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Opinions of Sunday, 28 April 2013

Columnist: Ata, Kofi

Could Dr Bawumia Do Better at the Supreme Court?

By Kofi Ata, Cambridge, UK

The second week of full hearing of the presidential petition ended on Thursday with the petitioners’ key witness still under cross examination by the counsels for the first and second respondents but yet to be cross examined by counsel for the third respondent (NDC). This article is an analysis of my observations of the second week proceedings, though I should point out that I was unable to follow all the proceedings.

Let me use this opportunity to render my sincere apology to readers and Ghanaweb for my carelessness in posting a draft article on Saturday April 20, 2031 entitled, “NPP Duplication of Pink Sheets: Are they Relevant?”. My carelessness lowered the high standards expected of contributors. Due to the many elementary mistakes, I had no option but to recall the article, which Ghanaweb kindly agreed to my request and subsequently removed it, despite some positive comments. I appreciate the understanding of those who read the article and their willingness to forgive my unprofesionalism.

A lot has been said and debated on the performance of all key actors of the week but these observations are predominantly on Dr Mahamdu Bawumia in the witness box. Whilst NPP members and supporters claim the witness has been excellent and unshaken by counsels for the first and second respondents, NDC members and supporters as expected, have the opposite view on the performance of the petitioners’ key witness. Thanks to the live broadcast, the public can make up their own view and not succumb to the propaganda machinery of the two opposing parties. The one thing I can say for certain is that, the witness has been consistent with his approaches in the witness box (for good or bad).

What I meant by consistency is that, instead of answering questions put to him by counsels, the witness chose to explain without answering the questions directly. This approach, from my limited experience and understanding of the judicial system in England does not favour either the witness or the petitioners’ case. In fact, despite occasional directions from the Justices, the witness has not changed this approach. It is also important to note that, the evasive approach does not necessarily enure to the benefit of the respondents either. It is up to the Justices as to what interpretations and judgement value they place on such evasive answers.

The other tactic of the key witness is to argue with counsels from the witness box. This tactic, though may be necessary occasionally, the rate at which the witness is deploying that ammunition is unhelpful to his cause, the case and the court. The witness ought to have been advised by his counsel that his role in the witness box when under cross examination is to answer questions put to him by counsels or members on the bench and to explain his answers as briefly and as succinct as possible. Where there are disagreements and differences of opinions on an issue, it is for him to state his state or explain his version to the court but not to argue with counsels. Finally, the witness ought to have been made aware that though being cross examined by counsel, his answers to questions posed to him by counsels are directed to the Justices and not to counsels and therefore it is not in his best interest to argue continuously with counsels.

Though all cases are won on credible and tested evidence and facts available to the court, in cases where the truth is not obvious to the court, judges may consider the credibility and reliability or otherwise of witnesses, the pleadings, documents and other information available to them throughout the proceedings. In such situations, judges could ask themselves a number of questions such as, which of the witnesses were credible, reliable and honest; could justice be served if his or her evidence is taken as facts and would such benefit of the doubt be in compliance with statutes, etc.

That is when the Justices will discuss in chambers factors such as evasive answers, demeanor including body language of witnesses, especially when in the witness box and decide what value to place on such behaviours. I am talking from experience as a former Employment Tribunal Member and as a trainer of magistrates and judges on culture and law, particularly the application and interpretation of demeanor and body language of black and minority ethnic defendants and witnesses at courts. It is therefore in the best interest of all witnesses to avoid being evasive and unnecessarily argumentative with counsels, especially under cross examination. In fact, being honest and admitting to what is obvious in the witness box even when it does not favour the witness could be positive and beneficial in the end because judges may consider such witnesses as credible and trust worthy.

So far in terms of the witness proving the alleged statutory malpractices, irregularities and omissions, it appears to me that NPP’s case is based on circumstantial evidence. According to the key witness when under cross examination, none of their electoral agents directly or indirectly lodged a complaint of (statutory) malpractices, irregularities and omissions with the Electoral Commission or NPP after the presidential elections. The claim of statutory malpractices, irregularities and omissions is therefore based on their examination and analysis of the electoral records (the pink sheets).

