It is Day 16 of the substantive hearing of the Presidential Election Petition in which three leading members of the New Patriotic Party are challenging the 2012 December election results which was declared in favour of incumbent president John Mahama.
Lead Counsel for the third respondent Tsatsu Tsikata enters his ninth day of cross examination of the petitioners’ key witness Dr Mahamudu Bawumia.
The judges as always have taken their seats on the bench and are ready for banter.
1030 The counsel for all parties introduce their team of lawyers to the bench. Bawumia is reminded of his oath. Proceedings begin.
Motion by Tsikata
Presiding Judge William Atuguba has proposed that hearing on the application by Counsel for the third respondent Tsatsu Tsikata to cross examine petitioners’ witness who have come by affidavits evidence be adjourned.
Counsel on all sides agree to the adjournment. Atuguba subsequently rules that the motion has been adjourned and asks counsel for the third respondent to proceed with his cross examination of the witness.
Reason for the Ruling
Atuguba says the 1st and 2nd Respondents have also filed similar motions and so it will be convenient to hear all motions at the same time. He therefore sets May 16 for the hearing of the motions.
Confusion over list
Tsatsu Tsikata draws the court’s attention to what he says is the confusion in the list provided by the petitioners following his request for counterpart copies of pink sheets with duplicate serial numbers. He says the petitioners did not present their list in the appropriate order in which the respondents served on them yesterday.
Addison says they could not arrange the counterpart pink sheet exhibits in the order the third respondent provided them because of time constraints. He adds however that they have provided every single counterpart copy of the pink sheet exhibits to Tsikata. All he can do is to mention the copy and the witness will locate the counterpart copy for him.
Tsatsu continues with his cross-examination nonetheless.
He picks one of the pink sheet exhibits in the lot and asks Bawumia to locate its counterpart copy. He picks another and asks same. He sees a repetition of the exhibit numbers in the counterpart copies provided by the petitioners and asks Bawumia to confirm it. Witness confirms the repetition of the exhibit number but attributes to “mislabeling” because those exhibits also fall into another category of irregularity.
Tsatsu Tsikata accuses witness of misleading the court with his mislabeling. Bawumia rebuts the accusation. He says they have provided all the counterpart copies of duplicate serial numbers Tsikata requested for. He says counsel must concentrate on the duplicate serial numbers printed by the EC instead of emphasising on their mislabeling which does not affect the numbers and the integrity of their analysis in anyway.
One of the judges cautions Bawumia to go straight to the point with his answers to questions posed by the counsel.
Tsikata provides another pink sheet exhibit of the same polling station but with different exhibit numbers and labelling. Bawumia says the reason for the mislabelling is that one was manually generated and the other electronically but was entered only once in their analysis.
Tsatsu moves on and charges witness to locate the counterpart copy of another pink sheet exhibit which has been mislabeled and put in another category. Bawumia admits but says they were only analysed once.
Tsikata says he will “not waste the time of the court” by taking witness through all the mislabeling. He therefore goes ahead with another lot.
He cites the pink sheet exhibit for Methodist Primary at Huniso and asks witness to locate the counterpart copy. Bawumia locates it but with a different exhibit number.
Tsikata accuses Bawumia and suggests to him that he did not provide an equivalent over 6,000 pink sheet exhibits to justify the claim of duplicate serial numbers. Bawumia dismisses the claim.
Tsikata will not take further explanation and fires on with his cross examination. He cites another pink sheet in which the exhibit number MBM 625.
Bawumia makes a passionate ‘appeal’ to Tsikata to allow him to get into the analysis. He says if Tsikata wants the truth the only way to find it is when their analysis is scrutinised. He says he will show the court only one polling station was used in their analysis despite the mislabeling that has gone on.
Tsikata ignores him and goes ahead with his cross-examination. He cites another pink sheet exhibit which he says he could not locate the counterpart copy he requested for from the petitioners. Bawumia finds it. Tsikata ten goes ahead with the claim that the exhibit has been repeated so that for the same polling station there are two pink sheet exhibit numbers. Bawumia says the mislabeling is as a result of manual and electronic generation but insists that it was only analysed once.
