Tsatsu Tsikata, lead counsel for the ruling National Democratic Congress (NDC), yesterday took his turn in the cross-examination of Dr Mahamudu Bawumia, the Second Petitioner in the ongoing Presidential Election Petition at the Supreme Court, trying hard to punch holes into the evidence.
However, the star witness stood his grounds; answering the NDC counsel on a number of questions, which sometimes led to heated arguments between Phillip Addison, lead counsel for the petitioners and Mr Tsikata over the latter’s mode of cross-examination.
According to Mr Addison, apart from answering the questions, the witness needed to also explain issues to the court where necessary and felt Mr Tsikata was not allowing the Second Petitioner to do so but the NDC counsel insisted he had every right to intervene, if he felt the witness was straying from the issues.
Mr Tsikata started his cross-examination by first looking at the Electoral Commission’s (EC) Form 1C, touched on the mystery polling stations, where the petitioners claimed election took place outside the mandated 26,002, highlighted on polling agents’ signatures of Pink Sheets before settling on voting without biometric verification.
Form 1 C
Counsel (Mr. Tsikata): The Form 1C as you referred to in your evidence-in-chief is not torn as you suggested. You were wrong then.
Witness (Dr. Bawumia): I was not wrong. After filling the particulars of the voter, you then tear the bottom part of Form 1C and it is laminated to become the voter’s ID card.
Mr. Tsikata insisted that Form 1C was not meant for voters ID Card but Dr Bawumia disagreed and as the give-and-take ensued between counsel and the witness, Mr Addison again stepped in to say that Mr Tsikata’s question was ‘speculative’ and needed to ask direct questions for the witness to answer.
Just as the NDC counsel stood up to answer Mr Addison, Justice Jones Victor Dotse, a member of the panel, cut in to remind members of the bar to allow lead counsel to raise objections and not speak from the bar without permission.
Justice William Atuguba, chairman of the panel, then stepped in and said Mr Tsikata could proceed to ask another question since that issue had been addressed.
22 Polling Stations
Mr Tsikata put it to Dr Bawumia that contrary to claims that the NPP did not know about the existence of 22 polling stations, the petitioners’ party sent polling agents to those polling stations and that some of the letters were even signed by the First Petitioner, Nana Addo Dankwa Akufo-Addo.
Dr Bawumia, when shown one of the letters purported to have been written by the First Petitioner, admitted that the signature looked like that of his presidential candidate but added that those polling stations needed to exist ‘legally’ and not ‘physically’.
The use of the word ‘legally’ incensed Mr Tsikata, who told Dr Bawumia that, “When it comes to legal matters you have to be a bit cautious in raising legal issues.”
Councel: As a mere lawyer, on the face of the pink sheet, I am not able to tell which polling station this is.
Witness: As a mere economist, I am also not able to tell which polling station it is (drawing spontaneous laughter in the courtroom.)
Dr Bawumia told the court that the petitioners needed to match all the polling stations supplied by the EC for the election and once they did not find the 22 among the list “it becomes unknown to us.”
Polling Agents & Signature
Mr Tsikata put it to Dr Bawumia that one of the duties of a polling agent was to avoid impersonation, multiple voting and to attest to or certify that the election took place with the provisions to which the witness replied: “They signed to attest to what happened at the polling station.”
Mr Tsikata then said, “I see you like the pink sheets. Sometimes, sorry that I call you Dr Pink Sheets,” but Dr Bawumia just giggled before Mr Tsikata brought out a list of exhibits, where he claimed there were anomalies and said the original pink sheet would give a clearer picture.
Mr Addison objected to the line of cross-examination and said the original pink sheets Mr Tsikata talked about were not in evidence but the NDC counsel said he was only trying to point out the discrepancies in the witness’ evidence.
The court sustained the objection and asked Mr Tsikata to move to another question.
Same Polling Station, Different Signatures
Counsel: As you indicated on the other polling station sheet, exactly the same names appear is that not correct?
Counsel: That cannot be correct.
Witness: That should not be correct, in fact…. (Counsel interrupts)
Counsel: So there must be an error, would you agree with me?
Witness: My lords, we brought 35 polling stations under the duplicate polling station code category and most of these 35 polling stations have this type of problem. Juaso Court Hall was one such polling station, where we have three different pink sheets from the same polling station, and the presiding officer signatures were different for the same polling station. A lot of the 35 polling stations that we brought to this court as having duplicate polling station codes have this peculiar problem of two different sheets with separate signatures. This is part of the problems we had in the record of this election.
Counsel: No, it’s not at all, everything you’ve just said, is not what we are seeing here. What we are seeing here is an exhibit that you have attached to your affidavit which you are asking this court to rely upon and you just said to us that the names and signatures on the back of your two exhibits are the same. You also acknowledge that should not be the case?
