Afari Gyan, star witness for the second Respondent in the ongoing Presidential Election Petition will enter the dock, Thursday, in day five of cross examination.
Philip Addison will attempt to challenge the credibility of the witness hopefully with pink sheets that have been filed and served on the Respondents.
Today’s hearing will be half day to allow for the parties to have their final meeting with KPMG to discuss the fallouts of the audit of the pink sheet exhibits.
Myjoyonline.com will as usual provide up to the minute live text on proceedings in court.
The Panel is set, so too is the counsel who are introducing their team of lawyers to the bench.
Afari Gyan walks into the dock. He is reminded of his oath.
Addison is up. You said you printed 54,000 pink sheets for the presidential elections right? Afari Gyan says they printed a set of 27,000 and duplicates which adds up to 54,000.
If 26,002 booklets are used a little over 27,000 should be left, right? Addison asks.
Quarshie-Idun raises an objection. He says the question being asked is of no relevance and must be rejected.
Addison says this balance, is it presently in your custody. It must be,Afari Gyan answers.
Is it or it not Addison insists, they are in our custody, Afari Gyan says.
So if you are asked to produce it in court you will be able to right? Addison asks further.
Quarshie Idun raises an objection citing the irrelevancy of the question.
Addison rebuts. He says the use of duplicate serial numbers is central to the petitioners case. He says in some cases the duplicate pink sheets were substituted for the original. It is the centre of our case. He says it is another balloting accounting of the pink sheets and should not be a problem.
Quarshie Idun says the Petitioners have not pleaded. It is an entirely new case they are setting up.
One of the judges intervenes and says the question should be allowed. It is only a cross examination. He says issues of relevance will be determined by the court.
Addison goes ahead by asking if the EC printed a duplicate set of pink sheet for the Parliamentary. Afari Gyan says there are many blank sessions on the pink sheets and so the EC did not print a duplicate set for the Parliamentary.
By printing a duplicate set of pink sheets for the presidential election you have caused a financial loss to the state, Addison jabs.
One of the judges tells witness not to answer. Addison moves on.
Addison re-phrases. He says the EC printed more pink sheets than necessary and that the left over cannot be used in anyother elections. There is always an element of wastage in the calculation and use of election materials, Afari Gyan says.
Addison asks witness if he is conversant with the use of the BVD. Afari Gyan says yes.
Addison asks if he is familiar with the manual on BVD. Afari Gyan says he is generally familiar with it.
Addison then presents a BVD manual to be identified by the witness. Afari Gyan takes a look at it and says the manual given to him is different from what the EC has. He says he brought the copy of that particular manual and shows that one to the court.
Addison suggests to witness that the manual presented by the petitioners was given to the NPP reps at an IPAC meeting. Afari Gyan says he cannot confirm that.
Addison asks further if he can confirm that the forward in the manual presented by the petitioners was written by himself. Afari Gyan says he sees his name written at the top of it.
Addison asks witness to handover his copy of the manual. After a brief perusal Addison says the forwards in both documents are the same and was written by Afari Gyan.
Addison, nonetheless goes ahead with his question. He asks witness to open page 16.
Quarshie Idun raises an objection. He says the document has not been tendered before the court for which reason the counsel cannot ask question from it.
Addison says the document has already been identified by the witness already and he is familiar with it. He goes ahead with his questions. Quarshie Idun is up again with his objection.
One of the judges asks witness to open section 74 of the Evidence Act. Quarshie-Idun obliges and reads but remains adamant. He says the document must be tendered.
Judges take some time to rule on the objection raised.
Addison is up again. He reads sections of the Evidence Act. Atuguba says the sections he has read speaks more to authenticity of a document rather than the admissibility of it. He adds that Quarshie Idun's objection was more on admissibility.
There is back and forth with arguments from the EC and the petitioners. Presiding Judge says the issue needs a little conferment.
The judges rule that the document be tendered before the court.
Addison tenders the document. He asks witness to look at page 16 of the document and read it to the court. Afari Gyan reads.
Addison also asks him to open and read page 20 of the document. Both documents give discretion to the presiding officers to allow or not to allow voters to be verified.
Addison says based on the two sections which have been read it is evident that the EC trained it officers to allow people to vote without verification. Afari Gyan denies Addison's assertion.
Addison: By giving discretion to the officers they were ordered to contravene the law. Afari Gyan rebuts; he says he is not a lawyer.
Addison says the section C3 was added in deliberate violation of CI 75, I disagree, Afari Gyan says.
Addison: You have told the court that electoral officers have a discretion to or not to accept ballots that have not been stamped. Yes the the presiding officer has reasonable discretion to that effect.
