Heated exchanges characterised proceedings in the presidential election petition at the Supreme Court Thursday, as counsel for the Electoral Commission (EC), Mr James Quashie-Idun, was heckled by both the bench and lawyers for the petitioners.
That was the result of the EC’s failure to file exhibits in response to the allegations by the petitioners.
Therefore, attempts by Mr Quashie-Idun to tender documents through the star witness of the petitioners, Dr Mahamadu Bawumia, were met with fierce resistance.
In its attempts to take a decision on the matter, the court sometimes found itself in a tight corner, resulting in two majority votes, one admitting a document and the other refusing it.
Mr Quashie-Idun finally took a cue from the bench after he had been warned to desist from that practice.
But the tense atmosphere was spiced with humour provided by the moderators, especially Mr Justice William Atuguba, the President of the court, who, at the tail end of the day’s proceedings, suggested that, by way of preservation, the EC’s counsel should sit down if he was tired.
Counsel did not oblige and replied that he was fine, but not quite long after that, he conceded that fatigue had taken a toll on him.
To that, Mr Justice Atuguba retorted that those on the bench were fine, sending the packed courtroom into intense laughter.
Mr Quashie-Idun started off the cross-examination from where he had left off the previous day and asked whether, during a meeting that representatives of the political parties, including the New Patriotic Party (NPP), had with the National Peace Council, the petitioners had made any complaint at all.
The witness replied that although he was not present at that meeting, he recalled that a complaint was lodged with the EC Chairman concerning discrepancies relating to the election results, but the petitioners were asked to go to court, which was why they had come to court.
Dr Bawumia agreed with counsel that the Dome Kwabenya Constituency was one such area where discrepancies were recorded and the votes had to be recounted several times.
His understanding, he said, was that there were inconsistencies in the results and they were corrected after a number of recounting had taken place.
Mr Quashie-Idun mentioned the results of certain polling stations which the witness said were duplicated.
When counsel suggested to the witness that the petitioners did not have sufficient evidence to convince the Chairman of the EC during the meeting, the witness offered to give a response linking the 2008 results but that line of response was rejected by the court.
Finally, in answering that question, Dr Bawumia agreed that their evidence was insufficient and that was why they were asked to go to court.
The first attempt by counsel for the EC to tender in a list of results compiled by the commission was objected to by the petitioners’ lawyer, Mr Philip Addison, because, as Mr Addison put it, there was no basis for that because the document had no original exhibit to compare with.
Counsel for President Mahama, Mr Tony Lithur, and that for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, did not object to the tendering and, in fact, that was the way they treated all other attempts by counsel for the EC.
Eventually, the document was accepted and tendered in evidence.
Mr Quashie-Idun suggested to the witness that out of the 26,002 polling stations, the petitioners were able to provide only one example of over-voting.
But witness insisted there were 11,138 examples of irregularities recorded by the petitioners and in all those cases the results enured to the benefit of the President.
Dr Bawumia said it was not correct that during the registration exercise that preceded the December 2012 elections political parties were provided with the records of daily registered voters and that he was unaware that they were provided with that data on a daily basis.
According to the witness, the EC provided the political parties with the voters register, which came in three batches between November and December 2012, while his understanding was that each polling station had one verification device for both the presidential and parliamentary elections.
An attempt by Mr Quashie-Idun to tender the pink sheet of the witness’ polling station was fiercely resisted by Mr Addison, who argued that no proper foundation had been laid, while the attempt was an ambush on them because the EC failed to file a single pink sheet when the petitioners had filed in excess of 11,000.
Mr Addison argued that the pink sheet in question was not part of the petitioners’ 11,842, which were later reduced to 11,138, and, therefore, it was irrelevant.
The court, by a majority of 6-3, upheld the objection.
The witness said he was aware the EC made an error in the presidential election results as declared but he disagreed that the error affected the total votes cast.
