WHO IS PRESIDENT OF GHANA...COURT DECIDES, AUGUST 29

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, August 15, 2013

On Thursday August 29, 2013, the Supreme Court will finally decide who was validly elected President of the Republic of Ghana during the December 7 and 8, 2012 Presidential Elections.

The Electoral Commission (EC) through its Chairman Dr. Kwadwo Afari-Gyan had on Sunday December 9, 2012 declared John Dramani Mahama, candidate of the ruling National Democratic Congress (NDC), President but the declaration was subsequently challenged by the opposition New Patriotic Party (NPP) candidate, Nana Addo Dankwa Akufo-Addo and two others.

The court yesterday said it had reserved ruling for August 29, 2013.

At the close of evidence, after about seven months of trial, the court fixed July 30, for all the parties to file their addresses but all parties with the exception of the NDC, the third respondent complied with the court’s order and had to file the next day.

They were then given August 7, to address the court orally after which the nine-member panel, presided over by Justice William Atuguba, fixed August 14 for the judges to seek clarifications from the parties.

The exercise yesterday was a straight forward affair between the judges and all lead counsels in the petition and it was done without any objection whatsoever from the parties.

Justice Atuguba was the judge to fire the first salvo when he asked Philip Addison to address the court on the petitioners pink sheets used as exhibits since he said they “are fluctuated back and forth and their tracking is difficult and their consequential impact  on the assessment of the results.”

Mr. Addison then enquired from Justice Atuguba whether he was referring to the re-categorisation of some of the exhibits and the judge said “That is part of it.”

The petitioners counsel took his time to go through the exhibits, explaining to the court where all the polling station pink sheets filed as exhibits could be located.

Original Polling Stations

“The original number of polling stations that the petitioners were relying on was 11,842. These polling stations were fully set out in the further and better particulars  together with the various infractions so that each polling station was identified together with its infractions in the further and better particulars,” he said.

He said that subsequent to the 11,842 there had been what he called “various reductions”, adding “first the 704 that the petitioners voluntarily deleted and then down the line, after various reviews, the petitioners decided not to rely on some of these pink sheets. Eventually, it came down to 10,119 polling stations.”

He said that the criteria of inclusion of the polling stations in their address were that it must be captured in the further and better particulars and all the 10, 119 were captured as such.

He said it must be supported by the affidavit of the second petitioner (Dr. Bawumia) or appropriately re-categorised with the leave of the court and they must have unique polling station codes adding “so that except for the duplicate polling station code category which necessarily will involve double polling station codes, they all have unique polling station codes.”

Mr. Addison also said that it must be captured in the KPMG report or it must have been used by the respondents in their cross examination of Dr. Bawumia and lastly, they were not part of the 704 polling stations which were deleted by the petitioners, saying “My Lords this is the basis for arriving at the 10,119 polling stations and we say that in the analyses each polling station is used only once.”

The Breakdown

According to Mr. Addison, the breakdown of the 10,119 polling stations was that the petitioners got 7,999 from the Registrar’s set saying “This is the unique ones out of the 8,675,”  and then 690 unique polling station codes from the registrar’s remarks column.

He said that out of the 1545 excluded in KPMG, they got 690 unique polling stations and added that they also got 804 from the president’s set and 60 from the remark of the president’s set.

Mr. Addison said that the respondents had used 566 in cross-examination and the final figure should reach 10,119.

Recategorisation Of Exhibits

He explained the instances whereby exhibits were recategorised saying “it involved moving a polling station from one category of violation or irregularities to another. For a example, a polling station may have initially been placed in the over-voting only category which is labelled MBC. But after further scrutiny, it may have moved to the over-voting and no signature of presiding officer category which is MBK so that re-categorisation basically just involves the change of violation from what was indicated in the affidavit. 

It did not involve the introduction of new polling stations and the total of polling stations that underwent re-categorisation is 150 polling stations and it has been set out in table 2 of volume 2a of our address.”

He said the total number of votes involved for the 150 polling stations re-categorised were 60,215.

Evidential Burden

Justice Julius Ansah, a member of the panel then asked Mr. Addison to explain to the court the petitioners position on evidential burden which according to the judge, the petitioners had said it was not to be discharged by them (petitioners).

“We fully discharged that burden. We have voluntarily reduced the numbers we are relying on to 10,119 and we have indicated what these polling stations are and none of them is new. They have all been listed in the further and better particulars and they were included in the affidavit of the second petitioner,” Mr. Addison explained.

Justice Ansah again enquired how many pink sheets were deleted in the over-voting category and Mr. Addison said it was 83 in total.

Respondent’s Dataset

Justice Jones Dotse took the mantle and asked Mr. Addison to explain to the court what the petitioners meant by the respondent’s preferred dataset used in the petitioners address.

According to Mr. Addison, “the respondents have argued that polling stations or pink sheets for that matter should only be counted if they met a certain criteria which was that; that they fall within the original categorisation of the affidavit of petitioners, that all re-categorisation should be ignored, even if the names, codes and number of polling station are specified in the further and better particulars.”

He also said that the respondents had insisted that the pink sheets should be within the original range of labeling for each category in the affidavit of the petitioners and all mislabeled pink sheets should be ignored adding “even if the names, codes and number of polling stations are unique and can easily be identified and are specified in the further and better particulars, they are saying that those should be excluded.”