Addison suggests to witness that also is a violation of the law. Afari Gyan says he is not a lawyer and cannot accept that.
Addison vehemently suggests to witness that the EC does not have in their custody the 27,000 left over pink sheets. Afari Gyan says if those left overs have not been stolen, they will be available in the EC's custody.
Did you say in your evidence that Polling agents are more than observers. Afari Gyan says yes.
The functions of polling agents are strictly circumscribed, Addison adds. I will say so Afari Gyan admits.
Addison: They are not elections officials. In the strict sense of the word. No, Afari Gyan admits.
Addison hands over to Afari Gyan a manual to read. He reads the manual which says the presiding Officer shall give access to polling agent to "observe".
After the reading Addison says it is clear that it is not the business of the polling agent to supervise. His is only to observe. Afari Gyan admits that the agent will not supervise but to observe but adds that the section of the manual read is not the only section of the law that is applicable in this case. He says he has knowledge of laws that says the agent must swear an oath and be held for perjury if he breaks that oath.
Addison: There is no such provision in the current law that the polling agent must swear to the penalty of perjury. Afari Gyan disagrees.
Addison asks him to read regulation 19 (6) of CI 75. The portion reads that the polling agent will be made to swear an oath.
Addison tells the witness that there is no mention of perjury. Afari Gyan admits but says he has read of perjury somewhere in the law.
Addison asks him to take a look at CI 15.
Quarshie-Idun raises an objection. He says CI has been revoked and therefore a question cannot be asked on it. Judges agree.
Addison suggests to the court that he was only trying to let the witness know that the witness was quoting and applying a law that has been repealed but if in the wisdom of the court they will not allow for reference to be made on CI 15, he will go on.
Addison: Whilst election officials are special voters, polling agent are not. Not all election officials are special voters, Afari Gyan answers.
Addison: A polling agent is not involved in the actual administration of the election. Afari Gyan says affirms that assertion.
Addison: He is also not involved in the actual counting. He is not, Afari Gyan answers.
Addison: He also does not inspect the IDs of voters. No, he does not, Afari Gyan says.
Addison: He cannot confront anybody at the polling station. No and nobody has powers to confront anybody at the polling station, Afari Gyan says.
Addison: If he has any problem he has to consult the Presiding officer. Yes, Afari Gyan admits.
Addison:In fact the presiding officer can ask the polling agent to leave the polling station. Yes, if the agent misconducts himself, Afari Gyan says.
How many election officers were recruited, Addison asks. Over 127,000 Afari Gyan says.
Addison: How were election officials selected. Afari Gyan says different categories of people were selected with different criteria. Returning Officers were interviewed directly by the national officers at the EC HQ whilst Presiding officers were selected at the district level.
Addison: Was there any back ground checks done before they were recruited. Afari Gyan says a certain level of checks were made.
Addison: What was the qualification and criteria for selecting a presiding officer. Afari Gyan says the presiding officers must be "reasonably well educated". He must not be seen to be affiliated to any of the parties.
Addison: What does it mean to be reasonably well educated. Afari Gyan says people who have acquired SHS.
Addison: Were the political parties involved in the selection. Afari Gyan says that is one thing the EC frowns upon. He adds because the parties might infiltrate the selection with their own people.
Addison: Was the list of temporary staff made available to the parties. Yes, Afari Gyan says.
Addison: What was the reason for providing the list to the parties. So that they can raise objections where necessary.
Addison: I believe teachers were used in the previous elections. Yes and we still use them.
Addison: Teachers with SSS qualification? Well it was the minimum qualification.
Addison: Do you have any idea how many of them were teachers. No, i cannot keep all that in my head, Afari Gyan retorts.
Addison: Did all parties have polling agents? I cannot tell but i was told the two parties had agents every where.
Addison: Does it mean that parties without polling agents were disadvantaged. No in some areas, parties did not fill a parliamentary candidate so they did not require their polling agents to be present there, Afari Gyan says.
Addison: Who protects the interest of the individual voter at the polling station. Afari Gyan answers by saying the individual voters' interest are protected by election officers and the security.
Addison: Is the appointment of polling agent mandatory. Afari Gyan says it is not. It is a right and a person can choose to utilize that right or not.
Addison: So parties who do not present polling agents, are they allowed to complain after elections. Everybody is allowed to complain if you have a genuine complaint, Afari Gyan posits.
Addison: It is not a requirement that any one challenging the election must have a polling agent. No My lord, Afari Gyan admits.
Addison says did it come to his attention of the witness that people were turned away because they could not be biometrically verified. Yes those reports came to me, Afari Gyan admits.
What did you do about it, Addison asks. Some of the complaints came from afar. I was at the National HQ and could do little, Afari Gyan says.
