day. 

Reliefs

He said the petitioners did have not established a case to get the relief granted saying “I would say that the release should not be granted because in the view of the commission, no firm base has been shown to merit the grant of those releases.”

Otiko Afisa Djaba with some NPP lawyers

Lithur’s Cross-Examination

After the court’s ruling, Mr. Lithur started cross-examining Dr. Afari-Gyan, preferring conducting the exercise separately from Mr. Tsikata even though when they were asked to open their case President Mahama and the NDC used Mr. Asiedu-Nketiah as their witness.

He asked the EC Boss about instances of multiple registration which could lead to double voting but Dr. Afari-Gyan said with the introduction of the biometric register it would be extremely difficult for any voter to indulge double voting.

He said it will be difficult for anybody to stuff ballot boxes in this dispensation and also said that anytime forged ballot papers are found in the ballot box, it would be sorted out before the counting.

Dr. Afari-Gyan said there were complaint procedures available where an aggrieved agent could fill at the polling station.

Mr. Lithur then brought out an avalanche of Pink Sheets about 104 in number and asked Dr. Afari-Gyan to verify whether it was in tune with

The court at this juncture adjourned proceeding until today with Justice Atuguba saying “there is no need sitting here to wait for the witness to go through all these pink sheets.”

Justice Atuguba then said that the court had received correspondence from Mr. Lithur with a reply from the petitioners in relation to the pink sheet count and the court was going to deal with that issue “first thing tomorrow.”