Counsel: That should not be the case.
Witness: That should not be the case, yes.
Counsel: So clearly, this court cannot rely on those two pink sheets as you have exhibited them?
Witness: This court can rely, simply because we are saying that these are anomalies and these should not be the case, so we are in court with a lot of these sheets with these types of anomalies.
Counsel: So are you saying that if we went to the original pink sheets of those two, we will see the same polling agents signing, is that what you are saying?
Witness: All that we can say is that the copies that we have will indicate if these copies are truly made in their correct images, then this will be what we have and this is, therefore, what we have presented.
Counsel: You see, Dr Bawumia, I am suggesting to you that the original pink sheets in respect of the two polling stations would only have different polling agents because in reality, there were different polling agents…(Counsel for petitioners, Philip Addison raises objection to the line of argument of Mr Tsatsu Tsikata)
Counsel (Philip Addison): My lords, we are objecting to this question, I don’t know what he refers to as ‘Original Pink Sheet’. In any event, whatever it is that he is referring to; it’s not before the court. What is before the court are the exhibits that he has shown to the witness and therefore, he has nothing to compare with.
Counsel (Tsikata): My lords, with respect, this is a frivolous objection; I’m showing him their own exhibits. Their own exhibits are what they have put before your lordships and I’m seeking to undermine the value of those exhibits. I don’t have any hesitation in telling him what my purpose in cross-examination is.
Witness: My lords, if I can refresh my memory by just checking the category of these pink sheets.
Counsel: You know checking the category is not going to help, so my lords, I’m going to object to any refreshing of his memory because I am asking a question on the face of the pink sheet. That is what my question is about.
Witness: I just want to know, my lords, what it is that we are objecting to as far as these two pink sheets….(Tsatsu interrupts)
Counsel: It does not matter, I am cross-examining you, and I told you the reason why I am cross-examining you on this matter, I don’t mind telling you….. (After which he goes on to repeat the reasons why he asked the question. But Philip Addison intervenes)
Addison: My lords, I took an objection to the question by counsel, but I have not heard from the court and he is badgering him with supplementary questions.
Justice Atuguba: (referring to Mr Tsikata, counsel for third respondent) Yes?
Counsel: (Ignoring the call for him to answer the objection, he pointed to the pink sheet in Dr Bawumia’s possession) Have a look also at that stamp,… (Addison interrupts again)
Mr. Addison: Unless he has withdrawn the question, I made an objection to a question put to the witness…(Justice Atuguba intervenes)
Justice Atuguba: Yes, what was your response?
Counsel: He hasn’t answered the question…(Atuguba interrupts again)
Justice Atuguba: No, he is objecting to the question, what is your response to his objection?
Counsel: My lords, the response is that it is a frivolous objection and I am cross-examining the witness on what they alleged in their affidavits are copies of pink sheets which they are tendering as evidence in this court to suggest irregularities etc. and the question that I am asking him is for the purpose of showing a discrepancy in respect of what they have submitted to this court. That’s why I asked him whether if we found the originals of those pink sheets, what he is saying would be borne out by that. That is the purpose of the question, and my lords, normally you need not, in cross-examination, disclose your purpose of cross-examination to the witness…
Counsel: I am putting it to you Form 1C is issued in respect of those authorised to vote without their finger having to be put through the verification device.
Witness: That is not correct at all, that is very wrong.
Counsel: I am putting it to you further that… (Pauses) Dr Bawumia, are you now saying that form 1C is each voter’s ID, are you now saying that?
Witness: My lords, it is ‘Captured Voter Information’ form 1C and every voter fills in this form. Every person who registers fills in this form biometrically.
Counsel: You see at the bottom, the line here (showing the line), the line with ‘Disability’, is that the line which will show if there is a disability…
Witness: It is; if you don’t have a disability, it doesn’t have to be marked
Counsel: And so if a presiding officer at the polling stations such as the ones that you have, you are saying that if he reads the issue in C3 as being a statement of those who voted without biometric verification, but are authorised to vote, you will say that he got it wrong?
Witness: I think if you are authorised to vote without biometric verification, that information should be captured in C3. The second responded says nobody voted without biometric verification and the information we have is 535,000 people voted without biometric verification. Another stage, they say its transposition error…
Counsel: Dr. Bawumia, you are saying that if somebody voted without the biometric verification device, and he was entitled to vote, that would have to be entered in C3?
Witness: I agree; that should be entered in C3.
Counsel: So on the face of the pink sheet, if you see a number in C3, how are you able to determine whether it is people who are authorised to vote without the device or people who are not authorised to vote, how would you determine that?
Witness: My lords, we have a list of the polling stations. These 3,196 polling stations that were in the register, [categorized] by polling stations and the number of F.O (Face Only) voters at each polling station, so all 3,196, you can see what the potential voters for each polling station is and really, for the most part, none of them exceeds two (2); some will be four (4) but it’s one (1) or (2). This is generally what you see and you compare that to see if more people voted than what was potentially allowed to vote….
