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Opinions of Sunday, 9 June 2013

Columnist: Ata, Kofi

Is Dr Afari Gyan Still Smiling?

By Kofi Ata, Cambridge, UK

The key witness for the second respondent (Electoral Commission), Dr Kwadwo Afari Gyan completed his evidence-in-chief last week, was briefly cross examined by lead counsels for the first and third respondents at the presidential petition hearing at the Supreme Court (SC) and lead counsel for the petitioners began his cross examination. This article is a review of the cross examination by the lead counsel for the petitioners.

Prior to dealing with the substantial subject of the article, it is worth noting some matters that cropped up the week. The first is the attempt by the second respondent to conduct its defence under the cloak of surprises. I found the attempt to tender in evidence the records of registered voters at certain polling stations as total disregard to court procedures, evidence disclosure and the earlier order/s of the SC. It would have been unfair, if not miscarriage of justice had the evidence been admitted by the Justices. Na who cause am?

The EC has had the opportunity since the night of December 9, 2012 to prepare their defence and put together any relevant documentary evidence. The ability to prepare the evidence was improved when a copy of the petition was served on the EC. This was further strengthened when further and better particulars were supplied by petitioners as well as when the SC ordered that all evidence must come by sworn affidavits. Unless the EC could prove that throughout this period and to the best of their knowledge such evidence did not exist or was inaccessible. I indicated in previous articles that the failure of EC to submit any documentary evidence in advance posed a risk to the robustness of their defence since whatever it will seek to rely on in court would be objected to by counsel for the petitioners and subject to a decision by the SC and that is exactly what happened in court.

The other issue was the confusion over the order of the cross examination of the witness, that was, whether it should be the petitioners first or the co-respondents. The argument portrayed a picture of Afari Gyan either being too cold to hold and too hot to handle. Perhaps, he was too bitter to taste and too sour to swallow but in reality, he is none. In the strict hierarchical order of the judiciary, the petitioners should have gone first, to be followed by the respondents. However, the basis of the ruling by Justices was reasonable and fair.

Finally, what was the Afari Gyan-Akufo Addo roommate business that lead counsel for the third respondent ended his cross examination on about? Is that really relevant to the matters to be determined by the Justices? My view is that, even if it has any iota of relevance, it could be both ways and no weight should be put on this, especially, since no evidence was given in court to prove that since the two departed university they have maintained any close or ongoing relationship.

Hmm, Afari Gyan! The man who began his evidence-in-chief beautifully, confidently, in total control over what was happening and lectured the court room over election procedures and processes, now claims he has no particular view on or definition for over voting. Really? I could not believe what I heard from him and I am glad I was not alone because one of the Justices was also baffled to hear that from the Chairman of Ghana’s Electoral Commission.

Afari Gyan now claims there is a “Classical definition” of over voting (when the number of total votes is more than the total number of registered voters in that polling station. So what is the “Keynesian definition” of over voting? I guess that would be when the total votes are more than the ballot papers issued at the polling station and or when on the face of the pink sheet, more votes were recorded than the recorded registered voters or the ballot papers issued. I beg to differ with Afari Gyan because if there are Classical and Keynesian definitions of over voting, what Afari Gyan described as Classical is indeed be Keynesian.

I say so because in the days when there were more than hundred percent voter turnout, the interference was almost always done by the state or government in power and since Keynesian Economics is state intervention rather than market forces (Classical Economics), I prefer to define this type over voting as Keynesian. Again, and as Afari Gyan admitted, this type of over voting or election rigging is now uncommon and difficult to perpetrate in Ghana because of the checks and balances in place. What is most likely is manipulation of the actual votes in favour or to the detriment of a candidate as alleged by the petitioners.

It’s surprising that Afari Gyan did not consider definition of over voting in advance before he mounted the witness box because it is one of the key pillars of the petitioners’ case. It has also been a bone of contention between the parties and witnesses throughout the hearing and prior to his entrance into the witness box. One would have expected that even if did not occur to Afari Gyan to have a clear definition, his legal team or lead counsel would have counselled him to come prepared with the EC’s definition.

Afari Gyan is no longer that confident cheeky witness in the box. Though he is still smiling and sarcastic, he looks worried, sometimes confused and being evasive. He is also not explaining himself succinctly as we were made to believe.

