Were The NDC And Mahama Shying Away From The Numbers That Matter?

The Counsel for John Mahama has just brought to an end his long drawn out cross examination of the witness in chief for the Petitioners. It is very difficult to discern what the long drawn out and often boring cross-examination was meant to achieve. We have Petitioners who have presented a detailed analysis of the pink sheets in contention.

Instead of demonstrably chipping into the numbers at stake, the main strategy of Tony Lithur's cross-examination was to sow doubt about the scale of irregularities and the credibility of the analysis done by the Petitioners. His main difficulty, though, was that the NDC and Mahama, by their joint affidavit, failed to show how much impact the doubts they raised have on the Petitioners case in terms of number of votes and its significance.

Throughout the cross-examination, whilst Dr Bawumia was talking number of votes and percentages, Tony Lithur was talking number of pink sheets without saying how many votes were involved. It is quite clear that either the NDC did no analysis or they decided to use the cross examination to delay the process.

It is baffling that the Court allowed it to go on and on. One expected that the Court would have ordered all responding parties to categorise the pink sheets in terms of the issues they have with them, present samples of each category for cross-examination and to carry out their own analysis to show the effect of these on the Petitioners' claims.

Reading the affidavit deposed to by Asiedu Nketia, it was very much obvious that Tony Lithur's cross-examination was going to lead nowhere. The affidavit claims they only received 8,621 exhibits of pink sheets in hard copy. Suggestions by the witness that they cross check from the CD-ROM were met with resistance. It should, however, be realised that with such a large volume of exhibits, it is not uncommon to have packaging problems.

What redeems the situation is the foresight of the Petitioners to also have the same attachments on CD-ROMs. According to the NDC and John Mahama, 115 of the 8,621 pink sheets they claim to have received contained no data to support the Petitioners' allegations. They claim a further 373 are duplications and at least one is related to a Parliamentary result. If their version of numbers is to be believed, then there are still 8,132 pink sheets that can be in contention – still a very significant number indeed.

They have then sought to explain the problems on the face of the 8,132 pink sheets as due to 'patent clerical' errors. The question to ask though is whether a President can be elected on the basis of 'clerical' errors? Whilst citing these clerical errors, they failed to even attach a single exhibit of how this error might have arisen.

Of course this would have been an exercise in futility since each section of the pink sheet is internally consistent and that once you accept an error in one entry, it even introduces errors in other areas that cannot be readily explained. The whole case actually hinges on how the EC will explain these 'errors', as one of the Judges rightly observed.

The joint NDC-Mahama affidavit also places much importance on observer reports and they have attached them as exhibits. The problem with this is that Observers do not run elections; the EC does. This is similar to the claim that the NPP did have polling agents who signed onto the declarations. But is the presence of polling agents as important as it is being made?

Recently, a member of the EC was on record as saying that polling agents are not necessarily required during elections and that they have allowed the practice as a favour to the political parties. This view is supported by the Constitution in Article 49 (2), which stipulates that counting of ballots should be done by the Presiding Officer in the presence of polling agents 'as are present'.

There are two scenarios to examine which does not make the signing of polling station results by agents as an essential pre-condition for declaring results. First there are polling stations where agents refused to sign citing various reasons, but that did not prevent results from being declared and no one has challenged them.

Secondly, not all candidates had agents in all the 26,002 polling stations across the country. Can they call, based on the NDC's reasoning (and the line of cross-examination started by Qurshie-Idun for the EC) for invalidation of the results in these instances? No they cannot; thus indicating that it is only the Presiding Officer's signature that must be present at all times to validate results.

There is also an impression being created that somehow the presence of a Presiding Officer's signature confirms absolutely that an election was free and fair. I do not think that that alone is sufficient.

The signatures are there only to record what took place at the polling station. However, if scrutiny of the figures on the form, which have in-built checks, shows that something was amiss, it must be investigated by the Presiding Officer.

If the investigation yields no tangible explanation, the officer must report an annulled result. What happens if the officer failed to do these investigations and no agent complained at the time? Is it the view of the Respondents that the opportunity had then been lost?

The distinct parts of the pink sheet are not meant to be extraneous since processing of data is expensive. They are provided to serve some purposes and these purposes are what the Petitioners have interrogated to point out irregularities.

In responding to the claim of over voting the joint NDC-Mahama affidavit defines it in very narrow terms, describing it as occurring when votes cast exceed the number of voters on the Register. This is contrary to the Petitioners' definition that over voting can occur in two forms: in the form the NDC-Mahama affidavit has described and also when the number of votes recorded exceeds the number of ballots issued.

On this, I am with the Petitioners, otherwise the illegal act of bloating the number of registrants and subsequently stuffing the ballot box to suit would never be detected. It should be noted that the Petitioners are alleging bloating of nearly one million voters.

On voting without biometric verification, the NDC-Mahama affidavit claims that this did not happen anywhere, citing reports received from their agents to back this claim. However, they are entertaining the possibility that it could have happened, and if it did, it was not unlawful. It remains to be seen what the Court will say about this vis-à-vis the provisions of CI 75 and the pronouncements by Dr Afari Gyan prior to the elections.

The fact of the matter is there is a column on the pink sheet that asks the number who voted without verification by the biometric verification device to be recorded. On a number of the pink sheets in contention such numbers were recorded.

There is nowhere else where these numbers could be placed on the form that would even begin to make some sense that this was an administrative error. But why are we even engaging in guesswork on this? The EC is mandated by law to keep all the biometric verification devices intact for the data they contained to be retrieved, should there be a dispute.

So far the EC has refused to volunteer any data (i.e. whether pink sheet originals or data in biometric verification devices) that it alone holds. It never attached them as exhibits in its response and it is not likely that they will be filed since the time for evidence filing is past (unless the Court is minded to tolerate ambush tactics by the EC). If this does not tell a certain story, then nothing else in the world does.

With the wealth of evidence presented by the Petitioners and even on the face of the residual 8,132 pink sheets that the NDC-Mahama affidavit has not advanced any explanatory reasons other than 'patent clerical' errors, it is not surprising that their legal team resisted going into the number of votes involved.

Their fear of not going into the number of votes was exhibited on Monday, 22/04/13 when they called for auditing of number of pink sheets attached as exhibits by the Petitioners. They quickly had to recoil when it was suggested, first by one of the Judges, and later by the lead Counsel for the Petitioners, for the number of votes at stake to also be determined at the same time.

The NDC-Mahama legal team knows very well that the numbers are stacked against them. Mahama was declared as having beaten Akufo Addo by about 325,000 votes and the number of votes the Petitioners want annulled is about 4.3 million.

Try as they might in beating the numbers down, if any of the categories of violations and irregularities is upheld, it would be difficult for them to show that John Mahama won a 'one touch' victory. That is why Tony Lithur throughout concentrated on only raising doubts and discrediting the Bawumia-led analysis. They are hoping that the analysis will be so discredited that the Supreme Court will have no option but to throw out the petition. It is very doubtful if he succeeded in doing that.

The Supreme Court Judges owe it as their sacred duty to Ghana to make findings on the two questions it sets itself at the beginning of the hearings: were there constitutional and statutory violations as well as malpractices and irregularities; and if there were, is the scale such that it could impact the election results as declared. In answering these questions, it should not matter whether evidence is found on 8,132 or 11, 138 pink sheets or even one pink sheet!