The Supreme Court yesterday set a date for the hearing of the landmark petition in which three leading members of the opposition New Patriotic Party (NPP) are challenging the declaration by the Electoral Commission (EC) of John Dramani Mahama as President, in the December 7 and 8, 2012 general elections.
It follows the decision by the Supreme Court to set out the issues for the trial after the parties had failed to agree on the memorandum of issues and the mode of trial needed for the case to commence.
As it is, the court has fixed Tuesday, April 16, 2012 as the date on which it would start taking evidence, after clearing all outstanding issues that were perceived to delay the process.
Issues Set Out
After back-and-forth arguments by the parties yesterday, the nine-member panel presided over by Justice William Atuguba settled on two issues that the court said would be needed for the trial.
They are: Whether or not there were statutory violations in the nature of omissions, malpractices and irregularities in the conduct of the Presidential Election held on December 7 and 8, 2012 and whether or not the statutory violations, omissions, malpractices and irregularities affected the results of the election.
Mode Of Trial
The court also prescribed to the parties the mode of trial and ordered the petitioners to file affidavits indicating the number of witnesses each party intends to call in the trial on or before Sunday April 7, after which the respondents have five days to file their affidavits indicating their witnesses.
The court made it clear that to ensure expeditious trial, oral testimony will only be given by the parties in the petition.
Per the court’s directive, it is only NPP presidential candidate Nana Addo Dankwa Akufo-Addo (1 st petitioner), his running mate Dr. Mahamudu Bawumia (2 nd petitioner) and the party’s Chairman, Jake Otanka Obetsebi-Lamptey (3 rd petitioner) who can give oral evidence at the trial.
President Mahama, as 1 st respondent, Electoral Commission (EC) – the body that supervised the election – as 2 nd respondent, and the National Democratic Congress (NDC) which later joined the petition as 3 rd respondent, also have the right to give oral testimony.
This directive brings to a close the threat by some of the parties, particularly the first respondent, President Mahama, that he was going to unleash a multitude of witnesses on the court running close to 5000.
The rules permit the court to sit on the petition on all days including weekends and public holidays.
Yesterday, the court which usually commences sittings around 10am, rather sat at about 11:08am, leaving the packed audience wondering what might have gone wrong.
After the long wait, Justice Atuguba told the anxious audience that the court had proposed to narrow the issues to only two and invited the legal teams for their views after Justice Sulley Gbadegbe, another member of the panel, had read the issues out.
Justice Atuguba then said, ‘We are adopting this for the first time. Strictly speaking, the court has rules and it was based on this that we asked the parties to go and agree on the memorandum of issues’.
He said, ‘We feel that in a matter like this, the rules as they stand, do not contemplate the rule of dissent and we are giving you the opportunity to hear your reactions on the issues as set out by the court.’
The panel chairman also said, ‘We do not want to run down the issues on your throats but we have the power to force the issues on you in case of any dissent.’
Parties Agree On Issues
Philip Addison, lead counsel for the petitioners, took the stage and said that with the court agreeing to add malpractices to the nature of statutory violations, the petitioners were satisfied with the issues set out.
Tony Lithur, lead counsel for President Mahama said, ‘We are happy with the issues set out’.
Tsatsu Tsikata, lead counsel for the NDC, told the court, ‘We have nothing reasonable to add’, but James Quarshie-Idun, leading the EC legal team, told the court that they needed 10 minutes to be able to decipher what the court had set out.
The court then repeated the terms of the issues as set out and the EC counsel said, ‘We are happy to go along with it.’
Mr. Addison then came again to say, ‘I do not know if we are done with the directions. We need to hear from the court on the mode of trial.’
Justice Atuguba then said, ‘We think this matter can be expedited. People are quoting the Kenyan precedent. We can only try to expedite the trial.’
The judge said, ‘Since the evidence are very specific, we propose that the evidence should come in the form of affidavit and where necessary, applications come in the form of cross-examination’.
Mr. Addison then told the court that ‘we are happy that the evidence will be given by way of affidavit. We are praying that in cases where a witness is required, we suggest that a witness should be able to do a power point presentation.’
Justice Atuguba made it clear that the request for the use of ICT gadgets would be difficult because the court was handicapped in respect of the gadgets.
Mr. Addison then said, ‘We are going to provide the gadgets’; but Justice Atuguba answered that ‘if for instance a witness is to come at large, then a very compelling case should be made for that.’
The NPP lead counsel said, ‘We are dealing with voluminous data and we think power point presentations would help’.
However, Justice Paul Baffoe-Bonnie, a panel member, reminded counsel that what they were suggesting might not only be audio but video as well, which the court would find difficult to deal with.
Justice Sophia O. Adinyira, another panel member, cut in to say that ‘not all of us are technically inclined. We have discussed this issue in chamber and we found some of us handicapped.
