Lawyers for the petitioners challenging the declaration of President John Dramani Mahama as the winner of the December 7 and 8, 2012 presidential polls yesterday brought out an additional 553 unsigned pink sheets to disprove claims by the Electoral Commission (EC) that only 905 pink sheets were unsigned.
According to the petitioners, more than 905 pink sheets had no signatures of presiding officers and were, therefore, not fit to be added to the tally of polls, but the EC had, in its defence, claimed that there were only 905 unsigned pink sheets, representing 3.5 per cent of the entire results declared.
In his bid to negate the EC’s position, lead counsel for the petitioners, Mr Philip Addison, brought out parcels of pink sheets, which were unsigned, and succeeded in making the Chairman of the EC, Dr Kwadwo Afari-Gyan, confirm that each of those pink sheets was unsigned.
Counsels for the respondents, Mr Tony Lithur, Mr James Quashie-Idun and Mr Tsatsu Tsikata, who represented the President, the EC and the National Democratic Congress (NDC), respectively, did not object to the tendering of the pink sheets (statement of poll and declaration of results forms for the office of President).
That was because the court had, on July 3, 2013, adjourned proceedings to enable the parties to sort out the said pink sheets to facilitate the hearing of the petition.
The pink sheets were listed in parcels of 179, 182, 55, 114, 12 and 11 and Dr Afari-Gyan spent several minutes to go through each of them before they were tendered in evidence as exhibits.
Mix-up and Clarification
Prior to the tendering of the parcel of 182 pink sheets, Mr Addison had suggested to Dr Afari-Gyan to go through a list of 183 pink sheets which were unsigned, but after going through them, Dr Afari-Gyan indicated that one of them had been signed.
Mr Addison, after looking at that pink sheet, confirmed Dr Afari-Gyan’s assertion and so it was agreed that the name of that pink sheet be struck out of the list.
An issue on the actual number on one of the lists came up when Mr Lithur informed the court that a parcel supposedly containing 115 pink sheets actually had 107 and not 115, but Mr Addison explained that one of the names of the pink sheets was accidentally cancelled.
He agreed that the name should be struck out, leaving 114, but he disagreed with Mr Lithur’s claim that the parcel contained 107 pink sheets.
One of the judges, Mr Justice Paul Baffoe-Bonnie, collected the list from the petitioners to verify the actual number on it but eventually stated that the manner in which some names had been cancelled had rendered the list “messy”.
He, therefore, suggested to the petitioners to come up with a clearer list, to which they agreed.
After the tendering of the lists, Mr Addison informed the court that his side had exhausted the list which had been agreed on by all the parties and consequently prayed the court to allow the parties to sort out and generate another set of lists for cross-examination next week.
The court obliged, adjourned the case and urged the petitioners to finalise their list and hand it over to the respondents by 5 p.m. today (July 5, 2013).
905 pink sheets with no signatures
Mr Addison asked Dr Afari-Gyan if he had brought the list of 905 polling stations Dr Afari-Gyan had promised to bring in one of his appearances in court, to which Dr Afari-Gyan answered in the affirmative.
Dr Afari-Gyan pulled out a list and was asked to locate which pink sheets had no signatures of presiding officers.
At that point, he explained that when the EC received an allegation that some pink sheets had not been signed, his outfit looked at the pink sheets “one by one” and as a result, the ones that were not signed were part of the report he had brought to the court.
The list he brought contained 2,009 polling stations, but he was advised by Mr Justice Jones Dotse to identify those not signed.
Dr Afari-Gyan told the court that he did not understand the request to mean he had to submit a list of 905 unsigned pink sheets, but Mr Justice Anin Yeboah countered that he could have sought clarification from his lawyer.
According to the Chairman of the EC, he could tell which pink sheets had not been signed if he was allowed to look at them individually, but could not tell the specific pink sheets that had not been signed.
Mr Quashie-Idun informed the court that the EC tried to tender a list of 907 pink sheets that had not been signed, but Mr Addison objected.
What is the difficulty in listing?
According to Ms Justice Rose C. Owusu, the unsigned pink sheets had been identified and, therefore, asked where the EC’s difficulty was in identifying them.
Mr Justice Dotse asked Dr Afari-Gyan if the list he had brought to court contained more than 905 polling stations, to which the witness said it contained 2,009 polling stations.
Mr Justice Dotse then asked the witness if he could mark the polling stations, to which the witness answered positively.
