It was all drama at the Supreme Court on Tuesday when Dr. Mahamudu Bawumia revealed that letters supposedly signed by 1st Petitioner in the case Nana Addo Dankwa Akufo-Addo and presented to the court by Counsel for the National Democratic Congress (NDC), Tsatsu Tsikata, were possibly fake.
The day also saw some notable moments including one where Dr. Bawumia, star witness in the petition, called on Tsatsu Tsikata to calm down and stop shouting, as that would not help the counsel to better make his point.
This was after Tsatsu had, on several occasions, raised his voice in apparent anger and frustration because the witness refused to follow his line of argument.
The NDC lawyer had employed fear and intimidation tactics to destabilize the witness, which did not yield the needed results, necessitating his shouting out of frustration at the witness.
In his usual calmness, Dr Bawumia parried Tsatsu’s antics, advising him to stop shouting because they were not in a shouting race.
While cross-examining Dr. Bawumia, the NDC lawyer introduced various letters purportedly signed by Nana Akufo-Addo as Presidential candidate for the New Patriotic Party (NPP) in the December 2012 elections, authorizing certain polling agents of the party to represent him at various polling stations.
Mr Tsikata had suggested that these polling stations were the same ones that the petitioners said were unknown polling stations.
However, in his answer, Dr. Bawumia raised questions about the authenticity of the letters, revealing that though the letters were dated 5th and 7th of December, 2012, they were stamped on 3rd December 2012- two to four clear days before they were written.
This, Dr. Bawumia indicated, could not be possible and cast doubts on the authenticity of the letter.
Dr. Bawumia also said that the signature on the letters was not original, but electronically generated or scanned and that it would be helpful if the originals of the letters could be provided for them to be verified.
These revelations from the 2nd Petitioner who had so far been in the witness box for eight days, abruptly brought this cross-examination to an end after the exposé.
It was Tsatsu’s 2nd day of cross-examination of Dr. Bawumia during which he virtually repeated the techniques used by lawyer for the 1st Respondent (John Mahama), Tony Lithur who had cross-examined Dr. Bawumia earlier in the hearing.
Tsatsu is expected to continue with his cross-examination of the witness today after virtually repeating what lawyers for the 1st Respondent, and 2nd Respondent (EC), James Quarshie-Idun had asked Dr. Bawumia.
NDC On NVNV
Tsatsu Tsikata, on Tuesday made it clear at the Supreme Court that the NDC did not go into last December’s general election with the understanding that voters needed to be verified biometrically before casting their ballots.
Mr Tsikata during his cross-examination of the witness, on the use of the biometric devise for the December 2012 general election stated the NDC’s position.
Counsel (Tsikata): Dr Bawumia, you are aware, are you not, that CI 75 does not provide for what happens if there is a breakdown of equipment, you are aware?
Witness: I’m not aware.
Counsel: You are not aware of that, that’s fine…Are you aware of any guidelines of EC in the event of breakdown of biometric verification equipment? Are you aware of that?
Witness: What I’ve heard, my lords, is that if there is a breakdown, voting should stop and the machine should be replaced before voting continues.
Counsel: Are you not aware that the electoral register itself is established as a biometric register for this 2012 elections?
Witness: Yes, my lords.
Counsel: In answer to counsel for the second respondent, you confirmed that when the barcode on the ID card is scanned, the voter’s picture shows up to the electoral official, you confirm that?
Witness: That is what is supposed to happen, my lords.
Counsel: So that is a form of verification against a biometric register, is it not?
Witness: That is what is supposed to happen; identification is different from verification, the only people who are allowed to verify by face only are those who are permanently or temporarily traumatized and that, the barcode would allow identification by the biometric verification device. That is why all those who have trauma are actually verified.
Counsel: Dr. Bawumia, you still did not answer my question; I said from the process that you were asked about – the process of scanning the barcode and the picture of the person with the ID card showing- from that process, you actually verify the identity of the voter, do you not?
Witness: Yes, my lords, you verify the identity with either the voters’ ID card or some other form of identity.
Counsel: And you verify that in the context of the biometric register?
Witness: That is correct, my lords.
Counsel: But you are saying to this court that when someone says No Verification No Vote (NVNV), your interpretation is that no verification through the biometric fingerprint device no vote, that’s what you are saying to this court?
Witness: That’s exactly what the Second respondent said to everybody…
Counsel: I am asking for what you are saying to this court, not what the Second respondent said to everybody; what are you saying to this court?
Witness: We are essentially repeating what the second respondent said to everybody and therefore saying that the law says that every voter shall be biometrically verified and if you are not biometrically verified, you are in contravention of the law, unless if you are exempted. Even for those who are exempted, they would be verified, not with fingerprint, but by their face only…
Counsel: The law is what the second respondent says it is, is that correct?
Witness: The second respondent was quoting CI 75, I am not a lawyer, but I think section 32 of CI 75 makes it clear by my understanding.
Counsel: (Smiles) I suppose you are aware that that understanding may be wrong?
Witness: As I said, I’m not a lawyer, but that understanding is what all political parties went into the elections with…
Counsel: That is certainly not true; the party that I represent in this court did not go in with that understanding, so what you are saying cannot apply.
