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Opinions of Tuesday, 20 August 2013

Columnist: Jackson, Margaret

Written Address Submitted by Tsatsu Tsikata - Part 2

Below is Part 2 of the written address submitted by Mr Tsatsu Tsikata, Counsel for the NDC to the Supreme Court. I guess you had a good time reading the Part 1.

All what the NDC legal team did in this written submission is to set the records straight and also prove that the case before the Supreme Court is nothing more than an academic exercise by Nana Akufo-Addo and Co.

Again, digest the Part 2 and let us know your thoughts. Keep the faith and keep smiling till you get the Final Part!

Yours Truly MJ

41. There is also severe damage to the credibility of the 2nd Petitioner from the above issues relating to the exhibits and the number of polling stations. He insisted, under cross-examination, that 11,842 polling stations were reflected in the exhibits filed by the Petitioners and claimed to have been present when the Commissioner of Oaths was going through the process of stamping the exhibits accompanying his affidavit. “Q. But according to you, you deposed to the affidavit and these exhibits were attached in your presence?

A. That is what I am saying I am surprised, some have been photocopies and I do not know, may be in the process of photocopying and exhibit number may have been deleted from the top but I do not know why they do not have exhibit numbers, they should.

Q. In that case, apart from the top there was also no exhibit number where the commissioner of oath is supposed to identify the exhibit?

A. That is correct my lord.

Q. So you can confirm that this happened in your presence?

A. That is why I am saying I do not know where the photocopying took place. These sheets appear to have been photocopied, they are identical and I do not know whether the photocopy took place from our end or any other end.

Q: You just said when the commissioner for oaths was signing, you were there?

A: Yes I think I said I was there, he was stamping which is essentially what is signature is in terms of putting the exhibit number in the column. I was there when he was signing.” (See pages 5, 6 and 9 of the transcripts of the proceedings of 6th May 2013).

