I'M CONFUSED SAYS AFARI-GYAN ON OVER VOTE

Nana Akufo-Addo & Dr. Mahamudu Bawumia

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday, June 4, 2013

There was drama yesterday at the Supreme Court when Electoral Commission (EC) Chairman Dr. Kwadwo Afari-Gyan told the packed court that he was confused, after he had been asked to define over-voting.

“I think I am not too clear in my own mind what the connotation of over-vote is,” Dr. Afari-Gyan said, to the bewilderment of the audience at the ongoing Presidential Election Petition.

The EC Chairman, before the election, is on record to have defined over-voting which is one of the irregularities being challenged by the petitioners but in the witness’ box yesterday, he gave another definition which he said was ‘classic.’

Over-voting Definition

Continuing his evidence-in-chief, Dr. Afari-Gyan who is being led in evidence by James Quarshie-Idun - the EC’s lead counsel – shifted from his long-held definition that over-voting occurs when the number of votes cast exceeds the number of ballots issued to voters.

He then appeared to give another definition which says that over-voting occurs when the number of votes cast exceeds the number of registered voters and said he was relying on that one.

James Quarshie-Idun

Coincidentally, the situation of over-voting occuring when the number of votes cast exceeds the number of registered voters had been given by the ruling National Democratic Congress witness Johnson Asiedu-Nketiah while the situation of over-voting occuring when the number of votes cast exceeds the number of ballots issued to voters was given by the petitioners.

Judge’s Query

The moment the Commissioner said “I think I am not too clear in my own mind what the connotation of over-vote is,” but one of the justices on the nine-member panel Paul Baffoe-Bonnie queried him: “But “you are the boss?”

He then offered to throw more light on his definitions by going back to the definition provided by the respondents and sought to attack his own widely-held definition which was also relied on by the petitioners saying their (petitioners) definition was based solely on the pink sheet.

“My Lord I have a problem with any definition which limits over-voting exclusively to what is on the face of the pink sheet," he said, adding “over-voting is not determined using pink sheets but by using the biometric verification machine.”

Justice Baffoe-Bonnie appeared to disagree with Dr. Afari-Gyan’s new-found definition saying that it was not possible for a polling station to record 100 per cent turnout. 

“A voter may be dead or simply unavailable to vote,” he said. 

Dr. Afari Gyan however insisted that for now, he was sticking to his ‘classical definition’ where he said over-voting should be defined as the situation of over-voting occuring when the number of votes cast exceeds the number of registered voters.

Philip Addison

Either or situation

Mr. Quarshie-Idun then handed over to Dr. Afari-Gyan, a particular pink sheet containing figures in the accounting column and the column for accounts on voting without biometric verification that did not add up.

The EC Boss tried to explain the anomaly, indicating that some numbers could be ignored or substituted for others.

Witness: …I think the way to verify this; settle this is an either or situation. It would be by recourse to the biometric verification device. … (Justice Baffoe-Bonnie steps in to seek clarification)

Justice Baffoe-Bonnie: Dr, I still have a problem with this [explanation]. If this paper has been put in to indicate that some people in the polling station voted without biometric verification, you are trying to explain that situation by this either or situation, but you haven’t been able to really explain if it is put in a situation of over-voting , you still don’t get your answer to that.

Witness: No, that [over voting] is a different issue altogether, but I’m explaining here, we have the same figure occurring three times.

Justice Baffoe-Bonnie: So that one, you are saying that it is possible that the C3 only shows that they lifted it from C1, it is possible?

Tony Lithur & Tsatsu Tsikata

Witness: Yes

Justice Baffoe-Bonnie: So it was either a situation where they all voted without biometric verification or they all voted with biometric verification …I want to find out, if you take the 156 out as you rightly said, the 228 is over the number of votes [225] that was supposed to have been found…

Witness: Yes, my lord, we would come to the over-voting…If you are satisfied that no other errors have been committed; there would be an excess of votes….

Justice Baffoe-Bonnie: Excuse me?

The Bombshell

Witness: There would an excess of votes. The point that I’m making for the time being is that, if you have this figure occurring three times-in C1, in C3 and as the total votes-, it means either all the persons were verified or none of them was verified…

Justice Baffoe-Bonnie: That one we’ve got it [understood].