Counsel: Dr. Bawumia, I want you to appreciate the seriousness of what you just said on hindsight, because you seem to be saying that by going through these registers, you could tell where somebody who doesn’t have a finger was voting, is that what you are saying?
Witness: By and large, you could see how many people at that particular polling station—the information is there—are allowed to vote without going through voter verification in terms of fingerprint.
Counsel: You are saying that you can see how many people are allowed to vote, and so are you saying that when you see a bigger number than that, you questioned it, is that the process that you used?
Witness: Yeah, I think generally, if you have one person or nobody who is allowed to vote without verification, and you see 300 people voted without verification then it’s a problem.
Counsel: So basically, you really cannot tell just from that number whether those numbers of people were authorised or not?
Witness: You can tell by comparing it with the register.
Counsel: (Showing witness an exhibit of pink sheet from a polling station in the Eastern Region to confirm voting without biometric verification) What is in C3?
Witness: C3 is one (1).
Counsel: Would you agree with me that one person was authorised to vote without his finger going through the biometric verification device?
Witness: Definitely not, it means one person voted without going through the biometric verification device.
Counsel: And how would you know from just looking at the pink sheet whether that one person was authorised to vote without the biometric verification device?
Witness: If you look at the voters’ register, for Eastern Region, we do not have any F.Os and that means that one person could not have been authorised to vote without biometric verification.
Counsel: But that information you have just given us is not on the face of the pink sheet, would you agree with that?
Witness: Yes it’s not on the face of the pink sheet
Counsel: Very well, very well….
EC Concludes Cross-Examination
Before Mr Tsikata took over the exercise, James Quarshie-Idun, representing EC, also completed his extended and winding cross-examination of Dr. Bawumia.
It had taken Mr. Quarshie-Idun two and half working days to complete the cross-examination.
The authenticity of the original Pink Sheet of a particular polling station became a contentious issue between the EC’s counsel and the petitioners’ counsel.
When Mr Quarshie-Idun tried to tender in evidence pink sheets (whose photocopies were already in evidence but the court said they could only deal with them when the EC was able to produce the originals), Mr Addison objected to one of them representing Atebubu Amantin Open Square New Market Polling Station.
He said the EC was trying to use parliamentary pink sheet in place of presidential, which was not permitted by the rules and also added that all the writings on the documents were in blue ink but what was being tendered was in red.
Mr Quarshie-Idun tried to justify the document by saying that they were using it to contradict what the petitioners had said in evidence.
Tony Lithur, who represents the First Respondent (President Mahama) said the petitioners could seek to prevent documents which were in the official custody of the EC whose contribution to the case was crucial.
“Unless they (petitioners) have another document, they cannot be disallowed.”
The EC then brought out another document for Dr. Bawumia to answer questions on it but Mr Addison objected and told the court that the EC could tender it through its own witness and complained again to the court about how the EC keeps “springing surprises on us” with documents which should have been filed before the case started as the court ordered.
Mr Quarshie-Idun put it to Dr Bawumia that no votes exceeded the voters register in any of the polling station but the witness said, “It can’t be true. We have several instances of that.”
Counsel: Dr. Bawumia, 1099 out of 2009 of the pink sheets you claimed had not been signed had indeed been signed.
Witness: I disagree.
Counsel: The number of pink sheets not signed by the presiding officers represents 3.5 percent of the total number of pink sheets nationwide.
Witness: Included in this list is about 70 percent of the polling stations which are not part of the further and better particulars. 1739 were not signed and that makes it 6.6 percent and not 3.5 percent.
Counsel: Polling agents signed 99 percent of the pink sheets.
Witness: That was the case.
The witness disagreed with the EC counsel that the petitioners failed to provide further and better particulars of some of the polling stations as ordered by the court saying “we indicated every single polling station in the further and better particulars”.
The Over 70,000 Voters
Counsel put it to Dr Bawumia that that the category of voters, who could only be identified by their faces only and not go through biometric verification (disability) was 70,889 but the witness said “we were only supplied 3,196 in the register.”
The EC counsel then gave the breakdown as Western (6,238), Central (3,090), Greater Accra (4,656), Volta (3,916), Eastern (3,807), Ashanti (4,321), Brong Ahafo (4,117), Northern (18,018) Upper East (18,398) and Upper West (4,254).
Dr Bawumia insisted that per the register given by the EC, the petitioners party only identified only 3,196 in the register as voters in that category.
He parried suggestion by counsel that the petitioners sought to use errors in the completion of the pink sheets to “harvest votes for annulment.”
By William Yaw Owusu & Raphael Ofori-Adeniran