PINK SHEET BATTLE OVER

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, July 4, 2013

“If the pink sheets you have given to them are all here (as captured by the KPMG Report)and even they (respondents) say they don’t have them and they will not tell us what they don’t have, we don’t care, we will go on with the cross examination because it has been established that it is here.”

Justice Sophia O. Adinyira, a member of the nine-member panel hearing the Presidential Election Petition, made this comment after it became apparent that Philip Addison, lead counsel for the petitioners, was reluctant to resume the cross-examination of Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan yesterday.

The judge said, “Unless you give them a pink sheet which is outside the 13,000 and that one they are complaining yes… but they say they have a certain number, they are not telling anyone what they have got or what they haven’t got, they have got the report … Up till now they have not been able to tell us out of this 11,000, we have not got this 3,000 you have been complaining about, it is their own problem.

But why should we clarify it now. If KPMG has come to say that you filed 7,000 then that one that will be a big problem for you but you even over filed because of duplication but you have to know how to go about these technicalities. You can even sit down, if you have and they don’t ask for it, it is their own palaver,” Justice Adinyira, who was eager for the case to proceed after several hiccups due to the pink sheets disagreement, stated.

 At this stage, the various justices directed that to progress and ensure that the case comes to an end by next week, the petitioners should indicate all the number of unique pink sheets as had been shown in the KPMG report, in the set of the registrar and the president of the panel and those used in cross examination which were not in the sets counted by KPMG as they were also in the court’s records, in their addresses noting that the count had clearly proved that the petitioners even submitted more than 11,842 pink sheets.

Justice Sophia Adinyira indicated that whether the respondents had a certain pink sheet or not would no longer be an issue in continuing the cross examination of Dr. Afari-Gyan, and that once those sheets had been captured by the KPMG report, the petitioners were free to cross examine him on them.

Dr. Afari-Gyan’s cross-examination was stayed to enable the referee KMPG chosen by all the parties to count the number of pink sheets involved in the petition but after the report was submitted Mr. Addison insisted that the report was inconclusive.

He indicated to the court that per the evidence of Nii Amanor Dodoo, Head of Audit Practice and a senior partner at the accounting firm, the KPMG report could not be said to be conclusive because there were pink sheets that were not counted in the exercise.

Mr Addison mentioned to the court that the number of unique pink sheets submitted by the petitioners had still not been resolved since the 8,675 identified by KPMG in their count of the Registrar’s set of pink sheets did not include some of the exhibits used by the respondents in the cross examination of 2nd petitioner, Dr. Mahamudu Bawumia  which the petitioners have indicated are as much as 648 as well as some 1,545 exhibits classified by KPMG as illegible due to one or two identifiers which were not clear on the sheets such as exhibit numbers.

The 8,675 unique pink sheets identified by KPMG in their count of the registrar’s set of pink sheets, he said, did not also include 2,876 pink sheets found in the set of the president of the panel, Justice William Atuguba which are not in the registrar’s set of pink sheets as confirmed by KPMG report.

According to the petitioners all the unique sheets have should been included in any count of the unique sheets filed by the petitioners as they were all in evidence and as they had been shown by the KPMG report and also through cross examination, with regard to the exhibits used by the respondents, to have been properly filed by the petitioners.

The petitioners also indicate that an addition of all these exhibits would establish clearly that the petitioners filed well over 11,000 pink sheets.

Mr Addison then made references to the PKMG report again focusing in detail on the areas that KPMG did not capture but took notice in the report.

He mentioned No Polling station Name (NPN), No Polling Station Code (NPC), Unclear Polling station Name (UPN), No Exhibit Number, No Ballot Accounting Information (NBAI), Two Exhibit Numbers (TEN) or Different Exhibit Numbers (DEN ) Polling Station Code Without Alphabets (CWA) and said all these should not have been a ground to exclude a pink sheet from the count since one or more ingredients needed for the count was there.

