10:00 Day seven of substantive hearing of the election petition begins with the nine panel of judges taking. Petitioners and respondents in the case introduced. Counsel for petitioners and respondents take turn to introduce their team as usual.
Counsel for EC Quashie-Idun continues with his cross-examination with the second respondent, Dr Mahamudu Bawumia.
Repetition of exhibit claims by counsel disputed by Bawumia insisting that there is repetition in the labelling but not the analysis. Quashie Idun reminds him of his oath.
Counsel points out to Bawumia that the ballot boxes were placed in public and therefore makes it difficult for stuffing of the ballot boxes, but the witness says the evidence on the pink sheets indicated there was over voting which meant ballot boxes were stuffed.
Quashie Idun suggests that the witness did not give a single example of instances where the number of votes exceeded the total number of registered voters.
Bawumia denies that suggestion and requests the court to grant him the opportunity to refer to his notes so he can mention the exact polling station where that irregularity occurred.
Bawumia in an answer to a question mentions issues of bribery and extortion which he says were some of the allegations and complaints that came up shortly after voting but he adds that those issues could not be proved and therefore the petitioners had to rely on those allegations that could be proved by the evidence on the pink sheets.
Counsel for the first respondent Tony Lithur objects and asks the court to strike out issues of bribery and corruption mentioned by the witness because it had not been pleaded.
Counsel for the petitioners Philip Addison also springs up saying Lithur has had his day with the cross examination and therefore cannot interject. He says the witness only cited issues about bribery and corruption as examples of the many complaints they had but because those allegations were difficult to prove they were not pleaded by the petitioners.
Presiding Judge Atuguba intervenes and asks Quarshie Idun to proceed with cross examination.
Quarshie-Idun proceeds. He draws witness back to a meeting between the petitioners and the chairman of the second respondents held before the declaration of the election results. He says issues of over voting, same serial numbers and voting without biometric verification were not made.
Bawumia answers and says a number of complaints were made at that meeting and the chairman of the second respondent made it clear that the evidence was not substantial and will therefore go ahead with the declaration. He says the chairman of the second respondent then advised the petitioners to go to court and that is why they are here.
Quarshie-Idun asks if the petitioners were provided with voters register in November 2012; Bawumia answers in the affirmative and says the register was provided in three batches.
Quarshie-Idun goes ahead and avers that only one register was used for the presidential and parliamentary elections and not two as said by the witness.
Bawumia says the evidence on the pink sheets shows a different picture that indicated that there was a different register used for the presidential and another for parliamentary elections.
Quarshie-Idun produces a pink sheet of the polling station in which Bawumia voted. He asks if Bawumia brought along his voter ID card. Bawumia says he did not think he would need one at the Supreme Court so he did not bring it.
Quarshie-Idun tenders in evidence the pink sheets of Bawumia’s polling station. He takes it round for the counsel on the other side to take a look at.
Counsel for the petitioners Philip Addison vehemently objects to the tendering of the document. He argues the second respondent has not laid the proper foundation on which this document is being tendered. He says the petitioners had exhibited over 11,000 pink sheets and the second respondent has not exhibited a single pink sheet in their affidavits. He finds it rather amazing that counsel for the second respondent will now be springing surprises with pink sheets that are not in evidence. He describes the action as ambush litigation
Lawyers for the two other respondents have no objection to the tendering of the document.
Quarshie-Idun returns and pleads the court to overrule the objection saying he only wants to take the witness through the process of voting. He adds Bawumia’s polling station was one of the 24,000 polling station where voting was conducted and therefore he has every right to ask questions on how voting was conducted there.
Philip Addison springs up again and says the counsel had already taken the witness through the processes of voting. He says that was done by the counsel in his cross examination yesterday. He finds it as a waste of the court’s time to be taken through another round lessons on the processes of voting.
Judges by a 6-3 majority rules and upholds the objection by the petitioners.
Quarshie Idun goes ahead with his cross examination.
