Day Five of Election Petition: Lithur declines judge’s request to give advance notice

Day Five of Election Petition: Lithur declines judge's request to give advance notice

10:00 The nine panel of judges have taken their seats to begin Day Five of substantive hearing of the election petition.

Lead Counsel for the petitioners introduce to the court his team. The counsel for first, second and third respondents also introduce their team of lawyers.

Witness in chief of the petitioners Dr Mahamudu Bawumia mounts the witness box and reminded of his oath.

Tony Lithur congratulates him on his appointment as Country Director of the African Development Bank. Bawumia accepts but tells Lithur to stop reading too many newspapers.

1020 Lithur begins his cross examination by picking out another pink sheet and asks him if there is basis to draw a conclusion of over voting given that there is blank space in the portion of the pink sheets which should have contained total number of registered voters.

Bawumia says he equated the blank space to mean zero and can draw enough justification that there is over voting.

Lithur picks another exhibit which also has a blank space in the portion where the total number of registered voters. He again asks the witness how he arrived at the conclusion that there was over voting. He adds that in that polling station, his candidate, Nana Akufo-Addo was resoundingly beaten.

Bawumia replies, saying there was resounding illegality in that polling station because the presiding officer had something to hide and therefore failed to fill the portion of C1 which should have contained the total number of registered voter.

Lithur asks Dr Bawumia to examine another pink sheet, and after careful examination, he (Bawumia) tells the court the petitioners did not use that in their analysis and asks the court to allow him to check from the list of deleted pink sheet but Lithur disagrees.

Addison says the petitioner’s request is necessary to enable him refresh his memory because there are 11,000 plus pink sheets in evidence here which the witness will not be able to keep all in his head, but Lithur rejects it.

Lithur brings out a pack of 45 pink sheet exhibits to be perused by the counsel on the other side. Pinks sheets are tossed around with the counsel on both sides gawking meticulously at them. Lithur says the pink sheets are completely illegible.

Lithur asks for a short conference with lawyers of the petitioners to sort out some pink sheets.

1115: Recess

Presiding Judge grants a recess. Court to reconvene in 30 minutes.

1225: Hearing resumes after short recess.

Lithur hands Bawumia the pack of 45 exhibits and asks him to tell the court the basis on which he concluded there was over voting.

Bawumia tells the court that CI portion on the pink sheet is blank and that was a spectacular way of finding out over votes. [CI is the portion where the total number of registered voters are normally written on the pink sheets]

Lithur presents to the court another pink sheet exhibits. Counsel for the petitioners Philip Addison raises an objection to the tendering of the pink sheet, saying there are cancellations and deletions on the pinks sheets with a high possibility of the document being tampered with by the respondents.

Lithur picks another pink sheet which has a figure at the portion of CI. He says the figure is ineligible. He asks Bawumia how he was able to arrive at the conclusion that there was over voting in the polling station.

Bawumia takes a look at the pink sheet in question and says the number at the CI portion is 733 but the total votes cast in the polling station was 763. That was clear over voting, he adds.

Lithur returns and says the figure there is unclear. It could be 739. Bawumia responds and says even if it is 739 as the counsel for the respondent is suggesting there is still over voting because the total number of votes cast in that polling station exceeded the total number of registered voters.

Lithur brings out another pink sheet where he finds issues with over voting again. He asks witness if the polling agents of the petitioners were present during elections at that particular polling station and whether or not they signed the pinks sheets.

Bawumia insists there was over voting in that polling station even if the polling agents were present and signed on to the irregularities.

Lithur continues and asks the witness if the agents told them at the beginning if there were specific allegations of over voting.

Bawumia says they did not receive any compliant from polling agents on the issue of over voting on pink sheets but the evidence on the pink sheets represents over voting.

Lithur then asks Bawumia if he was aware of comments made by the campaign manager of the NPP in the 2012 elections Boakye Agyarko that the elections had been free and fair.

