EC Shot Down Over Smuggled Pink Sheets

James Quashie-Idun, counsel for EC

James Quashie-Idun, counsel for EC

Yesterday’s hearing of the election petition at the Supreme Court was characterised by heated arguments over attempts by the Electoral Commission (EC) to ‘smuggle’ in pink sheets as evidence.

The EC, through its counsel, James Quarshie-Idun, had tried to tender in evidence that it claimed to be an original pink sheet used in the December 2012 general elections, when the Supreme Court refused to admit the document.

The commission was seeking to use a particular pink sheet from the Juaso Court Hall polling station to prove a point that the special voting that took place ahead of the general elections also had pink sheets with special codes.

However, the star witness in the election petition, Dr. Mahamudu Bawumia, insisted, during cross examination by Mr Quarshie-Idun, that there was no polling station code for special voting because there were no pink sheets.

Surprise Pink Sheet

Counsel (Quarshie-Idun): Do you have the Juaso Court Hall with you?

Witness (Dr Bawumia): Yes, my lords, I have it.

Counsel: So Dr. Bawumia, you have in your hands three documents?

Witness: Yes, my lords.

Counsel: One is MBT 2; can you tell us the polling station name?

Witness: Juaso Court Hall, F262901

Counsel: The second one is MBY 15

Witness: Yes, that’s also Juaso Court Hall

Counsel: And code

Witness: F262901

Counsel: So that is duplication?

Witness: No, it isn’t duplication, my lords. We presented these three pink sheets during my Evidence-in-Chief as an example of duplicate polling stations codes and Juaso Court Hall happens to have three pink sheets and we mentioned that this is one of the irregularities that we are pointing to. The pink sheets have different presiding officers and signatures of the agents for the same polling station… (At this moment, the bench reminded the counsel that he did not mention the third pink sheet)

Counsel: We have MBT

Justice Atuguba: MBT what?

Counsel: MBT only, my lord. What is the code (referring to the witness)

Witness: F262901. It is the same polling station code for all three separate pink sheets.

Counsel: The one which you have is the one which has total number of valid votes as 124?

Witness: Yes, my lords.

Counsel: (Pulling out a pink sheet and on the verge of presenting it to the witness) My lords, I have the original of the pink sheet…or before that, I am suggesting to you, Dr. Bawumia, that MBT was Special Voting.

Witness: My lords, I do not agree…

Counsel: Very well.

Justice Atuguba: You are saying all these MBTs relate to Special Voting?

Counsel: One of them relates to special voting.

Justice Atuguba: Okay.

Counsel: MBT (ordinary) is the one that has total votes of 124, is that not so?

Witness: It is, but a special voting should not have a code like this.

Counsel: And the other two have a total vote of 292?

Witness: Yes, my lords.

Counsel (Pulling out a pink sheet) I have in my hands the original pink sheet of the Juaso Court Hall for the special voting…(Justice Atuguba interrupts)

Justice Atuguba: This MBT series, are they not exhibited to his affidavit?

Counsel: Yes, my lords.

Atuguba: If they are why another process of tendering….?

Counsel: Because the original has special voting written on it.

Justice Atuguba: The original?

Counsel: Yes, my lords, but the photocopy from the petitioners has blotted that out. It’s easy to see if you look at the two, my lords.

Justice Atuguba: Okay, so…

Justice Rose Owusu: The special voting has separate pink sheet?

Counsel: Some of them subsequently were used for the general voting on the 7th of December, but the special voting took place on the 4th of December.

Justice Owusu: Do they have a separate pink sheet (emphasising the word Separate).

Counsel: Absolutely, my lords.

Justice Owusu: For special voting?

Counsel: Definitely, my lords, definitely because they are counted in the same way as the general voting according to the CI. They are counted in the same way, but at the collation centre, so they have pink sheets.

Counsel (Addison): My lords, we object to the tendering of this pink sheet. First of all, every writing on the face of this pink sheet is in blue ink, except the special voting, which has been done in red ink and it is of recent vintage. It has been put there after everything here has been filled out, that is why special voting does not appear on any of the three pink sheets we have tendered in this court. But my lords, we made a categorical statement in our affidavit in paragraph 59 that the witness swore as follows: That there were three polling stations where exclusive instances of the irregularities and malpractices, polling stations with same polling codes and different results occurred and they can be found on the pink sheets. The combined effects of these infractions vitiated 687. Attached herewith and marked as exhibit MBT, MBT 1 and MBT 2 are photocopies of pink sheets of the polling stations where these infractions occurred.

