EC DOCUMENTS BOUNCED

Dr. Kwadwo Afari-Gyan

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday, June 4, 2013.

An attempt by the Electoral Commission (EC) to tender printouts from the biometric verification machines used in the December 7 and 8, 2012 Presidential Election, backfired big time yesterday when the court threw them out.

The EC counsel, James Quarshie-Idun, leading the commission’s Chairman Dr. Kwadwo 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 an objection raised by the petitioners’ counsel, Phillip Addison about the tendering of the document in evidence.

The Fireworks

It all started when Dr. Afari-Gyan stated that in trying to ascertain discrepancies on some of the pink sheets exhibited, they referred to biometric device and said they had the printout in court.

He said the commission supplied each polling station with biometric verification device and assumed that once that was done then all voters went through verification and that the entries in the C3 column of the pink sheet which is supposed to show the number of persons who were allowed to vote without being verified by the device were entered in error.

Dr. Afari-Gyan then told the court that the commission recalled all the devices from the district offices of the EC and checked them to confirm the record of the people who were verified during the elections.

Counsel: Now Dr. Afari Gyan, can you tell us what the biometric verification device does?

James Quarshie-Idun

Witness: Basically, the biometric verification device would capture the polling station code as well as the particulars of the voter and store it in its memory. Those particulars include: the Voter ID number, the full name of the voter and the date and time when the person was verified to vote.

Counsel: Any reference to where the machine is being used?

Witness: It is used at the polling station to verify the voters before they are given the ballots and this are the record that it keeps of what happened at the polling station.

Counsel: Now you heard the evidence of Dr. Bawumia, on the 17^th of April, where he says the evidence of non-verification is on the face of the pink sheet, what is your comment on that?

Witness: In fact what the petitioners have done to get what they say is the total number  of persons who did not go through biometric verification is to simply aggregate the figures in C3. But I have shown that when you see the same figure in C1 or C3, it’s an either or situation if you read the form properly. In resolving an either or situation, what they have done is straight away, aggregate in C3 and say that on the basis of those numbers, people did not go through biometric verification.

Counsel: But what is your position?

Witness: Our position is that we gave biometric verification machine to every polling station….As I was saying, we don’t keep the verification machines at our head office in Accra, so looking at this situation, we called for the biometric verification machine used at this particular…(Counsel for petitioners interjects and raised an objection)

Addison’s Objection

Mr. Addison then raised an objection to the tendering of the printout which he said if allowed would be ‘ambush litigation.’

He said the petitioners had already closed their case after complying with the court’s order of April 16, to surrender all documents before the trial proceeded and allowing the EC was going to be a surprise to the petitioners

Phillip Addison

Mr. Addison added that there was nothing on the face of the document to show that the it  was indeed an ‘authentic printout’ of the events at the particular polling station from the device.

He said there was nowhere in the pleadings of the EC, they did not indicate that they would be relying on the biometric verification device or printouts from the devices and said “accepting the document at a time when the petitioners have closed their case would amount to opening an entirely new case behind the backs of the petitioners.”

Mr. Quarshie-Idun urged the court to overrule the objection because the printouts from the devices were relevant to determining the case and insisted that the commission had pleaded it in their response to the second amended petition and further and better particulars,

Mr.  Addison came back strongly to point to the court that “if indeed the printouts were necessary, the EC should have pleaded that” adding that there was nothing in the response that the EC counsel had referred to.

The soft-spoken Addison added most importantly that, the devices have been in the custody of the EC since December 2012 and said that no one could be sure that the devices had not been tampered with, attracting murmurings from the audience.

He then read a portion of the EC’s manual on the device which states very clearly that the device operates based on a software and said that since the EC was the only party with access to this software and the devices, it was possible for them to have changed the information on the device or to have programmed it for it to give out particular sets of information or data.

Before the print out from the biometric device was first introduced, the court in a 7-2 majority decision, with Justices Jones Victor Doste and Paul Baffoe-Bonnie had overruled an objection raised by Mr. Addison that, the EC counsel had not laid proper foundation to establish a case for the devices and Mr. Quarshie-Idun.

Debate Over Register

Contrary to the petitioners’ claim that over-voting can mainly be detected on the face of the pink sheet, the EC sought to argue that instances of excess ballots which suggests over-voting can also be verified by using the polling station register.

Tony Lithur

Mr. Quashie-Idun then sought to tender the register to emphasis the claims of the EC, but Mr. Addison objected to the tendering. The issue was consequently ruled upon by the judges who overruled Mr. Addison’s objection.

However in the Justice Baffoe-Bonnie suddenly detected an anomaly in the tendered pink sheet in relation to the register that had been tendered.

Justice Baffoe-Bonnie: I have a problem with this; you’ve presented this as 114, that is why we went into the register to find out whether this [the pink sheet] is right or the register is right. Looking at what is here [on the pink sheet], I think it is 774.

Counsel: This was presented to Mr. Asiedu Nketia and it was put to him that this was evidence of over-voting because the numbers of ballots in the ballot box were more than the number stated on the pink sheet as the voters entitled to vote at that polling station. Mr. Nketia said no, this must be an error, so we are tendering this to rebut the suggestion that was made to Mr. Asiedu Nketia as recently as on the 29^th May.

Justice Baffoe-Bonnie: This cannot be an error, I mean clearly.

Counsel: They said so….(Justice Baffoe-Bonnie seeks the help of other panel member to verify his misgivings)

Justice Baffoe-Bonnie: Please look at this, look at this… (Passes the evidence around)

Counsel: My lords, when we get the transcript or your lordships’ notes would show….there were five documents….(Tony Lithur barges in)

Mr. Lithur: We found out that what was put to Mr. Aseidu Nketia with exhibit number, name and code, when we went to check our exhibits, the exhibits numbers showed something different. When we checked the code, then we came up with the same thing that EC has….. (Philip Addison Interrupts)

Mr. Addison: My lords, is counsel [Tony Lithur] giving evidence or is he addressing the court? He’s closed his case and I don’t understand what he is going on about. They’ve had every opportunity to put across their case, and they’ve close their case. We are now on the second respondent.

Mr. Lithur: My lords, perhaps it’s a good time to ask that, because we would be cross-examining the witness, then maybe they can provide us with what they use to cross-examine Mr. Asiedu Nketia because we would need it. It was a strange phenomenon it was completely strange….

Mr. Addison: My lords, this is a very strange situation; we have cross-examined a witness, they had every opportunity to re-examine the witness. If they were not sure of the document, they could have even asked your lordship for a short adjournment to cross-check, they did nothing of the sort; they said they have closed their case; no re-examination, now you come today, you are telling me to provide you with document, you want to redo your case?

Tsatsu Tsikata

The argument continued with the petitioners explaining that if the respondents had not blocked re-categorization of some of the exhibits, the situation would not have arisen.

The judges eventually came in and settled the matter by indicating that the petitioners could provide the respondents with those exhibits in question. But Justice Gbadegbe told the parties that the advice did not give them the license to tender document at will.

He warned that any document would be subjected to the court’s strict admissibility test.