42. The centrality of the pink sheets filed to the case of the Petitioners makes the issue of the actual pink sheets in evidence and the confusion about them quite critical issues in this Petition. If evidence that Petitioners have sworn to, stating they have provided exhibits involving votes at so many polling stations, is exposed as inaccurate from the report of the Referee, and what has in fact been supplied to the Court involves far less polling stations, this is fatal to their case because there is no other evidence available to discharge the evidential burden. G. EXHIBITS OUTSIDE RANGE OF AFFIDAVIT 43. The figure of 8675 polling stations given by the referee has to be reduced by reference to the exhibits that are out of the number ranges referred to in paragraphs 44 to 67 of the affidavit of the 2nd Petitioner. Since, for instance, in paragraph 56 of the affidavit, the exhibits relied on are stated as MB-P, MB-P 1 –P 6822, every exhibit in the P-series listed in the KPMG Report beyond MB-P 6822 must be discounted. Appendix E.4 of the KPMG Report shows that in the P–series alone, there are 339 exhibits out of the range of the relevant paragraph of the affidavit. In respect of other paragraphs also, there are 13 out of range exhibits in the MB-K series as listed in Appendix A.2.8 on pages 81-82 of the KPMG Report. In the MB- H series (Appendix A.2.6 in KPMG Report Volume 1 at pages 47 to 69), there are 12 exhibits outside the range stated in paragraph 49 of the affidavit of 2nd Petitioner. In the exhibits within the 1219 unclear or illegible exhibits that have been identified from their polling station codes, the out of range exhibits number 23 as listed in Appendix 2 attached hereto. These out of range exhibits and the polling stations they refer to cannot be part of the case of the Petitioners. H. EXHIBITS FEATURING POLLING STATIONS NOT IN FURTHER AND BETTER PARTICULARS 44. The Petitioners have sought to put in evidence as attachments to the affidavit of the 2nd Petitioner pink sheets of polling stations not included in the further and better particulars supplied by them pursuant to the order of the Court. A list of these exhibits, numbering 93, is attached hereto as Appendix 3. Not having submitted the polling stations on this list as part of their further and better particulars, the Petitioners cannot use exhibits referring to them in evidence. The point of orders of the Court for the provision of further and better particulars is to ensure that the pleadings of the parties have sufficient particularity to enable the other party to respond to the allegation in question. The Petitioners resisted the request of the Respondents to supply further and better particulars, thus necessitating the application to the Court to order the provision of such particulars. Essentially, the Petitioners were seeking to embark on a process whereby, without the Respondents knowing which polling stations these allegations were in respect of, they would nonetheless have to answer the Petitioners’ allegations. Such blindfolding of the Respondents was not accepted by the Court and Petitioners were ordered to furnish the particulars of the polling stations in respect of which the allegations were being made. 45. In our submission, it is not open to a party to supply further and better particulars and then seek to put in evidence exhibits that go outside those particulars. (see Odgers on Pleading and Practice, 20th Edition at page 157 -“if a party serves particulars, he is bound by them”). We respectfully submit that exhibits with polling stations not disclosed in the further and better particulars are not legally permissible as evidence for the purposes of this Petition. I. USE OF SAME POLLING STATION IN DIFFERENT CATEGORIES OF AFFIDAVIT OF 2nd PETITIONER 46. In paragraph 43 of the affidavit of the 2nd Petitioner, it is stated that “the constitutional and statutory violations, irregularities and malpractices which constitute the basis of this petition have been classified into twenty-four (24) distinct and mutually exclusive categories in which no polling station can belong to more than one category, thereby avoiding double counting.” (Emphasis the Petitioners’). Yet it is clear from the KPMG Report that there are numerous instances of the same polling station being used in different categories. In Appendix E.3 (Volume 5 pages 5 to 191) of the KPMG Report, a summary of polling station codes appearing more than once in the count of exhibits is provided, with the different exhibit numbers. Data captured in this list shows how throughout the exhibits, the same polling station is used in more than one of the categories referred to in the 2nd Petitioner’s affidavit. The objective of avoiding double counting that was expressed in paragraph 43 of the affidavit is, thus, not achieved since the numbers of votes sought to be annulled in each of paragraphs 44 to 67 are derived from the polling stations in all the exhibits referred to in each paragraph. We further illustrate the nature of this problem of exhibits with polling stations used in two or sometimes three categories in Appendix 4 attached hereto. 