Supreme Court Report

Supreme Court on June 6 2013

Filed

by: Kofi Amoabin

Dr. Kwadwo Afari-Gyan - in the Witness Box

Phillip Addison, lead attorney for the petitioners continued his cross-examination

of Dr. Kwadwo Afari-Gyan.

Keywords

Pink Sheet – Statement of Poll and Declaration of Results for the office President;

C1 – the total number of ballots issued to voters on the polling station register;

C3 – the number of ballots issued to voters verified by the use of Form 1C (and not

by the use of BVD); CI 75 - Public Elections Regulations, 2012.

Summary – Dr. Afari-Gyan admits to multiple registrations in the register of

Ghanaians living abroad and inconsistencies on some pink sheets.

Biometric Verification of Voters

Mr. Addison started his cross examination by asking Dr. Afari-Gyan if chiefs went

through the biometric verification device before being given a ballot. The witness

answered that since chiefs are people whose identities are very well-known in the

community, these high profile individuals did not go through the biometric

verification device (BVD). Lawyer Addison asked a follow-up question on how the

presiding officers at the polling stations filled out the Statement of Poll and

Declaration of Results for the office of President (pink sheet).

How would the vote of the Omanhene or chief be recorded on the pink sheet, into C1

or C3? C1 asks about the number of ballots issued to voters on the polling station

register and C3 asks for the number of ballots issued to voters not verified by the

(BVD).

Dr. Afari-Gyan could not tell the court whether such an individual would be entered

on C1 or C3. Lawyer Addison then stated that this means people could vote without

going through the BVD.

Provisional Voters Register

Phillip Addison asked Dr. Afari-Gyan why copies of the provisional register are

given to the political parties. The witness stated that the provisional register

helps the political parties to find the number of people captured by the BVD and to

determine the number of multiple registrations. The witness also stated that the

polling stations get a daily print out of voters captured by the BVD.

Phillip Addison asked if the multiple registrations and other problems detected

during the vetting of the provisional register were corrected before exhibiting the

register. The witness said that people with problems did not appear on the register.

Dr. Afari-Gyan went on to explain that the Electoral Commission organized a special

registration exercise to re-capture the pictures of those the BVD failed to capture

their biometric data in the earlier registration exercise.

Dr. Afari-Gyan went back to question C3 on the pink sheets and explained that the

purpose of C3 was not to disenfranchise anyone, but the political refused to accept

question C3, so the EC ordered presiding officers not to fill question C3.

Lost Data

Dr. Afari-Gyan stated that in some instances the names of the people captured at the

polling station could not be found after receiving data from the registration

centers. The witness went back to Form 1C, which has information on those whose

bio-data was not captured by the BVD. The witness explained that a number of people

were on Form 1C but not on the daily print out from the BVD.

Phillip Addison then asked Dr. Afari-Gyan that the explanation given for C3 was not

in the answer that the EC filed to the petition and was not in the affidavits sworn

to by Mr. Amadu Sulley, deputy director of the EC.

A key question for the day was when Phillip Addison asked the EC to tell the court

when presiding officers and other staff were advised not to fill C3. Dr. Afari-Gyan

answered that EC advised its officers during training not to fill out C3.

Guide to Election Training – EC Exhibit 2

Phillip Addison asked Dr. Afari-Gyan to turn to page 11 of the Guide which listed

materials to be taken to the polling station. The list did not include Form 1C,

which serves as voters ID and has bio-data of voter.

Phillip Addison followed by asking Dr. Afari-Gyan to turn to page 51, which showed a

copy of the Statement of Poll for the office of President (pink sheet). Mr. Addison

brought to the attention of the court that question C3 was not on the sample pink

sheet displayed in the training manual. Obviously, if the sample pink sheet did not

have question C3, then the EC could not have trained its officers in advance not to

fill C3.

Lawyer Phillip Addison continued that entries were made in C3 all over the country

so the figure in C3 relates to the election at the polling station. Phillip Addison

asked the witness how C3 relates to the elections.

Part C of the pink sheets relates to ballot accounting (to be filled in at end of

the poll before counting commences) and question C6 asks for the total of C1, C2,

C3, and C4 which must be equal to the number of ballots issued to the polling

station, A1.

Dr. Afari-Gyan explained that when C1=C3, then use C1 and let C3 be equal to zero.

Phillip Addison asked Dr. Afari-Gyan if he was at a polling station on day of

elections.