Justice Annin-Yeboah, a member of the panel then cut in to ask Mr. Addison that “If you are serializing all these irregularities which resulted from the referees report…you see the referee’s report is part of the official record of the court. Why don’t you formally if I may respectfully suggest, let us know this on paper by way of motion so that if will be considered because well I’m at a lost that the referee’s report is now part of the records of this court but then there are certain things still hanging which I cannot certainly understand because they were asked to do a specific job which they have done but there are still questions which they have left unanswered and I don’t know whether this is the proper procedure to draw the court’s attention to them.”

Mr. Addison: Very well, if your Lordships think that is the way we should go then we will do so.

Justice Annin-Yeboah: No, no I am just trying to intervene.

Mr. Addison: Well my Lords we are open to that, that is why we attempted to tender our comments the other day but we are open to that suggestion.

Justice Baffoe-Bonnie: So looking at page 50 of the report, are you saying that let’s say 118 where they have the UPN and UPC they form part of the 1,545 pink sheets?

Mr. Addison: That is so and my Lords from the record we have identified 850 using the polling station codes provided in the report.

Justice Baffoe-Bonnie: But if they have for example the same pink sheet, exhibit number, the polling station number, the polling station name and the UPN (Unclear Polling Name), why won’t it be counted?

Mr. Addison: Well my Lords that is the issue.

Clarification

Justice Baffoe-Bonnie: Honestly we need clarification from the KPMG because I was all the time thinking that the 1,545 pink sheets couldn’t be identified because they didn’t have any of the codes. If the pink sheet has a number like 124, it has GO51204 as the polling station code, we have the exhibit number there then apparently it is CMB shared, how can it be excluded? I don’t understand please is that what was done?

Tsatsu Tsikata lead counsel for the National Democratic Congress (NDC) then came in strongly trying to highlight certain aspects of the KPMG report to the court.     

“If I may respectfully be heard on this, it is clear in the report that every sheet filed and part of the registrar set has been captured and counted. It is clear and appendices 8 (2.1) to 8.(2.24) which is the main body of the report show that they have been counted. They are part of the about 13,900 pink sheets.”

Justice Baffoe-Bonnie:  They were counted individually but the witness actually said that there were 8,675 unique pink sheets of polling stations, then 1,545 which could not be properly identified and that is where my confusion lays

Mr. Tsikata: Our position is that these sheets have been counted and they are part of the 13,000. What KPMG also further testified about was up to certain tests they did for instance regarding what are the unique polling stations codes within the entire set of 13,000 and in respect of the count, they indicated that where things were eligible, they took them out of the test but my Lords respectfully I am a little bit concerned at what counsel for the petitioners is seeking to do this morning because counsel for the petitioners keep saying the report vindicates them. If the report vindicates them, then we should just proceed and let their vindication be a matter of address to the court but having said the report vindicates them then they go on to say there are things hanging in respect of the report. If there are things hanging in respect of the report, these petitioners resisted the count by KPMG. If there are things hanging, what is the procedure to bring out those hanging things. Is the procedure just to stand up in court before cross examination and say that there are things hanging? Is there something that they would like to apply to the court to be done in respect, they have not indicated then we are just here listening to this sort of address essentially as regards to the KPMG report.

Dotse’s Worry

Justice Jones V. Dotse then cut in to draw the attention of Tsatsu Tsikata and Philip Addison to the KPMG report and said “let’s see whether we can make some progress with what the report indicates on the main report under the ending factual findings under sub 3.2 on the third paragraph.”

The judge then quoted the report as saying that after the control checks were performed, exhibits presented by the registrar were crossed checked against the presiding judge’s set of exhibits, the cross check was able to clarify 34 of 1,545 exhibits that were identified as having incomplete data from the pink sheet count.

He continued that KPMG had said a decision will need to be made as to whether the missing information of the remaining exhibits will have to be provided or sourced to determine whether or not they do indeed qualify to be included in the list…the list of exhibits the presiding judge was served with from which incomplete information of the set provided by registrar could be extracted is set out under appendix A2.

