PINK SHEET DRAMA: NDC ADMITS OVER VOTING

Nana Akufo-Addo and Dr. Bawumia leave court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Wednesday, May 8, 2013

The ruling National Democratic Congress (NDC) appears to be admitting over-voting which is one of the irregularities being contested in the landmark Presidential Election Petition at the Supreme Court.

Throughout the trial, the NDC as 3^rd respondent together with President John Dramani Mahama (1^st respondent) and the Electoral Commission as 2^nd respondent have all vehemently denied that over-voting occurred during the December 7 & 8, 2012 general election.

They have stated in their answers to petitioners’ affidavits, there was no over voting as being claimed by the petitioners.

The respondents have always insisted that the issue of over-voting together with, pink sheets with same serial numbers and voting without biometric verification which are major irregularities as claimed by the New Patriotic Party (NPP) presidential candidate for 2012, Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman, Jake Otanka Obetsebi-Lamptey were due to either ‘administrative’, ‘clerical,’ ‘human’ or ‘trans-positional’ errors.

The Admission

However, Tsatsu Tsikata lead counsel for the NDC on his 5^th day of cross-examination of Dr. Bawumia - principal witness in the petition - brought out an original pink sheet for identification by the witness which he said contained over-voting but the petitioners had deliberately refused to add to their case.

He said he was trying to prove a case that over-voting also occurred in the stronghold of the NPP in Asokwa in the Ashanti Region and in his estimation; the petitioners had brought the petition in bad faith without adding that.

Surprise Pink Sheet

The attempt by Mr. Tsikata to ‘spring a surprise’ with original pink sheets as the petitioners counsel Philip Addison put it generated heated legal argument between the legal teams of both teams.

Counsel: Dr. Bawumia, you have noted that in these results that you are seeking to have annulled, you have exhibited pink sheets where the voting went in favour of the first respondents, you noted that?

Witness: Well, not all the pink sheets went in favour of the first respondent

Counsel: What I had shown to you and what we were asking you questions about, you said it was not lost on you that these votes had inured mainly to the benefit of the first respondent; it was not lost to you?

Witness: That’s right, the violations, irregularities and malpractices, largely inured to the benefit of the first respondent.

Counsel: Now, and in fact, from your allegations of over-voting, if any of those things that you alleged, if they happened in areas of the country which are strong-holds of your party, you would also want to have them annulled, would you not, according to your view of the law?

Witness:  Yes, if anybody has any complaint about over-voting under the law, you can bring it up like we have brought our complaints up.

Counsel: Yes! Am going to show you-and I’m going to ask respectfully that this be identified, I’m not going to tender it through him-, but I will like him to identify this pink sheet (Passes on the pink sheet to the witness. But he was cautioned to first tender the list of the 64 instances that he wish to present to the witness to identify.)

Counsel: (After tendering the list) I’m going to ask you to identify this pink sheet from LA Primary School, Asokwa…My lords, am asking him to identify it; it’s not an exhibit in evidence, am asking him to identify…(Counsel for petitioners, Philip Addison interrupts)

Mr. Addison: My lords, we are objecting to this business of identifying a document that is not emanating from the witness; he cannot identify it. This is not the case that the third respondents are making; we have seen their pleadings, we have seen their affidavit and we are here because of the petition and not on some other matters; matters that have not come before this court and then you are asking the witness to identify a document that is not coming from him.

Dr. Kwabena Adjei and Kwabena Agyapong

Justice Atuguba: From what he is saying, it means this document is not one of those they have served on you.

Counsel: No, my lords, if they have served it on us, I wouldn’t ask him to identify it. I’m asking him to identify it because it is a document that I am now showing to him, and I prefixed my showing him with a question. It is clear to the witness why I prefixed it with a question. My question was: if what he alleges is over-voting in these various pink sheets that he has provided, and in relation to which he said that most of the benefit of the over-voting inured to the first respondent, if there were other … (Interrupted by Justice Atuguba)

Justice Atuguba: We’ve got all that…

Counsel: I want him to identify it and I’ve indicated that it is the pink sheets. My learned friends are not saying that it is not a pink sheet. It is a pink sheet that we have in our custody, we are attaching the original. From our perspective, all pink sheets of course are duplicates copies, but from our perspective, our copy is the original one that we have, and we are also attaching a photocopy of it, but at this stage, I just want him to identify the pink sheet and I cannot see any possible objection.

Justice Atuguba: Have you abandoned your objection or you are still on it (referring to the counsel for the petitioners)?

