Tsatsu Tsikata, lead Counsel for the third respondent enters his sixth day of cross-examination and has brought another pink sheet for identification by the witness.
Philip Addison Counsel for the petitioners raises another objection for the identification of another pink sheet. He says they disapprove of counsel of the third respondent springing up surprises.
Presiding Judge Atuguba sustains the objection raised by Addison.
Tsikata asks for the ruling that was given yesterday concerning the admissibility or otherwise of a pink sheet from the NPP strong hold to be read to him again in order to guide him in his cross-examination.
Atuguba reads it again for the avoidance of doubt.
Tsikata then asks the witness if he can say that based on the results on that pink sheet which has traces of over-voting the results of that polling must be annulled if it can be proven that there was over voting.
Atuguba interjects and tells Counsel that question has been asked already.
Tsikata appears to have shifted from asking questions on pink sheet with irregularities which inured to the benefit of the first petitioner and proceeds with routine of challenging allegation of over voting on a number of pink sheet exhibits tendered in evidence by the petitioners.
He asks the witness to identify the rejected ballot number on the column of pink sheet.
Bawumia identifies the number as four. Tsikata says the number four was written in that column in error.
Bawumia insists that he and the counsel were not present at the polling station and so they have to deal with the evidence on the pink sheet.
NB If the number four is deemed to be correct there would be a clear case of over voting.
Presiding Judge Atuguba describes Dr Bawumia as “an adult witness” and must therefore move away from the “you and i were not there” mantra.
Tsatsu then brings a list of nine pink sheet exhibits in which he contests the allegations of over voting made the petitioners. He asks witness to look through them. Bawumia does just that.
Tsikata then asks Bawumia the basis on which they concluded that there was over voting. Bawumia tells the court that upon further auditing they realized that out of the nine pink sheet exhibits before him, five of them could not be said to have contained over voting so they struck those five out of their lists in their amended petition. He insists however that on the four remaining, there were over votes.
Primary Record of Election
Tsatsu Tsikata subjects the witness to strict proof on the four remaining pink sheets. He says the pink sheet cannot be said to be the primary record of the election and that the document in which the presiding officer records his receipt of ballot papers is the primary record.
Bawumia insists however that the primary record of the election at the polling station is the pink sheet.
NB There appears to be a discrepancy in the figures on the pink sheet and that in which the presiding officer recorded his receipt of the ballot papers. If figures on the pink sheet are used, there will be a case of over voting. However if the receipt document is used there will be no case of over voting.
Tsikata tenders another list of pink sheet exhibits in which he is set to challenge the allegations of over voting.
1106 Court rises for a short recess
1126 The court reconvenes to continue proceedings
Tsatsu asks witness to tell the court why they classified that pink sheet as an example of over voting.
Bawumia says that pink sheet has been re-classified and struck out of the over voting category.
Tsikata directs the witness to look at another pink sheet which has a blank space on the column of C1.
He proceeds by asking witness whether in each of these polling stations there were polling agents who signed the pink sheet.
Atuguba cautions him not to repeat the same question. Tsikata says he has reason why he has to repeat the same question on these list of pink sheet.
To sign or not to sign
He asks witness if he would expect his polling agents not to sign the pink sheet.
Bawumia says it is difficult to speculate. The circumstances and their assessment on the ground by the polling agent will determine whether or not they will sign.
“I would suggest to you that your polling station would not sign if they have reason to believe there were irregularities,” Tsikata fires.
“That is your suggestion I do not necessarily agree with you,” Bawumia retorts.
Tsikata tenders another list of pink sheet exhibits on which he challenges the assertion of over voting.
Shifting of categories
Tsikata insists there is no case of over voting on these current list of pink sheet exhibits. Bawumia agrees and says they have been moved to other categories of irregularities such voting without verification, no serial numbers etc.
Tsikata avers that it was only after the list was provided to the petitioners that they realised they made a mistake, they had no basis and therefore had to shift goal post.
“You keep moving categories as it is quite clear that you have been wrong in many instances,” Tsikata says, adding “you are double counting” in respect of these pink sheets.
“We are not double counting. There is not one polling station that was double counted,” Bawumia answers.
Tsikata presents another list of pink sheet.
He suggests to witness there is no over voting on one of the pink sheet exhibits he has tendered to the court and to the witness.
