After seven months of court room wrangling over the disputed 2012 general elections, lead lawyer for the Petitioners and each from the three Respondents are attempting last gasp advocacy aimed at convincing the judges to accept their respective plea.
The Petitioners still hold on to their allegations that the elections were fraught with irregularities and results as declared by the EC were not the true reflection of what went on. The three Respondents have been vehement in disputing that claim.
For 48 days they held the judges spellbound with the arguments. The time came for their last addresses at around 10:30 Wednesday morning.
Below are live-updates of the drama, theatrics, and histrionics of th lawyers on Wednesday's Proceedings brought to you by Myjoyonline.com.
Proceedings have begun.
Judges have taken their seats and so have the lawyers. Introductions are done and Tony Lithur zooms straight into his address.
Tony Lithur counsel for the first Respondent begins by giving a background of the petition from the voting day.
He says in the heat of the elections when it became the apparent that the biometric machines were not working, the president and other eminent chiefs appealed that qualified voters be allowed to vote without being verified.
Boakye Agyarko, campaign manager of the NPP reacted by saying that the EC be given a free hand.
The EC then announced a postponement of the Election and after elections the following day the results started trickling in. The NPP were jubilant thinking they were winning but a day, after when the results started going against them they started complaining. They attempted to have the declaration postponed which was turned down by the EC. They met the EC with allegations they were unable to defend and based on that the EC chair declared the results.
The Petitioners then formed a task force to compile evidence to have votes annulled. They poured over paper novel propositions like duplicate serial numbers and wanted legitimate votes unduly annulled.
The petitioners limited this serious exercise to what happened only on the face of the pink sheets with Bawumia only confessing that "you and i were not there" during cross examination. They did not even include the polling agents in the task force that was set by the NPP and chaired by Bawumia to find out the alleged irregularities.
What did the agents do in the face of the alleged irregularities? They are mandated by law to not to sign pink sheets when there are clear violations of the law. That is basic. Yet they signed and we are being told there were irregularities and the only evidence is on the face of the pink sheets?
Failure to take steps to report alleged irregularities by this polling agents were good enough evidence that were no irregularities.
They claim the pink sheets are the primary sources of election and once they have presented the pink sheets which were fraught with mistakes, they have their evidence. Even on that pink sheets the Petitioners are asking the judges to ignore the fact that their polling agents signed those pink sheets to authenticate what happened at the polling station; they did not complain about any irregularities in prescribed forms and are asking the judges to ignore the fact that there was not a single polling agent who was brought before the court to testify how these irregularities took place.
If that is the case, then i submit that in future, no polling agent must be invited to police the polls and that everybody must sit in their homes and watch the proceedings and after elections, anybody can proceed to court and ask for annulment of votes and when they are challenged, they will say their evidence is on the face of the pink sheets. You and i were not there.
We should not belittle the exercise of voting. It is about votes. Should it be limited to what happened on the face of the pink sheets? Where did they get the pink sheets from? From these same polling agents.
We have still not seen the polling stations which the Petitioners are alleging there were irregularities.
The issue of over votes and absence of serial numbers, absence of signatures are very weak attempts to have votes disqualified.
He concludes saying during cross examination he asked Dr Afari Gyan a simple question about his comparison of the 2012 elections to previous elections and his answer was that the 2012 elections was the most transparent and that explains why there were no complaints by polling agents at the polling stations.
He cites the Ahuma Ocansey case and says the right to vote is a fundamental right and if anybody comes asking for annulment of those votes, the judges must think twice. John Mahama won the election fair and square.
Quarshie- Idun’s submission
Quarshie Idun in his submission referred to Bawumia’s testimony that the party after the first day of voting which is 7th December 2012, thought they were winning. He quotes from his testimony and adds that Bawumia claims that everthing changed after 8th December
He quotes further from Bawumia’s testimony that after he was questioned whether the basis of his party’s confidence of winning on the first day was based on pink sheets? But in Bawumia’s answer he says they were based on assessments from their polling agents across the country.
Idun asks a rhetorical question: What changed after the first day? He says Bawumia couldn’t tell the court what exactly changed. But he, Idun says nothing changed. The votes were still being counted openly after the close of poll. This he says is the first level of verification. The results were then taken to the collation center – second level of verification. The third level of verification was in the strong room where everything was checked by the accredited agents of all parties.
Quarshie-Idun tells your Lorship to consider the importance of counting the ballots in public – because it is a key pillar of transparency. Your Lordships should be skeptical about calls for annulment because of errors in inputing votes on the pink sheets.
James Quarshie-Idun refers to some questions that Addison on 15th July posed to the E.C during cross-examination. He recalls how E.C said he led a team of experts to review Nigeria’s flawed 2011 electoral process and made extensive recommendations to the Nigerian authorities.
One of them was that the Independent Nigeria Electoral Commission(INEC) should be reconstituted because of the clear lack of confidence in INEC.
