Judges Protest ‘Boring’ Cross Examination

Tony Lithur

Tony Lithur

The laborious manner in which President John Dramani Mahama’s lawyer, Tony Lithur, cross-examines a star witness in the presidential election petition, yesterday attracted what looked like a subtle protest from the nine-member panel of Supreme Court Justices hearing the case.

For almost a whole day, Tony Lithur, lead counsel for President Mahama, kept asking the Second petitioner, Dr. Mahamudu Bawumia, virtually the same questions on different categories of over-voting to which the witness appeared to give the same answers on the emerging issues.

However, as the exercise appeared to be boring, one of the panel members, Justice Jones Victor Dotse tried to offer a ‘personal’ suggestion to Mr. Lithur so as to aid expeditious trial.

Justice Dotse: I think we have made some progress but I believe we can make much faster progress….I am not speaking on behalf of the court, I am speaking on my own behalf. I am not meaning to direct you on how to do your cross-examination. For example, there are some areas like we are dealing with over-voting now, there is also No Biometric Verification, there is also No Signature and also Duplicate Serial Numbers, if you have put your numbers together (Pink Sheets) and to give them (Petitioners) an advance notice so that they check those particular pink sheets before we come to court…this laborious process of picking one [pink sheet] and showing it to them…Some have been deleted but questions are still being asked on them. So in order for us to make some progress, I am not limiting this suggestion only to your cross-examination, but it might be necessary for all others to adopt a similar line, if need be to expedite the process.

Mr. Lithur: The pink sheets are not our pink sheets, it’s their pink sheets and my point really is that if we are giving them the pink sheets….I am telling you (petitioners) what questions I am going to ask….they now go and think through the answers…that destroys the element of surprise which is part of the cross-examination process.

“I think that surprise is an essential part of that process. What I have done with the rest, your suggestions, I will not hesitate to do…. In terms of biometrics, there are fundamental issues around biometrics that I will like to cross-examine on before I give the list out…Going forward, some of them, I will not hesitate to give the list ahead of time. Some I hesitate because I honestly-and it is my honest opinion, that my cross-examination would be preempted by giving those lists…”

Justice Rose C. Owusu, another panel member, then came in to ask Mr Lithur, “From your list, they wouldn’t know the sort of questions you would be asking, so just let them know that we would be privy to exhibit MBC 10 to 50 then you give them MBC 10 to 50. You see, you will not indicate what questions you will be asking in respect of the pink sheets.

Mr. Lithur then said, “My lords trust me”, but before he could complete his statement, Justice Owusu cut in to say, “Before we come here, you will know exactly what you want, and they would know what they are supposed to answer to, otherwise, I cannot imagine when we are going to finish, the rate at which we are going.”

Mr. Lithur then said, My lords, we have tried to respect the court’s directions in terms of expedition, we have. While there is need for expedition, I think that should be balanced against the normal rules that we know and that we are used to operating within.”

Same Old Process

Before the judges’ intervention, the laborious exercise had continued unabated.

Counsel (Mr Lithur): Doctor let me first congratulate you; I noticed in the papers today that you’ve been asked to return back to your job at the ADB (African Development Bank), congratulations.

Witness (Dr. Bawumia): I think you should stop reading too many newspapers.

The answer received spontaneous laughter in the courtroom.

Counsel: Doctor I have in my hands exhibit MB C 34 and the polling station name is Awurata and the polling station code G191103 and this has been exhibited as proof of over-voting. Can you look on the exhibit and tell me whether you can find any basis at all for that conclusion?

Witness:  My lords given that we have deleted over 700 polling stations since we filed the affidavit, it would have been helpful if I could have checked to see if this is still part of our case, but if I have to just answer to it as it is then, yes.

Counsel: Doctor, the evidence is clear on the face of the Pink Sheet. On the face of the pink sheet, is there any basis upon which you arrived at the conclusion that there was over-voting?

Witness: Absolutely my lords, on the face of this pink sheet, we have a lot of basis for classifying this particular polling station as one where over-voting took place. My lords, over-voting, as we have defined it, is the situation where the total votes in the ballot box exceeds the number of ballots given to voters to vote or number of registered voters at the polling station…..

Counsel: I am suggesting to you that there is no basis upon which you concluded and exhibited to this court that this particular pink sheet is proof of over-voting. My lords I have in my custody exhibit MB C18 and the polling station name is Asuoso La Primary Number 2 and the polling station code is F372305- any basis upon which you could have concluded there was over-voting on that exhibit?

Witness: Yes my lords, C 1 (ballot accounting section)  again is blank

Counsel: And that is proof of over-voting?

Witness: Yes my lords, it is proof that someone may have been hiding something by not filling C1.

Counsel: Your candidate was resoundingly beaten at that polling station, are you suggesting that the EC was trying to favour your candidate by undermining this sheet?