Addison: Here was a specific mention of these pink sheets, and what was the response of the second respondent [EC], he responds in paragraph 14 (reading from the EC’s response to the petitioners’ Affidavit):  Paragraph 36 to 68-blanket; 38 to 68 contains inconsistencies and are denied. The second respondent says that the petitioners are fastening onto errors committed in the completion of pink sheets by presiding officers that did not benefit any particular candidate or affect the number of valid votes cast at the polling stations. Not a single statement about this being special voting -not a word of it! My lords, yesterday, counsel tendered through the witness their own guide to election officers and directed the witness to read page 7, paragraphs 2.2 and 2.3. Clearly stated there is no provision for pink sheets… (He reads the paragraphs)…so my lords there it is; on the collation forms, it does not say the pink sheets…. (Counsel tries to interrupt)

Addison: Please exercise some patience. My lords, the EL 23 B is the presidential results collation form which is done at the collation centre; completely different from the pink sheets we are talking about, which is also the polling station declaration of results. My lords, on form number 23 B, it is stated as number one, Special voting results, and that is embossed on the form and that is where the collation officer enters the results of the special voting after counting it at the collation centre. This is what it is said in their own guidelines… (Counsel for first respondent [President Mahama] Tony Lithur interjects).

Gang Up

Tony Lithur: My lords, is this an objection or an address?

Addison: My lords, the pink sheets statement of polls and declaration of results for the office of President is form number EL 21 B and the declaration which is the signature side is form number EL 22 B, so quite clearly, these are completely different forms from form number 23 B and 23 A which are collation station results. My lords, we question the authenticity of this document that has just been sprung on us.

Tony Lithur: My lords, we have no objection [to the tendering of the EC’s pink sheet], and I’m completely amazed that the official custodian of a document comes to court and says that what you have there, I have the original; there is no original anywhere. If there is any other body that handles official election documents, they can say it…The official custodian comes and say I have the original and I will like you to compare it with what is there and the objection is that you doubt the authenticity? Those are official documents and they are fundamentally relevant to this matter…how do we know that it wasn’t blotted out in photocopying, how do we know that? It’s a serious allegation …these are official original documents.

Addison: My lords, I need to take an objection to this kind of [support from counsel for first respondent on behalf of the counsel for the second respondent]. My lords, the objection, my lords, I do not think the counsel for first respondent can respond to the objection, in a way as if he is representing the second respondent. My lords, we need some directions in this respect, this has been going on for some time, and we do not think that it’s proper…(Counsel for the third respondent, Tsikata joins).

Tsatsu Tsikata: The third respondent is a party to this suit and material is being tendered in evidence, it is in relation to evidence in this suit which affects the conduct of the case of the third respondent and indeed other parties. It is therefore appropriate for parties to be heard in respect of these matters….We have been joined as parties for good reason….

Addison: My lords, I will like to bring to the notice of the court to the fact that there was no challenge to these exhibits; no challenge to the authenticity of these exhibits which we exhibited, I have referred your lordships to the particular paragraph in our affidavit. In their response, there was no challenge to it. Now, second respondent is saying that there was some writing on it that somehow did not appear on the ones that we served them with. Why did he not raise it in his affidavit; we cannot conduct this case in this manner; springing these things [pink sheets] at every turn.

Tony Lithur: We have challenged a host of exhibits they have brought to this court and the legitimate way of challenging it is by this method. I can’t see any other way of challenging those exhibits. We have indicated duplicated, quadruplicated sheets and those are exhibits in this case, we have challenged them…so it is not correct to say that we have not challenged the pink sheets that have been brought to this court….

Addison: My lords, are three people going to respond to one objection? What is your locus in this (referring to Counsel for both first and third respondents)? (Justice Atuguba intervenes)

Justice Atuguba: Let’s look at the substance of the matter.

Addison: No, my lords, these things are important, they keep on doing it.

Atuguba: That doesn’t solve the problem at stake …. In this case, it will be most unrealistic to compartmentalise…its one entire case; this way or that way. Now let’s put it another way: Assuming this type of evidence goes and it is something that affects the decision, are you saying that when they appeal, they can’t take a point?…It affects them, they have an interest, as for that, they are affected by the evidence being led and I think that is sufficient standing….well, that’s my view, but if it is contentious, we can retire and consider and come out and rule.

Bawumia’s Polling Station

The court in a 6-3 majority decision dismissed attempt by the EC counsel to tender in evidence pink sheet of the polling station where Dr. Bawumia cast his ballot during the election.

The rejection followed an objection raised by Mr. Addison over the tendering of the document by the EC since he said it had no relevance to the issues in evidence.

