It is Day Nine of the substantial hearing of the Presidential Election Petition.
The cross examination of the witness by Counsel for the third respondent Tsatsu Tsikata goes into its second day.
1000 Hearing for Tuesday’s case is delayed for 30 minutes. Presiding Judge Atuguba attributes it to “special voting.” The judges take their seat. Counsel for the four parties introduce their team of lawyers to the bench. Witness, Dr Mahamudu Bawumia takes his place in the dock and cross examination continues.
1020 Tsatsu Tsikata presents a pink sheet exhibit to the witness which is being perused by counsel on the other sides.
Tsikata asks witness to mention the figure on the C3 column of the pink sheet. He mentions it as 498. He asks him to read what the C3 says. Bawumia reads it which is paraphrased as the C3 column contains people who have been gone thorough C1 and who have been verified biometrically.
NB C1 is the total number of voters who have been issued with ballot papers and C3 is the total number of people who have been verified.
Tsatsu Tsikata asks witness CI75 does not provide for what happens when there is a breakdown of the verification machine. Are you aware of guidelines of what should happen if there is a breakdown of the verification machine.
Bawumia answers that he is aware that when the machine breaks down, voting should stop and continued as and when it starts working.
Tsikata asks if the “no verification no vote” maxim by the witness and the petitioners means that people should not be allowed to vote if their hands have not been passed through the verification machine. Tsatsu suggests that there are several other processes of verifying a voter so the understanding of the law by the witness is flawed.
Bawumia says per the instruction by the second respondent which has been clearly emphasised in the CI75, one would have to pass through all the processes of verification, including biometric verification before voting. He names two polling stations in the Northern Region were the entire results were annulled because two people were not biometrically verified. He says that is the law as spelt out by the second respondent and that is exactly what the petitioners are asking the court to adjudicate on.
Bawumia attempts to explain by saying that even by law, disabled persons still have to be biometrically verified.
Vice Presidential debate
Presiding Judge reminds the witness he is not in a vice-presidential debate and must therefore answer the question as succinctly as possible.
Tsikata remarks that merely repeating the point by the witness does not make his case stronger. Philip Addison springs up on his feet with a rebuttal and says Counsel for the third respondent keeps on repeating the questions and he expects the answers to change. That will not happen, he fires.
Tsikata continues with his cross examination by presenting copies of pink sheets.
He suggests to the witness that at no collation centre in the country was a protest raised about biometric verification and its effects on the votes that is being tallied.
Bawumia says he was not at every collation centre but says the evidence of on the face of pink sheets shows that people voted without being biometrically verified.
Tsikata asks witness if he is aware that on the pink sheets there are spaces of expressing protests. Bawumia says he is aware.
Tsikata asks if it is the understanding of the witness that after results are computed at the collation centre the results are sent to the head quarters of the second respondent. Bawumia affirms. Tsikata goes ahead to ask if he is also aware that at the HQ the agents of the petitioners were present. Bawumia affirms.
Tsikata proceeds and says that at the HQ none of the representatives of the petitioners raised a protest on allegations of voting without verification. Bawumia says the representatives of the petitioners raised a protest and because of that they stopped signing the pink sheets.
Tsikata reminds the witness about a meeting between the petitioners, the second respondent and members of the National Peace Council. He says at that meeting there was no question about voting without verification.
Bawumia says he was not at that meeting and so cannot say the details of the meeting.
Committee to investigate irregularity
Tsikata asks witness if the terms of reference of the committee set up to investigate the alleged irregularities was to ensure that the first petitioner becomes the president?
Bawumia says the committee was to ensure that there was justice to all Ghanaians. Tsikata asks again if it was the wish of the committee members to make the first petitioner a president and he Dr Bawumia a vice president.
Bawumia says he did not ask members of the committee whether it was their wish to make Nana Addo a president and he a vice president.
Tsikata asks that as chairman of that committee did he give the directive to his members to pick out everything in C3 and use that as evidence of irregularity. So that as soon as a figure pops up on C3, you pick that out as evidence of irregularity? He also asks how the witness came about with irregularity on the alleged duplication of serial numbers.
