AFARI-GYAN IS HOT OVER NANA'S LAWYER BLOWS

Dr. Mahamudu Bawumia leaves the court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, June 6, 2013

Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan appeared to have a tough time in the witness’ box yesterday when Philip Addison, lead counsel for the petitioners in the Presidential Election Petition took his turn to cross-examine him.

The EC boss virtually hit the rooftop when the petitioners’ lawyer boxed him into a corner trying to throw a few legal punches at the veteran election administrator.

Dr. Afari-Gyan who was very calm when he was cross-examined by lawyers representing President John Mahama and the ruling NDC became agitated all of a sudden and at certain points gave cheeky answers prompting one of the panel members to ask him to answer the questions put to him by counsel.

“Dr. Afari-Gyan you are in the box you don’t ask questions,” Justice Vida Akoto-Bamfo cautioned him.

He appeared not to answer questions in a direct manner and would sometimes ask counsel questions in place of an answer, forcing Mr. Addison to repeat his questions.

Dr Afari-Gyan looked confused about the process of the biometric registration as he appeared not to have a clue about how it was carried out, saying cheekily that he was not a registration officer.

Coincidentally, yesterday happened to be the birthday of Godfred Yeboah Dame, one of the lawyers for the petitioners and his colleagues from the other side joined him in cutting a beautiful birthday cake presented to him by his wife, Joycelyn, a Medical Doctor.

The Grill

Counsel: Dr. Afari-Gyan, you have told this court that you made the declaration on the basis of results from 26,002 polling stations, am I right?

Witness: The elections, my lord, were held in 26,002 polling

Counsel: Can you please answer my question? You have told this court that you made the declaration based on results from 26,002 polling stations, am I right?

Witness: At the time I was declaring the result, I believed that to be the case.

Counsel: Did you make such a statement in this court or not, that your declaration was based on 26,002 polling stations?

Witness: I said the declaration of the presidential results is based on 26,002 polling stations, I made that statement.

Counsel: Was it in fact based on 26,002 polling stations?

Witness: Now we all know that there had been some cancellations elsewhere and we’ve explained that.

Nana Ato Dadzie

Counsel: So at the time you were declaring the results, you knew that it was based on 26,002 polling stations, am I right?

Witness: (Smiling uneasily) I said I believed that to be the case…

Counsel: I did not get your answer…

Witness: I said I believed that to be the case at the time that I was declaring the results.

Counsel: So at the time you were making the declaration, have you set eye on any pink sheet?

Witness: We don’t bring pink sheets to Accra…

Counsel: Have you set eyes on any pink sheet [at the time of the declaration]?

Witness: I’m saying that we don’t bring any pink sheet to Accra that implies that I would not have seen any pink sheet…

Counsel: Can you answer the question directly? (Counsel for the second respondent James Quarshie-Idun stood up to object)

Mr. Quarshie-Idun: My lords, my client has answered the question, he has said that no pink sheet was brought to Accra...

Justice William Atuguba: The whole thing is a question of convenient directness. That may be an answer which answer is more convenient and direct….

Counsel: So Dr. Afari-Gyan I ask you again, at the time you made the declaration, have you seen any pink sheet?

Witness: My lords, I hadn’t just like in the many instances when I had made such declarations.

Counsel: So, as the returning officer for the presidential elections, you were not aware that the results were not up to 26,002 polling stations?

Witness: I have answered this question my lords…

Counsel: No answer? (Justice Atuguba steps in again)

Justice Atuguba: To be fair to him, I think he has answered….He said that at the time of the declaration, he knew that his declaration was based on 26,002, but later there were developments because there were cancellations in respect of certain places. We got this…

Counsel: My lords, he’s talking about his believe, am now telling him the factual situation that at the time he declared, he was unaware there were not up to 26,002

Justice Atuguba: There is a substantial difference, what he did was based on his believe … (Counsel stood his ground and Justice Atuguba gave up) Ok, go on…

Gloria Akuffo

Witness: My lord, I didn’t get the question…

Counsel: That at the time you made the declaration, you did not know that it was not based on 26,002 polling stations…

Witness: My lord, I had no basis of knowing that.