Mr. Addison: No, we have not abandoned it. We insist that this is not a document coming from the witness and he cannot identify it. My lord, we made available to them, 11, 842 pink sheets, they had all the time in the world to go through it and they take us by surprise by springing this pink sheet and asking the witness to identify it, he cannot identify it! My lords, secondly, it is not part of their case, they are not the petitioners in this case, we have brought forth all the polling stations that we have problems; this has never been part of their case.

Justice Atuguba: Whose case, the petitioners’ case?

Mr. Addison: The third respondent…yes, they’ve not raised it anywhere that they have other areas that there was over-voting. They are even disputing the over-voting that we have brought here.

Counsel: My lords, we have the witness under cross-examination and the witness under cross-examination has indicated that according to the case that they have brought before you, if there is any polling station in respect of which what he has characterized as over-voting occurs, the same consequences that he want to apply to polling stations which he has seen clearly as polling stations where the first respondent won the elections, the same should apply.

That was the witness’ answer in cross-examination. Now my lords, the witness himself in exhibit MB-AC, the witness indicates how the team that he led focused on the examination of some 24,000 statement of polls and declaration result forms, also known as the pink sheets, is the primary records at each polling station, so we have the witness’ own evidence of an examination of 24,000 to start with, where they focused on, that is the witness’ evidence, not mine. And what the witness is seeking to do, according to their amended petition…., petitioners say, when these figures are annulled and deducted from the total votes declared by the Chairman of the second respondent on 9^th December 2012, the results that ought to be determined are as follows: The witness here is talking about 26,002 polling stations throughout the country, there is no way the case of the petitioners can be determined without an examination of 26,002 polling stations and the results in those polling stations, there’s no way that that can be done. My lords, the petitioners have set out a table in which on the face of that white sheet, they are asking your lordships to annul over 55% of votes cast across this country for the first respondent... an when it comes to their candidate, they are asking you to annul 28% of those votes, that’s the case that they are making before your lordships; it’s about just 11,000 polling stations; it’s about 26,000 polling stations in respect of which the second respondent made a declaration. There is absolutely no way that your lordships can entertain this petition without a reference to their own paragraph 23….that clearly would be the most unjust determination that any court could be out to make, especially my lords, when in our answer…(Justice Vida Akoto-Bamfo interrupts)

Justice Akoto-Bamfo: Counsel, are you sure you are not entering into some other areas? An objection has been raised and I think you must confine your submissions to those issues.

Counsel: My lords, the objection is that a document cannot be identified… (Justice Akoto-Bamfo interrupts again)

Justice Akoto-Bamfo: ….that the witness cannot identify the document because it is not his, basically that is not his.

Counsel: My lords, once the document is pink sheet that is not dissimilar to any of the pink sheets that has been exhibited by them and identifying a pink sheet cannot be a mysterious act, he’s very familiar with pink sheets, that is why both his counsel and I have agreed on the ‘Dr. Pink Sheet’ designation, so this identification of a pink sheet is not beyond this witness. The only difference is that this particular pink sheet is not one of those he tendered……

Mr. Addison: My lords, two short matters: one is that the witness is on record as having said that he has examined 24,000 pink sheets, there is no evidence before this court that suggest that this pink sheet that the third respondent is seeking to tender is included in the 24,000 that the witness has examined out of 26,002. There is no such evidence before the court, this is not the witness’ document, he cannot identify that document.

Counsel: I do not seek to tender it….( The nine judges confer with each other on how to handle the objection)

The Ruling

Justice Atuguba: We have considered the objection raised and we have come to the conclusion that the question posed by the third respondent’s counsel is covered by Section 74 of the Evidence Act, 1975, NRS Degree 323 and paragraph 27 of third respondent’s amended answer dated 26^th February 2013. Accordingly, the objection is over-ruled.

Before we proceed, we wish to make one thing clear; that the questions relating to polling agents signing etc. those questions have been sufficiently visited and the documents also evidence them anyway, so let’s leave out those lines of questioning and proceed with the rest.

The Precedence

However, the justices ruling runs counter to earlier ruling when they said the EC cannot tender a pink sheet through the witness.

The court in a 6-3 majority decision dismissed attempt by the EC counsel to tender in evidence pink sheet of the polling station where Dr. Bawumia cast his ballot during the election.

The rejection followed an objection raised by Mr. Addison over the tendering of the document by the EC since he said it had no relevance to the issues in evidence.

