Tony Lithur, lead counsel for President John Dramani Mahama, yesterday tried to discredit star witness Dr. Mahamudu Bawumia in the presidential election petition, but the economist remained resolute in his answers.
In the course of the second day of heated exchanges during cross-examination, Mr Lithur suggested to Dr Bawumia that the petitioners deliberately duplicated the pink sheets, filed them as exhibits in order to deceive the court.
However, the former deputy Governor of Bank of Ghana and running mate to the NPP Presidential candidate for the 2012 elections said, “if it is duplication of pink sheets you are looking for then I can tell you that you have a higher mountain to climb and it is higher like Kilimanjaro.”
The Supreme Court also rejected a request by the respondents to have all polling stations in dispute re-counted.
According to the nine-member panel presided over by Justice William Atuguba, once the First respondent (President John Mahama) and Third respondents (National Democratic Congress) in their affidavits had been able to ascertain the number of polling stations, there was no need to order a recount.
The issue of how many pink sheets or polling stations – where violations, irregularities and malpractices occurred – were involved in the analysis of the petitioners, has become contentious issues between the parties.
There was a suggestion by a member of the panel that the team of auditors requested by President Mahama’s lawyer to audit the pink sheets can also go into tallying the votes since that was the core of the petitioners’ demand.
The first respondent’s lawyer rejected that suggestion indicating that it was too early to tabulate the entire results.
Over 11,000 vrs 8,621
According to the respondents, the petitioners have kept changing the number of pink sheets of polling stations involved starting from over 11,800 to over 11,200 before settling on 11,138 even though when the court ordered the petitioners to serve them (respondents) further and better particulars, they only served them 8,621 pink sheets.
As the cross-examination ensued, Mr. Lithur requested the court to have all the pink sheets re-counted.
Lithur Grills Bawumia
Mr. Lithur asked Dr. Bawumia that “if we counted the pink sheets one by one, we will not have 11,138 polling stations that have formed the basis of your claim.”
Dr. Bawumia replied that “I disagree”, to which counsel said “I would want to apply to have them counted if not today. I am asking for an order from the court.”
Mr. Lithur said that right from the order for further and better particulars, “we have indicated that the petitioners have not served us with all of them.”
He said “we want the court to determine the actual number of polling stations involved.”
NDC Joins Lithur
Tsatsu Tsikata, representing the NDC supported Mr. Lithur’s position saying, “We need that since the case of the petitioners is founded on the evidence attached as exhibits.”
He noted that an independent auditing of the numbers involved would go a long way to expedite the trial saying “both sides are clear on the figures so it is important to determine who is clearly wrong.”
EC Supports Mahama & NDC
The Electoral Commission (EC) represented by James Quarshie-Idun also associated himself with the position of President Mahama and the NDC saying that in their second amended answer to the second amended petition, they raised the same issue that the petitioners had failed to serve them with all the further and better particulars they requested.
Justice Paul Baffoe-Bonnie then cut in to ask the respondents whether the pink sheets had not been put in as exhibits not for their individual effects.
He asked again: “Would you go further to talk about the aggregation in terms of figures? It is the aggregation of figures on the pink sheets based on the various categories of violation that count.”
Mr. Tsikata then said “our point is that the petitioners are saying that in those 11,138 there have been irregularities. The court ordered further and better particulars so we know where they claim irregularities occurred and if they do not have them exhibited then they have not obeyed the court’s order.”
Mr. Lithur came back to say that each polling station represented numbers and therefore they must be able to show those numbers and not some of them.
Another Judge Queries EC
Justice Jones Victor Dotse, another member of the panel, then sought to know from the EC counsel, if he was supporting President Mahama and NDC applications, to which Mr. Quarshie-Idun said “yes”.
Philip Addison, lead counsel for the petitioners, then took the floor and said that should the court decide to do a re-count of polling stations it should include an audit of the votes on the pink sheets.
“For us what is important is the number of votes we are seeking to annul and not the number of polling stations.”
“We are saying that the votes if annulled will have material effect on the results declared by the Second Respondent. There is the need for audit of the votes on the Pink Sheets.”
He said that the petitioners complied with the court’s order to serve the respondents with further and better particulars saying “at the time we did so it was in the region of 11,842 polling stations and it is on the basis of the numbers that we filed our affidavit. Subsequent to that, we reduced it to 11,138.”
Mr. Addison said that it was the audit of the votes that would determine whether or not the votes were affected adding that after filling manually they followed it up with electronic copies.
Audit vrs Headcount
“We are not opposed to the audit but the referee should do more than the auditing of only polling stations and look for the numbers involved in irregularities,” Mr Addison said.
“We want a head count of the pink sheets and not audit. Audit is not too far away,” Mr. Lithur replied Mr. Addison, adding “when you have not proved that there is over-voting, voting without biometric, no signatures on pink sheets, how do you call for an audit?”
But Mr. Addison replied that “we want a full audit in respect of the case we have made. Audit will establish the numbers of these violations.”
The court after a short break held that “we have noticed from the affidavits filed by the First and Third respondents that they have 8,621. If that is so, it means they have been able to ascertain 8,621. It is a question of demonstrating their case in the course of leading their evidence.”
The court held that it did not have any difficulty if the respondents insisted they filed 8,621 polling stations saying “it is a question of demonstrating that this is what we received.”
The court then overruled the respondents request for an audit of the pink sheets but added that they had liberty to reapply at any time.
Parliamentary Pink Sheet
After the ruling, Mr. Lithur was able to pinpoint a pink sheet which he said was that of parliamentary results which had been added as presidential and accused the petitioners of shoring up the number of pink sheets to deceive the court.
Missing Polling Stations
Counsel also found out from Dr. Bawumia if the 22 polling stations that the petitioners claim were not part of the 26,002 endorsed by the EC, were in the system and due diligence on the part of the petitioners would have proved otherwise, but the witness insisted that the codes of those polling stations could not be found and they had to categorise them as not part of the main system.
On the issue of over-voting, Dr. Bawumia did not agree with counsel that because NPP polling agents did not complain, the petitioners could not raise the issue.
Mr. Lithur again suggested to the witness that the EC, in its answers, had admitted that some errors committed by their officers might have led to over-voting to which Dr. Bawumia said “we only looked at the records in our analyses…Over-voting is over-voting.”
He said that over 95 per cent of the incidence of over-voting did not appear in the category of zero as suggested by counsel.
By William Yaw Owusu