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Live Text, Day 28: Cross-examination of Afari Gyan continues

Counsel for president Mahama, Tony Lithur, will today continue his cross-examination of witness for Electoral Commission (EC) Dr. Afari Gyan in day 28 of the hearing of the Presidential Election Petition.

The panel of judges will prior to the main event, respond to a letter in relation to the counting of the pink sheets.

It was submitted to the panel by Philip Addison, counsel for the petitioners and Tony Lithur, counsel for the first respondent.

Tony Lithur began his cross-examination yesterday after lunch break. It was after controversy erupted between opposing counsel on who should start cross-examination.

The court ruled and directed counsel for President Mahama to begin. He will be followed by counsel for the National Democratic Congress (NDC), Tsatsu Tsikata and finally by Philip Addison, counsel for the petitioners.

Proceedings begin;

Panel of judges have taken their seats on the bench. The Petitioners and Respondents lawyers have also taken their seats and intrduce themselves to the court.

Afari Gyan walks into the dock and he is reminded of his oath.

Lithur is up and begins with his cross-examination. He makes reference to the list and its corresponding pink sheets he provided yesterday and asks witness whether the figures in C1 column of the pink sheets were repeated in C3 column and if it was, what is the interpretation.

Dr Afari Gyan says the figures have been repeated and it could mean nobody verified or everybody verified before voting. Counsel again asks witness if he had reason to look at the pink sheets in question and whether or not he could confirm that people verified or not before voting. Afari Gyan confirms that everybody verified before voting.

Lithur asks witness a question on a supplementary affidavits filed by the second Respondent.

First objection

Philip Addison is up with an early objection. He accuses counsel for the first Respondent as well as the as Second Respondent of engaging in “professional misconduct” and unethical behavior. He says the behaviour has subverted and contravened the ruling of the court which said all affidavits must be filed before hearing started. He describes the supplementary affidavits to which counsel is asking questions on as “fresh evidence” and prays the court to reject the question and comments regarding the supplementary affidavits, especially when the petitioners have closed their case. He says the court must strike out a supplementary affidavits and not to make it a subject of the cross examination.

Lithur says he doesn’t know who has committed any professional misconduct. He says he is entitled to elicit information from the witness even if he has not been examined on it. It is a legitimate question aimed at correcting an anomaly on the face of the pink sheet, he says. He also prays the court to prevent Addison from raising objections during his cross examination and asks the court to apply the same rule it applied when he Addison was raising objections to questions posed by the Second Respondent.

NB. The court ruled that both the first and third Respondents cannot comment on objections raised by the petitioners during the examination and cross-examination of the second Respondents’ witnesses.

Lithur says the same rule must apply to debar Addison from raising objections during his cross examination. He says if there are any objections to be raised they must be raised by the second Respondent counsel and not be the petitioners.

Quarshie-Idun is up pleading the court to accept the supplementary affidavits. He quotes portions of the Procedures Act and argues that a party must not be denied the merits of his case merely because of “blunders” committed during interrogatories. He says unless the court has pronounced judgement it has the power to bend backwards and allow parties to rectify a mistake or oversight. Each party has a right, he says, adding the court must do everything to ensure a fair trial. It is unjust to say that because a blunder has been caused during the interrogatories that blunder must persist even when there is an opportunity to rectify it. He seeks leave of the court to admit the affidavits on the grounds canvassed.

Recess

Court rises briefly for the panel to ponder on the two objections raised; first from Addison and the Lithur’s objection to Addison’s objection to some of his (Lithur) cross examination.

Ruling

The panel rules that the court made it clear that matters of election Election Petition are of utmost importance to Ghanaians. Much energy has gone into pleadings by way of filing further and better particulars. After such ample opportunities for parties to file all their pleadings the court cannot bend over backwards and allow the second respondent to amend this affidavits. The case has entered into the sixth month and the people of Ghana are eagerly waiting for a judgement to know who truly won the election. The court has therefore upheld the objection raised by the petitioners with respect to amendment of the affidavits. On the objection raised by Lithur, the court has also over ruled.

What is your assessment of the 2012 elections, Lithur asks.

Dr Afari Gyan says it was the most transparent of all the elections.

Tony Lithur: What does polling agents sign to?

Dr Afari Gyan, they sign to affirm that everything went on smoothly and the results declared are exactly what was declared.

Tony Lithur: Have you heard anything since the hearing started that will make you change your mind on the declaration made on December 9, 2012?

Absolutely not, Dr Afari Gyan answers.

Tony Lithur brings his cross examination to an end.

Tsatsu Tsikata is up to begin his cross examination.

He asks him about the IPAC meetings and whether he had seen Dr Mahamudu Bawumia attend any of the meetings.

Dr Afari Gyan says the IPAC meetings are crucial part of elections in Ghana. He however denies seeing Dr Bawumia attend any of the IPAC meetings.

Ballots issued to polling stations

Counsel reminds witness about claims by Dr Bawumia that more than 10 per cent of ballot papers were distributed to polling stations and asks witness to comment briefly on it.