Bawumia insists there is over voting because the Total votes on the pink sheet is 603. But the Total ballots issued to voters is 602. However in the words column of the pink sheet the figure is written for total votes as six hundred and two. He emphasizes that in tabulating, it is the number written in figure that is used and not those written in words.
Tsikata asks witness what happens if a cheque has a discrepancy with respect to the amount in figure and the amount in words.
Bawumia answers and says “when you sign a cheque and there is a discrepancy between the words and the figures the cheque is annulled.”
Tsikata continues with another pink sheet exhibit in which he is challenging allegations of over voting.
He cites an “arithmetic error” by the presiding officer in filling the pink sheet and cannot be said to be a case of over voting. He asks Bawumia to add 10+4 the answer of which will be 14 and says 14 should have been written at the column and not 24.
Bawumia agrees that 10+4 will be 14 but cannot explain how the presiding officer wrote 24. He says it is the 24 that went into the declaration of the results in the polling station and not 14 and therefore there is a case of over voting.
Tsikata brings another similar example of “arithmetic error” of pink sheet exhibits and suggests to witness that the number that went into the declaration is 11 even though what has been written on the pink sheet is 21.
Bawumia disagrees and says “the second respondent stands accused” by the third.
Tsikata brings another pink sheet exhibit and challenges the over voting allegation by the witness. Bawumia admits and says for consistency sake he would agree with counsel by the third correspondent that there was no over voting.
1239 Atuguba rings the lunch alarm bells. He says there appears to be over voting on the their time for lunch. The spectators in the court room break out in laughter. Bawumia adds by saying when the court returns from recess he will show why there is over voting. There is more laughter.
1350 Court resumes. Tsikata tenders in some pink sheet exhibits on which he tells witness that it is not easy to read some of the pink sheet. Bawumia struggles to mention the figures and admits the writing is not legible.
Tsikata says on that sheet there are a lot of unclear numbers. Bawumia says there are also a number of clear numbers to allow for a credible ballot accounting.
Tsikata takes another pink sheet exhibit and challenges the over voting allegation by the petitioner. He says the figure 17 has been written at the portion of C1 when in actual fact the figure has to be 117. He says it could not have been lost on the witness that the presiding officer was writing 117 instead of 17.
Bawumia admits in his answer that the 117 may probably be the correct number on the portion of C1 but is quick to add that he wasn’t at the polling station and cauld not tell what must have prompted the presiding agent to write 17. He says on the face of the pink sheet indicates a clear violation of the electoral laws
“There were no over voting. You set out to annul legitimate votes you think are wrong, Tsikata opines.
“The second respondent has to be take responsibility,” Bawumia indicates.
Respondents have no objection to an exhibit shown to the court by Tsatsu.
Selective use of pink sheets?
Tsatsu asks Bawumia how he advised the committee on what constituted over-voting.
Addison objects and asks for clarification of the question. Is Tsatsu referring to legal advice? he says. Objection is sustained.
Bawumia says he identified all documents of over-voting himself in response to Tsatsu’s question. Tsatsu asks if Bawumia had any briefing by Electoral Commission on what constituted over-voting.
He says he heard a public briefing from EC.
Tsatsu suggests the reason there was no protest from polling agents was because they did not find any claim of over-voting.
Polling station agents attested only to what they saw, Bawumia responds.
Bawumia confirms that 24,000 pink sheets were examined. Did he examine the other 2,000? Tsatsu asks.
Addison objects. It is a tricky question to get Bawumia to confirm he has seen 26,000. This is unfair he says. Tsatsu responds that it was rather unfair for Counsel to be helping the witness in his cross examination.
Justice Atuguba overrules the objection.
Tsatsu continues. Bawumia answers he wanted more pink sheets but couldn’t get it so he limited his evidence to 24,000 pink sheets.
Paragraph 23 contains the second amended petition. Counsel for third respondents, Tsatsu asks Bawumia to read it.
Tsatsu asks if he is aware EC declared results from 26,000 pink sheets. He says he is aware.
But his analysis was based on over 11,000 polling stations.
Would you agree that votes for Mahama seeking to be annulled by the petitioners was about 50%?, Tsatsu asks.
Bawumia calculates that its 55.6%.