Silent Protest

There was some kind of silent protest in the courtroom, the moment the court overruled the objection of Mr. Addison because the same court had earlier ruled that the EC, which is the official custodian of election materials, could not tender a pink sheet when James Quarshie-Idun, the commission’s counsel was cross-examining Dr. Bawumia.

The court suggested that Mr. Quarshie-Idun could tender the document through the commission’s witness when the time comes for that person to mount the witness’ box.

Initially, Mr. Tsikata had brought out only the Asokwa polling station pink sheet for the purposes of identification through Dr. Bawumia and after the court accepted the document as an ‘identified as exhibit’, counsel attempted to bring more to prove that the petitioners deliberately failed to make a case of over-voting and said that showed the petition was in bad faith.

Give-And-Take

At a point Mr Tsikata put it to Dr. Bawumia that on the face of the pink sheets the irregularities the petitioners were claiming were just errors and that the petitioners had also made errors in their exhibits.

However, Dr. Bawumia rejected counsel’s suggestion and insisted that if there were errors, it should not affect ‘someone’s presidency’, and also told the court that the errors as Mr. Tsikata put it ‘inure’ to the benefit the 1^st respondent.

He told the court that Mr. Tsikata’s contention that NPP agents signed the pink sheets or did not file any protest did not prevent the EC from declaring the results and therefore counsel’s suggestion was untenable.

When suggested by Mr. Tsikata that election officials were under ‘great pressure’ on election day, Dr. Bawumia said “We had every confidence that the EC will organize a credible exercise,” before insisting that they had confidence in the NPP agents who had signed to attest to what transpired at the polling stations.

Mr. Tsikata then moved to another area where he asked the witness about the tally sheets used by the party agents to tick and crosscheck people who came to the polling stations to vote.

Otiko Afisa Djaba and Sir John

Justice Paul Baffoe-Bonnie came in to remind Mr. Tsikata that he had gone ‘on and on’ with a particular question and the area he was venturing could be left to the court for interpretation but counsel replied that Dr. Bawumia was seeking to annul votes particularly that of President Mahama and “we needed to exhaust the issue of whether he is entitled to it.”

Justice Baffoe-Bonnie replied Mr. Tsikata that “ I am not saying you are not allowed to do your cross-examination. I said you have dwelt on the area for too long.”

Justice Atuguba then said “These are matters for address,” and added that questions of tally sheets and duties of polling agents were matters that were well-known.

Pathologic Questions

At one point when Mr. Tsikata felt he was not getting the answers needed from Dr. Bawumia, he told the court that the witness was ridiculing himself to which Justice Atuguba responded that “he is at liberty to ridicule himself if he wants.”

Counsel: Dr. Bawumia you received numbers from your polling agents at each polling station after the results have been declared, did you not?

Some NPP gurus

Witness: We received the pink sheets from most of our polling stations.

Counsel: No, the polling sheets came later, but on that night, you received numbers?

Witness: From some polling stations, not all polling stations.

Counsel: I’m putting it to you that you received numbers from all polling stations.

Witness: You are wrong; it’s not true; unless you were controlling the telephones (Laughter from the court room)

Counsel: My lord, the witness is not allowed to….(Interrupted by Justice Atuguba)

Justice Atuguba: You see, sometimes, there is pathology in your line of questioning…There is a composite question asked much earlier on-when you were taking him through the procedure-, whether at the close of the polls the ballots are emptied and counted in public and so forth…, he answered all these things…..

Counsel: My lords, the question doesn’t relate to what went to the collation centre and what went to the ‘Strong Room’. The question I’m asking him is about their gathering of information from each polling station as a party, that’s the question I’m asking.

Justice Atuguba: Yes, that’s why I’m saying that from the procedure you took him through….that was covered.

Counsel: My lord, with the greatest respect, nothing that I’ve asked him covered the situation of their party receiving numbers from polling stations…. (Banter continues between Justice Atuguba and Counsel)

Sitting continues today.

SHUT UP! TSATSU BARKS IN COURT

Dr. Mahamudu Bawumia after his testimony

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday, May 7, 2013

Tsatsu Tsikata, lead counsel for the ruling National Democratic Congress (NDC) in the Presidential Election Petition yesterday threw caution to wind when in an open court asked lead counsel for the petitioners, Lawyer Philip Addison to ‘shut up’ with no reprimand from the Justices sitting on the case.

In the full glare of television cameras beaming the hearing live, Tsatsu barked at Mr Addison who had objected to his line cross examination of the principal witness of the petitioners, Dr Mahamudu Bawumia “Can you shut up”. 