47. Confronted under cross-examination with examples of these exhibits repeated in different categories, the 2nd Petitioner admitted the repetitions but asserted that the polling station “was used only once in the analysis.” This bare assertion of use only once is decisively contradicted by the evidence in the respective paragraphs of the affidavit where specific numbers of votes are sought to be annulled at a specified number of polling stations in each of the twenty-four categories of the affidavit. There was no indication by the 2nd Petitioner about how the use only once was consistent with the various paragraphs in his own affidavit where votes to be annulled are counted on the basis of the exhibits specified in each paragraph. Having admitted that certain polling stations were used more than once, 2nd Petitioner simply resorts to “used only once in the analysis” as a deflection that exposes his lack of truthfulness. For his claim about “used only once in the analysis” to be credible, he needed to explain, for instance, how a polling station repeated in various categories was only counted in the totals of one particular paragraph only but not in other paragraphs where the same polling station is used. J. EFFECT OF ADMISSIONS OF 2ND PETITIONER CONCERNING EXHIBITS 48. In the course of cross-examination by Counsel for the Respondents, the 2nd Petitioner was compelled to admit many instances in which the allegations of the Petitioners were not borne out by the Exhibits they had filed. Realizing during the cross-examination of Counsel for the 1st Respondent that the admissions he was compelled to make undermined the basis claimed in the Petition, the 2nd Petitioner attempted to repair the damage done by providing a list of 83 polling stations which the Petitioners claimed they had deleted from their updated analysis. Subsequent to the list of 83 polling stations, a list of 704 polling stations which the Petitioners claimed they were no longer relying on was also provided which further undermines the figures in the affidavit of 2nd Petitioner. 49. These admissions by 2nd Petitioner make it impossible to sustain the case put forward in his own affidavit. Furthermore, without substituting new polling stations for those deleted, it is, again, simply impossible to arrive at the same numbers of votes to be annulled as were stated in either the 2nd Amended Petition and the verifying affidavit of 1st Petitioner, or in the affidavit of 2nd Petitioner. Without an amendment to the pleadings, new claims about, for example, numbers of votes to be annulled and new pink sheets with polling station results to support the new numbers cannot be entertained and the case of the Petitioners, as it stands, must simply, fail. The admissions of 2nd Petitioner, under cross-examination, confirmed by the tendering of lists of deleted polling stations, thus decisively disable the Petitioners from discharging the evidential burden in respect of the case they brought to this Court. It must be emphasized that the deletions only occurred after the start of cross-examination and were based on an update that he claimed to have made the night before. K. RESULTS CERTIFICATION BY CANDIDATES’ AGENTS 50. Another most significant set of admissions made by the Petitioners consists of the testimony of polling agents that represented the 1st Petitioner at each of the polling stations throughout the country. Their testimony was in the form of their certification of the results declaration form on the pink sheet. The specific legal significance of this admission of regularity of the election is addressed below. Significantly, it is the results declaration part of the pink sheet that involves not merely the Presiding Officer but also the candidates themselves, acting through their agents. 2nd Petitioner was, indeed, not himself at the various polling stations around the country in respect of which the exhibits were filed. However, agents of the 1st Petitioner (and, by extension, 2nd Petitioner) were there. “You and I were not there” was, therefore, in fact, not an accurate statement. The agents were there and had personal knowledge of what took place at the polling station. They were not “mere observers” as claimed by 2nd Petitioner in examination-in-chief, nor even “exalted observers” as he claimed under cross-examination. Their role is constitutionally and statutorily recognized. 51. Article 49 of the Constitution clearly articulates the constitutional roles of polling agents alongside presiding officers at public elections. “49. (1) At any public election or referendum, voting shall be by secret ballot. (2) Immediately after the close of the poll, the presiding officer shall, in the presence of such of the candidates or their representatives and their polling agents as are present, proceed to count, at that polling station, the ballot papers of that station and record the votes cast in favour of each candidate or question. (3) The presiding officer, the candidates or their representatives and ... the polling agents, if any, shall then sign a declaration stating - (a) the polling station; and (b) the number of votes cast in favour of each candidate or question: and the presiding officer shall, there and then, announce the result of the voting at the polling station before communicating them to the returning officer.” The certification of votes cast, along with the Presiding Officer, is here underlined as an important part of the function of the polling agent. 52. Regulation 19 of C.I. 75 provides for the role of polling agents as follows: “19. (1) A candidate for parliamentary election may appoint one polling agent to attend at each polling station in the constituency for which the candidate is seeking election.

