Petitioners clear Mahama, EC of fraud charges

The unswerving “catch phrases” of the 2nd petitioner, Dr. Mahamudu Bawumia; “You and I were not there” and “On the face of the Pink Sheet” under cross-examination by the three respondents in the ongoing election petition has inflicted gnawing legal wounds on the petitioners’ case; as both 1st and 3rd respondents in their addresses have latched on the slogan to demonstrate how he was not fit to give evidence on a matter he has no firsthand knowledge of.

The Al-Hajj can confidently report that, Dr. Bawumia’s self extolled slogan, which could best be likened to a transfixing speech that was used by him as an oft-quoted tenet and a defense mechanism under cross-examination at the penultimate stage of the case, has not just sunk the petitioners’ case, it has also provided lethal ammunition to the respondents to ‘gun down’ the petitioners on the charges of “bad faith”.

In consolidating their case of bad faith, the respondents have also pinned the petitioners on Dr. Bawumia’s profound admission contained in the evidence of the 2nd petitioner in the transcript of April 25, 2013 page 19 and 29 that the petitioners were no longer relying on their December 9, 2013 allegations when they met and told the EC boss, Dr. Afari-Gyan, to hold on with the declaration of the results, an allegation that was later contained in paragraph 24 of the petitioners amended petition that the results were being falsified to favor President Mahama.

The respondents noted that, the inability of the petitioners to provide evidence to prove this wild allegation which emboldened functionaries of the petitioners’ partly like Madam Ursula Owusu and Kwadzo Owusu Afriyie to describe President Mahama as a thief, proves that the petitioner's case was a hogwash of assorted allegations intended to discredit the 1st and 2nd respondents.

Paragraph 24 of the petitioners’ second amended petition alleged that analyses of the results declared by the 2nd respondent showed that in some instances, the votes of the 1st petitioner was unlawfully reduced, and those earned by the 1st respondent was padded to procure victory for the latter, this the respondents noted in their addresses were mere allegations that was never proved throughout the trial and later had to be withdrawn by Dr. Bawumia, a submission contained in paragraph 10 of the 2nd respondent’s written address.

The 3rd respondent, on the other hand, submitted in Paragraph 94 of their written address that “It is conduct such as the resort to allegations which they have no evidence to back, the withdrawal of an allegation and then attempting to go back to that allegation, together with the shifting sands of their case, which provide evidence of bad faith on the part of the petitioners…

By recourse also to a gratuitous allegation of criminal conduct against Dr, Afari-Gyan –causing financial loss – and even an attack on the court-appointed referee, Counsel for the petitioners has often exceeded reasonable bounds in the conduct of the case. These behaviors, however, cannot be allowed to distract attention from the weakness of the case of the petitioners.”

Demonstrating how Dr. Bawumia gave himself up as not a credible witness and lacked personal knowledge on the issues he attempted to lead evidence on, the 3rd respondents in paragraph 25 of their written address submitted…

“You and I were not there!” This oft-repeated statement of 2nd petitioner actually undermines the value of his evidence completely since he is admitting his lack of personal knowledge and, therefore, his lack of qualification to be a witness as to the facts in issue. Section 60 (1) of the Evidence Decree states: “A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.”

“As illustrated by his evidence set out below, 2nd petitioner explicitly disavowed any personal knowledge, thus disqualifying himself as a witness of the matters in issue.

“Q. I am suggesting to you that this is clearly an error of picking up and filling part C1 with it.

“A.
A. You and I were not there, we are speaking about the records, and the pink sheet is telling us that all the voters voted without biometric verification.”

(See page 52 of the transcripts of proceedings of 25th April 2013)

The 3rd respondents went on to argue in paragraph 50 of their address that the “You and I were not there” statement by Dr. Bawumia could not be accurate since at all material times, agents of the 2nd petitioner’s party; acting on behalf of the petitioners were at all material times present at the various polling stations and had personal knowledge of what took place.

They submitted that, Dr. Bawumia’s referral to their agents as “mere observers” during examination-in-chief and “exalted observers” under cross-examination were also inaccurate since the role of the agent is constitutionally and statutorily recognized in the sense that their “testimony was in the form of their certification of the results declaration form on the pink sheet”.

Ominously, the “on the face of the pink sheet” mantra which also featured prominently in Dr. Bawumia’s evidence throughout the trial has also jeopardized Nana Akufo-Addo’s dream of becoming President, base on the court case.

Counsel for 3rd respondents in paragraph 84 of their written address and paragraph of the 2nd respondent’s address 11 and 13 indicated that, although Dr. Bawumia stated under examination-in-chief and cross-examination that the petitioners’ case was grounded on “the face of the pink sheet,” he changed direction at a point under crossing to admit that in order to ascertain the full fact of some aspects of the petitioners’ case, there is the need to resort to other primary documents like polling station register.

Counsel for 3rd respondents stated in paragraph 84 that “The refusal of 2nd Petitioner to acknowledge the responsibilities of polling agents is evidently because of his realization of the damage that the certification of the polling agents of the results and the conduct of the elections does to the case of petitioners. However, his admission that in order to determine whether or not certain entries made in C3 were correct, one had to resort to the polling station register, is a crucial admission of the fact that “the face of the pink sheet” does not tell the whole story of an election.”

The 2nd respondent in paragraph 11 and 13 stated “at the trial, the 2nd petitioner who gave evidence on behalf of the petitioners, stated, several occasions, that the evidence in support of the categories of alleged irregularities, etc are on “the face of the pink sheet” i.e. the Statement of Poll and Declaration of Results for the office of the President. That or is in two parts, namely, the ballot accounting part (Form EC21B) and the Polling Station Results (Form EC22B) which also contains a declaration…

In his evidence, the 2nd petitioner urged the court to consider the figures entered by the presiding officers in response to questions on the ballot accounting part thereof as evidence from “primary document” and, for example, maintained that a blank space in the form meant zero (transcript of April 22, 2013 at page 62.”

In hanging the petitioners on Dr. Bawumia’ words just like Nana Akufo-Addo’s proclamation about the sanctity of votes, the respondents backed with several authorities prayed the court not to uphold the reliefs sought by the petitioners.

Second and 3rd respondents cited the case of Re: Election of First President –Appiah v. Attorney-General [1970], the English case of Medhurst v. Lough & Casquet (1901) 17 TLR 210,the Canadian case of Opitz v. Wrzesnewskyj 2012 SCC 55-2012-10-256, the Kenyan Supreme Court Case of Raila Odinga v. Uhuru Kenyatta [2013] and In Halsbury’s Laws of England 4th Edition, Volume 15 (4) at paragraph 670.