Election petition hearing, the journey so far

Ghanaians have, for the past 22 days, been introduced to legal jargon, general courtroom procedure, objections and counter objections and numerous rulings, thanks to the live telecast of the presidential election petition seeking to anmnul the 2012 elections.

Once known as 22 million coaches due to their avid love for sports and harsh criticism of football coaches, Ghanaians have now turned into pocket lawyers and mini-judges.

Expressions such as “pink sheets,” “I put it to you”, “I suggest to you”, “objection”, “objection overruled”, “objection sustained” and other legal terms are now on the lips of Ghanaians.

To reflect their appreciation of proceedings in court, most Ghanaians have found ways and means of introducing these words in their daily interactions.

Although the Supreme Court broke convention and allowed cameras into the courtroom to enable Ghanaians and the international community to see and hear what goes on there, there are some who find the legalese bandied about by lawyers in the case puzzling.

This simplified article, therefore, seeks to take readers without any legal background through proceedings at the Supreme Court for the past 22 days.

PREAMBLE

Ghanaians, on December 7 and 8, 2012, exercised their right under Article 42 of the 1992 Constitution by joining long queues to cast their ballots in the presidential and parliamentary elections.

Voting had to be suspended and continued on December 8, 2012 at some polling stations across the country due to the breakdown of newly introduced biometric machines.

The Declaration

With the powers conferred on him by the 1992 Constitution, the Chairman of the Electoral Commission (EC), Dr Kwadwo Afari-Gyan, on December 9, 2012 declared President John Dramani Mahama as the winner of the presidential poll with 50.7 per cent of the valid votes cast, with the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, placing second with 47.7 per cent.

Prior to the declaration of the results, the NPP leadership prevailed upon Dr Afari-Gyan to suspend the declaration because they had uncovered some discrepancies which could affect the final results of the presidential election.

After a marathon meeting with EC officials and members of the Peace Council, Dr Afari-Gyan declined to suspend the announcement of the results on the grounds that the party leadership had failed to prove why the declaration should be halted.

He, accordingly, advised the leadership of the NPP to sue the EC if it felt dissatisfied with the results he was billed to declare.

Threat to Sue and the Petition

Irked by the EC’s declaration of President Mahama as the winner of the presidential poll, three leading members of the NPP, namely, Nana Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed a petition at the Supreme Court Registry on December 28, 2012.

They initially alleged gross and widespread irregularities at 4,709 polling stations, but after further investigations they amended their petition to indicate irregularities  at 11,916 polling stations.

Upon further scrutiny, the petitioners are now relying on 11,138 polling stations as areas where the alleged infractions relating to over-voting, voting without biometric verification, some polling stations with the same serial numbers and some presiding officers failing to sign pink sheets occurred.

Per the petitioners’ calculation, Nana Akufo-Addo won the election by 59.69 per cent, while President Mahama polled 39.1 per cent.

They are, therefore, pleading with the court to annul 4.3 million votes at the polling stations where the alleged irregularities occurred.
 
The Respondents

President Mahama, the EC and the NDC, who are the first, second and third respondents, respectively, have denied the allegations and indicated that President Mahama won the elections fairly and transparently.

Issues for Consideration

After 10 sittings to consider and rule on more than 21 interlocutory applications filed by parties in the case, the nine-member court set out two issues for trial.

They are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012.

It will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results.

What has been happening for the past 22 days in court?

For the past 22 days, lawyers for the petitioners have led evidence to justify why votes in 11,138 polling stations should be annulled by the Supreme Court, but the respondents have cross-examined Dr Bawumia and sought to point out inconsistencies in his evidence in their bid to maintain the status quo.

As expected in litigations, parties occasionally enter into altercations, while the judges either affably arbitrate or display their authority with firm decisions.

The arbiters have also been caught in the crossfire on a few occasions, but that does not undermine proceedings in any way.

Such incidents occur in what some may describe as ordinary cases, for which reason it should not come as a surprise to many to find the lawyers fiercely trying to put their cases across to the nine-member panel, namely, Mr Justice William Atuguba, Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu,

Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.

High Stakes

The stakes are high because the petition is seeking to unseat a sitting President and the parties are not expected to leave any stone unturned to either unseat or maintain President Mahama as the sitting President.

Proceedings So Far

Day One - Supreme Court endorses live coverage

The Supreme Court endorsed the live telecast of its proceedings via television and radio to ease the tension, the taking of sides and acrimony that had characterised the petition.

Prior to the endorsement, the Chief Justice, Mrs Justice Georgina Wood, had, in a statement on Monday, directed that the proceedings of the presidential election petition be broadcast live via television and radio.

The President of the court, Mr Justice William Atuguba, at the beginning of the hearing of the substantive case, said the court’s decision was in accordance with the law and expressed the hope that it would erase any misconceptions held about the matter.

