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20.08.2013 Feature Article

Election Petition: Written Address Of Counsel For Petitioners

Election Petition: Written Address Of Counsel For Petitioners
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A. My lord it was very clear to me. It is 73 ballots issued and it is 77 in the ballot box, it is a clear case of over voting.'

The 1st respondent's counsel continued with his proposition of strange electoral theories by wildly alleging that to sustain a claim of over-voting, spoilt ballots in an election (which do not go into the ballot box) ought to be added to issued ballots. This theory again turned out to be patently false.

'Q. Exhibit MBC 287 and the name is RC Primary School Aveyime and the polling station code is H080801. Would you say there is over voting on this exhibit?

A. On the face of it there is, I can add the numbers to be sure. Yes my lords there is over voting on this form C1 is 706 that is the ballot issued to voters and the total number of votes in the ballot box is 713.

Q. I am suggesting to you that in fact there is no over voting because you did not add spoilt ballot to the issued ballot?

A. Spoilt ballots to issued ballots.
Q. Absolutely they are part of the issued ballots?

A. Actually if a ballot is spoilt it is re-issued, so the total number of ballots that are issued it includes the spoilt ballots. You re-issue to the voter that has been spoilt so I think you have to understand this properly.'

Further on, in cross-examination on the same day, the absurdity of counsel for 1 st respondent's proposition became quite clear to the Court. At page 44, the following is recorded of interactions between counsel for 1st respondent and the President of the Panel.

'ATUGUBA: Tony Lithur we are trying to get your electoral proposition quiet clear, your electoral thesis is that spoilt ballots are part of issued ballots.

LITHUR: Yes my lord.
ATUGUBA: And should be added to the figure in C1.
LITHUR: No, should be added to total votes in ballot box. Sorry my lords.

ATUGUBA: That is very conning, It just cannot be.'

Having had his theories on over-voting thrown out of the window, counsel for 1st respondent was not deterred. On the 24th day of April, 2013, in further cross-examination, counsel suggested to Dr. Mahamudu Bawumia that the reason why there seemed to be over-voting in some polling stations was due to administrative errors and the failure to add rejected ballots.

'Q: I am suggesting to you that again clearly that was an administrative error.

A: My lords that cannot be the case.
Q: Doc, is that the only reason why there is a difference between votes in the ballot and the C1 is because rejected votes were not added at all in all those cases.

A: No my lords, the C1 is to be filled before you have a filling of the rejected ballots and the total votes so sequentially, it will be wrong. The total votes in the ballot box exceed the ballots issued to voters. You and I were not there. The evidence is on the face of the pink sheet. You cannot read what the mindsets of the presiding officers were.'

Again, the absurdity of the proposition of counsel for the 1st respondent was apparent. As the principal witness for the petitioners, Dr. Bawumia, pointed out, no one can discern the intention of the makers of the instrument, i.e., the pink sheets in issue. The document must be taken as it is. It is submitted that this position of Dr. Bawumia is consistent with time-honoured rules of interpretation and construing a document in the face of unsubstantiated oral evidence to the contrary. As stated above, the contents of a document are binding on the party who, being of full capacity, appends his signature to it. That party cannot resile from it or choose an alternative course. The 2nd respondent is deemed to be bound by the contents of the pink sheets put in evidence and the genuineness of which has not been vitiated in anyway.

(iv) Voting without Biometric Verification
Again, the evidence on the face of the pink sheets as adduced before this Honourable Court buttresses the petitioners' case that voting was permitted by the 2nd respondent in certain places without biometric verification. In evaluating the case of the petitioners, the Court's attention must respectfully be adverted to the role played by the 1st respondent in the encouragement of this unhealthy trend in the history of the nation's electoral practice. The petitioners contended in their pleadings that the 1st respondent in fact encouraged people to go out and vote without biometric verification after the first day of voting, i.e., 7th December, 2012. In court, witness for 1st and 3rd respondents, Johnson Asiedu Nketiah, admitted this in his evidence in-chief on 23rd May, 2013 as captured in the record of proceedings for that day at pages 32-34.

