The Supreme Court will sit today to consider a request from the Electoral Commission (EC) asking the court to vary its orders in a petition challenging the legitimacy of President John Dramani Mahama. In a motion on notice filed on behalf of the EC by its solicitors, Lynes Quashie-Idun and Co, the EC urged the court to vary its April 2, 2013 order which directed respondents in the petition to file their written affidavits within five days from the service of petitioners’ affidavits on them.
Rather, the EC is praying the court to review its order by directing it (EC) to file its written response “within five days from the close of the petitioners’ case”.
What the EC is requesting the court to do is allow it and other respondents to file their evidence in the form of written affidavits after the petitioners have closed their case in the trial, which is set to begin on April 16, 2013.
The EC’s motion, which was filed on Monday, April 8, 2013, barely 24 hours after the petitioners had complied with the court’s directive to them to file their evidence in the form of affidavits, has been opposed by the petitioners.
Affidavit in support of EC’s motion
An affidavit in support of the EC’s motion deposed by one of its lawyers, Mr Anthony Dabi, said since the court was functioning as a trial court, “it is respectfully requested taking into account that the petitioners have the burden of proof or the burden of persuasion”.
It said the petitioners should be ordered to open their case, present their evidence (oral evidence and evidence by affidavit) and close their case before the second respondent is required to open its case, present its evidence (oral evidence and evidence by affidavit) and close its case.
The EC, which is the second respondent in the petition, is also praying that its request would not cause any delay or hinder the expeditious hearing of the case but, on the contrary, it would ensure “a smooth and well-ordered trial in accordance with the established procedures of the court”.
Petitioners oppose EC
According to the affidavit in opposition, the petitioners said a presidential election was not a private matter between two individual parties “but a matter of utmost importance for not only the contending litigants but for all political parties, the electorate and, indeed, Ghanaians as a whole”.
It further argued that the EC’s proposal could not find support, “whether directly or by analogy, in any rule of law, procedure or practice”.
It added that the EC’s application was without merit, had been brought in bad faith and calculated to overreach the petitioners and cause delay, adding, “It ought to be dismissed with punitive costs.”
Background to case
President Mahama and the National Democratic Congress (NDC) are the first and third respondents, respectively.
The petitioners, who are the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are calling for the annulment of 4,670,504 votes, representing votes cast in 11,916 polling stations across the country, due to what they term “gross and widespread irregularities”.
But the respondents have denied the petitioners’ claims on the grounds that the election results were credible.
After nine sittings to consider and rule on more than 20 interlocutory applications filed by parties in the case, the nine-member court fixed the date for hearing of the substantive matter after considering issues raised by lawyers for the parties in the case.
Issues for trial
The issues set out for trial are whether or not there were statutory violations,omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012.
The court will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results of the elections.