STATEMENT: KPMG Draft Report Out...Vindicates Petitioners

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STATEMENT: KPMG Draft Report Out...Vindicates Petitioners

Lawyers for the petitioners in the Election 2012 disputed polls currently before the Supreme Court claim evidence available from the draft report by auditing firm, KPMG and the cross-examination of Dr. Bawumia by the Respondents strongly supports their (Petitioners’) claim that they filed 11,842 pink sheets out of which the Petitioners are relying on 11,138 pink sheets.

A letter signed by a member of the Petitioners Counsel, Akoto Ampaw, noted that the sheer volume of the material to be served on the different parties and the judges - covering 24 separate categories of violations and irregularities – raised the potential for mix-ups and mistakes high; as captured in the draft report which shows that some mix-up occurred in the course of the service of the exhibits.

In light of the above any shortfalls in the pink sheets served on the Respondents should be obtained from the Registry,” the lawyers said.

KPMG COUNT VINDICATES PETITIONERS

The KPMG count of number of exhibits submitted by the petitioners in the ongoing Supreme Court Presidential Election Petition has established very clearly that the Petitioners submitted more than 11,000 unique polling station pink sheets as the petitioners have reiterated all along.

This is far in excess of the 3,500 pink sheets the petitioners need to get an outright declaration for Nana Akufo-Addo as the winner of the December 7th elections if the court upholds the arguments of the petitioners.

The KPMG count has also pointed to mix-ups in the service by the Registry to the various parties as accounting for the discrepancies in exhibits received by the parties.

The count showed general discrepancies in the exhibits of both the registrar and the presiding judge. An analysis of the KPMG count shows that there are pink sheets in the registrar’s set that were not found in the set of the president of the panel and also pink sheets in the president’s set that were not found in the registrar’s set.

Also revealing, as has been pointed out in the comment of the petitioners on the report of KPMG, is the fact that out of the pink sheets used by the respondents for the cross examination of 2nd petitioner, Dr. Mahamudu Bawumia, are a number of pink sheets not found in either the registrar’s set or the president of the panel’s set indicating that the respondents also had pink sheets that were not found in both the registrar’s set and the president of the panel’s set.

KPMG COUNT

The Count of the Registrar’s copy showed a total count of 13,926 physical sheets including duplicates of 3,593 leaving a unique count of 10,333.

The count of the President’s set of pink sheets on the other hand indicated a total of 9,860 pink sheets excluding a box of pink sheets in the exclusive duplicate serial number series (P- series) that has not been counted. Interestingly, the count of the President’s set indicated a total of 871 pink sheets that are not part of the registrar’s set.

An analysis of the KPMG count, taking into account the unique polling station pink sheets as has been noted by the petitioners in their comment on the report, also reveals that the respondents (John Mahama, EC & the NDC) presented over 4,000 pink sheets in their cross examination of the 2nd petitioner, Dr. Mahamudu Bawumia out of which 1,097 are not part of the registrar’s set as counted by KPMG. Incidentally, 1,015 of these 1,097 are in the MB-P series which is in apparent shortage in the registrar’s set. 648 of these pink sheets were not part of the registrar’s or the president’s set.

UNIQUE PINK SHEETS

The count of the Registrar’s set shows that a total of 10,333 unique pink sheets (including 709 pink sheets with unclear or blank polling station codes) were identified. Adding the 871 pink sheets from the President’s set not contained in the registrar’s set clearly indicates that the petitioners submitted a minimum of 11,204 pink sheets to the registry, taking into account only the counts of the Registrar and Justice Atuguba’s sets. Additionally, the 648 pink sheets used by the respondents in their cross examination but not contained in either the registrar’s or the president’s set as has been noted by the petitioners brings the number of unique pink sheets to 11,852.

The petitioners, however, in their comment to KPMG on the report indicate that using combination of polling station name, serial number and exhibit number; they have so far been able to identify 655 out of the 709 pink sheets with unclear or blank polling station codes. Out of these 655 identified, 343 have been identified as unique, meaning that if the duplicates are taken out, it would show that the petitioners submitted a minimum of 11,540 unique pink sheets.

MIX-UP IN SERVICE

The findings of the KPMG count clearly show that there were some mix- ups in the process of service by the registrar on the various parties as even some of the exhibits in the sets of the president of the panel and the respondents are even not in the registry’s set.

Indeed, it stands to reason that if the petitioners, from the available evidence contained in only two sets of the exhibits – the registrar and the president of the court as well as the few exhibits used by the respondents in their cross examination, have been able to prove a minimum of 11,540 exhibits submitted, then the petitioners could have easily proven all the 11,842 pink sheets if the respondents had been compelled to list to the court all the exhibits they claim to have received.

RESPONDENTS' CASE

It is interesting to note that the count of the President of the court’s pink sheets, which was pushed for strenuously by the respondents, has ended up even supporting the case of the petitioners and establishing that the petitioners’ indeed submitted over 11,000 pink sheets and that any issue with the number of unique exhibits could only have arisen from problems in service on the part of the registry, which served all the parties as well as the Judges.

