Lithur, Bawumia lock horns at election petition hearing

BY: Enoch Darfah Frimpong

Tony LithurCounsel for President John Dramani Mahama, Mr Tony Lithur, Thursday engaged in many face-offs with the star witness in the petition against the 2012 presidential election, Dr Mahamudu Bawumia during a hearing at the Supreme Court.

It all started when Mr Lithur put it to Dr Bawumia during cross-examination that the witness had submitted to the court as exhibits some pink sheets which were duplicated in different categories of alleged electoral malpractices.

Mr Lithur, in the cross-examination, said, “l put it to you that you have used the duplicated pink sheets for the purpose of deceiving the court,” to which Dr Bawumia responded: “l suggest to you that it is not true,” amidst spontaneous laughter from members of the bench, the bar and the gallery.

Dr Bawumia explained that although duplicated pink sheets had found their way to the court, not a single one was relied upon and that those materials on the CD ROM were the ones used in the analysis.

In concluding his evidence-in-chief on the second day of the hearing of the petition, the star witness said the petitioners were seeking the annulment of 4,381,415 votes which were included in the results of the December 2012 presidential election by the Electoral Commission (EC).

He said those votes were tainted with widespread constitutional and statutory violations, irregularities and malpractices.

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Dr Bawumia, however, admitted under cross-examination before the Supreme Court that he submitted to the court as exhibits some pink sheets which were duplicated in different categories of alleged electoral malpractices.

Nonetheless, he vehemently asserted, upon incessant questioning by Mr Lithur that he never used the duplicated pink sheets in doing his analysis, which came to the conclusion that there were unpardonable omissions, malpractices and irregularities in the 2012 presidential election.

Dr Bawumia classified some of the alleged malpractices, irregularities and omissions as over-voting, unsigned pink sheets, voting without biometric verification and duplication of serial numbers on pink sheets.

He said the duplicated pink sheets identified by counsel were the manual ones on which some errors were detected and for which reason the petitioners resorted to electronic ones and used those in their analysis.

Counsel showed the witness many of the pink sheets of the same polling stations and which had been duplicated, marked differently and included in the exhibits before the court.

They included the pink sheets of the AGC Primary B Polling Station at Dunkwa-on-Offin, GCMB Cocoa Shed Jacobu, GCMB Cocoa Shed at Osede, the Mohammedan Mosque at Bosomase, Degu Government Residential and Anhiweo Primary School.

During the cross-examination, the responses of the witness generated laughter and comments from the gallery and that prompted Mr Justice Jones Dotse to caution those in the gallery to stop what he said was a dangerous practice.

Similarly, Mr Justice Sulley Gbadegbe interjected that since proceedings were being telecast live, a good picture should be painted of the country to the outside world.

Dr Bawumia stated that if the disputed votes were deducted from the results declared by the EC, the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo, would be the winner of the December 7 and 8, 2012 presidential election.

Led in evidence by Mr Phillip Addison, lead counsel for the petitioners, witness said the total votes of 5,574,761, representing 50.7 per cent, given to President Mahama and the 5,248,898 votes, representing 47.7 per cent, given to Nana Akufo-Addo, were wrong, taking into account those votes which the petitioners were seeking to be annulled.

He said if all the categories of malpractices and irregularities were combined, President Mahama’s votes would have be short by 1,298,658 votes, leaving him with 4,276,103 votes, representing 47.01 per cent, while Nana Akufo-Addo’s would be short by 561,885, leaving him with 4,687,013 votes, representing 51.53 per cent.

Dr Bawumia further explained that if the two categories of over-voting and voting without biometric verification were considered, then 978,371 votes would have to be deducted from the total votes for President Mahama, giving him 4,596,390 votes, representing 48.06 per cent, while Nana Akufo-Addo’s would be reduced by 4,228, leaving him with 4,826,890 votes, representing 50.47 per cent.

The witness, who was looking on a printed material, which he described as an updated version of their analysis, wanted that printed material tendered, but Mr Lithur forcefully objected on the grounds that the witness could not amend his pleading from the witness box and that respondents were not privy to those facts.

Counsel argued that allowing that meant respondents would have to go back to do some more investigations because they did not  base their preparations on those facts, saying, “My Lords, we are not prepared for it.”

He was supported in the objection by counsel for the EC, Mr James Quashie-Idun, and counsel for the National Democratic Congress (NDC), Mr Tsatsu Tsikata, who said the court directed the parties to file sworn affidavits, which Dr Bawumia did on behalf of all the petitioners and in which he alluded to pink sheets and led evidence on them.

Mr Tsikata asked counsel for the petitioners to maintain a high ethical standard, pointing out that the rules permitted them to amend pleadings but petitioners should not be allowed to sneak in the document.

But Mr Addison replied that what the witness was doing did not amount to an amendment of pleading.

“All he is seeking to do is to abandon part of the evidence and this reduces the burden on the respondents from 11,842 polling stations to 11,138,” he explained.

He said the document being sought to be tendered by the witness was an analysis of data which were already in evidence and which the witness sought permission to make reference to.

Mr Lithur still maintained that the document was prejudicial because counsel had prepared their case based on their response and allowing that would also undermine their cross-examination.

That compelled the court to take a short break to consider its ruling on the objection.

On resumption, the objection was overruled on the grounds that the document related to the results of voting involving the original high number pleaded by the petitioners and which evidence had been allowed.

According to the court, accepting the document would not spring any surprise on the respondents.

Hearing continues next Monday.

Story: Stephen Sah