Witness: Yes, as for the over-vote there would be an excess. I think I’m not too clear in my own mind what the connotation of over-vote is…. (Court room audience burst into laughter). At this…I think it is something that is subject to further clarification my lords…

Justice Baffoe-Bonnie: But you are the boss?

Witness: (Laughs uneasily)… Yes. Okay my lords; the classical definition of over-vote is where the ballot cast exceeds the number of persons eligible to vote at the polling station. Or if you like, the number of persons on the polling station register, that is the classical definition of over-voting. Two new definitions have been introduced; there’s nothing wrong with that, but I have problems with these two new definitions that have been proposed.  The problem I have with the whole definition is that they limit themselves exclusively to what is on the face of the pink sheet. They limit themselves, as I understand the definition…(Justice Dotse seeks clarification)

Justice Dotse: Definition by…..?

Gloria Akuffo

Witness: ….Well, by the petitioners. Two definitions of over-voting: One, where the number of ballots cast, exceed the number of voters as indicated on the face of the pink sheet… (Justice Baffoe-Bonnie interrupts)

Justice Baffoe-Bonnie: Dr, all this while, we are dealing with the pink sheets; in one breath, the pink sheet is your reference point, so in this case, just lets limit ourselves…I heard you say is an excess vote or something?…

Witness: Yes, excess vote

Justice Baffoe-Bonnie: But it would not be an over-vote?

Dr. Kwadwo Afari-Gyan

Witness: Yes, you see how you call it; the reason why I have problem with this definition is that it limits itself exclusively to what is on the face of the pink sheet, what if what is on the face of the pink sheet is wrong as we have seen? …

Justice Jones Dotse, another panel member asked: “Before you proceed, you were giving us the problems with the two new definitions of over-voting; can you finish with the problems associated with the two definitions?

Witness: Yes, I have a general problem of any definition of over-voting that limits itself exclusively to what is on the face of the pink sheet…my lords, we have just seen an instance where on the face of the pink sheet, the presiding officer said he was given four votes while in fact, upon closer scrutiny, he was given 325 votes. So any definition of over-voting that limits itself to what is on the pink sheet suggests to me personally that you are saying so to speak that the face of the pink sheet never is but there may be an error on the face of the pink sheet. If there is an error on the face of the pink sheet, it can be corrected by reference to the register itself. So my problem is that this definition does not make any reference whatsoever to the register which is the base document for the conduct of the election. That is my problem.

Justice Dotse: Who then does the correction you are talking of?

Witness: Well, if I were to read this document, the [presiding officer]. He’s given a serial range of numbers which suggest that they’ve been given 325 and he has actually conducted an election involving 198 people, then I would be inclined to take the 325 as the correct representation and not the four.

Justice Baffoe-Bonnie: In that case, the correction is done with resort to other figures on the pink sheet, which you say can also be wrong. But in the in other case, what you are saying is that you have to make recourse to the register which means that for example the accounting information “What is the Number of Ballots Issued to Voters on the Polling Station Register?”  You see, we have a situation where we have the polling station register and we have a question which says the number of people who have been issued with. If you have to make recourse to the register, then we don’t even make room for people dying or people not voting….you see, on the voters’ register, we may have 100, but we may - as you already aware with your 34 years (experience)-, you would realize that there is hardly a 100% voting in any situation, so if you say that over-vote is only when it is above the number of people in the register, that is really something….

Nana Ato Dadzie & Tsatsu Tsikata

Witness: Your lordship, I have not said over-voting is only when (there are more votes than in the register) I said the classical definition; I said that was the classical definition. Now we have adopted a new technology and we’ve spend a lot of money in buying that technology, that technology should help us to modify our definition of over-voting. I am making a technical point that when you limit it only to what is on the face of the pink sheet, then I have a problem with it. 

The EC Chairman said that anytime an election official is confronted with and ‘odd’ situation, that official has to refer to all other aspects on the pink sheet to be able to ascertain the truth.

EC DOCUMENTS BOUNCED

Dr. Kwadwo Afari-Gyan

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Tuesday, June 4, 2013.

An attempt by the Electoral Commission (EC) to tender printouts from the biometric verification machines used in the December 7 and 8, 2012 Presidential Election, backfired big time yesterday when the court threw them out.