Addison: Some of the complaints came from Accra and you did not hear it. I didn't.
Addison: Did you hear of the first respondent [President John Mahama] urging the EC to allow people to vote without being verified. I didn't hear him, Afari Gyan denies.
Addison: Did you hear election officials granting interviews saying that people were voting without verification. I did not, Afari Gyan denies.
Addison: Did you hear the interview that was granted Asiedu Nketia, an interview which was played in the court. Afari Gyan says he heard it but cannot evaluate it.
Addison: On election day election officer granted an interview to Joy FM that people were voting without verification. Afari Gyan says he didn't hear that.
Addison: You had constituency, district, and regional officers and all of them did not hear it. I presume so, Afari Gyan posits.
Addison: Did you tell the court that they were not up to the task? Afari Gyan says given the number of officers it will be unrealistic to expect 100 per cent output.
Addison: As a matter of fact, would you say they were up to the task. Most of them were up to the task, Afari Gyan answers.
Addison: Do you remember there were post election workshops. Yes, Afari Gyan answers.
Addison asks witness if witness is aware that in one of the post election workshops in Koforidua, one of the members of the EC, Sarfo Kantaka admitted there were errors by temporary staff because teachers were not used. Afari Gyan says he was not in Koforidua so he cannot confirm that comment. He adds that he headed the workshop in Kumasi whilst Kantaka headed the Eastern Region and Accra workshops.
Addison suggests that the 2012 elections were completely left in the hands of temporary staff. Afari Gyan says in all elections, the temporary staff had played crucial roles.
Addison: You sought to put the blame on the temporary staff for the errors in the elections. Afari Gyan says no I said, in spite of the errors, the EC will take ultimate responsibility for the errors and the parties must do same for errors.
Addison: You mentioned two errors that were committed in the elections. Afari Gyan says yes i said errors that could be committed.
Addison: You also said the errors can result in the defeat of a candidate. Yes it has happened before, Afari Gyan answers.
Addison: Since it had happened before, did you check on the primary document before declaring the result of the 2012 elections? I did not because no complaint was raised, Afari Gyan retorts.
Addison: I believe in the presidential elections, there were elections in all polling stations. Yes, Afari Gyan.
Addison: Were elections held in all the polling stations in the country. As far as i know yes, Afari Gyan answers.
Addison mentions names of constituencies; Tamale South elections, Manya and Yilo Krobo, Akropong, Kintampo South, Upper West Akyem, Mpohor, Yendi, Ledzorkuku, Ketu North, Oforikrom. As far as i know Yes, Afari Gyan answers to all.
Addison: I believe you have the collation forms for all these constituencies. Yes but it is not in Accra. It is in the constituency offices.
Quarshie-Idun raises an objection. He says issues about collation forms have not been pleaded.
Addison says these are documents that are only in the custody of the EC and that is why the Petitioners are asking them to produce it.
Lithur and Tsikata enter the fray
Tony Lithur pleads leave of the court to make a comment. He says the first Respondent has closed their case. He says there was a time that the court gave opportunity for parties to asks and make available all documents. That time has elapsed. He says they also had wanted to produce other documents but could not. He asks for equal treatment to all the parties. He says the fundamental principle of law is that cross examination cannot be used as a tool of discovery and the petitioners must not be allowed that luxury.
Tsikata says the issue of collation sheets affect the very essence of the petition. He says petitioners have copies of collation sheets just as they have of pink sheets and must present it to court.
Addison says they do not have the collation sheets because those sheets are not presented to the polling agents.
Both Tsikata and Lithur resist. They insists the collation sheet are presented to all parties.
Addison is up. He says there is a difference between collation sheets and constituency result summary sheet. The parties are presented with summary sheet and not the collation sheet.
Tony Lithur breaks into the explannation of Addison and admits finally that collation sheets are not presented to polling agents but adds that their earlier position still stands.
The judges query Addison on the strategy in getting the information. They say counsel could have filed notice for those documents to be made available and not to use cross examination to be fishing for extra information.
Addison says they can exercise that option of filing notice of the court for those information to be made available but they can equally ask for those documents to be produced before the court during cross examination.
He finally withdraws the request for now.
The panel asks counsel if he is done with his cross examination on issues that do not bother on the controversial pink sheets which are being audited.
Addison says except his cross examination on the voters register which Afari Gyan was asked to produce today, he would rather save the residue of his cross examination after the audit has been done.
The panel confers with the registrar to find out how long it will take for KPMG to finish with the audit. The are told it will take a week and some few days.
Consequently the judges adjourn hearing of the case to June 24, 2013 by which time KPMG would have concluded the audit.