Election Petition: EC's BVD printouts thrown out

In what can best pass for a landmark ruling in the ongoing presidential election petition at the Supreme Court, the court on Monday sustained an objection by Lead Counsel for the Petitioners, Philip Addison and in the process overruled an application by the Electoral Commission (EC) to tender some supposed printouts from the biometric verification devices used during the December 7th and 8th presidential election.

While leading the Chairman of the EC, Dr. Kwadwo Afari-Gyan, in evidence, lead counsel for the EC, Quarshie-Idun attempted to tender in a supposed printout from one of the biometric devices used in one of the over 11,000 polling stations under contention.


He introduced the issue of the printouts after Dr. Afari-Gyan had indicated in his evidence in chief that the commission fairly assumed that once it gave each polling station a biometric verification device, then all voters went through verification and that the entries in the C3 column of the pink sheet which is supposed to show the number of persons who were allowed to vote without being verified by the device was entered in error, and surprisingly threw the records on the pink sheets into question.


The EC Boss said that the commission recalled all the devices from the district offices of the EC and checked them to confirm the record of the people who were verified during the elections.


It was at this juncture that the lead counsel tried to tender in one of such printouts, which was objected to by lead counsel for the petitioners, Philip Addison. Counsel Philip Addison pleaded with the court not to allow the tendering of the exhibit because there was nothing on the face of that exhibit to show that the document was indeed an authentic printout of the events at the particular polling station from the device.


He also stated that the document was surprising as the court had clearly directed all parties to file their evidence in support of their case before the start of the substantive case on April 16th, which the petitioners had duly complied with and that the tendering of the document would be contrary to the court’s own rules.


Counsel Philip Addison further stated that nowhere in the pleadings of the EC did they indicate that they would be relying on the biometric verification device or printouts from it or even that they had recalled all the devices to Accra, and indicated that accepting the document at a time when the petitioners had closed their case would amount to opening an entirely new case behind the backs of the petitioners.

Counsel Quarshie-Idun who rose to respond stated that, the document and the printouts from the biometric devices were relevant to determining the case and stated that the commission had pleaded it in their response to the 2nd amended petition and further and better particulars, however, when he quoted the portion of their response, it only mentioned a check of the pink sheets in question and not biometric verification devices.


Counsel Philip Addison in response to the points raised by the EC’s lawyer, stated that if indeed the printouts were necessary, the EC should have pleaded that and pointed to his learned colleague that nothing in the response he read, relates to the printouts.


Most importantly, he pointed out to the court that the devices have been in the custody of the Electoral Commission since December 2012 and that no one could be sure that the devices had not been tampered with. He read a portion of the EC’s manual on the device which states very clearly that the device operates on a software and said that since the EC was the only party with access to this software and the devices, it was possible for them to have changed the information on the device or to have programmed it for it to give out particular sets of information or data which is at variance to what happened on election day.


The court by a majority decision of 7 – 2, with Presiding Judge Atuguba and Justice Vida Akoto Bamfo dissenting, sustained the objection of the petitioners and disallowed the document from being tendered.


The decision of the court clearly maintains the pink sheet, which is the primary record for the conduct and outcome of the elections, as the only true record on which basis a determination would be made and goes to enforce the petitioner's argument that the true verifiable record of what happened at the various polling stations on December 7th and 8th is what is recorded on the face of the pink sheets.