The EC counsel, James Quarshie-Idun, leading the commission’s Chairman Dr. Kwadwo Afari-Gyan in evidence sought to use the document to make a point that the commission assumed that once it gave each polling station a biometric verification device, then all voters went through verification and that the entries and therefore, the printout was going to clear the doubt once and for all.

However, the court in a 7-2 majority decision, with Justices William Atuguba and Vida Akoto-Bamfo dissenting sustained an objection raised by the petitioners’ counsel, Phillip Addison about the tendering of the document in evidence.

The Fireworks

It all started when Dr. Afari-Gyan stated that in trying to ascertain discrepancies on some of the pink sheets exhibited, they referred to biometric device and said they had the printout in court.

He said the commission supplied each polling station with biometric verification device and assumed that once that was done then all voters went through verification and that the entries in the C3 column of the pink sheet which is supposed to show the number of persons who were allowed to vote without being verified by the device were entered in error.

Dr. Afari-Gyan then told the court that the commission recalled all the devices from the district offices of the EC and checked them to confirm the record of the people who were verified during the elections.

Counsel: Now Dr. Afari Gyan, can you tell us what the biometric verification device does?

James Quarshie-Idun

Witness: Basically, the biometric verification device would capture the polling station code as well as the particulars of the voter and store it in its memory. Those particulars include: the Voter ID number, the full name of the voter and the date and time when the person was verified to vote.

Counsel: Any reference to where the machine is being used?

Witness: It is used at the polling station to verify the voters before they are given the ballots and this are the record that it keeps of what happened at the polling station.

Counsel: Now you heard the evidence of Dr. Bawumia, on the 17^th of April, where he says the evidence of non-verification is on the face of the pink sheet, what is your comment on that?

Witness: In fact what the petitioners have done to get what they say is the total number  of persons who did not go through biometric verification is to simply aggregate the figures in C3. But I have shown that when you see the same figure in C1 or C3, it’s an either or situation if you read the form properly. In resolving an either or situation, what they have done is straight away, aggregate in C3 and say that on the basis of those numbers, people did not go through biometric verification.

Counsel: But what is your position?

Witness: Our position is that we gave biometric verification machine to every polling station….As I was saying, we don’t keep the verification machines at our head office in Accra, so looking at this situation, we called for the biometric verification machine used at this particular…(Counsel for petitioners interjects and raised an objection)

Addison’s Objection

Mr. Addison then raised an objection to the tendering of the printout which he said if allowed would be ‘ambush litigation.’

He said the petitioners had already closed their case after complying with the court’s order of April 16, to surrender all documents before the trial proceeded and allowing the EC was going to be a surprise to the petitioners

Phillip Addison

Mr. Addison added that there was nothing on the face of the document to show that the it  was indeed an ‘authentic printout’ of the events at the particular polling station from the device.

He said there was nowhere in the pleadings of the EC, they did not indicate that they would be relying on the biometric verification device or printouts from the devices and said “accepting the document at a time when the petitioners have closed their case would amount to opening an entirely new case behind the backs of the petitioners.”

Mr. Quarshie-Idun urged the court to overrule the objection because the printouts from the devices were relevant to determining the case and insisted that the commission had pleaded it in their response to the second amended petition and further and better particulars,

Mr.  Addison came back strongly to point to the court that “if indeed the printouts were necessary, the EC should have pleaded that” adding that there was nothing in the response that the EC counsel had referred to.

The soft-spoken Addison added most importantly that, the devices have been in the custody of the EC since December 2012 and said that no one could be sure that the devices had not been tampered with, attracting murmurings from the audience.

He then read a portion of the EC’s manual on the device which states very clearly that the device operates based on a software and said that since the EC was the only party with access to this software and the devices, it was possible for them to have changed the information on the device or to have programmed it for it to give out particular sets of information or data.

Before the print out from the biometric device was first introduced, the court in a 7-2 majority decision, with Justices Jones Victor Doste and Paul Baffoe-Bonnie had overruled an objection raised by Mr. Addison that, the EC counsel had not laid proper foundation to establish a case for the devices and Mr. Quarshie-Idun.

Debate Over Register

Contrary to the petitioners’ claim that over-voting can mainly be detected on the face of the pink sheet, the EC sought to argue that instances of excess ballots which suggests over-voting can also be verified by using the polling station register.

