ADDISON JABS EC! OVER MAHAMA VOTES

Nana Akufo-Addo in court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, August 8, 2013

The petitioners in the ongoing Presidential Election Petition have asked the Supreme Court to look critically at the votes obtained by President John Dramani Mahama and those attained by NDC parliamentary candidates put together during the December 2012 general election.

It emerged that the total votes declared for President Mahama by the Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan on Sunday, December 9, 2012, was far in excess of the total votes of all the NDC parliamentary candidates even though there was no ‘Skirt and Blouse’ phenomenon as it is referred to in local parlance.

President Mahama curiously garnered votes far in excess of 470,000 against the combined total votes of the 275 NDC parliamentary candidates even when the NDC had more of its candidate elected as MPs.

The petitioners, who are the New Patriotic Party (NPP) 2012 presidential candidate, Nana Addo Dankwa Akufo-Addo, Dr Mahamudu Bawumia, running mate to the NPP presidential candidate and Jake Otanka Obetsebi-Lamptey, NPP National Chairman, are challenging the declaration of John Dramani Mahama as President in the December 7 and 8, 2012 presidential election by Electoral Commission Chairman, Dr. Kwadwo Afari-Gyan.

Prof Frimpong Boateng & Tsatsu Tsikata

Mahama’s Excess Figures

Addressing the court on the final day of the landmark election petition which has traveled to its eighth month, Mr. Addison told the court that President Mahama as the first respondent had garnered 5,574,761 as against 5,127, 641, which is the total combined votes of all his parliamentary candidates, showing a difference of 447,120.

He also submitted that Nana Addo Dankwa Akufo-Addo, the first petitioner and presidential candidate of the New Patriotic Party (NPP) obtained 5,248,898 votes and his parliamentary candidates had 5,248,882 which showed a difference of only 16 votes.

The Majority in Parliament, according to Mr. Addison, secured 121,221 votes less than the Minority asking, “What accounted for this difference? It cannot be skirt and blouse phenomenon because the NDC are in the majority.”

Mr Addison said: “The 1st Petitioner obtained a total of 5,248,898 votes as against a total of 5,248,882 by all NPP Parliamentary candidates, showing a difference of 16. However the first Respondent (Mahama) obtained a total of 5,574,761 as against 5,127,641 by all NDC parliamentarians, showing a whopping difference of 447,120. This huge difference cannot be explained away by what is popularly called ‘skirt and blouse’ voting because the NDC had a majority in Parliament. This majority in Parliament is curious and undermines the one man one vote principle enshrined in the Constitution because a majority of Ghanaians voted for the NPP parliamentarians who now find themselves in the minority in Parliament. ‘‘The NPP candidates garnered 121,241 votes more than their NDC counterparts who now are in the majority in Parliament.”

He drew the court’s attention to the fact that with the NDC’s Majority in Parliament, it could not be said that the electorate voted for President Mahama but not his parliamentary candidates.

Counter Arguments

At yesterday’s proceedings, Mr. Addison had to fend off arguments on additional issues raised by the three respondents’ lead counsel namely, Tony Lithur, representing President Mahama; James Quashie-Idun, representing the EC and Tsatsu Tsikata for NDC, before setting out the petitioners’ case.

Commencing his legal oral address, Mr. Addison told the court that the respondents had persistently maintained that the 2012 elections were regularly conducted and the court should uphold the results adding “yet when they are confronted with the primary record of the poll which is the pink sheet they resign on the basis that there are defects in it.”

Lawyers for Petitioners (L-R): Stepehen Dapaah Addo, Kwame Akufo, Philip Addison, Kwaku Asirifi and Frank Davies

“It is bizarre to note that it is based on these defective pink sheets that the results were declared,” he noted.
He said that the third Respondent (NDC) had “resurrected a dead issue” on the number of pink sheets submitted by the Petitioners adding that according to the referee (KPMG) a unique pink sheet of 8,875 in the Registrar’s lot were discovered out of which 1545 had been excluded.

He said that upon an order of the court, 1234 pink sheets were also discovered as unique by the second Respondent (EC).
Mr. Addison said that another 804 pink sheets were found to be unique in the President’s (Justice Atuguba) set and out of the number that the respondents confronted the petitioners with, unique pink sheets of 648 were found to be unique set making a total of 11,431.

