In Day 22 of the ongoing Presidential Election Petition, Lawyer Benoni Tony Amekudzi has applied for a review of his earlier application challenging the petition before the Supreme Court. His initial application was dismissed by the court but he has applied for a review.
He says the president per the constitution cannot be sued and therefore prays the court to dismiss the case against President John Mahama
The judges have taken their seat. They will rule on the Amekudzi matter before the witness for the first and third Respondents Johnson Asiedu Nketia take his place in the witness box.
Mr. Aseidu Nketia aka “General Mosquito” General Secretary of the National Democratic Congress (NDC) continues his evidence-in-chief. He will be led by counsel for third respondents, Tsatsu Tsikata.
Aseidu Nketia is testifying on behalf of the President, John Mahama and the NDC. He began last Thursday.
1009 Proceedings begin;
Amekudzi reads out his motion of an Amicus Curiae challenging the case against the president. He describes the petition against the president as frivolous. He says the case is trying to "break the arm of the 1992 constitution" A sitting president while in office shall not be sued or be joined in any suit. He cites Article 64 and CI60 and says the ongoing petition will set a dangerous precedent if not reviewed.
The framers of the 1992 constitution never contemplated that a sitting president be sued. He goes ahead to read the articles mentioned above.
President of the panel Atuguba makes an intervention. The constitution you are seeking to defend is divided in articles. Be sacrosanct in your reference and don’t transpose the articles and the provisions, he says.
Amekudzi goes ahead and cites other articles of the constitution. Article 57 makes it clear that the president is not amenable to any court, he says.
He adds that the court must make a determination of that legal issue.
He further cites a Supreme Court case involving the NPP and President Rawlings in the early 90s. He says by a 3-2 majority that the framers of the constitution. He says in that case the NPP challenged Rawlings' election of DCEs and brought him before the court. The panel held the president cannot be sued, he insists. The president is "Head of State, the father of the nation; the Commander in Chief of the Ghana Armed Forces" he says the aura and respectability of the president must be protected.
Statement of Case
One judge asks Amekudzi where his statement of case is. Amekudzi says his statement of the case was the ruling given by the court on his first application.
Another judgement intervenes. He says "you are on the right path" but the reason why you are here is covered by procedure rules. He is drawing your attention to the CI rule 56 (1). Read and make a judgement if you have followed the right procedures.
Amekudzi says presenting a statement of case means he is abandoning his case, something he is not ready to do.
One of the judges asks if he has a copy of the Procedure Rules. He says he has left it at home. One of the judges presents a copy to him and asks him, to read. He reads and Myjoyonline paraphrases as that there shall be by a motion with supporting affidavits. It shall also be on notice to all parties.
He is asked by one of the judges if, per what he has read, he is ready to follow the right procedure or would have the judges rule on the matter.
Amekudzi brings his case to an end.
Addison says they will leave the matter entirely in the "capable hands" of the court.
Tony Lithur says the application has not properly been filed and should therefore be dismissed.
Quarshie Idun says he leaves the matter entirely in the hands of the court.
Tsikata says as he has indicated previously, the president is competently represented by a counsel. He insists Amekudzi is an "inter-meddler" and the case should be dismissed.
President of the panel says the case brought by Amekudzi should not be treated with the contempt with which Tsikata attempted. The case is not all "wishy washy" he says, adding a similar case was brought against the Attorney General in the late 60s. "We have heard your cases," he tells the counsel.
Court on recess
1145 Court rises for the judges to make a determination of the matter.
Atuguba says even though the applicant did not follow the procedures in moving his application, the court has had to look at the substance of his case. He says the applicant needed a proper locus which he lacked. He says the court has given a thought to the concerns of Amekudzi but says Article 64, on which basis the petitioners are in court is a unique article on its own and nothing that has been urged on them to change their earlier position. He says the applications remains dismissed.
Asiedu Nketia mounts the witness box to continue with his evidence. He is reminded of his oath.
Tsikata is up. He asks witness to explain what he meant by bad faith in Paragraph 17 of his affidavits
Nketia says when the petitioners were leading in the 2012 elections, they saw nothing wrong with the figures and the EC but when they began losing the case they thought something was wrong with it.
He also cites the let my vote count mantra by the NPP. He says the NPP and its supporters are on the streets shouting let my vote count and yet are in court seeking the annulment of some four million votes. That is bad faith.
Nketia goes ahead with his evidence on bad faith. He says petitioners made so many allegations including one that said that the EC organised elections outside the country.
Addison raises an objection. He says the comments being attributed to the petitioners is alien to them. He says no where in their answers or affidavits did they accuse the EC of conducting elections outside the country and so if the witness is minded he can point to the court to where that specific allegation was made.
