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22.08.2013 Feature Article

Election Petition: Written Address Of Counsel For Petitioners

Election Petition: Written Address Of Counsel For Petitioners
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Continued  Form Yesterday Issue
THE PETITION , however, is the result of nearly three weeks of painstaking investigations after the close of the polls. A comprehensive petition, resulting from those investigations cannot be evidence of bad faith.

In respect of the charge of selectivity, the evidence before this Honourable Court shows that there were over 1,000 pink sheets, where the 1st petitioner was the declared winner, and these form part of the Petition which the petitioners also seek to have annulled, thereby demonstrating their good faith. There is evidence before this Honourable Court that the petitioners did not receive pink sheets from the full complement of 26,002 polling stations. In the light of the above, the charge of bad faith is baseless and misconceived and ought to be ignored by this Honourable Court, especially, giving the widespread nature of the infractions that have been revealed by the evidence in the course of this trial.

(xi) Credibility of Chairman of 2nd Respondent
At the heart of the December 2012 presidential election is Dr. Afari-Gyan, who was both the Chairman of the 2nd respondent and the Returning Officer for the Presidential election. Even though a central figure in the December 2012 election and the person who eventually made the declaration, making the 1st respondent the duly elected president, his attitude towards the petition has been one of nonchalance.

Initially, he failed to attend court until adverse comments were made by the Court about his absence from Court. Even after he started attending Court and it became obvious that he would need to testify for the 2nd respondent, he failed to swear to any affidavit.

When he eventually mounted the witness box, he proved to be a person who lacked credibility and was determined to whitewash his and 2nd respondent's dismal performance in the 2012 December election. He was clearly not prepared to assist the court and at every opportunity sought to mislead the court. His testimony in court is replete with so many barefaced lies and half-truths. A few examples will suffice:

a. In a bid to discredit the petitioners' evidence on the figures entered in C3 on the pink sheets, Dr. Afari-Gyan testified that the number of FOs in the voters register was over 70,000. This is far in excess of the figure of 3,196 given by 2nd petitioner. It turns out that the figure given by Dr. Afari-Gyan included recent registrations as well as the addition of voters from Nankana Kassena East District. As it turned out, this inflated figure was unnecessary as 'FOs' also underwent biometric verification and therefore could not be used to explain the entries in C3.

b. He gave a spurious explanation for the existence of C3 in the pink sheet. His explanation that election officials forgot to bring Form 1C to the polling station and therefore could not capture the class of voters intended to be entered in question C3 was palpably false. In 2nd respondent's own training manual, tendered and marked 'Exhibit EC 2', the list of items required at the polling station did not include Form 1C so it had never been in the contemplation of 2nd respondent. A further excuse by Dr. Afari-Gyan that presiding officers were instructed to enter 'Zero' in the C3 column also proved to be another white lie as the C3 column was filled throughout the country.

c. Dr. Afari-Gyan feigned ignorance about several aspects of the printing of the pink sheets. First he said the shipment of the pink sheets was by sea, only to deny it a day later and to say that he did not know by what means the pink sheets came to the country. Furthermore and incredulously, he said he did not know who or where the pink sheets were printed.

d. Dr. Afari-Gyan denied any knowledge of serial numbers on pink sheets when first confronted but after intensive cross-examination, eventually admitted that the serial numbers were pre-embossed on the pink sheets at the instance of the 2 nd respondent.

e. He denied serial numbers on tamper-proof envelopes until promptings from the bench forced him to admit.

f. When confronted with an extract from the voters register for Anglican primary school polling station in the Mampong constituency, he initially gave the impression that the extract was a forgery by the petitioners only for Baffoe-Bonnie JSC to expose him for misleading the court. It turned out that the voters register he was relying on to discredit that of the petitioners' was edited and printed during the pendency of the Petition. He even suggested that the register was not in colour only to admit moments later that indeed a soft copy capable of being printed in colour was given to the NPP.

g. On 11th July, 2013, a list of pink sheets with serial numbers in triplicates and quadruplicates was tendered without objection through Dr. Afari-Gyan as exhibit 'X'. This list was provided to the 2nd respondent's lawyers on the 10th July, 2013 and, therefore, both Dr. Afari-Gyan and the 2nd respondent had ample time to cross check the list. However, on 16th July, 2013, Dr. Afari-Gyan sought to discredit the triplicates and quadruplicates by tendering other pink sheets alleged to be originals but having different serial numbers. These pink sheets were exposed as having been recently fabricated to meet the challenge posed by the triplicate and quadruplicate serial numbers. In the process, the mischief of triplicates sought to be cured by these fabricated pink sheets rather ended up creating new sets of triplicate serial numbers

h. Again, 8 pairs of pink sheets (making 16 polling stations) with the same polling station codes were tendered without objection through Dr. Afari-Gyan an exhibit 'Y' on 11th July, 2013. Dr. Afari-Gyan's response to the occurrence of these duplicate serial numbers was that the second pink sheet in each of the pairs represented the results of special voting. Again he said he was seeing the pink sheet for the first time even though these pink sheets have been served on the 2nd respondent since April 2013. When on Monday 15th July, 2013, Dr. Afari-Gyan was confronted with the correct information of where special voting took place in each of the constituencies

where duplicate polling station codes are located he denied having said that one of the pink sheets was for special voting.