“One box in the president’s set was not counted and the boxes in the possession of the Registrar were also not counted, this goes to show that indeed over 11,000 pink sheets were filed,” he argued.

He said that the petitioners prior to the KPMG’s count had deleted over 700 polling stations bringing the number down to 11,132 adding that at the time of filing the address, the petitioners were now dwelling on 10,119 pink sheets adding “all shown to be unique and includes the 22 unknown polling stations.”

Yaw Boateng Gyan, Asiedu Nketiah & Victor Kojoga Adawudu

“The Respondents cannot pretend they did not know the polling stations in controversy because the Petitioners in their further and better particulars gave details of all the polling stations they intended to rely on and so they have not been disadvantaged in anyway.”

He said that no new pink sheets were added by the petitioners in the further and better particulars and there was no need to replace any pink sheets.

The Declaration

On declaration of the results by the EC, Mr. Addison said the first Respondent won by not more than one per cent of the total votes cast at the election and not valid votes cast holding that “the difference between the first respondent and first petitioner was 325,863. This result should be taken in comparison to the outcome of votes of the NPP and NDC presidential and Parliamentary candidates.”

The Categories

Mr. Addison said that when all the categories of violations, irregularities are combined for the 10,119 polling stations, a total of 3,931 339 were deemed to be invalid and not 5 million votes as the respondents would have the world believe and it also includes votes in favour of Nana Akufo-Addo.

“When the results are annulled the first respondent will be reduced by at least 2 million and that of the first petitioners will be reduced by 1 million votes. The first respondent will now have 41.79 per cent of valid votes cast and the first petitioner will have 56.85 per cent of valid votes cast.”

He said that assuming without admitting that the court were to use the respondents’ own preferred data set which is in the region of 9000 pink sheets, the first respondent would obtain 2.365,265 representing 43.12 per cent while the first petitioner would attain 2,365,265 representing 55.45 per cent.

“Even using the respondent’s own dataset, the violations, irregularities and malpractices the petitioners have complained about would have material effects on the results declared.”

Over-Voting

He said that the respondents’ argument that the petitioners did not lead evidence to show that people indeed voted twice to justify over-voting was flawed because, “Voting is a secret affair and the only time one can find cases of over vote is only after voting had taken place and the results counted.”

Biometric Verification

He said that the question of no biometric verification of voters is well spelt out in the Constitutional Instrument that regulated the election and stated that the biometric verification of a voter was mandatory.

NPP MPs

He said C.I. 75 provides that every voter must go through biometric verification before voting and no discretion was given for people to avoid being verified but the EC sought to explain away that there could be exceptions saying “Regulation 30 (2) which underscores the point that it is mandatory that every voter undergoes biometric verification process.”

He said that the right to vote was subject to rules and regulations and reference to valid votes meant that other votes could be invalid.

No Signatures of Presiding Officers

He said that the provision that required Presiding Officers to sign the pink sheets before declaration of the results was entrenched in the Constitution and pointed out that all other regulations apart from this entrenched provision were delegated to the EC in running elections.

Unknown Polling Stations

He said that the results of 22 unknown polling stations complained about by the petitioners went into the declaration.

Duplicate Serial Numbers

Mr. Addison told the court that the EC was not able to explain the reason for printing two sets of pink sheets and said that made it possible for the integrity of the electoral process to be compromised.

“Duplicates and triplicates are answerable so it showed that more than two sets were printed,” adding that Dr. Afari-Gyan’s testimony at the close of evidence showed how the pink sheets were abused.

Same Polling Station Codes with Different Results

He said that same polling station codes that had different results all went into the declaration of Dr. Afari-Gyan and urged the court to critically assess it.

Mr. Addison urged the justices to annul the votes affected by violations, irregularities and malpractices.

President Mahama’s Position

Mr. Lithur was the first to move his oral address and he urged the court to look at the conduct of the NPP officials during the election saying “the nature of the allegations are really quite instructed in view of the subsequent petition that was brought to this court because they differed in substantial measure from the bases of the earlier allegation made by the NPP that votes had been rigged and fraudulently so with conspiracy between EC and the President for the benefit of the President.”

