PINK SHEETS HALT NANA VRS MAHAMA

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, June 13, 2013

The raging controversy over the quantity of pink sheets evidence filed in court by the petitioners in the ongoing election petition has forced the Supreme Court to halt proceedings for almost two weeks.

On Thursday, the Presiding Judge in the landmark election petition, Justice William Atuguba, announced a joint decision of  the nine-member panel of justices sitting on the case to adjourn the hearing till June 24, 2012, apparently because KPMG, the international accounting firm chosen by the parties as referee in the count of Pink Sheets, has not concluded its task.

Lawyers of the first and third respondents -President John Dramani Mahama and the National Democratic Congress (NDC) respectively, have been on the necks of petitioners for more than three weeks now, claiming they did not get the full complement of the 11,842 affidavit evidence of the Statement of Poll and Declaration Results Form aka Pink Sheets, supposedly served on them by the petitioners.

On the contrary, the first and third respondents alleged that they barely received 9,000 pink sheets from the petitioners. For them, the shortfall had placed them at a disadvantage from effectively scrutinizing the petitioners’ claim of widespread malpractices and irregularities in the December 2012 presidential election.

According to Tsatsu Tsikata, the lead counsel for the third respondent, the alleged inconsistency of documentation “bordered on criminality”. This allegation had drawn strong protest from the petitioners, led by their lead counsel, Philip Addison.

The petitioners insisted that they duly served all the parties the requisite documentations at the Supreme Court’s Registry.

According to the spokesperson for the petitioners, Madam Gloria Akuffo, they are confident of their claim because the registry issued them with official receipts covering all the exhibits for over 11,842 polling stations nationwide.

The Order

Following persistent disagreement from the parties in the petition, the Supreme Court was forced to wade into the matter by seeking the help of KPMG to account for the actual number of exhibits tendered. This was arrived at after an extensive discussion among all parties.

In the court’s order, 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,” the court stated.

“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,” stated Justice Atuguba when he read the order a few weeks ago.

The professional fees for KPMG estimated at about US$100,000 was to be shared among the parties, but after some persuasion, KPMG agreed to render the service free-of-charge.

All the parties in the petition were then ordered to bring two representatives each to the KPMG researchers throughout their task to avoid suspicions.

The representations notwithstanding, the parties still raised red flags, as accusations of spiriting of pink sheet boxes in an out of the vaults of the courts registry flew about.

Initially, KPMG’s mandate was to count and categorise the pink sheets served on the court registry, but the respondents’ suspicion prompted them to suggest that the counting should be done against a control mechanism using the pink sheets of the presiding justice, Justice Atuguba.

Eventually the court bought the suggestion and so the KPMG counting was widened to include the counting of Justice Atuguba’s cache of pink sheets.

Mixed Reports

KPMG has issued a draft report on the counts made on the registry’s copies.

Last week unconfirmed reports reaching DAILY GUIDE indicated that KPMG had counted over 13,900 pink sheets.

Other unconfirmed reports also indicated that about 9,800 pink sheets have been counted from Justice Atuguba’s documents with more counting still ongoing.

But Nana Ato Dadzie, the official spokesperson of the first and third respondents, was quoted in the media on Wednesday saying the count proved a 25 per cent shortfall of the 11,842 stated by the petitioners.

“…We all do know, both sides, we all do know that the KPMG figures are very clear; [they] are coming out which will show that, yes, our position is fairly correct that we’ve not been given more than 9000 and that in any case, what has been given out to the Judges couldn’t probably have been more than 10,000 or whatever it is”, he told journalists on Wednesday.

Nana Ato Dadzie’s account also conflict with Tsatu Tsikata, NDC lead counsel said that he had a little over 7,000.

Tony Lithur said he had over 8000 and now Ato Dadzie says it is 9000.

“If they say that they are going to annul 11,180 of our pink sheets, translating into 4.6 million, now that the thing has dropped by almost 2000 or whatever or at least their claim has dropped by almost 25 per cent, are they going to ask that the Court should still annul those figures?,” Nana Ato Dadzie queried.

