Counsel for President John Dramani Mahama in the presidential election petition at the Supreme Court Tuesday resolutely defended his line of cross-examination when the court expressed worry over the slow pace of proceedings.
According to Mr Tony Lithur, the nature of the case demanded that he adopt the style being used to test the credibility of the star witness for the petitioners.
Members of the panel drew counsel’s attention to the slow pace and it was Mr Justice Jones Dotse who first intimated that although some progress seemed to have been made, there was a way in which the case could proceed faster.
That was after counsel had furnished the petitioners with a list of pink sheets on which he intended to rely for his cross-examination.
Mr Justice Dotse said when that was done, counsel for the petitioners would be able to check on those pink sheets before they came to court, instead of the laborious process being adopted whereby pink sheets were picked one by one by counsel.
Mr Lithur responded that if he gave the petitioners those pink sheets, as suggested, the witness would have the chance to study them and come up with prepared answers, thereby defeating the element of surprise in cross-examination.
“There are fundamental issues regarding the irregularities raised by the petitioners; for instance, biometric verification. But with the rest of them we have prepared the list. Some I will hesitate because my cross-examination will be prejudiced,’’ counsel said.
Mrs Justice Rose Owusu said giving the list to the petitioners did not indicate what questions counsel would ask the witness and pointed out that otherwise “the court could not imagine when we are going to finish the case, considering the rate at which we are going’’.
She said already the petitioners knew the questions to be anticipated because those were what they had exhibited, but Mr Lithur still maintained that the petitioners did not know and that he had tried to comply with the court’s direction on an expeditious trial.
The Presiding Judge, Mr Justice William Atuguba, wondered what possible prejudice would be suffered by the respondents if the court’s advice was followed, especially when the mode of testimony was through documentary evidence.
He said by that procedure one just looked at what had been provided and determined whether they were true or not.
Earlier, the cross-examination had centred on pink sheets which related to over-voting and the line of questioning had followed the pattern of the previous days.
Proceedings became somehow lame, technical and confusing, but intermittent bouts of laughter generated by witness’ response livened up the courtroom.
The precursor to that was when Mr Lithur congratulated the witness on his new appointment, apparently reported in the media, to which Dr Bawumia retorted that counsel should then stop bombarding him with further pink sheets.
Counsel set the tone by asking the witness to explain the basis for establishing over-voting in their analysis, to which witness replied that that arose when the total number of votes in the ballot box exceeded the number of voters in the voters register.
Mr Lithur showed several copies of pink sheets in the over-voting category, some of which had blank columns, as well as unclear writings, to determine the correct results declared.
Witness explained that since those portions were not filled, it was easy to do anything with the number of votes declared, since those portions were to be filled before counting of votes began.
A list of pink sheets classified as over-voting was tendered in evidence without any objection from the petitioners.
After the tendering of the list, counsel seemed to have gone back to his former line of cross-examination and the court reminded him to change but he explained that was relevant because the pink sheets in contention had unclear writings.
At that stage, the witness sought refuge in a calculator to be able to sort out figures on some of the pink sheets.
He said he was unaware that their polling agents complained either orally or in writing to the EC about malpractices recorded during the election and that everything was embedded in the pink sheets exhibited by the petitioners.
A question that one of the petitioners’ communication directors, Mr Agyarko Boakye, had gone on radio to declare that the December 2012 presidential election was one of the cleanest generated heated argument, compelling the court to rule on its admissibility.
Counsel for the petitioners said it was irrelevant and had also not been pleaded by the respondents and that being in the affidavits of respondents did not mean it had been pleaded.
While referring to an affidavit filed by the General Secretary of the National Democratic Congress (NDC), Mr Johnson Asiedu Nketia, Mr Lithur unconsciously referred to him as General Mosquito and that livened up the court with laughter from all, including the bench.
After the court had paved the way for the question to be answered because it was relevant, Mr Bawumia said he was not aware of any such statement being made to that effect and more so that was not relevant.
But Mr Justice Atuguba retorted, albeit jovially, that witness could not overrule the court’s ruling that the question was relevant.
Counsel put it to the witness that every case of over-voting alleged by the petitioners could be attributed to an administrative error on the part of the EC, but the witness did not agree.
Then the issue of technicality and confusion set in when counsel tried to corner the witness on questions that related to portions on the pink sheets and the modalities involved in voting, recording and declaration of the results.
When the arithmetic involved became intense, it became obvious that those on the bench and the bar would have to take solace in what would be said by the EC.
In fact, Mr Justice Paul Baffoe-Bonnie said the arithmetic issue was not law but figures.
Hearing continues today – Wednesday
Story: Stephen Sah