KPMG IN THE BOX

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, June 27, 2013

KPMG, the accounting firm chosen by all the parties to count the number of Pink Sheets used as exhibits in the Presidential Election Petition will today enter the witness’ box for cross-examination.

The firm’s representative is expected to explain certain aspects of the report it submitted to the court after all the legal teams in the petition requested their presence.

Currently, the cross-examination of Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan’s testimony has been put on hold and the court would come back to him after the KPMG issue has been sorted out.

Motion Denied

Before the request for KPMG was made, the nine-member panel chaired by Justice William Atuguba dismissed the petitioner’s application seeking to ask the EC to produce for inspection, Presidential Collation Forms for 13 constituencies in the December 2012 general elections.

The constituencies are Akuapem North, Berekum West, Ketu North, Kintampo South, Ledzokuku, Lower Manya Krobo, Mporhor, Oforikrom, Tamale South, Techiman North, Upper West Akim, Yendi, and Yilo Krobo.

Arguments

Moving the “Application to produce documents for inspection and to make copies thereof,” Philip Addison lead counsel for the petitioners told the packed court that the application was brought under Regulation 43 (5), (6) and (7) of C.I. 75.

He said that after Dr. Afari-Gyan had indicated to the court that he could produce upon request from the court, the collation forms in respect of the 13 named constituencies. 

He told the court that the petitioners subsequently sent a letter EC for the collation forms but the request was declined and that had necessitated the instant motion.

Mr. Addison argued that in the previous application where they were asking for interrogatories, the petitioners brought the application under order CI 47 and that was even in respect of volumes of pink sheets and other collation result forms.

He said at that point, the court had affirmed the EC’s position that the petitioners had been given copies of what they sought to discover from the second respondent and insisted that the current application was different from the earlier application.

He said the instant application was brought in respect of only 13 presidential election collation results forms and added that it was evident that those forms were not given to the parties that contested the 2012 elections.

Mr. Addison said the petitioners had indicated that they did not have some 2,000 pink sheets and that included the 13 constituencies being requested adding that the petitioners had been confronted by the respondents that the petition had been brought in bad faith and that the petitioners are setting an entirely new case.

He cited the second amended answer to the second amended petition by the EC in which 7 out of the 13 constituencies were named with the petitioners accused of not providing details, saying it was precisely the reason why the petitioners did not raise the issue of the constituencies in their affidavits.

He added that the application will show that indeed the first Respondent (John Dramani Mahama) was indeed not validly elected in the 2012 presidential election.

“The motion is intended to assist us to maintain and defend a matter raised in this petition and the issue of bad faith raised by respondents,” he argued.

He said information in the custody of the EC should not be exclusive to the commission and interested parties can apply for same adding “the second respondent is a body that organizes the election and has custody over these documents and are mandated to keep those documents and make them available when where necessary.”

Turning to President Mahama’s affidavit in opposition, he described as unacceptable the President’s explanation that the petitioners request is likely to open the floodgates for the petitioners to demand for further documents deep in the proceedings and may delay the process.

He also referred to another affidavits from the NDC which accused the petitioners of embarking on a fishing expedition and argued that the constituencies in question were already before the court and will therefore be erroneous to say they were embarking on a fishing expedition.

In the affidavit in support of the application, deposed to by Dr. Mahamudu Bawumia, the petitioners had said it had become necessary for them to make the request on the grounds that “all citizens of Ghana have a constitutional right, by virtue of Article 21 (1) (f) of the Constitution, to access information on such public documents as the Presidential Election – Collation Results Forms in the custody of the 2nd respondent, after the close of elections and declaration of results”.

The Opposition

James Quarshie-Idun counsel for the EC vehemently opposed the application and asked the court to take a critical look at the document being requested for by the petitioners.

After reading a manual for election officials, counsel brought out a copy of the results collation form which he said was only listing the results at the various polling stations and said it was just a repetition of results of votes cast at each polling station which were added up.

He said the documents the petitioners were seeking was not necessary and said it had not been the petitioners case that there was a discrepancy between the votes declared by the EC and results on counted at the collation centres.

He mentioned Dr Bawumia's testimony of May 14 and 15 where he quoted the Economist as saying that discrepancies in results declared at the polling stations and the ones declared by the EC was not "part of their case."

He says as to the 2000 missing pink sheets, it is the first time the EC was hearing of it and said the belated attempt to obtain the documentation had pushed the petitioners into making the claim.

He said the request, if granted, was going to delay the proceedings and urged the court to dismiss what he called "belated application".

President Mahama

Tony Lithur representing President Mahama cited Paragraph 24 of the seconded amended petition in which allegations of padding was made but later the petitioners retracted the claim.

He said the petitioners request to produce documents outside their particulars was wrong and added that they were asking the EC to give them evidence upon which they will turn around to use it against the commission.

"Why are you in court if you do not have any basis to be in court in the first place,” he charged and added that it is not just 13 collation forms but that those forms have a huge number of polling stations with huge numbers which was likely to delay the process.

He said the petitioners had adequate notice at the time of the pleadings but did not request for it saying “it is clear this application is not deep fishing but pair-trawling,” and added the application is an "abuse of the process and should be dismissed".

The NDC

Tsatsu Tsikata, counsel for the NDC described the petitioners application as “incompetent” and said the petitioners reference to CI 75 in their application was without basis because no mention was made to the Supreme Court. 

He said the petitioners could be better served by reference to CI 47 and added that the provisions there gave an idea of the discretionary powers of the court in terms of the production of documents.

He says the petitioners submission about missing pink sheets has come to settle the matter against the application made and said there was no issue about 2000 missing pink sheets before the court adding that the court was being asked to deal with the matter on matters filed or alleged to have been filed and not on missing 2000 pink sheets. 

Addison Rebutts

Mr. Addison with leave of the court came back again to rebut the respondents on points of law citing a ruling by the Supreme Court in 1996 which it relied on a provision by the High Court for its ruling on CI 47.

He argues therefore that the Supreme Court could similarly rely on CI 75 another High Court rules to make a decision on this matter.

Gbadegbe’s Intervention
Justice Sulley Nasiru Gbadegbe, a member of the panel asked Mr. Addison if he was following the right process and said it was rather late in the proceedings for counsel to request for the documents.

He appeared to have shut the door on the petitioners when he said “if you had come earlier we would have considered it.”

But Mr. Addison said he agreed in part with the judge but added that the application had come rather late because the accusations of bad faith made against them came rather late and prayed the court to exercise its discretion and allow for the production of the collation forms of the 13 constituencies.

Ruling

After a long break, the court unanimously ruled that it was not going to grant the petitioner’s request.

It said it was adopting its earlier ruling in the petition where it denied the petitioners request to order the EC to present some documents to the court.