Chairman of the Electoral Commission, Dr. Kwadjo Afari Gyan, will continue his evidence in-chief before the Supreme Court in the ongoing Election Petition hearing.
His testimony, which the petitioner’s lead lawyer described as a ‘lecture’ attracted keen interest from all parties involved in the case.
The legal teams representing the National Democratic Congress (NDC)and President John Mahama as well as the Petitioners are all eager to seek further clarification from the EC Chairman once he is done giving his evidence.
The Judges have taken their seat once again on the bench. The Bar is introducing its team of lawyers.
Dr Afari Gyan is reminded of his oath. James Quarshie Idun begins with his questioning by asking witness to continue to lead evidence on the various parts of the pink sheets.
Dr Afari Gyan is handed a pink sheet by his counsel with exhibit number MBH 299
representing the Okai Ababio JA Primary Polling Station.
What is your opinion on comments By Dr Bawumia that evidence his evidence of irregularity is on the face of the pink sheet, Quarshie Idun asks.
Dr Afari Gyan says the pink sheet must be taken as a document and read in whole.
A second pink sheet exhibit is handed to Dr Gyan on which he will explain certain issues. Counsel asks him to explain what the section on C1 and C3 on the pink sheet is.
Dr Gyan says C1 says What is the number of ballots issued to voters on the register the answer which is 156. On C3 which is the number of ballots issued to voters verified by form 1C and not by the verification device. The figure there is also 156.
It appears the number is the same. When you see a situation like this it gives rise to a very “odd situation”. To explain the oddness of the entry you would have to look at other columns.
What is the number of ballots issued to polling station the figure is 225
On B3 which says what is the total number of voters eligible to vote, the figure is 185. If you add 156 to 156 you get 312 Yet the presiding officer said he was given 225 ballots. If you add up the entire C column. The situation becomes serious. Interestingly on the results section the total votes was 156 which is the same either C1 or C3. When this situation happens, either C1 or C3 is in error. The two of them cannot be the same.
What it means is that you have the same figure in C1, C3 and the total votes.
It means either all of them were biometrically verified or none of them were biometrically verified. My inclination is that the C3 should be waved because every polling station was supplied with a biometric machine and the officers were instructed not to take form 1C to the polling station. The way to go is by recourse to the biometric verification.
One of the judges then asks if the same explanation could hold for the over -voting allegation.
Dr Afari Gyan says I am not clear in my mind what over voting is?,”
He says the classical definition of over voting is where the ballots cast exceeds the number of persons eligible to vote at the polling or the register. He says the two new definitions introduced by the petitioners could be a bit problematic even though “there is nothing wrong with it”.
He says they (petitioners) limited themselves exclusively to what is on the face of the pink sheet.
Where the number of ballots exceed the number of voters as indicated on the face of the pink sheet.
Have a problem with any definition that limits itself with what is on the face on the pink sheet.
Any definition that limits itself to what is on the face of the pink sheet is problematic. He cites an example on one of the exhibits in which a figure of 4 was written at the column where the number of ballots issued. He said it cannot be the case because on other portions of the pink sheet the total number of ballots issued was 326. He said any definition of over voting that does not make any reference to the register could be flawed.
He says the Commission has adopted a new technology to help in modifying the definition of over voting.
Counsel asks witness what he makes of how the petitioners came up with the issue of voting without verification.
Afari Gyan explains that using the figure on the C3 column alone and aggregating other figures on the face of the pink sheet will be difficult to find out if people voted without being verified. He says assuming the process of the petitioners is used it may well be the case that all the people in a particular polling station voted without being verified or that everybody voted after being verified.
He adds that once they gave biometric verification machines to all polling stations, the Commission will fairly assume that on the either, or situation, the Commission will say everybody verified before voting.
He says the Commission does not keep machines at the Head quarters but had to recall the machines.
Philip Addison is up on his feet. He raises an objection to the evidence on the recall of the biometric machines. He says the the second respondents did not plead in their affidavits, issues to do with BVD and prays the court will object the evidence on that.
Quarshie Idun cites copiously parts of their affidavits in which they made references to the BVD machines saying it is wrong for Addison to claim that the second respondents did not plead evidence on the BVD.
On a 7-2 majority decision, the objection is over ruled.
Dr Afari Gyan continues with his evidence on affidavits. He says the Commission recalled all the BV machines to the national head quarters, down loaded the data and made print out of the information on the biometric verification machine. He brings out the information of the biometric verification device which is on a list and tenders it as an exhibit.