The above are just a few of the instances where Dr. Afari-Gyan peddled untruths and when confronted with the truth, he was compelled to admit the truth. It is the respectful contention of the petitioners that the testimony of Dr. Afari-Gyan was largely unreliable and his aversion for the truth was put in proper perspective by his refusal to avoid the petitioners the results collation forms and the strenuous efforts made to frustrate the petitioners from unravelling the disputed results of 13 named constituencies. His double stand was without doubt when the report he and others made to the Nigerian government on election 2011, made recommendations intended to enhance transparency, fairness and integrity in the Nigerian polls but baulked at the very idea of making similar recommendations in Ghana.

It would appear that Dr. Afari-Gyan could not maintain the impartiality expected of him and became the alter ego of the 1st and 3rd respondents, which was very unfortunate.

M. STATISTICAL ANALYSIS OF THE IMPACT OF CONSTITUTIONAL AND STATUTORY VIOLATIONS, MALPRACTICES AND IRREGULARITIES

The petitioners have identified six key constitutional and statutory violations and irregularities evident on the face of the pink sheets underpinning the declaration of the presidential results by the 2nd respondent. These are:

I. over-voting
II. voting without biometric verification
III. absence of the signature of a presiding officer

IV. duplicate serial numbers i.e. occurrence of the same serial number on pink sheets for two different polling stations

V. duplicate polling station codes, i.e. occurrence of different results/pink sheets for polling stations with the same polling station codes

VI. unknown polling stations i.e. results recorded for polling stations which are not part of the list of 26,002 polling stations provided by the 2nd respondent for the election.

While there were many polling stations where the only violation or irregularity was one of the six listed above, in most cases more than one irregularity occurred at a polling station. For example, in a large number of polling stations, the record shows that over-voting occurred along with voting without biometric verification. There are also many instances of various combinations of over-voting, voting without biometric verification, absence of the presiding officer's signature, same serial numbers for different polling stations, and same polling station codes for different polling stations.

In fact, as the evidence at the trial showed, the 2012 presidential election was characterized by a multiplicity of constitutional and statutory violations. The following statistics present a clear picture of the inter-related nature of the violations and irregularities that took place during the election:

• while over voting occurred in 1,722 polling stations (out of the 10,119the petitioners are relying on), in 85% of these polling stations, over-voting took place along with no biometric verification, no signature of presiding officer, duplicate serial numbers, and duplicate polling station codes. It is only in 264 polling stations where the only irregularity was over-voting.

• while voting without biometric verification occurred in 2,020 polling stations, in 70% of these polling stations, voting without biometric verification took place along with over-voting, no signature of presiding officer, duplicate serial numbers, and duplicate polling station codes. It is only in 345 polling stations where the only irregularity was voting without biometric verification.

• while there was no signature of a presiding officer in 1,638 polling stations, in 82% of these polling stations, this occurred together with over-voting, voting without biometric verification, duplicate serial numbers, and duplicate polling station codes. It is only in 293 polling stations where the only irregularity was no signature of the presiding officer.

• while duplicate polling station codes were found in 17 polling stations, in 88% of these polling stations this occurred together with over-voting, no biometric verification, no signature of presiding officer, and duplicate serial numbers. It is only in 2 polling stations where the only irregularity was the use of duplicate polling station codes.

• duplicate serial numbers were used in 8,987 out of 10,119 polling stations the petitioners are relying on (i.e. 88% of the polling stations in contention). Over 75% of all cases of over-voting, voting without biometric verification and the absence of signature of presiding officer occurred with the use of duplicate serial numbers.

The use of duplicate, triplicate and quadruplicate serial numbers for pink sheets in the 2012 presidential election became the primary vehicle for the multiple violations and irregularities that occurred during the election.

It follows from the foregoing that in assessing whether the violations and irregularities had a material impact on the election outcome, they ought to be evaluated together as a whole or in combinations rather than individually.