Objection

Philip Addison raises and objection to the question being asked of his witness. He says the question is not relevant to the issues under discussion and that the respondents did not include that particular question in their pleadings and must therefore not ask the witness. He says many observers have also claimed that the elections were free and fair but their opinions are not what is in contention at the court. He asks the court to overrule the question.

Lithur insists the question is relevant because the witness had given an indication that his polling agents did not formally complain of irregularities and if a key player with the NPP, Boakye Agyarko also stated that the elections were free and fair then there was no need for the petitioners to challenge the authenticity of results so declared by the second respondent-EC.

Ruling

Judges confer and over rules the objection by counsel for the petitioners and asks witness to answer the question posed by the Lithur.

Bawumia answers and says he was unaware Boakye Agyarko had made such a statement and adds that even if he did the figures on the pink sheets says otherwise and that is more important.

Lithur suggests that every case outlined here as over voting could only have been attributed to administrative errors.

Bawumia rejects that suggestion.

Lithur picks another pink sheet in which the total number of registered voters tallied with the total number of ballots and asks witness how he arrived at the conclusion that there was over voting.

Bawumi admits that on the face of the pink sheet there was no over-voting but he is quick to add that he is not sure if this particular pink sheet is one of the over 700 pinks sheets they struck out. He also adds that the petitioners are genuinely willing to accept if there was no case of over voting.

Lithur brings another pink sheet exhibit in which the portion on C1 is 706. He finds out from the witness how he concluded that there has been over voting in that polling station. He accuses the petitioners of failing to take into account spoilt ballots issued in that polling station and says if those spoilt ballots were added to the total valid votes or ballots the number of ballots issued would have been 706 and there would have been no case of over voting.

Bawumia rejects that explanation. He says spoilt ballots are not added to the number of ballots issued. He explains when a ballot is deemed to have been spoilt, they are replaced for the voter to enable him or her to go and vote. He added that there is a portion which takes into account the total accounting off all ballots issued which will include rejected ballots, spoilt ballots, and valid votes. That portion where that information is put will not be C1, he argues.

Lithur bursts out saying the witness is irredeemably wrong and that spoilt ballots are added to issued ballots and that is the correct arithmetic.

Bawumia insists that will be weird arithmetic.

Judges says the EC will have its day to explain what the true position is.

1419 Court goes on recess for lunch and resumes 1505

Lithur continues with cross examination on over voting. He disputed another polling station the petitioners claimed there was over voting, but Bawumia insists the sum of figures confirmed their claim of over voting.

Lithur points to a clear wrong entry on a pink sheet, but Bawumia said there was an entry and doesn’t see anything like clear wrong entry.

Bawumia attempts to explain why in his calculation there was over voting at a particular polling station but Lithur shouts him down and insists on a straight forward answer.

Bawumia then tells him to calm down to enable him answer Lithur.

There is a controversy over figures and Bawumia requests for a calculator but Lithur refuses initially but after Bawumia answered his question he gives the calculator to him, but the two still dispute total figure.

Lithur points to another miscalculation which he says accounts for an entry error in CI column but Bawumia insists that is not the case because the CI should be filled before election takes place, and cannot tell the mind of the presiding officer. To Bawumia it was an illegality on the part of the 2nd respondents.

Total valid votes and rejected ones should sum up to the number in the ballot box but was not the case in another pink sheet, Lithur suggests it was an error but Bawumia disagrees.

Lithur asks if a formal complaint of over voting was made to the witness by their agents, and also whether the agents attested to the figures on the pink sheet.

Bawumia says the agents only attested to the figures but cannot tell the validity of them, stating that the agents don’t run election, so we cannot shift responsibility.

Bawumia is shown an unclear figure on a pink sheet and he confirms he is not sure of the figure himself; but says he is not sure if it is part of their data after deletion of some polling stations.

Another pink sheet is up for exhibition. Lithur points out wrong calculation and says correct calculation shows there is no over voting and Bawumia agrees after calculation.

