It’s Day 12 of the substantive hearing on the Presidential Election Petition and Day five of cross examination of the second petitioner by counsel for the third respondent Tsatsu Tsikata.
1000 The Judges have taken their seats and so have the counsel on all sides.
Philip Addison introduces his team of lawyers; James Quarshie Idun lead counsel for the EC does same and so does Tony Lithur and Tsatsu Tsikata.
Dr Mahamudu Bawumia takes his seat in the witness box and reminded of his oath.
1010 Tsikata is up and continues his cross examination of the witness. On the last adjourned date he handed Bawumia a list of 64 pink sheet exhibits in which he insists there is no case of over voting as alleged by the petitioners. Bawumia began sorting them out but could not finish before the presiding judge as well as the parties agreed to an adjournment.
Bawumia therefore continues probing into the list. After perusing the list, Bawumia says a number of the exhibits have taken from the category of over-voting. Tsikata asks if the witness will admit that he was not truthful in his affidavits he swore to the court.
Bawumia retorts and says at the time of swearing the affidavits he was convinced there was over-voting but upon further auditing of the figures he realized that they did not fall within the category of over-voting but still had other forms of irregularities.
Bawumia however insists that on one of the pink sheet exhibits there was over voting. He haggles with Tsikata over a figure. Bawumia the figure is 397 but Tsikata says the seven has been cancelled and 8 in its place which therefore brings the total to 398.
NB When the figure 398 is used, there will be no case of over voting because the total number of ballots cast in that polling station will be the same as the ballot papers issued. However Bawumia insists the 397 is the actual figure which means the total votes cast will be one more than the number of ballots issued and a clear case of over-voting.
Presiding Judge Atuguba asks witness to tally the figures on the face of the pink sheet and tell the court what the figure is. Bawumia does that and tells the court the figure is 397 and not 398 as Tsikata would have the court believe.
Tsikata raises another pink sheet on which Bawumia insists there was over voting. He asks the witness to tell the court on which basis he makes the allegation of over voting.
Bawumia tells the court that the space C1 (which is the space on the pink sheet for the total of ballots issued) has been left blank. He says that is a clever way of hiding over-voting because nobody can determine how many votes were issued and compare it to the total votes cast.
Tsikata suggests that leaving a place blank does not mean there is over-voting. Bawumia retorts and says that is the opinion of the counsel. Tsikata says the blank space may just be an error; an error that even the petitioners have committed in filling their affidavits. Bawumia admits there are errors but those errors do not affect somebody's presidency. But the error on the face of the pink sheet had the propensity of affecting somebody's presidency.
Tsikata gets to another pink sheet sheet exhibit in which the petitioner maintains there is over voting. Tsikata maintains there was a genuine error in filling of the pink sheet and could therefore not be described as a case of over voting. He says even if there was over voting, the petitioners have their agents who appended their signature to certify the results.
Bawumia says the genuine error resulted in over voting. He maintains that merely signing the pink sheet by the polling agent does not make the illegality legal.
Tsikata brings out a guide to election and the role of the polling agent and asks witness to read the relevant portions. Bawumia reads. Tsikata fires asking did the polling agent do what was required of them? Bawumia says they did it to the best of their ability. Tsikata asks if witness is happy with the performance of the polling agent and whether or not he can confirm that the polling agent raised any protest about any irregularity. Bawumia retorts, saying on the face of the pink sheet there is an irregularity and that is all that matters.
There is another case of contrasting figures on the face of pink sheet exhibit. Tsikata insists on that pink sheet the figure is 784 even though the eight in the middle has been cancelled and replaced with seven. Bawumia says the correct figure is 774 and in that case there is over-voting.
Presiding Judge Atuguba asks witness to tabulate the figures and tell the court what figure he will arrive at. Bawumia does that and tells the court the figure is 774.
Tsikata says of course if there is an initial error in filling the pink sheet it will reflect in the total figure. Bawumia agrees with Tsikata and says those errors will not only affect the figure at that particular polling station but will in the final analysis affect the final declaration of the election which is what has happened.
Tsikata asks witness whether his polling agents had tally sheets of voters and whether they followed the procedures to the letter.
1133 One of the judges draws the attention of Tsikata that his questions on the role of polling agents has been over flogged adding, that will be a decision by the judges to make and not the witness.
Tsikata says, his question was on tally sheet to be used polling agent, which is quite crucial to the conduct of election. He says the petitioners are seeking to annul legitimate votes and that they must be subjected to strict proof in respect of all that happened during voting. He says with the answer on tally sheet they will be able to know if the agents were able to identify if the number of people who came to vote were more than the votes cast.
Atuguba intervenes and subtly agrees with his colleague on the bench. He says the issue of the role of the polling agent has been dealt with but asks counsel to proceed cautiously.
Tsatsu Tsikata takes another pink sheet exhibit on which an error has been committed on the face of the pink sheet. On that sheet there is the number one written in letters. But in the figure column, the number 11 has been used. Bawumia insists that with the figure 11 there is over-voting. Tsikata says the witness cannot pick and choose which figure he wants and on which basis he will call for the annulment of the votes. He accuses witness of being untruthful and says when the words are used there will be no allegations of over voting.
Bawumia retorts and says on the pink sheet it is not words that are tallied but figures and that even the second respondent will attest to that fact.
Philip Addison raises an objection and demands that Tsikata withdraws the use of the word "untruthful" against the witness. He says counsel cannot call the witness as being untruthful when he is just telling the court what is on the face of the pink sheet and was required to be done with the figures on the pink sheet.