Tsikata goes into another lot. He accuses witness of introducing a different pink sheet exhibit which is different from what he has provided in his affidavits on the polling station bearing the name funeral grounds Nakaba with the exhibit MBP005598. He accuses witness of being dishonest to the court.
Bawumia charges and says if Counsel is not afraid of the truth he should go into the analysis of the petitioners and point a single polling station which has been used more than once in the analysis. “If you not afraid, let’s open the analysis and show me one single polling station that has been repeated,” he charges.
Tsikata is not amused with the utterances by the witness. “Witness is claiming I am afraid of the truth”. That is not the case, he says. He accuses Bawumia of being dishonest and must be called the order.
Atuguba intervenes. “Don’t fight the battle beyond its confines,” he tells witness. “Limit yourself to the extent of the question being asked,” he adds.
Tsikata is not satisfied. He says witness must be called to order.
Addison is up. He accuses Tsikata of getting “the answer he asked for”. He says Tsikata called him [Bawumia] dishonest and he answered in equal measure.
Atuguba calms nerves. He says the case is not a personal boxing contest in Bukom. He admonishes all parties to be civil.
Tsatsu fires on with the pink sheet exhibit numbers which have been mislabeled.
Tsatsu moves to lot four and five and tenders them before the court. Counsel on all sides peruse the exhibits tendered. They raise no objections.
Tsatsu proceeds with his cross examination. He cites one pink sheet exhibit in which the counterpart provided by petitioners has been duplicated in terms of the exhibit number. Bawumia says the exhibit numbers are different but were only used once in the analysis.
Tsikata moves to another exhibit which he says is found in a different category of irregularity. Bawumia admits to the different exhibit numbers but says they were used only once in the analysis.
Atuguba raises the lunch alarm
Tsatsu reminds the court that he has received a letter informing them of an inaugural meeting with officials of KPMG who are to audit the pink sheet exhibits. The meeting is to begin at 1230 and so he seeks court direction to find out when to return from recess. Addison says the meeting could be attended by representatives of all parties and not necessarily by the lead counsel. He pleads with the court to continue with the cross examination.
Atuguba says court will resume at 2:00pm to continue with cross examination
C]ourt resumes at 2:35pm
Presiding Judge Atuguba proffers a suggestion that will expedite proceedings in court. He says for pink sheet exhibits which has similar defects the counsel wants to cross examine the witness on, he can proceed by asking the same question to elicit a response from the witness instead of the witness having to repeat the same answers over and over again.
Tsatsu proceeds with his cross examination by tendering another list to be perused.
He says it is clear that the MBP category of irregularity is fraught with so many duplications.
MBP Category: Is the Irregularity of Double Serial Numbers.
Bawumia disagrees. He says given the 6,822 polling stations they have tendered in evidence for this specific category of irregularity it will be misleading for Counsel to say there are so many duplications. He admits there were some mislabels but insists they were few and even that they were used only once in the analysis.
Tsikata challenges the figure of 6822 pink sheet exhibits in respect of duplicate serial number Bawumia claims to have submitted to the court. He also suggests to the witness that the petitioners did not submit 11, 900 pink sheet exhibits to the court. He says the petitioners has included a number of polling station which did not feature at all in the further and better particulars.
Bawumia says if that is true it could not have been deliberate. He says if a Parliamentary pink sheet is mixed up with what has been brought before the court as happened previously, it cannot be the case that the petitioners will deliberately tender a pink sheet which they have not cited in their further and better particulars. He says to the best of his knowledge, the petitioners provided 6,800 pink sheet exhibits in respect of same serial number irregularity and 11,842 pink sheet exhibits in respect of the total number of irregularity they provided to the court.
Tsikata asks witness to confirm the same serial number irregularity did not feature in the meeting between the petitioners and the EC.
Bawumia says he will not be surprised it did not come up because the same serial number irregularity is innocuous and had to take a painstaking professional eye to notice that form of irregularity. He says merely because it was not raised at that meeting does not preclude the petitioners from raising it now.
