John Mahama and Jean Mensa
The Supreme Court will today decide whether or not none of the 12 candidates that participated in the 2020 Presidential Election got the constitutionally mandatory 50 per cent plus one of the total valid votes as alleged by former President John Dramani Mahama.
The seven member panel is expected to determine whether the Electoral Commission (EC) would have to organise a run-off election between the petitioner, former President John Dramani Mahama, and President Akufo-Addo, who was declared winner by the EC on December 9, 2020 after the crucial December 7 General Election.
Another issue the court would be considering is whether the petition filed in late December last year disclosed any reasonable cause of action per Article 64 Clause 1 of the 1992 Constitution and should have been dismissed from the onset as prayed by the respondents (EC and President Akufo-Addo) in the matter.
Main Petition
The former President wants the court to declare that the result of the 2020 Presidential Election announced by the Chairperson of the EC, Jean Adukwei Mensa, was in breach of Article 63 (3) of the 1992 Constitution.
Mr. Mahama in his petition is urging the Supreme Court to annul the results of the December polls as per the data contained in the declaration that none of the candidates who contested the election got the required more than 50 per cent of total valid votes cast.
He is also asking the 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.
Settled Issues
The issues set down by the court are common among those chosen by the lawyers for the parties in the matter.
A seven-member panel court presided over by Chief Justice, Anin Yeboah and assisted by Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo was set to determine whether or not based on the data contained in the EC’s declaration of President Akufo-Addo as President-elect, no candidate obtained more than 50 per cent of the valid votes cast as required by Article 63(3) of the 1992 Constitution.
Again, the court would determine whether or not President Akufo-Addo still met the Article 63(3) of the 1992 Constitution threshold by the exclusion or inclusion of the Techiman South Constituency presidential election results.
The fourth issue the court would be determining is whether or not the declaration by the EC on December 9, 2020 of the results of the presidential election conducted on December 7, 2020, was in violation of Article 63(3) of the 1992 Constitution.
Finally, the court would also determine whether or not the alleged vote padding and other errors complained of by the Mr. Mahama in his petition affected the outcome of the Presidential result of 2020.
Mahama’s Witnesses
The petitioner called three witnesses – Johnson Asiedu Nketia, Dr. Michael Kpessa-Whyte and Robert Joseph Mettle-Nunoo, aka Rojo – to advance his case before the court.
Mr. Nketia’s evidence contained allegations of vote padding at some centres in favour of President Akufo-Addo, which he said affected the outcome of the election.
His evidence also challenged the December 9, 2020 declaration made by the EC and the December 10, 2020, press statement which sought to correct an error made by the EC boss while declaring the results the previous day.
Dr. Kpessa-Whyte who was one of the two representatives of the NDC stationed at the National Collation Centre (‘Strong room’) of the EC during the election claimed that he witnessed “many material irregularities” whilst in the EC ‘Strong room’.
His third witness, Mr. Mettle-Nunoo, also claimed that he was misled by officials of the EC to sign some collated results which had outstanding issues that needed to be addressed.
He also claimed that he and his colleague had been “sent to convey a message to the petitioner” after he had spoken to Ms. Mensa about the challenges with some of the summary sheets from the region and was shocked to have heard the EC boss announce the result in their absence.
Respondents’ Move
The petitioner closed his case on February 9, 2021 after calling three witnesses; and the respondents in the matter – EC and President Akufo-Addo after cross examination of the witnesses of the petitioner – elected not to adduce any further evidence in the trial, urging the court to determine the matter based on the evidence of the petitioner’s witnesses and documents filed.
It was the case of both respondents that the petitioner did not meet the threshold for burden of proof and the burden of providing evidence which would have shifted the burden of proof on them, hence they would not adduce any further evidence in the trial.
Petitioner’s Objections
The decision did not go down well with lawyers for Mr. Mahama who argued that the EC Chairperson could not ‘evade’ cross examination as he insisted the EC Boss had already elected to adduce evidence by way of filing a witness statement at the pre-trial stage.