Witness: I know you have your own special understandings, but you see that in Nalerugu Gambaga constituency, etc., one person voted without verification and the results in that whole polling station were annulled. In Bogni, in the same constituency, one person voted without verification; the results were annulled. That was the understanding.
Counsel: Now of course you were not at those polling stations you made reference to, you were not there?
Witness: Yes, my lords, I was not there.
Counsel: And you don’t actually know from your personal knowledge what actually happened in those polling stations…
Witness: I wasn’t there, but I’ve seen the collation forms.
Counsel: And so you are not able to tell us what actually happened, apart from what you claim you saw on the collation form. You can’t know what discussions took place among those who were involved there, you can’t?
Witness: Sure I can’t because I wasn’t there, but evidence is there that they were annulled.
Counsel: According to you?
Witness: According to the evidence, my lords.
Biometrics Reloaded
Counsel: (Handing over an exhibit to the witness) Can you tell us the figures in C1 and C3?
Witness: (Tells the counsel what he sees after straining to decipher the figures). The figure that is in C1 outside the box is 493, probably, and then inside the box, 493 for C3. In the context of C3, it says for those who do not use the biometric verification device were 493…(Counsel interrupts).
Counsel: It doesn’t actually say that Dr. Bawumia, can you read what C3 says?
Witness: Yes, my lords, it actually does.
Counsel: Can you read what it says?
Witness: It says that the number of ballots issued to voters verified by the use of form 1C but not by the use of the biometric verification device.
Counsel: So those verified by form 1C but not the biometric verification device, isn’t that what it says?
Witness: Precisely, my lords…
Counsel: Very well, so don’t give us half the story.
Witness: Actually this is the full story. My lords, the biometric verification device manual tells us that the device actually verifies both disabled and the able. So the story that it cannot verify the disabled is wrong…, it will verify both the able and disabled.
Counsel: And is that on the face of the pink sheet?
Witness: This is in the user manual, my lords, page 14 of the user manual for the second respondent in the conduct of this election, it is very clear.
Counsel: It is not on the face of the pink sheet, is it on the face of the pink sheet, Dr. Bawumia?
Witness: It doesn’t have to be on the face of the pink sheet, it is telling you what is verifiable.
Counsel: Is it on the face of the pink sheet or not?
Witness: On the face of the pink sheet, C3 tells you the number of voters who were issued ballots and verified by the use of form 1C which is essentially the laminated portion of their voters’ ID card, but not by the verification device. If you did not vote through the verification device, you do not go through; there is no other category of voters… Everybody who is verified is either able or disabled.
Justice Atuguba: This forum, we keep on telling you, it is a different forum, don’t approach it like the presidential debates. It is just a legal exercise here to seek certain information according to certain procedures. Let us do our work…
Signature Of NPP Agents
Mr. Tsikata, after exhaustively cross-examining Dr. Bawumia on Monday on the issue of NPP agents signing the Pink Sheets at the various polling stations and thus implying that they certified the results, came again on Tuesday as he said ‘to test the credibility of the witness’.
Dr. Bawumia told the court that even if NPP agents failed to sign the pink sheets, that would not have prevented the EC from declaring the results and at the same time, that did not also stop the petitioners from seeking redress in the court.
This brought Mr. Tsikata back to say that “you keep on repeating your answers; it will not make your case any better,” to which Philip Addison, representing the petitioners cut in to say that Mr. Tsikata had continuously repeated his questions and that would not let Dr. Bawumia also change his answers.
Privilege Information
The witness confirmed to the court that he was the one tasked by the NPP to chair a team that tracked the anomalies on the pink sheets leading to the filing of the petition and they consulted the legal team in the process.
As Mr. Tsikata pressed hard to know from Dr. Bawumia the kind of information given by the petitioners’ legal team, Mr. Addison objected to the line of questioning saying, “I thought that it is privileged information discussed between a lawyer and his client.”
Mr. Tsikata however, would not budge and insisted that there had been no attempt to elicit detailed content of the discussion with the witness’ legal team and as the give-and-take persisted, Justice Atuguba said “you have already built a premise…this line of questioning is not necessary.”
Mislabelling
Counsel, after cross-examining Dr. Bawumia on the biometric verification device, put it to him that what the petitioners were putting before the court was a belated attempt to those that were duly counted at the polling stations.
“We were given 21 days to file and we came on time,” Dr Bawumia replied, before admitting that some of the exhibits they brought to the court were mislabelled but that did not have any effect on the analysis since each pink sheet was used once.
Counsel: If you don’t pay particular attention you will not know that the same exhibit has been used more than once.
Witness: Yes.
Counsel: This mislabelling is misleading to anybody who receives your exhibits.
Witness: Without explanation, it will be misleading, but once it is explained to you, you will be comforted.
Counsel: You did not provide any explanation within the context of the affidavit.
Witness: We are providing it here.
Counsel: If it were not for the vigilance of the respondents in drawing the court’s attention, the court would have been misled.
Witness: Not at all… the analysis on each pink sheet was not used more than once and there is no way the court would have been misled.
Errors
In the heat of cross-examination, Dr. Bawumia found space to jokingly jab Tsatsu Tsikata that in the calculation of election results errors must not affect somebody’s presidency.
So far four different types of errors have been named by the respondents and they might have contributed to the election dispute at the court.
The respondents have mentioned clerical error; administrative error; transpositional error and human error, all accounting for the election of John Dramani Mahama.
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