But from all indications, it is very clear that KPMG is not done with the counting hence the request for a little over one week to tidy up the counting.

Uncharacteristic Adjournment

Thursday’s uncharacteristically long adjournment would be the first since the case started fully in mid April 2013. The court has basically been sitting religiously for four days every week as a means of expediting the election petition that has put the whole country into a heightened state of expectation.

The court has initially estimated that KPMG could wrap up their findings by next week, but apparently, the accounting firm thought otherwise. Justice Atuguba indicated this in court on Thursday:

Justice Atuguba: Yesterday [Wednesday] we instructed the registrar to find out from KPMG when their report would be ready, I think he [the registrar] has information (He signals to the registrar to tell the open court what information he gathered from KPMG)

Registrar: My lords, this morning, I went to KPMG [in the conference room of the Supreme Court], and they were saying as at now, they can’t give us specific date or day that they would finish. They say we should give them a couple of days or a week and some days for them to finish their work.

Justice Atuguba: A week and some days or a some days and a week? … (General laughter in court room as the presiding Judge tried to decipher the rather vague estimation)

Registrar: My lords, some additional days, that’s what they want… (The panel confers among themselves. Eventually, Justice Atuguba read out the agreed decision)

Justice Atuguba: The court’s registrar has reported that KPMG needs a week and some days to submit their report. Addison says some matters are also related to that report; accordingly, the case is adjourned to 24^th June 2013 for continuation.

Truncated Cross-examination

The none-resolution of the pink sheet controversy had confined the lead counsel of the petitioners to a difficult time cross-examining the Chairman of the Electoral Commission (EC), Dr. Kwadwo Afari-Gyan: Most of the times he pulled out a pink sheet with the intention of asking questions, the respondents objected in unison, claiming they did not have that particular pink sheet.

Usually, the objections and counter arguments drag on for a while until the judges intervened. The development has compelled Mr. Addison to suspend some of his cross examinations till the KPMG findings are concluded.

He was compelled to cross-examine the EC boss on general electoral issues not related to the pink sheet. He would continue his pink-sheet related cross-examination upon the court’s receipt of the KPMG report.

At the close of proceedings on Thursday, the judges asked him if he had concluded his none-pink-sheet-related cross-examination, apparently, his remaining quizzing of the witness would be dependent on the KPMG report; “My lords, we have been limited by these pink sheets that objections have been raised on… so we cannot say we have ended our cross-examination,” Mr. Addison stated.

Polling Agents Not Compulsory

Meanwhile, earlier on Thursday, after intense cross-examination, the EC boss conceded that polling agents of political parties during presidential and parliamentary elections did not have any administrative roles to play after all at the polling station.

The second petitioner, Dr Mahamudu Bawumia, described them as “exalted observers”. But he has been strongly criticised by all the respondents to be wrong to refer to polling agents as mere observers.

Impliedly, except for their observer roles in monitoring the electoral process and securing the interests of their parties or candidates, polling agents do not have any specific official mandate at the polling station. Rather, Presiding officers, who are mostly temporary staff of the EC, are the main authorities at the individual polling stations: Results from each polling station needs an express endorsement and signature of Presiding officers to validate them.

But in the petition currently on the table of the Supreme Court, the petitioners claimed there were several instances where the pink sheets highlighting the results from most polling stations were not signed by Presiding officers, hence invalidating the results from those stations. But the EC and the two other respondents think the absence of signatures of presiding officers does not invalidate results.

To reinforce his argument, Lawyer Addison handed the EC’s chief administrator an instruction manual of biometric verification machines at polling stations for presiding officers:

Counsel: …You have told this court that the Presiding Officer also has discretion when it comes to ballots without the polling station stamp?

Witness: My lords, I said he has to use that discretion reasonably…Yes; he has a reasonable use of discretion.

Counsel: I’m suggesting to you that that discretion also is a violation of the law.