Tony Lithur

Mr. Quashie-Idun then sought to tender the register to emphasis the claims of the EC, but Mr. Addison objected to the tendering. The issue was consequently ruled upon by the judges who overruled Mr. Addison’s objection.

However in the Justice Baffoe-Bonnie suddenly detected an anomaly in the tendered pink sheet in relation to the register that had been tendered.

Justice Baffoe-Bonnie: I have a problem with this; you’ve presented this as 114, that is why we went into the register to find out whether this [the pink sheet] is right or the register is right. Looking at what is here [on the pink sheet], I think it is 774.

Counsel: This was presented to Mr. Asiedu Nketia and it was put to him that this was evidence of over-voting because the numbers of ballots in the ballot box were more than the number stated on the pink sheet as the voters entitled to vote at that polling station. Mr. Nketia said no, this must be an error, so we are tendering this to rebut the suggestion that was made to Mr. Asiedu Nketia as recently as on the 29^th May.

Justice Baffoe-Bonnie: This cannot be an error, I mean clearly.

Counsel: They said so….(Justice Baffoe-Bonnie seeks the help of other panel member to verify his misgivings)

Justice Baffoe-Bonnie: Please look at this, look at this… (Passes the evidence around)

Counsel: My lords, when we get the transcript or your lordships’ notes would show….there were five documents….(Tony Lithur barges in)

Mr. Lithur: We found out that what was put to Mr. Aseidu Nketia with exhibit number, name and code, when we went to check our exhibits, the exhibits numbers showed something different. When we checked the code, then we came up with the same thing that EC has….. (Philip Addison Interrupts)

Mr. Addison: My lords, is counsel [Tony Lithur] giving evidence or is he addressing the court? He’s closed his case and I don’t understand what he is going on about. They’ve had every opportunity to put across their case, and they’ve close their case. We are now on the second respondent.

Mr. Lithur: My lords, perhaps it’s a good time to ask that, because we would be cross-examining the witness, then maybe they can provide us with what they use to cross-examine Mr. Asiedu Nketia because we would need it. It was a strange phenomenon it was completely strange….

Mr. Addison: My lords, this is a very strange situation; we have cross-examined a witness, they had every opportunity to re-examine the witness. If they were not sure of the document, they could have even asked your lordship for a short adjournment to cross-check, they did nothing of the sort; they said they have closed their case; no re-examination, now you come today, you are telling me to provide you with document, you want to redo your case?

Tsatsu Tsikata

The argument continued with the petitioners explaining that if the respondents had not blocked re-categorization of some of the exhibits, the situation would not have arisen.

The judges eventually came in and settled the matter by indicating that the petitioners could provide the respondents with those exhibits in question. But Justice Gbadegbe told the parties that the advice did not give them the license to tender document at will.

He warned that any document would be subjected to the court’s strict admissibility test.

ADDISON FACES AFARI-GYAN...BLOW FOR BLOW

Philip Addison

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Monday, June 3, 2013.

Electoral Commission (EC) Chairman, Dr. Kwadwo Afari-Gyan will most likely be grilled today when Phillip Addison, lead counsel of the petitioners in the Presidential Election Petition ongoing at the Supreme Court begins his cross-examination.

Already, the NDC propaganda machinery has been set in motion, trying to push for the live telecast of the proceedings by Ghana Television to be truncated.

They were all over on radio at the close of the weekend claiming that the government has decided not to pay for the live telecast because of lack of funds even though the Ministry of information has not made any such pronouncement.

The Chairman is expected to complete his examination-in-chief today for Mr. Addison to take over after which the other respondents President John Dramani Mahama and the NDC will also  cross-examination the veteran election administrator, Dr. Afari-Gyan.

It is an indication that oral testimony of the landmark petition is coming to an end and the parties are expected to file their addresses for the court to give its judgement.

The Issues

The court is looking at two critical issues namely: Whether or not statutory violation, irregularities and malpractices occurred during the December 2012 Presidential Election and if it did, whether violation, irregularities and malpractices affected the outcome of the results.

Pink Sheet Count

As the trial proceeded, the issue of how many ‘Statement of Poll and Declaration of Results’ form known as Pink Sheet due to its colour, were attached as exhibits by the petitioners had become very contentious.