Witness: There was a resounding illegality in this polling station and that illegality is over-voting and if you don’t fill C1, it is the easiest way to hide over-voting and this is why we classify it as over-voting and this is why the second respondent requires that it should be filled out before counting begins so that you don’t go back to change numbers subsequently.

Counsel: You are accusing the EC?

Witness: We are only looking at the face of the pink sheets; it speaks for itself, my lords….My lords we have an exhibit showing the number of polling stations deleted from the different categories which are in evidence; may I be able to refer to it?

Counsel: My lords I haven’t asked any question on the sheet yet, we are just identifying them…(Counsel for petitioners, Philip Addison interrupts )

Counsel (Mr. Addison): My lords witness is asking leave of the court to refresh his memory on matters that are already in evidence. My lords we are talking of 11,000 plus polling stations, he possibly cannot have all in his head. All he is asking the court is to be able to refer to matters that are already in evidence. We are here for nothing but the truth!

Counsel: My lords, I haven’t even asked a question yet, I haven’t asked any question in relation to the document here, I would like to introduce the document properly before I even ask the questions…(Justice Atuguba cuts in)

Justice Atuguba: Okay, go ahead, you’ve fought enough, go ahead.

Counsel: I didn’t think I was fighting my lord….(General laugher)

Justice Atuguba: But it has a contextual meaning…. (Laughter again)

Counsel goes back into the lengthy individual scrutiny of pink sheets

Counsel: My lords, I have here exhibit MBC 196. There is absolutely no other detail that is discernible from this sheet, but was labeled in proof of over-voting.

Witness: This again is the same as what you just showed me, there is really no basis, which is why I am telling you that I don’t think this is part of our case. I am sure it should be in one of those that were deleted.

Counsel: You swore to an affidavit exhibiting this sheet, didn’t you?

Witness: Oh we did, and when we came to court, we informed the court that we’ve reduced the number from 11,842 to 11, 138. We also gave court specific information that we had decreased by further 83, so there is nothing here that will speak to trying to mislead the court. Once we recognized that certain pink sheets that we could not sustain, we deleted them, and we deleted about 700 pink sheets so far. If you will only look at what we have in evidence, I think you will find that maybe you may not be making any substantive change to the results that we have presented.

Counsel: It seems to me you used each and every of these pink sheets in your so-called analysis.

Witness: Well, my lords that is not true and I would ask counsel to then allow me to tender in all the pink sheets that we used in our analysis and he can see what the truth is, but he seems quite unwilling to do that for some reason.

Counsel: You’ve had your day sir…(he subsequently went on to repeat the same cross-examination)

The Dog Fight

Counsel: (Picking a pink sheet from a polling station, he passed it round the court for scrutiny)…Now Doctor, what is recorded as rejected ballot?

Witness: It’s not very clear, there is a mark in D6 but it is put at 2 in A plus B in rejected ballot down there.

Counsel: Doctor, I can see only one (1) written at the top D 2, I think that was written at the bottom.

Witness: This is what I am saying, that there is a mark, but I am not sure exactly whether it is 2 or …..(Interrupted by Counsel)

Counsel: Say what is there.

Witness: What is there is two (2), this is what has been put there. I am not sure what the total here is from the D box so we can only go by what is under rejected ballot in section B.

Counsel: Doctor, you have seen mistakes being made on simple addition of rejected ballots. In D2 there is only one (1) so there shouldn’t be two at the bottom. That is what I’m suggesting to you.

Witness: Well, it could be the case. It could not be the case so what we are going by is what is on here. I don’t know what the total here is, it is put down here as two (2) so that is what I have to take.

Counsel: What I’m suggesting to you is that what is at the bottom does not reflect on the face of the pink sheet….What is at the top Doctor, just be honest, it’s one (1). There is one (1) clearly written at the top there.

Witness: There is one (1) at the top and if you go down, you will see another one (1) in D3.

Counsel: There is no one (I) in D3.

Witness: Take another look at it.

Counsel: I have looked at it Doctor, there is no one in D3…(back and forth banter between Counsel and Witness. Petitioners Counsel interrupts)

Mr. Addison: My lords, for how long will this go on?

Counsel: But I am cross-examining….

 (Mr. Addison): I mean for how long will it go on?

Counsel: This interruptions would not help, my lords, they don’t help.

Mr Addison: What is this?  You are accusing the witness of being dishonest.

Counsel: I am actually suggesting to him, he is being dishonest. It is a direct suggestion, I am not squirming away from that, because I think he is being dishonest, counsel….(Continuous banter between both counsel as court bailiff barks Order! Order!! Justice Atuguba mediates).

Justice Atuguba: Counsel, can you finalise that portion? …. (Tempers calmed as Mr. Lithur continues his cross-examination as judges get increasingly impatient at the slow pace. Justice Victor Jones Dotse intervenes)…

Sitting continues today.

 By William Yaw Owusu & Raphael Ofori-Adeniran