Mr. Addison demanded that the NDC lawyer withdraw the insulting words but the judges overlooked it as if insults were allowed at the Supreme Court, setting bad precedent in the court proceedings.

Interestingly, Justice William Atuguba, chairman of the nine-member panel hearing the petition rather advised the petitioners legal team to seek redress from the bench if any when Mr Addison protested over Mr. Tsikata’s indecorous language.

The court could not ask Mr. Tsikata to withdraw his comment and the NDC counsel was also clearly not prepared to retract his statement either.

Court’s Direction

“Let us go back to the rules of the game. All complaints should go to the bench for appropriate redress,” said Justice Atuguba, when it became obvious that Mr. Tsikata was not going to apologize for his choice of language.

Mr. Tsikata was in his 4^th day of cross-examination of Dr. Bawumia when the incident occurred and this further raised the tension already associated with the petition.

Addison’s Worry

Mr. Addison had objected to the line of cross-examination of the 2^nd petitioner by Mr. Tsikata and in the process insisted that the NDC counsel kept repeating his questions all day and that a particular question being asked was ‘irrelevant’.

Justice Atuguba then came in to find out from Mr. Addison to explain irrelevance of the question and in doing so, Mr. Tsikata came in again but as the give-and-take ensued, the NDC counsel screamed “Can you shut up?” as if he was talking to a school boy.

This did not go down well with the petitioners camp when Mr. Addison told the court that they were also capable of exhibiting similar behaviour and asked the court to tell Mr. Tsikata to use ‘decorous language.

Johnson Asiedu-Nketiah aka General Mosquito and Kwadwo Owusu Afriyie aka Sir John

The Banter

Counsel: Can you remember two or three or four [people]?

Witness: In terms of helping us to do that, Akoto Ampaw for example, was around to put this together. Gloria Akuffo was around also...

Counsel: And who else?

Witness: My team was also around….(Mr. Addison interrupts)

Mr. Addison: My lords, what’s the relevance of these questions?

Justice Atuguba: Can you explain the irrelevance (Referring to Philip Addison who was unable to explain) If you can demonstrate, I will uphold it (the objection)

Mr. Addison: The people who were present when these documents were stamped is relevant?

Atuguba: …well it’s your case….(Counsel for third respondents intervenes)

Counsel (Tsikata): My lords, it is clearly relevant, the witness is telling us quite differently from earlier evidence; he is telling us that in respect of some of these numbers and so on, he himself cannot explain them. If he cannot explain them, we have to have recourse to other possibilities, and that has to be who else was present. My lords, this matter of who was present with the swearing of the exhibits is going to be very important in our submission legally. I do not need to say more than that at this stage because these irregularities that we are finding on the face of the exhibits have a lot of significance….(Interrupted by Philip Addison)

Mr. Addison: My lords, is counsel addressing the court… (Tsatsu Tsikata charged at him angrily)

Counsel: Can you shut up! Can you let me finish?

Mr. Addison: My lords, these rude words that counsel has been using, we are capable of replying, and I think the court should call on him to use more decorous language and withdraw. We are capable of replying him, he should know that.

Counsel: These interruptions are really unnecessary…I think they are very trying…. (Justice Atuguba intervenes)

Justice Atuguba: Alright, please let’s go back to the rules of the game; all complaints should be addressed to the bench for appropriate redress.

Nana Akufo-Addo leaves court

Counsel: My lords, my submission was that it is very relevant; it is very relevant to know who was present at the swearing of the affidavit…. (Philip Addison interrupts)

Addison: We complained about the indecorous language used by counsel; is he withdrawing or he wants to go on without withdrawing. This has been going on for some time?

Justice Atuguba: (Waving the protest off) let’s make progress, what I’ve said evens the slate and we proceed from there (this statement elicits uncomfortable murmur from the courtroom). Alright, this is what we have done… (More murmurs) would you keep quiet! Proceed (referring to Mr. Tsikata).

Counsel: My submission is that it is extremely relevant to know who were present and we are asking these questions in order to get to the truth of this matter. The witness is not telling the truth.

Justice Atuguba: Could you elaborate on the relevancies so that we rule?

Counsel: Yes my lords, it is with respect relevant, because the witness himself claims that he is unable to explain what he can see on the face of the document which he has attached as exhibit; he’s testified that there were other people who were there helping and my lords; we need to know who those other people were…. (Interrupted by Justice Baffoe-Bonnie)

Justice Baffoe-Bonnie: Your question was: Can you name two of them? He has named two, so why do you want to go on with anybody else…anybody else? Do you have to go like that?

