Counsel for Petitioners Philip Addison is set to continue his cross examination of Dr Afari Gyan, star witness for the second Respondents in the ongoing Presidential Election Petition.
The cross examination which began yesterday had to be halted for the President of the Panel Justice William Atuguba to give new directions on how the audit of the pink sheets exhibits by KPMG will be conducted.
The continued cross-examination of Dr Afari Gyan is expected to be anything but friendly.
The Panel of judges have taken their seats on the bench. The lawyers introduce their team to the bench as Dr Kwadwo Afari Gyan walks into the dock to be cross-examined by Philip Addison. He is reminded of his oath.
Philip Addison is up. He asks the witness that if a chief is allowed to vote without being verified, as he explained yesterday where will it be recorded.
Dr Afari Gyan says it will be recorded to be among the people who have voted.
Addison asks if there is a place on the pink sheet where that information will be recorded. He hands him a pink sheet exhibit to tell the court exactly where that information will be recorded
Dr Afari Gyan takes it and says C1 will be the place where that information will be recorded.
Addison asks him what C1 says?
Dr Afari Gyan answers: what is the number of ballot issued to voters on the voters Register?
Addison suggests to witness that if a chief is not verified by the machine before voting that information will be entered in C3.
Dr Afari Gyan says No.
Addison asks witness to read what is the instruction in C3 and he says voters who were identified but not with the verification machine.
Addison says Omanhene was not verified by the BVD and so the information should be recorded in C3.
Afari Gyan says no. Addison moves on to daily prints and asks witness if it was the case that political parties were provided with daily print outs of registered voters.
Afari Gyan says to the extent possible daily print outs were issued. Addison wants him to be clear on that. He says well if the machines develop faults at some point, it meant the print out for the day could not be given.
Addison pushes further by asking if it was then the case that print outs were not given daily to the parties. Afari Gyan says to the extent possible. Addison pushes further for clear answers.
Addison asks if the EC itself has daily print outs. Afari Gyan says if nothing had gone wrong with the machine they will have it. Addison probes further
Justice Atuguba intervenes. He accuses counsel of oppressing the witness. He says the bench has a duty to protect the witness from unfair question and they will not abandon that duty.
Addison says he does not doubt the power and duty of the bench. He continues by asking if the witness knows the details on the daily print outs. Afari Gyan says it includes names sexes and biodate of the voter.
Addison asks if it included the pictures of the voters, Afari Gyan says it will not include it.
Addison says after the registration ended the EC compiled the provisional register right? Yes my Lord Afari Gyan answers.
Addison says the EC did not provide the NPP with a provisional copy of the register. Dr Afari Gyan says: I don’t know if they got.
Addison suggests to the witness that the NPP was not given a provisional register.
Afari Gyan says yes but adds no party was given the provisional register.
Addison asks if the provisional register was exhibited. Afari Gyan says yes.
For how long was it exhibit? For ten days, Afari Gyan answers.
Addison asks what the reason could be for exhibiting the voters register. Afari Gyan says it was an opportunity for the EC to check if the correct data had been collected. It was also for people to object names that was in the register but who were not supposed to be.
Addison asks if as EC chair, he new the reason for which the provisional register was supposed to be given to the parties. Afari Gyan says among other things says the parties were to make an input in clearing multiple registrations and help the commission to come out with the proper register.
Loss of data
Addison makes reference to the evidence by the witness to the effect that the EC lost some data during its compilation of the register. He asks witness if this anomaly was rectified before the voters register was exhibited.
Afari Gyan says it was during the exhibition that they realised that they had lost their data.
“So at the time you put out the provisional register did you know exactly the number of people who did not appear on the provisional register even though registered,” Addison asks. “I didn’t,” Afari Gyan answers.
Addison asks if the people whose name did not appear in the provisional register show up during exhibition. Afari Gyan says no.
Addison asks what was done next. Afari Gyan says the EC decided that it was through no fault of theirs that their names did not appear in the register so the EC had to take steps to bring them back into the register. He confirms a special registration exercise was done to bring them back into the register. He says an estimated 11,000 people were registered as a result of these anomaly.
Addison says the EC still thought there were more people to register even after registering the 11,000 people. Afari Gyan affirms.
Addison asks if that was the reason for which C3 was introduced onto the pink sheet. Afari Gyan confirms.
What do you mean by loss of data, Addison asks. Afari Gyan says the information could not be found in the computer.
