Democratic Congress (NDC) appears to be admitting over-voting, which is one of the irregularities being contested in the landmark Presidential Election Petition at the Supreme Court.

Throughout the trial, the NDC as Third respondent together with President John Dramani Mahama (First respondent) and the Electoral Commission as the Second respondent have all vehemently denied that over-voting occurred during the December 7 & 8, 2012 general election.

They have stated in their answers to the petitioners’ affidavits that, there was no over voting as being claimed by the petitioners.

The respondents have always insisted that the issue of over-voting together with pink sheets with same serial numbers and voting without biometric verification, which are major irregularities as claimed by the New Patriotic Party (NPP) presidential candidate for 2012, Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman, Jake Otanka Obetsebi-Lamptey, were due to either ‘administrative’, ‘clerical,’ ‘human’ or ‘trans-positional’ errors.

The Admission

However, Tsatsu Tsikata, lead counsel for the NDC, on his fifth day of cross-examination of Dr. Bawumia—principal witness in the petition—brought out an original pink sheet for identification by the witness, which he said contained over-voting but the petitioners had deliberately refused to add to their case.

He said he was trying to prove a case that over-voting also occurred in the stronghold of the NPP at Asokwa in the Ashanti Region and in his estimation; the petitioners had brought the petition in bad faith without adding that.

Surprise Pink Sheet

The attempt by Mr. Tsikata to ‘spring a surprise’ with original pink sheets, as the petitioners counsel, Philip Addison, put it, generated heated legal argument between the legal teams of both parties.

Counsel: Dr. Bawumia, you have noted that in these results that you are seeking to have annulled, you have exhibited pink sheets where the voting went in favour of the first respondent, you noted that?

Witness: Well, not all the pink sheets went in favour of the first respondent.

Counsel: What I had shown to you and what we were asking you questions about, you said it was not lost on you that these votes had inured mainly to the benefit of the first respondent; it was not lost to you?

Witness: That’s right, the violations, irregularities and malpractices, largely inured to the benefit of the first respondent.

Counsel: Now, and in fact, from your allegations of over-voting, if any of those things that you alleged, if they happened in areas of the country which are strongholds of your party, you would also want to have them annulled, would you not, according to your view of the law?

Witness: Yes, if anybody has any complaint about over-voting under the law, you can bring it up like we have brought our complaints up.

Counsel: Yes! I’m going to show you-and I’m going to ask respectfully that this be identified, I’m not going to tender it through him-, but I will like him to identify this pink sheet (Passes on the pink sheet to the witness. But he was cautioned to first tender the list of the 64 instances that he wished to present to the witness to identify.)

Counsel: (After tendering the list) I’m going to ask you to identify this pink sheet from LA Primary School, Asokwa…My lords, I’m asking him to identify it; it’s not an exhibit in evidence, I’m asking him to identify…(Counsel for petitioners, Philip Addison interrupts)

Mr. Addison: My lords, we are objecting to this business of identifying a document that is not emanating from the witness; he cannot identify it. This is not the case that the third respondents are making; we have seen their pleadings, we have seen their affidavit and we are here because of the petition and not on some other matters; matters that have not come before this court and then you are asking the witness to identify a document that is not coming from him.

Justice Atuguba: From what he is saying, it means this document is not one of those they have served on you.

Counsel: No, my lords, if they have served it on us, I wouldn’t ask him to identify it. I’m asking him to identify it because it is a document that I am now showing to him, and I prefixed my showing him with a question. It is clear to the witness why I prefixed it with a question. My question was: if what he alleges is over-voting in these various pink sheets that he has provided, and in relation to which he said that most of the benefit of the over-voting inured to the first respondent, if there were other … (Interrupted by Justice Atuguba)

Justice Atuguba: We’ve got all that…

Counsel: I want him to identify it and I’ve indicated that it is the pink sheets. My learned friends are not saying that it is not a pink sheet. It is a pink sheet that we have in our custody, we are attaching the original. From our perspective, all pink sheets of course are duplicate copies, but from our perspective, our copy is the original one that we have, and we are also attaching a photocopy of it, but at this stage, I just want him to identify the pink sheet and I cannot see any possible objection.