The respondents had severally maintained that the petitioners’ submitted between 7,000 and 8,000 pink sheet exhibits including duplicate exhibits and kept insisting that a count would vindicate them.

THE PETITIONERS' CASE

The petitioners are currently challenging results from 11,138 polling stations. It has been identified that the conduct and outcome of elections in these polling stations were affected by various irregularities as is evidenced on the face of pink sheets from these polling stations. These irregularities fall into four main categories – over voting, voting without biometric verification, no signature of presiding officers and the occurrence of duplicate serial numbers on pink sheets.

The petitioners need only 1,500 pink sheets to bring john Mahama down and trigger a run off as annulling any 1,500 polling stations in the 11,138 polling stations being challenged would mean that John Mahama would not have received the necessary 50%+1 needed for a victory as was declared on December 9th

This is because all the petitioners need to do is to be able to take off 154,000 votes from the total of John Mahama declared by Afari Gyan, to see him below the 50%+1 required tally for an outright win and any of the 4 major categories if sustained by the Supreme Court would ensure this.

Again, the petitioners need just 3,500 Pink Sheets to be sustained by the Court to get Nana Akufo-Addo declared as the outright winner of the December 7th Elections. All the petitioners need is to annul enough votes to ensure than Nana Akufo-Addo gets a 200,000 margin over John Mahama to ensure the 50%+1 mark and this is achieved by a combination of any two categories.

For example, a combination of the “Over voting” and “No biometric verification” categories has 3,525 polling stations. Should the Court sustain these two categories, annulling the 3,525 polling stations would see Nana Addo having 50.47% (more than the 50%+1 required) as against John Mahama’s 48.06%. Nana Akufo-Addo in this case would have a 230,000 margin over John Mahama.

Read below the full observations by the Petitioners’ counsels on the Draft KPMG Report

13 Yiyiwa Drive,

Abelenkpe, Accra.

Attn: Mr. R. B. Perbi

Dear Sir,

COMMENTS ON KPMG DRAFT REPORT

We act for the Petitioners in the presidential election petition, Writ No. J6/1/2013. We have examined your draft report addressed to the Judicial Service of Ghana and dated June, 2013 together with the four (4) volumes of annexures thereto and submit the following observations thereon:

1. General Observations

We filed the affidavit pursuant to the Court order dated 2nd April 2013 together with exhibits contained hundreds of boxes and envelopes at the Court Registry. These exhibits covered 24 separate categories of violations and irregularities. The sheer volume of the material to be served on the different parties and the judges was such that the potential for mix-ups and mistakes was high. Indeed your draft report shows that some mix-up occurred in the course of the service of the exhibits. In particular:

• There are pink sheets in the Registrar's set that were not found in the set of the President of the panel (See Appendix C.2. of KPMG report).

• There are pink sheets in the President's set that were not found in the Registrar's set (see Appendix C.3 of KPMG report).

• Out of the pink sheets used by the Respondents for the cross-examination of 2nd Petitioner, Dr. Mahamudu Bawumia, there are 1097 pink sheets not found in the Registrar's set and 648 pink sheets not found in either set. We attach a list of these pink sheets as Annexures 1 and 2.

• There is a box of pink sheets of the President's set that has not been counted. This renders the count of the president's set incomplete. There are pink sheets found in the President's set but which are not in the Registrar's set and vice versa. The use of the president's set as the "control measure" will therefore not achieve the intended purpose. This is particularly so, when the exhibits were not filed with the president of the Court nor was the president responsible for service of same.

• The P-Series in their required copies was fully supplied to the registry in lots and ranges covering the 10 regions of Ghana. However, the draft report presents the P-series in 18 lots with overlaps as presented in the Table on pages 9 and 10 where Nos. 17 and 18, 19 and 20, 21 and 22, 23 and 24, 25 and 26, 27 and 28, 28 and 29, and 30 and 31 contain overlaps. It is therefore apparent from the breakdown of the P-Series presented at pages 9 and 10 of the report that some mix-up of the pink sheets of this series occurred.

• There are also a large number of exhibits in the "Strong Room" of the Registry which have not been counted but ought to have been counted in accordance with the Court order dated 9th May 2013 directing the referee " to make a faithful and truthful count of all the exhibits of pink sheets delivered by the Petitioners to the Registrar of the Supreme Court..... ".

In the face of the obvious mix-up in the course of service of the exhibits, the Respondents should have obtained from the registrar any shortfall in exhibits as the 1st Respondent did for the MB-C series.

2. Unclear/Blank Polling Station Codes

Of the Registrar's set of pink sheets, there were 244 with unclear or invalid polling station codes and 465 with blank polling station codes, making a total of 709 polling stations. Out of the 709 pink sheets we used a combination of exhibit number, polling station name and the serial number (where we were able to take the serial numbers from the count) on the pink sheets to identify 655 polling stations. We attach a list of these 655 pink sheets as Annexure 3.

Of the 709 pink sheets, there are 54 that cannot be identified by polling station codes. Considering that we used the serial numbers on the pink sheets provided by our representatives to help identify 655 polling station codes, we are requesting that you provide the serial numbers of the pink sheets that still have a blank or unclear polling station code to make for easy identification.