(2) A candidate for presidential election may appoint one polling agent in every polling station nationwide.

(3) An appointment under sub-regulations (1) and (2) is for the purpose of detecting impersonation and multiple voting and certifying that the poll was conducted in accordance with the laws and regulations governing the conduct of elections.”

Regulations 35 and 36 of C.I. 75 also stipulate the role of a candidate’s agent after the poll and these provisions include the swearing in of the counting agent who attends at the counting of votes at the polling station “upon penalty of perjury that the counting agent:

(a) shall abide by the laws and regulations governing the conduct of elections; and will sign the declaration of results following the count of the ballot, or state in writing to the presiding officer the reason for failing to do so.” [Regulation 35(4)]

It is also worth noting that Regulation 36(2)(a) indicates that one aspect of the ballot accounting part of the pink sheet that has to do with “the total number of persons entitled to vote at that polling station” is included among the matters that the declaration signed by the Presiding Officer, as well as the counting agent, is related to. This underlines the important role of the counting agents in ensuring that those who vote at that polling station do not exceed that total.

53. It is worth emphasizing that what is certified by the candidate’s agents includes “certifying that the poll was conducted in accordance with the laws and regulations governing the conduct of the elections.” In almost all of the exhibits filed as attachments to the affidavit of the 2nd Petitioner, the agents of the 1st Petitioner were present and their signatures on the pink sheets on which Petitioners rely constitute admissions of regularity of the election results. On the face of their own documentary evidence, therefore, the Petitioners are confronted starkly by these admissions made on their behalf at the polling stations. There is also evidence that these admissions were repeated at the constituency collation centres where these results were entered on the collation sheets and signed off again by representatives of candidates. 54. In that regard, Dr. Afari-Gyan testified as follows: “That is where the person is located and the returning officer is the person who is going to put together on what we call the collation form, all the results from the various polling stations in the constituency and at the collation center, they have the agents of the candidates. And ideally, those agents will have the results of the various polling stations in their possession.” (page 67 of the transcripts of the proceedings of 30th May 2013). He continued: “ the party representatives see the results before I see the results and that is why I keep saying all the time that even though I am the returning officer for the Presidential Election am the last person to see the results. The results have been seen at the polling stations, they have been seen at the collation center and they have been seen at the Regional center before being sent to me and there are party agents who sign the results before I see them, so this is the process they will sign unto the results that arrive in the room before they send them to me for my signature as the returning officer of the election.” (see pages 75 and 76 of the transcripts of proceedings of 30th May 2013). In effect, the agents of the 1st Petitioner signed off the results at the polling stations, collation centres, the regional headquarters and headquarters of the 2nd Respondent. 55. The admissions of the 1st Petitioner’s agents at the polling stations cannot be lightly set aside, as 2nd Petitioner sought to do under cross-examination, by depicting these agents as “mere observers”, nor by claiming, falsely, that the signature of the agent was to affirm the irregularities alleged on the pink sheet and related to the ballot accounting part as well as the results. “Q. And you are able to confirm are you not that the polling agent of the NPP signed the pink sheet that you have gone through? A: Yes the pink sheet showed that the NPP agent signed. Q: The NPP agent signed without any indication of a protest in respect of those results. Is that not correct? A: No he signed to affirm the irregularities on the face of the pink sheet.” (Cross-examination of Dr. Mahamudu Bawumia by Counsel for 3rd Respondent, see page 51 of the transcripts of proceedings of 2nd May 2013). The signatures of the polling agents rather certify the regularity of the process, as Regulation 19(3) of C.I. 75 makes clear. They also have evidential value, with all the hallmarks of contemporaneous authenticity and truthfulness unaffected by memory lapse or ex post facto contrivance. The nationwide consistency of these admissions by the agents of 1st Petitioner is also striking and contradicts the claims of irregularities, violations etc that Petitioners sought to derive from the pink sheets. 56. These admissions, documented in their own exhibits, mean that far from discharging their evidential burden, the Petitioners rather provide valuable testimony in support of the case of the Respondents. Going “on the face of the pink sheet”, these admissions of the agents of the 1st Petitioner stand uncontested. Nor have the Petitioners attempted to have any of their agents who certified the results provide testimony that can justify overriding the legal effect of their admissions. Further, the fact that, on the other hand, there is also before this Court affidavit evidence from agents of the 1st Respondent at various polling stations who confirm the absence of any irregularities, violations etc in the conduct of the election, evidence consistent with their own certification at the polling station as well as the certification of the agents of the 1st Petitioner, makes the testimony of 2nd Petitioner (who has no personal knowledge of the matters in issue, according to his own confession) on the pink sheet a wholly unreliable basis for annulling the votes of citizens of Ghana who exercised their constitutional right to vote in the 2012 Presidential elections. 57. The significance of the certifications of polling agents of candidates as admissions will be taken up further in the context of submissions below on specific heads of irregularities, violations, etc alleged by the Petitioners. L. SPECIFIC HEADS OF IRREGULARITY, VIOLATIONS ETC ALLEGED BY PETITIONERS 58. Without prejudice to our submissions above regarding the inability of the Petitioners to discharge the evidential burden on them in this case, we proceed to consider the various heads of irregularity, violations etc that Petitioners allege. We start with the allegations in respect of duplicate serial numbers since these relate to the largest number by far of votes being sought to be annulled. L. (i) Duplicate Serial Number 59. The evidence before this Court from Dr. Afari-Gyan was that the number at the top right hand corner on the pink sheets, which Petitioners call a serial number, was not a number generated by the Electoral Commission but rather a number put in by the printers. He further testified that this number has no significance in the identification of polling stations. According to the witness, polling stations are identified by the polling station name and a code which relates to the region and district in which the polling station is located. There is no recourse to the serial number for the purposes of giving a unique identity to the particular polling station and its pink sheet, as claimed by 2nd Petitioner. Dr. Afari-Gyan indicated that pink sheets were randomly distributed to polling stations. 60. The evidence of Mr. Johnson Asiedu Nketia, General Secretary of the 3rd Respondent, who testified on behalf of 1st and 3rd Respondents, was also to similar effect. According to him, while ballot papers have serial numbers that are important identifying marks tracked by representatives of the parties who are involved in the surveillance of the printing and distribution of the ballot papers right down to the polling station level, this is not the case with pink sheets the printing of which is not even monitored by the parties. He also insisted that it is the name and code of the polling station that identifies it. He could not even tell whether the number alleged to be a serial number was really a serial number since he could not tell what series these numbers were in. The witness also pointed out that pink sheets for the different polling stations have different results, different Presiding Officers and different polling agents certifying the results on behalf of their respective candidates. 61. The testimony of the witnesses of the Respondents on the difference between a ballot paper and a pink sheet is borne out by the provision in Regulation 26 (2) of C.I.75 that:

“Each ballot paper shall ….

(c) have a number printed on it; and

(d) have attached to it a counterfoil with the same number printed on the ballot paper.”

There is no equivalent provision, either in statute or in the practice of elections in Ghana, in respect of pink sheets.

62. The claims of the Petitioners about serial numbers being security features on pink sheets were not substantiated in any way either in the affidavit of the 2nd Petitioner or in his oral testimony. They were also not originally a significant part of the case of the Petitioners as, according to the evidence of 2nd Petitioner, it was when they resorted to electronic labelling of their exhibits that this claim gained more significance. This was, unwittingly, an admission that before and during the elections and even soon after, little attention was paid even by the Petitioners themselves to serial numbers as having significance for the conduct of the elections. Essentially, the escalation of this claim to such significance was computer-generated long after the elections were over! Petitioners now latched on to the serial number issue to find the largest number of votes to be annulled. Apart from baldly alleging that the use of duplicate serial numbers gave opportunity for malpractice, Petitioners have not provided any evidence as to how the serial number on a pink sheet affected the actual recording of results at any polling station, nor of how the alleged opportunity for malpractice actually got exploited so as to result in any wrong record on the pink sheet of the results at a polling station. 63. Though being the basis for seeking the annulment of the largest number of votes, the 2nd Petitioner testified that there was neither Constitutional nor statutory ground for the claim about this alleged irregularity. “Q: Now by the way this serial numbers thing you are talking about is it covered by any law or constitutional provision to your knowledge? A: That is why we say it is an irregularity. Am not aware that is covered by a law or constitution, but you expect that if I take two cheques to a bank and there are duplicates the same serial number you can be sure they will be dishonored. Q: I am suggesting to you that this idea of serial numbers was conjured by you by the petitioners in order to beef up the non-existent case? A: Definitely not, the case of highly irregular use of duplicate serial numbers is a serious one in my opinion.” (See pages 27 and 28 of the transcripts of proceedings of 24th April 2013). Indeed, there is no basis whatsoever for a number printed on the pink sheet which was not generated by the Electoral Commission and which was not known to the political parties as a distinguishing mark of polling stations, to be used retroactively to disenfranchise millions of innocent voters. L. (ii) Over-voting 64. The case of the Petitioners in respect of over-voting is that whenever the ballot accounting portion of the pink sheet shows that the figure in B1, representing the number of registered voters at the polling station, or the figure in C1, representing the number of ballots issued at the polling station, is exceeded by the total number of votes in the ballot box, the votes of all those who voted in that polling station must be annulled. This includes, according to the evidence of 2nd Petitioner, where A1 or B1 has a blank since “blank means zero.” “Q: Exhibit MBC218 EP Primary Church, my lords, the last name is not clear and the polling station code is H121702. Now I am suggesting to you Doc. that there is no over voting on that exhibit. A: My lords, there is clearly over voting in this exhibit. Q: By what number by your calculation? A: This is over voting by 1. Q: I am suggesting to you that to that number you are finding C1, if you added C2 you will not have over voting. C2 represents proxy voting. A: You are right counsel, C2 represents proxy voting and it should be added to C1 in determining over voting. As we speak, I am still not sure if this is still part of our evidence but that you are right. Q: Exhibit MB-C20 and the polling station’s name is St. Peter’s RC Primary Lower and the polling station’s code is F180301. Now I am suggesting to you that on that sheet there is no basis.., well, there are no numbers indicated in D column, are there? A: No, or C for that matter. Q: So there really is no basis for saying there is over voting, isn’t it. A: My lords there is every basis for saying there is over voting, C is blank, D is also blank in this case, even though something is put there in the bottom of section B of the results section, so when you are hiding over voting leaving C