Tsikata brings out a letter which he asks witness to cross check and see if it is the signature of the third petitioner which is addressed to the second respondent.
Philip Addison raises an objection. He says the counsel can’t ask the witness to identify a document and proceed to ask supplementary questions on it. He says the last time he rose to object to a similar document and supplementary question he was told he raised the objection pretty late. He hopes the bench will not find his objection rather late this time.
Tsikata proceeds to answer questions on the document.
Addison forcefully objects to the questions being asked of the witness on the document. He says witness cannot answer a question from a document he did not tender before the court.
Tsikata tries to rephrase his question. Addison is up again. He wants to know if the counsel on the other side has withdrawn his question to which he Addison objected to. Tsikata wears a smile. Presiding Judge Atuguba intervenes. He says having agreed to rephrase means Tsikata has withdrawn his earlier question. “Lets deal with substance and not microcosms,” Atuguba adds.
Tsikata is up again and tries to lay a foundation for his question. He says the witness in his pleadings has admitted to testifying on behalf of the third Petitioner for which reason Bawumia can answer the question on a document signed by the third Petitioner who he represents.
Addison is up again. He says witness has said he knows little about the letter and cannot answer questions on it. He says the letter, if at all relevant, was written by the third petitioner to the second respondent for which reason the second respondent has to ask the questions and not the third respondent. He cites Evidence Act section 60  to back his argument that a witness cannot be called upon to answer a question on a document he has little knowledge about.
The Judges are at this point conferring with each other.
By a Majority 8-1 decision the judges over rule objection raised by Philip Addison. Atuguba asks all to read Section 125 in relation to business records.
Tsatsu continues and asks witness to read portion of the ‘controversial’ letter. Bawumia obliges and reads the letter.
Tsikata says the voters in the polling stations in all those lists did nothing wrong in terms of how they proceeded to vote. You are not alleging that any voter who was not qualified to vote did vote.
Bawumia says about over 74 per cent of people voted without being biometrically verified and that is a malpractice even if the people were qualified to vote.
Tsikata says the petitioners deliberately focused on areas of the country which were the strongholds of the first respondent to raise this issue about duplicated serial numbers. He says they also glossed over similar instances which happened in the stronghold of the first petitioner.
“That is not the case at all,” Bawumia responds, but says if the counsel has evidence of similar malpractice he is welcome to show it to the second respondent.
Tsikata insists there is a selection in serial number duplication in ways that “favours your interest in becoming the vice president of Ghana”.
Addison raises an objection. He says the question has been asked and answered already. Panel sustains the objection. Tsikata proceeds.
“Ghost Polling stations”
Tsikata shifts into the claim by the petitioners that there were some non existent polling stations which are separate from the official list of 26,000 polling stations provided by the second respondent. Tsikata mentions 28 but which was reduced to 23.
There is a banter as to the number of ‘ghost’ polling stations. Bawumia says they are now relying on 22 ghost polling stations and not 23 as was stated in their affidavits.
Tsikata asks for clarity on the number of ghost polling stations. Bawumia says they have moved from 28 to 22. He also asks if there has been changes to the allegations of pudding of votes to the first respondent and deduction of votes from the first petitioner.
Bawumia says in respect of pudding they have reduced the list of allegation from three polling stations to one.
Tsikata suggests to the witness “none of those allegations” on ghost polling stations and pudding are true.
Bawumia says those are no longer part of their case. He asks counsel to focus on the case before the court.
Tsikata accuses petitioners of bad faith. He says the petitioners in perpetrating bad faith selected strongholds of the first respondent, leaving those in the stronghold of the first petitioner. He argues further that petitioners continue switching from one irregularity to another which makes defence of the case very difficult.
Addison raises an objection to the use of the word bad faith. He says counsel cannot accuse petitioners of bad faith when he has not provided any evidence, as well as further and better particulars to support his claim and accusation of bad faith. Ruling deferred
Panel has deferred ruling on the objection raised on bad faith. William Atuguba says they have ruled on a similar objection and will want to be consistent. They will therefore have to locate that ruling and be consistent. He adjourns proceedings to Wednesday, 930 am.