Bawumia says they had knowledge on the various irregularities and so they coded the irregularities and the computer did the rest.
Tsikata: “I am suggesting to you that on the question of biometric verification device what you are putting before the court is a belated attempt to question votes that were duly counted at the polling station.”
Bawumia answers and says they were given 21 days to challenge the verdict declared by the EC and they came to the court within the 21 days and so it cannot be said they were belated.
Tsikata asks if the committee, headed by Bawumia assembled the documents that have been brought to the court. Bawumia affirms. Tsikata again asks if he knew the total number of people in the committee. Bawumia answers and says the committee was large, different people assisted at some point.
Tsikata asks if it was possible that the committee members may have generated their figures in the analysis.
Bawumia answers and says he personally checked every single pink sheet before the analysis was made.
Tsikata says he will produce 137 pink sheet exhibits which the witness has personally vouched for further cross examination. The exhibits are passed around to be perused by the counsel on all sides.
Tsikata then gives two of the exhibits to the witness and asks him to confirm if they relate to the same polling station.
Bawumia confirms and says yes. He adds that a similar question was asked by the counsel for the first respondent and the answer remains the same. That the two pink sheets are for the same polling station but the labeling on them was different. He says it was due to “mislabeling”. One was generated manually, another electronically but they were entered once in his analysis.
Genuine mistakes or violations of the law
Tsikata brings another set of pink sheet exhibits for further cross examination. He says on those pink sheets there are no exhibit numbers and asks if it was a mistake on the part of the petitioners. Bawumia concedes but says it may be a problem for the commissioner of oath.
Tsikata says it may well be an error and that human beings are fallible. Bawumia retorts and says yes human beings make mistakes but that is different from violations of the law.
Tsikata continues with his cross examination and brings another set of pink sheet exhibits. He asks if the two sets are for the same polling station?
Bawumia agrees. He attributes it to “mislabeling” but says the figures were only entered once in the analysis.
Tsikata presents to the court several other pink sheet exhibits in which some spaces for exhibit numbers have been left blank, others have been filled; some left unstamped by the Commissioner of Oath. He asks Bawumia what accounted for the anomaly.
Bawumia says the exhibit numbers were generated electronically and manually. He says those that have not been labelled and unstamped were supposed to have done by the Commissioner of Oath.
Tsikata presents a list of pink sheets exhibits to be perused by the witness and to confirm if they were mislabeled. Bawumia confirms they were mislabeled and that they were entered once in the analysis.
1240 Presiding Judge draws the attention of Tsikata that Lunch bar has pop up
Tsikata asks for injury time to round up his cross examination on the list of pink sheets he has sent to the witness.
He concludes within minutes and Presiding Judge announces a short recess.
1350 Court Resumes
Tsikata continues with his cross examination. He brings out a new set of pink sheet exhibits and asks witness if he can confirm that the two pink sheets are from the same polling station.
Tsikata brings out another pink sheet in which there has been mislabeling and asks witness if it was not his expectation that all parts of the exhibits will be properly filled.
Bawumia says he expects that exhibits will be properly filled.
Tsikata then provides another set of pink sheet exhibits and asks witness to compare if they are part of the list he had earlier tendered. Bawumia confirms. He asks witness to confirm if in the list of exhibits there are two pink sheets representing the same polling station.
Bawumia confirms that there are separate pink sheets of the same polling station but were analysed once.
Tsikata asks if the Commissioner of Oath’s stamp was present but witness says no the stamps are not present.
Tsikata asks if the witness does not think if it was a mistake that the exhibits did not have the stamp of the Commissioner of Oath.
Bawumia says if that was what was supposed to happen then it was a mistake.
Tsikata then asks if the witness made the deposition to this affidavit on his own behalf and on behalf of the other petitioners.
Bawumia answers in the affirmative. Tsikata then asks if any of the petitioners were present when the Commissioner of oath was packaging the exhibits and whether or not they saw all the exhibits being tendered.
Bawumia says the other two petitioners were not present when the exhibits were being packed by the Commissioner of Oath but adds they looked through some of the exhibits before they were tendered. He says he looked through every single pink sheet exhibit.