Regarding witness’ earlier testimony on the voter’s identity card, which he described as Form 1 C, and the bottom part of which was torn to the voter, counsel attempted to tender the form but he was again opposed.
Mr Addison, in his argument, said the commission should be restrained from tendering documents which had not been exhibited.
The court, this time, ruled by a 7-2 majority to overrule the objection.
After that, the stage was set for some education on the election, as a column on the form indicated the type of verification of the voter involved.
The witness, in response to a question by counsel that fingerprinting was not the only form of verification, said the law made provision for people with disability, such as lepers and those who had lost their fingers.
Dr Bawumia said 3,196 voters voted without fingerprint verification and that they were verified by their faces only and which was indicated on the form as FO, adding that those in that category were in three regions, namely, the Western, Central and Volta regions.
At some stages during his evidence when Dr Bawumia tried to expatiate on his responses which did not favour counsel, counsel persistently rebuffed the witness.
The witness had to be cautioned by the bench not to engage in ‘’any political colouring but the raw facts’’, since the confrontational approach was not needed.
A further attempt by Mr Quashie-Idun to tender another document through the witness was fiercely opposed by Mr Addison, whose insistence won the day, as the EC’s counsel was forced to withdraw the exhibits because every indication from the bench pointed to the fact that he risked having it refused.
What generated the most heated argument were three pink sheets from the Juaso Court Hall Polling Station which counsel wanted to tender in evidence through the witness.
When lawyers for the petitioners were going through those sheets, Mr Justice Atuguba said jovially that the lawyers should also nominate two pink sheet agents, to which the whole courtroom burst into laughter.
Mr Addison objected on the grounds that every writing on the sheet to be tendered was in blue ink, except where records on the special voting had been entered, which was in red ink.
He said the EC’s response to that had been inconsistent and that no mention of special votes was made by the EC and the election guidelines referred to by the commission required that the results of special voting should be recorded on collation forms at the collation centre, not pink sheets, which related to polling station declaration results.
Mr Lithur did not oppose the tendering but expressed amazement that the original of an official document was being rejected.
Mr Addison replied that Mr Lithur’s support was not required, since it was the EC’s lawyer who was seeking to tender the document, to which the President of the court wondered in what capacity the lawyers for the respondents were arguing the objection.
Counsel for the NDC said he represented a political party which had an interest in the matter and so if a document was to be tendered which would affect his client, it was appropriate that he be heard.
To that, Mr Addison said respondents’ lawyers did not raise any challenge to their affidavit and Mr Lithur stood up to rebut that.
Mr Justice Atuguba urged the lawyers on both sides to consider the substance of the matter and refrain from heckling, since that did not solve the problem.
According to Mr Tsikata, the court had had evidence from the witness which showed that there were some pink sheets with different signatures, one of which was a forgery on its face.
He said the document involved was one of the documents which had the tendency to affect the outcome of the case and that being an official document, it ought to be admitted.
The President of the court drew a distinction between what ought to be tendered and the proper person to tender an exhibit, while Mr Justice Sulley Gbadegbe also drew a distinction between identifying a document and tendering it, saying once an effort was made to tender a document, the court was bound to rule on it.
He said the document could be identified and so the right thing ought to be done in accordance with the rules.
When it became apparent that Mr Quashie-Idun was not prepared to withdraw the document, he was asked by the court to make his position clear for the court to rule on that.
The document was finally withdrawn when Mr Justice Atuguba hinted that any more attempt to have similar documents tendered would be overruled.
When fatigue seemed to have taken a toll on Mr Quashie-Idun, his line of questioning became repetitive and he was urged several times to reserve them for his final address.
He was also urged to take a seat, instead of standing up.
Counsel said he was alright, but not quite long after that, he gave in and asked for an adjournment which, interestingly, was not opposed by any of the lawyers.
Hearing continues Monday April 29, 2013.
Story: Stephen Sah/Graphic.com.gh