Benefits of biometric

Counsel: Dr. Afari-Gyan, can you tell the court what was the main purpose for the introduction of the biometric verification machine?

Witness: Well, two things: So that we would be able to identify the prospective voter more closely before giving him or her ballot paper. That would be the main purpose.

Counsel: Was it also to assist in the detection and prevention of impersonation and multiple voting?

Witness: You see, you have to go through the whole lot to reach that; the biometric registration (Justice Jones Dotse interrupts)

Justice Dotse: I thought you would give him time; he indicated two things, but stated the first one: To identify [prospecting voters]…

Counsel: I was assisting him and he is even disputing that…

Justice Dotse: so you would allow him to state the two things, if it doesn’t include what you think, then you can put that one to him…

Witness: Well, to prevent people voting in other people’s name

Counsel: That is impersonation?

Witness: That is impersonation.

Counsel: What about multiple voting?

Witness: It would also prevent multiple voting.

Counsel: Now, would you say that the introduction of this biometric verification has in fact, eradicated these practices from the last elections?

Witness: I would like to say so.

Counsel: You would like to say so?

Human Dimension & Scenarios

Witness: Yes…(sighs), you see if I say possibly it has been eliminated, I have eliminated the human dimension from the election. There is always a human element in the administration of the election.

Counsel: When you say human element in the administration of the elections, what are you talking about?

Witness: Let me give you an example of what I mean: We know that to become a candidate, you must have your name in the voters; register, on Election Day, am the presiding officer: you come to the station; the machine takes your picture but is not able to take your finger print. If I were the presiding officer, I would let you go and vote because the essence of verification is to establish the true identity of the prospective voter; that is the human element.

Counsel: I don’t really understand what you have just said in relation to [the question]. You are trying to justify voting without verification….

Sir John

Witness: My lords I don’t know, he is asking me for an example of human element, I have given him.

Counsel: So you are telling this court that your presiding officers have discretion in allowing people to vote without verification?

Witness: I have not said that my lords. Let me give you [another example]: for example, the Paramount Chief of the town is goes to the polling station, they know him to be the Paramount Chief, we know his name is in the voters’ register and that machine won’t take his finger print then we say Nana [Paramount Chief] you can’t vote?

Counsel: So that in effect, Nana can vote without biometric verification?

Witness: It is so, yeah.

Counsel: So there would be no indication of it on the verification machine, that is what you are telling the court?

Witness: Yeah, what do you want me to say?

BVD Discretion

Counsel: Dr. Afari-Gyan, you have also told this court that BVD (Biometric Verification Device) has several components, am I right?

Witness: The BVD? No, I haven’t said that, no my lords, I haven’t said that. Don’t let us confuse the BVD with the registration kit.

Counsel: The registration kit has several components, what are these components?

Witness: of what? We are talking about two machines here…

Counsel: I thought you just made the clarification that it’s the registration kit?

Witness: There is a camera, there is a computer, there is a printer and the scanner…

Counsel: You are saying that with the BVD, is has not got any of these components?

Witness: My lords, the BVD is a one unit machine; one solid component

Counsel: So on Election Day, what information is given by the BVD?

Witness: When your name is scanned, your picture would pop onto the BVD screen and if you are an FO (Face Only voter) your picture would come along with FO. If you are not, it’s only your picture that comes and then we require you to put your finger on the BVD machine itself which would then tell you in a voice-prompt you are verified or not verified. Meanwhile, it would have stored in its memory your voter ID card, your full name and the time that it had verified you to go and vote.

Counsel: At the polling station, if the presiding officer wants to check how many people have been verified, what information would be given by the BVD?

Witness: A number would pop up.

Counsel: Just a number?

Witness: Just a number?

Counsel: No name, no picture?

General Mosquito

Witness: No, if you want to see how many people have been verified, you just punch and it would give you a number, that’s all.

Counsel: That is why I want you to be clear; that the only information that can be obtained from the BVD at the polling station is a number?

Witness: Yes.