The court, however, fixed the hearing for the next day to enable the EC to file its written affidavits in response to the affidavits filed by the petitioners.

Lawyers for the respondents prevailed on the petitioners to start their case, but their lawyer, Mr Philip Addison, stood his ground and insisted he would only start the case after his side had received copies of the EC’s affidavit evidence.

For the first time, the Chairman of the EC, Dr Kwadwo Afari-Gyan, was present in court.

Day Two – April 17, 2013 — Bawumia in the box to make case for annulment of presidential results

The star witness for the petitioners, Dr Bawumia, who chaired the committee that investigated the alleged infractions recorded during the polls, mounted the witness box and was led by Mr Addison to give his evidence-in-chief.

He maintained that the widespread constitutional and statutory violations, irregularities and malpractices which characterised the election should be a cause for the annulment of results in the affected areas because they influenced the outcome of the election.

As head of that committee, he said, he ensured that the statement of poll and declaration of results forms for the office of President, otherwise known as the Pink Sheets, were examined and analysed and it was the committee’s findings which resulted in the court action.

In all, he said, 24,000 pink sheets were examined and over-voting was recorded in two forms, namely, where the total votes in the ballot boxes recorded on the pink sheets exceeded the number of voters in the voters register and where total voters as recorded on the pink sheets exceeded the total number of ballots recorded on the pink sheets.

Dr Bawumia informed the court that 535,723 voters voted without biometric verification.

He said, for instance, that at the Bekwai Experimental JHS Polling Station, 294 of the 375 voters voted without biometric verification, while at 2,240 polling stations nationwide, voters voted without biometric verification.

He said 856,172 votes were annulled by the EC because of non-biometric verification and that the results at certain polling stations in the Gambaga-Nareligu Constituency were annulled because of voting without biometric verification.

“The EC cannot apply one set of rules to one polling station and apply another set of rules to another polling station. Therefore, we want an annulment of voting in all areas where there was voting without biometric verification which gave candidate Mahama 49.16 per cent and Nana Addo Dankwa 49.34 per cent,” he said.

He said in 1,739 polling stations, neither the presiding officers nor their agents signed the pink sheets but the results of 705,305 votes were validated and used when there were no signatures on the forms.

Regarding polling stations with the same serial and code numbers, the witness said their findings revealed that different polling stations had the same serial and code numbers and that there were 9,921 polling stations with such an anomaly on the pink sheets.

The total number of voters at those centres, he said, was 3,924,844, adding that the serial numbers were unique and could not be written like the code number.

Day Three – April 18, 2013 – Lithur, Bawumia Lock Horns

Dr Bawumia ended his evidence-in-chief, thereby paving the way for counsel for the President, Mr Tony Lithur, to begin cross-examining him.

The two engaged in many face-offs.

It all started when Mr Lithur put it to Dr Bawumia during cross-examination that the witness had submitted to the court as exhibits some pink sheets which were duplicated in different categories of alleged electoral malpractices.

Mr Lithur, in the cross-examination, said, “l put it to you that you have used the duplicated pink sheets for the purpose of deceiving the court,” to which Dr Bawumia responded: “l suggest to you that it is not true,” amidst spontaneous laughter from members of the Bench, the Bar and the gallery.

Dr Bawumia explained that although duplicated pink sheets had found their way to the court, not a single one was relied upon and that materials on the CD ROM were the ones used in the final analysis.

Day Four – April 22, 2013 – Supreme Court says it is premature for independent audit of pink sheets

An application by Mr Lithur for an independent audit of pink sheets to determine the actual number of polling stations whose results are in issue was overruled by the Supreme Court.

The court held that the fact that the President and the NDC had responded to 8,621 polling stations meant that there was a definite number of pink sheets to deal with.

It, therefore, said the audit was premature and that once that figure existed, it did not appreciate the problem facing the respondents because when the question of audit manifested it would be dealt with appropriately.

Day Five – April 23, 2013 – Lithur tests Bawumia’s credibility

Mr Lithur resolutely defended his line of cross-examination when the court expressed worry over the slow pace of proceedings.

According to him, the nature of the case demanded that he adopt the style being used to test the credibility of the star witness for the petitioners.

Day Six - April 24 – Lithur concludes cross-examination and says there is no basis for annulment of 2.6 million votes

Mr Lithur concluded his cross-examination of the petitioners’ star witness and indicated that suggestions that about 2.6 million votes be annulled were completely preposterous.

But Dr Bawumia insisted that those votes were tainted with many irregularities relating to over-voting, the non-signing of pink sheets by presiding officers and duplicated serial numbers.

The witness also said the petitioners were not accusing the President of any malpractice, except that he was the beneficiary of the EC’s conduct.