For example, when it was put to him that, to avoid the potential for polling stations with few registered voters being supplied with too many ballot papers and the risk of over voting, would it not have been better to have the ballot papers printed in multiples of 5 instead of 25, his answer of “in the wisdom of the EC”, we decided to do them in 25 to avoid returning officers carrying too many ballot papers was unconvincing. Do returning officers carry ballot papers to the polling stations by themselves or done by vehicle? To me, the most persuasive answer was missing. That is cost, because the more booklets printed, the higher the cost. Again, when he was questioned why the EC did not order sufficient Biometric Verification Machines to have a backup for every polling station, his answer was because the EC did not have enough funds to do so. However, when it was put to him that EC had presented a budget and received all what it asked for, so why did the EC not ask for more to cover that, he was silent. Instead of rebutting that, the fact that EC received all what was asked for did not necessarily mean government would have given whatever amount the EC would request.

Afari Gyan was compelled on the face of the pink sheets to admit irregularities, despite the fact that in one case (the pink sheet shown to him in the witness box), there was no over voting. It appears “on the face of the pink sheet”, nothing is guaranteed or can be confirmed. In the particular pink sheet in question, lead counsel for the petitioners had compelled or tricked the witness to admit over voting on the face of the pink sheet. Though, the witness had explained that the over voting on the pink sheet was likely to be a mistake, it took the vigilance of one of the Justices to expose the trick.

According to the information on that pink sheet, there were 12 registered voters in the polling station. However the pink sheet record showed that the polling station was supplied with 250 ballot papers but the zero had been cancelled. In other words, it was supplied with 25 ballot papers but lead counsel insisted that it was 250 and succeeded in convincing the witness to admit this figure in court and therefore proof of over voting. However, one of the Justices noticed that the zero had been faintly crossed out. I believe this made him to cross check and calculate exact the figure from the serial numbers and from that the total number of total ballot issued to the polling station was 25. As a result he made a very crucial intervention to correct the misleading cross examination and wrongful admission by the witness.

It is interesting how lead counsel sought to justify his misleading cross examination by saying that the pink sheet was in the hands of the witness. Did that mean lead counsel was aware that the actual figure was 25 and not 250 but took his chance in case it was not detected? That could be serious and a potential misconduct or unethical behaviour. It appears even over voting may not be provable “on the face of the pink sheets”. It is also interesting that lead counsel for the witness could not fish out this misrepresentation of fact and allowed his witness to be compelled to admit to what was obviously false.

So far, there are commonalities between the three key witnesses in the areas of sarcasm, evasive answers and not having knowledge or awareness of a particular matter. Perhaps, I had expected too much from Dr Afari Gyan but he still has time to persuade his critics.

On the performance of lead counsel, so far he is done better, insisting on yes or no answers from the witness and not allowing the witness to explain himself immediately the yes or no answer is solicited. However, he might have gone into areas that may be irrelevant to the case or having established the basis of the evidence failed to put it to or suggest anything specific to the witness. For example, on the (51) double registration of Ghanaians abroad, no suggestion was put to the witness regarding multiple voting or whether that had any impact on the declared result. Moreover, though lead counsel built a case of interest to those of us in the Diaspora who were denied the right to register and vote by the EC, I do not see the direct relevance to the petitioners’ case and whether that also affected the declared result, though I acknowledge that his main objective was not only to discredit the witness but also the totality of the 2012 presidential election processes.

Overall, it was a better week for the petitioners than the respondents. However any talk of victory and jubilation by the petitioners would too premature. In other words, this case is far from over because we have no idea how the Justices will interpret and apply the relevant Articles of the 1992 Constitution vis-à-vis any alleged or proven irregularities, malpractices and omissions such as over voting, double registration, non signatures of returning officers and party agents on pink sheets, etc. For example, how the Principle of Universal Adult Suffrage in the Preamble; Sovereignty residing in the people in Article 1(1), the Supremacy of the Constitution in Article 1(2), the Right to Vote in Article 42; as well as the relevant Sections of Articles 63, 64 and 65 would be interpreted and applied by the Justices.

One thing that is certain in this case is that, the various documentary evidence are full of duplication, mislabelling, double registration, etc by all parties. Are these suggestive that numeracy is a problem in Ghana or simply mischief?

Kofi Ata, Cambridge, UK