Counsel: No, no…

Justice Baffoe-Bonnie: I think you said: Can you name two or three? That one is on record, and he has named two, so who else…

Counsel: My lords, he went on to add that his team was also there (Continuous banter between Counsel and the bench. Counsel for first respondent , Tony Lithur, steps in to defend Mr. Tsikata, but Philip Addison raised a protest because he insists his objection was aimed at Mr. Tsikata. This forced the Judges to rule on the disagreement).

Justice Atuguba: Well…this is our ruling (Clears throat): The objection of the petitioners is sustained insofar as questions relating to who of their legal team were present are concerned. The intervention of Tony Lithur regarding the objection of the petitioners to Tsatsu Tsikata’s question on grounds of relevancy is disallowed.

Tsatsu Insults Judges?

A member of the petitioners’ legal team, Gloria Akuffo described Tsatsu’s outburst, as “unfortunate situation”.

Speaking during a post-court interview, Madam Akuffo who identified Tsatsu Tsikata as her law lecturer, said “In fact I have in my so many years in practice at the bar, never come across such behaviour”.

Nana Ato Dadzie

She explained that it was a normal court practice for a counsel to rise up and raise an objection. At such times, opposing counsel was supposed to resume his seat.

He could respond after his colleague on the other side had finished.

She inferred that Tsatsu's conduct may have shown disrespect not merely to Addison but to the Justices because “anything you say in court is addressed to eminent Judges”.

After The Ruling

After the ruling, Mr. Tsikata sought to know from Dr. Bawumia who were part of the team that assisted the Commissioner of Oath to stamp and mark the exhibits that were brought to the court by the petitioners.

Dr. Bawumia mentioned one Johnny Attafuah, Ronald, Harry and Emmanuel as some of the people who helped to prepare the exhibits and there was disagreement between counsel and the witness over the placements of the exhibits.

Mr. Tsikata told the court that some of the petitioners’ exhibit numbers on the pink sheets were different from what was put in the box reserved for the Commissioner of Oath and suggested to Dr. Bawumia that it was an attempt to confuse and deceive the court.

Dr. Bawumia insisted that it was not deliberate and added that since they made changes in respect to Exhibits K and S, a careful assessment of the further and better particulars they were asked to provide could not confuse anybody.

Earlier Proceedings

Counsel: There is a new list of exhibits that we have shown to your counsel and we are going to show to you (Mentions the exhibits in the list numbering 183 and shows witness the exhibits)… You will notice there is an exhibit number that has been cancelled, do you not?

Witness: Yes my lord.

Counsel: Can you read what is cancelled?

Witness: It appears to be MBK 514.

Counsel: MBK 514, is that what you read?

Witness: Yeas, that’s what it looks like, it looks like a ‘K’ or an ‘L’

Counsel: You are not sure yourself? That is fine, but that has been deleted and then above it, there is another exhibit number which has been sort of truncated

Witness: Yes, this appears to have been photocopied; that is what I’m saying, we’ve seen a lot of photocopying in these exhibits, so I’m not quite sure…

Counsel: Do you see a Commissioner for Oaths signature?

Witness: Yes my lords

Counsel: And is that the Commissioner of Oath before whom you swore the affidavit?

Witness: Yes my lords.

Counsel: Now, photocopy or no photocopy that you claim, this is one of the exhibits that you attached to your exhibits, is that not right.

Witness: That’s correct.

Counsel: And are you able to assess what that exhibit number that appears to be truncated is?

Jake Otanka Obetsebi-Lamptey

Witness: No my lords.

Counsel: In order to put this matter beyond any dispute, I’m going to give you the second [exhibit] on that list then we can have a conversation. It is MB-H-142 I believe, just confirm the exhibit number

Witness: I think it is MBS 192…there is a 670, I think there is a line between 670…it is not clear….

Counsel: So you are clear about the exhibit number at the top. In this case you are very clear about it?

Witness: No, am not because MBS, there is a 670, there is a 190 written on top. It is not clear how the two are related.

Counsel: This is your exhibit, not mine and you were there when it was even attached, I was not there….

Witness: What was  in the exhibit number is 670

Counsel: So on the top is the exhibit MB-S something; you are not clear what it is…

Witness: …there is a cancellation…

Counsel: Can you confirm that in the Commissioner for Oaths stamp, he refers to a different exhibit number?

Witness: He refers to the 670 that was cancelled.