This compelled the nine-member panel chaired by Justice William Atuguba decided to appoint an independent referee to do the counting and all the parties settled on KPMG, a reputable international accounting firm, which later offered to do it free of charge.

Dr. Afari-Gyan & Amadu Sulley

The petitioners all along insisted that they attached 11,842 pink sheets as exhibits and averred that none of the polling stations was ever used more than once in their analysis.

However, President Mahama and the NDC which came into the petition by way of a joinder and spent more time on their cross-examination than even those who were initially sued as respondents, have claimed that the petitioners did not file 11,842 pink sheets and accused them of duplicating the documents to make a case.

They would not tell the court how many pink sheets were served on them when the order for ‘Further and better particulars’ was issued by the court, but insisted it was 11,842.

Later, when news broke that KPMG,  in the presence of two observers each from the parties, had found about 13,900 pink sheets in the counting exercise, even more than the 11,842, the NDC was in the media claiming they were going to complain to the court about the development but nothing has been heard from them ever since.

KPMG, reports indicate,has finished working on the categorization of the exhibits as ordered by the court and it is expected to submit its report.

Wild Allegation

But for the attempt by the NDC to halt the counting exercise, KPMG would have advanced in the counting.

Just as the exercise began, NDC lead counsel Tsatsu Tsikata came to the court virtually indicting the integrity of the Supreme Court Registry with a story that the exhibits in the court’s custody had been compromised and that the boxes containing the pink sheets had increased from 24 to 31.

He even suggested that once there was ‘criminalities’ involved, they would prefer an extended control mechanism whereby copies served on chairman of the nine-member panel and other two judges would be used to compare with the pink sheets in the court’s registry.

However, the court ruled that complaint by any of the parties should be channeled to the independent referee (KPMG) who will then incorporate it in the report.

Afari-Gyan’s Evidence

Dr. Afari-Gyan in his examination-in-chieftold the packed court that given the huge tasks placed on the shoulders of over 130,000 temporary staff used as Presiding Officers, Returning Officers among others on election day, “it will be a miracle if some of them did not commit mistakes.”

Transposition Errors

He said there are two transposition errors that can ‘easily’ be committed by the election officials at the collation centre where scores of each candidate is being transferred from the Pink Sheet onto the Collation Form at the constituency level.

He said for example “My scores have been entered against another candidate and maybe, some other candidate’s scores have been entered against me that would be transposition error.”

“Particularly if care is not taken in arranging the candidates, if the candidates are not arranged in the collation form as they are arranged on the polling station form or the pink sheet, it could easily arise in transposition error.”

He said “another transposition error than can occur at the collation centre is taking the score from the pink sheet onto the collation sheet …let’s say the number is 11,000 and then the Returning Officer picks 1,000, that would be another transposition error.”

“We have seen them where they have resulted in the defeat of candidates who should have won the election.”

Polling Station Codes

Dr. Afari-Gyan gave an elaborate explanation of the processes involved in setting up polling stations where he talked about how polling stations are identified by their codes and names.

This is in sharp contrast to NDC General-Secretary Johnson Asiedu-Nketiah’s evidence that when in doubt it is the physical location of the polling station that is taken into consideration.

MY OFFICERS ARE NOT TRAINED - AFARI-GYAN

Nana Akufo-Addo leaves the court

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Friday, May 31, 2013.

In an attempt to justify the alleged irregularities as errors in the December 2012 Presidential Election Dr. Kwadwo Afari-Gyan, Chairman of the Electoral Commission (EC) yesterday admitted that the officials contracted by the commission for the exercise were not properly trained.

He said at the Presidential Election Petition currently at the Supreme Court that the over 130,000 personnel recruited as temporary staff to help organize the elections in all the 26,002 polling stations lacked the requisite training to be able to do a good job.

“When you have a huge number of temporary employees, training becomes difficult. Getting the right caliber of persons for the exercise was a problem…given their tasks, it will be a miracle if some of them did not commit mistakes.”

While the petitioners insist that the alleged irregularities, malpractices and violations committed on the face of 11,842 ‘Statement of poll and declaration of results’ form which has to be known as Pink Sheets because of its colour, affected the outcome of the results that made John Dramani Mahama President, the respondents on the other hand claim they were either administrative, trans positional or clerical errors.

Taking his turn for the first time as witness since the case began; Dr. Afari-Gyan said all personnel used for the 2012 general elections were employed on a temporary basis.

