Justice William Atuguba - Chairman of the nine-member panel hearing election petition
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday, June 6, 2013
The Supreme Court has unanimously reviewed the order
it issued on May 9, 2013, ordering an independent referee to count the number
of Pink Sheets that were attached as exhibits by petitioners in the
Presidential Election Petition.
As a form of control mechanism, the court yesterday
asked KPMG, an international accounting firm engaged for the exercise to count
copies of the pink sheets in the custody of Justice William Atuguba who is the
president of the nine-member of Justices hearing the petition.
Even though KPMG has already finished the counting
of the pink sheets in the custody of the Supreme Court Registry following the
court’s order and is said to have prepared an interim report, the court says
that the new move would truly establish how many pink sheets were involved as
exhibits.
The court’s initial ruling was very clear and it did
not include any control mechanism.
Even at a point where Tsatsu Tsikata, lead counsel
for the ruling National Democratic Congress (NDC) called for similar mechanism,
it was refused by the court.
The court had unanimously held that it could not halt
the counting exercise when the NDC first raised the issue and had said that
KPMG should continue with the exercise and any concerns that would be raised by
the parties incorporated into the final report.
Initial
Order
In the initial order, the court through Justice
Atuguba had said the accounting firm has the duty of “specifying in respect of
each pink sheet, polling station name and its code number and exhibit number if
any.”
“In doing so the said referee should make a true and
faithful count of the said exhibits of pink sheets according to and under the
various categories of alleged electoral malpractices in issue before this
court.
“The said allegations as appearing contained and
specified in paragraph 44 to 67 of the affidavit of the 2nd
petitioner relating to the Presidential Election petition pending in this court
filed in the registry of this court on April 7, 2013, specifying in respect of
each pink sheet, polling station name and its code number and exhibit number if
any,” the order said.
The court had said that each party is at liberty to
choose two representatives for the counting exercise as observers and added that
the professional fees to be charged by KPMG should be shared equally between
the parties but KPMG subsequently offered to count it free of charge.
The court also said that KPMG “should do it and
submit the report to the Registrar forthwith.”
New
Twist
Yesterday’s decision clearly did not go down well
with the petitioners legal team and it became obvious when it was raised
briefly in open court in spite of all the lead counsel for the parties being
called in chambers by the panel to deliberate on it.
At the close of Tuesday’s sitting Justice Atuguba
had announced that it had received correspondence in relation to the pink sheet
count from Mr. Lithur and a response from the petitioners legal team and added
that the issue would be sorted out “first thing tomorrow.”
Apparently, Mr. Lithur’s letter was to the effect
that the order for further and better particulars supplied by the petitioners
fell short of the 11,842 pink sheets and that KPMG had not taken into
consideration reference to the use of the set of pink sheets delivered by the
Registrar to the president of the panel as control mechanism.
The petitioners fired back, saying that there was
nowhere in the order that asked KPMG to consider the use of the set of pink
sheets delivered by the Registrar to the president of the panel as control
mechanism.
When everybody was expecting the issue to be raised,
the registrar called all lead counsel in chambers to meet the judges and when
they returned, Mr. Lithur proceeded with his cross-examination of Dr. Kwadwo
Afari-Gyan.
Later, when the day’s proceedings was coming to an
end, Justice Atuguba introduced the subject and confirmed that the panel had
agreed with all the lead counsel to ask KPMG to use the copies of the Presiding
Judge (Justice Atuguba) to crosscheck the set of pink sheets at the Supreme
Court Registry as part of the finalization of the accounting firm’s report to
be submitted to the court.
Phillip Addison, leading the petitioners then told
the court that even though he was part of the discussion he did not agree to
that proposal because when the control mechanism issue was raised the court
shot it down.
This brought a give-and-take argument between
counsel and Justices Paul Baffoe-Bonnie and Jones Dotse who were of the view
that they all agreed on the issue at the meeting.
The
Facts
The pink sheet count came about when Mr. Tsikata and
Dr Mahamudu Bawumia, the principal witness for the petitioners, clashed over
who is right with the number of pink sheets in exhibition during Mr. Tsikata’s
7th day of cross-examination.
Mr. Tsatsu said the NDC had a little over 7,000 pink
sheets, while Dr Bawumia insisted that the petitioners submitted 11,842.
The NDC and President John Mahama in their joint
affidavit sworn to by Johnson Asiedu Nketia had indicated that they received
over 8400 pink sheets.
The NDC then said the pink sheet they received is
short of 3337, according to Nana Ato Dadzie, a member of the party’s legal
team.
How
Issues Unfolded
The counting of Pink Sheets in the on-going election
petition took strange twist as the respondent’s lawyers pushed for it to be
stopped.
The call came closely
in the heels of widely criticized misgivings expressed by the party’s General
Secretary, Johnson Asiedu-Nketia long before the inventory taking and counting
process commenced.
Right after one of the court’s sitting Mr. Tsikata tried
to gate-crash the venue where KPMG in the company of two representatives each
from the parties as observers were doing the counting.
Mr. Tsikata demanded to monitor the exercise but he
was reminded that the NDC already had representatives in the room as the court
order stated.
Not having his way, Mr. Tsikata requested a meeting
with President of the panel to impress on him to vary the court’s orders in
respect of the counting to allow them intermittent access.
The NDC and President John Dramani Mahama’s legal
team were seen pacing up and down the vicinity of the venue for counting.
Interestingly, it was the NDC that requested for the
count of the number of pink sheets attached as exhibits by the petitioners and
their purported action would come as a surprise to critics.
The next day, Mr. Tsikata came to court with a story
that the exhibits had been compromised and that the boxes containing the pink
sheets had increased from 24 to 31.
According to Mr. Tsikata, there were alleged
criminality involved and as a result, they would prefer an extended control
mechanism that would take into consideration copies served on at least two
panel members to compare with the pink sheets at the court’s registry.
Later news broke that KPMG had found 13,900 pink
sheets in the initial count.
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