John Mahama
The Supreme Court yesterday affirmed Nana Akufo-Addo as the validly elected President of Ghana in the December 7, 2020 Presidential Election as it unanimously dismissed former President John Dramani Mahama’s petition against his election.
The highest court categorically stated that it could not order a run-off election between the President and Mr. Mahama on the basis of an error made by the Chairperson of the Electoral Commission (EC), Jean Adukwei Mensa, when she announced the result of the election on December 9, 2020 as the returning officer of the presidential ballot.
The seven-member panel presided over by Chief Justice Kwasi Anin-Yeboah said the error by the EC boss did not affect the electoral choice of Ghanaian voters of the 2020 Presidential Election.
Fanciful Witnesses
The court also described two witnesses of the former President as “fanciful”, saying, “As for the other two witnesses (PW2 and 3), Dr. Michael Kpessa-Whyte and Mr. Robert Mettle-Nunoo (Rojo), the little said about their testimonies related to the issue at stake, the better.”
The court held that it was established during the trial that the total valid votes of the election was 13,121,111 and going by that figure, President Akufo-Addo obtained more than 50% of the total valid votes as mandated by the constitution, hence was validly elected.
“We hold that there is evidence on record to show that based on the data contained in the declaration of the chairperson of the EC, the second respondent (Nana Akufo-Addo) obtained more than 50% of the total valid votes cast as required by Article 63 Clause 3 of the 1992 Constitution.”
The court, speaking through the Chief Justice, held that Mr. Mahama failed to demonstrate how the error made by the EC Chairperson which seemed to be the basis of the petition before the court affected the outcome of the election.
The Supreme Court also posited that the petitioner failed to prove his allegation of vote padding in favour of the President, adding that even though vote padding was a serious issue, the alleged figures of 4,693 even if proven did not affect the outcome of the election.
Main Petition
The former President, who was the NDC flag bearer, had petitioned the Supreme Court over the results of the 2020 Presidential Election which according to the EC was won by President Akufo-Addo of the NPP.
He has sought a declaration that the result of the 2020 Presidential Election announced by the Chairperson of the EC was in breach of Article 63 (3) of the 1992 Constitution.
Mr. Mahama in his petition urged the Supreme Court to annul the results of the December 2020 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 also asked the Apex Court for an order of injunction restraining President Akufo-Addo holding himself out as President-elect.
Again, the former President wanted 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.
The court determined 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 determined whether or not Nana 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 court also determined 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 and finally determined 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, Rojo, 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.
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 will not adduce any further evidence in the trial.
Petitioner’s Insistence
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.
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.
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.
Judgment Details
The court after determining the case based on the evidence before it refused the prayer for a run-off between Mr. Mahama and President Akufo-Addo, dismissing it as having no merit.
On the first issue of whether or not the petition disclosed any reasonable cause of action, the court affirmed it saying the allegations in the petition were against the integrity of the election and therefore overruled the preliminary objection raised by the respondents, urging the court to dismiss the petition summarily.
The court quoted decided cases which stipulated the need for the court to go into the merit of the case rather than terminating it at the initial stage.
Issue 2
The court, in determining the issue of whether or not based on the date contained in the declaration of the Chairperson of the EC no candidate obtained more than 50% of the total valid votes, held that per the evidence on record before the court, President Akufo-Addo obtained more than 50% of the total valid votes.
The court posited that there could be no doubt that the Chairperson of the EC made an error in her declaration when she mentioned the total valid votes as 13,434,574 instead of 13,121,111 which is the total aggregation of the votes attained by all the candidates in the election with the exception of the result of Techiman South Constituency.
The court concluded on the issue that it had been established through Mr. Nketia, who was Mr. Mahama’s first witness, that the total valid votes in the 2020 Presidential Election was 13,121,111 and equating President Akufo-Addo’s total valid votes of 6,730,413 against that figure gave him more than 50% of the total valid votes.
It held that it was unacceptable for anyone to use any figure other that total valid votes to determine the percentage of each candidate during the election.