Witness: My lords, once again,-as a matter of fact-, not being a lawyer, I cannot determine….

Counsel: Now, you have told this court also that polling agents are more than observers

Witness: My lords, I don’t understand the question…

Counsel: In answer to a question that Dr. Bawumia said polling agents were exalted observers, you said they were more than observers; they cannot be just observers…?

Witness: Yes my lords.

Counsel: You are aware that the functions of a polling agent are strictly circumscribed?

Witness: My lords, I would say so

Counsel: They are not election officials…

Witness: In the strict sense of the term, no.

Counsel: (Pulling out a the Constitutional Instrument guiding the 2012 election, C.I 75) I would like you to read rule 19 (4)

Witness: (Witness reads the stated paragraph) “A Presiding Officer shall give a polling agent the necessary access to enable the polling agent to observe election proceedings at the polling station “

Counsel: So I am suggesting to you that it is not the business of the polling agent to supervise the work of election officials, but to observe the conduct of the poll.

Witness: My lords, I agree that the polling agent is not supposed to supervise, but he plays an active role at the station.

Counsel: The law you just read says that they are to observe, am I right?

Witness: I do not believe that that is the only section of the law that would apply…

Counsel: So you know the law, so you can tell us the other sections… (Counsel for the second respondent James Quashie-Idun objected to the question)

Mr. Quashie-Idun: My lords, I respectfully submit that this is not a fair question for Mr. Addison to put to the witness; it is a comment, my lord.

Justice Atuguba: I think we have, in the case of Tsatsu Tsikata, allowed that kind of thing to pass. Some of these things are mixed questions of fact and law. I agree that there could have been a better way of putting them [the question]….

Counsel: Now, you also told this court that the reason why you told the court that the polling agent is more than an observer is that the polling agent is sworn upon penalty of perjury that he shall abide by the laws and regulations, am I right?

Witness: You are right.

Counsel: I am suggesting to you that there is no such provision in the current law that the polling agent is sworn upon a penalty of perjury.

Witness: My lord, there is.

Counsel: You have in your hands, CI 75, if you can read regulation 19 (6)

Witness: (Witness reads the section) “ The Returning Officer shall set a date on which the polling agents shall appear before the returning officer to swear an oath to the effect that the polling agent shall abide by the laws and regulations governing the conduct of elections.”

Counsel: There is no mention of perjury there, is there?

Witness: My lords, I have seen an explicit reference to perjury somewhere in the law.

Counsel: Now, (Handing over another document: CI 15) if you can look at regulation 19 (3).

Mr. Quashie-Idun: My lords, CI 15 have been revoked by CI 75….

Justice Atuguba: Yes, Mr. Addison… (he was reminded about Mr. Quashie-Idun objection by some members on the bench)

Counsel: My lords, I have not even asked my question. What is the objection? …I have asked him to read the provision in CI 75 and I’m asking him to look at CI 15, I’m directing him to look at the regulation, then the question would come, then he can take the objection, but to say that he shouldn’t look at it because it’s been revoked, is that the point? (Eventually the bench prevailed on him that if a law had been revoked, it shouldn’t be treated as if it was in force. Counsel consequently backed down).

Counsel: Now, Dr. Afari-Gyan, whereas election officials are Special Voters, a polling agent cannot be a special Voter?

Witness: My lords, not all election officials are Special Voters.

Justice Jones Dotse: I think the import of the question is that do polling agents take part in special voting?

Witness: No my lords.

Counsel: A polling agent is not involved in the actual administration of the election?

Witness: My lord, you are correct.

Counsel: He does not count the vote after the election?

Witness:  My lords, no he does not.

Counsel: He also does not inspect the ID cards of persons who are in the queue to vote?

Witness: No.

Counsel: He cannot confront anybody directly at the polling station?

Witness: My lords, no, and for that matter, nobody can confront anybody directly at the polling station.

Counsel: If he has any objection to anything happening, he has to inform the Presiding Officer?

Witness: My lord, yes.