Led in evidence by James Quarshie-Idun before a nine member justices, the EC Chairman said apart from the recruitment of Presiding Officers plus four personnel making up the 130,000, the commission also recruited 275 Returning Officers plus two deputies in all the constituencies making a total of 825.

He said that none of the permanent staff of the commission actually took part in the administration of the election at the 26,002 polling stations.

Dr. Afari-Gyan said the commission hired the Returning Officers for a period of three months while the actual period of work for the numerous personnel was not more than four days after a few days of training them.

In his attempt to debunk the 2^nd petitioner and principal witness Dr. Mahamudu Bawumia’s evidence that party agents were observers in the electoral process, the EC Chairman said “we don’t regard party agents as observers. They were part of the process.”

The Registration

He told the court that after demarcation all the registration centres, the commission proceeded to register all eligible voters.

He said they collected variety of personal data from all eligible voters and said the 2012 election was special because of the biometric technology that was introduced.

Dr. Afari-Gyan said the biometric technology helped them to prepare what he called ‘accurate register’ because incidence of multiple registration and other related problems were addressed.

He said they issued on-the-spot voters ID cards and admitted that there were a lot of problems including equipment failure, associated with the registration because “we were doing biometric for the first time.”

He said all the political parties were involved in the registration exercise and at the end of each day, the party agents were given daily print outs of the register.

He said that there were special provisions for people who had permanent trauma or temporary trauma and said they were captured in the register as Face Only (FO) voters.

He insisted that it was not true that the biometric verification was limited only to voters whose fingerprint was going to be captured by the verification device.

He told the court that the category of voters with FO was 70,951 and not 3196 as claimed by the petitioners.

Dr. Afari-Gyan said that the provisional register was displayed to the public and the anomalies found were addressed accordingly.

He said the number of voters that complained about anomalies in the register stood at 11,000 and the commission was able to address the problems.

He said that the register used for the election was 14.031,680 saying “this was the register we used for the election and that was what we gave to the political parties.”

Disabled Registration

Counsel asked the witness to elaborate on issues that arose during the biometric voters’ register. He made a lengthy presentation of the topic, but the high point of the explanation is voters who had certain deformities.

Counsel: Dr. Afari Gyan, were there any differences in the category of people who were registered, were there any differences in the people who were registered?

Witness: Yeah, some of the person who apply for registration did not have fingers at all. We classified these group of people as persons who are suffering from “Permanent Trauma”; permanent in the sense that we don’t think that they would ever get their fingers back. But they qualify to be registered as voters so we did register them….When appear in the register, they would have the letters “FO” against their names. During elections, their data is scanned; their picture would pop up on the screen of the verification device and there would be alongside the picture, “FO”. An FO means “Face Only” verification….

Nana Ato Dadzie

Counsel: Dr. Afari Gyan you heard Dr. Bawumia’s evidence in this court on the “Face Only” or “FOs” registration he said there were 3,196 what comment do you have on that?

Witness: I don’t know where he got that figure from, my lords. The figure is well of 70,000. In fact the figure now is 70,951and I know that an earlier figure was given which would be less than this, but that figure has gone up by 62 people. The reason is simply because we have completed the registration of the people in the Kassena Nankana district following the order of the High Court…so even the region with the lowest number would be more than 3,000….The second category consisted of Ghanaians living abroad but who were qualified under our law to be registered and they would be made up of people working in the diplomatic missions and their dependants; Ghanaian students abroad on government scholarship; and Ghanaians working in international organizations of which Ghana is a member. These groups of people under our laws are qualified to be registered under our law. The Electoral Commission didn’t know them, so the names were given to us by the Ministry of Foreign Affairs. The Ministry gave us a list of more than 2000 such people. We gave the list to the political parties; we also gave them the locations abroad where these people would be registered and the times during which they would be registered…

Polling Station Codes

In response to a question from his counsel about the setting up of a polling station, Dr. Afari Gyan elaborated extensively on the various processes involved in setting up a polling station, culminating in the naming and coding of each polling station. His explanation was widely contrary to Johnson Asiedu Nketia-the star witness of the first and third respondent-theory that two polling stations can have the same quote and when in doubt, the physical location of the station is what counts.