Further, in the cross-examination of Dr. Mahamudu Bawumia, counsel for 1st respondent sought to defend this statement by the 1st respondent. This is what is recorded at page 41 of the record of proceedings for the 24th day of April, 2013.

'Q. I believe the hullaballoo started when it was discovered that some of the verification devices were not functioning properly?

A. I think the hullaballoo started when the machine was not functioning properly and 1 st Respondent asked that contrary to the law people should be allowed to vote without biometric verification.

Q. In fact I am suggesting to you that 1st Respondent answer is the correct statement of the law?

A. And then I have not seen that law.'
So, respectfully, it cannot be disputed that the 1st respondent in fact supported actively voting without biometric verification. This conduct of the 1st respondent undoubtedly is antithetical to the development of democracy and to his responsibilities as the Chief Executive of the State, who swore a solemn oath under article 57(3) to uphold the Constitution and laws of the Republic. Even though a constitutional body had enacted regulations to govern the conduct of the elections, the 1st respondent found it right to interfere by advocating a behaviour by citizens which ultimately undermined the integrity of the electoral process and the laws of the nation. It is submitted that, having done this, the 1 st respondent cannot turn round and reap the fruits of that unlawful act.

The seriousness of the action of 1st respondent in urging people to go and vote without biometric verification is underscored by the fact that 1st respondent in so doing, was fully aware of the understanding that operated among all relevant parties that voting in the December 2012 elections would only be permissible after the voter had gone through biometric verification. This fact was classically admitted to by witness for both 1st and 2 nd respondent, Johnson Aseidu Nketiah on his last day under cross-examination by counsel for petitioners, when it emerged that in an interview the witness had on Citi FM, an Accra-based radio station, the witness had indicated that any polling station where voting without prior biometric verification was recorded, would have the results cancelled. The tape was played to the hearing of the Court. Excerpts of the tape go as follows.

Interviewer: Now, General, we will to that issue. But, General, are you saying that you did not hear and that your party agent did not tell you that there were areas in this country where the verification machines were not used apparently because they were not working?

Asiedu-Nketiah: You know something, we agreed at Electoral Commission at IPAC level that there is no way any voting could take place without verification. That was a basic principle….

Interviewer: So the claim that, you know, it is possible and in fact, it happened because we spoke on this platform to polling station officials of the Electoral Commission who conceded that indeed they had made arrangements to allow people vote without verification?

Asideu-Nketiah: I think those people must be in jail by now if anything of that nature happened. They should be in jail by now because I'll be surprised because we trained our agents and alerted them. And, remember, the last 2 weeks of the elections and the clarion call for all political parties and the Electoral Commission and all that advert was that: NO VERIFICATION, NO VOTE. And, it's on the basis of this that we trained… and I know the electoral laws provide that where er, the, the, the, irregularities are detected at particular polling stations the sanctions could be that, the result of those polling stations will be cancelled and taken out of the total national tally.


On account of this, respectfully, it is hugely surprisingly that the 1st respondent would rather advocate an unlawful conduct of Ghanaians. Every party in the conduct of the election knew about the rules set for the holding of same. In the face of this, he however elected to organise a disobedience of the same rules. It is our submission that the 1st respondent's conduct was calculated at subverting the Constitution and winning the December 2012 elections at all cost.

The Chairman of the 2nd respondent also sought to make an ex post facto rationalization for the figures appearing in question C3 of the pink sheet when he stated that that question was not supposed to be filled because it was not intended to be there. This allegation was linked to the claim that the pink sheets for the December 2012 elections were designed and printed before the decision to compel voters to be verified biometrically before voting was taken. Hence the appearance on the form of question C3 which was as follows: 'What is the number of ballots issued to voters verified by the use of Form 1C (but not by use of BVD)'.

The falsity of this assertion was exposed during the cross-examination of 2nd respondent's Chairman on 6th June, 2013, when it came to light that C.I. 75 (mandating the use of biometric verification) came into force long before the Chairman of 2nd respondent on 20 th October, 2012, gave the order for the pink sheets to be printed. At pages 27-28 of the record of proceedings, this is stated.

'Q: Now so do you have any idea when CI 75 was gazetted?