Addison asks how that is possible if the information was stored on a pen drive. EC chair maintains that was happened. The names could not be found in the computer.
Addison asks how many names were missing. Afari Gyan says he cannot say off hand what the number is.
Addison says the EC had forms 1C and 1A and could easily have checked the number of people who were lost as a result of the loss of data. Afari Gyan confirms.
Addison asks, so how many people were missing per the documents on forms 1C and 1A. Afari Gyan says he cannot tell.
Addison fires saying, you proceeded to create a portion of C3 on the ballot without ascertaining the number of people missing in the voters register.
Afari Gyan says yes.
Addison suggests to Afari Gyan that the so-called instructions to the presiding officers not to fill the C3 column of the pink sheet or carry form 1A to the polling stations was only an after thought because the EC had neither pleaded it in their answer to the petition nor in their affidavits.
Addison hands the EC training manual to the EC chair. He asks him to open Page 11. The page lists all voting materials needed at the polling station. Addison says there is no form 1C. Afari Gyan says Yes and that means that form 1C were not supposed to go to the polling stations.
Addison says if there is no form 1C in the list of voting materials how is it the case that presiding officers will be instructed during training that form 1C should not be sent to the polling stations. Dr Afari Gyan says it is precisely because the form 1C will not be used
Addison again asks him to open page 51 of the manual. He obliges. Page 51 talks about Statement of poll for the president of Ghana. He says C3 on page 51 differs from the one on the pink sheet[ the pink sheet is also called the statement of poll]. Addison asks what C3 on page 51 of the document relates to? Afari Gyan says there is no C3 in there.
Addison says that is precisely the point. The EC could not have trained its officials on documents that did not exist in its manual.
Addison asks witness if he is aware that entries were made all over the country in C3 on voting day. He says yes but the entries were made in error.
Addison suggests forcefully that no instruction was given to the presiding officers that no entries should be made in C3. Afari Gyan disagrees.
One of the judge intervenes. He finds it curious that in the manual that there is not mention of C3 at some point, yet in another page of the manual it instructs officers to add C1, C2, C3 and C4 to get C6.
Afari Gyan says there was an error in printing.
Addison asks if the numbers that were put in C3 were generated from the elections and if so where on the pink sheet was it supposed to be?
Afari Gyan says it will be difficult to tell where it should have been.
Printing of Pink sheets
When was the pink sheets printed, Addison asks. Afari Gyan says he cannot tell the exact date but hints it could after October 20, 2012.
Addison asks when C1 75 was gazzeted. Afari Gyan says he cannot tell the exact date. Addison provides the date as 14 August 2012 and came into in being on September 2012. He hands Afari Gyan a document that spells out the new law and the date on which it was gazzeted.
Addison asks if these regulations were passed at the instance of the Commission. Yes My lord, Afari Gyan answers
At the time of passing the law the implication was that every body should be verified biometrically is that correct, Addison asks, Yes My lord Afari Gyan responds.
CI 75 is the law that introduced the use of the biometric verification process in the elections.
Addison then suggests to the witness that it could not have been the case that EC had no idea what the law was about and therefore decided to flout it by instructing presiding officers not carry the documents along to the polling stations.
The EC in its affidavits said the voters register was 14,310,680 million right, Addison asks. Afari Gyan confirms.
But Asiedu Nketia gave a different figure of 14,031,793, Addison asserts. He says in the EC’s amended answer the figure given is 14,310,793.
Gyan says if that was the answer given by the EC in affidavits it will be in error.
Addison asks if he saw the EC’s affidavits at all before coming to court. He says he did not prepare the affidavits.
Addison says the EC gave a figure of 13,917,366 as the figure on provisional register. Afari Gyan says yes if that was what was given.
Addison continues saying after foreign registrations the number shot up from 13,917,366 to the 14,158,890 million a difference of 241,544, is that right. Afari Gyan hesitates. Addison then hands him the EC’s own pleadings and ask the witness to read. Afari Gyan reads confirming the figures.
Addison says when the EC was asked to supply information on data of voters who constituted the difference of 241,544 the EC provided a little over 2,000 names. Afari Gyan says only 705 people were registered in the missions.
Addison probes further saying 51 names were repeated in the list of foreign voters supplied to the petitioners. Afari Gyan retorts, saying only 15 names were repeated.
Addison tries to take witness through the list of 51 repeated names. Those people had the same names; same sexes, same ages, same locations but different voter IDs.
Afari Gyan confirms the names were repeated and that one person had two different voter IDs.