Issue 3
On the issue of whether or not President Akufo-Addo still obtained more than 50% of the total valid votes with or without the votes of Techiman South, the court held that he met the constitutional threshold with or without the Techiman South Constituency as imposed by Article 63(3) of the Constitution.
The court held that it was important to note that at the time of filing the petition, the result of the Techiman South Constituency was known and although Mr. Mahama was challenging the percentage of votes obtained by each of the candidates in the election, he did not challenge the number of valid votes obtained by each of the candidates.
Issue 4
The court then went to determine that the declaration of the Chairperson of the EC on December 9, 2020 did not breach Article 63(3) of the 1992 Constitution as alleged by the petitioner.
The court held that the said declaration was a result of the presidential election and could only be disputed by cogent evidence provided by the petitioner.
The court went on to say to say that the said declaration, which has now been established to be an error, did not affect the electoral fortunes of any of the candidates in the election.
Again, the court also held that it was convinced that the figures mentioned as valid votes for each of the candidates were accurate and represented the will of Ghanaian voters, adding that it would be wrong to annul the result of the election on the basis of an error made by the Chairperson of the EC during the declaration.
The court also found that the petitioner failed to lead evidence to prove that none of the candidates obtained more than 50% of the total valid votes although Mr. Nketia admitted that the petitioner had all the documents the EC relied on to compute its figure and failed to tender them in evidence as he stated that they were not challenging the validity of the election by the declaration of the EC.
Issue 5
The seven member panel then considered the allegation of vote padding which it said it deemed serious.
The court said the petitioner failed to prove the allegation of vote padding in favour of President Akufo-Addo as he did not provide any documents in the form of summary sheets to support his allegation.
The court also was of the opinion that the alleged figure of 4,693, even if proven, did not affect the outcome of the election as deducting it from President Akufo-Addo’s total votes still gave him more than 50% of the total valid votes.
Dealing with Witnesses
The court held that “out of the three witnesses that the petitioner called, the one whose testimony appeared to have relevance to the issue at stake was Mr. Nketia (PW1). He was in fact the star witness of the petitioner. His testimony vividly explained the reason the petitioner was in court.”
“As for the other two witnesses (PW2 and 3), Dr. Kpessa-Whyte and Mr. Rojo, the little said about their testimony related to the issue at stake, the better,” Justice Anin-Yeboah stated.
“While the testimony of PW1 was emphatic that the petitioner was not in court to challenge or compare the figures or data presented by the first respondent with any other figures. The testimonies of PW2 and PW3 were in respect of alleged irregularities in the figures or data on some of the collation forms that they sighted in the strong room but after which they ultimately signed or certified.
“Notwithstanding all these allegations of misunderstandings with staff of the first respondent in the strong room and the fact that they were absent during the declaration, they did not give any indication as to how these happenings and their absence affected the final results announced by the first respondent,” Justice Anin-Yeboah read.
He continued, “Having signed or certified these forms, the witnesses, particularly PW3, could not turn round to talk of irregularities in the said forms. Their testimonies would have carried weight if the purpose of the petition was to challenge entries made by on the collation form or summary sheets but that is not the case.
“Their testimonies were, therefore, of no relevance to the issues set out for determination and we find them unworthy whatsoever in the settlement of the issues,” he added.
Conclusion
The seven-member panel 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 concluded, “We conclude this judgement by emphasizing that the petitioner did not demonstrate in any way how the alleged errors and unilateral correction made by the first respondent (EC) affected the validity of the declaration made by the first respondent on December 9, 2020 as already stated in this judgement.
“The petitioner has not produced any evidence to rebut the presumption created by the publication of CI 135 (Gazette) for which his action has failed. We have therefore no reason to order a rerun as prayed by the petitioner in relief F. We accordingly dismiss the petition as having no merit,” the court held in its unanimous judgement.
Legal Team
The petitioner’s team was lead by Mr. Tsikata and assisted by Tony Lithur; while the EC’s legal team was lead by Justin Amenuvor and assisted by Alexander Somoah.
President Akufo-Addo’s legal team was lead by Akoto Ampaw and assisted by Frank Davis, Kwaku Asirifi and Yaw Oppong.
BY Gibril Abdul Razak