Pink sheet shows that C1 is 118 but total votes is 119 after proper calculation, which Lithur says was a simply administrative error. Bawumia points out to him that he Lithur previously used same error to counter claims of over voting, but Lithur says that was not what he did.

Lithur asks Bawumia if he thinks the error was a deliberate act, Bawumia responds by saying the pink sheet speaks for itself. Lithur asks the same question again and Bawumia gives the same answer.

Bawumia insists total votes of 119 is more than the 118 in the C1 so there is irregularities. Asks Lithur not to impute motive.

Lithur goes ahead to ask if it was a malpractice, Bawumia simply says it is illegality. This continued for a while prompting one of the Judges to ask Lithur to take the answers provided by Bawumia and move on.

Lithur replies saying malpractice imputes willfulness to undermine a practice and wants to be clear on that from the witness. But the judge says Bawumia’s answer is based on the face of the record and that is all he can do, the rest if it is spiritual…sending the whole court into a spontaneous laughter.

Another pink sheet after exhibition, Lithur says again that there is another error and says if you add rejected ballots there would be no over voting, Bawumia agrees, says that is correct.

Another pink sheet comes in with wrong entry. There was a dispute over a figure – 1 -on top of the pink sheet but Bawumia insists he is seeing another figure 1 in D3 on the pink sheet and also another figure 2, down the pink sheet as the total.

There was back and forth as to the number of times the figure 1 appeared on pink sheet, prompting lawyer of the witness Philip Addison to ask for how long that will go on.

Lithur insists he is only cross examining the witness, insisting that the witness is being dishonest. I am allow to suggest to your witness that he is not telling the truth, that is permissible under cross examination.

Judge asks witness how many times did the figure 1 appear on the pink sheet, Bawumia paused for a while.

Lithur comes back saying with respect to the exhibit I am holding there is no over voting, but Bawumia disagrees.

Column C1 on another pink sheet appears blank so there is no basis for over voting, says Lithur, Bawumia insists surely, there was an over voting, says another way to hide over voting that is why it is required that the column is filled.

A Judges on the panel suggest ways to make the cross examination faster so that they can make progress on the case.

The judge suggested that Lithur gives advance notice to the petitioners on the pink sheets they will be cross-examining, so that the question can follow in court.

The judge says Lithur’s cross examination method is a laborious process of going through one sheet after another; even the EC has to examine those pink sheets. The judge reiterates this will ensure that the court makes progress. He says it will be good for others to do same; it is a suggestion, he adds.

Lithur accepts with a heavy heart, says pink sheets not ours.

If we give them, since it is a cross-examination they will think through the answers, destroy the element of surprise, which is essential part of the process, Lithur notes. He promises to list those that have to do with unsigned signatures.

But with voting without biometric, he says there are fundamental issues he needs to cross-examine, and later submit prepared list of some of the irregularities raised.

To avoid preempting his cross examination, Lithur says he will hesitate on giving in advance, the pink sheets.

But another judge comes to explain that Lithur can just tell them code numbers of the exhibits he intends using the following day. Judge expresses concern, saying, I can imagine when we are going to finish, with the rate that we are going. They, petitioners, already know the contents of the pink sheets, she says.

Lithur: if they knew they wouldn’t have brought sheets that showed no over voting. Let’s maintain same modalities, prejudice is the kind of defence he wants to avoid. Insists he will not go through irregularities concerning serial numbers and signatures. But over voting varies according to sheets, giving it out, the surprise element to test witness’ credibility will be lost.

A Judge points out that when counsel for the first respondent’s followed the earlier directive by the court, there was no prejudice. He says the pink sheets are documentary evidence, no one can doctor it. It is a matter of just looking at it: what is there and not there, can’t see the element of surprise.

Lithur insists it is good to start a trend and supply the rest later, and judge takes his assurance.

Lithur asked to proceed with his last question. He brings out another pink sheet and disputes claim of over voting based on miscalculation, but Bawumia insists there was over voting.

17:15 Court adjourns hearing, sitting continues tomorrow

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