The records contained on the pink sheets are proving contestable and challenging for the witness, counsels for the respondents and the court to assimilate. Whilst the witness has a different interpretation of how over voting should be calculated, counsels for both first and second respondents disagree. It is not evident if the Justices are clear in their minds how exactly over voting could be accurately calculated from the pink sheets. Whist counsels explained the mistakes as administrative errors, the witness’s confidence that NPP’s inference or conclusion from the pink sheets records amount to over voting is still inconclusive. Perhaps, the benefit of the doubt be given to the witness and his insistence that, the analyses contained on the CD ROM proved the alleged statutory malpractices, irregularities and omissions beyond any reasonable doubt. We do not know whether the Justices would allow the witness to do his power point presentation using the CD ROM.

If the above claim by Dr Bawumia is to be accepted, the question he must answer is, what is the point in presenting pinks sheets as evidence of over voting if he cannot explain in simple language to the court how the over voting was derived at from the pink sheets records unless the CD ROM is used? This explanation does not make sense to me and I need someone to assist me with the confusion. If one cannot explain the origins of the information how reliable is final the outcome?

Dr Bawumia has also been consistent throughout the two weeks that, though some pink sheets were duplicated, the analyses on the CD ROM contain no duplication or double counting. This may be accurate but why present evidence to the court when they do not form part of the body of facts and figures being relied upon? The key question for Dr Bawumia, the NPP legal team and the NPP leadership is, were they aware of the pink sheets duplication prior to the hearing of the substantial case? If yes, why were they not removed and if no, why has this not been admitted as genuine mistake or an oversight due to the volume of materials to be produced as exhibits and evidence? Is the lack of admitting the obvious not a question of trust on the part of the petitioners? Could this not give reasonable grounds for suspicion that NPP did not have enough pink sheets from all the 11,000 plus polling stations and so the duplication to make up the numbers, even if it is true that the analyses of the actual total votes from the pink sheets do not contain any double counting?

Moreover, how can the witness claim that if the total pinks sheets from the over 11,000 polling stations is reduced by over 3,000 (as before the court), the total votes to be annulled by the court as being pleaded would remain the same? Is this witness simply in denial of the obvious. If over 4 million votes were collated from pink sheets from over 11,000 polling stations, how on earth will this figure remain the same if the same pink sheets are reduced by those from over 3,000 polling stations (a reduction of over a quarter)? I know Dr Bawumia may be an astute Mathematician or Statistician and that is why Nana Akufo Addo asked him to led the team to collate the evidence for the this petition. However, one does not need to be a Mathematical or Statistical ingenious to understand this simple snowball effect or the converse of it. NPP may still be able to prove that there were over voting with reduced number of pink sheets from the remaining 8,000 plus polling stations and it would be up to the Justices to determine if such over voting amounted to statutory malpractices, irregularities and omissions and if so, did it impact on the declared result by the second respondent.

So far counsel for the first respondent failed to land the damaging punch that would have sent the witness onto the ropes or the floor in cross examination. Though he succeeded in raising doubt about the reliability of evidence, unearthed the pink sheets duplications and alleged forgery of signatures on two pink sheets, they may still be insufficient to prove beyond any reasonable doubt that there were no over voting as being alleged. His assertion that the mistakes on the pink sheets were due to administrative errors, due probably from inexperience electoral officials is also unproven and simply remains guess work, at best. That is also at the mercy of the Justices unless the second respondent’s witness is able to prove beyond reasonable doubt that irrespective of the numerous mistakes on the pink sheets, such mistakes were genuine administrative errors by unqualified, half literate and innumerate electoral officials or avoidable errors that occurred under pressure, and therefore could not constitute over voting, deliberate efforts to hide the statutory malpractices, irregularities and omissions, the benefit of the doubt is in favour of the petitioners.