Justice Atuguba: Have you abandoned your objection or you are still on it (referring to the counsel for the petitioners)?

Mr. Addison: No, we have not abandoned it. We insist that this is not a document coming from the witness and he cannot identify it. My lords, we made available to them, 11, 842 pink sheets. They had all the time in the world to go through it and they take us by surprise by springing this pink sheet and asking the witness to identify it, he cannot identify it! My lords, secondly, it is not part of their case, they are not the petitioners in this case. We have brought forth all the polling stations that we have problems; this has never been part of their case.

Justice Atuguba: Whose case, the petitioners’ case?

Mr. Addison: The third respondent…yes, they’ve not raised it anywhere that they have other areas that there was over-voting. They are even disputing the over-voting that we have brought here.

Counsel: My lords, we have the witness under cross-examination and the witness under cross-examination has indicated that according to the case that they have brought before you, if there is any polling station in respect of which he has characterised as over-voting occurs, the same consequences that he wants to apply to polling stations which he has seen clearly as polling stations where the first respondent won the elections, the same should apply. That was the witness’ answer in cross-examination. Now, my lords, the witness himself in exhibit MB-AC, the witness indicates how the team that he led focused on the examination of some 24,000 statement of polls and declaration result forms, also known as the pink sheets, is the primary records at each polling station, so we have the witness’ own evidence of an examination of 24,000 to start with, where they focused on, that is the witness’ evidence, not mine. And what the witness is seeking to do, according to their amended petition…., petitioners say, when these figures are annulled and deducted from the total votes declared by the Chairman of the second respondent on 9th December 2012, the results that ought to be determined are as follows: The witness here is talking about 26,002 polling stations throughout the country, there is no way the case of the petitioners can be determined without an examination of 26,002 polling stations and the results in those polling stations, there’s no way that that can be done. My lords, the petitioners have set out a table in which on the face of that white sheet, they are asking your lordships to annul over 55 per cent of votes cast across this country for the first respondent… and when it comes to their candidate, they are asking you to annul 28 per cent of those votes, that’s the case that they are making before your lordships; it’s not about just 11,000 polling stations; it’s about 26,000 polling stations in respect of which the second respondent made a declaration. There is absolutely no way that your lordships can entertain this petition without a reference to their own paragraph 23….that clearly would be the most unjust determination that any court could be out to make, especially my lords, when in our answer…(Justice Vida Akoto-Bamfo interrupts)

Justice Akoto-Bamfo: Counsel, are you sure you are not entering into some other areas? An objection has been raised and I think you must confine your submissions to those issues.

Counsel: My lords, the objection is that a document cannot be identified… (Justice Akoto-Bamfo interrupts again)

Justice Akoto-Bamfo: ….that the witness cannot identify the document because it is not his, basically that is not his.

Counsel: My lords, once the document is pink sheet that is not dissimilar to any of the pink sheets that has been exhibited by them and identifying a pink sheet cannot be a mysterious act, he’s very familiar with pink sheets, that is why both his counsel and I have agreed on the ‘Dr. Pink Sheet’ designation, so this identification of a pink sheet is not beyond this witness. The only difference is that this particular pink sheet is not one of those he tendered……

Mr. Addison: My lords, two short matters: one is that the witness is on record as having said that he had examined 24,000 pink sheets, there is no evidence before this court that suggest that this pink sheet that the third respondent is seeking to tender is included in the 24,000 that the witness has examined out of 26,002. There is no such evidence before the court, this is not the witness’ document; he cannot identify that document.

Counsel: I do not seek to tender it…( The nine judges confer with each other on how to handle the objection)

The Ruling

Justice Atuguba: We have considered the objection raised and we have come to the conclusion that the question posed by the third respondent’s counsel is covered by Section 74 of the Evidence Act, 1975, NRS Degree 323 and paragraph 27 of third respondent’s amended answer dated 26th February 2013. Accordingly, the objection is over-ruled.

Before we proceed, we wish to make one thing clear; that the questions relating to polling agents signing etc. those questions have been sufficiently visited and the documents also evidence them anyway, so let’s leave out those lines of questioning and proceed with the rest.

The Precedence

However, the justices’ ruling runs counter to earlier ruling when they said the EC cannot tender a pink sheet through the witness.