A: My lords, I will not remember the exact date.
Q: It was gazette on 14th August, 2012.
A: Thank you my lords.
Q: So the law with regard to non-verification non-voting was gazetted 14th August, 2012.

A: My lords if that is the date it bears, yes.
Q: This is a copy, what do you have in your hand?
A: My lords, I have in my hand Republic of Ghana Public Elections Regulations 2012, C.I 75.

Q: Now you can tell us the date of gazette.
A: My lords, date of gazette notification, 14th August, 2012.

Q: And when did come into force?
A: Entry into force 28th September, 2012.
Q: Now these regulations you have in your hand were passed at the instance of the Electoral Commission, am I right?

A: Yes, my lords.
Q: So at the time that you caused the pink sheets to be printed, the law was that everybody's voting should be verified?

A: Yes my lords.
Q: Should be verified biometrically?
A: Yes my lords.'
The weakness of the effort to explain the allegation that Column C3 should not have been on the pink sheet was laid bare on 6th June, 2013. Dr. Afair-Gyan claimed that, in the course of the training of the presiding officers, his outfit had instructed them not to fill in question C3. It however became clear that question C3, in the form in which it was, was not on the forms used to train the presiding officers. At page 17 of the record of proceedings, the following is recorded of the cross-examination by counsel for petitioners:

'Q: So you could not have trained your officials on C3 as it appears on the pink sheet?

A: My lords, we didn't intend to train them on C3 because C3 was not supposed to be there.

Q: So you proceeded to create a portion on the pink sheet for an unascertained number to C3 is that not what you are telling this court?

A: I have said that my lord that yes but I have to explain. I have said that as an election administrator it is my responsibility to ensure that not a single eligible person is disenfranchised.'

Further cross-examination on this point ensued at pages 22-23 of the record of proceedings for 6th June 2013 as follows:

“Q: This is a sample of the pink sheet, am I right?

A: You are correct.
Q: Now if you look at C3 at page 51, it differs from C3 on the actual pink sheet.

A: In fact on mine, on the left side at least there is no C3 at all.

Q: Yes, that precisely my point that the C3 as it appears on the pink sheet is not there at all. Do you agree with me?

A: Yes my lords, it is not here at all.'
What even made the claim of Dr. Afari-Gyan more incredulous was the fact that question C3 was filled all over the country by election officials. Dr. Afari-Gyan at page 24 of proceedings for 6th June, 2013 also conceded that those figures in C3 were generated from the elections.

When it became clear that his explanations about the entries in C3 were simply unbelievable, he quickly stated that all he knew was that the number supposed to be zero.

This is what is recorded of the further cross-examination on this point by counsel for petitioners, as captured at pages 23-26 of proceedings for 6th June, 2013:

'Q: Now Dr. Afari Gyan you are aware that in the December, 2012 elections entries were made in C3 all over the country.

A: Yes my lords.
Q: I am suggesting to you that in fact no such instruction was given to any official to enter zero.

A: My lords, I disagree, instruction was clearly given. Those entries I believe were made in error.

Q: Now the figures that were entered there were obviously generated from the election, am I right?

A: My lords, I would believe so.
Q: You believe so, or you don't know?
A: My lords, I believe that they are figures that are intended to relate to the election.

Q: And do you have any idea where those figures should have been placed other than in the C3 column?

A: Well, in the situations that I have analysed, they are almost invariably the same figure were in C1 and in C3 and then it was entered at the total number of ballots found at the box and this will give rise to a very curious situation.

Q: Now, Dr. Afari Gyan I don't think you answered my question. My question was that the numbers that had been put in C3 you agree had been generated from the elections. Where do you think it should be put instead of C3?

A: My lords since that number was a repetition of C1 and C3 my indication is that it should not have been there at all.

Q; So where it is not equal to C1 where would it have been?

A: My lords, he is asking me something in the abstracts and is difficult for me to know where it should have been.

Q: So your answer is that it is difficult for you to tell where it should be.

A: My lords, in the instant that I am saying that there should have been nothing in that column so if something is entered…

ATUGUBA: Yes so there is nothing abstract about it. It is the sheet and the way it is operated that he is trying to ascertain so…

WITNESS: Yes my lords, my claim is that there should have been nothing in that column.'