Prof. Frimpong Boateng and Tony Lithur

He said after President Mahama was declared winner of the presidential election, the petitioners formed a task force to compile evidence to have votes annulled and, “They pored over paper novel propositions like duplicate serial numbers and wanted legitimate votes unduly annulled.”

“The petitioners limited this serious exercise to what happened only on the face of the pink sheets with Dr. Bawumia only confessing that ‘you and I were not there’ during cross-examination.”

“They did not even include the polling agents in the task force that was set by the NPP and chaired by Dr. Bawumia to find out the alleged irregularities.”

“What did the agents do in the face of the alleged irregularities?” he asked, saying “they are mandated by law to not to sign pink sheets when there are clear violations of the law. That is basic. Yet they signed and we are being told there were irregularities and the only evidence is on the face of the pink sheets?”

He said “they assembled a number of gentlemen, obtained pink sheets as many as they could get according to them about 24,000, collected computers, sat in an office and began a desk bound exercise to find out irregularities as they claim on the face of pink sheets.”

Mr. Lithur said that “under cross-examination, there was no indication that there was a single polling agent in that group. That was how evidence was compiled to bring before your Lordships, this grand petition as it were to have votes annulled in order to make the first petitioner the president of this country and the second petitioner the vice president of this country.”

He said that failure to take steps to report alleged irregularities by the polling agents were good enough evidence that there were no irregularities and added that by Dr Bawumia’s own admission, no polling agent was questioned about what they claimed they had found on the face of those pink sheets.

“In fact it would appear that they just pored over paper and came out with novel propositions like duplicate serial numbers in respect of which they want over 2 million votes of Ghanaians to be annulled.

“They claim the pink sheets are the primary sources of election and once they have presented the pink sheets which were fraught with mistakes, they have their evidence. Even on that pink sheets the petitioners are asking the judges to ignore the fact that their polling agents signed those pink sheets to authenticate what happened at the polling station; they did not complain about any irregularities in prescribed forms and are asking the judges to ignore the fact that there was not a single polling agent who was brought before the court to testify how these irregularities took place.

“If that is the case, then I submit that in future, no polling agent must be invited to police the polls and that everybody must sit in their homes and watch the proceedings and after elections, anybody can proceed to court and ask for annulment of votes and when they are challenged, they will say their evidence is on the face of the pink sheets.”

NPP & NDC gurus

He said “we should not belittle the exercise of voting. It is about votes. Should it be limited to what happened on the face of the pink sheets? Where did they get the pink sheets from? From these same polling agents,” adding “we have still not seen the polling stations which the petitioners are alleging there were irregularities.”

He said that the issues of over votes and absence of serial numbers, absence of signatures “are very weak attempts to have votes disqualified,” and said Dr Afari-Gyan during his testimony had said that the 2012 general election was the most transparent in Ghana’s history. He also said that Mr. Mahama won the election “fair and square.”

Electoral Commission’s submission
Mr. Quarshie-Idun in his submission referred to Bawumia’s testimony that the party after the first day of voting which is 7th December 2012, thought they were winning and quoted the renowned Economist in that regard.

He quoted further from Bawumia’s testimony that after he was questioned whether the basis of his party’s confidence of winning on the first day was based on pink sheets. But in Dr. Bawumia’s answer, he said they were based on assessments from their polling agents across the country.

Counsel then asked rhetorically what changed after the first day and said Dr. Bawumia could not tell the court what exactly changed but he, Mr. Quashie-Idun submitted forcefully that “nothing changed.”

He said the votes were counted openly after the close of poll as the first level of verification after which the results were taken to the collation centre and then to the strong room where everything was checked by the accredited agents of all parties.

Mr. Quarshie-Idun urged the court to consider the importance of counting the ballots in public since it was a key pillar of transparency, saying “your Lordships should be skeptical about calls for annulment because of errors in inputting votes on the pink sheets.”

Making references to Mr. Addison’s cross-examination of Dr. Afari-Gyan’s recommendations he made in Nigeria, Mr. Quashie-Idun said that the petitioners all throughout the hearing did not question the process of verifiability of Ghana’s electoral system.

He said that the six categories of irregularities presented by the petitioners, had not “established the causal link between those allegations and results declared by EC.”

