JUDGES GRILL AFARI-GYAN

Dr. Afari-Gyan leaves the court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday, June 12, 2013

The nine-member Supreme Court justices, hearing the Presidential Election Petition yesterday took turns to throw a barrage of questions at Dr. Kwadwo Afari-Gyan, Chairman of the Electoral Commission (EC) when he kept giving different accounts on a particular question relating to inconsistent entries on the Pink Sheet.

The judges pummeled him with questions in a quest to get clarification on an apparent confusing account from the EC boss.

Earlier, when the EC Chairman was confronted with pink sheet records showing that the numbers entered in the pink sheets indicating people who voted without biometric verification (Column C3) in a polling station was the same as numbers of total ballots issued at the same polling station (Column C1), it meant that the presiding officer replicated the numbers.

The Electoral Commissioner reasoned that in such situations, the Presiding Officer in the polling station did the entries in error and that the pink sheets could be interpreted as either everybody in the polling station voted without biometric verification or alternatively nobody voted without biometric verification.

He suggested his popular theory of an “either or situation”.

Yet when counsel for the petitioners, Philip Addison confronted him with pink sheets indicating different numbers in the contentious columns, the veteran election administrator quickly reversed his “either or”, refrain, saying the numbers would have to be summed up.

This got the some of the judges sitting on the election petition confused, resulting in a barrage of questions from them aimed at seeking clarification.

C1 vrs C3

Interestingly, the manner in which some Presiding Officers at the polling stations answered questions for C1 and C3 on the pink sheets has become contentious in the proceedings.

While the petitioners insist that the situation amount to violations, irregularities and malpractices the EC and its co-respondents: President John Dramani Mahama and the National Democratic Congress (NDC), are claiming that they were done in error.

On the Pink Sheet, C1 which asks “What is the number of ballots issued to voters” at a polling station while C3 asks the question: “What is the number of ballots issued to voters verified by the use of form 1C but not with the use of the machine”.

In round four of his cross-examination of the 2^nd Respondent’s witness by Phillip Addison, lead counsel for the petitioners, Dr Afari-Gyan was given another set of Pink Sheets where in each case, the figures in C1 was different from what was in C3, making nonsense of his explanation.

Dr. Afari-Gyan preferred to give long winding answer instead of a direct one, compelling some of the judges to come in and throw series of questions at him.

Tony Lithur & Tsatsu Tsikata

Counsel: (Hands the witness a list of 30 Pink sheets)…On each of these pinks sheets, C3 [number of people who voted without biometric verification but are categorized as Face Only voters] is less than C1 [number of ballots issued]?

Witness: My lords, I have to go through (he quickly scrutinizes the sheets)…my lords, I have checked them and it is correct that the number in C1 exceeds the number in C3.

Counsel: So Dr. Afari-Gyan, you would agree with me that C1 could not have been lifted to C3 or vice versa (As he indicated earlier when exhibits of pink sheets were shown to him showing similar numbers. Dr. Afari Gyan told the court that such occurrences were due to the presiding officer mistakenly replicating the numbers in both C1 and C3)?

Witness: In this particular instance, yes.

Counsel: It also shows that the figure in C3 represents something that happened in the elections?

Witness: My lords, I have some observations to make on some of them, which makes it difficult to answer the questions (After noting  the numbers in the various columns and realizing that the numbers were not adding up, he concludes that the inconsistencies were in error)…This would suggest that what is in C3 is error.

Counsel: Dr. Afari-Gyan what did you say you would add up and it would give a different figure?

Witness: If you add C1 and C3

Counsel: You cannot add C1 and C3, that amounts to double counting, that’s why you have the problem you are having.

Witness: My lords, it does not amount to double counting.

Counsel: Let’s simplify it, let’s take the case of the earlier pink sheets where there were 12 registered voters and I believe all of them voted, so in C1, we have 12. Assuming all the 12 voted without verification, they would be entered in C3 as 12. Now you are telling me to find the total number of people, who voted, we have to add C1 and C3. Clearly, that would amount to 24 and it’s a double count.

Witness: No, my lords, that’s not what I’m saying; I said one of the entries must give way.