It would also be recalled that Dr. Afari-Gyan earlier on in answer to a question by Dotse JSC, as to how the alleged information to presiding officers not to enter question C3 was done (whether written or by what means), stated that he could not tell.

It is our respectful submission that, when due account is taken of all the circumstances surrounding the conduct of the elections and the inconsistent and implausible answers given by Dr. Afari-Gyan, petitioners have on the balance of probabilities proved that voting without biometric verification occurred in various parts of the country, contrary to the electoral laws of Ghana. It is the further contention of the petitioners that, indeed, question C3 was deliberately put on the pink sheet by the 2nd respondent because in the December 2012 elections the 2nd respondent's officers were given discretion to dispense with biometric verification contrary to the law. This is borne out by Exhibit G (The Biometric Verification Device (BVD) User Manual, 2012 Presidential and Parliamentary Elections), pages 16 and 20, tendered on 13th June 2013 by counsel for the petitioners through the Chairman of the 2nd respondent, Dr. Afari-Gyan. Thus, it is the aggregate of information entered in C3 on the pink sheet that gives the total number of persons who voted without biometric verification, contrary to the law.

(v) Absence of Signatures
The Petitioners have fully set out arguments above to show why the constitutional provision in article 49(3) for the signature of presiding officer on a pink sheet is crucial, because it is a mandatory constitutional requirement, not an administrative directory. In order to illustrate the validity of petitioners' claim as to the absence of signatures by presiding officers, counsel for petitioners in his cross-examination of the 2nd respondent's Chairman, tendered through the witness various lists evidencing the petitioners' claims. On those lists were various exhibit numbers of unsigned pink sheets. These were checked by the witness, Dr. Afari-Gyan and tendered at the trial. We hereby list these exhibits together with the days on which they were tendered as set out hereunder.

4th July, 2013 proceedings
179 unsigned pink sheets tendered as Exhibit MBH – at pages 8 & 9.

182 unsigned pink sheets in MBQ series tendered as Exhibit J – at page 36

55 unsigned pink sheets in MBJ series tendered as Exhibit K – at page 38

114 unsigned pink sheets in MBF series tendered as Exhibit L – at page 47

12 unsigned pink sheets in MBQ series tendered as Exhibit M – at page 48

11 unsigned pink sheets in MBO series tendered as Exhibit N – at page 49

Total number of pink sheets in issue 553
10th July, 2013 proceedings
28 unsigned pink sheets in MBF series tendered as Exhibit T – at page 4

3 unsigned pink sheets in MBG series tendered as Exhibit T1 – at page 4

59 unsigned pink sheets in MBJ series tendered as Exhibit T2 – at page 5

33 unsigned pink sheets in MBK series tendered as Exhibit T3 – at page 5

66 unsigned pink sheets in MBN series tendered as Exhibit T4 – at page 5

12 unsigned pink sheets in MBO series tendered as Exhibit T5 – at page 5.

88 unsigned pink sheets in MBQ Lot 1 series tendered as Exhibit T6 – at page 5

26 unsigned pink sheets in MBQ Lot 2Aseries tendered as Exhibit T7 – at page 5

9 unsigned pink sheets in MBQ Lot 3 series tendered as Exhibit T8 – at page 5

45 unsigned pink sheets in MBS series tendered as Exhibit T9 – at page 45

1 unsigned pink sheet in MBV series tendered as Exhibit T10 – at page 45.

1 unsigned pin sheet in MBZ series tendered as Exhibit T 11 – at page 45.

Total number of pink sheets in issue 371
A total of 924 pink sheets were presented to Dr. Afari-Gyan on 4th and 10th of July, 2013, and he admitted the absence of a presiding officer's signature on each of them. He also conceded that 905 pink sheets were also unsigned. Out of the 905 pink sheets, 191 formed part of the 924 pink sheets presented to Dr. Afari-Gyan. In total, therefore, the petitioners are relying on 1,638 unsigned pink sheets involving 65, 9814 votes.