Over all, counsel for the first respondent did himself a credible job through cross examination despite his consistency in repetitive questioning. No killer or knock out blow came from his left and right jabs and Dr Bawumia equally proved to be a good opponent with his constant dogging and swerving of the blows. This case is still to be won by either of the two opposing parties.

It beggars belief that the EC as the second respondent and the repository of all original electoral materials has up-to-date failed to submit any materials (pink sheets) in evidence as part of affidavit as ordered by the court. The EC had the audacity to even refuse a request by the petitioners for better and further particulars, yet their counsel then springs a surprise when cross examining the petitioners’s key witness. I do not understand why the EC has resorted to the element of surprise in prosecuting their case.

By this approach, the second respondent has a mountain to climb in terms of relying on original materials as evidence to disprove the claims by the petitioners and to buttress its case as a defence because any unexhibited evidence the EC intend to rely on would be at the mercy of the court since counsel for the petitioners could raise objection and the Justices would have to rule on their admissibility or otherwise, especially with regards to cross examining witnesses of the petitioners. However, counsel for the EC may be able to rely on unexhibited evidence when leading his witnesses to give evidence in chief. This is a very risky and suicidal strategy that could backfire on the EC since there is no guarantee that there would be no objection from the petitioners’ counsel or the Justices. In the interest of fair play, it would be in the best interest of the second respondent and all parties involved to immediately apply to the court to amend their affidavit and submit all original materials to be used as evidence before it is too late.

Counsel for the second respondent has also not identified the smoking gun, though, he has also effectively challenged the claim by the petitioners that the second respondent illegally created twenty two polling stations unknown to the petitioners by producing a letter from the petitioners informing the second respondent of the appointment of their electoral agents for the same illegal and unknown polling stations. The question is, if the petitioners claim they were unaware of the existence of the illegal polling stations, how come they appointed polling agents for something that were unknown to them?

A lot depends on the second respondent since it is alleged to have perpetrated the alleged statutory malpractices, irregularities and omissions and therefore there is a lot to play for in the cross examination of the witnesses for the petitioners by counsel for the second respondent and the same is true on the part of the counsel for the petitioners when witness for the second respondent takes the stand in the witness box. The second respondent stands accused by the NPP of stealing the presidential elections from them by the refusal consider their initial complaint. By the refusal or even negligent of the EC to provide evidence of original materials as exhibits in advance as ordered by the court, if such exhibits are ruled as inadmissible and therefore the second is unable to rely on them, the EC stands the similar risk of being accused by the NDC of offering NPP an escape route if the petition is upheld.

In the nutshell, Dr Bawumia managed to survive the second week still standing with some redeemable damage to the evidence as presented but not sustain a major and irrecoverable blow. There is still everything to play for and we will continue to keenly observe proceedings in the coming days and weeks, particularly when Nana Akufo Addo, Dr Afari-Gyan and Mr Asiedu Nketia take the witness box, both giving evidence in chief and under cross examination. I do not envy Dr Bawumia in the witness box but I would definitely not want to be in the shoes of either of these three men who are yet to take their turns.

It would be unfair on my part to conclude this article without an observation on the presiding Justice. To be honest, I have been mesmerised by the humour, jovial and friendly directions and comments from Justice Atugguba. He has truly demystified the aura surrounding the Supreme Court and judges if not the whole judiciary. I wonder if initial fears of bias and conflict of interest against him and objection to his presiding are still relevant with such impeccable public display of leadership and level headedness?

Finally, this was another week of good performances by all actors despite some lapses from the contestants. In my view, the onus is still on the petitioners to prove their claims and so far the odds are not in their favour though there is still a long way to go. The scales of justice could swing either way but the respondents have a slight edge.

To err is human and for that reason, all witnesses should be humble and honest enough to admit what is obvious because their credibility and honesty are at stake as the Justices have the powers to criticise individuals in their written judgement if they find any witness unreliable and untrustworthy. That could cause irreparable damage to their political future. People have committed suicide after being described as unreliable and untrustworthy by judges. A word to the wise is enough.

Kofi Ata, Cambridge, UK