He argued that no proper foundation was made in tendering the pink sheet for Dr. Bawumia’s polling station and also said it amounted to ‘ambush litigation’.

“We attached 11,842 pink sheets, the 2nd respondent (EC) did not attach a single pink sheet as exhibit in their affidavit and yet they want to rely on something that is not known to us per the rules set for this trial.”

Mr. Addison said that the petitioners had not even complained about Dr. Bawumia’s polling station and it was not part of the polling stations being contested saying “I do not see the relevance here.”

However, Mr. Tony Lithur, counsel for President Mahama supported the EC saying he was not opposed to Mr. Quarshie-Idun’s move.

Tsatsu Tsikata, counsel for the NDC, also associated himself with the EC, saying that it was allowed for a party during cross-examination to produce documents to surprise a witness.

Mr. Quarshie-Idun also argued that Dr. Bawumia was able to identify the pink sheet out of the 26,002 as the place he cast his ballot and they wanted him to clarify the evidence he led.

Justices Atuguba, Sophia Adinyira and Vida Akoto-Bamfo had ruled that the EC should tender Dr. Bawumia’s polling station pink sheet while Justices Julius Ansah, Jones Victor Dotse, Rose C. Owusu, Annin-Yeboah, Paul Baffoe-Bonnie and Sulley N. Gbadegbe ruled that the EC could not tender the document.

Padded Votes

Dr. Bawumia told the court that padding of votes, as they alleged in the petition came in the form of over-voting, voting without biometric verification or duplicate serial numbers.

The EC counsel then pulled out a document, which he said  indicated how the commission announced the results but Mr. Addison objected and said Dr. Bawumia could not testify on a document the petitioners did not  generate.

Justice Atuguba then asked Mr. Quarshie-Idun to bring the primary pink sheets that were used to tabulate the figures that was being sought to be tendered.

The court said it was ‘provisionally’ accepting the document on condition that the EC would supply the court with the original copy.

Throughout the cross-examination, any error that occurred during the election had been described by Mr. Quarshie-Idun and Tony Lithur as ‘trans-positional or clerical errors’ and ‘administrative errors’ respectively but Dr. Bawumia had always parried all those suggestions.

EC Counsel: I suggest to you that out of the 26,002 you could provide only one polling station which we say is trans-positional or clerical error.

Witness: We have supplied 11,138 pink sheets of polling stations where we have detected discrepancies in the figures declared by the second respondent.

As counsel persistently put it to Dr. Bawumia that the petitioners did not raise any protest on the counting day, the witness said “we complained to the chairman of the second respondent and he told us to go to court.”

“My Lords there are many ways to kill a cat,” he added drawing spontaneous laughter in the courtroom and said that most of the votes that were under contention inured to the benefit of President Mahama.

Justice Baffoe-Bonnie even jokingly asked Dr. Bawumia to acknowledge that somebody (NDC Chairman Dr. Kwabena Adjei) owns the patent of the catch phrase.

Dr. Bawumia disagreed with the EC that the 14,158,890 voter register used in announcing the presidential results was an error and pointed out that there was a difference between the total number of votes in declaring the presidential and parliamentary votes put together.

Disability Issue

Counsel: Under cross examination, you insisted that biometric registration was only fingerprint, is that not correct?

Witness: This is what the CI 75 defines it as… (Counsel interrupts)

Counsel: In your Evidence in Chief, you insisted that biometric registration is only fingerprint.

Witness: It does, but the law also makes exceptions for people without fingers or people whose fingers could not be captured. That is in the law, but the equipment is for fingerprint verification.

Counsel: The photograph is also part of the details in the biometric register?

Witness: Yes, my lords.

Counsel: And so are the other details of the registrant; the person being registered.

Witness: Yes, my lords.

Counsel: So there are data other than the finger print that will enable you to be biometrically verified?

Witness: Yes, my lords. On the register there are data that is capturing people who would be identified by their face only so in the register under their names, the initials “F.O” appear.

The total register that we have looked at, there are 3,196 such people and they are distributed across three regions in Ghana: You have 2,657 in the Volta Region, 170 in….. (Interrupted by a counsel who was astounded by the witness’ ability to commit those figures to memory)

Counsel: My lords, I respectfully submit that the answers that he is giving, he is going beyond the question that I gave, my lords…

Witness: No, not at all, I’m just fully giving the answers knowing the data that supports the question and the answer therefore….

Sitting continues on Monday April 29, 2013 after counsel called for a break.

By William Yaw Owusu & Raphael Ofori-Adeniran