We would also respectfully urge this Honourable Court to advert its mind to a decision of this Court on the significance of the signing of an official document where signature is necessary i.e. Akowuah & Anor v. Amoo & Anor. (supra), wherein the Court, speaking through Anin-Yeboah JSC, held, inter alia, as follows: '… And an official court process or document like a bail bond or justification of sureties should be free from irregularities to leave no one in doubt that the surety has executed the bond. Cancellations and lack of signature or thumbprint or mark apparent on the face of the document would create serious doubts as to its authenticity…'

It is our respectful contention that if this Honourable Court in Akowuah & Anor v. Amoo & Anor. (supra), considered an official court process or a bail bond so serious that it must 'be from irregularities to leave no one in doubt' as to its authenticity a fortiorari the declaration of results in a presidential election on which the future, hopes and aspirations of the nation hang must be free from all irregularities.

The importance of the presiding officer's signature is brought to the fore when account is taken of the fact that to date, there has not been any evidence from the respondents to show that the results they allegedly announced in public were exactly as were put on the pink sheets, in the absence of the presiding officer's signature.

This point is very significant in the light of the 1st respondent's claim that the failure of the presiding officers to sign the pink sheets could 'not be a basis for annulling lawfully cast votes.' The burden on the petitioners was merely to show that the allegation of a failure to sign the pink sheets in question was made out. The petitioners having established the failure of the presiding officers working on behalf of the 2nd respondent to sign the pink sheets, the burden then shifted onto the respondents who seek to deny the significance of the requirement for signature, to show the inconsequential nature thereof. The respondents failed to adduce a shred of evidence in support of the contention that the outcome of the voting at the polling stations affected by 'no presiding officer's signature' was just as was recorded on the pink sheets, lack of signatures notwithstanding.

The 2nd respondent also alleged that of the 2009 pink sheets originally claimed by petitioners not to have been signed by the presiding officers, 1099 were signed by the presiding officers either at the polling stations or at the collation centres. The 2nd respondent also claimed that 1,989 pink sheets were signed by the polling agents and, therefore, the petitioners' complaint was without merit.

This Court is respectfully urged to consider the fact that the 2nd respondent failed to adduce any evidence whatsoever of the exact number of pink sheets that were signed at the collation centres or at the polling stations by the presiding officers, other than its mere say so, even though it is the official custodian of all election-related materials. In any event, under the applicable constitutional and statutory law, the presiding officer is required to sign the pink sheet in the presence of the polling agents at the polling station before announcing the results. The 2nd respondent offered no evidence that this was done. Furthermore, the signing of pink sheets at the collation by presiding officers, even if it were true, constitutes a breach of a mandatory constitutional provision and is therefore unconstitutional, void and of no effect.

The signing of the pink sheets by the polling agents does not in any way validate the pink sheets, and cannot be a substitute for the mandatory constitutional requirement that the pink sheet must be signed by the presiding officer. Regulation 17 of C.I. 75 emphatically settles this point when in sub-regulation 2 it makes a presiding officer fully responsible for the control of the polling station. It is the respectful contention of the petitioners that, having regard to the foregoing issues, their evidence stands uncontradicted, and this Honourable Court is respectfully invited so to hold.

The 2nd respondent's Chairman on 13th June, 2013 admitted the limited role of polling agents in cross-examination by counsel for petitioners (at page 21 of record of proceedings).

Q. You are aware that the functions of a polling agent are strictly circumscribed?

A. My lords I would say so.
Q. They are not election officials?
A. In the strict sense of the term, no.
Q. I would like you to read Rule 19(4) of C1 75?
Q. So I am suggesting to you that it is not the business of the polling agent to supervise the work of the election officials but to observe the conduct of the poll?

A. My lords I agree that the agent is not supposed to supervise but he plays an active role at the station.

At pages 25-26 of the record of proceedings for the same day, Dr. Afari-Gyan made the point about the very limited role of polling agents abundantly clear.

Q. A polling agent is not involved in the actual administration of the election?

A. My lords you are correct.
Q. He does not count the votes after the election?

A. My lords no.
Q. He counts?
A. He does not.
Q. He also does not inspect the ID cards of persons who are in the cue to vote?

