BATTLE RESUMES TODAY, AS RECHARGED COUNSELS READY FOR PINK SHEETS SHOWDOWN The Enquirer, Monday , 24th June, 2013

By Felix Engsalige Nyaaba

After one week break, the Supreme Court is expected to be alive today when it resumes hearing of the presidential election petitions case brought by three leading members of the New Patriotic Party (NPP) including its 2012 presidential candidate, Nana Akuffo Addo, his running mate Dr Mahamudu  Bawumia  and the party National Chairman, Jake Otanka  Obetsebi-Lamptey,   challenging the legitimacy of President John Dramani  Mahama as winner of the 2012 elections.

The petition proceeding was adjourned to  await the report from KPMG, the private accounting firm that was selected by the Supreme Court to serve as referee and conduct an audit counting into the number of pink sheets that the petitioners submitted as exhibits in the case.

Causes of Adjournment

During cross examination on Dr Afari-Gyan, lead  counsel for the petitioners, Mr. Philip Addison,  told the court he could not continue with his cross examination  without references to the pink sheets exhibits that the respondents objected to their admissibility in court.

The three respondents  raised objections on the grounds that  some of the pink sheets exhibits that the petitioners counsel sought the witness to answer questions on were not in their possessing and that they were been smuggled in by the petitioners to outwit the respondents and also  mislead the court.

The respondents also contended that some of the exhibits were not dully filed since they were not having the court registry official stamp to indicate they were been filed at the court.

Following that simultaneous objection by the three  respondents, Mr. Addison then  paused the cross examination and  told the court he was unable to continue until outcome of the number of pink sheets filed by the petitioners are determine by the referee report.

 Appointment of KPMG

KPMG was appointed by the Supreme Court on May 9, 2013 to audit pink sheets submitted by the petitioners challenging the results of the December 2012 presidential election.

The orders was given at the request by lead counsel  for the third respondent(NDC), Mr. Tsatsu Tsikata, that  they  had received less than the 11,842 pink sheet exhibits, the petitioners claimed they had submitted.
The terms of references for the counting by KPMG were the name of polling station, their code numbers and the exhibit numbers.
It completed auditing the first set of pink sheets submitted to the court registry, issued a draft report and requested parties in the petition to respond to the report.
However, the Supreme Court, on June 5, 2013, upon an agreement by both parties in the  matter directed that the pink sheets of the president of the panel, Mr. Justice William Atuguba should be used as control mechanism in the audit.
As a result of that, the court, on June 13, 2013, adjourned proceedings till today, June 24, 2013 to enable the audit firm to complete its work so the parties can rely on the report to make their case for and against the annulment of more than 4million valid votes cast in the 2012 elections.
KPMG Working for Ghana

Auditing firm, KPMG, on May 15, 2013, in a letter indicated to the Supreme Court that   it will audit the number of pink sheets filed by the petitioners, free of charge.

The company in the letter to the court explained that the gesture was its contribution to the good people of Ghana.

The, President of the panel of judges hearing the election petition described the gesture as a “certificate of good news”.

The company has since assured Ghanaians of working hard to come out with a diligent report that would be acceptable to the court and all the parties in the petition..

It has also maintained it’s desirable to contribute its quota to Ghana’s nascent democracy by working tirelessly to produce a assiduous and acceptable report.

Before The One Week Break

Prior to the one week adjournment of proceedings, the Chairman of the Electoral Commission (EC) and chief returning officer of the presidential election, Dr. Kwadwo Afari-Gyan was in the witness box answering questions under cross examination by the petitioners lead counsel.

The EC boss who has since provided evidence-in-chief, was however subjected to oppressive and intimidating questions from Mr. Philip Addison, on wide range of issues bordering, voting without biometric verification, over voting, non signature of presiding officers and duplication of pink sheets serial numbers as  alleged by the  petitioners.

Despite the legal punches from the petitioners counsel, Dr Afari-Gyan remained tactical and educates the court and the parties on wide range of issues regarding elections process and procedures in the country.

While giving evidence, Afari-Gyan, told the nine member panel of the Supreme Court that the Electoral Commission has accepted the responsibility of the transposition mistakes recorded in the 2012 general elections and that the candidates should equally bear the responsibility of their agents.

He took the court through the way balloting was done and explained that the booklets printed came in pages of 25, 50 and 100 and further pointed out that although the law required 10 per cent of ballot papers to be allotted to each polling station, that quota was impossible to meet, especially when it was restricted for ballot booklets to be split.

