Dr. Afari Gyan, witness for the second respondent and Electoral Commissioner enters round three of his examination in the hearing of the Presidential Election Petition at the Supreme Court.
He is being led by his counsel James Quarshie-Idun.
Five Pink Sheet Exhibits
On the issue of five exhibits presented to Johnson Asiedu Nketia on the subject of votes in the box exceeding the register, Counsel James Quarshie-Idun presents an exhibit to Dr Afari Gyan to identify.
James Quarshie Idun confirms receiving the five controversial exhibits from the petitioners.
He asks witness to identify the exhibits. He then brings a voter’s register of one of the polling stations in question and decides to tender the register.
Philip Addison is up on his feet with an objection. He says the path Quarshie-Idun has decided to chart now is not part of their case. He says the second respondents were furnished with the further and better particulars for them to answer the allegations but adds no where in the pleadings diid the second Respondent make mention of the Voter’s Register. He prays the court to sustain his objection.
Quarshie Idun says the same objection was raised yesterday on a similar issue and was over ruled. He insists the document is about to tender is to lead evidence of rebuttal of a claim made by the petitioners that there were more votes in the ballot box than the number of voters on the register at the five polling stations in question. He says the voter’s register is therefore the primary document to contradict the claims by the petitioners.
Addison seeks leave of the court to make another intervention. He says it is not automatic that every document shown must be admitted in evidence. He says every document must meet requirement for admissibility. He says the critical issue he wanted to raise yesterday is that this register being tendered is not the same register used for the elections.
Quarshie-Idun also says arguement of the petitioner’s lawyer goes to the weight of the matter and not admissibility. It is a register for the polling station. It was submitted to Asiedu Nketia with the suggestion that there were more votes in the ballot than on the register. The register is here to contradict that assertion, he says.
Judges take time confer.
By 8-1 Majority the judges over rule the objection.
Quarshie-Idun continues with leading evidence. He asks witness to mention the number of registered voters which he answers as 12. He also asks witness to mention the number of ballots in the box and he answers 12.
Another voter’s register is about to be tendered. Philip Addison is up on his feet with an objection. He says the Voters register which the witness seeks to tender is not the same register used in the election. He says the earlier decision by the court to allow the first two registers appears to have opened the flood gates for Counsel to tender register for 11, 842 polling station. He says it defeats the procedures of the court. They have, by each turn, taken the petitioners by surprise. The witness in the box has not sworn to any affidavits and it appears his evidence has no boundary, Addison laments. He says it is quite unfair especially when the petitioners have closed their case.
Quarshie Idun says he is not here to tender over 11,000 document. I am tendering only five documents; “i have tendered three.” He wonders why the same objection is being raised when two other objections have been over ruled.
Addison pleads for another intervention. He says he did not confront Asiedu Nketia with a register. “We confronted him with the figure on the face of the pink sheet.” He says counsel for the second petitioner now brings a new voters register which was not used in the elections and particularly when both the first and third Respondents all waived their rights to re-examine their witness, it is unfair for counsel for the second Respondent to be doing re-examination of its own witness on matters that had to do with witness for the first and third Respondents.
One of the judges asks Quarshie Idun to provide the actual register at the five polling stations in contention. That is more relevant, she adds.
Quarshie-Idun says the information on this register is the same on the original voters register in the polling stations in question. In any case, he adds, the petitioners have every right to cross examine the witness when they have their turn.
Another intervention by one of the judges
The judge says whatever you intend to do with the five polling stations is of limited effect because Asiedu Nketia made quite an emphatic statement that even if there are more votes in the ballot boxes than in the register, the agent would not have signed if there was over voting.
Addison is up again. he says they cannot vouch for this register. He alleges it is a new register prepared by them.
One of the judges tells him to wait and contradict the evidence during cross examination.
Addison insists they are raising their objections to make forcefully their point of the seeming unfairness in the tendering of the documents. He insists their objection still holds.
By 8-1 majority decision the objection is again over ruled.
Quarshie-Idun presents the last of the five pink sheet exhibit as well as the voters register.
Addison says their position remains the same even though they will not raise an objection due largely to previous rulings on the same matter.
The court takes a temporary break to allow for some documents to be sorted out.
The court returns from the recess..
Counsel says the sorting of the exhibits which necessitated a break is yet to be concluded. So he pleads with the panel to allow him to go on and return to that specific exhibits later.
He then asks witness if on voting day the elections started and ended at the approved time of between 7:00 am to 5:00 pm.
Dr Afari Gyan says the election should start at 7:00 am and end at 5:00 pm. He says if the elections did not start at exactly 7:00 it is an irregularity.
Anything not done in strict adherence to the rules is an irregularity.
Quarshie Idun asks witness if there were observers at the elections.
Dr Afari Gyan says there were both international and local observers who monitored the elections but they played no direct role in the elections as did the polling agents.
Quarshie Idun goes ahead to ask if he saw the pink sheets.
Dr Afari Gyan admits seeing the pink sheets. He admits there were errors. The general errors must be looked at closely, he says. He explains it is the EC that appointed the people and are prepared to take responsibility for their actions. He insists errors must be distinguished from intentional wrong doing. He advises candidates to also take responsibility for the agents they appoint.