Tsatsu Tsikata, lead counsel for Mr. Mahama, then filed an application urging the court to order the witness to testify but the court in a unanimous decision on February 11, overruled the objection stating that it would be going beyond its powers if it were to compel the EC Chairperson to testify in the trial.
The court held that it was a well settled principle of law that a court could not compel a party in a case to adduce evidence.
Reopen Motion
Mr. Mahama’s lawyers, after the court’s decision, quickly filed a fresh motion to reopen his case to enable him to issue a subpoena on the EC Chairperson to mount the witness box and testify.
He stated in the motion that he “believes that in the interest of justice, and of fair trial as required by the constitution, that the court exercises its discretion to allow me to reopen my case in order to have the Chairperson of the EC and the returning officer of the presidential election in respect of which this petition has been filed, to appear and testify in these proceedings.”
The court dismissed the application, holding among others that, respondents decided not to testify at all so no situation arose for there to be the need for the petitioner to call further or fresh evidence to clarify anything be it a doubt or a point raised in the testimony of the respondents since there was none.
“The petitioner in this application has not given us an inkling of the new or fresh evidence he wants to bring to the fore through the Chairperson of the first respondent and how that evidence will assist the court to do justice in the matters under consideration in this petition,” the court added.
This brought to nine the number of interlocutory applications filed by Mr. Mahama which were dismissed unanimously by the court.
Closing Arguments
The court after hearing the evidences of the petitioner’s three witnesses and their cross-examination, subsequently ordered the parties in the matter to simultaneously file their closing arguments by close of February 17. 2021.
The respondents complied with the order and filed their closing address while the petitioner, just as with the order by the court to file witness statements, failed to comply.
His lawyer later filed an application seeking leave of the court to file the closing address which was granted by the court which then set today to deliver its judgement.
Mahama’s Closing Address
Mr. Mahama in his address urged the Supreme Court to annul the declaration of the December 7, 2020 Presidential Election results on the grounds that none of the 12 participating candidates obtained the constitutionally mandatory more than 50 per cent of the total valid votes and urged the court to order a run-off between him and President Akufo-Addo.
The NDC flag bearer has pushed in his closing address that he has been able to prove through his pleadings and evidences of his witnesses that nobody got the required number of valid votes per Article 63(3) to have been declared winner.
He further contended that per the declaration of the EC Chairperson, taking into account her assumptions made concerning the results of Techiman South Constituency, there should have been a run-off between himself and President Akufo-Addo.
Mr. Mahama also contended that the EC itself confirmed his positions in its pleadings when it failed to respond to his request to admit fact, which he said amounted to an admission.
EC’s Closing Address
The EC is insisting in its closing address that Mr. Mahama’s petition which it described as “strange”, has not disclosed any relevant evidence for his claim that no candidate obtained more than 50% of the total valid votes cast.
According to the EC, it is rather unfortunate that an “innocuous error” made by its Ms. Mensa in the declaration of the result on December 9, 2020, was the basis for the former President to mount a challenge of the election results.
The EC is also arguing that the petitioner failed to meet the threshold of burden of proof as the former President and his three witnesses did not lead any contrary evidence in court in support of the petition.
Nana’s Closing Address
The President in his address described the petition as frivolous and incurable even after the trial and urged the court to dismiss it “in its entirety as it discloses no reasonable cause of action.”
He contends that the petition is decayed beyond cure and should have been dismissed from the onset without the court going on a full trial.
The President also added that the “woeful” performance of the three witnesses called by Mr. Mahama while under cross-examination, further strengthened their conviction that the petition should have been dismissed from the beginning.
“Indeed, we respectfully maintain our conviction expressed in the said submissions that the petition is frivolous and discloses no reasonable cause of action remains unshaken, notwithstanding the evidence led in aid of the petition,” he said.
BY Gibril Abdul Razak