Thursday, June 06, 2013

COUNT ATUGUBA'S PINK SHEETS

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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