Witness: We first select a suitable place then we give the place a unique code and a name. The code is unique first in the sense that no two polling stations ever have the same code number. It is also unique in the sense that the code is consciously crafted to contain information that directs you to the location of the polling station. The system we use is described as Alphanumeric. That is to say, it combines letters of the alphabet and numbers and the system is a letter followed by six digits….This system makes it very easy, so if we see a code which comprises say four digits, we know immediately that it is not a correct code….The letter that begins a code, tells you the region which a polling station is situated… (He goes on to explain that the letter in the code indicates the region while the number represents district, electoral area, and the specific polling station within the electoral area)…So the combination of the code and the name [of the polling station] would direct you to a specific place.

Counsel: Dr. Afari Gyan how would you describe this system of coding?

Witness:  My lords, we see it as a permanent system of coding. You see, if you take the letter of the alphabet which tells you the region, it’s permanent in the sense that it would change only when Ghana has more regions than there are letters of the alphabet. My lords, as I was saying, we regard the system of coding as a permanent system of coding and that’s why we attach so much importance to it….

Stephen Asamoah Boateng & Cecilia Abena Dapaah

Counsel: Dr. Afari Gyan you mentioned that the code may or may not end in an “A” or “B”, could you explain to the court the circumstances under which this could happen?

Witness: It could be A, it be B, it could be C. If we establish two stations in the same locations, we would distinguish them by A and B. If we have an existing polling station and during the period of registration we notice that that polling station has become over-subscribed, because we don’t want the numbers in the polling station to be too large, then we would split the polling station into A and B.

10% Additional Ballots

He said the commission determined the order in which the candidates should be placed on the ballot paper before they went ahead to do the printing in the presence of all the party agents.

He said they added 10% to the number of ballot papers in the voters register. He added that “we aggregate the resulting figures on constituency basis then on regional basis and finally on national basis to get the total number to be printed.”

He said the ballots were delivered in hundreds, fifties and twenty-fives in booklet forms and added that in practical situations the actual distribution is different.

“When it comes to distribution you cannot stick to the additional 10%.”

He said that ballot papers have serial numbers as required by law and they are copied on the at the polling stations on election day.

Transposition Errors 

Counsel: …what happens at the collation centre?

Witness: Collation centre is where the returning officer who is really the person in charge of the election in the constituency on behalf of the Electoral Commission…and the returning officer is the person who is going to put together on what we call Collation Form all the result from the various polling stations in the constituency. At the collation centre, they would have agents of the candidates and ideally, those agents would have the results from the various polling stations in their possession… from which they can check whether the collation being done is correct or not. But let me say that there are two errors that can easily be committed at the collation centre and we call them in election language, Transposition errors, and let me tell you that some of these things occurred…Two forms of transposition errors: My scores have been entered against another candidate and maybe some other candidate’s scores have been entered against me, that would be a transposition error. Particularly if care is not taken in arranging the candidates, if the candidates are not arranged in the collation form as they are arranged on the polling station form or the pink sheet, it could easily give rise to a transposition error. Another transposition error that can occur at the collation centre is taking the score from the pink sheet onto the collation sheet…let’s say the number is 11,000 and then he [the returning officer] picks 1,000, that would be another transposition error. So when we do the training, we tell people to watch out for the possibility of transposition errors. We have seen them where they have resulted in the defeat of candidates who should have won the election.

Dr. Afari-Gyan with Amadu Sulley

Election Day

He said Early or Special Voting was done four days before the actual election for EC officials and security personnel whose services were required on election day.

He said that Special Voting has its own pink sheet and added that they only move all election materials on election day.

He said after the Presiding Officer sets up the the polling station, the law requires certain portions of the pink sheet to be filled before the ballot commences saying “if he/she does not do that it is an irregularity.”

He said that stamps used on polling day do not have serial numbers and added that “they are distributed at random.

Dr. Afari-Gyan also said that the ballot boxes as well as the tamper-proof envelopes did not have serial numbers.

The Pink Sheet

Counsel takes the witness to the various columns to be filled on the pink sheets by presiding officers before and after the elections at the polls….

Counsel: Now let’s go to section C...

Witness: My lords, section C says “Ballot Accounting” and the instruction here: “To be filled in at end of the poll before counting commences”.

Counsel: And the next question [on the pink sheet] Dr. Afari Gyan?