Counsel: So there is a discrepancy between the exhibit number at the top and the exhibit number that is in the Commissioner for Oaths

Witness: That’s what I’m saying; it is not clear what the relationship is, maybe he thought it was still the same 670. I cannot speak for that.

Counsel: Dr. Bawumia, it is clear that the two numbers are different, is it not?

Counsel: I’m just saying that there is an MBS 670 and it appears cancelled. 

One doesn’t know whether we are dealing with a ‘7’ there or just the ‘670’ or ‘192’. He has maintained 670’…unless he is here to confirm exactly what he meant, I cannot tell.

Counsel: So on the face of this exhibit, we cannot tell whether there is a discrepancy or not, is that your suggestion?

Witness: I’m just saying that if I had to go, I will go with the ‘670’ because that is what is clear on the face of the pink sheet.

Counsel: You see Dr. Bawumia, I want you to be fairly straight-forward with this court; in the box where the Commissioner of Oath’s stap is, what is the number there?

Witness: ‘670’ my lord.

Counsel: Earlier, you said the top ‘670’ is cancelled, is that not?

Witness: I said that it “appears” cancelled, but I’m not sure….i don’t know.

Prof Ken Attafuah, Gloria Akufo and Ursula Owusu

Counsel:  Dr. Bawumia, this is your exhibit so we will only need to depend on you to tell us….

Witness: This is why I’m saying that when I look at the exhibit, I will stick with the ‘670’

Counsel: You will stick with the 670 which has been crossed at the top?

Witness: Yeah, this is what I’m saying, there is a ‘7’ and he’s put a line on the ‘7’, whether it has been cancelled or not, I don’t know what the Commissioner of Oaths was intending at that point, but he’s put the ‘670’ in his exhibit number.

Counsel: And this numbering of exhibit was done in your presence?

Witness: Not all the numbering was done in my presence. A lot of different groups were doing numbering of exhibits, so I wasn’t present in the numbering of all exhibits

Counsel: So you are not able to tell us anything beyond the observation that you have making on the face of the document?

Witness: Yes my lords

Counsel: Presumably there were other people…who else were there

Witness: There were many people who were there…

Counsel: Like who, because maybe we would need to call them to explain to us. Who else was there?

Witness: My lords, there were tons of people, I can’t remember everybody, there were a lot of people helping us…

Timid Judges

Justice Gbadegbe: Counsel, before we go on, I wish to make an observation, and in doing this, I have the support of my colleagues. We all know that this is the first case that we are trying in this constitutional era, it’s bound to come out with difficulties and challenges, but much as we are open to fair criticism, some of the criticisms are going beyond bounds; to describe judges as timid  is not healthy for the administration of justice. We would like to urge you all to be circumspect in whatever you say. After all some of the criticisms are good for the development of the law, but others tend to undermine the authority or personality of the judges. Thank you.

Counsel: My lord, I do not know specifically what you are referring to. I do not believe that any of my colleagues and I can be accused…you were not addressing me?

Justice Gbadegbe: No, no, no…..not the lawyers in court. For instance, when we delivered the [Bernard] Monarh case, perhaps we were wrong, but that was our decision. Certain articles that were on the website describing the judges as timid etc, is not healthy for the development of the law; It is not proper, that is all that we wish to say, we are reluctantly saying these things because we know of the responsibilities that we all owe to the Ghanaian society; all of us-the legal system-, to do this case in a manner that shows civility and so please, we are urging you to be circumspect and use language that is civil, that shows some courtesy to the court. We have the authority to deal with people, but we don’t want to. In the days of old, the judges who were here were very assertive, it is not as though those powers have eroded over time, but we just want to do this work in a manner that at the end of the day, we would all say that we were healthy partners in bringing about justice to our people.

Counsel: My lords, may I respectfully say that I share entirely in the sentiments that you have expressed in relation to the responsibility that we all have [especially] at the bar…. I may say that unfortunately, as you have said yourself, there seem to be an extraordinary spirit of partisanship in respect of which these matters are being addressed. We regard that as somehow unhealthy; it is our respectful view that it is possible for these matters to be dealt with in the spirit of which there is disagreement, but civil disagreement….( The other counsels shared the same sentiments as each rose to declare support for the need for civility in the matter at hand. Mr. Tsatsu Tsikata).

Atuguba’s Observation

“I want to fill in the gap of time by saying this: certain dissections are made on rulings and judgments which are not based on what actually takes place here. The worrying thing is that some lawyers even do it. The last time somebody came here, Amekudzi or so and a number of objections were raised, but our ruling never threw him out on the basis that his motion was not supported by affidavit. Some lawyers have made submissions both in the electronic and print media that it was a legal point so affidavit wasn’t called for.