He said that out of the of 26,000 polling stations, only one example of discrepancy between votes counted at the polling station and collation centres was presented by the petitioners, saying “this discrepancy is 80 votes where instead of writing 97 votes, the presiding officer wrote just 17 and it did not have any effect on the results declared.”

He accused Addison of misrepresenting the testimony of his client, Dr. Kwadwo Afari-Gyan, when Addison claimed that the electoral officers forgot to bring Form 1C to the voting centre and so could not enter results for column C3.

He said it was “a white lie” for the petitioners to claim that Dr. Afari-Gyan told election officials to enter zero on blank spaces on the pink sheet.

NDC enters the fray

Mr. Tsikata submitted that the petitioners were asking the court not to allow over 5 million votes count and said they were also asking the judges to change the declaration made by the EC chair.

He said in doing that the petitioners “provided a new computation of results whereby the first petitioner be made president. These are the stark claims of the Petitioners and it should be dismissed.”

“They have admitted that none of the voters did anything wrong. They have also admitted that no one voted more than once and yet they are asking that valid votes be annulled.”

He said that the petitioners were asking for what he called “a retroactive penalty for those who stood in a queue and voted, saying “the law is quite clear on the retroactive penalty.”

“The right to vote is fundamental and there cannot be retroactive penalties. Under the terms of the Evidence decree somebody who lacks understanding and knowledge of what happened cannot proceed to make claims and demands so if Bawumia was not present at the polling stations and will say ‘you and I were not there’ his evidence should not be taken seriously.”

Security on red alert

He said that Dr. Bawumia as a witness “let his side down,” saying “his documentary evidence in the beginning was in respect of over 11, 842 spread into 24 categories and gave votes in respect of each category for annulment.”

KPMG Sanctuary 
He said that Dr. Bawumia insisted in cross-examination that “these were the polling stations and provided the pink sheets,” arguing that “this claim proved to be false because a referee was asked to count. The evidence of the referee indicated that the number of the polling station is a little above 8,000.”

“What we now have in the closing address is 10,119 polling stations. Before that, in the last date of address another figure has been given to be 10,081. This cannot be a legitimate basis to annul votes.”

He said that even on the basis of the 10,081, there was no basis for the annulment of votes since the “exhibits provided are outside the range of the appendix as provided by Dr. Bawumia.”

“In their address, the exhibit ranges, in the K series have suddenly increased from 70 to 700. They cannot at this stage ask the judges to use contradictory figures to make a judgment.

“In the P series there are 2120 exhibits which do not make sense. 1060 have different polling stations and exhibits numbers.”

He said that “the rules of the court are clear. The Petitioners shall provide not less than seven set of exhibits to the Lordships. In many instances they have only provided one.”

Mr. Tsikata said that there were also 93 of the exhibits which were not within the further and better particulars and more than 5000 out of the 8000 pink sheets were not properly before the court as evidence.

“This respectfully goes to the heart of the issue. It is not a plea to use technical ground to water down the Petitioners’ claim. They have not even discharged the burden of evidence and the judges cannot be asked to assess those evidence.”

“The claims of over voting are based according to them on the premise that one man one vote but no evidence has been brought to show that one person voted more than once,” saying “Dr. Bawumia even acknowledged that one cannot make the allegations of over voting just on the basis of the pink sheet alone.”

He said that on the admissions of Dr. Bawumia alone the allegations of over voting could hold adding, “In respect of biometric verification the case has been already addressed by my fellow Respondents and I associate myself to that claim.”

He said that if the Presiding Officer failed to sign pink sheet, it was not fair to ask that people who had voted should have their votes annulled because of their failure to sign.

He said that “the most outrageous claim” is the claim of duplication of serial numbers saying, “It is the weakest link in an already weak claim. It is the claim on which the petitioners are seeking to annul over three million votes. There is no law backing this claim for annulment of votes when there is the duplication of serial numbers.”

Philip Addison

He said that the judges could not be asked to make a declaration on 24,000 polling stations instead of the 26,000 adding “The Petitioners’ claim is factually empty with no supportable evidence being produced; legally pathetic; the petition is poor in arithmetic.”

The court adjourned proceedings until Wednesday, August 14, when the justices would seek clarifications from the parties.

Justice William Atuguba, presiding over the nine-member panel, said the judgment would be delivered 15 days after August 14, 2013.