Addison objects to the tendering of the document. He says there is
nothing on the face on the document which shows it is an original information that comes directly from the BVD. He says the evidence takes the petitioners by surprise. He argues that per the directions of the court the petitioners attached all their affidavits and served them on the second respondents. They had the opportunity to explain this, he says. No where did they say they had relied on the BVD, let alone that the BVD had been recalled to the HQ. He says the Second Respondents are conducting an entirely new case. They did not attach it to their case, neither to their affidavits. He makes reference to the Evidence Act section 52 C. He says the information on BVD is based on a software which can be changed. He cites the manual from the EC which says the Commission has a software which can change the information. Based on this, he prays the court to overrule the tendering of the document.
Quarshie Idun says there is a distinction between admissibility and the weight to be attached to a document to be tendered. There is no surprise, he says. He argues the petitioners makes reference to voting without verification and the only thing concrete is the verification machine. They know the machine is there and they said there was voting without verification. What else could be used to ascertain the claim of voting without biometric verification if not with the machine? He quotes the cross examination of Dr Bawumia on 25 April in which he attempted to tender a document and was told to wait and tender it through his witness. He again cites another statement from Justice Dotse in which he said the second respondents would have their day to present through their witness documents they intend to present. Today is the day he reminds the court. The evidence we are seeking to tender is the most relevant for our case. When they say people voted without being verified, what are they referring to, it is the machine. That is why this document is necessary.
Addison is up again. He says because the piece of evidence to which the Second Respondent intends to exhibit is relevant that required that they pleaded this document in their affidavits rather than taking everybody by surprise.
By a majority 7-2 decision, he objection is sustained.
Counsel asks witness if he was aware of the annulment of votes in parts of the country.
He says he was only told of the cancellation in Berekum but he was not aware of the rest. He says he only got to know about those annulments from the petition. He says the Returning Officers have the authority to cancel at the Constituency level results that had to do with the Parliamentary elections but in the case of the Presidential elections he (Afari Gyan) as the Returning Officer must be told of any annulment.
For presidential elections any cancellation must be done by the Returning Officer because it is one constituency.
He says in all the cancelled results at the polling stations candidate Mahama won all of them. He says if the annulment had been reported there would not have been a re-run of the election. He says the entire votes in all the seven polling stations are 3,800. There is no mathematical chance for a come back for the NPP, he says. He adds if the annulled results were add to the over all tally, John Mahama’s results would have inched up whilst that of Akufo-Addo would have reduced.
Counsel asks if he can you recall reasons for the annulment.
He says there were allegations of votes in the ballot box exceeding the votes verified. There was also allegations of over voting. He says in Berekum there was annulment because of eights but in all the other circumstances it was by one.
Counsel asks what the procedure for annulment is.
Dr Afari Gyan says if the annulment had been reported, the National Executives would have investigated to know exactly the circumstances under which the votes were annulled. One would do a careful analysis of the pink sheet and all other things would have been taken into consideration before any form of annulment is done.
Court proceeds on lunch break.
Court Returns after Lunch Break
You heard Dr Bawumia say that when two stations bear the same serial numbers the results of the stations should be cancelled. What do you say about that?
Strongly disagree with that. The serial numbers are not generated by the EC. They are generated by the firm that printed the pink sheets. Unlike in the case of Ballot papers where the law requires that numbers be printed on ballot papers there is no reference of same about serial numbers on pink sheets. The serial number is important only to the extent that it helps to keep count of the pink sheets produced. The pink sheets distributed randomly. The number has no relevance to the compilation and declaration of results. We identify polling stations by unique codes and the name. In this trial so far, i have never heard anybody identify polling station by serial. If two pink sheets have the same serial number for different polling station that will have no effect on the validity of the votes cast.
Each of the polling station will have a different code and a different name. There will be two different presiding officers and two different sets of officials; two different sets of candidate agents and there will be two different results entirely. So i see no problem. And when results are taken from polling station to the polling centre they are dealt with on the basis of polling station codes and not serial numbers.
There is therefore no basis for the allegation surrounding serial numbers.
22 Ghost polling stations
What do you make of the 22 Ghost polling station allegation by the petitioners, Quarshie Idun asks.
Dr Afari Gyan says the description of the polling station has been changing. In the first instance the petitioners talked about extra polling station.