Controversy on total number of registered voters
Counsel for the second petitioner cites paragraph 8 of their amended answer to the petition filed and says that the chairman of the second respondent in announcing the results of the 2012 General election made a mistake in quoting the total number of registered voters. He says instead of 14,031793, the chairman erroneously used the figure 14 158890. He adds, that error only affected the turnout percentage and not the total valid votes cast.
Bawumia disagrees. He says the explanation given by the second respondent for the difference in numbers was untenable. He says the second respondent had stated that the initial number of registered voters was a little over 13, million but after it went ahead to do foreign registration the number increased to 14,158,890 a difference of over 240,000. He says they asked the second respondent to provide particulars of those who were registered abroad and when that list was provided they realised there were fake Voter IDs. “That is we did not believe that those figures had no impact on the valid votes cast.”
Quarshie Idun debunks assertions by the witness that the second respondent stated in its answer to the petition that the increase in total number of registered voters from 13 million to 14 million was as a result of registration of voters abroad. He produces the answer to the interrogatories filed by the second respondent on 12 February, 2013 and asks witness to read relevant portions.
Bawumia takes document after it has been perused by counsel on all sides. He reads the portions which spells out the reasons for the increase in the total number of registered voters. That reasons, among others also included the registration of foreign students, workers and troops abroad. He concludes his reading of the document.
Quarshie-Idun suggests that based on what has been read, the second respondent did not say that the total number of registered voters increased because of registration of foreign voters.
Bawumia disagrees and sarcastically asks the counsel if he could read it again so he could hear it again.
Quarshie-Idun tenders another document titled “Form 1C” on which he intends to cross examine the witness.
Counsel for the petitioners raises another objection to the tendering of the document saying the counsel for the second respondent had not pleaded it. He says he just wants to be consistent with his objections.
Counsel for the first Respondent and the third respondent Tony Lithur and Tsatsu Tsikata respectively had no objections to the tendering of the document.
Judges by a 7-2 majority overrules the objection by the petitioners and asks counsel for the second respondent to proceed.
Quarshie Idun goes ahead with his cross-examination and asks the witness to read relevant portions on voting without verification and what it says about disability voting. Bawumia reads.
Quarshie Idun then goes ahead and asks the witness if what he has read did not contradict his earlier evidence that biometric voting was only through finger print verification.
Bawumia disagrees and says the law on biometric verification is clear and makes exceptions only for people with disability. He says his evidence pleaded was in relation to the able bodied voters who had to be properly verified before voting but were not. He gives the total number of disability voters in that category to be 3,196 and who were potentially excluded from the normal way of biometric verification. He sarcastically again asks counsel if he could provide him with details of disability voters who should be excluded from the normal way of biometric verification.
Presiding Judge Atuguba cautions Bawumia to stop the “theatricals.” He says some of those comments are superfluous.
Quarshie-Idun requests for a recess but presiding judge Atuguba asks him to proceed until 1230. He proceeds.
Quarshie-Idun brings out another pink sheet which indicated that all the voters who voted in that polling station were not verified. He says the figures on the pink sheet show an error on the part of the presiding officer and not that people had voted without being verified.
Bawumia insists that on the face of the pink sheet all the voters in that particular polling station voted without biometric verification. He says neither himself nor counsel for the second respondent was at that particular polling station and so the only thing to rely on is the pink sheet. He says on the face of the pink sheet all the voters in that polling station voted without being biometrically verified.
Quarshie Idun asks for a break. Judge William Atuguba grants him.
Court goes on recess at 1230 to return at 1330
1335 Court resumes
Quarshie Idun continues from where he left off and on the issue of voting without verification.
He asks Bawumia to affirm that the biometric machine keeps records of the time verified and the bio-data details of the prospective voter.
Bawumia answers in the affirmative.
Quarshie-Idun then tenders in an exhibit of a pink sheet on which he would cross-examine the witness on the issue of biometric verification.
Philip Addison raises an objection to the tendering of the document. He describes it as self serving. He says petitioners cannot authenticate the document and advises counsel of the second respondent to wait if it gets to the turn of his witness then he can tender it.
Judge Atuguba agrees with the objection.
Quarshie Idun then withdraws the document. Philip Addison goes ahead to plead with the court to strike out answers earlier provided by the witness on the withdrawn document.
