SHOWDOWN AT SUPREME COURT...LAWYERS FINAL BLOWS

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday, August 7, 2013

The battle line is drawn as lawyers of all the four parties in the Election Petition pending at the Supreme Court make their oral addresses before the nine-member panel led by Justice William Atuguba.

The court last week allotted 30-minute to each of the lead counsel in the election make verbal addresses after submitting their written addresses after which the court will fix a date for ruling possibly within two weeks after tomorrow.

While the petitioners led by Philip Addison will argue ferociously to drum home the reason why some 4million votes in the 2012 presidential elections should be nullified, the respondents represented by Tony Lithur for President John Mahama; James Quarshie-Idun for the Electoral Commission (EC) and Tsatsu Tsikata holding forth for the National Democratic Congress (NDC) will attempt to punch holes in the petitioners’ case..

Abraham Amaliba a member of the NDC legal team, told Citi FM that Ghanaians should expect his team “to forcefully make our arguments to the effect that…the sins of a presiding officer should not be visited on the innocent voter. Basically, we shall tell to the Justices our argument and we will pray to them to uphold our argument.”

However, Gabby Asare Otchere-Darko, a lawyer with the petitioners’ legal team explained that the petitioners have supported their case with relevant documents that would help the court to make it determination.

“Apart from the address, what counsel for the petitioners did was to attach volumes of all the…analysis in terms to show where the exhibits are and the also, the polling station, the kind of infraction that you are looking at and also the number of votes involved so that is a volume on its own and it’s just to assist the court if they need to make reference to it,” he said.

Petitioners Arguments

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 & 8, 2012 presidential election by Electoral Commission (EC) Chairman, Dr. Kwadwo Afari-Gyan.

 “The decision that this Honourable Court will finally arrive at will have fundamental and far-reaching consequences for the future of democracy in this country.

“It will either affirm the commitment of citizens to our democratic journey and bolster their confidence in democratic institutions and the rule of law, or undermine their belief in political and legal institutions of the nation,” they said in their final address to the court, calling for the annulment of over 4million votes because of irregularities.

The Call

In the 176-page address spiced with citation of interesting authorities as well as thought-provoking analysis of the evidence adduced before the court in the last seven months, the petitioners submitted that “a case worthy of the all reliefs that they seek has been made out.”

“It is the respectful submission of petitioners that what all citizens expect from the highest court of the land is the interpretation and enforcement of the Constitution and the law and their application to the evidence adduced in this trial without fear or favour, as the judicial oath of the learned justices of this Honourable Court requires of them,” the petitioners prayed. 

Petitioners on EC

According to the petitioners, the EC who is the 2^nd respondent, by its 2^nd Amended Answer filed on 3rd April, 2013, generally denied the petitioners claims, saying “the thrust of the Answer filed by the 2nd respondent was to defend stoutly the elections it had conducted.”

Discrepancies In Register

“The material averments of the 2nd respondent were that the initial provisional figure it announced of the voters register was 13,917,366. After the conduct of registration of foreign service officials, students abroad on government scholarships, other Ghanaians working abroad in international organizations and the late registration of service personnel returning from international peacekeeping duties, the figure increased to 14, 158, 890. After processing data to include persons who established that they had valid voter cards and removing names which ought not to have been there on account of multiple registrations and wrong inclusions, the figure came down to 14, 031, 793.”

They submitted that the EC had stated further that after everything, “the correct figure that it forwarded to all parties and which was used in the declaration of results in the December 2012 elections was 14, 031, 793.”

According to the petitioners, the EC “thus, commenced its series of declaration of errors (that ostensibly characterised the conduct of the December 2012 elections) by declaring the figure of 14, 158, 890 it announced as the total registered voters in the 2012 elections as an error. In place of the statutorily mandated provisional voters’ register [Regulation 21(2) of C. I. 72], 2^nd respondent alleged that it furnished to political parties daily printouts of the registration effected at each registration centre.”

Biometric Verification

The petitioners said the EC had submitted that “each and every voter was verified once before being allowed to vote for the candidate of his/her choice and that anyone who could not be verified biometrically was turned away.”

However, the petitioners hold that in Dr. Afari-Gyan’s own evidence at cross-examination, he told the court that some important personalities in the society had special exemptions when it comes to voting without biometric and even went ahead to give the famed Omanhene (traditional leader) scenario.

Even though the EC denied that any person voted without biometric verification and said upon receipt of the further and better particulars it carried out an analysis of the pink sheets in question and the analysis confirmed that no voters were allowed to vote without biometric verification at any polling station.

“This statement of the 2nd respondent, in the humble view of the petitioners, is very material because, as the evidence led at the trial showed, the incidence of people voting without biometric verification was evident on the face of the pink sheets. The 2^nd respondent’s averment, it is respectfully submitted, exposes the mischief with which that claim by the 2nd respondent was laced.”

NDC Hangs On KPMG

Although, the nine-member panel trying the Presidential Election Petition has ruled that the KPMG report is ‘auxiliary’ to the proceedings, the NDC remains faithful to the report.

In the 69-page address, attached with a huge volume of list of polling stations used as exhibits by the petitioners and as captured in the KPMG report, the NDC legal team apart from arguing that the petitioners were not able to prove their case, wants the court to focus largely on the KPMG report in dismissing the petition.

Flashback

It is recalled that on Tuesday, July 9, 2013, the nine-member panel presided over by Justice William Atuguba made it clear that the referee’s report “is auxiliary to the court” and that “since the materials upon which the petitioners are standing for their case are the same as they themselves filed in this court, they are in a position to demonstrate with these materials, thus say the pink sheets by their own analyses with the aid of the referee’s report the respective heads of alleged malpractices in their case.”

