The clarification, which was used to wind up seven months of hearing of the petition, was in respect of re-categorisation of some exhibits submitted to the court, explanation of 'preferred date set', definition of over voting, statutory consequences of electoral irregularities, and dire consequences without going through the Biometric Verification Device (BVD).
Others were on the principle of annulling election results, retroactive application of the law, and invalidation of the results and statutory consequences of electoral irregularity.
Philip Addison, lead counsel for the petitioners, set the ball rolling when Justice William Atuguba, the presiding Judge of the nine-member panel, wanted him to clarify how the petitioners re-categorised some of their exhibits submitted to the court.
He explained that the petitioners began with 11,842 polling stations set out in the further and better particulars, but deleted 704, reducing the number to 10,119 polling stations.
Mr. Addison said the criteria for including the pink sheets had been captured in the further and better particulars in the KPMG report and was used only once in their analysis.
Giving a breakdown of the polling stations used, he indicated that 7,999 unique pink sheets from the court registrar's set, 960 unique polling stations recovered from what the KPMG excluded, 804 pink sheets from the presiding judges' set, 60 remarks recovered from the presiding Judges set that were unclear to KPMG and 566 pink sheets used by the petitioners.
On over-voting, Mr. Addison said a polling station may move from over-voting category to no signature of the presiding officers category and that 83 pink sheets were deleted in the over-voting category.
When Justice Jones Dotse, a member of the panel, asked Mr. Addison what he meant by 'preferred data set', he cited pages in the petitioners' addresses which consisted of a cited pages of duplicate polling station codes.
He said that respondents explained that there were duplicate polling station codes because some were used for special voting while others were used to split large polling stations into A and B.
Justice Atuguba asked James Quarshie- Idun, counsel for the Electoral Commission (EC), about the statutory consequences of electoral irregularities that he alone identified in his address.
He read out portions of his address that related to an authority that a High Court hearing an election petition could uphold an election conducted in accordance to High Court rules but Justice Atuguba said his explanation was not acceptable and needed to be clarified.
But Mr. Quarshie-Idun insisted that a High Court was empowered to dismiss claims of irregularity if certain conditions were not met.
In an intervention, Justice Rose Owusu, a member of the panel said Constitutional Instrument (CI) 75 was the regulation made for presidential election and suggested that that should be the focus of his case.
Justice Atuguba disagreed with Mr. Quarshie-Idun when he said he did not think a C.I. could make modifications to an Act but said if the Act permitted it, then it was possible.
When it was the turn of Tony Lithur, counsel for President John Mahama, Justice Atuguba wanted to find out why he (Lithur) wrote in his address that failure to go through BVD did not go with any dire consequences.
He explained that the BVD was a process of capturing biometric data which involved a person's picture and the purpose was also to identify if a person was eligible and that once the process of registration was done, then his right to vote is activated.
Mr. Lithur added that even if a person's finger print could not be identified and his face could be identified then there is the discretionary power to allow him/her to vote and that finger print verification was not the only form of verification.
Mr. Lithur described as false the petitioners' assertion that since people's finger prints were not verified, then it meant people voted without the BVD.
Asked to explain retroactive application of the law and invalidation of the results which was sub-mitted in his address, Tsatsu Tsikata, counsel for the NDC, contended that Article 49 of the constitution should not in any stretch of imagination lead to the annulment of votes.
He said it was the duty for party agents and presiding officers to sign the pink sheets and if in the discharge of public duty they both fail to per-form their duties it did not mean votes must be annulled.
Mr. Tsikata submitted that there must be a frown on penalizing people retroactively, since presiding officers could not be penalized without a specific law mandating them to sign pink sheets and that the voter who had no role to play in the presiding officers' failure to uphold the law.
During interventions by some members of the bench about Mr. Tsikata's assertion, James Quarshie-Idun rose to draw the court's attention to regulations in C.I. 72 which indicated that the BVD must capture 10 finger prints and photo-graph.
When Mr. Quarshie-Idun drew the court's attention that a cancelled pink sheet found its way into the petitioners address, Justice Dotse questioned why he did not use his turn during the oral address to point out the anormaly, he could not answer but blamed it on the duties of a presiding officer at a polling station. Probing further if there was any entry for the presiding officer to sign before declaration, Mr Quarshie-Idun said they signed only after declaration of the results.
Mr. Tsikata disagreed with Justice Atuguba when he (Atuguba) referred him to an assertion by Mr. Addison that there were no mix up in the petitioner's exhibits and insisted that the confusion had not been addressed. He said in 2120 polling stations. 1029 had the same exhibit numbers but different polling stations, so it was difficult to know which polling station was been referred to and that the petitioners should have clarified the situation during the cross examination stage of hearing.
Judgment has been slated for August 29, 2013. The historic case led to a legal brainstorm for the past seven months. The 11-member legal team of the petitioners is being led by Philip Addison. Others are Ms.Gloria Akuffo, a former deputy Attorney General and Minister for Justice, Stephen Dapaah Addo, Egbert Fabille Jnr, Professor Ken Agyeman Attafah, Nana Asante Bediatuo, Alex Quaynor, Frank Davies, Kweku Asrifi and Godfred Yeboah Dame.
The legal team of President John Mahama, the first respondent is being represented by Tony Lithur and Dr. Basit Aziz Bamda. The EC, the second respondent is made up of James Quarshie-Idun, with assistance from Anthony Dabi, Stanley Amarteifio, Freda Bruce-Appiah and Stepanie Amarteifio.
The third respondent, the NDC, is being represented by Tsatsu Tsikata and Samuel Cudjoe. The petitioners, the presidential candidate for the New Patriotic Party (NPP) for the December 2012 elections, Nana Addo Dankwa Akuffo-Addo, his running mate, Dr. Mahamudu Bawumia and the chairman of the NPP Mr Obetsebi-Lamptey are challenging the results of the 2012 presidential election which the Electora Commision (EC) declared President John Mahama the winner.
They are contending that 'gross and widespread irregularities' took place in 11,916 polling stations. The petitioners are, therefore, calling for annulment of 4,670,504 votes cast in the 11.916 polling stations. But the respondents, President Mahama, the Electoral Commission and the National Democratic Congress(NDC) first, second and third respectively, have denied any wrong doing and are in view that the polls were free, fair and transparent and for that reason, the results were credible and accurate.
The nine-member panel of judges hearing the petition is presided over by Justice William Atuguba. Other members are Justice Julius Ansah, Mrs, Justice Sophia Adinyira, Ms. Justice Rose Owusu, Justice Jones Dotse, Justice Anim Yeboah, Justice Paul Baffoe-Bonnie, Justice N.S Gbadegbe and Mrs. Justice Akoto-Bamfo.
Source: Ghanaian Times
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