Counsel: So the presiding officer is the person who is in charge of the polling station?

Witness: My lords, absolutely.

Counsel: He has the final say on any matter?

Witness: So far as it is connected to the elections, yes.

Counsel: In fact, the presiding officer can ask the polling agent to leave the polling station?

Witness: My lords, yes, if the polling agent misconducts him or herself.

Counsel: And who determines who misconducts himself, it’s the presiding officer?

Witness: My lords, yes it is the presiding officer, but they are trained to know what misconducting ones self at the polling station is…

Counsel: Now, did all parties contesting the elections have polling agents?

Witness: My lords, I couldn’t say, but I was informed that at least two parties had agents everywhere, namely the NPP and the NDC.

Counsel: So you were told that it was the two main political parties that had agents all around?

Witness: All around, yes.

Counsel: Now, does it mean that the parties that did not have polling agents, they were at some kind of disadvantage?

Witness: My lords, I wouldn’t say that; some parties were not contesting in some places, so if you are not contesting in a place, you may decide not to send an agent there at all.

Counsel: …In any event, in the presidential elections, every polling station was contested, I am not aware of any presidential candidate who did not contest in a particular polling station.

Witness: The election for the presidency is held at every polling station….

Pink Sheets Printed
Mr. Addison asked Dr. Afari-Gyan the total number of pink sheets printed and suggested to him that the number was 54,000 pink sheets for the presidential elections but after flippantly answering that it was two sets of 27,000, the commissioner then said “yes it adds up to 54,000.”

Counsel again suggested that if 26,002 booklets were used then a little over 27,000 should be left, right but Mr. Quarshie-Idun raised an objection to the question saying it was of no relevance.
Mr. Addison countered and said that the witness had already said the documents were in the custody of the EC before Mr. Quarshie-Idun backed off for counsel to proceed.

Counsel: Is it or it not available…they are in your custody

Witness:  yes

Counsel:  So if you are asked to produce it in court you will be able to right?

Objection

Mr. Quarshie-Idun: Objection…this question is not relevant.

Addison: The use of duplicate serial numbers is central to the petitioners’ case. In some cases the duplicate pink sheets were substituted for the original. It is at the centre of our case and it is another balloting accounting of the pink sheets and should not be a problem.

Mr. Quarshie-Idun: They have not pleaded….It is an entirely new case they are setting up.

Justice Vida Akoto-Bamfo then cut in to remind the EC counsel that “this is cross-examination and issues of relevance will be determined by the court”

Mr. Addison then proceeded to ask if the EC printed a duplicate set of pink sheets for the Parliamentary but Dr. Afari-Gyan said there were many blank sessions on the pink sheets and so the EC did not print a duplicate set for the Parliamentary.

Financial Loss

Mr. Addison then suggested to Dr. Afari-Gyan that by printing a duplicate set of pink sheets for the presidential election “you have caused a financial loss to the state,” but Justice Akoto-Bamfo asked the witness not to answer the question.

Counsel rephrased his question suggesting to the witness that the EC printed more pink sheets than necessary and that the left over could not be used in any other elections to which Dr. Afari-Gyan replied “There is always an element of wastage built into the calculation and use of election materials.”

BVD Manual
Mr. Addison asked the witness if he was familiar with the manual on BVD. To which Dr. Afari-Gyan said “I am generally familiar with it.”

Counsel then presented a BVD manual to be identified by the witness but Dr. Afari-Gyan said the manual given to him is different from what the EC had and produced a copy which was different in size but with the same content to the court.

Addison suggested to witness that the manual presented by the petitioners was given to the NPP reps at an IPAC meeting.  But Dr. Afari-Gyan said he could not confirm it and when asked further if he could confirm that the forward in the manual presented by the petitioners was written by himself, Dr. Afari-Gyan said “I see my name written on it.”

When Mr. Addison tried to ask questions from the manual, it was vehemently objected but after an extensive but heated argument the court said Mr. Addison could go ahead to tender and ask questions on the document.