By Kofi Ata, Cambridge, UK
The evidence stage of the 2012 presidential petition at the Supreme Court (SC) ended with the cross examination of the key witness for the second respondent, the Electoral Commission (EC), Dr Kwadwo Afari-Gyan. After 14 days of cross examination, Mr Philip Addison, lead counsel for the petitioners brought the final curtain to a close on Wednesday July 17, 2013, in what was described by the presiding Justice as, “at long last, the battle of evidence has ended”, echoing the words of Dr Kwame Nkrumah on the night of independence declaration. This piece is a brief assessment of the cross examined and the cross examiner or better still, the hunted and the hunter.
The main aim of cross examination is to discredit the evidence of the witness and where possible, to also dent the integrity and honesty of the witness him/herself. The two objectives could be achieved in many ways, especially in an adversarial system such as Ghana’s. Very good prosecution and defence attorneys often resort to aggressive questioning either to confuse the witness or make him/her angry to prove to the judge/s or jury that the witness could not be trusted. At all times, the honesty and the credibility of the witness are at stake as long as s/he is in the witness box and under oath. So after 14 days of intense microscopic examination by Addison, was Kwadwo Afari-Gyan’s evidence credible and are his integrity and honesty intact or in tatters?
I did not keep record of the 14-day cross examination but will try my best to recall some of the main ones that might have put in doubt, his evidence as well as the integrity and honesty of Afari-Gyan. First, was the question of over voting. The Chairman of the EC and the Returning Officer for presidential elections in Ghana, who could be described as the custodian of the rules and regulations on the conduct of elections, claimed he did not have a view on what is over voting. Instead, he was only able to define what he called as “classical definition” of over voting. Really? If the Electoral Commissioner did not know what is over voting, why is he the Chairman of the EC and has been declaring results of presidential elections?
The witness also reinvented numbers by reading the figure 270 in words as “twenty seven and zero”. Unbelievable, unheard of, incredible, magical, sensational, etc. You could use any adjective to describe Afari-Gyan’s innovation or creativity but that was not clever. Was it? Was Afari-Gyan confused or just defending the indefensible? I doubt if kids who are learning to write figures in words will write 270 as twenty seven and zero. Dr Afari-Gyan, the plain fact is, there is no figure written in words as twenty seven and zero. You would have been better off admitting that those recruited were not up to the task rather than reinventing the wheel.
Hmmm!, Afari-Gyan claimed he does not know what pdf is. What planet is he on, Mars or Pluto? Is there a computer in his office and has he got access to the internet? The EC Chairman does not know what a Portable Document Format (also known as Printable Digital Format or Portable Data File) is? Interesting but was he being economical with the truth?
Afari-Gyan appears to have supplied false information to the EC when he registered as a voter. According to his registration records obtained and provided to him in the witness box by Mr Addison, Afari-Gyan’s age was incorrect. If the document is genuine, was it deliberate on the part of the witness to deceive a public officer and if so, is it an offence under Ghana’s electoral laws to knowingly provide false information to a public officer in order to register as a voter?
The above were some areas of Dr Kwadwo Afari-Gyan’s performance that could cast doubt on his evidence, integrity and honesty. Notwithstanding these, when pushed to the wall, the witnessed reluctantly admitted some mistakes, irregularities, violations and omissions. He continued to be sarcastic or cheeky, smiling or even laughed at some of the questions put to him by Mr Addison. Sometimes, he was dismissive of questions instead of answering them. For example, “my Lords, I do not know where he got such figures from”? On some occasions, Afari-Gyan looked confused, bemused or pretended not to have heard the question and asked for clarification or a repeat of the question. Overall, Dr Kwadwo Afari-Gyan was humbled by the experience in the witness box as the presiding Justice advised him at the end of it , “I hope you’ve seen that go to court, go to court’ is not easy.”
I have never known any court case of national importance that the behaviour of attorneys involved have raised questions such as this. The foul language of the lead counsel for the third respondent, Mr Tsatsu Tsikaka (telling the petitioners’ lead counsel to shut up). That was followed by the uncouth act of lead counsel for the first respondent, Mr Tony Lithur, when he threw away a document in court (see my article entitled, "Are the Lead Counsels for 1st and 3rd Respondents Arrogant”?, Ghanaweb, May 31, 2013). Though these actions were unprofessional, they might not have directly or indirectly impugn the credibility of the work and honesty of the two lead counsels. On the other hand, though the behaviour of the petitioners’ lead counsel was better, relative to the two, his integrity and honesty have come under scrutiny because of his modus operandi.
Normally, it is the integrity and honesty of the witness being cross examined which is the subject of interest and not the attorney asking the questions. As we all know, this petition is not the norm and therefore, it is not surprising that Addison’s determination to win his case by hook or crook raised some eye brows in court.