Counsel: Now, I want us to go back to the process of registration, what happens when the photograph of the applicant is captured?

Witness: We take the photograph and prepare a voter ID card for you.

Form 1A

Counsel: Are you aware of a form called Form 1A?

Witness: What is Form 1A?

Counsel: I should be asking you and you are asking me? (Justice Akoto-Bamfoe interjects)

Justice Akoto-Bamfo: Dr. Afari Gyan, you are in the box, you don’t ask questions.

Witness: Your lordships, I’m sorry. I will like to see a form 1A because I don’t keep these things in my head.

Counsel: Dr. Afari Gyan, you’ve never heard of Form 1A?

Witness: I’ve heard of it.

Counsel: So what is it, you are the Chairman of the Electoral Commission?

Witness: (Laughs) it is one of the forms used in the registration process.

Counsel: (Counsel passed a Form 1A to the witness) Are you familiar with this document?

Witness: Well, I know of it.

Counsel: Are you familiar with it?

Witness: Well, I don’t do the registration, yes, I’m familiar with it….

Counsel: Can you tell the court what this form is for?

Witness: It’s for capturing the details that are indicated on this form… (Mr. Quashie-Idun intervenes)

Mr. Quashie-Idun: My lords, I believe this form should be in evidence if questions are going to be asked about it.

Counsel: Yes, we wish to tender it through him.

Mr. Quashie-Idun: No pleading have been made with regards to this document (Laughter from court). And no reference has been made to it in the evidence of Dr. Bawumia and it has not been mentioned in the evidence- in-Chief of Dr. Afari Gyan, neither is it in the affidavit that Dr. Bawumia signed my lord….

Counsel: I was just helping the witness to refresh his memory…So Dr. Afari Gyan, Form 1A is the form on which an applicant fills out his particulars?

Mr. Quashie-Idun: My lords, it’s not in evidence

Witness: My lord, the applicant himself or herself does not fill that form

Counsel: It is filled by an officer of the second respondent?

Mr. Quashie-Idun: My lord, I believe there is an objection awaiting a ruling.

Counsel: My lords, I said I was just refreshing the memory of the witness, that is all, we are not tendering it (the bench pointed out to Mr. Quashie-Idun that there was no basis for his objection, since counsel says he was not tendering the document, which accepted). Dr. Afari Gyan, so Form 1A is filled out by a registration official upon information given by an applicant, am I right?

Witness: My lords, that’s correct.

Stanley Adjiri Blankson & Hackman Owusu-Agyemang

Counsel: (Takes witness through the process of filling the form 1A)…The next stage is that the information on Form 1A was then captured on the screen?

Witness: ..Let’s say ok.

Counsel: Have you answered my question?

Witness: My lords, I have answered; I said yes, ok.

Counsel: So you agree that the information is captured to a computer and that information on the computer is then printed out as Form 1C?

Witness: My lords, yes.

Counsel: The lower left hand portion of Form 1C is torn out and laminated and that is the voter ID card?

Witness: My lord, I’m not a registration officer, so the little details I’m not required to know the little details involved in this process.

Counsel: Well, you have given evidence on form IC, that is why we are taking you through this, now you say you are not a registration officer. So the answer is you don’t know?

Witness: My lords, I don’t know why he wants to put words to my mouth.

Counsel: Dr. Afari-Gyan, do you know or you don’t?

Witness: My lords, I do not know what he is asking me whether I know or do not know.

Counsel: (Counsel repeats the question, attracting Mr. Quashie-Idun to suggest that counsel should show him the indicated form, since it was already in evidence but Justice  Baffoe-Bonnie interjects)…

Justice Baffoe-Bonnie: (referring to Mr. Quashie-Idun) So you think that is a proper answer to give?

Mr. Quashie-Idun: He said he does not deal with the details of the registration himself.

Counsel: Dr. Afari Gyan, can you answer my question? It’s either you know or you don’t know, then we move on (Repeats question).

Witness: My lords, that’s correct.

Justice Baffoe-Bonnie: Counsel, I am confused; you started on 1A and now you are on 1C, which one are you talking about? 