blank is the best way to do it and so we are classifying it as over voting. Q: Exhibit MBC90 and the name is Hope Prep. School, and the polling station code is E041501. I will treat the next three as one. The next one is Exhibit MBC7 and the polling station name Baba J.J Base, Aboabo No. 2 and the polling station code is F210507A. The next one is Exhibit MBC114 and the name is Air Force Experi. Sch. 1C and the polling station code is C111011C, and the last one is MBC, is quite unclear, I would have said is 110 but half of it is gone and the name is Pan African Writers Association and the polling station code is C061306. Doc, in all of these 4 stations if you added the proxy vote you will not have over voting by your definition. A: Agreed, my lords. Q: My lords, the next one is Exhibit MBC147, the name is Presby Primary School B and the polling station code is C131408. Doc, there is no over voting on this exhibit, is there? A: Yes there is, because the voters’ register of the polling station B1 is blank and that is another classic way of hiding over voting because you cannot check the difference between the ballots in the ballot box and the voters’ register. Q: But the total votes in the ballot box have been recorded also in C1, is that correct? A: My lords that is correct but we have two definitions of over voting. Q: The next exhibit is Exhibit MBC202 and the polling station is Pagazaa Islamic Primary School and the polling code is H190101. Now I am suggesting to you Doc, that under D which represents rejected votes, there is no data whatsoever. Is that correct? A: Yes my lords, D has been left empty but has been filled in as 2 so the total votes in the ballot box is 251. The total ballot issued to voters is 249 and so there is over voting my lords. Q: You have seen an instance in which total under D6 is not supported by any data in D. You have seen one. A: Well if there is a conflict… Q: Have you seen one then you can explain. You have seen one at least D6 does not reflect anything from D1 to D5, you have seen one? A: Yes, this is what I am saying that there is no entry from D1 to D5 and therefore no entry for D6 but the presiding officer has entered 2 as the total number of rejected ballots. This makes the number of votes in the ballot box more than what has been issued. And so it is clearly over voting. Q: I am suggesting to you that what you say is over voting is clearly an error. A: I am saying that you are wrong.” (See pages 12 to 15 of transcripts of the proceedings of 24th April 2013) “Q. You mentioned that anytime one saw a blank space in the collation form and on the pink sheet, the declaration form that meant zero? A. In the contest of over voting, when you look at B1 and C1 and what I said my lords if you are trying to hide over voting. The easiest way to do it is to leave B1 blank or C1 blank and so if it is blank there is no basis for accounting for those ballots. That is why we have classified them as over voting. ATUGUBA: What was your question? QUASHIE-IDUN I am asking him whether anytime he sees a blank space on a pink sheet he is saying that is equivalent to zero. ATUGUBA: I think this was asked by the 1st Respondent. He said yes, he regards blank space as zero. I remember this. WITNESS: In the context of over voting. Q. I am suggesting to you that the blank space means an omission had been made in completing the form. A clerical error has been made in completing the form? A. An omission which has resulted in over voting.” (See page 80 of the transcripts of proceedings of 25th April 2013). 65. In paragraph 44 of the affidavit of 2nd Petitioner, he claims that “there were 320 polling stations where exclusive instances of the constitutional and statutory violation of over-voting occurred, and can be found on the same pink sheets.” As earlier pointed out, based on the opening sentence of paragraph 37 of the affidavit of the 2nd Petitioner, and according to his evidence, under cross-examination by Counsel for the 3rd Respondent, that figure of 320 should have been 310, even though the exhibits listed in Appendix A.2.1 of the KPMG Report (as also pointed out earlier) are 318. Some of those exhibits would, therefore, be out of the range of the affidavit of 2nd Petitioner. 2nd Petitioner indicates in paragraph 44 of his affidavit that he is attaching to his affidavit exhibits marked Exhibits MB-C, MB-C-1 to MB-C-319, being photocopies of the pink sheets of the polling stations in question. He also gives 130,136 as the number of votes that he alleges to be “completely vitiated”, a total that differs from the total of 128,262 given in the 2nd Amended Petition and in the verifying affidavit of 1st Petitioner for this category. 