Addison almost succeeded in compelling Afari-Gyan to admit that a polling station with only twelve registered voters was supplied with 250 ballot papers and proof of over voting on the face of the pink sheet. It was only the eagle eye of one of the Justices who calculated the exact total number of ballots issued from the serial numbers on the pink sheet to be 25 and not 250 that saved the witness from admitting a falsehood as fact. Addison’s excuse was that, the witness had the pink sheet in front of him so he could have challenged the figures. Then, the famous or infamous Mampong constituency voters register extract which Addison sought to tender in evidence. When its authenticity was questioned, he backtracked and quickly withdrew the document (see my article, “Is Addison Perverting the Course of Justice”?, Ghanaweb, July 14, 2013).
In the last week of the hearing, Addison continued with his antics of either manufacturing figures and or documents. He accused the EC of vote padding in favour of the first respondent and relied on alleged results from Ledzokuku constituency to prove his claim. Fortunately or unfortunately, despite lead counsel for third respondent, Tsatsu Tsikata quoting the actual figures declared by the EC as reported on EC’s website to discredit Addison’s claim, the Justices voted 7 to 2 in his favour to allow him continue questioning Afari-Gyan on the wrong results. As a mark of ingratitude to the seven Justices, Addison strangely did another u-turn and withdrew his question and the results he was relying on. His excuse was that, he had reliably been informed from his side that his figure was wrong. Why did Addison and his team of learned friends not do their homework before coming to court with false results and claimed them to be what the EC declared? I wonder why the Justices allowed this deception to be perpetrated in court and particularly, how the seven Justices felt after Addison had betrayed their trust in him?
Opps! Is my last sentence contempt of court? I hope my name is not mentioned in court at the next sitting for contempt of court. I think my good friend’s hard work (Prof Stephen K Asare) is having some positive effect because I never heard of Sir John being hauled before the Justices for contempt of court despite reports that he was mentioned in court for possible contempt of court.
Addison’s next trick was on some printed or photocopied pink sheets from a pdf document he presented to the witness in court. When Dr Afari-Gyan challenged the authenticity of the documents compared with the originals from the EC, Addison was reported to have said that, it is not possible to tamper with pdf documents. Amazing! Even encrypted pdf documents could be modified by those who know have the know how and computer science students. Does he know that even protected pdf documents of security agencies in the developed world could be tampered with by computer hackers? How much more a mere pdf file from the head of an organisation who does not even know what a pdf is? Addison, get real or get a life. NPP claimed they relied on some IT experts to assist them put their evidence together, so it would not be surprising if those experts did manipulate the pdf document to get what they wanted though that is just mere speculation. Tsatsu Tsikata was absolutely right that pdf documents could be changed or modified.
Finally, Addison presented what appeared to be the voter registration document of Dr Afari-Gyan and asked him to read the title of the document, which he did on at least, two occasions. The title suggested that Dr Afari-Gyan was a registered member of a political party, to which Afari-Gyan vehemently protested his innocence. He strongly denied ever been a member of any political party. Again, this attempt to malign the witness was ignored by both his counsel and the bench. That was shocking because it is the duty of his counsel and the bench to protect the witness from being ridiculed, embarrassed, disgraced and falsely accused in the witness box.
Indeed, if the title of the document as read in court by the witness was accurate, then, that is serious because I do not believe that the Chairman of the EC and Returning Officer for Presidential Elections should be a registered member of any political party in Ghana, though I am not aware of any law in Ghana specifically prohibiting public officers from belonging to political parties. I suspect the title of the document was false and made to embarrass the witness. I think this matter should not be left to rest but must be investigated further. This is necessary not only because of the suspicious title but also because Dr Afari-Gyan’s wrong age on the document as discussed earlier.
In conclusion and as usual, I am unable to provide definitive answer/s to the question/s I posed. Whether Mr Addison discredited Dr Kwadwo Afari-Gyan through his cross examination or not will be best answered only after the Justices make their final decision. If the petition is upheld, the integrity and honesty of Afari-Gyan would be shredded into the dust bin of history. In the same way, should the petition be dismissed, Afari-Gyan will stand tall among people of integrity and honesty in Electoral History not only in Africa but globally.
What is clear from court was that, the hunter also became the hunted. In his attempt not only to discredit the evidence of Afrai-Gyan but also his integrity and honesty, Mr Addison might have resorted to unconventional methods that were questionable and could put his own integrity and honesty at risk. Again, should his modus operandi persuade the Justices to rule in favour of the petitioners, Mr Addison’s integrity and honesty will soar higher into the skies and stands to reap the benefits of his unconventional tactics. His career will be on the ascendancy and could he even become the next Attorney General and Minister for Justice under an Akufo-Addo presidency. On the other hand, should the petition be rejected, he stands to take the blame for manufacturing evidence in court. Only time will tell but I am positive that by the end of August, the outcome of the petition would be known and we will be debating these matters on this forum after we have had time to read and digest the fine prints within the written decisions of the Justices.
Kofi Ata, Cambridge, UK