Counsel: Which one and why? (Justice Dotse cuts in to seek some clarifications from the witness. After his explanation, Justice Baffoe-Bonnie thought there was something wrong with the calculations)

Justice Baffoe-Bonnie: I think you are getting it all wrong, why would you want to add the C3 to C1? C1 is what we should find in the box down there, that is the ballots issued out to voters…

Witness: My lord, I agree.

Justice Baffoe-Bonnie: You see, it is rather the first part of C3 and the second part of C3 that should be equal to C1. You should never add C3 and C1….

Witness: My lord, let’s look at this very critically: the number of ballots issued to voters on the polling station register; these are ballots that had been issued. When you go to C3, it’s also talking about issued ballots…it means people in category C1 have been issued with ballots, people in category C3 have also been issued with ballots.

Justice Baffoe-Bonnie: No, no, no, but there are two categories of people in C3 according to the questions, don’t you see?

Justice Dotse: Let me ask one other elementary question: For ballot accounting purposes,  is the ballot in C3 not part of ballots in C1? You see C1 is the overall ballots issued…

Witness: They are not inclusive.

Justice Dotse: They are not inclusive?

Witness: No

Justice Dotse: They are exclusive?

Witness: No, they are different categories…

Gloria Akuffo & Prof Kenneth Agyemang Attafuah

Justice Baffoe-Bonnie:  Look at the question again; If you look at C3, you have all the time maintained that C3 and C1, if the figures are the same, it means one was lifted and placed into the other. That has been your contention, you see, if you look at C3 critically, we have two categories of voters there …the question indicates that some people voted by 1C (Face only voters) and some people voted by BVD, so there are two categories of people…

Witness: Yes

Justice Baffoe-Bonnie: So that the two categories of people, it’s the aggregate of the two that should give you C3, so according to the question, if C3 is 14, then it is an answer to the first part of the question, i.e., 14 people voted by form 1C and maybe the remainder by BVD…

Witness: My lord, you are saying the 14 people there are already included in the 342?

Justice Baffoe-Bonnie: That’s right

Witness: No, no

Justice Baffoe-Bonnie: You look at the question very critically; it’s for accounting purposes, but you look at it properly. It’s because you being the administrator, gave some instructions that that column shouldn’t be filled, that is why you have a problem with the question. But in reality, the answer there suggests that some people…. (Witness interrupts)

Witness: My lord….(But Justice Annin-Yeboah cuts in)

Justice Annin-Yeboah: You listen to him, maybe he is difficulty and he wants you to clarify something … (Justice Baffoe-Bonnie went on to continue his enquiry)

Witness:  My lord, remember I gave a history of C1?

Justice Baffoe-Bonnie: Yes, we have got it, but they [the petitioners] are disputing it, that is why this line of cross-examination because it was convenient for you to say….that’s why you gave the “either or situation”: Either they all voted by BVD or they all voted without BVD. That is the “either or “situation. Now we find ourselves in a situation where C3 is lower than C1, so does this “either or” situation arise?

Witness: No…You see, the C [Column with the number 14] there were no form 1C at all to verify anybody and these people who would have utilized the facility in C3, their names would not have been in the voters’ register….If you name was in the voters’ register, you fall straight away into 1C. Because we anticipated that some people would have cards but whose names would not appear in the register, we wanted to be able to cater for them, because we didn’t want anyone to disenfranchise them and those people were going to use form 1C to verify them.  Because of the disagreement, we didn’t take form 1C to the polling station at all, so they were not meant to be exclusive categories (A judge asked him about the 14 figure written in C3 and he answered that it must have been in error).

Justice Baffoe-Bonnie: Where did he conjure the 14 from…it doesn’t look like 14 is related to any figure on the pink sheet?

Witness: My lord, I agree with you, but the total number says 342…the total votes in the ballot box are 342, then there should be no problem at all. Where are the 14 coming from?

Counsel: Dr. Afari-Gyan, I’m suggesting to you that the 14 in C3 is included in the 342 in C below: “The total votes in ballot box”. The 14 is included in that number.

Witness: My lords, if that was the case, then C1 would be conclusive.

