According to spokespersons allied to the 1st and 3rd Respondents in the ongoing election petition, their main aim in pursuing the issue of the KPMG audit is to reduce the number of votes that the Petitioners want annulled. Their hope is that if they succeed in setting aside 25% of the number of pink sheets that the Petitioners claim they filed, they would be chipping away at the material effect of any alleged infractions the Court may uphold.
The question to ask at this stage is whether the Respondents have followed normal court procedures in addressing this issue of shortfalls in exhibits and whether they are sincere in their claims. According to ‘neutral’ lawyers who have commented on this issue, the situation could have been easily remedied by recourse to the Registry. Reference could even have been made to the Petitioners to supply the remainder, if the Registry was also missing those copies.
In the case of the first Respondent (i.e. President Mahama), such request was made to the Registry, upon service, after which the shortfall was made up. In the case of the second Respondent (i.e. the Electoral Commission), they refused service the first time round until they assured themselves that they have the full complement of exhibits. What all three Respondents are now claiming is that they have, since the evidence was served on them, found gaps within the numbered series. If this is true, then the fact that the Registry served them with incomplete exhibits in the first instance should indicate that the Registry broke up the distinct sets filed by the Petitioners and probably got them mixed up. Thus when the issue first came up, all that the Court ought to have done was to ask the Respondents to go to the Registry to collect any shortfall. By failing to take this action, the court has rather allowed the Respondents to play ‘mischievous’ games with the issue.
Thus we now have the situation where the court has inadvertently aided the Respondents to sow some doubt regarding the number of pink sheets filed necessitating the involvement of KPMG as Referee. Following the Registry’s turning down of the offer by National Security to safeguard the security of the pink sheets and the refusal of KPMG to allow the lead Counsels for the 1st and 3rd Respondents to observe the count, came the allegation that some criminality had taken place at the Registry with the smuggling in of boxes of evidence. On this issue of ‘smuggled’ boxes, the number has varied from 7 to 10, depending on who is making the claim.
Do the Respondents really have any basis for this allegation? I do not think so. My hunch is that they are basing the 24 boxes on the fact that the Petitioners placed the alleged infractions into 24 categories. However, the number of exhibits in each category varies from 2 in the U-, Y-, and AA-series; to 6,823 in the P-series. In as many as 9 series, the number of exhibits is 20 or less. It stands to reason that such exhibits might be found in envelopes rather than boxes. Further the Respondents were not at the Registry at the time of filing; hence it is only the Registry that can authoritatively speak to the number of boxes filed but it is the integrity of this same Registry that they are attempting to impugn.
Now to the KPMG audit. If the exercise is just to determine the number of pink sheets held by the Registry, then it can be settled by the first count. It is the activation of a so-called ‘control mechanism’ that is baffling because the method has no scientific basis at all, which I will discuss subsequently.
First, the Court, by ordering this activation which it justified as a measure of ‘fairness’, is signalling that it has reasons to doubt its own Registry. However, the Registry is part of the same court. What conclusions then, is the court seeking to make if there were to be variance between the two sets counted? Since the Petitioners do not man the Registry they cannot be accused of smuggling in anything without incontrovertible evidence to that effect. So, if the court were to find that the exhibits in the Registry have been compromised, what stops it from also finding that those in the custody of Justice Atuguba have been compromised? Even if it does not find the second scenario plausible, the Petitioners have every right to suggest so since they are dealing with the same court in both cases. This would be pitting Justice Atuguba against the Registrar. Who is to be believed in such circumstances? The question to ask then is: should the court have allowed itself to be dragged into such a muddle?
The activation of a so-called control mechanism, using the exhibits supplied by the Registry to Justice Atuguba has little or no scientific basis. If a ‘control set’ of exhibits was required, a number of steps should have been taken from the onset at the time the evidence was filed.
1. The Petitioners should have been made to file a single copy of their evidence from which copies could have been made for the Justices and to serve the Respondents. The originals should then have been marked as ‘control’ and kept away from ordinary access. Failing to prepare, designate and handle such ‘control’ at the initial stages, invalidates any control mechanism subsequently set up.
2. Another way to have designated a ‘control’ was if, initially, all the sets of exhibits filed by the Petitioners were checked to see that they were identical. The Registry’s copies could then have been stamped, handled and stored as ‘control’. This is what should probably have happened but we are told by Counsel for the 1st Respondent that this was not done.
3. Even with the opportunity for preparing and marking a ‘control’ set a priorí already missed, some mitigation of the effects of this flaw could have been achieved by allowing KPMG to randomly select which of the Justices’ copies to use as ‘control’. By prescribing Justice Atuguba’s copies as ‘control’ removes any lingering notion of there being a scientific basis to the ‘control mechanism’.
In view of these, KPMG and indeed the Court cannot draw any conclusions from the auditing exercise beyond reporting the numbers and categorisations in the two sets. The Petitioners will have enough scientific grounds for challenging any other conclusions made by anyone beyond these. In the end, it is my take that the court would be seen as having wasted its own time!
Dr Yaw Ohemeng
Manchester, UK