Addison then asked if he would recommend this to Ghana’s sytem. But Afari-Gyan responded that “we have a very very good, transparent, firm and tested electoral system”. He said there are many countries who would like to emulate Ghana’s system
Addison also read out another recommendation in which “INEC should be transparent in its work, by providing full information to election stakeholders in easily accessible formats”
To which Afari Gyan replied that Ghana already had such a system and that in many places the level of transparency is very high. Afari-Gyan added that there are places where political party agents do not know where the printing of ballot papers were done or the calculation used in printing ballots. Agents are also not allowed during registration exercises. But in Ghana we are able to know in court what happened months ago in Bubuashie.
In the final recommendations Addison read out that “a major area of concern has been a lack of transparency and verifiability in the results process. The counting of votes, and the transmission and tabulation of results must be transparent and conducted in strict compliance with the electoral law” and that copies of results should be given to party agents for greater transparency.
This, Afari gyan said the recommendations were literally recommending Ghana to Nigeria
Quarshie-Idun then says that the Petitioners all throughout the hearing have not questioned the process of verifiability of Ghana’s electoral system.
He says there is 24 hour surveillance by all party agents in the printing ballot papers which is also traced while it is transported to every center.
Idun says the six categories of irregularities presented by petitioners, have not established the causal likn between those allegations and results declared by E.C.
He says out of that large number of 26,000 polling stations, only one example of discrepancy between votes counted at the polling station and collation center. He says that this discrepancy is 80 votes where instead of writing 97 votes, the presiding officer wrote just 17. This he says had no effect on the results.
He accuses Addison of misrepresenting the testimony of his client Dr. Kwadwo Afari Gyan when Addison claims that the electoral officers forgot to bring Form 1C to the voting center and so could not enter results for column C3.
Addison also called it a white lie for Afari Gyan to claim to have told polling agents to enter zero when polling agents actually filled it. It is a misrepresentation of Afrai Gyan’s evidence, Idun says.
The Petitioners are asking the Lordships not to allow over 5 million votes count and are also asking that the judges to change the declaration made by the EC chair and have provided a new computation of results whereby the First Petitioner be made president. These are the stark claims of the Petitioners and it should be dismissed.
They have admitted that none of the voters did anything wrong. They have also admitted that no one voted more than once and yet they are asking that valid votes be annulled.
They are asking for a retroactive penalty for those who stood in a queue and voted. The law is quite clear on the retroactive penalty. The right to vote is fundamental and there cannot be retroactive penalties. Under the terms of the Evidence decree somebody who lacks understanding and knowledge of what happened cannot proceed to make claims and demands so if Bawumia was not present at the polling stations and will say "you and i were not there" his evidence should not be taken seriously.
The witness let his side down. His documentary evidence in the beginning was in respect of over 11 842 spread into 24 categories and gave votes in respect of each category for annulment.
He insisted in cross examination that these were the polling stations and provided the pink sheets. This claim proved to be false because a referee was asked to count. The evidence of the referee indicate that the number of the polling station is a little above 8,000.
What we now have in the closing address is 10,119 polling station. Before that, in the last date of address another figure has been given to be 10,081. This cannot be a legitimate basis to annul votes.
Even on the basis of the 10,081, there is no basis for the annulment of votes. The exhibits provided are outside the range of the appendix as provided by Bawumia.
In their address, the exhibit ranges, in the K series have suddenly increased from 70 to 700. They cannot at this stage ask the judges to use contradictory figures to make a judgment.
In the P series there are 2120 exhibits which do not make sense. 1060 have different polling stations and exhibits numbers.
The rules of the court are clear. The Petitioners shall provide not less than seven set of exhibits to the Lordships. In many instances they have only provided one.
There is also 93 of the exhibits which are not within the further and better particulars. More than 5000 out of the 8000 pink sheets are not properly before the court as evidence.
This respectfully goes to the heart of the issue. It is not a plea to use technical ground to water down the Petitioners' claim. They have not even discharged the burden of evidence and the judges cannot be asked to assess those evidence.
The claims of over voting are based according to them on the premise that, one man one vote but no evidence has been brought to show that that one person voted more than once.
Bawumia even acknowledged that one cannot make the allegations of over voting just on the basis of the pink sheet alone.
On the admissions of Bawumia alone the allegations of over voting cannot hold. In respect of biometric verification the case has been already by my fellow Respondents and i associate myself to that claim.
On the failure to sign by Presiding Officers Article 49 (2) says immediately after close of poll, the presiding officer shall declare the votes in the presence of the polling agents. He shall sign and so too shall the polling agents. If the Presiding officer fails to sign, it is not fair to ask that people who have voted should have their votes annulled because of the failure to sign by Presiding Votes.
The most outrageous claim is the claim of duplication of serial numbers. It is the weakest link in an already weak claim. It is the claim on which the Petitioners are seeking to annul over three million votes. There is no law backing this claim for annulment of votes when there is the duplication of serial numbers.