Tsikata says there is no reason to withdraw his comment and proceeds. Presiding Judge Atuguba asks witness to tally the figures in words and see what he will arrive at. Bawumia tallies the figures and tells the court that when the numbers in words are counted there will not be a case of over voting but insists
Tsikata makes reference to the evidence led by the petitioner in which he said that on December 7 the NPP was clearly in the lead but on December 8 the results changed largely because of the irregularities which inured to the benefit of the first respondent. Tsikata then asks witness if their initial assertion of victory was based on declared results at polling station which were faxed to the HQ of the petitioners. Bawumia says that may well be true but he is not emphatic.
Tsikata pushes him further by saying on what basis would the petitioners assert that they were winning the election if not from declared results. He asks witness not to ridicule himself.
But Atuguba interjects and tells Tsatsu Tsikata that the witness has every right to ridicule himself and cautions counsel from proceeding on that line.
1215 Identification Controversy
Tsatsu Tsikata asks witness if he can confirm that the so called irregularities complained about by the petitioners and which are on the pink sheets inured only to the benefit of the first respondent. Bawumia affirms. Tsikata then brings out a pink sheet and asks witness to identify it before the court.
Philip Addison springs to his feet and raises a vehement objection to the call for identification by the witness. Addison argues that witness cannot be allowed to see a document that does not emanate from him. He says the petitioners submitted over 11,000 pink sheet exhibits for the third respondents to peruse and have the liberty to select from any of the submitted exhibits. He posits that the third respondent cannot spring a surprise on them by asking the witness to identify a document that is not before the court.
Tsikata is up on his feet. He says he has asked the witness to identify the document because it was not served on them. He says the petitioners have brought pink sheet exhibits in which results have been annulled in some polling stations over alleged irregularities. And on the basis of that annulment, they are asking the court to ensure further annulment of results from other polling stations in which the petitioners are alleging there were violations of the electoral laws. He says the witness in his affidavits indicated how his team perused some 24,000 pink sheets and so the respondents have every right to ask the witness questions pertaining to those pink sheets. "It is not about 11, 000 polling stations, it is about 26,000 polling stations," he adds. He further posits that the petitioners cannot seek to annul 55 per cent of votes for the first respondent and seeking only to annul 28 per cent of votes for the first petitioner. He says if the witness led in evidence that they had perused over 24,000 polling station results, there is no way the court can entertain this petition without looking at the 26,000 polling station pink sheets. He says this pink sheet is crucial to the testimony of the witness and must be allowed to be identified by the witness.
Addison is on his feet again adjusting his microphone. He says the witness indeed perused 24000 polling station results out of the 26,000 stations. He says there is no evidence before the court that this pink sheet the counsel for the third respondent is asking the witness to identify is one that was perused out of the 24000 polling stations. He says the witness cannot be made to identify such a document.
The judges take a break to confer on the objection.
After about ten minutes Atuguba announces that the court would have to go on recess for lunch after which a verdict on the objection will be made.
1417: The Court resumes.
The judges over rule the objection by the petitioners. Atuguba cites sections of the Evidence Decree as well as portions of the affidavits filed by the respondents to back their verdict.
Tsatsu continues by asking witness to identify the pink sheet. Bawumia mentions the name of the polling station. Tsatsu proceeds by asking him to confirm if the figure at the bottom compared to the one in C1 indicate a clear example of over voting. Bawumia says he can see the figure but cannot authenticate the figures on it.
Addison rises to his feet again to protest that Tsikata has gone beyond asking the the witness to identify the document and is now asking him to answer questions on it.
Notwithstanding the protest Tsatsu continues by asking witness to confirm if there is over voting and whether or not he would ask for the annulment of the results in this particular polling station.
Addison rises again. He says the witness cannot be allowed to identify the document and that the counsel cannot proceed with that line of questioning. He accuses Tsikata of setting an entirely new case. He argues that both the first, second and third respondents have all strenuously argued that there was no over-voting. He therefore finds it surprising that counsel will bring an entirely different pink sheet outside the 11,000 pink sheets the petitioners submitted and seek to question the witness on that one. "Are they now co-petitioners?" he asks. He says they have adhered to the stringent directives by the bench and have deposed and sworn affidavits to the over 11,000 pink sheets. He says they were again asked to provide further and better particulars which they adhered to, out of out has resulted in some mis-labelings. He says it will be unfair for the bench to allow counsel on the other side to spring a surprise on them by introducing a new pink sheet and a line of questioning which is palpably different to what they have answered to in their affidavits. He asks the bench if they have shifted from their earlier directives they themselves put out? He says it will set a bad precedence out of which will open the flood gates for all of them to introduce exhibits which are outside what they have tendered in evidence.
Tsatsu insists the witness must be allowed to answer the question on the document. He says they do not seek to be co-petitioners in the case but says there will be bad faith if results which went for the first respondent are annulled because of over voting and and those that went in favour of the first petitioner are allowed to stand.
Court rises for a period of five minutes for the judges to confer on the matter and give a ruling.
After over 30 minutes of deliberation Presiding Judge Atuguba rules as follows;
"So far as the question objected to, seeks compositely to portray that there are other pinks sheets with malpractices of the kind in respect of which the witness has testified that they should be annulled, the objection is over ruled. However, beyond such composite question, the questioning cannot be allowed in such as much the third respondent’s turn to testify along this line is yet to come."