DON'T ENDORSE FRAUD ... ADDISON TELLS SUPREME COURT

Phillip Addison

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, August 9, 2013

Lead counsel for the three petitioners in the ongoing Presidential Election Petition, Philip Addison has called upon the Supreme Court to end fraud and cheating in elections in Ghana by invalidating the Electoral Commission’s (EC) declaration of John Dramani Mahama as President.

According to Mr. Addison, “tolerating cheat and fraud in elections could imply that holding elections itself is not desirable or necessary.”

“If a presidential election is won through fraud, cheating or through the flouting of the law and the constitution, dissatisfied candidates and their followers may create instability and disaffection among the population”, he said.

He explained that the level of fraud that characterized the December 7 and 8 presidential elections should not be allowed to hold.

“Allowing candidates license to cheat, even as little as cannot affect the results will render the election exercise a farce or frivolous. Indeed tolerating cheating and fraud in elections can imply that holding election itself is not desirable or necessary yet proper elections should give legitimacy to winners as Lord Maxwell said long ago…”, Lawyer Addison told the Court on Wednesday during his concluding address to the Lord Justices.

According to him, “the Petitioners have been able to demonstrate, by the show of a preponderance of evidence of invalid votes, which go to affect the declared results” that the 2012 elections were indeed fraught with malpractices.

Mr. Addison says the argument that sleeping dogs should be allowed to lie because elections are costly and re-running them or overturning results could plunge a country into mayhem must be disregarded.

“It has been argued that an election such as that of a president of a country involves a lot of preparation by many actors and costly therefore some violations of the law need not be treated as fatal therefore a repeat of such an election or a change of government so soon thereafter is bound to cost the country more resources. As against these possible arguments, there are considerations or virtues of a free and fair democratic election”, he stated.

History Beckons

In his concluding legal address at the Supreme Court in Accra on Wednesday, the petitioners counsel asked the nine-member panel of justices presided over by William Atuguba to use the opportunity to make history in Africa by cancelling close to 4 million votes in the December 2012 general presidential election results as declared by Dr Kwadwo Afari-Gyan, Chairman of the Electoral Commission (EC).

He said the petitioners led by New Patriotic Party (NPP) Presidential Candidate Nana Addo Dankwa Akufo-Addo were able to lead incontrovertible evidence after alleging widespread instances of violations, irregularities and malpractices in the election.

“This court is being asked to perform a judicial function that no other court has been able to do so far in Africa. In Kenya, Zambia, Uganda, and Nigeria etc. presidential election petitions have failed in a few instances because of technicalities and numbers to effect the outcome.”

He said that it was clear that after about 8 months of adducing evidence where Dr. Afari-Gyan, who was the returning officer of the presidential election, “cut an unconvincing figure with his bundle of evasive, inconsistent and contradictory answers during cross-examination”, the need for legitimacy to be made to the genuine winner was crucial.

“If the principles enshrined in our laws especially the constitution are properly observed during a free and fair democratic election, losing candidates and their supporters will surely be satisfied and therefore allow the country to develop peacefully but if a presidential election is won through fraud cheating, and through the flouting of the law and constitution, dissatisfied members and their followers might create instability and disaffection among the population.”

Mahama’s Excess Votes

Mr. Addison asked the court to look critically at the votes obtained by President Mahama and those attained by National Democratic Congress (NDC) parliamentary candidates put together during the election since what Mr. Mahama obtained was far in excess of the total votes of all NDC parliamentary candidates when there was no ‘Skirt and Blouse’ phenomenon as it is referred to in local parlance.

Mr. Addison told the court that President Mahama as the 1^st respondent had garnered 5,574,761 as against 5,127, 641 by all his parliamentary candidates showing a difference of 447,120.

He also submitted that Nana Addo Dankwa Akufo-Addo, the 1^st 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.

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.”

He said “this is curious and undermines the principle of one man one vote spelt out in the constitution.”

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 proceedings for oral addresses, Mr. Addison had to fend off arguments on additional issues raised by the three respondents’ lead counsel, Tony Lithur, James Quashie-Idun and Tsatsu Tsikata, before setting out the petitioner’s case.

He told court that the respondents had persistently maintained that the 2012 elections were regularly conducted and the court should uphold the results “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.”

“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 3^rd Respondent (NDC) had “resurrected a dead issue” on the number of pink sheet 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 pin 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 presidents (Justice Atuguba) set and out of the number that the respondents confronted the petitioners with, a unique pink sheet 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.”

“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 1^st 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 1^st respondent and 1^st petitioner was 325,863.

“This result should be taken in comparison to the outcome of votes 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 this includes votes in favour of Nana Akufo-Addo.

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

He said that assuming without admitting that the court were to use the respondent’s own preferred data set which is in the region of 9000 pink sheets, the 1^st respondent would obtain 2.365,265 representing 43.12 per cent while the 1^st 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 respondent’s argument that the petitioners did not lead evidence to show that people indeed voted twice to justify over-voting is 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.”

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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.”

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 poured 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?”

EC’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 quotes 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 couldn’t 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 then taken to the collation center 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 is 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.”

NDC’s Case

Mr. Tsikata moving his address submitted that the petitioners are 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 1^st 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 are 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.”

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 day of the judgement will be delivered 15 days after August 14, 2013, that is August 29, 2013.