John Mahama and Jean Mensa
Former President John Dramani Mahama has taken another legal step hoping to ensure that the Chairperson of the Electoral Commission (EC), Jean Adukwei Mensa, would enter the witness box to testify in the ongoing election petition he filed before the Supreme Court.
Lawyers for the former President have filed a motion for review urging the Supreme Court to rescind its decision on February 16, 2021, which unanimously dismissed his application to re-open his case to enable him to call the EC Boss as a witness in the matter.
Mr. Mahama sought to reopen his already-closed case to enable him to subpoena the EC Boss, whom he claimed was going to play a critical role in the determination of the case before the court.
The opposition National Democratic Congress (NDC) flag bearer, who was seeking a return to the presidency after he lost in 2016 as incumbent, is contesting that none of the candidates in the 2020 Presidential Election got more than 50 per cent of the total valid votes as mandated by law but the EC Boss who was the Returning Officer of the Presidential Ballot declared the sitting President, Nana Addo Dankwa Akufo-Addo, as the winner.
Miscarriage of Justice
The motion on notice for review is averring that the court’s decision was in error of constitutional provisions, statutes and previous decisions of the Supreme Court and as a result he was insisting that it occasioned a miscarriage of justice against him as the petitioner.
“Among other errors, I am advised by counsel, and verily believe, it is an error whereby the court subordinates a provision of the Evidence Act to a rule in subsidiary legislation by the Rules of the Court Committee,” Mr. Mahama indicated in the motion.
He claimed these alleged errors constituted exceptional circumstances that warranted the Supreme Court to review its own 7:0 unanimous decisions.
The petitioner closed his case on February 9, 2021 after calling three witnesses, and the respondents in the matter – the EC and President Akufo-Addo – after cross-examining 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 all documents filed by the parties.
It was the case of the respondent that the petitioner did not meet the threshold of the burden of proof and the burden of providing evidence, and said they would not adduce any further evidence in the trial.
The decision by the respondents not to adduce further evidence did not go down well with the lawyers for Mr. Mahama, who argued that the EC Chairperson could not “evade” cross examination as she 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 EC boss 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 her 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.
The petitioner then filed for review of that unanimous decision that the EC Boss could not be ordered to testify in the matter, and two judges were added to the seven-member panel to assess the issue; and after the deliberations, Mr. Mahama was once again thrown out, 9:0.
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, the court exercised 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 had been filed, to appear and testify in these proceedings.”
Mr. Tsikata, when he moved the motion, argued that the EC Chairperson must be given the opportunity to vindicate herself and must be made to account for her stewardship.
The application was opposed by lawyers for the respondents, who argued that Mr. Mahama closed his case voluntary and could not be seeking to reopen it.
Justin Amenuvor, the lawyer for the EC, argued that the application was not warranted by any rule or laws of procedure but just an abuse of the processes of court.
Akoto Ampaw, lead counsel for President Akufo-Addo, also argued that it was the lawyer for the petitioner who closed his case after taking into consideration the evidences of his witnesses and their cross-examinations.
The seven member panel presided over by the Chief Justice and assisted by justices Yaw Appau, Samuel K. Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo, in their unanimous ruling, held that the petitioner did not decide to close his case after the testimony of his third witness just because the chairperson of the third respondent had filed a witness statement.
The court held that a trial judge had a wide discretion to reopen proceedings before judgement was rendered but that discretion was one which should be exercised sparingly and with restraint, as motion to reopen a matter necessarily involved a balancing of the accountability of counsel for decisions regarding the prosecution of his case and the interest of justice.
The court subsequently dismissed the application and it was this decision that the petitioner was saying was in error and ought to be reviewed.
The review motion avers that there are “gross and fundamental errors that this court committee, by not taking into due consideration multiple statutory provisions, have occasioned a grave miscarriage of justice to the petitioner/applicant. This necessitates this application for review.”
His lawyers would be arguing the review motion on six grounds, including the averment that the ruling of the court was given contrary to Section 72 of the Evidence Act 1975 and had occasioned a miscarriage of justice to the petitioner.
The motion also avers that the ruling of the court was in fundamental error in subjecting the statutory provisions of the Evidence Act to the provisions of the subsidiary legislation, specifically Order 38 Rule 3E(5) of C.I.47 as amended by C.I.87, “and has occasioned a grave miscarriage of justice.”
Again, the motion avers that the court fundamentally erred in interpreting Order 38 Rule 3E(5) of C.I.47 as amended by C.I.87.
He is also arguing that the ruling of the court was in contradiction with Articles 19 Clause 13 and 296 of the 1992 Constitution and this has resulted in the miscarriage of justice.
The motion is expected to be moved today.
BY Gibril Abdul Razak