179 pink sheets without signatures and duplicate serial numbers
Mr Addison then handed a list of 179 pink sheets which he said related to duplicate serial numbers and no signatures of presiding officers and requested Dr Afari-Gyan to go through them and confirm if they had or did not have signatures.
After almost 30 minutes of going through the list, Dr Afari-Gyan confirmed that they did not have signatures but could not confirm if they were 179 or not.
He further explained that the numbers on the exhibits ranged from 601 to 779.
Mr Addison then suggested to Dr Afari-Gyan that the list of 179 polling stations without signatures of presiding officers were not included in the EC’s 905 pink sheets without signatures.
The list of 179 polling stations was tendered without objection from any of the parties in the case.
Fight Over List of Seven Polling Stations
According to Mr Quashie-Idun, the list of seven polling stations on which Mr Addison had sought to cross-examine his witness did not tally with the KPMG report.
Counsel for President Mahama, Mr Lithur, said asking questions on those sets of pink sheets could be highly prejudicial.
Raising issues with the list of seven pink sheets/polling stations, Mr Tsikata said very serious problems had emerged because there was no idea how the seven pink sheets came up.
He said there was no challenge that new pink sheets had been added, pointing out that there could be a situation where newly generated pink sheets would be introduced.
According to counsel, per Dr Bawumia’s affidavits, the court and the parties were allegedly dealing with 24 exclusive categories, adding that the introduction of the seven pink sheets was not consistent with the petitioners’ case since it sought to recategorise.
Ms Justice Owusu said it was polling station names that mattered, not exhibit numbers, but Mr Tsikata disagreed with her on the grounds that it was not for the court or anybody to reconstruct the case for the petitioners.
He said the pink sheets now labelled as MBG which the petitioners were seeking to cross-examine Dr Afari-Gyan on were found in the KPMG report as MBF and for that reason it was unacceptable for the petitioners to re-label their exhibits.
At that moment, Ms Justice Owusu interjected and said she recalled that the star witness for the petitioners, Dr Mahamudu Bawumia, had stated in court that he had problems with the labelling and for that reason had to re-label some of the categories.
Mr Tsikata responded that Dr Bawumia had said in the witness box that he could not tell, and for that reason “we cannot seek to re-label”.
Ms Justice Owusu said counsel might be mistaken to think the KPMG had done categorisation of irregularities, but counsel answered that that had been done, adding, “There is absolutely no doubt about that.”
According to counsel, the categories were listed according to the affidavit of Dr Bawumia and added that there was no document before the court for relabelling.
He also argued that the petitioners had not amended their case on relabelling, adding, “It is not open to us to reconstruct the case of the petitioners.”
Categorisation of irregularities
The categories of irregularities as sworn to by Dr Bawumia in his 83-paragraph affidavit evidence sworn on April 7, 2013 are over-voting, some presiding officers not signing pink sheets, persons voting without undergoing biometric verification and some polling stations having the same serial numbers.
The petitioners are, accordingly, calling for the annulment of more than four million votes from 11,138 polling stations due to what they term gross and widespread irregularities.
We have finished our cross-examination based on categorisation – Mr Lithur
Lending support to Mr Tsikata, Mr Lithur explained that the respondents had finished their cross-examination based on the petitioners’ categorisation, adding that analysing data on any new categorisation would be difficult since they had finished their case.
He said introducing the recategorised pink sheets which had not been captured by the KPMG, an independent body in the case, would be a “recipe for total confusion”.
When Ms Justice Owusu asked if the pink sheets were not part of the KPMG report, Mr Lithur said they were part but were being re-categorised by the petitioners.
Mr Justice Atuguba said Dr Bawumia should have tendered the re-categorisation of the pink sheets, but Mr Addison informed him he had tried it but was not allowed by the court.
After a back and forth interaction between the bench and the bar on the said seven pink sheets, the panel retired to chambers for a break and returned with a ruling which rejected the respondents’ objection.
According to the court, the respondents’ objection was preemptive because no question had been posed on categorisation.
That notwithstanding, Mr Addison decided to abandon his posture on the seven pink sheets, with the explanation that the petitioners wanted to make progress and had, therefore, decided to stick to non-contentious issues “for now”.
Some numbers do not tally
Earlier, Mr Quashie Idun had told the court that the batch of pink sheets handed to him on July 3, 2013 did not tally with the KPMG report.
Hearing continues on July 8, 2013.