“It is submitted that based on the uncontested evidence of the referee, KPMG, the Petitioners have failed to make available the pink sheets claimed to be made available in the affidavit of 2nd Petitioner and, for this reason alone, their petition must be dismissed.”
This statement is contained in the 69-page written address of Tsatsu Tsikata, Counsel for the National Democratic Congress in the Presidential Election Petition, as a reason to persuade the nine Justices of the Supreme Court to dismiss the petition that is challenging the legitimacy of John Dramani Mahama’s presidency.
Dedicating 28 pages of his address on the report by KPMG, Mr Tsikata argued that “even before elaborating on the evidence and submissions of law”, “there is even more basic reason why the claims of the Petitioners must fall in lamine.”
According to Mr Tsaikata, the KPMG report found the number of polling stations that were uniquely identified to be 8,675 and as such the claim by the petitioners that they filed “11,842 exhibits in 24 (twenty-four) mutually exclusive categories numbering and representing 11,842 different polling station results which are being sought to be annulled, have been shown to be untrue.”
Tsatsu explained that there are 339 exhibits which “are indisputably out of the range indicated in the relevant paragraph (paragraph 56) of the affidavit of the 2nd Petitioner.” Also, he added that there are 93 of these 8,675 polling stations that were not within the polling stations that were disclosed by Petitioners as part of their case when the Court ordered further and better particulars of the 11,916 polling stations.
Thus, in the opinion Tsatsu Tsikata, “it is impossible to make a cogent case out of this exhibit mess which Petitioners should have cleared up by now, but have failed to do. That failure is now irredeemable.”
Tsatsu also noted that “it is essential to proving the case of the Petitioners that they not only clearly establish the legal basis on which they ask this Honourable Court to annul votes of millions of voters, which would deprive these citizens of their constitutional right to vote, but also that they clearly establish the factual basis on which they have brought the petition.”
He continued, “This requires that the pink sheets that they reference in the relevant paragraphs of the affidavit must be available to the Court and to the other parties. It is submitted that based on the uncontested evidence of the referee, KPMG, the Petitioners have failed to make available the pink sheets claimed to be made available in the affidavit of 2nd Petitioner and, for this reason alone, their petition must be dismissed.”
Quoting from section 11 of the Evidence Decree 1975, (NRCD 323), Tsatsu stated that “For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.”
Summarizing his position on the exhibits, Tsatsu States:
“In this part of our submissions, we focus on the failure of the Petitioners’ case arising from non-production by them of the evidence which they state in their affidavit that they are producing. We highlight the following:
i. The independent count by the referee of exhibits filed by the Petitioners and the description of what was filed not only shows that the number of exhibits alleged to have been filed by the Petitioners was not in fact filed, but also discloses total confusion and contradictions regarding their exhibits.
ii. Far from clarifying the confusion and contradictions in exhibits, the oral evidence provided by the 2nd Petitioner, when confronted under cross-examination with examples of the confusion, compounded the problem as he belatedly admitted to “mix-ups”, “mislabelling” of the exhibits etc.
iii. Exhibits filed by the Petitioners did not support the categories of claims their case was founded on and the figures provided by the 2nd Petitioners in respect of votes affected by the alleged irregularities and violations in each category are not borne out by exhibits filed by them, especially when account is taken of their deletion of some of the exhibits.
iv. The Petitioners have failed to comply with basic legal and practical requirements of providing evidence to the Court in a coherent and usable manner to prove their case. No legally permissible evidence is available to this Court on the basis of which the evidential burden on the Petitioners can be said to have been discharged.
v. Moreover, decisive evidence is provided on the face of the documents filed by the Petitioners themselves to confirm that the case of the Petitioners is flawed from the outset. In particular, the certification of results by the agents for the 1st Petitioner at the polling stations in respect of which pink sheets have been filed, a fact that is clear on the face of the pink sheets, contradicts the case put forward before this Court by the Petitioners.”
Touching on the substantive case, Tsatsu posited that the Petitioners “have woefully failed to establish the alleged irregularities, violations etc, nor have they proved that the alleged “irregularities, violations etc affected the outcome of the 2012 Presidential election.”
According to him, “there was no evidence that any voter in the election voted more than once or that any person not entitled to vote was allowed to vote.”
On voting without biometric verification, Tsatsu explained that the challenges of the country using biometric verification devices for the first time in elections in Ghana were successfully overcome and no one voted without going through the biometric verification process.
“The absence of the signature of the Presiding Officer on the pink sheets does not justify annulment of votes that were cast lawfully in the exercise of the constitutional rights of citizens. While failure to sign constitutes a breach of the duty imposed on that election official by the Constitution, nowhere does the Constitution require or justify the annulment of votes cast and, hence, the results announced at the relevant polling station because of such a breach,” he states.
On the use of duplicate serial numbers, Tsatsu maintained that the claim by the Petitioners that unique serial numbers were provided to polling station pink sheets was baseless and there was no irregularity involved in the same serial number appearing on more than one such pink sheet.