Counsel: Can you please answer my question? (Repeats the question)…

Witness: My lords, all that I can say is that it tallies with the number of ballots issued to voters on the polling station register. …

Counsel: Dr. Afari-Gyan, it is obvious that you do not understand your own document.

Serial Numbers

The issue serial numbers came up strongly once again as Dr. Afari-Gyan was cornered by Mr. Addison.

Conceding to the Pink Sheets

Counsel: Dr. Afari Gyan, there may have been a register, but you declared the results of the presidential election on the basis of the pink sheets and we are giving you evidence-figures- that we have gotten on the face of the pink sheet. That is why it is important.

 Witness: My lords, to say that I declared it on the basis of pink sheets; I have already said here that I don’t see any pink sheet-if I were to see all the pink sheets before declaring the results, it would take about four months to do so.

Counsel: so on what basis was the declaration made?

Lee Ocran & Sammy Awuku

Witness: My lord, they would be declared on the basis of results that have been agreed to at the polling station; from there, move to the collation centre where the aggregation had been done, all in the presence of the parties or candidates or the agents and then the result would go to our regional office from where the result would be faxed to me. It’s on the basis of those faxed sheets which had emanated from the polling station, through the collation centre to the national headquarters. It’s on the basis of that that I declare the result.

Counsel: Dr. Afari-Gyan, the pink sheets are the primary documents for the declaration [of the election]?

Witness: My lords, to the extent that the polling station results are recorded on pink sheets yes.

Pink Sheet Identification Features

Counsel: Each pink sheet has features on it that are the same as any other pink sheet but what is unique to each one is the serial number?

Witness: What is unique to each one is the polling station name and the polling station code

Counsel: If the pink sheets are delivered from the printers, they are all the same, the only unique feature on the pink sheet is the serial number?

Witness: I disagree…

Counsel: Can you tell the court, what else distinguishes the pink sheets... (Counsel for the second respondent James Quashie-Idun interrupts)

Mr. Quashie-Idun: My lord, that question has been answered less than a minute ago.

Counsel: When was that answered? (Justice Atuguba cuts in)…

 Justice Atuguba: Mr. Addison, I think you’ve over-flogged this matter yesterday…this whole thing was covered back and forth…

Counsel: My lord, I thought this is the first time I’m asking him to give the differentiation of the pink sheet.

Justice Atuguba: In any case, he has answered….

Counsel: He did not agree with me and I am asking him what else distinguishes the pink sheets

Mr. Quashie-Idun: My lords, he’s answered that question. If something is to be put to him, that is different…

Justice Dotse: The way I understand the witness is that the code and the name of the polling station are the unique features; the serial numbers were generated by the printer for his own accounting purposes, that’s what he has said so far.

Counsel: My lords, we are talking about before they [the pink sheets] are filled out when the pink sheets are brought; what is it on the face of it that distinguishes it from the other, so that is the question, I am not talking about when it’s been filled out?

Justice Dotse: If you have any other feature apart from the name and the code, then you can suggest that to him.

Counsel: No, my lord, the polling station name and code is later on filled in by the presiding officer. When the form is given to you (referring to the Witness) fresh, what is it on the face of the form that distinguishes it from another pink sheet?

Mr. Quashie-Idun: My lords, I would suggest that this is something that Mr. Addison can address the court on; the witness has given all the answers that are required of him.

Justice Atuguba: I thought he has answered this question severally, but …watch out…..

Counsel: Can you answer the question?

Witness: My lords, I have said that we distribute this pink sheet at random. What is important is whether it is a presidential…(Justice Baffoe-Bonnie interrupts)

Justice Baffoe-Bonnie: Dr. Afari-Gyan, the question is simple: Two blank unfilled pink sheets, what would be the difference?

Nana Ato Dadzie

Witness: The difference would be whether it’s ELA (Parliamentary pink sheet) or ELB (Presidential Pink sheet)…

Justice Baffoe-Bonnie: We are talking about two presidential pink sheets

Witness: For our purposes, there is no need to differentiate them…

Counsel: Is there any difference between two blank presidential pink sheets?

Mr. Quashie-Idun: My lords, that question has been answered.

Justice Atuguba: He says the features are ELA or ELB, apart from that; there is no need for them to differentiate them….

