By
Felix Engsalige Nyaaba
Accra,
Wednesday June 5, 2013
Dr. Kwadwo Afari-Gyan, the returning officer of the
2012 presidential election and key witness for the Electoral Commission (EC) in
the ongoing election petition case at the Supreme Court, yesterday ended his
evidence-in-chief and invited the court to dismiss the petition brought by
three leading members of the New Patriotic Party (NPP) for in his view the
petition lack s substantial evidence.
According to the EC boss, the petitioners have
failed to exhibit any substantial evidence in the case and only relied on the
transposition errors on the pink sheets to make their case.
In concluding his evidence –in-chief after three day
explosive evidence, Dr. Afari-Gyan, said the petitioners have failed to recognize
the role of party agents in the election and therefore have to bear the
responsibility of their agents.
He said apart from the local and intentional
election observers which have no any role in any election , polling agents as
so important in every election, adding the role is very significant that they
have the constitutional backing to raise objection at the polling station when
they are convince of the results.
Asked by the counsel for the EC, Mr. James
Quashie-Idun, of his view on the allegation by the petitioners and the request
to the court to annul over 4million votes, the EC boss stated that the
allegations have no bases since there was no any form of protest at the polling
station as well as the collation centers.
“My Lords, I want the reliefs sought by the
petitioners not be granted, because on the view of the Commission, there was no
any firm bases for the reliefs to be granted, we supplied machine s for
verification, the register was also given to all parties, so all these
allegation of voters not verified and over voting are baseless, no any form of
evidence,” he told the court.
Dr. Afari-Gyan has been testifying on oath as the
key witness to the EC, the second respondent and the referee in the 2012
presidential election.
He told the court that the allegations made by the petitioners were
not as to what the EC view the errors, and that before one make allegation of
over voting, voting without biometric verification devices, non signature of
presiding officers and unidentified polling station, the entire lection process
and procedure must be closely analyses .
Irregularities
When Dr. Afari-Gyan was asked to give his own view
and understanding of irregularities in relation to the petitioners’ allegation,
he told the court that any thing in the elections which are not adhered to laws
and regulations constituted irregularities.
According to him, the laws of election are procedures
and when such are not adequately followed, it could lead to irregular
activities, but quick to added that there was no any record of irregularities
free election any where in the world since the lection process involves
human mistake are bound to occur.
He said irregularities could be occur when there is
evidence of an attempt of rigging the election by unlawful means which
includes people attempting to vote when
their names are not in the register and snatching of ballot boxes .
He also noted that, errors or mistakes must be distinguish from wrong voting, adding that mistakes can be
corrected but wrong votes cannot be
corrected, once the person voted wrongly the votes on the ballot paper cannot
be corrected.
Observers
Role
Touching on the issue of election observers, the EC
Chairman said since his involvement in election process in Ghana and other
parts of the world, the observers are always both local and foreign observers
and that they are not to participate physically in any election than to stay
around and monitor the activities of the election.
He said the observers work are to find out whether the election process
have been followed, whether it was free and fair, whether there was no
manipulation by any body to favour or
deny other candidate and as to whether
the lection materials were transparent and
non intimidation of voters.
Dr Afari-Gyan added that as part of the work of the
observers, both local and international, they would make analyses at the end of
the polls as to whether there were irregularities and if any, the
irregularities have the potential of affecting the results and make their
recommendation to the commission.
No
Verification, No Votes
On the issue of “No Verification, No vote” (NVNV)
mantra, the Chairman of the electoral commission told the court that the issue
was reached on consensus by the political parties and that when he said no verification,
no votes, he said he made that statement in principles and that it was not
automatic that results should be cancel simply because no verification,
adding that there are various scenarios in arriving at the cancellation of
votes on the NVNV.
He said in a situation where there seems to be
allegation of NVNV, it is important that the entire pink sheet be analyses ,
saying the Biometric Verification Device (BVD) has rather help in eliminating
some of the allegation on election matters in the country.
He added that in a situation where there is an
allegation of ballot papers in the box is more than the number of persons
issued with ballot papers to votes, the register should be the primary
reference point as well as the serial numbers of the ballot papers.
According to him, the two primary sources would help
solve the problem, but when the two sources are could support the allegation,
then it would be agreed by the parties agents present at the polling station
with a prot4est for the results to be cancel.
Non
Signature of Presiding Officers
Giving evidence on the allegation by the petitioners
that some of the pink sheets were not sign
by the presiding officers and therefore the results from those polling stations
should be annul, the EC boss said the non signature of presiding officer has no
bases to warrant for results to be
annul.
He said the
presiding officers has a lot of work at the polling station on every election
day and is the only person at the polling station who does all the election
related duty, but the agents are legal observers who raise protest when they
think certain procedure are not follow, adding that due to the work load, the
presiding could forget to sign on the pink sheet.