He emphasised that loose ballots were not allowed in Ghana’s electoral system and for that reason it was impossible for the EC to strictly meet that 10 per cent quota, thereby making the EC exceed the quota in some polling stations.

Dr Afari-Gyan, in his evidence-in-chief, before the court also denied claims that verification only applied to fingerprints.

“It is not true that verification is limited to fingerprint alone,” he pointed out, and said 70,951 people were captured to vote without undergoing biometric verification due to their physical conditions.

According to him, he did not know where the star witness for the petitioners, Dr Mahamudu Bawumia got the figure 3,196 as being the number of face-only voters (FOs) captured by the biometric machine.

He also told the court that political parties agents though do not form part of election officers, they have significant role to play at the polling stations by ensuring that the election was conducted in a free and fair in accordance with election procedures.

He however asked the court not to grant the reliefs sought by the petitioners, for in his view  the petition lacked bases to warrant the annulment of the over 4 million votes, adding the election results were declared on  based on valid vote cast and there were no complains at the polling station nor at the collation centers.

History of Pink Sheets
The form on which the statement of poll and the declaration of results for the office of President and Parliament are recorded is known as the pink sheet.
It is so called because it is pink- coloured and  the name originated  when the petitioners on December 9, 2012  held a meeting with the Electoral Commission and the Peace Council of Ghana  to lodge a complaint of election regularities.
The issue of the actual number of pink sheets filed by the petitioners had become a problematic and subtle one for some time now because the petitioners and respondents had given mixed figures.
While the petitioners insisted they served 11,842 pink sheets on the Supreme Court Registry, the respondents, namely, President John Dramani Mahama, the EC and the NDC, on the other hand held different views.
Lead counsel for the President, Mr. Tony Lithur, on many occasion contended in court that his client has received only 8,579 pink sheets, while lead counsel for the NDC, Mr. Tsatsu Tsikata, said his client had received little over 8,000 pink sheets.
Mr. James Quashie-Idun, lead counsel for the EC, had also maintained that his client has not also received the 11,842 pink sheets as claimed by the petitioners and that the exhibits before the EC was far less than 11,842 pink sheets.
The petition
The hearing of the substantive petition began on April 16, 2013.
So far, Dr Mahamudu Bawumia and the General Secretary of the NDC, Mr Johnson Asiedu Nketia, have testified for the petitioners and President Mahama/NDC, respectively.
The Chairman of the EC, Dr Kwadwo Afari-Gyan, who has since given  his evidence-in-chief on  May 30, 2013, is currently being cross-examined by Mr Addison.
The petitioners have alleged that the December 7 and 8, 2012 presidential election was fraught with malpractices of over-voting, non-signing of pink sheets by some presiding officers or their assistants, voting without biometric verification and duplicated serial numbers of pink sheets.
However, President Mahama, the EC and the NDC have denied that any such irregularities occurred during the election.

Legal Terminologies So Far

Ghanaians have, for the past  two months  have been  introduced to legal jargons, general courtroom procedure, objections and counter objections and numerous rulings, credit to the live telecast of the presidential election petition seeking to annul the 2012 elections.

Previously known as 24 million coaches due to their passionate love for sports and harsh criticism of football coaches, Ghanaians have now turned into pocket lawyers and quasi-judges.

Terms  such as, My Lordships,’  'pink sheets,' ' I suggest to you,’ I put it to you',  'objection', 'objection overruled', 'objection sustained' and other legal expressions are now on the lips of  many Ghanaians.

To reflect their appreciation of proceedings in court, most Ghanaians , especially those on social media like face book and WhatsApp,  have also  found ways and means of introducing  most of the terms  used by  the witnesses like, ‘ you and I were not there’,  ‘ I am confused as to what over voting’,   ‘ on the face of the pink sheet,’  among others as  social terms  in their daily interactions.

Though the Supreme Court invoked the convention and permitted cameras into the courtroom to make possible for Ghanaians and the international community to watch what goes on at the proceedings, there are some who find the legal arguments by lawyers in the case baffling.

The nine judges who are the arbiters in the petition have also been caught in the crossfire on a few occasions, but that does not dent proceedings so far.

Issues for Consideration

After about 10 sittings to consider and rule on more than 21 interlocutory applications filed by parties in the case, the nine-member panel of the court set out two issues for trial.

They are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012.

It will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results.

The Arbiters

The nine panel judges  who are also referred to as the nine wise men/women  hearing the petition are, Mr Justice William Atuguba (presiding), Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira and  Ms Justice Rose Owusu,

The rest are Mr. Justice Jones Victor Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice Nashiru. Sule . Gbadegbe and Mrs Justice Vida Akoto-Bamfo.