66. As earlier noted, 2nd Petitioner tendered two lists of polling stations to be deleted from the claims of the Petitioners. The first (Exhibit C, C1 TO C11), of 83 polling stations, included 44 polling stations in this MB-C category. Checking the list against exhibits listed in the KPMG Report (Appendix A.2.1 at page 11) reveals that the exhibit numbers provided in this list of deleted polling stations are different from exhibit numbers in the KPMG Report as shown in Appendix 5. There are some exhibits that are not in the KPMG Report, once more illustrating inconsistencies in different sets of exhibits. However, most of the polling stations are recorded in the KPMG Report, and their deletion, as indicated by 2nd Petitioner, reduces the number of polling stations on which the Petitioners still rely, with a consequent impact on the number of votes that could be annulled if the irregularities, violations etc were established. 67. The second list of deleted polling stations (Exhibit D.) did not even have Exhibit numbers attached to the polling stations. Nor were the polling stations to be deleted made referable to the various paragraphs of the affidavit of 2nd Petitioner. In order to have clarity on how these deletions of polling stations by 2nd Petitioner impact the specific categories in the affidavit, we attach herewith as Appendix 6 a list of polling stations in the list of 704 with the exhibit numbers captured in the KPMG Report. Forty-eight more polling stations in the C series are included in this list which also includes deletions in the D to K categories (paragraphs 45 to 51 of affidavit of 2nd Petitioner)-also featuring over-voting allegations alongside other alleged irregularities violations etc. The deletions of all these polling stations mean that the numbers of votes to be annulled in these categories cannot be the same as in either the Petition or the affidavit of 2nd Petitioner. 68. Article 42 of the Constitution, to which 2nd Petitioner refers in paragraph 23 (i) of his affidavit as one of the two bases for the proposed vote annulment for over-voting, states as follows: “42. The right to vote Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is entitled to be registered as a voter for the purposes of public elections and referenda.” Regulation 24(1) of C.I. 75, which is the other legal provision on which 2nd Petitioner relies, also provides as follows: “A voter shall not cast more than one vote when a poll is taken.” It is absolutely clear, therefore, that an allegation of a voter casting more than one vote is of the essence of what Petitioners are seeking to rely on here. In paragraph 20 Ground 2 (1)(a) of the 2nd Amended Petition, over-voting is claimed to have occurred “in flagrant breach of the fundamental constitutional principle of universal adult suffrage, to wit, one man, one vote.” Yet, significantly, nowhere in the Petition or in the affidavit of the 2nd Petitioner is it alleged that any voter voted more than once, thus infringing the one man, one vote principle. In paragraph 28 of his affidavit, 2nd Petitioner states that prior to the 2012 elections the Electoral Commission and its Chairman “emphasized to the general public that any polling station where over-voting occurred would have its results annulled.” He proceeds to name two polling stations where he alleges results were annulled because of over-voting. 69. In the 2nd Amended Answer of the 2nd Respondent, the Electoral Commission, the claim of over-voting is denied (paragraph 18) and it is also stated that: “…there was not one single instance where the total votes cast exceeded the number of voters on the register of the polling station.” In the affidavit of Mr. Asiedu Nketia for and on behalf of the 1st and 3rd Respondents, at paragraph 15A, it is stated that: “(i) in respect of all the pink sheets exhibited on overvoting, in no instance are the Petitioners alleging that the valid votes cast exceed number of registered voters at the polling station. (ii) What the Petitioners are alleging to be instances of overvoting are in reality patent clerical, and sometimes, arithmetic errors in recording, which have no material effect on the actual votes publicly cast, sorted, counted and recorded. (iii) A number of the pink sheets do not support in any manner the allegation of overvoting.” 70. Under cross examination, 2nd Petitioner, on page 23 of proceedings of the 7th day of May, 2013, responded to a question as follows:- Q: Is there any evidence on the face of the pink sheet of any person who attempted to vote more than once