Counsel: My lord, he is talking about the pink sheet for the parliamentary and the presidential; we are talking about two blank presidential pink sheets. What would differentiate the two, that is a question that has not been answered….The question I’m asking is that if you are handed two blank presidential pink sheets, what is it on the face that differentiate them, that’s all….(The was a protracted disagreement at both the petitioners’ counsel’s side and the bench as the judges urge him to carry on with other questions if the witness is not giving satisfactory answered). My lords if he answers my question, whichever way, I move on, but if my question is distorted then that question has not been answered….My question is different from what he is saying. I’m saying blank presidential pink sheets, what is there to differentiate it? Simple question….that question remains unanswered.

Justice Dotse: For my own education, if two blank pink sheets are produced to you without any indication as to the name or code, can you know the polling station to which this pink sheet relates?

Witness: My lord, if it’s a blank sheet, then it’s a blank sheet, it would not indicate any polling station.

Counsel:  Dr. Afari-Gyan I’m suggesting to you that what distinguishes two blank presidential pink sheets, is the serial number.

Witness: Blank, yes.

Counsel: So what have we been doing in the past 20 minutes?

Witness: No, you said blank, my lords, blank, yes.

Tamper Evidence Envelops

Before answering questions on the tamper evidence envelopes which the petitioners said are part of the process to secure the ballots, all counsel for the respondents objected to the attempt to ask the witness to identify them.

The court in a 6-3 majority decision with Justices Atuguba, Sophia Adinyira and Vida Akoto-Bamfo dissenting, overruled the objection and asked Mr. Addison to continue to question Dr. Afari-Gyan on the envelopes.

He mentioned that a set of numbers on the envelopes, each being exclusive of the other to indicate that the envelopes also had serial numbers but Mr. Quarshie-Idun again objected and said the envelopes were not in evidence.

The court again in 8-1 majority with Justice Atuguba dissenting overruled the objection.

Dr. Afari-Gyan then told that he had observed that apart from the envelopes not marked, they were not supposed to come from the petitioners and said if that turned out to be the property of the EC, they would investigate the matter.

Justice Baffoe Bonnie then asked Dr. Afari-Gyan if the envelopes of the EC had markings on them but the witness said “some have dome don’t”.

The judge again asked if the envelopes used for the 2012 elections had markings on them but Dr. Afari-Gyan made a u-turn and said “I cannot tell you here because I didn’t procure them personally.”

Ballot Accounting

Mr. Addison asks the witness if he has brought evidence on the number of ballots printed and Dr. Afari-Gyan after refreshing his memory, told the court that the national total stood at 15,434,968 ballot papers were printed which included the 10 percent.

He said gave the breakdown of the booklets as 141,597 for the 100 page booklets, 12,627 for the 50 page booklets and 38,041 for the 25 booklets

Mr. Addison then suggested to him that if the number of ballots from the 11,115 polling stations in contention amounts to 11,511,207 it will be left if barely three million ballots left but Dr. Afari-Gyan insisted that he did not know the basis on which that claim was being made.

Mr. Addison then told him that the analysis was based on the 11,115 polling stations in contention and the figures on the pink sheets but Dr. Afari-Gyan again said he did not know and could also not tell the actual number of polling stations in contention because has said the petitioners had kept changing their story.

Mr. Addison suggested to the EC Boss that the figure the commission had just brought to the court was an aggregation of A1 on the pink sheet but Dr. Afari-Gyan said that he did not know the specific polling stations and could not give a definite answer.

Double Registration 
Dr. Afari-Gyan told the court that by the method the EC used, the final voters register did not contain double registration inspite of the fact that in his earlier evidence had had admitted that double registration occurred in the registration done abroad.

Objections

Since Monday, James Quarshie-Idun, lead counsel for the EC appear to have gained some agility which here and there saw him objecting to some of the questions asked Dr. Afari-Gyan by Mr. Addison.

The first objection was raised by Mr. Quarshie-Idun when Mr. Addison asked Dr. Afari-Gyan to identify what was supposed to be an extract from the voters register from Adaklu Constituency in the Volta Region.

The EC counsel insisted that the register was not in evidence and that the full register was available and must even be certified by the commission before it could be used by anybody but Mr. Addison said he did not intend to tender the document and that it was only for identification purposes but the court sustained the objection.