He says Bawumia wants 28% of Mahama’s votes to be annulled so he can be vice-president.
Bawumia says he is not seeking annulment of votes to become vice-president but to correct irregularities in elections which affects Ghana’s democracy.
He suggests that Bawumia selectively concentrated on strongholds of Mahama in his analysis.
Counsel objects that Tsatsu keeps recycling his questions so he should allow witness to answer fully. Tsatsu says he has not asked that question.
Justice Atuguba says he doesn’t recollect the question to have been asked by Tsatsu before. Addison wants the records to be verified.
Bawumia says his analysis covers 272 out of 275 constituencies he therefore could not have been selective.
Tsatsu refers to a powerpoint presentation of irregularities. You cannot make such a statement if you have not fully covered 26,000. Bawumia responds he covered 11,832 polling stations and can make a statement based on this number.
Tsatsu wants Bawumia to identify a polling station outside the 11,832
Addison objects. “We are not going to identify any polling station”, he says and explains that Justice Atuguba had already ruled on this.
He puts it to Bawumia that he deliberately chose to ignore irregularities in NPP strongholds.
But Bawumia says where irregularities occur some were won by the petitioner.
If he is not dishonest and examined the 26,000, he would have found numerous instances of irregularities in NPP strongholds instead of using 24,000 polling stations, Tsikata suggests.
Ruling on unsavoury comments
Addison objects to the use of words like “dishonesty”. It is playing to the gallery.
Atuguba catalogues unsavoury comments by both counsel including “shut up”. He says the mudslinging is even. There should be no generation of it “whether manually or electronically”.
He asks Tsikata to proceed. He refers to Sections of the Evidence Decree that deals with the demeanour of the witness, substance of the testimony and the capacity of witness to testify and existence of bias and why he should be allowed to make the witness identify a document which he initially attempted to but which Addison raised an objection to.
Justice Atuguba says he finds it difficult to appreciate the “battle” tsatsu is fighting.
He rules that going forward any unsavoury comment by counsel will have to be withdrawn.
Bawumia answers that we have done our analysis in 11,842 polling stations and the results is what is in court.
He says the basis of Bawumia’s selection was personal. He wants to become Vice- president.
Bawumia says no, he has no personal interest. It is not about him but about Ghana’s democracy. If he had more pink sheets maybe he could have discovered more irregularities and he Tsatsu could have become a co-petitioner, he says.
Justice Atuguba advices Bawumia not to cast aspersions.
Tsatsu makes reference to a press conference held by the NPP on the day they filed the Election Petition and cited portions of a speech made by the first petitioner. He says Nana Akufo Addo said elections must be about the individual casting his vote and not about administrative duties. He asks witness what he understands by administrative activities.
Bawumia says he understands it to mean administrative rigging.
Tsatsu on over-voting and missing signatures
Tsatsu presents exhibit MBJ 32 and says Bawumia made an allegation of over-voting and lack of an official signature. Bawumia says there is a clear signature and therefore the allegations of over voting and lack of signature cannot hold in this particular instance. He says however that this exhibit may well be part of the exhibits they struck out
Tsatsu says yet he swore in his affidavit that there was no official signature and that there was over-voting.
Bawumia says he has to check if that affidavit was not later abandoned by the petitioners.
Addison draws the attention of Tsikata that that same exhibit also has an irregularity of duplicate serial number.
Tsatsu wants to find out the duplicate serial number of the exhibit but Bawumia says he has to check.
Tsatsu defers the exhibit pending a cross check by Bawumia.
Exhibit MBJ49 is shown to the court. Do you see over-voting, he asks Bawumia who responds, no he doesn’t.
Tsatsu asks “Do you see a signature?”. Yes he says he sees the signature of the Presiding officer.
Counsel asks him to later verify the duplicate serial number of the exhibit.
They move to Exhibit MBJ6 where claims of over voting and same serial numbers have been made. Bawumia responds that there is no signature and there is also over-voting.
Tsatsu says we will deal with the issue of the absence of the signature later.
Tsatsu says there was no over-voting in the exhibit. There is the figure 404 and recorded total of 402.
Bawumia says it should have been 422 if rejected ballots were added. He disagrees that there was no over-voting.
He says although his sees a name of presiding officer, there is no signature.
Justice Atuguba adjourns proceedings to tommorrow.