In calculating the votes affected by these multiple violations and irregularities, care was taken to avoid double counting. We achieved this by making sure the various combinations of violations and irregularities are placed in categories that are clearly separated so that no polling station where a violation or irregularity occurred can belong to more than one category in the analysis of the aggregate impact of these violations on the declared results of the election. For this purpose, twenty four separate categories of violations and irregularities were identified and presented in the affidavit of the 2nd petitioner and set out in Figure 1 below:

Figure1: CATEGORISATION OF VIOLATIONS AND IRREGULARITIES

VIOLATION/IRREGULARITY
EXHIBIT
CATEGORY
NO OF
POLLING
STATIONS
Over-voting only MB-C 264
Over-voting , Voting without Biometric Verification MB-D 78

Over-voting, Voting without Biometric Verification, Duplicate Serial Number MB-E 327

Over-voting, Voting without Biometric Verification, Duplicate Serial Number, Duplicate Polling Station Code MB-U 2

Over-voting, Voting without Biometric Verification, Duplicate Serial Number, Absence of the Signature of Presiding officer MB-F 60

Over-voting, Voting without Biometric Verification, Absence of the Signature of Presiding officer MB-G 15

Over-voting , Duplicate Serial Number MB-H 754
Over-voting , Duplicate Serial Number, Duplicate Polling Station Code MB-X 6

Over-voting, Duplicate Serial Number, Absence of the Signature of Presiding officer

MB-J 161
Over-voting, Duplicate Serial Number, Absence of the Signature of Presiding officer, Duplicate Polling Station Code MB-AA 2

Over-voting, Absence of the Signature of Presiding officer MB-K 53

Voting without Biometric Verification only MB-L 345

Voting without Biometric Verification, Duplicate Serial Number MB-M 1071

Voting without Biometric Verification, Duplicate Serial Number, Absence of the Signature of Presiding officer MB-N 172

VIOLATION/IRREGULARITY
EXHIBIT
CATEGORY
NO OF
POLLING
STATIONS
Voting without Biometric Verification, Duplicate Serial Number, Absence of the Signature of Presiding officer, Duplicate Polling Station Code MB-Z 2

Voting without Biometric Verification, Absence of the Signature of Presiding officer

MB-O 57
Voting without Biometric Verification, Absence of the Signature of Presiding officer, Duplicate Polling Station Code MB-Y 2

Absence of the Signature of Presiding officer MB-S 293

Duplicate Serial Number only MB-P 5591
Duplicate Serial Number, Absence of the Signature of Presiding officer MB-Q 821

Duplicate Serial Number, Duplicate Polling Station Code MB-V 16

Duplicate Serial Number, Absence of the Signature of Presiding officer,

Duplicate Polling Station Code MB-W 2
Duplicate Polling Station Code only MB-T 3
Unknown Polling Station MB-AB 22
Total 10,119
In the process of filing, there were duplications or multiplications of some exhibits, but as far as the analysis of the impact of these exhibits on the aggregate votes affected is concerned, each exhibit is counted only once, no matter the duplications or multiplications, a fact that remains unchanged, notwithstanding the prolonged and persistent cross-examination of 2nd petitioner by counsel for the respondents on these issues.

The criteria for determining the total number of polling stations petitioners are relying on for purposes of this submission are that, they must:

I. be captured in the further and better particulars

II. be supported by the affidavit of the 2nd petitioner or appropriately recategorised with leave of the Court

III. have unique polling station codes (except for the duplicate polling station code category where separate results are recorded on two or three different pink sheets with the same polling station code)

IV. be captured in the KPMG Report or used by the respondents in their cross examination of the 2 nd petitioner.

V. not be part of the 704 polling stations the petitioners deleted with leave of the Court.

Using these criteria, we would be relying on 10,119 polling stations set out in Table 1 of Volume 2A. These are made up of the following unique counts:

• Registrar's set (KPMG report) 7999
• Registrar's remarks (KPMG report) 690
• President's set (KPMG report) 804
• President's remarks (KPMG report) 60
• Respondents cross-examination exhibits 566
'Respondents' Preferred Data Set' Argument
The respondents have argued, however, that polling stations/pink sheets should only be counted if:

I. they fall within the original categorization of the affidavit of the petitioners (i.e. all re-categorisation should be ignored even if the names, codes and number of polling stations specified in the further and better particulars remain the same)

II. they fall within the original range or original labelling for each category in the affidavit of the petitioners (i.e. all mislabelled pink sheets should be ignored even if the names, codes and number of polling stations specified in the further and better particulars remain the same).