Printing of Election Materials

Dr. Afari-Gyan stated that at least two companies were involved in printing of

materials related to the elections. The EC Chairman explained that nominations were

received on October 17/18 and balloting for positions was on October 19. The

election materials were printed on October 20, 2012.

Phillip Addison introduced CI 75, the legislative instrument that covered the

elections, and asked Dr. Afari-Gyan when the legislative instrument was printed and

effected. Dr. Afari-Gyan explained that CI 75 was printed on August 14, published

on the same day and came into force on September 25, 2012.

Phillip Addison stated the answers given by Dr. Afari-Gyan about C3 was an

afterthought because if the pink sheets were printed in October and the laws

governing the elections came into force in September then the forms should not have

contained information on C3.

Register Used for Elections

Dr. Afari-Gyan stated that the provisional register given to the political parties

had 14,031,680. Phillip Addison added that Mr. Asiedu Nketiah, the witness for the

president and the National Democratic Congress, stated that the provisional register

received by the NDC had 14,031,793 voters.

Phillip Addison asked Dr. Afari-Gyan if he read the affidavits and pleadings filed

by the EC. Mr. Addison stated that in the pleadings filed with the court by the EC,

the EC stated that the provisional register given to the political parties had

13,917,366 voters.

Phillip Addison added that after the EC purged the provisional register and added

the registration of Ghanaians living abroad (GLA), the new register had 14,158,890

voters. Addison wondered about the additional 241,524 voters.

Registration of Ghanaians Living Abroad

Dr. Afari-Gyan admitted that the register of GLA had multiple registrations but

could not say how many. The EC in its pleadings saw 15 duplicate registrations but

Mr. Addison said he counted 51.

Mr. Addison produced the register of GLA and asked Dr. Afari-Gyan to count and

announce the number of duplicate registrations, but the justices were concerned

about the length of time it would take. Mr. Addison explained the total number

voters on the list of GLA supplied to the petitioners is 2883, but the EC stated it

registered 705 GLA from 28 different locations worldwide.

For the purposes of the election, GLA registration covered Ghanaians working at

diplomatic missions and their children, Ghanaians on government scholarships

studying abroad, Ghanaians on peacekeeping missions, Ghanaians working for

international organizations like the World Bank, and others.

Double registrations

No Ghanaians voted overseas, so those looking to vote had to come to Ghana or vote

by proxy. Phillip Addison mentioned double registrations in the GLA register, and

Dr. Afari Gyan countered that the double registrations happen when individuals

reject the quality of the picture taken by the BVD and ask the registration officer

to re-take the picture. Dr. Afari-Gyan explained that when an individual requests a

second picture, the registration officer is supposed to delete the former picture

but the officers sometimes failed to do so.

In order to spot duplications, the EC did a face match to see if two individuals

have the same facial appearance. If two pictures show a face match, the EC will go

the extra step of finding if the finger prints match. If only the face matches, the

EC will decide if the registration is a duplicate or not.

Ghanaians Living Abroad and Voting by Proxy

Dr. Afari-Gyan stated that his authority to register voters abroad is from the

Representation of the People Act 1992. When Dr. Afari-Gyan mentioned the law, Mr.

Addison asked if Dr. Afari-Gyan was talking about Registration of the People Act

which was amended. Counsel for the EC objected on the grounds that the witness was

being questioned on matters of law.

Mr. Addison stated in court that the EC did not have the authority to register GLA

and the registration ordered by the EC discriminated against some Ghanaians also

living overseas.

Dr. Afari-Gyan stated that the EC could register GLA but those looking to vote had

to travel to Ghana. For those who could not be physically present in Ghana and were

able to meet the criteria for proxy voting, those GLA voted by proxy.

Mr. Addison asked how those GLA proxy votes were entered on the pink sheets. Mr.

Addison asked if some people could vote twice, one vote for the individual and the

other for the proxy. Mr. Addison also asked if people could vote without going

through the biometric verification machine. The idea being an individual voting for

a GLA would not have to go through the BVD.

Purchase of Biometric Verification Device

Mr. Phillip Addison asked Dr. Afari-Gyan how the EC stores its database of

registered voters. Dr. Afari-Gyan was not sure and explained that he is not well

versed into the minute details of work at the EC. As to how the voter register for

the constituency is stored, Dr. Afari-Gyan agreed with Mr. Addison that data for the

whole constituency is stored in the BVD.

Addison asked if the EC kept a record of which BVD went to which polling station.