There are 51 people with double registrations, Addison fires. If you say so, Afari Gyan answered.
Court takes a short break to allow for the witness to sort out the entire lists of 51 names of double registrations.
Court resumes at 1:45pm
Caution to partisan lawyers and reporters
One judge, warns Amaliba, a member of the NDC legal team and political commentators not to misrepresent the facts in the public and media. Tsatsu Tsikata also comments on the matter and accuses other lawyers on TV for misrepresenting the facts.
Atuguba says legal representation is paramount in a democracy. He advises members to keep it as sacrosanct as possible. Atuguba says the importance of the profession is so paramount and must be kept as such.
Afari Gyan is reminded of his oath as cross-examination continues.
Addison asks witness if he has checked the list
He says he has two observations. The first of which he says is that the first name are two different people. In fact they are twins to one of the people in foreign missions. He admits though that the rest have been duplicated. The second is that the duplicates each have only one polling station and could only vote once.
The voter IDs are different which means each one of them could vote, is that right? No says Afari Gyan because once they belong to the same polling stations they could not vote.
Addison says one could have voted without being verified as he Afari Gyan has said that popular people could vote without being verified.
Afari Gyan says only popular people could vote without being verified.
Addison asks who in the EC undertook the registration of voters abroad, permanent or temporary officials. Permanent, Afari Gyan says.
Addison asks how possible is for permanent officials of the EC to go abroad to register 705 people at the same location and yet duplicate 50 people.
Addison says from the voters registered abroad, voting was done by proxy isn’t it? Afari Gyan says he cannot tell.
Addison probes further by asking if its possible for two people to be allowed to vote by proxy for these peoples whose names have been duplicated in the foreign registration. Afari Gyan says it is possible if the two people have pictures on their ID cards.
By what authority did the EC register the people, Addison asks, Afari Gyan says by the authority of the law. He mentions the Representation of the Peoples Act. Addison provides a copy of the law and tells witness to tell the court if indeed it was based on this law that the registration was conducted.
Afari Gyan reads Section 8 of the Peoples Representation Law to justify the registration abroad. Philip Addison says that law has been ammended.
He suggests that the EC did not have authority to select a particular class of people to go through the registration. He adds the registration was discriminatory against certain class of Ghanaians.
“I deny that” Afari Gyan says.
Philip Addison decides to tender the list of double registration through the witness.
Biometric verification device
Addison: Does the BVD have a list of registered voters. Yes it has. The list is taken from the database into the BVD.
Addison: The register stored in the BVD is not limited to a particular polling station. Afari Gyan says he cannot know for sure.
Addison suggests that the register in the BVD covers the whole constituency.
That the BVD are not interconnected. They are not, Afari Gyan admits.
So that a voter can move from one polling station to another to vote, Addison asks. The voter cannot because each polling station has exclusive names of people. The register is restricted to a polling station.
Do these BVD have serial numbers? Addison asks. Not to my knowledge.
So it means the BVD can be moved around across the country, isn’t it? They are numbers but we don’t call them serial numbers, Afari Gyan answers.
“So what do you call them”, Addison probes further. “We call them numbers,” Afari Gyan answers.
Addison: Are these numbers unique to a each BVD? You are right they are, Afari Gyan answers.
Are these numbers entered by the presiding officer before voting. No Afari Gyan answers.
Who enters these numbers and where are they etered, Addison probes further.
Before the BVD is sent to the polling station, the district officer should have a record of which BVD is going to which polling station, Afari Gyan answers.
Addison says when the BVD broke down and were replaced, were records also taken. Yes records were taken, Afari Gyan says.
Do you have a rough idea the number of BVD purchased for the purpose of election 2012. Over 33000 were bought Afari Gyan answers.
Addison asks who manned the BVD during voting. Afari Gyan says techinical people trained by the EC.
Addison asks what role the temporary workers of the EC played. Afari Gyan says if they were not manning the BVD machines at the polling station they will play no role.
Addison suggests that it was entirely possible for an IT person to add or subtract names on the voters register on the BVD.
Quarhie-Idun is up with a vehement objection. He says the Petitioners have not accused them of any wrong doing so to suggests that the BVDs were manipulated is unacceptable.
Five Voters Register
Addison hands over to the witness exhibits of the five voters register. He says the registers were tendered by the witness in his examination. Afari Gyan admits he tendered them.
Addison asks if there are ticks in the register currently before him. Afari Gyan says no.