EC cross-examines Dr Bawumia

Counsel for the EC, Mr James Quashie-Idun, sought to cow Dr Bawumia into admitting that there were some genuine errors on some of the pink sheets but Dr Bawumia disagreed and said a President could not be declared based on errors.

Day Seven – April 25, 2013 – EC Lawyer Stopped

Heated exchanges characterised proceedings when Mr Quashie-Idun was interrupted by both the Bench and lawyers for the petitioners due to the EC’s failure to file exhibits in response to the allegations by the petitioners.

Day Eight – April 29, 2013 — Tsatsu Starts Cross-examination of Dr Bawumia

The lawyer for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, took over the cross-examination and Dr Bawumia and did not give the witness any breathing space at all.

But as he progressed, he toned down.

Regarding voting without biometric verification, counsel told the witness that certain concerns were raised about the frustration among voters who found it difficult to vote because of the problems associated with verification, but Dr Bawumia stated that every citizen had the right to vote, provided all the proper procedures had been followed.

Day Nine – April 30, 2013 – Bawumia clashes with Tsatsu; Ruling on Bernard Mornah Case

Mr Tsikata sought to establish that the mis-labelling of some of the exhibits before the court, particularly the pink sheets, by the petitioners was done deliberately to mislead the judges, but Dr Bawumia disagreed.

Mr Tsikata suggested that but for the vigilance of the respondents, the court would not have known that each set of pink sheets provided for the court by the petitioners had some polling station numbers repeated on them.
 
Supreme Court cannot sit on holidays

The Supreme Court ruled that its decision in respect of petitions filed to challenge the election of a President could be reviewed if any of the parties was dissatisfied.

It also ruled that the directive by Rule 69 C (5) of the Supreme Court (Amendment) Rules, 2012 (CI 74) which provides in part that "the court shall sit from day to day, including public holidays, when hearing a presidential election petition”, was unconstitutional and, therefore, null and void.

The court, presided over by Mr Justice Julius Ansah, by a unanimous decision held that a review of its decisions was a right created by Article 133 (1) of the 1992 Constitution.

Article 133 (1) of the Constitution states: “The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court.”

The decision related to a suit filed at the court by the General Secretary of the People’s National Convention (PNC), Mr Bernard Anbataayela Mornah, seeking “a declaration that on a true and proper interpretation of articles 133, 157, 93(2) and 11 of the 1992 Constitution, Rule 71B and a part of Rule 69C (5) of the Supreme Court (Amendment) Rules, 2012 (CI 74) are unconstitutional and must be declared null and void and of no effect”.

Day 10 – May 2, 2013 – Argument over pink sheets

Questions and answers on Day 10 related to repeated or duplicated pink sheets, the confirmation of the poll results by polling agents of the petitioners, no indication of any protests by the polling agents and the reading of the declared results on the face of the pink sheets.

While Mr Addison, raised an objection regarding the piecemeal approach adopted by Mr Tsikata to dealing with pink sheets before they were tendered in evidence,

Mr Tsikata rather blamed the petitioners for the situation because the respondents had been overwhelmed by so many duplicated pink sheets to deal with.

Day 11 – May  6, 2013 – Judges warn lawyers, journalists and commentators

Justices of the Supreme Court condemned social commentators, lawyers and journalists for unfairly criticising their work.

Their sentiments stemmed from the way and manner the public, including lawyers, had taken their work, especially their rulings, out of context and lashed out at them.

According to the judges, they had even been referred to as timid in some of the criticisms and urged all to be circumspect in their criticism.

Mr Tsikata’s cross-examination continued after the judges had expressed their sentiments.

Day 12 - May 7, 2013 – Leave Court to Decide

The court asked Mr Tsikata and Dr Bawumia not to engage in arguments over whether or not pink sheets had been certified or attested to but leave that for determination by the court.

Day 12 – May 8, 2013 – Court stops Tsatsu’s attempt to introduce 50 pink sheets

Mr Tsikata was stopped from introducing 50 pink sheets he intended to cross-examine Dr Bawumia on.

Day 13 – May 9, 2013 – Court orders audit of pink sheets

Following controversy over the actual number of pink sheets served on the respondents, the court directed the international audit firm, KPMG, to audit the pink sheets and submit a report to the court.

The auditing is currently underway.

Day 14 – May 13, 2013 – Tsatsu requests to cross-examine four witnesses of petitioners

Mr Tsikata informed the court that he had a motion pending which was targeted at cross-examining four witnesses of the petitioners who had sworn affidavits.

The court adjourned the cross-examination of Dr Bawumia to enable the parties to sort out among themselves pink sheets with duplicated serial numbers.

The parties also met KPMG to set out modalities for the audit.