NPP gurus

Pink Sheet Arrival

Mr. Addison asked Dr. Afari-Gyan by what means the pink sheets were brought to Ghana after printing but the witness said he did not know before Mr. Quarshie-Idun raised another objection.

The EC counsel argued that it was not for the 2^nd respondent to produce documents that would prove the case of the petitioners but Mr. Addison countered that he had not asked the witness to produce any document but was seeking to know how the pink sheets were brought.

The court in a 6-3 majority decision with Justices William Atuguba, Julius Ansah and Sulley Gbadegbe dissenting, overruled the objection.

Mr. Addison then proceeded to ask more questions on the issue and at one point a clearly incensed Dr. Afari-Gyan said “I am wondering what these little little things are meant to do”.

When asked on what basis the EC declared the final results, Dr. Afari-Gyan said he declared on the basis of the results announced at the various polling stations.

Counsel then said that per the Commissioner’s assertion the pink sheets were the primary record of the December 2012 presidential election but Dr. Afari-Gyan said “to the extent that the polling station results are recorded on pink sheets.”

Unsigned Pink Sheets

Dr. Afari-Gyan told the court that Presiding Officers are constitutionally required to sign Pink Sheets after the ballots have been counted and declared and added that the reason for signing was to “attest” and “authenticate” the results.

He said the Presiding Officer has to sign before handing it over to the Returning Officer at the Constituency Collation Centre and in the event that the polling agent does not sign, does it invalidate the results it did not invalidate the results.

Mr. Addison further suggests to the witness that there are 1,700 pink sheets that are unsigned and not 905 as the EC told the court but Dr. Afari-Gyan said he would have to cross check and be sure of the figure.

Dr. Afari-Gyan told the court that there were instances where the Presiding Officers were made to sign the pink sheets on the orders of the Returning Officers who were to receive the pink sheets at which the duplicate copies might have already been given to the party agents.

Mr. Addison suggested further that per the analogy given by Dr. Afari-Gyan it could be possible for the petitioners to have unsigned duplicated pink sheets whose original may have been signed later by the EC officials and the witness said it was possible.

Counsel: Dr. Afari-Gyan, I will go back again to the number you gave to the ballots printed: Now, The breakdown you gave for the booklets [ballot booklets], when that is worked out, the correct total figure would be 15,742,075.

Witness: Well, I would have to check on that.

Counsel: So you would agree with me that the figure would necessarily have to either end in a Zero (0) or Five (5), not eight (8)?

Witness: My lords, as I said, I would have to do the computation or somebody do the computation for me to see. But I’m really wondering what this little-little computations are about. I’m really wondering because the election was done on a specific voters’ register and as I said, there is documentation that we made available to political parties as to exactly what was going to what constituency and to what polling station

Pink Sheet Fight

Immediately Mr. Addison provided a bunch of pink sheet exhibits to be identified by the witness and a war of words ensued between the petitioners legal team and all the respondents over the actual number of pink sheets either filed by the petitioners or served on the respondents by the court’s registry.

Mr. Quarshie-Idun started it saying he would not allow his witness to be confronted with the set of the exhibits because the exhibit numbers provided by the Petitioners do not correspond with those at their disposal.

Tony Lithur representing President Mahama accused the petitioners of introducing fresh pink sheets to the witness and said because the pink sheets were not stamped at the registrar's office any pink sheet at all could be introduced.

Dr. Bawumia

Tsatsu Tsikata representing the NDC said he found it interesting that Mr. Addison would accuse him of introducing a pink sheet which is not in evidence and said if that were the case, it strengthened their position all the more because he had not introduced any pink sheet to the court and added that all the pink sheet he cross examined Dr Bawumia on were pink sheets that were supplied by the Petitioners.

Mr. Addison expressed surprise at the protests. Even though he admitted that there were mis-labelings on the pink sheet exhibits he insisted that pink sheet exhibits tendered in evidence were already in the court’s custody.

As the argument became personal and dirty, the court suggested that the petitioners could proceed with the cross-examination and skip questions on the pink sheets in contention.

Sitting continues today