Counsel: Yes my lord, Form 1A is a form that is filled manually when an applicant goes to the registration centre, he gives the information and the registration official enters it on form 1A. He then subsequently transfers the information on form 1A to the computer…and then there is a print out which comes out as form 1C….I hope Dr Afari-Gyan, you followed the sequence so far?

Witness: My lords, I follow him.

Counsel: And the right lower portion of form 1C is the receipt that is given to the applicant, am I right?

Witness: You are right.

Counsel: Once this is done, form IC is then scanned into the computer.

Witness: Yes.

Counsel: And this is done together with the finger print?

Witness: Yes my lords.

Counsel: Then the voter registration form, is scanned into the computer?...So at the end of the day, all the registration that is done is saved on a pen-drive? It’s either a pen-drive or an SD card?

Witness: Yes, it’s saved in some form; in an electronic form.

Counsel: Dr. Afari Gyan do you know what an SD card is?

Witness: No my lords.

No BVD Printout

The court blocked a second attempt by the EC to introduce printouts from the biometric verification machines/devices used in the December 7 and 8, 2012 Presidential Election.

Gabby Asare Otchere-Darko & Hackman Owusu-Agyemang

This time around, Mr. Quarshie-Idun had filed a motion to tender the printouts but did not seek leave of the court.

Even before the motion was moved, Mr. Lithur started cross-examining Dr. Afari-Gyan by asking questions based on the motion and Mr. Addison described the move as ‘unethical.’

“Once again the respondents are displaying that they are in the same boat. We were this morning in court, supplied with a supplementary affidavit which was attached to the exhibits filed by the 2nd respondents and sworn to by Amadu Sulley. My lord we consider this, an unprofessional misconduct and unethical,” Mr. Addison fumed.

In their first attempt on Tuesday, the EC counsel, leading Dr. Afari-Gyan in evidence sought to use the document to make a point that the commission assumed that once it gave each polling station a biometric verification device, then all voters went through verification and that the entries and therefore, the printout was going to clear the doubt once and for all.

However, the court in a 7-2 majority decision, with Justices William Atuguba and Vida Akoto-Bamfo dissenting sustained the objection raised by the petitioners’ counsel, Phillip Addison about the tendering of the document in evidence.

After a long meeting in chambers, the nine-member panel came back to the court and delivered a ruling  that appears to put to rest the attempt by the EC to introduce printouts from the biometric verification machines/devices at a this stage of the trial.

Justice Atuguba said “We have made it clear from the start of this case, that election matters are matters of utmost urgency. At the same time, much energy has gone into the pleadings by way of amendments and orders at to further and better particulars which sufficiently made bare the evidential use of this case to all parties.”

“The parties themselves have had opportunities to lead evidence in addition to affidavits from their witnesses. After such ample opportunities to the parties to put forward their cases, we do not think that we should roll back the progress so far achieved towards the final determination of this case by opening the floodgate to protraction which would be entailed by the granting of this application by the second respondent to admit this further affidavit and its several attachments.”

The panel chairman said “This case has entered into its sixth months and the people of Ghana must not be held back from knowing the final outcome of their sovereign rights to determine the presidency of this country for whom they voted as far back as December 2012.  Accordingly, we are constrained to refuse the application.”

Right to objection

The court also threw out Mr. Lithur’s preliminary objection that Mr. Addison should not raise objection whilst he cross-examines Dr. Afari-Gyan.

The court held that “As to the right of counsel to the petitioners to object to the propriety of the second respondent’s supplementary affidavit introducing the attached document into evidence, as his clients are thereby affected, he has the right to raise the said objection.”

“Accordingly, the objection of Mr. Tony Lithur, counsel for the first respondent to the same is overruled,” Justice Atuguba said.

Earlier, Messrs Lithur and Tsikata had taken turns to cross-examine Dr. Afari-Gyan and it was obvious that what was supposed to be a cross-examination had been turned more or less into re-examination of the witness and the commissioner appears to enjoy the ‘friendly’ questions put to him.

Sitting continues today.