Day 15 – May 14, 2013 – Bawumia and Tsatsu in hot exchanges

In what had become persistent, Mr Tsikata and Dr Bawumia once again engaged in a crossfire during the former’s cross-examination of the latter.

Mr Tsikata, who was not pleased with the responses from Dr Bawumia, complained to the Bench about the kind of responses being given by the witness and said the witness should not be allowed to make those comments.

Mr Justice Atuguba, the presiding judge, calmed their nerves and urged the counsel and the witness to cease fire, indicating that Dr Bawumia was not to engage counsel in arguments but rather answer the questions put to him.

Day 16 – May 15, 2013 – Pink Sheet Audit For Free

Mr Justice Atuguba officially announced that KPMG had agreed to conduct the auditing for free. Some officials of the audit firm were present in court and were acknowledged by the presiding judge.

Although KPMG did not make public how much it would have charged for the exercise, some industry analysts put it around $100,000.

More exchanges

Judges were stretched to their limit following flared tempers between Mr Tsikata and Mr Addison over the line of cross-examination of Dr Bawumia, who was accused of acting in bad faith by Mr Tsikata.

Day 17, 2013 – May 16, 2013 – Court restrains respondents from cross-examining four witnesses

The Supreme Court refused a request from the respondents to cross-examine four witnesses who had given evidence in the form of sworn written affidavits.

According to the court, it had received and was still in the process of receiving abundant evidence from the parties in the dispute to enable it to arrive at a conclusion.

The four witnesses are the Member of Parliament (MP) for Berekum East, Dr Kwabena Twum Nuamah; the NPP’s parliamentary candidate for Upper West Akyem in the Eastern Region, Mr Eugene Sackey; the NPP MP for Tano North, Ms Freda Prempeh; a resident of Savelugu, Fuseini Safianu, and the presiding officer of Temporary Booth Chief’s palace polling station at Pong Tamale, Abdulai Abdul Hamid.

Day 18 – May 20, 2013 – Brief hearing

Proceedings were adjourned after a very brief sitting.

The adjournment followed a consensus reached among lawyers for the parties to allow adequate time for the petitioners to sort through lists of pink sheets relating to the same serial number category.

Parties Fight Over Pink Sheets

Controversy rocked the auditing of pink sheets, as lawyers for President Mahama and the NDC stormed the Supreme Court conference room where pink sheets were being counted and objected to the alleged introduction of additional boxes containing pink sheets.

But a former Deputy Attorney-General and Minister of Justice, Ms Gloria Akuffo, who is leading the petitioners’ legal team, refuted allegations that extraneous materials had been introduced into the pink sheets.

Day 20 –May 21, 2013 – Court says no to respondent lawyers

An attempt by lawyers for the respondents to persuade the Supreme Court to allow pink sheets in the custody of the nine-member panel to be used by KPMG in its count of the sheets was refused by the court.

The respondents had alleged that the documents being worked on by KPMG had been compromised.

But Mr Addison vehemently opposed the attempt, describing it as one of the cooked-up stories by respondents, generating heated arguments between counsel.

Day 21 – May 22, 2013 – Addison, Atuguba clash

Day 21 of the presidential election petition hearing ended on a sour note when counsel for the petitioners and the presiding judge entered into an altercation.

The fiery exchanges between Mr Addison and Mr Justice Atuguba were so serious that sitting had to end abruptly, with the Bench reminding lawyers of its authority.

Tension soared, tempers flared, but the court eventually had its away and stuck to its unanimous decision to reject petitioners’ attempt to introduce re-categorisation of irregularities at 203 polling stations.

Day 22 – May 23, 2013 – General Mosquito denies irregularities in elections

The General Secretary of the NDC, Mr Johnson Asiedu Nketia, began his evidence-in-chief and denied claims of irregularities during the polls.

He led evidence on four categories of irregularities as spelt out by the petitioners and rebutted each of them.

For instance, Mr Nketia stated it was not true for Dr Bawumia to state that polling stations were recognised by their serial numbers and explained that in his 34 years of observing elections in the country, polling stations had always been recognised by their names and unique codes, adding that serial numbers did not impact on the results of elections.

Mr Nketia, who is popularly called General Mosquito, stated that polling station names and codes were crafted such that anyone conversant with elections would recognise polling stations by letters of the alphabet, except I, for each of the 10 regions of the country.

Led by Mr Tsikata, the general secretary advanced evidence to rebut allegations of over-voting, voting without biometric verification, blank spaces on pink sheets, no signature on pink sheets and voting at unknown 23 polling stations.

He is expected to continue on Tuesday, May 28, 2013.

Article: Mabel Aku Baneseh

Writer’s e-mail: mabel.baneseh@graphic.com.gh.