Dr Afari Gyan says Dr Bawumia’s claims are a misunderstanding of the process.

Serial Numbers

Tsatsu Tsikata makes reference to the claim of serial numbers by the petitioners and solicits witness’ response.

Dr Afari Gyan reiterates that the serial numbers are not generated by the EC but by the printers of the pink sheets and do not have any implication at all to the elections.

Tsikata shows Exhibit EC 2 to the witness and asks if serial numbers can be identified on the exhibit to which Afari Gyan answers that there is no exhibit number. He adds the serial numbers for now are of no importance at all to the elections and that if the Supreme Court rules that it is of any importance at all then they will find a use to it.

Tsikata asks that if the Supreme Court were to rule that results of elections be cancelled in polling stations which have two pink sheets but with different results what should be the impliction. It could mean that all results be cancelled across board in all the over 26,000 polling stations isn’t it?

Dr Afari Gyan says that may be the implication.

Tsikata goes further to ask that if the Supreme Court were to rule that in cases where the presiding officer failed to sign the pink sheet the results should be cancelled, then it means in all the 26,000 polling stations where there are other cases where presiding officers failed to sign, it means all other similar cases should also be cancelled right?

We will not do selective application of the law, Dr Afari Gyan says.

Compilation of the register

Tsikata says in compiling the register, political parties must be involved in making corrections.

Dr Afari Gyan affirms. He says they rely on the political parties to help clean the register and even when the EC lost its data, it was the political parties who were relied upon to give estimate of the data lost

Tsatsu closes his cross examination by asking witness to tell his level of knowledge of the first petitioner.

Dr Afari Gyan hesitates in the beginning but upon the insistence of Tsikata Afari Gyan says Nana Akufo-Addo was his room mate for three years at the University of Ghana and that he Tsatsu Tsikata was their junior.

Addison is up to begin his cross examination.

Addison says Your results declaration were based on 26,002 polling stations, that is what you told the court, is that right?

Afari Gyan says at the time he was declaring, that was what he thought.

Addison fires on: At the time you were declaring did you see any pink sheet?

Afari Gyan replies: No. In all my declarations in the past i did not see all the pink sheets before declaring.

Addison says at the time you were declaring you did not know that it was based on 26,002 polling stations.

I had no basis of knowing that, Afari Gyan says.

Addison asks what is the importance of biometric verification?

Afari Gyan says to identify the prospective voter before giving him the paper and to prevent multiple voting.

Would you say that the introduction of machines have eliminated cases of impersonation and multiple voting, Addison asks.

Yes to a large extent Afari Gyan answers.

Addison asks if there were cases where people voted without being verified.

Afari Gyan says in some cases not everybody was verified. He cites a scenario where a chief known to all the agents can be allowed to vote without being verified.

What information is given by the BVD. The only information that can be obtained from the BVD is the number, Isn’t it?

Dr Afari Gyan says yes.

What is form 1A, Addison asks? After brief hesitations, Afari Gyan says it is one of the forms used for elections for the applicant to fill out his particulars.

Addison presents a copy of form 1A and asks witness to identify to which he does.

Objection

Quarshie-Idun objects to questions being asked on the form. He says it had not been pleaded in the affidavits.

Addison says the document is not to be tendered but to refresh the memory of the witness.

Was Form 1A printed for the 2012 biometric registration. Yes Afari Gyan answers.

Addison suggests to him that form 1A was the form on which an applicant filled his particulars and then captured on the computer. Afari Gyan agrees again with some hesitation.

Addison continues that the captured information on 1A is printed out as form 1C. My Lord Yes, Afari Gyan answers.

Addison adds that the lower portion of form 1C is torn and given to the voter as his ID card. Is that right?

I am not a registration officer and do not know the little details involved, Afari Gyan exclaims but he finally agrees that is the case.

Philip Addison: Do you know what an SD card is?

Afari Gyan says No

Court releases Afari Gyan temporarily to take care of the auditing of the pink sheet exhibits.

Audit of pink sheets by KPMG

Atuguba says on the consent order for the count, it was agreed finally that the count could be cross checked with the set of exhibits with the presiding judge. He says some dispute has managed to develop with first Respondent raising some issues about the count. He wants the exhibits in the custody of the president of the panel to be added to the count. Atuguba says that even though it was not stated explicitly in the order of the ruling that KPMG will cross check the exhibits with those of the president during its auditing process, it was implicit that where there are doubts KPMG could fall on the exhibits of the President as a controlled check. The court now wants to incorporate that order in the initial ruling and make a clarification that the referee must go ahead in terms of that order.

Tony Lithur accepts the decision of the court but Addison has issues with it.

He is up. He tells the court that the new ruling appears a bit strange, especially when KPMG has concluded the task assigned it and has presented a draft copy to which the parties must peruse and make their observations on Monday. He cites a 21 May ruling in which he says that the application by Lithur for a controlled check was refused by the court. He finds it rather strange that the court will be ruling on the matter now. He will however not push it any further.