A. My lords no.
Q. He cannot confront anybody directly at the polling station?

A. My lords no and for that matter nobody can confront anybody directly at the polling station.

Q. if he has any objection to anything happening he has to inform the presiding officer?

A. My lord yes.
Q. So the presiding officer is in-charge of the polling station?

A. My lords absolutely.
Q. He has the final say on any matter?
A. So far as it is connected with the election yes.

Q. In fact the presiding officer can ask the polling agent to leave the polling station.

A. My lords yes if the polling agent misconducts himself or herself.

Q. And who determines who misconducts himself, it is the presiding officer?

A. Yes it is the presiding officer but misconduct they are trained to know how mis-conducting oneself in a polling station is.

(vi) Duplicate polling station codes
From the evidence adduced by all witnesses who gave viva voce evidence, there can no longer be any dispute that a polling station code is meant to be unique to a particular polling station. However, the evidence shows that there were multiple instances of duplicate, i.e. same, polling station codes used. Indeed, in their attempt to rebut the significance of the malpractice of duplicate serial numbers being used for different polling stations, both Mr. Asiedu Nketia and Dr. Afari-Gyan, in their respective testimonies, asserted that what identifies the polling station as unique is the polling station code. This Honourable Court is respectfully referred to page 35 of the record of proceedings of 23rd May 2013 where Asiedu Nketia, representing the 1st and 3rd respondents, admits that the polling station code is what is important in identifying a polling station. See also the admission of Dr. Afari-Gyan, at page 12 of the record of proceedings of 30th May 2013, where he says thus: 'the code is unique; first in the sense that no two polling stations ever have the same code number or code. It is also unique in the sense that the code is consciously crafted to contain information that directs you to the location of the polling station.

And the system we use is alpha-numeric, that is to say, it combines the letters of the alphabets and numbers, and the system is a letter followed by 6 digits and it may end or may not end with another letter…'

The petitioners, however, led irrefutable evidence of pink sheets having the same polling station codes, but with different results. On 8th July 2013, at pages 55-59 of the record of proceedings, during cross-examination, Dr. Afari-Gyan was confronted by counsel for petitioners with five (5) pink sheet exhibits and a list of same number of polling stations.

Three have the same polling station name, Juaso Court Hall, same code F262901, but different results, marked as Exhibits MBY, MBY- 000001 and MBT. The remaining two polling stations have the same name, Kalpohin SHS 'A', same code H194903A, but with different results, marked respectively as Exhibits MBV000004 and MBV000005. The list was tendered in evidence through Dr. Afari Gyan as Exhibit 'S' at page 59 of the record of proceedings. The witness did not, and was not able to proffer any reasons for these triplicate and duplicate polling station codes.

In addition, during the cross-examination of Dr. Afari-Gyan on 10th July 2013, at pages 17-22 of the record of proceedings, counsel for petitioners got him to admit that each pair of the 18 pink sheets identified by their polling station names and exhibit numbers bore the same codes. These 9 pairs of pink sheets, with the same polling station codes, were part of the list of 905 polling stations, tendered in evidence on 8th July 2013 as Exhibit 'P' (where the presiding officers did not sign the pink sheets).

On the same day, the witness was again confronted with three pink sheets, Exhibits MBW 000003 (Finger of God Church, Kubekro) and MBW 000002 (Finger of God Church, Kubekro), both bearing the same polling station code, namely C140802B, but different results. They had different presiding officers, but only one of them. Exhibit MBW00002, bore the signature of the presiding officer. This can be found at pages 23 to 25, 28 and 30 of the record of proceedings.

When asked at page 29 of the record what could be the reason for one polling station having two pink sheets, witness said there is no reason. Yet that was the evidence manifest on the face of the two pink sheets:

Q: And what is the reason that one polling station will have two pink sheets?

A: My lord they should not,
Anin-Yebaoh: He wants the reason why one polling station should have two pink sheets.

Witness: I am saying that no polling station should have two pink sheets.

Again, on 11th July, 2013, at pages 21-30 of the record of proceedings, counsel for petitioners confronted Dr. Afari Gyan with a list of 16 polling stations together with corresponding pink sheets, pairs of which had the same polling station codes. Dr. Afari-Gyan admitted that the pairs, indeed, had the same polling station codes, though they bore different results. To make matters

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