Dr Afari-Gyan said at the polling station, though
the presiding officer is expected to
sign, the absences of his signature cannot annul the results once the party
agents signed on the pink sheet to certify that there was no any protest on the
result declared.
Same
Serial Number on Pink Sheets
Dr. Afari-Gyan in the concluding part of his
evidence further told the court that the serial numbers on the pink sheets have
no legal backing on the commission to annul results, adding that the numbers were
arranged by the printing firm that printed the pink sheets and that they
printed in the present of all the political parties and that there was no bases
for the petitioners to make case out of it.
He added that the pink sheets serial numbers cannot
be use to annul the results and that the petitioners have to bear the
responsibility of their agents since there was no protest on the pink sheets on
the any of the allegations by the petitioners.
Biometric
Verification Devices
The EC witness in his the concluding part of his evidence
in chief told the court that, there was no report of any where of people
allowing to vote without going through the biometric verification devices.
He said on the December 7, 2012 when some polling
stations were experiencing problems on the malfunction of the devices, those
polling stations were postponed to the next day and voting took place without
any other problem.
According to Dr. Afari-Gyan, the EC has not receive
any formal protest in the form written complaint from any body be it the
petitioners on the allegation before the court and that the allegation of persons allowed to vote without the
verification was totally baseless and unmeritorious.
He also reconfirmed that the allegation of non
existence of 22 polling station by the petitioners ware untrue for the
petitioners party, the NPP was provided with every registers of the 26,02
polling nationwide and described the allegation as untrue stamen.
He however ended his evidence –in-chief by inviting
the court to dismiss the petitioners reliefs , saying that the petition lacks
substance and merits, adding the commission has not receive any formal
complains from the poling agents who signed all the results booklets.
The EC has since tendered in five poling station
registers to the court where the petitioners alleged of over voting took place.
All objections to the tendering of the registers by
the lead counsel for the petitioners were overruled by the court and marked as
exhibits which would be use as evidence in the case.
Cross
Examination Brouhaha
The issue of who to start cross examination on the
EC star witness , Dr Afari-Gyan after his testimony in chief yesterday suffered
heated legal arguments between the petitioners lead counsel Philip Addison and
the first and third respondents counsel,
Mr. Tony Lithur for president John Mahama and Tsatsu Tsikata, for the NDC.
BY legal precedence, a after a witness has finished
or concluded his evidence in- chief, it is the turn of the respondent to cross
examine the witness on the evidence her or she gave in court.
However when the EC counsel, Mr James Quashie-Idun
finished with his witness, it was left on to the petitioners counsel to cross
examine the witness.
But that was different in the supreme court of Ghana
yesterday, as the lead counsel declined to commence the cross examination.
Philip
Addison
My Lords, I do not know if the first and third
respondents could finish their cross examination before I also comes in,
because my lords, in the previous one,(Johnson Aseidu Nketiah), the EC counsel
was asking question as if he was doing reexamination on the witness, so I do
not want to experience that again .
Tony
Lithur
My Lords, I think
the procedure must be followed, counsel is trying to breach what we all
know in this court, when a witness finish his or her evidence, it is the turn
of the plaintiff, and in this case the petitioners to cross examine e the
witness.
Tsatsu
Tsikata
May I please your lordships, I think whenever there
is cross examination, the petitioners cross examined first, that was what happened when John Aseidu Nketiah who
testified on behalf of the president and the NDC .
I do not see why the petitioners counsel is
hesitation to cross examine the witness in the box, this not no the procedures
that we all know.
Tony
Lithur
“I think the court has ruled on this issue before,
we are here as different parties, am for the first respondent and the other
also for the rest of the respondent, that is very clear and the court has since
ruled on that, so I do not see why counsel is bringing this argument as to who
cross examine first.
My lords, what we did when it was our turn of the
witness , was to help expedite the case, so we agreed for one common witness
for the first and third respondents , and we made that clear to the court,” he argued.
Addison
“My lords, the respondent has done some here which
we did not agreed, when it was the turn of the second respondent to cross
examine the first and third respondents witness, we all saw what happened here,
he was reexamining the witness as if he was counsel for the witness, so my
lords, we do not want to witnesses such incident here, they must cross examine
the witness in the box and we too can follow,” he further cited evidence decree
act and sections.
After forth and back on the issue, the court retired
to chambers and returned with a ruling asking the respondents to start the
cross examination.
According to Mr Justice William Atuguba, president
of the nine members’ panel, the laws of the court has given the panel with
discretional powers to determine in matters such as the issue in contention so
that the witness would not feel been intimidated.
After the court ruling Mr. Tony Lithur took the
cross examination for the first and the third respondents.
He presented 47 pink sheets which the petitioners
labeled as exhibits of various category of allegation to confirm or otherwise
of the allegation.
The case has been adjourned till today for
continuation of cross examination on Dr Afari-Gyan at 10:00 am.
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