Tsikata says he is uncomfortable with the objections by Addison. He says what Nketia said was only an answer to a question. If the petitioners have a problem with that answer the best thing for them to do is to note it down and cross examine him on it and not to rudely intervene in his evidence.
Addison is up again. He says the witness do not have that luxury of saying anything at all that comes to mind merely because he is providing an answer.
Judges begin to confer.
UK=United Kingdom or Unknown
Tsatsu is up. He provides a document exhibit in which the petitioners said the EC organised elections in unknown places (UK).
Addison is up and says the UK simply means "unknown" and cannot therefore be interpreted to mean United Kingdom as counsel for the third Respondent is seeking to do. The court is thrown into spontaneous laughter.
Judges still confer.
By 6-3 majority, the objection has been sustained. Addison thanks the panel but wants the particular statement from Nketia expunged. Tsatsu wants to remain.
The evidence on that score is expunged, Atuguba says.
Nketia continues with his evidence. He says the petitioners did not cite in their petition places in which the first petitioner won but concentrated only places in which the first respondent won. "Selectivity," he says.
Tsikata asks witness to read portions of the petitioners' amended petition which talk about the breach of the fundamental right of a universal adult suffrage.
Witness says the claim by the petitioners is untrue. He says the 2012 elections was the most transparent elections ever held in the history of the country. There
Dr Bawumia said they were not provided with a provisional register what do you say about that, Tsikata asks.
All parties were made to understand that all the parties will be given the printed copies of the provisional register at the polling station. And that was what happened, Nketia answers.
Tsikata asks further what happened with respect to the registration process and the figure released.
Nketia says a little over 13 million was announced pending further registration of voters abroad, cleaning of the voters register before printing of the ballot papers commenced. He says after all that the figure rose to a little over 14 million.
Tsikata asks witness if he can testify on the alleged difference between the register for the presidential election and that of the parliamentary election by over 127,000.
Nketia says nothing like that happened. The same register was used for both Presidential and Parliamentary.
Tsikata asks witness to comment on Dr Bawumia's description of who a polling agent is. Whether they are mere observers or exalted observers.
Nketia says the poling agents are agents of the candidate and take decision on behalf of the candidate and can therefore not be described as exalted agents. Nketia says the petitioners in some case applauded the vigilance of the polling agents and in other case they described them as mere observers. This cannot be the case, he says.
Heard Dr Bawumia on cross examination about serial numbers and that those numbers are like security numbers on cheques. What do you say about it.
Nketia says he has never worked at the Bank of Ghana but at the Rural Bank. The pink sheets cannot be likened in any way to cheques. It is more of a deposit slip. It can be used anywhere in the bank’s branches. In the same way pink sheets can be used anywhere in the polling station. It is a common practice that if a pink sheet is soiled it is replaced. The printing of pink sheets is not tracked, instead it is the printing of the ballot papers that is tracked.
Tsikata says the witness is aware that that the petitioners have provided exhibits of some 24,000 polling station and seeking to, based on those exhibits, have the first petitioner declared as winner of the elections. How many polling stations are there in Ghana.
Nketia says over 26,000 polling stations.
Tsikata completes his evidence through Nketia.
Philip Addison is up. He fires his first question.
In your over 34 years of experience in politics and elections in Ghana, can you confirm that apart from the 2012 elections, you used biometric processes.
Nketia concedes he never used biometric verification in elections he took part in.
On that answer the court breaks for Lunch.
1435 Court Returns from recess
Addison is up to continue his cross examination.
You told the court you have attended many IPAC meetings. Do you have minutes of those meetings? Addison asks
Witness says minutes are not taken during the IPAC meeting. It’s a meeting not backed by law.
Addison says if 100 ballots are issued and it turns out that 110 ballot papers are found in the box what does the witness term it, if it is not over voting.
Asiedu Nketia says it means "unidentified materials" have found its place in the box and will therefore be taken out.
Addison presents 10 pink sheet exhibits and asks witness to identify them by their numbers. Nketia mentions the exhibit numbers.
Addison says in each of those pinks sheets there were more votes than ballots issued.
Nketia takes one of the pink sheet out and says on that one, the total votes in the box 448 the number of ballots issued is 448 but in all the rest the number of ballots issued are less than the total votes in the box. He attributes it to clerical errors and wrong entries. He says nobody raised objections at the polling station because the ballots were sorted out.
Addison asks how come the total ballots in the box will be more than the ballots issued and what name is given to those figures which are in excess.