III. the exhibit numbers are unique (i.e. pink sheets with duplicate exhibit numbers should be excluded)

Recategorisation involves moving a polling station from one category of violation or irregularity to another. For example, a polling station may have initially been placed in the over-voting only category (MB-C) but after further scrutiny may be moved to the category of over-voting and no signature of a presiding officer (MB-K). Recategorisation changes the category of violation from what was indicated in the affidavit of the 2nd Petitioner or the further and better particulars. Table 2 of Volume 2A contains a list of 150 polling stations/pink sheets that have been recategorised. The total number of votes involved for the polling stations that have been recategorised is 60,215. Figure 1A below, provides a summary of the number of polling stations affected by the re-categorisation. It should be noted that Exhibits MB-Y and MB-Y-1, were initially categorized as having the infractions of voting without biometric verification, absence of the signature of presiding officer and duplicate polling station code. They are however, characterised by voting without biometric verification and duplicate polling station code. Since these are the only two exhibits with these combined infractions, the petitioners have maintained them in the MB-Y category.

FIGURE 1A: NUMBER OF POLLING STATIONS AFFECTED BY RECATEGORISATION

VIOLATION/IRREGULARITY
NO OF POLLING STATIONS
CATEGORIES
OLD NEW
Over-voting , Voting without Biometric Verification 3 MB-D MB-L(2) MB-M(1)

Over-voting , Voting without Biometric Verification, Duplicate Serial Number

28 MB-E MB-D(1) MB-M(27)
Over-voting , Voting without Biometric Verification, Duplicate Serial Number, Absence of the Signature of Presiding officer 1 MB-F MB-N(1)

Over-voting, Voting without Biometric Verification, Absence of the Signature of Presiding officer 1 MB-G MB-D

Over-voting, Duplicate Serial Number 77 MB-H MB-C(2) MB-P(75)

VIOLATION/IRREGULARITY
NO OF POLLING STATIONS
CATEGORIES
OLD NEW
Over-voting, Duplicate Serial Number, Absence of the Signature of Presiding officer

12 MB-J MB-H(2) MB-P(2) MB-Q(8)
Over-voting , Duplicate Serial Number, Absence of the Signature of Presiding officer, Duplicate Polling Station Code 2 MB-AA MB-X(2)

Over-voting , Absence of the Signature of Presiding officer 1 MB-K MB-C(1)

Voting without Biometric Verification, Duplicate Serial Number

11 MB-M MB-P(9) MB-Q(2)
Voting without Biometric Verification, Duplicate Serial Number, Absence of the Signature of Presiding officer 2 MB-N MB-M(1) MB-Q(1)

Voting without Biometric Verification, Absence of the Signature of Presiding officer

1 MB-O MB-C(1)
Voting without Biometric Verification, Absence of the Signature of Presiding officer, Duplicate Polling Station Code 2 MB-Y MB-Y(2)

Duplicate Serial Number, Absence of the Signature of Presiding officer 6 MB-Q MB-P(6)

Duplicate Serial Number, Duplicate Polling Station Code 1 MB-V MB-T(1)

Duplicate Serial Number, Absence of the Signature of Presiding officer, Duplicate Polling Station Code 2 MB-W MB-V(2)

Total 150
On the issue of mislabelling, Table 3 of Volume 2A shows a list of 587 pink sheets that have been inadvertently mislabelled. This includes 264 pink sheets not labelled within the original range specified in the affidavit of the 2nd petitioner. It also includes pink sheets from 90 polling stations which are part of the 905 pink sheets which the 2 nd respondent conceded as per Exhibit P as having no signatures. Notwithstanding the mislabelling, the violation or irregularity remains as indicated in the 2nd petitioner's affidavit as well as provided in the further and better particulars. Table 4 of Volume 2A indicates the list of 287 pink sheets that have duplicate exhibit numbers.

The argument by the respondents to exclude evidence on the basis of mislabelling, duplicate exhibit numbers and re-categorisation is bizarre. To do so would essentially amount to an exclusion of evidence and militate against the interest of doing substantial justice. Nonetheless, we have proceeded to do an impact analysis of the data using the respondents' argument. Following the argument of the respondents, the polling stations in Tables 2, 3, and 4 of Volume 2A (a total of 1024 polling stations) would be excluded and therefore the dataset for analysis would be restricted to the 9,095 polling stations (referred to here as 'Respondents' Preferred Data Set' listed in Table 1A of Volume 2A) out of the 10,119 polling stations listed in Table 1 of Volume 2A.

N. RESULTS OF THE STATISTICAL ANALYSIS
Should the Court decide to annul votes resulting from two or more violations, malpractices and irregularities, the sum of total votes obtained by each candidate for the affected polling stations would have to be deducted from each candidate's overall total, while making sure each polling station is counted only once. Various combinations of violations and irregularities occurred in the 2012 presidential election and we will proceed to show the impact of the key infractions.

1. Combination of all the Categories of Violations, Malpractices and Irregularities

To be continued

Ghanaian Chronicle
Ghanaian Chronicle, © 2013

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