Justice Dotse then sought to find out from Mr. Addison whom he said “cross examined” Mr. Dodoo “at length on other issues” and asked why counsel was now seeking further clarification on the matter after the witness has been discharged.

Mr. Addison responded that “We confronted him and indeed it was in our comments and I confronted him at length on this matter and my Lords will note that even the 34 that they said they identified using the president’s set is still included. But we are saying using the polling station codes, we have identified 850. Now using other information, we have identified the further 655 so we are saying that these things can be identified clearly and we cross examined him on it.”

Gbadegbe’s Advice

Justice Sulley Gbadegbe: I was surprised that in view of what you are saying, you should have taken advantage of Order 28. The rules provide for a remedy.

Mr. Addison: Yes my Lord we haven’t had the opportunity to do that …

Justice Gbadegbe: You have to look at it and see how you can utilize it because I don’t think after it has been adopted and there has been cross examinations, the absence of the rules….The rules provide solutions to all these matters.

Mr. Addison: My Lord we will take a look at that, we still believe that we have the opportunity because the witness was not unconditionally discharged and that is why we thought that we still have that opportunity and the report itself says that they needed further directions on this matter.

Justice Gbadegbe: That is why you could have utilized the rule to make an application to the court at that time.

Lithur Confused

Tony Lithur lead counsel for President John Dramani Mahama then cut in to say that “I’m just getting a little confused that some other extraneous source is being used to identify polling station codes that are already in exhibit not through testimony.”

He said “I’m just a little concerned about that kind of procedure that uses extraneous material as it were to validate something that is still in evidence. During the meeting with KPMG, they indicated that where the three indices did not meet on a document they did not include it because there was no other source from which they could fill that information and in view of the limited nature of their mandate, if they found out that it had a polling station name but it didn’t have a code they didn’t add it to the list because there was no other means.”

Annulment of Votes

Justice Baffoe-Bonnie: I think right from the word go, while you are thinking about the pink sheets in terms of quantity, they the petitioners are thinking about the content of the pink sheet so 1,545 pink sheets if excluded for whatever definitely if the petitioner is calling for annulment of votes, 1545 pink sheets, is a tall order and it is going to affect the votes that they are seeking to annul. We agree that for all you know since tests were not ran on it to even access whether it was a duplicated document or not, we might end up at the end of the day if we had 1,545 evaluated they might end up being all duplicated  but as it is now, we are now confronted with a situation where they say they are asking for 11,000 polling stations and their votes to be annulled but from what the KPMG man said, they are now down to 8,675 but 1,545 is sitting somewhere as they suggested that there is a way of finding it using only the president’s set, they were able to unravel 34 and their tests has also indicated that 13,000 pink sheet were filed but we are not going to exclude 1545 be they duplicates or unique on the basis of unclarity of a polling station name when if there is a way of saving those 1,545 pink sheets we don’t we save them and then run tests to find out whether they are duplicates or originals. I think addresses may not be a solution to the problem, we should find a way of looking at the documents that have been set aside for whatever reason…

Atuguba’s Differentiations

Justice Atuguba: We have to differentiate between two matters. The first one being the exact number of exhibits delivered by the petitioners to the Registrar… That is what was foundation of this controversy, quantity whether they were short served, whether they had enough copies for the purpose and all that. The second one is about the 1,545 out of which 34 were clarified. From what Mr. Addison has said and if it is correct, do we need the KPMG to do that? Is he saying that without certain missing information, we can still identify the polling station concern and all that … that is what we are concerned about to see the exact polling station, the results that were covered by it and then the effect the status of the results if they hold or don’t hold so I don’t really see what the problem is. Unless I don’t understand  what is happening

James Quarshie-Idun, lead counsel for the Electoral Commission stepped in and tried to highlight certain aspects of the KPMG report and said that as far as he was concerned the report had been completed.

“It is just that my Lords the application for the referee was made on account of the dispute as regard the number of exhibits that were filed. The referee has given his report and all these 1,545 have been counted and have featured in the report. KPMG has been cross examined and they have left.”