Alternatively, the Petitioners can make available to the referee a CD-ROM containing all the 11,842 pink sheets from the further and better particulars to assist the referee identify the unclear or blank polling station codes.

3. Entry Errors for Polling Station Codes

In reviewing the draft report we noticed 171 entry errors for polling station codes in the data set provided by you. We attach a list of these pink sheets with the correct polling station codes as Annexure 4.

4. Exhibits Numbers and Categorisation

It is not in doubt that there was the challenge of labelling and categorisation of exhibits. This is explained by the sheer magnitude of the exercise of first assembling the material upon which the petition is founded, to wit, the pink sheets from across the whole country, and analysing and categorising them for the purpose of grounding the petition. All this had to be done within the twenty-one (21) day constitutional deadline.

Following the direction of the Court on the mode of trial and the specific order for the Petitioners to file their affidavit evidence within five (5) days, a new challenge of putting together hundreds of thousands of pink sheets and labelling same with exhibit numbers arose. In such a huge enterprise, which was, in addition, strictly time-bound, some margin of error in categorisation and labelling of exhibits was simply unavoidable, even if regrettable.

It is therefore not surprising that the draft report identifies pink sheets of same polling station, same categories, but different exhibit numbers. A substantial number of such errors was the result of the shift from manual labelling of pink sheets, which proved quite laborious and pregnant with error, to electronically-generated labelling, in order to meet the Court's five-day deadline. Again, the report identifies pink sheets of different polling stations but with same category and same exhibit numbers. This was largely, though not wholly, due to human errors in manual categorisation and labelling.

These challenges notwithstanding, the unique pink sheets can be identified by their polling station names, codes and serial numbers, and are clearly set out in our answer to the application by Respondents for further and better particulars. We are of the respectful view that to resolve the challenges posed, the Referee should compile a list of unique pink sheets with their specific exhibit numbers which the Court can adopt as the official copy, and which all the parties can then use as their reference.

5. Pink Sheet Count

The draft report does not provide a finding of unique polling station/pink sheet count from the Registrar's and President's sets. The information that enables us to get this is however available in the report.

From the count of the Registrar's copy we know that there was a total count of 13,926 (see Appendix A.1 of KPMG report), with duplicates of 3593 (see Appendix A.4 of KPMG report), leaving a unique count of 10,333 pink sheets.

The count of the President's set of pink sheets on the other hand indicated a total of 9,860. This however excludes the box of pink sheets in the P-series that has not been counted. Unfortunately, due to time constraints, we have not been able to undertake a detailed analysis of the report on the examination of the President's set. We observe however that there are 871 pink sheets in the President's set that are not part of the Registrar's set. We attach a list of these pink sheets as Annexure 5.

It is important to note that during the process of cross-examination of the 2nd Petitioner, the Respondents presented 1097 pink sheets which are not part of the Registrar's copy. We attach a list of these pink sheets along with the full set of exhibits presented by the Respondents in cross-examination as Annexure 6(a) and 6(b). Incidentally, 1015 of these 1097 pink sheets are in the P-Series where there is an apparent short supply in the Registrar's set. Furthermore, 648 of these pink sheets were not part of the Registrar's or President's sets. We attach a list of these pink sheets as Annexure 7. These outcomes further point to a mix-up in the service of the exhibits.

An assessment of the unique pink sheets from the Registrar's set shows that a total of 10,333 unique pink sheets (including 709 pink sheets with unclear or blank polling station codes) are contained in the Registrar's set. Adding the 871 pink sheets from the President's set not contained in the Registrar's set clearly indicates that the Petitioners submitted a minimum of 11,204 unique pink sheets to the registry.

Additionally, there are 648 pink sheets used by the Respondents in cross-examination of the 2nd Petitioner but not contained in either the Registrar's or President's set. This would bring the number to 11,852 unique pink sheets. The draft report notes that tests were not conducted for duplicates of pink sheets with unclear and blank polling station codes. We note that of the 655 polling stations with unclear or blank polling station codes, 343 are unique (i.e. no duplicates). Adjusting for this would mean a minimum of 11,540 unique pink sheets was delivered to the registry by the Petitioners from the available evidence. An examination of the undelivered boxes in the court's Exhibit room will increase this number. The evidence available from the draft report and the cross-examination of Dr. Bawumia by the Respondents therefore strongly supports the Petitioners' claim that they filed 11,842 pink sheets out of which the Petitioners are relying on 11,138 pink sheets.

6. Conclusion

In light of the above any shortfalls in the pink sheets served on the Respondents should be obtained from the Registry.

We are available for any further clarification you may require.

Yours faithfully,

Akoto Ampaw

Akufo-Addo, Prempeh & Co.

cc: 1. Tony Lithur Esq., LithurBrew & Company, Accra.

2. Samuel Codjoe Esq., Law Trust Company, Accra.

3. James Quashie-ldun Esq.., Lynes, Quashie-ldun & Co., Accra.

4. The Registrar, Supreme Court, Accra

From the Communications Directorate, NPP/Ghana.