The court in a 6-3 majority decision dismissed attempt by the EC counsel to tender in evidence pink sheet of the polling station where Dr. Bawumia cast his ballot during the election.

The rejection followed an objection raised by Mr. Addison over the tendering of the document by the EC since he said it had no relevance to the issues in evidence.

Silent Protest

There was some kind of silent protest in the courtroom, the moment the court overruled the objection of Mr. Addison because the same court had earlier ruled that the EC, which is the official custodian of election materials, could not tender a pink sheet when James Quarshie-Idun, the commission’s counsel was cross-examining Dr. Bawumia.

The court suggested that Mr. Quarshie-Idun could tender the document through the commission’s witness when the time comes for that person to mount the witness’ box.

Initially, Mr. Tsikata had brought out only the Asokwa polling station pink sheet for the purposes of identification through Dr. Bawumia and after the court accepted the document as ‘identified as exhibit’, counsel attempted to bring more to prove that the petitioners deliberately failed to make a case of over-voting and said that showed the petition was in bad faith.

Give-And-Take

At a point Mr Tsikata put it to Dr. Bawumia that on the face of the pink sheets the irregularities the petitioners were claiming were just errors and that the petitioners had also made errors in their exhibits.

However, Dr. Bawumia rejected counsel’s suggestion and insisted that if there were errors, they should not affect ‘someone’s presidency’, and also told the court that the errors as Mr. Tsikata put it ‘inure’ to the benefit of the First respondent.

He told the court that Mr. Tsikata’s contention that NPP agents signed the pink sheets or did not file any protest did not prevent the EC from declaring the results and, therefore, counsel’s suggestion was untenable.

When suggested by Mr. Tsikata that election officials were under ‘great pressure’ on election day, Dr. Bawumia said “We had every confidence that the EC will organise a credible exercise,” before insisting that they had confidence in the NPP agents, who had signed to attest to what transpired at the polling stations.

Mr. Tsikata then moved to another area where he asked the witness about the tally sheets used by the party agents to tick and crosscheck people who came to the polling stations to vote.

Justice Paul Baffoe-Bonnie came in to remind Mr. Tsikata that he had gone ‘on and on’ with a particular question and the area he was venturing could be left to the court for interpretation but counsel replied that Dr. Bawumia was seeking to annul votes, particularly that of President Mahama and “we needed to exhaust the issue of whether he is entitled to it.”

Justice Baffoe-Bonnie replied Mr. Tsikata that “I am not saying you are not allowed to do your cross-examination. I said you have dwelt on the area for too long.”

Justice Atuguba then said, “These are matters for address,” and added that questions of tally sheets and duties of polling agents were matters that were well-known.

Pathologic Questions

At one point when Mr. Tsikata felt he was not getting the answers needed from Dr. Bawumia, he told the court that the witness was ridiculing himself to which Justice Atuguba responded that “he is at liberty to ridicule himself if he wants.”

Counsel: Dr. Bawumia you received numbers from your polling agents at each polling station after the results have been declared, did you not?

Witness: We received the pink sheets from most of our polling stations.

Counsel: No, the polling sheets came later, but on that night, you received numbers?

Witness: From some polling stations, not all polling stations.

Counsel: I’m putting it to you that you received numbers from all polling stations.

Witness: You are wrong; it’s not true; unless you were controlling the telephones (Laughter from the courtroom)

Counsel: My lords, the witness is not allowed to…(Interrupted by Justice Atuguba)

Justice Atuguba: You see, sometimes, there is pathology in your line of questioning…There is a composite question asked much earlier -when you were taking him through the procedure-, whether at the close of the polls the ballots are emptied and counted in public and so forth…, he answered all these things…

Counsel: My lords, the question doesn’t relate to what went to the collation centre and what went to the ‘Strong Room’. The question I’m asking him is about their gathering of information from each polling station as a party, that’s the question I’m asking.

Justice Atuguba: Yes, that’s why I’m saying that from the procedure you took him through…that was covered.

Counsel: My lords, with the greatest respect, nothing that I’ve asked him covered the situation of their party receiving numbers from polling stations…. (Banter continues between Justice Atuguba and Counsel)

Sitting continues today.