Jean Mensa
A subpoena war is beckoning at the Supreme Court after the petitioner, former President John Dramani Mahama who is challenging the 2020 Presidential Election results declaration, initiated another move to compel the Electoral Commission (EC) Chairperson, Mrs. Jean Adukwei Mensa, to testify in the petition.
Mr. Mahama closed his case last week and the EC said per the evidence adduced, they were no longer going to rely on the oral testimony of the chairperson and subsequently closed their case as well.
The EC’s move incensed the petitioner who argued that once the EC Boss put in a witness statement at the pretrial stage, she ought to be in the witness box to testify, but the court last Thursday made it clear that per the rules, a witness could not be compelled to give testimony during a trial.
Tsatsu Tsikata, lead counsel for Mr. Mahama, quickly filed fresh motion to reopen the petitioner’s already-closed case to enable them to issue a subpoena to the EC Boss to mount the witness box.
Counter Subpoena
As a result, lawyers of the second defendant in the matter, President Akufo-Addo, have also served notice that they intend to subpoena Mr. Mahama, who brought the case to court but refused to testify and could only relied on three witnesses, if he (Mr. Mahama) succeeds in bringing Mrs. Mensa into the witness box to testify.
Speaking to the media after the last court sitting, Kojo Oppong Nkrumah, a member of the team of lawyers mandated by the New Patriotic Party to speak on the ongoing petition, indicated strongly that if the EC Chairperson was subpoenaed, then they would subpoena Mr. Mahama.
He said, “Depending on what the court decides to do, our senior lawyers will take their next line of action. Indeed, I have heard conversations that if they elect to subpoena the EC Chair, maybe, we should also elect to subpoena the petitioner to be brought into the box. I don’t know if they will agree to it at the end of the day, but it is part of various conversations,” he made it clear.
Closed Case
The former President had closed his case after calling three witnesses – Johnson Asiedu Nketia, Dr. Michael Kpessa-Whyte and Robert Joseph Mettle-Nunoo – to push his case that no candidate got the more than 50 per cent of the total valid votes in the December 7, 2020 Presidential Election to be declared winner.
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.
The move was objected to by Mr. Mahama’s lawyer, who argued that the respondents had already elected to adduce evidence by filing witness statements.
Mr. Tsikata told the court that the EC was a constitutional body and its chairperson must be ordered to testify in order to account to the people of Ghana about her duty as the returning officer of the presidential election.
The seven member panel of the court presided over by the Chief Justice, Anin-Yeboah, in a unanimous decision, overruled the objection, stating that 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 defendant in a case to adduce evidence.
Subpoena ‘War’
The petitioner’s legal team has now taken steps to seek a review of the court’s decision, reopen the case and subpoena the EC Chairperson to testify in the trial.
The outcome of the steps taken by Mr. Mahama will determine the next line of action of the President’s legal team, which is also contemplating on serving a subpoena on Mr. Mahama to testify.
Re-opening Case
Few hours after the court’s decision that it could not compel the EC Chairperson to testify, Mr. Mahama filed a motion to re-open his case to enable him to put in the subpoena request.
He averred that at the time his lawyer closed his case, the representation that had been to the court and particularly to him (Mr. Mahama) was that the witnesses for the respondents who had filed witness statements were going to testify.
“It, therefore, came as a surprise that both counsel for respondents announced on Monday, February 8, 2021, that this was no longer the case,” he said.
The former President indicated in his motion that the subpoena documents to be served on the EC boss were ready for filing once the court granted his leave to reopen his case.
He said “I believe that in the interest of justice, and of fair trial as is 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 first respondent (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,” and said the subpoena documents were ready to be filed when given the chance.
“This witness has a unique role under the constitution and in respect of the presidential election that took place in Ghana on December 7, 2020 and having her testify is critical for this court in order to ensure compliance with the constitution; more so as the witness to be subpoenaed did make a declaration whose constitutional validity I am challenging in this suit,” Mr. Mahama added.
Errand Saga
He further stated that counsel for the EC had challenged two of his witnesses, Mr. Mettle-Nunoo and Dr. Kpessa-Whyte, that the EC Chairperson sent them to go and deliver a message to him, promising she would wait for them to come back before she made the declaration on December 9, 2020.
The former President argues that the lawyer could have only cross-examined the witness based on the instruction of the EC boss and it would be fair to all parties that Mrs. Mensa testified to what transpired in the said meeting between her and Mr. Mettle-Nunoo “so as to settle that important issue, which is relevant to the matters before this court.”
“I am further advised by counsel and verily believe that after a subpoena is served by my lawyers on the Chairperson of the EC, if she wishes to invoke, for instance, a witness immunity such as protection against self-incrimination, or concern about violation of her human rights, she will be entitled to put that forward for determination of the court,” Mr. Mahama added.
The motion would be heard today.
BY Gibril Abdul Razak