Nketia says people are not searched before voting and there is a possibility of people going into the booth with foreign materials. So there can always be unidentified materials in the box which when sorted will ensure equity between ballots issued the papers in the box.
In your evidence in chief you said over voting occurs when there is more votes in the box than the total number of registered voters. What would you call the excess votes when the total number of ballots exceeds the total number of registered voters at a polling station.
It is called over votes and the results at the polling station is cancelled. He says over voting can only be related to total votes and total number of registered voters
Addison asks if the witness can confirm if there is a case in which the number of ballots exceeded the total number of registered voters.
Nketia says not to the best of his knowledge.
Addison then presents list of pink sheet exhibits in which the total ballots exceeded the total number of registered voters and asks witness if he can confirm it.
Nketia says on the face of the pink sheet the number of ballots exceeds the total number of registered voters but fails to admit that it is over voting. He says entry was in error.
Addison takes Nketia to another definition of over votes in which there are more votes than the ballot papers issued to the polling station.
He says the integrity of elections have been compromised if there are foreign or unidentified materials in the box than was issued.
Nketia disagrees. He says assuming somebody tries to enter the court room with an ID other than what has been accredited to him, he is sent out. It cannot be the case that the whole court process will be thrown into jeopardy.
Addison asks Nketia what are the primary records for the elections.
Asiedu Nketia mentions among other documents, the pink sheet. He says it is only the tail end of the pink sheet that is considered important for the presidential results and not the entire pink sheet.
Addison asks who fills in the pink sheet and who has to sign it.
Nketia says presiding agents are expected to fill and sign.
Addison says what happens if a polling agent fails to sign. Witness says the results are declared.
Addison asks witness what a provisional register is?
Nketia says the Provisional Register carries information about number of people registered at a particular time waiting to be refined.
Addison says the register was not provided to the petitioners contrary to what the witness is saying.
Nketia says daily print outs of the register were given to all the parties.
Addison asks witness to read CI 72 Regulation 21. Nketia reads: The commission shall not later than 3 months compile a provisional register and present to the parties involved in elections.
Addison insists the NPP was not given that list. Nketia says daily print outs were given to all parties which had all the information on provisional register.
Addison says the daily prints outs to which the witness keeps referring to had no photographs on them. Nketia rebuts by saying since 1992, provisional registers had never come with photographs.
Free and Fair Elections
Addison asks witness if he knows the first second and third Petitioners.
Nketia responds in the affirmative.
Addison asks if witness can tell the court if any of the three Petitioners have said any where that the 2012 elections were free and fair. Nketia says he cannot and has never quoted any of them as saying the elections were free and fair.
Let My vote Count
Addison asks witness if he can tell the court exactly when the Let My Vote Count campaign was launched.
Nketia says he has no idea. Addison gives him pointers. Was the campaign launched before the petition or after the petition had been filed, he asks.
Nketia says he cannot say.
Addison provides information that the the campaign was launched after the petition had been filed. He says the evidence of bad faith in which the witness accused the petitioners' supporters of seeking to let every vote count through the let my vote count campaign and yet their lawyers are in court seeking to annul over 4 million votes is untenable. Addison says the let my vote count campaign cannot be cited as an example of bad faith because it was launched after the petition was filed.
Addison asks witness to tell the court his view on the serial numbers on the pink sheets.
Nketia says he does not what the serial numbers are and its relevance to the election process.
He is presented with a number of pink sheet exhibits to identify the serial numbers.
He declines. He says except where the numbers from which these so-called numbers are provided he cannot say whether these are serial numbers.
Addison suggests to him that the serial numbers are security numbers which are exclusive to a particular stations.
Nketia disagrees. He says they have no purpose on the pink sheet. "Serial numbers by themselves don’t make any sense."
Addison asks witness if he is aware ballot boxes have serial numbers. Nketia says he is not aware. Addison asks further if, per his 34 years of experience he aware if ballot papers, envelopes all have serial numbers.
Nketia says he is aware that ballot papers do have serial numbers and that is understandable and important but not serial numbers on pink sheets.
Addison suggests to the witness that it cannot be the case that serial numbers will be provided on ballot papers, on ballot boxes, stamps etc for security reasons, yet the ones provided on pink sheets will not serve any purpose. It is also for security reason. Nketia disagrees with him.
Addison goes ahead and asks witness if he or any polling agent Will know if the figure arrived at within a particular polling station is taken into consideration when the figures are announced at the constituency office?
Nketia says it should be possible because there chains of people working at different stages of the chain. So that what ever information that comes up at one stage is conveyed to the next chain.
Presiding Judge is signaled to end proceedings for the day because time is up.