A: No we have not seen specific report about any person who voted more than once, we only have over voting.

Further on, at page 24:

Q: Was there any evidence of misconduct provided to you by any of your polling agents at that polling station.

A: The only evidence we have we brought to court is the over voting on the face of the pink sheet.

Q: In that polling station was there any evidence that somebody whose name was not on the register had come and been issued a ballot paper. Is there any.

A: We don’t see any information provided on the pink sheet, we are only going by the information that is on the pink sheet and it is information which leads to the conclusion of over voting.

Q: Was there any evidence that somebody whose name was not on the register was issued with a ballot paper to vote A: There is no evidence specifically on any pink sheet, you will not see the question that is to be answered all we know is that there were 10 ballots issued to this polling station and you have 470 votes in the ballot box.

Q: To your knowledge there was no irregularity form or complaint made at that polling station

Page 25

A; Not to my knowledge

At page 26

Q: And you not aware of any irregularity form or complaint form that filed in by your polling agent at that polling station. A: No Q: I just suggest to you that the number 2 was obviously entered in error.

A: You and I were not there, the evidence is on the face of the pink which is the primary record of the election.

On page 29

Q: These results as declared were based on counting that took place in full public view.

A: They were.

Q: And they were based on all those present observing how votes were taken out of the ballot box and put in bunches against each candidate. Were they not.

A: Yes they were.

Q: And your supporters, your polling agents were present .

A: Largely so.

Q: And after the votes had been put in the different categories, they were physically counted in full view of the public, were they not.

A: Supposedly so.

On page 30

Q: And not only was counting done in full view of everybody, but when the record of the final results was entered, your polling agents signed that record.

A: Our polling agents signed to attest every piece of information on this pink sheet.

Q: I am suggesting to you that in the face of this obvious situation, your current allegation of over voting are clearly unwarranted.

A: My lords, what is obvious on the face of the pink sheet is a clear case of over voting.

71. Petitioner fails to appreciate that in the absence of any person being even alleged to have voted twice or illegally, or any person having been identified as having made a complaint of over-voting, whether formally or informally, merely invoking entries on the administrative portion of pink sheets which have been shown to contain errors cannot meet the burden of proof on the Petitioners. His testimony continues to dwell exclusively on these administrative entries. Page 35 “Q: You also have number 51 A: Yes my lords. Number 51 C1 is blank as we saw for some of the other. This is D/A Primary School, Kankye-Akura. The exhibit number is MB-H 223, the polling station code is D242106.

Q: And according to you the blank means zero.

A: In the contest of over voting and ballot accounting, yes. It serves as a good way to hide over voting.

Page 36

Q: There is no evidence of any protest on the pink sheet.

A: No, there is no evidence of any protest on the pink sheet.

Q: And to your knowledge, there is no complaint forms signed.

A: I am not aware of that.

Q: And those votes were tallied and declared in the manner indicated on that pink sheet.

A: Supposedly, I was not there. But this is what the pink sheet indicated that there was no record for C1.

Q: What was the record on the pink sheet for the results.


Q: And those are the votes that you are seeking to have annulled in this court.

A: Those are the votes that we are seeking to be annulled on the basis of over voting. So there is an illegality.