According to Mr. Addison, the respondents had also insisted that “the pink sheets must have been captured in the KPMG report and even excluding those that were excluded in the KPMG report that is the 1,234 which were found to be unique.”

He said “if we go according to what they are seeking and we exclude all those pink sheets, we get to 9,995 pink sheets which is what we refer to as the respondents preferred set as supposed to the 10, 119 which we used in our analysis.”

Over-Voting Clarification

Justice Paul Baffoe-Bonnie also sought clarity on the petitioner's over-voting definition which he said the petitioners had defined in three dimensions and wanted to know why petitioners are claiming over-voting merely because C1 on the pink sheet was blank.

Mr. Addison replied that it was only where C1 was blank that “we are relying on and we have no other pink sheet showing A1 or B1 being blank.”

Mr. Addison alerted the court that Justice Dotse had pointed out some errors on in the address but they had discovered that “there are errors in the index so maybe if the index can be ignored, the actual tables are correct. The problem is with the index.”

EC Counsel Grilled

Justice Atuguba asked Mr. Quashie-Idun about the statutory consequences of electoral irregularities that the EC alone identified in its address and the EC counsel read out the People’s Law 1992 PNDC L 284 as amended by the representation of the People’s Amendment Law 1992 PNDC L 296 and said it provided that a high court hearing an election petition will uphold an election conducted in accordance with the provisions of ROPAL.

Justice Rose Owusu intervened and told Mr. Quashie-Idun that the high court was referring to parliamentary elections not presidential but counsel said that it could also refer to presidential election since that was the initial under PNDC Law 284.

Justice Atuguba asked Mr. Quashie-Idun to throw more light on the law cited because the provisions seem to be ‘quarrelling’ saying “I doubted whether this was the full act” and counsel replied that “I would respectfully submit that a C.I .cannot make modifications to substantive laws,” to which Justice Atuguba said “well that is so but if the act permits it, it can be done.”

Justice Dotse then asked the EC counsel to explain to the court the EC’s position on same polling stations sharing same serial numbers where they said one was used for special voting and sought to know what happened to those sharing different names and asked him to take his time to answer that question.

Mr. Quashie-Idun told the court that some of the numbers mentioned by Justice Dotse had all been cancelled while the rest were wrong polling station codes, adding that “a cancelled pink sheet of Finger of God church has found its way into the Petitioner’s address.”

Justice Dotse then said the EC should have taken advantage the 30 minutes address to point out this ‘anomaly’.

Atuguba Takes On Lithur

Justice Atuguba turned his attention to Tony Lithur who represents President Mahama from saying “you have taken the position that biometric verifications is not necessarily by FO and fingerprint that failure to go through the biometric verification doesn’t have any consequence. Now looking at the provisions, I think regulations 30 (2), I find the construction difficult there. Read it and tell us exactly what containing the true construction of it is... there is definition of what biometric verification is.”

Mr. Lithur replied that biometric verification was a process of capturing biometric data which involved pictures of voters and the purpose was to identify if a person was eligible now once the process of registration was done then the person’s right to vote was activated.

“So even if his finger print cannot be identified and his face can then there is discretionary power to allow them to vote,” adding that finger-print verification was not the only form of verification.

Justice Baffoe-Bonnie cut in to say that FO recognition was for face only voters whose finger-prints were not captured but if a voter's finger print had been captured then he/she needed to move beyond FACE ONLY identification to finger print verification.

Tsikata’s Retroactive Application
Justice Atuguba sought clarity from Mr. Tsatsu Tsikata, NDC counsel on the principle of annulling election results and said the ‘Appiah V Attorney Gen’ quoted by the third Respondent was partly evenly balanced but also appeared ambiguous in relation to the petition at hand.

Tsikata then traced the history of the case and said it was in respect of the basis that certain regulations had not been complied with and said that regulations that were not applicable were used.

Justice Atuguba asked him to address the court on ‘Retroactive application of the law in relation to invalidation of the results and Mr. Tsikata said that Article 49 should not “by any stretch of imaginaton lead to the annulment of votes.”

He said the there was a duty on both the party agent and presiding officer to sign adding “if in the discharge of the public duty, the parties do not dispatch their duties, it does not mean that votes be annulled.”

“There is a frowning of penalizing people retroactively. You cannot seek to penalize the presiding officer if there is no specific law mandating so, much less to seek to penalize the voter who had no role to play in the presiding officer's failure to uphold the law.”

Mr. Tsikata later insisted that the petitioners mixed up their exhibits and they could have sought the leave of the court to do re-categorization which they failed.

Justice Doste then came back to Mr. Quashie-Idun, asking him to explain how the pink sheets are filled out before during and after the election by Presiding Officers.

The EC counsel admitted that the Presiding Officers indeed must sign the pink sheets but there was no column for the officers to write their names after filling out the form before votes are counted.

The judge also asked Mr. Addison whether in previous elections, pink sheets had serial numbers but Mr. Addison said because the EC printed duplicate sets the problem of same serial number arose.

He said even though there was no specific serial numbers, once the pink sheets were distributed to the polling stations they became locked in those polling station and therefore were unique to those polling stations.