The sudden speed with which things turned up in the presidential election petition case at the Supreme Court last Tuesday might have taken everyone by surprise.
The court, in issuing directions last Tuesday ordered that all evidence by affidavit must be filed by the petitioners within five days, which expires on Sunday.
With the court making it clear that, apart from evidence from the six named parties to the suit all other evidence must be by affidavit, the petitioners and their lawyers are busily and urgently putting materials together to file what one insider said may amount to nearly half a million documents.
This is so because the petitioners are alleging violations, omissions, malpractices and irregularities in some 11,916 polling stations. The case of the petitioners, namely, Nana Akufo-Addo, Mahamudu Bawumia and Jake Obetsebi-Lamptey, is based on the very documents the Chairman of the Electoral Commission relied on to declare John Mahama the winner of the December 2012 presidential contest.
Although there are 11,916 polling stations, there are multiple instances of infractions covering 26 grounds in the petition. This is what accounts for the hundreds of thousands of copies expected to be filed by Sunday.
This means that the petitioners must present by Sunday copies of nearly 12,000 Statements of Poll and Declaration of Results (commonly called Pink Sheets) and there must be some 20 copies of each of the 12000 pieces of evidence, with each supported by affidavit.
It is a monumental task by any stretch of the imagination and if these copies are to supplied in colour for easier legibility, the cost of the entire exercise could run as high as approximately GHc250,000 Ghana.
But, such is the importance and urgency of the task at hand that failure to file any of the evidence by Sunday will shut the judicial door on that and this may be fatal to the petitioners’ case.
So the lawyers, led by Gloria Akuffo and the team of statistics analysts, led by Dr Bawumia, are working overtime to deliver all the evidence within time.
Analysts believe that any chance of Raila Odinga winning his petition against Uhuru Kenyetta in Kenya last week was lost when his lawyers were not able to file the bulk of their findings of irregularities within the short time allowed by the country’s laws in presidential election petitions.
Perhaps, spurred on by the speed with which their Kenyan counterparts disposed off their petition, the nine Supreme Court justices, with Justice William Atuguba presiding, was in no mood to entertain any delay tactics when they resumed sitting last Tuesday.
John Mahama’s lawyer’s plea that his client intended to call over 8,000 witnesses and “each will need five to ten minutes in the box,” appeared to have made the court even more resolute to be strict on the rules, which says in CI 74 (Supreme Court (Amendment) Rules, 2012), that “the court shall inquire into and determine the petition expeditiously and shall give its decision not later than 15 days from the close of hearing.”
The court accordingly ruled that except with compelling reasons given, oral evidence is restricted to only the four persons in the suit, plus a representative each for the Electoral Commission and the National Democratic Congress.
This is common with election petitions everywhere. Our checks show that affidavits evidence are used in election petitions in Nigeria, Kenya, Uganda, Zambia, Ukraine, and the United States, among other places.
CI 74 is crafted to avoid delay and with the directions issued and hearing date set for April 16, several lawyers contacted by the New Statesman believe that this case may be over in six weeks time.
The rules say that once hearing begins, the court shall sit every day, involving weekends and public holidays.
On Tuesday, the court narrowed down the issues to be determined to two: (1) whether or not there were violations, omissions, malpractices and irregularities in the presidential election held on 7th and 8th December, 2013; (2) whether or not the said violations, omissions, malpractices and irregularities, if any, had an effect on the results of the presidential election.
Now, it is a race against time. First for the petitioners, and after they file, the three respondents also have five days to respond. For now, the race may be for the swiftest, after which it will all come down to the weight of the evidence.
The petitioners are asking, among others, that some 918,344 votes must be annulled because of over-voting, thus more votes declared than ballots issued or the number of people registered to vote at the affected polling stations; that 634,825 votes must be annulled because people were allowed to vote without going through biometric verification as specified by law. They are also questioning the presence of nearly three million duplicate pink sheets in the system, which they allege might have been used to facilitate the alleged grand malpractices which led to John Mahama being unlawfully declared as the winner of the presidential election of last December.