Quarshie Idun cites Paragraph 30 of the petitioners’ affidavits in which a mention is made of Dr Afari Gyan’s famous press conference on December 5 2012 and asks witness to make a comment on it.
Dr Afari Gyan admits to the statement and says he will say no more than what occurred in principle. Each occurrence must be looked at on its own merit. Because there are various scenarios. Some test must be carried out to make 100 per cent certain there was over voting. Under normal circumstances we don’t expect a 100 per cent turn out so if we see more than a 100 per cent turnout there is no hesitation to annul the result. He states emphatically that no where in Ghana did classical voting occur. He says the Commission has adopted new technology-Biometric registration and verification- which means there is a firm way of determining those who voted. If there is excess votes on the face of the pink sheet there will be a firm scrutiny before deciding on what to do. He says when there is excess votes he will not immediately presume there is wrong doing. He will redo what was supposed to have been done. Will look at the ballot papers thoroughly before calling for annulment.
Failing to sign the ballot paper.
You heard the petitioner’s witness saying the votes be annuled at polling stations because presiding officers did not sign pink sheets. What do you say about that? Quarshie Idun asks.
Dr Afari Gyan says they have examined that claim. The number of stations involved were 2009 but the number was scaled down to about 1900.
He says 3.5 per cent of the pink sheet were not signed and that will indicate that more than 96 per cent of the presiding officer signed the sheets. About 99 per cent of all polling agents signed the pink sheets. He explains the presiding officer has a lot of work on Election day. He performs a lot of duties. Signing the pink sheet is only one. He acknowledges that some of the pink sheets were not signed. He also admits that even though failure to sign the pink sheet is an irregularity it will not affect the validity of the election. So where the presiding officer has not signed but the agents have signed the results is accepted by the Commission.
Quarshie Idun asks: Petitioners claim where there are Polling stations with two different pink sheets the result be annulled.
Dr Afari Gyan says it should not be the case because that situation only arises because one of the pink sheets will be for special voting.
Quarshie Idun asks: They also are claiming that results for 22 polling stations be annulled.
Dr Afari Gyan says those polling stations were part of the 26002 polling stations used for the elections.
Quarshie Idun asks: They are also alleging that a large number of people were not verified and that the votes be annulled.
Dr Afari Gyan says he disagrees that people did not verify before voting because verification machines were provided at all polling stations. In places where the machines developed faults the voting was postponed to the following and they were used.
Quarshie Idun says so what are you as a chairman of the EC asking the court to do to the petitioners’ case.
Dr Afari Gyan answers: We are saying that the reliefs of the petitioners should not be granted because in the view of the commission no firm basis has occurred to merit the grant of those reliefs.
Quarshie Idun brings his examination in chief to an end.
Drama of Cross examination
There is drama in court as to who will go first with the cross examination.
Presiding Judge Atuguba calls for cross examination to begin but none of the three legal teams is ready. Each wants the party on the other side to begin.
Addison is up. He says the Respondents must begin. If they are not interested in cross examining the witness at all, then the petitioners are ready to fire. He wants the Respondents to go first.
Tony Lithur, counsel for the First Respondent is up. He says the petitioners must go first. He says this business of lumping the three Respondents together is not on. He says each Respondent is an independent entity with separate interest and must be treated as such. He does not see why when it comes to raising objections against the second Respondents, they would be told not to contribute to the objection because they are separate entities and yet when it gets to cross-examination they will lumped together as one. The petitioners must go first, he argues.
Addison is up again. He quotes section 70 of the Evidence Act to support his argument insisting that the interests of the Respondents are pretty the same or similar and are at variance with that of the petitioners so the Respondents must allowed to go first.
Tony Lithur rebuts. He says the section quoted copiously by Addison doesn’t state the order of cross examination. What it does is to show how the court will treat the evidence. He insists the petitioners must go first.
Tsatsu Tsikata joins the fray; Quarshie Idun, Dr Afari Gyan look on enjoying the drama. Tsikata says the section quoted by Addison has no relevance at all to the issue under discussion. He cites portion of the section and makes claim to some conditionalities under which the requests by Addison could be granted. He says this particular instance does not satisfy the conditionality.
Addison is up again. He says the document quoted by Tsikata is the Evidence Decree and not the Evidence Act which he, Addison earlier quoted. His Act does not mention any conditionality he adds.
Court rises for the judges to ponder over the issue and give a judgement.
Presiding Judge cites Section 69 of the Evidence Act which says the court shall exercise reasonable control over cross examination. He says given the initial experience in the court which the second Respondent re-examined the witness instead of cross examining him, the court has decided that the first and third Respondents must go ahead with the cross examination to be followed by the petitioners to avoid such a pitfall.
Tony Lithur is up to begin his cross examination.
Tony Lithur asks if the witness has heard instances of double voting as well as the possibility of ballot stuffing in the 2012 elections. Dr Afari Gyan denies any such allegation.
Lithur again asks witness if the EC did not take forms 1C to the polling stations at all. Dr Afari Gyan says the instruction to the Presiding Officers was that they should not take for 1C to the polling station.
Lithur then hands witness some bulky pink sheet exhibits to identify.
The panel takes leave, asks the Bar and the witness to sort out the documents and return tomorrow.