Tsikata presents another list of exhibits which is being perused by the counsel on all sides.
There is a bit of delay because counsel for the petitioners are still perusing the pile of pink sheets tendered by Tsikata.
Tsikata asks if the witness can confirm that two of the pink sheets provided are in respect of the same polling station. Bawumia admits that the two pink sheets were for one polling station but adds they were entered once in the analysis.
Tsikata tenders another set of pink sheet exhibits. Bawumia takes his time to peruse the documents.
Tsikata asks witness to examine if the exhibits are the same as provided on the list and whether or not two pink sheets for the same polling station have not been tendered.
Bawumia confirms that there are duplication of the same pink sheet for the same polling station but were entered once.
Errors and presidency
Tsikata asks witness if he admits that there is an error in not filling the space for the labeling of pink sheets exhibits.
Bawumia admits it was an error. Tsikata sarcastically says that so the petitioners are also prone to errors. Bawumia says errors are errors but it must not affect “somebody’s presidency.”
Tsikata sends another list to be perused by the counsel on the other side and by the witness. He asks witness if he can confirm that lists have two pink sheets from the same polling stations. Bawumia confirms but says they were only used once in his analysis.
Tsikata again asks why the errors appears to have been repetitive. Bawumia concedes but adds that these type of errors does not affect the numbers.
Mislabeling to mislead
Tsikata presents another set of duplicated pink sheets exhibits and says the so called mislabeling had every potential of misleading the court. He raises his voice in his questioning and Bawumia in an unusual manner protests and says the counsel can his question without shouting.
He answers the original question by saying that without explanation the mislabeling could be misleading but with explanation that the figures have been entered once, one should be comforted.
Tsikata says had it not been the vigilance of the respondents the court would have been misled.
“Not at all,” Bawumia answers.
Tsikata fires back and asks witness if that explanation was made during the filing of the affidavits. Bawumia says those explanation was not given and that is why is providing the explanation now.
Tsikata sends another list of pink sheet exhibits to be perused by the counsel on all sides and by the witness. Philip Addison raises an objection and says the exhibit being tendered by the counsel of the third respondent are part of those exhibits that have been struck out in the petitioners amended petition and so the counsel cannot ask the witness questions on exhibits that are no longer before the court.
Presiding Judge sustains the objection raised by the counsel of the petitioners.
Tsikata accepts ruling and says “there are so many ways of killing a cat”
Tsikata tenders an exhibit, a letter purported to have been written and signed by the first petitioner, Nana Addo, and asks if the witness is aware of the presence of the letter. He asks witness if he can confirm that the letter was indeed written by Nana Addo and is on his letter head.
Bawumia says it appears to be the signature of Nana Addo and on his letter head. He says he was not initially aware of the presence of the letter but his attention was later drawn to it. He says there is something curious about the letter, though.
According to him, the letter was written on 5 December 2012 but was surprisingly received on the December 3, 2012, that he says is an aberration.
Tsikata asks him to read paragraphs 9 and 10 of the exhibit. Myjoyonline.com paraphrases that paragraph 9 and 10 as follows. “That on December 8 2012 whilst provisional results were being declared and voting was going on in some polling station, it came to the notice of the petitioners that a company, STL was receiving collated provisional results from polling stations before transmitting it to the second respondent’s strong room.”
Tsikata asks witness why he did not support this particular allegation in the affidavits he swore to the court.
Bawumia says they had to abandon that allegation because they could not directly relate it to how it affected the election results and because they did not want to waste the court’s time they had to come with palpable evidence to support their claims of mal-practices and irregularities.
That will be Tsikata’s last question for the day. Presiding Judge Atuguba announces an adjournment to Thursday May 2, 2013. They would have sat on May Day but with a the setting aside of CI74 by a new Supreme Court ruling it means they would now have to sit on Thursday May 2.
NB CI 74 originally mandated the Supreme Court to sit on holidays and week ends when they are hearing election petitions but the effect of today’s ruling in a separate case brought before the court by Bernard Mornah meant the ongoing presidential petition will not be heard tomorrow.