‘As at now at the Ghana Judicial Service, we have had training on ICT, but the equipment to work with has not been provided.’
Justice Gbadegbe then said, ‘Let us just do it conservatively, that is how we are used to.’
Mahama Joins Argument
Mr. Lithur told the court that ‘we would prefer that some of the evidence is given in open court.’
Justice Gbadegbe cut in again to remind counsel of Rule 69 (c) (8) of C.I. 74 which mandates the court to do trial on affidavit but Mr. Lithur replied that ‘our preference is oral testimony, subject to cross examination.’
‘We intend to lead evidence in each polling station where the petitioners claim irregularities occurred and we would need time to get the witnesses to sign and file the affidavit.’
Counsel told the court that per the rules, they (petitioners) needed to lead evidence to close their case before the respondents would file their affidavit, saying, ‘The system is that plaintiff starts their case, finish and we respond.’
‘When the affidavit is supposed to be in place of the evidence, that evidence must be subject to cross-examination,’ he said.
Mr. Quarshie-Idun then came in and said, ‘We prefer the approach of the court by way of cross-examination and not by power point. Their case will give us an idea of how many affidavits we intend to file.’
NDC Joins Argument
Tsatsu Tsikata said, ‘The petitioners have made a number of allegations and they have to prove their case by sworn evidence.
‘Let the petitioners come and put their case in the manner this court is used to. Power point, audiovisuals are completely irrelevant. It is a red herring and meant to take us on a wrong tangent.’
Further & Better Particulars
The EC counsel then moved their motion for further and better particulars in respect of the 28 polling stations that the petitioners alleged were not part of the 26,002 polling stations provided by the commission.
Mr. Quarshie-Idun told the court that the petitioners only provided 22 out of the 28 and were left with six; and therefore asked the court to compel the petitioners to provide the further and better particulars of the remaining six polling stations.
He also moved his application seeking to amend the amended answer to the amended petition.
Mr. Addison, responding to the EC motion, reminded the court that even though the EC filed the motion, it was deposed to by Johnson Asiedu-Nketiah, who has been representing the 3 rd respondent (NDC) in the petition.
‘We cannot have a situation where one party files an application and another party files the affidavit in support,’ counsel said.
Mr. Tsikata then came in to say that in respect of the 28 polling stations, ‘application for further and better particulars cannot be left to the interpretations of the parties except the court.’
Mr. Addison then indicated that the application by the EC is an afterthought, since the further and better particulars were furnished on February 12 as directed by the court.
He said what the EC is seeking to do is ‘belated’ and added that ‘there is no denial by the EC that they have not received the further and better particulars. We have complied with the court order.’
Counsel said the proposed amendment ‘is a complete narration and not pleadings,’ adding that ‘it clearly offends the rules of proceedings especially the proposed paragraph 18 (a).’
‘No harm will be done to their answer if the proposed paragraph 18 (a) is struck out.’
Mr. Addison said the proposed amendment of 18 (a) is not about polling stations but something else, even though they (petitioners) had supplied them.
The court then ruled that once the petitioners had ‘restricted’ themselves with 22 instead of 28 polling stations where they claim irregularities occurred, the application for further and better particulars ‘lapses’.
However, in a 6 -3 majority decision, the court held that the proposed paragraph 18 (a) to be amended by the EC was granted and ordered the EC to file the amendment by today.
Justices Rose C. Owusu, Annin-Yeboah and Gbadegbe dissented while Justices Atuguba, Adinyira, Ansah, Jones V. Dotse, Baffoe-Bonnie and Vida Akoto Bamfo said the EC could file the amendment.
Mr. Lithur then took the stage once again saying that they have filed another application for further and better particulars, requesting the petitioners to furnish them with details of the 11,916 polling stations as they claimed.
He said after their analysis of the situation, they found out that only 8,579 polling stations were supplied, noting, ‘If they will agree to restrict themselves to the 8,579 polling stations, we would not have issues; otherwise they should amend it to reflect what we have.’
Mr. Addison then cut in to say that ‘8,579 is admitted in his case and not ours,’ adding, ‘We have complied with the order and the onus is on us to prove our case. The other parties have not come to mention any 8,579.’
Mr. Lithur then said, ‘We will then file for interrogatories if that is the case. I thought they will concede.’
Mr. Quarshie-Idun also came in to say that in paragraph 18 of their amended answer, they said the figure given by the petitioners was not up to 11,916.
Mr. Tsikata also said that the NDC was facing similar problems with regard to the further and better particulars, adding, ‘The court will have to determine who is mathematically challenged.’
Justice Atuguba then noted that the court could ascertain the issues in the course of time, saying, ‘You are indirectly trying to compel the petitioners.’
By William Yaw Owusu