 I don’t know whether they even saw the ruling, the ruling never threw him out on any such ground. So I will appeal to the lawyers that they preserve the integrity of the process; to go by the actual record of what takes place…make sure that what you are saying is really what took place. The Journalists; if they don’t understand, get across to the lawyers, they would explain to you what it that has happened is…we want to be liberal, but you see, and too much liberality spoils things; an institution can be broken down through too much liberality. These things are for our own benefits, lets preserve them.

Sitting continues today at 9:30am.

TSATSU GOES SLOW

Petitioners

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday May 3, 2013.

The laborious manner in which Tsatsu Tsikata, lead counsel for the ruling National Democratic Congress (NDC) is cross-examining a star witness in the presidential election petition, yesterday attracted what looked like another subtle protest from the nine-member panel of Supreme Court Justices hearing the case.

The style of Mr. Tsikata’s cross-examination of Dr. Mahamudu Bawumia which takes about 10 to 15 minutes to ask sets of questions was first brought to the court’s attention by Phillip Addison, lead counsel for the petitioners, who said it was a tactics adopted by the NDC counsel just to delay the trial.

Since Mr. Tsikata took over from the Electoral Commission’s counsel, James Quarshie-Idun, he has used two and half days in cross-examining Dr. Bawumia who is the 2^nd petitioner but it appears he is not going to complete the exercise anytime soon.

The judges expressed similar concern about the style of cross-examination of Tony Lithur, counsel for President John Dramani Mahama, when the felt he was not helping to make any progress in the matter.

Yesterday for instance, there were about five sets of questions on pink sheets divided into lots which were repeatedly asked throughout the proceedings by Mr. Tsikata.

Mr. Tsikata would ask Dr. Bawumia to identify sets of pink sheets after which he would ask whether the sheets have been duplicated and once the witness answers the question, he would find out if NPP agents signed those documents and when the answer is given, he would ask if the petitioner’s party agents raised protest at the polling stations or collation centres and once the answer is given, he would ask the witness to announce the results on the face of the pink sheets.

Tsatsu Tsikata and Tony Lithur leave the court's premises

As the whole process became repetitive, boring and time wasting, Mr. Addison cut in to complain about Mr. Tsikata’s style.

Addison: My lords, we have just been served with another set of pink sheets under the heading “Pink Sheets”. I don’t understand why we have being served in Lots, if you have a thousand or two thousand duplicate sheets; I don’t see why he cannot compile a list of a thousand duplicates and let’s deal with it in one stretch. This business of bringing it in Lots, I do not understand what purpose it’s supposed to serve. Apart from that, the questions that he keeps repeating; five questions can apply to all these Lots…This is a very tiring process that we are going through here and it’s intended to delay, that’s all that it is.

Justice Atuguba: My observation is that we ourselves have seen it, but unless we misunderstood it, it seems the exhibits are dealing with different categories.

Counsel (Tsikata): My lords, I have indicated that the difficulty in trying to assist in expedition has meant that we have different people putting lists together as they go through the pink sheets. We are trying to be helpful, and so different people are putting the list together and as the lists are completed, we bring them forward. If we are going to do the whole list before we present all of them, I think that will take even more time.

Justice Atuguba: In that case, you prepare your Bills of Laden (according to the categories) before we come to sit, then it goes fast. But when you come here and your sorters have to do adhoc sorting.

Counsel: My lords, it’s not adhoc at all, the point is that this situation is entirely the creation of the petitioners; we have a situation in which duplication, triplication, quadruplicating…I mean, this is something completely unusual my lords. We are entitled to have from their exhibits, a clear set of exhibits that speak to their case, we are entitled to that.

He continued: “We rather have to sort out and show…my lords we are leading inexorable to a very important point in respect of these duplications, and it seems to me that in a situation where they claim that there are 11,000 and more exhibits at stake, no one can accuse us of being in anyway, the people who are causing the delay.

“We would of cause show that we do not have 11,000 and these duplications are meant to give that misleading impression. But am saying that for the moment, we are doing our best in a situation which is completely beyond our control; it is entirely the creation of the petitioners, he protested.

Gatecrasher! Tony Benony Amekudzi

Justice Atuguba: I understand that, but it appears you are trying to counter-claim in respect of what you allege they did in some measure, I mean, when we close, and you get home, why don’t you sort out as many as you can.