He maintains results were collated on the basis of 22 thousand and 2 polling stations and there is nothing to the contrary.
Then it became unknown. That is not strange to him he says. He adds having worked in the Commission for a long time, he does not know all the polling stations in the country and nobody can claim to know all. So if you say some polling stations are unknown to you will not be strange but if you proceed further to say that because they are unknown they not existent is wrong.
He says the third description is that the polling station could not be located because names could not match codes.
He says on the pink sheets the petitioners supplied, there is proof they sent 22 polling stations to the so called unknown polling stations and that the agents did sign those pink sheets and collected copies.
Pink sheet exhibits from the 22 polling stations have been tendered in evidence. Counsel on all sides take a look at the document.
Counsel James Quarshie Idun asks witness to confirm if the petitioners’ agents appended their signatures to those exhibits.
Dr Afari Gyan checks the exhibits and says in some of the 22 polling stations more than one agent signed the pink sheet.
Quarshie-Idun then tenders the entire document which has all the 22 polling stations before the court. The petitioners’ lawyers carefully scrutinise the document.
The document is titled: “Alleged unknown polling stations where voting took place.” The document also has the names of the polling stations, the constituencies to which these polling stations region. The document is supposed to be tendered but Addison raises an objection.
Philip Addison says he does what the document is being tendered for. He says only 21 instead of 22 polling stations have been named in the list provided. It is a bit confusing because the exhibit numbers do not correspond with the names and codes.
Quarshie Idun withdraws the document and rather offers to go through the exhibits on the controversial ghost polling stations the petitioners served on them. He takes the witness through each one of 22 exhibits and asks witness to mention the polling station name and the code. Dr Afari Gyan does just that.
Quarshie Idun makes reference to the May 28 evidence and cross-examination of Asiedu Nketia in which some documents were shown to the NDC General Secretary. Dr Afari Gyan says he was present on the day and he is aware.
Quarshie Idun hands over a polling station register for LA Primary School, Biligu in the Shai Osu Doku in the Greater Accra. He asks witness what he wants to do with the register. Dr Afari Gynan says he wants to put it in evidence.
Philip Addison raises an objection.No proper foundation has been laid. Nothing was said about the witness. It is not part of their case. They are conducting their case. They have not pleaded it any where. They are taking us by surprise. They had ample time to present the document before the document. It amounts to ambush litigation.
They have the voters register for each polling station. Only as recently as May 29 five exhibits for the first time there was excess of ballots on the ballot box than the voters on the register. Five exhibits were presented to the Asiedu Nketia on 29 of May. They are going to the primary source which is the register. This is not ambush litigation but evidence in rebuttal of the evidence they brought he argues.
The five exhibits are already in evidence. It did not take anybody by surprise. The document to which the second Respondents now attempts to tender has been available to them before the case started. They ought to have pleaded it in their answers as well as their affidavits. If they didn’t they can’t do it now. He says both the first and third Respondents had the opportunity to re-examine Asiedu Nketia on the five pink sheet exhibits but they didn’t. And so the second Respondent cannot now come to re-examine its own witness on an issue both the first and third counsel for the Respondents failed to re-examine him on.
Tony Lithur enters the fray
He says the reception of evidence will naturally affect their case. We all are defendants to the case, he argues. He says if the matter were to go on appeal, all Respondents could probably bring back a piece of evidence which was not admitted in the initial hearing but may prove crucial to their case on appeal. He says why should they be made to sit on the sidelines and watch an issue which is equally in their interest as it is with the second Respondent only to be told to be given that opportunity during an appeal. They must heard now and not during an appeal he argues. He says the arguement that they cannot speak when an objection has been raised against the second Respondent cannot be the position of the law.
Tsatsu Tsikata also enters the fray
Tsatsu is also on his feet but just before that Addison throws in a punch. He says both Tsikata and Lithur could have sorted the issue on the controversial pink sheets, if they didn’t James Quarshie Idun cannot do it now.
Tsatsu says Addison cannot advice them on how they prosecute their case. He says the petitioners cannot divide the case into segments because it is not consistent with the orders joining them as parties to this case.
Addison says the two cannot speak for the second Respondent when the objection has been raised.
The court takes a break to ponder over the objections and counter objections raised by the legal teams.
The judges sustain the objection to the intervention by Lithur and Tsikata but overrule the objection on the tendering of the voters register.