Addison: Were they in fact the registers used at the polling stations, Afari Gyan says no.
NB The second Respondent had used the five registers to rebut allegations made by the petitioners that there were more votes in the ballot boxes than there were on the voters register.
Addison offers to be tendered a pink sheet relating to one of the five Voters Registers. Quarshie-Idun raises an objection. He says the pink sheet has a different exhibit numbers. He adds that the petitioners have presented a list of pink sheet exhibits whose numbers are different from what they have in their custody.
Tony Lithur enters the fray he describes as “funny” and “unethical” differences in labels of pink sheets.
Tsikata jumps in. Judges are at a loss. More than one of the judges question the propriety of the objection being raised, especially so when the pink sheet in question is before the court and had been shot into prominence by the counsel for the second Respondent who showed it to his witness to rebut the claims of over voting in certain polling stations. Tsikata says it is a serious matter and it could possibly be the case
Philip Addison continues with his cross examination.
He asks if witness can tell the figure in the A1 column of the pink sheets. 250, Afari Gyan says. Addison asks what is the figure on B1. 12 says Afari Gyan. Addison goes ahead to ask witness the definition of B1.“ What is the number of voters on the voters Register,” Afari Gyan answers.
Yesterday you told the court there was no over voting at this polling station, Addison Fires. Afari Gyan says he was not asked whether there was over voting or not.
Addison asks if he can confirm if there is over voting on the face of the pink sheets.
Afari Gyan says he sees all kinds of figures on the pink sheet and so he cannot say for a fact if there was over voting.
Addison asks if his declaration he made on December 9 included the figures of this pink sheet. Afari Gyan says he presumed so.
Addison shows him a column for rejected votes. It has the number 1 written in there. Afari Gyan confirms this.
Addison asks him to add total votes and rejected ballots to arrive at total votes in the ballot. Afari Gyan adds 12 plus 1 and says it is 13.
Addison asks if that proves an over-vote of 1. But Afari Gyan says that cannot be the case. it is not automatic. There are ‘all kinds of things happening’ on this pink sheet. It requires proper scrutiny, he says.
Addison tells him that pink sheet emanates from him. Afari Gyan agrees.But insists that he sees so much that is wrong on the pink sheet and therefore he needs to do proper scrutiny to arrive at any conclusion.
Addison asks him why he tendered the register of this polling station with the intention to show there was not over-vote.
Afari Gyan responds he was asked to look at the register to determine to figure to be entered into A1. If B1 is higher then the figure down there would not show an over-vote.
So the purpose of using the register was to show an over-vote, Addision suggests but Afari Gyan says no, it was to explain the figure in B1.
Were you at the polling station to show what should have been entered there?, Addison inquires. Afari Gyan says no he wasn’t but as an election adminstrator he knows what was supposed to be done.
Addison asks if if he realizes that the pink sheet before him was used to declare the results. He urges him to stick to the pink sheet.
But Afari Gyan says he is a difficulty to limiting himself to the pink sheets for purposes of answering ‘deeper questions’.
Addison asks if a polling station in addition to its register has an absent voters list and a transfer voters list it would affect the number of registered eligible voters. Afari Gyan says yes.
Addison asks if there was an absent voters list at the polling station in reference. Afari Gyan says there was no list.
Addison says if there was, it would have affected the total number of eligible voters which could differ from the number on the voters register. Absolutely, Afari Gyan says.
Addison says if that is the case, they have to go by the information on the pink sheets because the register by itself will not tell a true story but Afari Gyan disagrees.
Addison suggests to witness that the number of persons on the register as indicated on the pink sheet exceeds the number on the register given to the parties.
Afari Gyan says he needs clarity on the question.
Addison rephrases and says the aggregate number of voters on the pink sheet in the 11,115 polling stations in contention far exceeds the total number of voters on the register.
Afari Gyan says that will be wrong. Addison snaps, saying it is wrong and insists if the EC chair is aware that was the case.
Afari Gyan says he is not aware.
Philip Addison suggests to him that the total number of voters on the pink sheets in respect of 11,115 polling stations is 6,762,882 but the total number of registered voters on the register given to the NPP in respect of the same number of polling stations is 5,799,994. Afari Gyan says he is unaware of that.
Addison asks how many ballot papers were printed. Afari Gyan says he cannot say off hand.
Addison then makes a projection by saying if the total number of registered voters is in the region of 14 million and the EC requires that ballot papers printed must be ten per cent more than the total number of registered voters. Afari Gyan says that will be an accurate presentation.