Witness: The next question is: “What is the number of ballots issued to voters on the proxy voters’ list?” Well if there are any proxies and you have issued ballots to the proxies then you would indicate it there.

Counsel: and (Section) C4… (Realized he made a mistake, he quickly corrects himself)…I’m sorry C3

Witness: C3 is missing from this book. This is an older form…as I said, because normally, C3 was inserted to cater for a special facility that’s why it’s missing from this one. 

Justice Baffoe-Bonnie: I think we need a better explanation than that, we don’t have C3.

Witness: I’m saying that this form is the earlier version…

Justice Baffoe-Bonnie: Yes, I understand, I heard you, but what I’m saying is this, if this is an earlier version of the pink sheet, then we should have C3 but with a different question, but this one jumps to C4 specifically leaving C3 out why?

Witness: Ohh, it is a number problem I think… (Court roars into laughter). My lord if you look on the right side and you will see there is a mistake…

What is Election

When asked to define election he said it was difficult to do because it had no precise definition before saying in a democracy it is a contest between candidates and that contest is decided by a poll adding “it is a process which consist of various activities which culminate in activities of election and subsequent declaration of the results.”

Personal Experience

Sharing his personal experience, Dr. Afari-Gyan he has been the Commissioner since 1993 and also mentioned that he worked and served in several boards and international organizations.

The Clash

Dr. Afari-Gyan’s long winding testimony caught the attention of Phillip Addison, lead counsel for the petitioners to raise an objection saying that some of the things the commissioner was saying were not in either the pleadings or affidavits of the 2^nd respondent.

He said described the testimony of Dr. Afari-Gyan as a ‘lecture’ saying “We have sat down for this lecture to go on for too long.”

However, Mr. Quarshie-Idun replied that “it is perfectly in order. We are here trying to show how the election was conducted.”

In a 6-3 majority decision with Justices Julius Ansah, Rose C. Owusu and Annin-Yeboah, dissenting, the objection was overruled and the witness proceeded with his examination-in-chief.

The Protest

Just when Dr. Afari Gyan mounted the witness box, lead counsel for the petitioners Philip Addison protested his presence.

Dr. Mahamudu Bawumia

Mr. Addison: My lords, we would like to seek some directions from the court in respect of the witness in the box. Pursuant to the directions of this court, all parties filed affidavits. Now, affidavits filed on behalf of the second respondent were sworn to by Amadu Sulley and no reason why Dr. Afari Gyan is now the one going to testify. Quite clearly, he has not sworn to any affidavit, and we do not know the ambit of what it is that he is coming to give in his evidence-in-chief. The evidence of Sulley amounts to evidence-in-chief and a different person is now coming to continue with the evidence-in-chief, so we would like to have direction from the court in this regard (Counsel for the second respondent James Quashie-Idun responds

Mr. Quashie-Idun: My lords, the party is the Electoral Commission, it is not only Mr. Amadu Sulley who has sworn to affidavit; it is Amadu Sulley and also Kwadwo Safo-Katanka, the two deputies. They swore affidavits to the interlocutories to the matters the court dealt with and he is here as the party representing the electoral commission to give evidence, my lord. I will like to add that the affidavit sworn to by Mr. Sulley and by Mr. Safo-Katanka, could be considered as affidavits of witnesses to the party, but here is the party himself to give evidence, my lords.

Mr. Addison: First of all, Mr. Safo Katanka only swore to affidavits in support of interlocutory applications. In respect to their answer and affidavits in pursuant to the order of 2^nd April, they were sworn to by Mr. Sulley. If counsel is now saying that Mr. Amadu Sulley is the witness for the second respondent, then we may wonder why he’s been sitting in court all this while, it disqualifies him as a witness then, because all along, we presumed that he was representing the second respondent and it was in that capacity he’s been sitting in this courtroom. (The judges consulted among one another for a substantive ruling on the issue)

Gloria Akuffo

Justice Atuguba: This is our clarification; Dr. Kwadwo Afari Gyan is representing the Electoral Commission in his capacity as a party to this case, and the returning officer to the general elections of Ghana. He can therefore pursuant to the directives for trial in this case on 2^nd April 2013, give evidence on behalf of the second respondent.

Sitting continues on June 3, 2013 where Dr. Afari-Gyan will continue his examination-in-chief.