Quarshie-Idun says the answers were only about how the biometric verification machine works and that is relevant to his is cross examination. He pleads that the court allow the answers from the witness to remain.
Judge William Atuguba asks that the last two answers by the witness should be struck out.
Quarshie Idun produces another pink sheet exhibit in which he says there has been trans-positional and clerical error in tabulation and not because all voters had voted without being verified. Bawumia disagrees.
Quarshie Idun presents three pinks sheets and asks witness to mention the polling station name and the code. He asks if there is duplication.
Bawumia says that polling station has three separate pink sheets with different codes but from the same station and with different presiding officers. That is one of the irregularity we have complained about, he adds.
Quarshie-Idun suggests that one of the three pink sheets in question is related to special voting and cannot be said to the same pink sheets from the same polling station.
He presents what he says is the original pink sheet for the three exhibited pink sheet in question and attempts to tender it in evidence.
Counsel for the Petitioners Philip Addison raises a strong objection. He says every writing in this so-called original pink sheet is in blue except the special voting that has been written in red. Philip Addison alleges that the issue about special voting was an afterthought by the second respondent. He reads Paragraph 59 of their affidavits in which the petitioners exhibited three polling station they claimed had a combined effect of same polling station, same codes but different election results and different presiding officers. He goes ahead to read the answer by the second respondent and says the second respondent did not make mention of special voting in their answer to the specific allegations made on the three pink sheets. He questions the authenticity of the document that has been sprung on the petitioners and prays the court to over rule its tendering.
Counsel for first respondent Tony Lithur has no objection to the tendering of the document. He expresses total shock about the objection being raised by the petitioners’ counsel and says the arguments to back that objection are fundamentally flawed.
Addison springs to his feet and vehemently objects to the line of arguments by the counsel for the first respondent. He says his objection was to the second respondent and not to him and he respectfully asks the court to stop him from making those comments.
Tsatsu Tsikata is up on his feet. He has no objection but has serious challenges with the line of arguement by the petitioners.
Addison rises to his feet and stops Tsikata from going ahead with his submission. He says the counsel for the third respondent has been making comments he is not supposed to be making and prays the court to limit to guide so he could make his comments at the appropriate time.
Atuguba intervenes and advises counsel for the second respondent to either withdraw his document because it has not been properly tendered in evidence or that the judges will rule on the admissibility of the document.
Quarshie Idun takes a cue from the presiding judge and withdraws the document.
Philip Addison prays the court to stop Quarshie Idun from springing up such surprises. He alleges the counsel has a pile of similar pink sheets which he intends to serve on the court. He asks the court to be stringent on this particular rule.
Quarshie Idun advises Addison to “look into his own cooking pot” and not to suggest that he Idun has many pink sheets which he will serve on the court.
Presiding Judge agrees with concerns of Addison and cautions the counsel for the second respondent to stop springing surprises with anonymous pink sheets, failure which the bench will take action.
Quarshie Idun goes ahead with his cross examination. He asks witness “Are you saying in your evidence that at anytime you see a blank space it is equivalent to zero?” Bawumia answers and says, in the context of over voting a blank space could mean zero. He says the easiest way to hide over voting is to leave a portion blank so that it will be difficult for people to ascertain whether or not there was over voting.
Quarshie Idun says the portions that were left blank were only an omission in completing the forms. Bawumia answers and says it was an omission that led to over voting.
Appeal for adjournment
At 1530 Quarshie Idun asks for proceedings to be adjourned. Presiding judge Atuguba reminds him that the time is not even 16 hours and asks the reason for call for adjournement. Quarshie Idun says fatigue has set in. Atuguba asks if sitting down for his cross-examination will mitigate the fatigue. He answers no. Another judge on the panel suggests to Quarshie Idun to allow a member of his legal team to continue with the cross examination but he objects to that suggestion. Another judge again humorously suggests if he will allow a counsel on the other side to take over his cross-examination? He says “appearances may be deceptive.”
Judge Atuguba then grants his requests for proceedings to be adjourned to Monday, April 29, 2013 at 9:00 am.