The Supreme Court will on Thursday, February 11, decide whether or not the Electoral Commission (EC) and President Akufo-Addo must call witnesses in the ongoing Presidential Election Petition filed by former President John Dramani Mahama.
The two respondents at the close of the case of former President Mahama, respectively submitted to the seven-member panel of judges that having heard the evidence of the witnesses produced by the ex-President and upon cross-examining them, they did not intend to call any witnesses.
Justin Amenuvor, lead counsel for the EC told the court that they would not be calling any witnesses to advance their case, insisting that having listened to the evidence of Mr. Mahama’s three witnesses and having cross-examined them, it was his submission that the EC did not need to adduce any further evidence.
“It is our submission that a respondent or defendant can elect not to adduce evidence at a trial in a civil case. It is the case for the first respondent (EC) that having heard the evidence of the witnesses of the petitioner and the cross-examination by us, it is our humble submission that we do not require any further evidence for this court to determine this matter and therefore, we do not intend to call evidence.”
He cited decided cases in which the court held that the court could not compel a party to testify in a matter and even where such laws existed, it would not be applicable.
He told the court that Mr. Mahama should be happy that the EC had decided not to call any witnesses.
“It is our submission that the petitioner had brought us to court, he has led evidence, he has closed his case, we do not think that there’s anything more for us to say. It is our election, it a risk we are taking. If indeed the petitioner has a good case, my lord, I believe that he should be dancing and be happy.
He further relied on the decision of the same court in the 2013 Election Petition, which made it clear about who bore the burden of proof in an election petition; and said the burden of proof was on the petitioners to discharge and not the EC, which had been sued.
“It is our submission that our application we made yesterday be upheld,” he said.
Akoto Ampaw, lead counsel for President Akufo-Addo, associated himself with the submissions of Mr. Amenuvor, and added that the burden of proof lay on the petitioner and if the defence decided not to lead evidence the court would have to rely on the evidence of the plaintiff to make a determination.
He told the court that Mr. Mahama should actually be content that the respondents had chosen not to testify since the court would largely rely on the evidence of his witnesses.
“When we elect not to adduce evidence, we do so at our own risk and we will fall on the sword if after evaluating the evidence of the petitioner the court comes to the conclusion that the petitioner has met his burden of producing evidence and burden of proof.”
“My lords, we believe that the petitioner ought to be happy because his case has advanced by his witnesses in the matters before the court together with the things we have elicited from the witnesses from cross-examination.”
Again, he told the court that the petitioner could not compel the respondents to enter the witness box to testify.
“We think that our decision works in favour of the petitioner and in any event, the petitioner cannot, my lords, compel us to enter the witness box and adduce evidence. Our submission and position is that the petitioner has adduced evidence and closed his case, we have taken the position that in our assessment they have not discharged the burden of proof and the burden of producing evidence; and therefore we will not lead any further evidence and the court will determine the case which has closed on the basis of evidence before it.”
Mr. Ampaw added that “we are of the view, especially in the light of the provisions of Constitutional Instrument (C.I. 87) that we are entitled not to adduce any evidence, we are entitled not to call any witness, and all that the petitioner will do if he so wishes is to tender our witness statement as heresy evidence.”
Tsatsu Tsikata, lead counsel for Mr. Mahama, opposed the application, saying the respondents had already adduced evidence by filing a witness statement and could not turn around to say they would not be calling witnesses.
“By filing its witness statement, the first respondent (EC) has clearly crossed the bridge as far as opening up the witness for cross-examining is concerned,” he said.
The judges then queried whether the mere filing of a witness statement constituted evidence as the statement on its own is not evidence until the one testifying on the content enters the witness box and swears an oath to rely on it.
Mr. Tsikata said that the filing of the witness statement constituted an election to adduce evidence and the rule they were dealing with related with the situation where the defendant elected not to adduce evidence.
He argued that the respondents were not seeking to withdraw the witness statements but were only announcing that they did not intend to call witnesses.
Set Down Issues
He referred to the issues set down by the court for determination and stated that issue number two related to what was done on December 9, 2020 and it was the constitutionality of that declaration that was at the heart of the petition.
Mr. Tsikata told the court that the EC opting not to adduce evidence was not only an affront to justice but also not in accordance with the rules of the Supreme Court.
“What is being put before you now is not only an affront to justice but is not in accordance with the rules of this court, and we respectfully submit that it must not be countenanced by this court,” Mr. Tsikata said.
Mr. Tsikata also added that the court should not allow the EC Chairperson to evade cross examination as she had constitutional duty to account for what she did in declaring who was elected as President through the December 7, 2020 polls
The seven member panel of the court presided over by the Chief Justice, Anin Yeboah, and assisted by justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo after listening to the legal arguments adjourned the matter to February 11, 2021 for ruling.
The former President has petitioned the Supreme Court over the results of the 2020 Presidential election, which according to the EC, was won by President Akufo-Addo.
Mr. Mahama in his petition is urging the Supreme Court to annul the results of the December polls as none of the candidates who contested the election got the required 50 per cent plus one of the total votes cast.
He is also asking the highest court for an order of injunction restraining President Akufo-Addo holding himself out as President-elect.
Again, the former President wants the court to order the EC to organize a second election with himself and President Akufo-Addo as the only two candidates.
BY Gibril Abdul Razak