He says the judges cannot be asked to make a declaration on 24, 000 polling stations instead of the 26,000.
The Petitioners claim is factually empty with no supportable evidence being produced; legally pathetic; the petition is poor in arithmetic.
The Respondents have persistently maintained the 2012 elections were regularly conducted and the the court should uphold the results and yet when they are confronted with the primary record of the poll [pink sheet] they resign on the basis that there are defects in it. It is bizarre to note that it is based on this defective pink sheets that the results were declared.
The third Respondent has resurrected a dead issue on the number of pink sheet submitted by the Petitioners. According to the referee a unique pink sheet of 8,875 in the Registrar's lot were discovered out of which 1545 which they excluded, upon the order of the court 1234 were also discovered as unique by the second Respondent.
Another 804 found to be unique in the Presidents set and out of the pink sheets the Respondents confronted the Petitioners with, a unique pink sheet of 648 were found to be unique making a total of 11,431. One box in the president's set was not counted and the boxes in the possession of the Registrar were also not counted, this goes to show that indeed over 11,000 pink sheets were filed.
The Petitioners prior to the KPMG had deleted over 700 polling stations bringing the number down to 11,132.
At the time of filing the address, the Petitioners are now dwelling 10,119 pink sheets all shown to be unique and includes the 22 unknown polling stations.
The Respondents cannot pretend they did not know the polling stations in controversy because the Petitioners in their further and better particulars gave details of all the polling stations they intended to rely on and so they have not been disadvantaged in anyway.
No new pink sheets have been added by the Petitioners in the further and better particulars and there was no need to replace any pink sheets.
On declaration of the results by the EC, the first Respondent won by not more than one per cent of the total votes cast at the election and not valid votes cast. The difference between the First Respondent and first Petitioner was 325,863. This result should be taken in comparison to the outcome of votes the the NPP and NDC presidential and Parliamentary candidates.
The first Petitioner had 5,248,898 votes and his Parliamentary candidates had 5,248,882 which showed a difference of 16. For the first Respondent he garnered 5,574,761 as against 5,127, 641 by all his parliamentary candidates which showed a difference of 447,120. What accounted for this difference? It cannot be skirt and blouse phenomenon because the NDC are in the majority. The majority in Parliament secured 121,221 votes less than the minority. This is curious and undermines the one man one vote spelt out in the constitution.
When all the categories of violations, irregularities are combined for the 10,119 polling stations a total of 3,931 339 were deemed to be invalid and not 5 million votes as the Respondents would have the world believe and this includes votes in favour of first Petition.
When the results are annuled the first Respondent will be reduced by at least 2 million and that of the Petitioners will be reduced by 1, million votes. The Respondent will now have 41.79 per cent of valid votes cast and the first Petitioner will have 56.85 per cent of valid votes cast and the emphasis is on valid votes.
Each of the violations will by itself have a telling effect on the votes as declared. On over voting the claim by the Respondents that there is no evidence is a bit curious. Voting is a secret affair and the only time one can find cases of over vote is only after voting had taken place and the results counted.
CI 75 provides that every voter must go through biometric verification before voting and no discretion is given for people to avoid being verified and yet the second Respondent sought to explain away that there can be exceptions.
Regulation 30 (2) which underscores the point that it is mandatory that every voter undergoes biometric verification process.
On the absence of signatures, the Respondents have sought to downplay the effect of the absence of signatures but Article 49 of the constitution which is an entrenched clause in the law makes it clear that Presiding officers SHALL sign. Apart from this, all other powers have been delegated to the second Respondent to run the elections.
Words are not put into the constitution for nothing. Interpretations Act 1960 CA 4 makes it clear that the word Shall must be interpreted to mean a mandate which cannot downplayed.
The signing of the form apart from it being mandatory is also to validate and authenticate the results of the election. Failure to do so renders any submission of the unsigned pink sheet to the Returning officer unconstitutional, null and void. In the absence of the signature the pink sheet must not enter the declared results.
The signing of the form apart from it being mandatory is also to validate and authenticate the results of the election. Failure to do so renders any submission of the unsigned pink sheet to the Returning officer unconstitutional. Absence of the signature the pink sheet must not enter the declared results.
There are 22 unknown polling stations which are alien to the 26,000 official polling stations and yet the results of those 22 polling stations went into the declaration.
The judges have been asked to make a judicial decision and based on the preponderance of evidence they are left with no choice than to agree that the 2012 election was flawed with irregularities.
There are several examples of election petitions in the African continent and the judges have taken several decisions. In the Nigerian case for instance the judges annulled only 1 million votes but they could not over turn the entire results because the winner won with over 10 million votes.
The Supreme Court judges have duty to ensure that cheating in election is prevented.
Addison is belled out.
Atuguba adjourns hearing to August 14. The judges will ask clarifications from the parties and will return 15 days later with a verdict.