Addison asks how many printing presses printed the ballot papers but Afari Gyan says he cannot tell. He would have to cross check before giving a specific figure.
But the parties were represented at all the printing presses, Addison asks. They were, Afari Gyan confirms.
Addison suggests to the witness that the ballots issued to the 11,115 polling stations as gleaned from the face of the pink sheets is 11,511,207.
Afari Gyan says he cannot confirm that figure. Addison tells him to record the figure and cross-check over the week-end.
Addison says the total ballots according to the EC based on the registered voters plus ten percent for the 11,115 polling stations will be 6,385,058.
Afari Gyan says he has no way of knowing. He adds that it has be shown that figures on the pink sheet could be wrong and therefore the figures could not be relied upon to make a definitive comment on the number as gleaned on the face of the pink sheet and the actual figures in the register.
Addison suggests to witness that both the total number of voters on the face of the pink sheets as well as the ballot papers issued to the polling stations. Your declarations were based on these exaggerated numbers, Addison fires. Afari Gyan disagrees.
Addison questions the witness why they decided to give presiding officer bundles of ballot papers in 100s, 50s and 25s when they could easily have issued bundles of 5s and 10s. He finds out from the witness what law mandated the EC to give presiding officers bundles of 100s, 50s and 25s.
Afari Gyan says it was purely an administrative decision not backed by law. He insists it is easier dealing with the ballot papers in bundles of 100s, 50s and 25s.
Addison asks him to refer to the pink sheet exhibits before him and mention the number of ballots issued.
Afari Gyan mentions the figure as 250. Addison says that is exactly the problem. That the total number of people on the register was 12 and yet 250 ballots were issued to that polling station.
Afari Gyan says immediately he could tell an error and the error is that the total number of people which is given as 12 on the pink sheet is wrong. It could not have been the total number of people in the register.
Addison challenges him to take a look at the corresponding register of that pink sheet and tell the court the total number on the register.
Afari Gyan looks at it and says the total number of registered voters is 12 which means Philip Addison is right but which also means that the presiding officer was not given 250 ballots.
Addison suggests to him that he has to stick with the figures on the face of the pink sheets. Afari Gyan says the figures on the pink sheets are contaminated with palpable errors.
Addison asks what he did about those errors, Afari Gyan laughs.
One of the judges intervenes. He asks Addison to take a good look at the pink sheet and he will know that the 250 that has been mentioned is wrong. It appears the figure there is 25, the zero has been cancelled and cannot be 250. Addison says he did not mention the figure 250. It was the witness who did. In any case he adds, that even if the figure 25 was taken, it still meant that over 100 percent of ballot papers were given to that polling station instead of the ten per cent. He suggests that if the EC had supplied bundles in 5s and 10s they would not have over supplied some of these ballots papers which eventually ended up in the ballot box unaccounted.
Addison tenders another pink sheet exhibit and asks witness to mention the figure in the A1 column. Afari Gyan mentions 100.
Addison asks again what the figure is at the B1 column. B1 is 21, Afari Gyan answers.
Addison asks witness to tell the court the total vote in the ballot box to which the witness answers 67.
“So you agree there is a clear over vote here,” Addison asks. Once again My Lord, No. He says the register indicates that 21 in B1 is wrong.
Addison asks witness if his declaration on December 9 was based on the total number on the register.
Afari Gyan says yes because the total number of persons entitled to vote is recorded in that declaration.
Addison asks what the total number was to which Afari Gyan mentions 14,301,680. Addison suggests to witness that the total number of registered persons on each polling stations far exceeded the total number of registered persons supplied to the NPP. Afari Gyan says that cannot be true.
Addison says the total number of registered voters gazeted for the presidential elections was different from that of the Parliamentary election. That cannot be correct, Afari Gyan says.
Addison says the gazeted number for the Parliamentary elections was 14,301,680 and when the declaration was made for the presidential elections, the figure given by Afari Gyan was 14,158,890 am i right?
Afari Gyan says yes but “it was in error”.
“So everything was in error in this elections,” Addison jabs. “My Lord i don’t see how anybody can come to that conclusion,” Afari Gyan retorts.
Addison returns to the pink sheet in the custody of the Afari Gyan and asks him to confirm if there was over voting on that pink sheet.
Afari Gyan admits there was ultimately an over vote.
Case adjourned to Monday.
Addison fires and says so everything