Dr. Afari-Gyan stated that the EC purchased 33,000 BVDs and hired and trained

temporary workers to do service and maintenance of the BVDs.

Dr. Afari-Gyan stated that the budget approved by parliament for conducting the

election was 236,576,870 Ghana cedis (about $130 million) and this amount was not

sufficient.

Final Voters Register

Mr. Phillip Addison asked Dr. Afari-Gyan if the voters register submitted to the

court were the same register given to the polling stations on the day of the

elections. Dr. Afari-Gyan answered no. Mr. Addison asked if Dr. Afari-Gyan reviewed

any pink sheets before the declaration of results on Dec 9, 2012. Dr. Afari-Gyan

answered no.

Mr. Addison then offered a pink sheet to Dr. Afari-Gyan and asked Dr. Afari-Gyan to

explain to the court the entries made on the pink sheet. Dr. Afari-Gyan was not

sure.

“My Lords, I do not know what it is,” said Dr. Afari-Gyan, chairman of the Electoral

Commission in an answer to explain entries on a sample pink sheet used in the

declaration of the presidential election results.

Mr. Addison presented the pink sheet for Temporary Booth Jimpenhi Code K030405, an

exhibit, to Dr. Afari-Gyan. Some of the details on the pink sheet were: A1, the

total number of ballots issued to this polling station, 21; B1, the total number of

voters on the polling station register, 21; Total number of votes in the ballot 67;

Total number of voters on register submitted by EC 71.

Mr. Addison stated that if the unknown polling stations are taken away from the

petitioners list of 11,138 polling stations where the results are being challenged,

the total number of polling stations drop to 11,115. Based on information gleaned

from the face of the pink sheets, the total number of registered voters for these

11,115 polling stations is 6,762,882, but the total number of people on the voters

register is 5,799,994. Mr. Addison stated that these polling stations were supplied

with 11,511,217 ballots.

Dr. Afari-Gyan explained that ballot booklets are printed with 100, 50 or 25 pages

and the EC has a policy that ballot booklets cannot be broken. The EC also provides

each polling station with an additional 10 percent ballots over the number of voters

on the register. Dr. Afari-Gyan concluded that ballot booklets cannot be broken and

a smaller number of ballots taken out, so it appears that more than 10 percent of

additional ballots went out to some polling stations.

Mr. Phillip Addison stated at the end of the day that the voters register used for

the parliamentary elections had 14,031,608 voters, but the register for the

presidential election had 14,158,890 voters.

Dr. Afari-Gyan replied that the number 14,158,890 was an error.

Mr. Phillip Addison stated that overvoting was based on total number of ballots

issued at the polling station and not on the number of registered voters.

Cross-examination of Dr. Kwadwo Afari-Gyan continues on Monday.

Interview with Mr. Johnson Asiedu Nketiah, general secretary NDC and principal

witness for President John Mahama and the NDC.

Overvoting

Mr. Johnson Asiedu Nketiah felt vindicated because the Dr. Afari-Gyan gave the same

explanation for overvote as Mr. Asiedu Nketiah. Mr. Asiedu Nketiah in his

evidence-in-chief explained overvoting as instances where the number of ballots in

the ballot exceeded the number of people on the voters register.

Voters Register Used at Polling Stations

Mr. Asiedu Nketiah indicated that the voters register used at the polling stations

on the day of elections were sealed with the ballots and a court order would be

needed to break the seal. Mr. Asiedu Nketiah gave this explanation to show why the

EC could not tender the original registers for polling stations.

Errors and Inconsistencies on Pink Sheets

Mr. Asiedu Nketiah blamed the agents of the various political parties for not

complaining right there at the polling station.

Looking Forward to 2016 Elections

Mr. Asiedu Nketiah had various ideas for improving election processes in Ghana. The

general secretary of the NDC suggested that the training of EC officials has to

improve and was open to the EC relieving itself of training temporary workers and

assigning training to a not-for-profit organization or a civil society organization.

Mr. Asiedu Nketiah suggested further that training of election officials be

expanded to include judges and lawyers who would like to be involved in hearing and

arguing cases related to elections. In Mr. Asiedu Nketiah’s opinion, some of the

judges and lawyers do not understand election processes in Ghana.

The general secretary of the NDC added that we have lawyers and judges who do not

understand how things work on the day of elections.

Report filed by: Kofi Amoabin, DePaul University Graduate School of Communications,

Chicago.

The reporter served as an election judge in Will County, IL in 2012 USA

presidential elections.