The court also said that “any perceived difficulties still lingering can be cleared through cross-examination of the 2nd Respondent,” after the respondents had vehemently opposed the petitioners “application for leave to remit part of issue to referee for further consideration thereof.”

After endorsing the petitioners application, the court directed that the petitioners list out the 1,545 polling stations which they claimed they had been able to identify despite the un-clarities for Dr. Afari-Gyan to respond to.

NDC’s Contention

According to the NDC, whose lead counsel Tsatsu Tsikata could not meet the July 30, deadline to file his address and had to do so the next day, the referee, KPMG, found the number of polling stations that were uniquely identified to be 8,675.

The NDC contended in its 100-paragraph affidavit that “in the claim by the petitioners in their 2^nd amended petition, the verifying affidavit of the 1^st petitioner that results in 11,916 polling stations were being put in issue and the subsequent claim in the affidavit of 2^nd petitioner to have filed 11,842 exhibits in 24 mutually exclusive categories numbering and representing 11,842 polling station results which are being sought to be annulled have been found to be untrue.”

According to the NDC, the referee, KPMG, found the number of polling stations that were uniquely identified to be 8,675 and out of that number 399 “must be immediately taken out as they appear in exhibits that were outside the range indicated in the relevant paragraph 56 of the 2^nd petitioner.”

The ruling party submitted that “there are also 93 of these 8,675 polling stations that were not within the polling stations that were disclosed by the petitioners as part of their case when the court ordered further and better particulars of the 11,916 polling stations.

“Worse still, as further elaborated below in the sections of these submissions on the evidential burden not being discharged, the exhibits of the petitioners are often contradictory, with the same polling station sometimes featuring under different exhibit numbers, or one exhibit number being used for two different polling stations.”

The NDC said “there is total confusion in the exhibits and thousands of them must be wholly discounted as not usable or being incapable of providing evidence. As we argue further below, it is impossible to make a cogent case out of this exhibit mess which petitioners should have cleared up by now, but have failed to do so. That failure is irredeemable.”

Over-vote

On the issue of over-voting, the NDC insisted that “There were no evidence that any voter in the election voted more than once or that any person not entitled to vote was allowed to vote. The claims of over-voting of the petitioners were, in large part, admitted not to hold and were abandoned by Dr. Bawumia under cross-examination.”

They held that “no complain by the agents of the candidates at polling stations or constituency centres regarding over-voting was recorded anywhere,” saying “claims still pressed by the petitioners are also untenable on a proper interpretation of information provided on the pink sheets and available and must all be rejected.”

No Biometric Verification

“The challenges of the country going through biometric verification devices for the first time in elections in Ghana were successfully overcome and no one voted without going through the biometric verification process,” the NDC argued.

They said that the testimony provided by Dr. Kwadwo Afari-Gyan, Chairman of the 2^nd respondent, about the C3 Column on the pink sheet was unchallenged and added that the veteran elections administrator had “explained the problems the Presiding Officers had in filling that part of the document.”

Absence of Presiding Officers Signatures on Pink Sheets

The NDC said that the absence of signatures of Presiding Officers on the pink sheets “does not justify annulment of votes that were cast lawfully in the exercise of the constitutional right of citizens.”

They argued that “while failure to sign constitutes breach of the duty imposed on that election official by the constitution, nowhere does the constitution require or justify the annulment of votes cast and, hence, the results announced at the polling station because of such a breach.”

“The Presiding Officers can be compelled to perform their duty to sign, by order of mandamus. Annulment of votes in these situations would not only be an unconstitutional deprivation of the right to vote of the citizen but also amount to punishing innocent voters retroactively for the omission of the Presiding Officer.”

Serial Numbers

On same serial numbers, the 3^rd respondent said that “the claim by the petitioners that unique serial numbers were provided to polling station pink sheets was baseless and there was no irregularity involved in the same serial number appearing on more than one pink sheet,” adding “the attempt to nullify votes on this ground is absurd and to do so would also unconstitutionally deprive millions of citizens of their right to vote.”

“Serial numbers are not, and have never been, security features on pink sheets, unlike ballot papers. Petitioners have provided no legal basis for this category of their claim,” the held.

Unknown Polling Stations

They said that “claims about unknown polling stations were also baseless and petitioners who deployed agents on behalf of Nana Akufo-Addo cannot in good faith make these claims. Claims about different results being given for the same polling station are also not warranted.”

Vote Padding

The NDC said that “the claim about vote padding in favour of President Mahama and reduction of votes of Nana Akufo-Addo (except in one instance of an error in transposition affecting 80 votes), as well as allegations about improper receipt  and transmission of results at the offices of Superlock Technology Limited (STL) were withdrawn and were also not borne out by any evidence.”

“It is our submission that the petitioners have woefully failed to establish the alleged irregularities, violations etc, nor have they proved that the alleged irregularities, violations, etc affected the outcome of the 2012 presidential election.”

“We will make it abundantly clear to this court that the case presented by the petitioners comes nowhere close to discharging the burden of proof that lies on them to establish their allegations and warrant reliefs they seek from this court.”

“The documentary evidence provided by them and the oral testimony of their witness, the 2^nd Petitioner, contains admissions about the results declared which fundamentally undermine the case of the petitioners to confirm the position of the respondents that the elections were conducted freely and fairly and that the results declared by the Chairman of the 2^nd respondent that the 1^st respondent was the winner reflected the sovereign will of the people of Ghana and were lawful.”