Suppression of Evidence

Justice Annin-Yeboah cut in to remind the EC counsel that the KPMG man could be recalled at any time saying “If you look at the rule, it is so clear. Let’s not suppress evidence in a very serious matter like this.”

Mr. Tsikata entered the fray and told the court that “if the claim being made on behalf of the petitioners is that the KPMG report vindicates them as far as 11, 842 exhibits as in the affidavit, if that is the contention, my Lords it has to see how that contention can be derived from the KPMG report.”

Mr. Addison: The issue about the 1545 has been clearly stated by my Lord Atuguba and my Lord Baffoe-Bonnie so I will not belabor a point on that except to say that the issues about no polling station name, no polling station code, unclear polling station name and so on, is not the fault of the petitioners. These are things that are supposed to be written by the presiding officer  so if it turns out that it is fake or it is not on it, it cannot be visited on the petitioner that is how the pink sheet is and we are saying that nevertheless, these pink sheets can be identified in spite of these missing indices. Because the impression is given as if it is the fault of the petitioners that there are no polling station names or no polling station code or they are unclear. Secondly in the report, there are 2,876 pink sheets which were found in the president’s set which were not in the registrar’s set. There was no unique count done on the president’s set. Our analysis how that shows that out of this 2,876 pink sheets which were in the president’s lot, 871 are unique. Thirdly we have also said that 648 pink sheets used by the respondents in cross examining second petitioner are not at all reflected in the referee’s report.

What Are We Doing Now?

Justice Adinyira: What are you doing now? It should be done formally because I don’t know why we should adding and subtracting. If you were addressing us or if Dr Bawunia was here and was being re-examined or cross examined and its coming, that one yes. Becasue if you are talking then you are addressing us. So go on to something else where you can finish or go on with the cross examination of EC.

Addison: My Lord we cannot continue the cross examination unless these matters are tidy up.

Justice Adinyira: So what you are talking about now is not evidence?

Addison: It’s from the report.

Justice Adinyira: No this one cannot be. It is not evidence. You cannot give evidence. I thought you were going to make an application and you are rather giving us evidence. We can choose to ignore all that you have said because you cannot do that, except through a witness or addresses. As for addresses you can show us the document and make your deductions and suggestions and putting it to us as judges.

Addison: My Lord will come formally. The reason we are addressing the court in this manner is because the original application itself was oral leading to the order for KPMG to audit the pink sheet so we thought that we should make an oral application here but we are ready to make a formal application.

Justice Adinyira: You didn’t even make it clear that you making an oral application. You were just indicating that there is some unfinished business and the rest and we too were also taking the notes then we realized what are we doing. So now I think if you don’t have anything then I think perhaps adjourn the case you prepare better and come.

Justice Atuguba: Well Mr Addison to avoid protraction if we can get clearly what your problem is hindering your cross examination and we may deal with it and proceed.

Addison: My Lord the problem we have is that the number of pink sheets that we have filed is being challenged and we think that it is a matter that should be settled by the court.

Justice Adinyira: And the report has established what was filed. When KPMG was here you tried to tender those your remarks and it was rejected and all those sort of things so far as I’m concerned that was the end of the matter .

Jusitce Atuguba: I have posited earlier that we have two dimensions to it

Mr Tsikata then insisted that the petitioners could not use the KPMG report to delay proceedings and needed to cross examine Dr Afari-Gyan but Mr Addison insisted the issue needed to be sorted out first before they could proceed

Jusitce Atuguba: Apart from the steam of it, the crux in the matter in the end is how many pink sheets are at stack in view of the claims of invalidation. Dr. Bawumia was saying that despite the quadruplication and what not said he used them only once. You identify that complete set which was used only once then we see whether those once these are the areas and these are the faults and so forth that is the crux. This tussle about number I don’t know.

The court adjourned the proceedings for the petitioners to hand over all the pink sheets that they intend to use to cross-examine Dr. Afari-Gyan.

Justice Adinyira again made it clear that the court was not going to entertain any objection in respect of the pink sheets when the case resumes today.