Counsel: My lords, that’s exactly what we’ve been doing.

Justice Atuguba: That’s why the day before the holiday, I joked that you people could come and sit here and do this horse-trading before today’s sitting. We shall be making another direction (guideline of procedure of cross-examination).

Justice Dotse: I think we appreciate your point, the concern is that, like you have done in the case of the triplicate and quadruplicate pink sheets, you put them all in separate lots, so now that we have come to the duplicate pink sheets-even though they may be in higher numbers-, the suggestion is that if you can put all those together so that the cross-examination of a sample of them would apply to all those on the duplicate pink sheets, so that we can move further.

Counsel: My lords, in this situation, I respectfully decline your invitation.

Justice Atuguba: No, no, no, but you see, in this exercise, you are the shipper, and you prepare your bill of laden ahead of time.

Counsel: My lords, we are doing our best, in a situation that is completely the responsibility of the petitioners, I mean, it is totally unusual that you can have the situation that we are in. Where exhibits that the party is supposed to provide, we are finding so many duplicates, so many sources of confusion, so many misleading aspects and we have to sort them out. My lords, with the greatest respect, we are doing our best in a situation that is not of our making. We would continue to do our best in recognition of the directions that you’ve given, but because of the numbers, your lordships will also appreciate that it would actually be slower if we have just one list.

Justice Atuguba: Oh, yes, that one we appreciate, but we feel you can do with more expedition. I‘m under the impression that you wait until you come into the court and then you start up the process.

Gloria Akufo

Counsel: No my lords, you may have noticed that my learned friend has been outside a couple of times because we’ve actually been out providing some of the counsel on the other side with copies….

Justice Atuguba: And they are sorting outside?

Counsel: Yes, we look at it first outside…..

Justice Atuguba: But all that starts after we’ve started sitting?

Counsel: No, we’ve done some during the break as well. The point I’m making is that, after we’ve gone out and that is done, when it comes back-naturally-, senior counsel would also want to assure themselves. Everybody is now trying to do some quality control…

Justice Atuguba: Yes, but that can still entail some expedited compaction, because if you have sorted out and you have to see, but when they are sorted out and you send them to [the other team of lawyers], then you do the test cases-you know, two or three as test cases, then it goes in, then its faster….What we would do is that, every morning, we would sit at 9.30am, so that before we come, you have the time to do all these things [sorting] as much as possible.

Counsel: Very well (He continues his cross-examination)

Sitting continues on Monday May 6, 2013.

It’s time-wasting-Gloria Akuffo

Nana Ato Dadzie

Spokesperson for the petitioners’ legal team, Gloria Akuffo decried the time-wasting tactics of Tsatsu Tsikata's cross-examination in the hearing of the election petition at the Supreme Court.

Mr Tsikata on day 10, and three days into his cross-examination of the witness, was essentially trying to fish out duplication, triplication, quadruplication of pink sheet exhibits.

He has so far fished out 65 of such cases and said there are more pink sheets he intends to show the court as evidence of attempts by the petitioner's to deceive the court.

But Dr. Mahamudu Bawumia, a key witness in the case has insisted that despite these errors "you don’t win the case by the quantity of your papers but the quality of your analysis."

After three days and only 65 pink sheets covered, petitioners appear dissatisfied with Tsatsu's "piecemeal" approach.

Its a "drudgery", Madam Akuffo said, for Tsatsu to ask the same "five sets of questions" for the similar pink sheets over and over again.

She said the Registry could rectify the problem of duplicate and triplicate pink sheets.

"If you have so many of them [pink sheets] that are duplicate one would have thought that you would bring them all forward", she offered to advice.

The New Patriotic Party (NPP) lawyer believed the problem was a result of a "mix up" during "re-boxing" and said the problem could have been rectified at the registry of the Court.

She expressed her satisfaction that the Presiding Judge, Justice Atuguba sided with them.

"Clearly" its a "time-wasting mechanism" she declared.

Although counsel for National Democratic Congress (NDC), Ato Dadzie conceded the "pace appears to be slightly slow", he also insisted that its "the only way you can get to the truth".

 For a whole day, Tony Lithur, lead counsel for President Mahama kept asking the 2^nd petitioner, Dr. Mahamudu Bawumia virtually same questions on different categories of over-voting to which the witness appeared to give the same answers on the emerging issues.

However, as the exercise appeared to be boring, one of the panel members, Justice Jones Victor Dotse tried to offer what he said was his ‘personal’ suggestion to Mr. Lithur as to aid expeditious trial.