EC Boss, Jean Mensa
The Electoral Commission (EC) has urged the Supreme Court to dismiss the “strange” petition filed by former President John Dramani to challenge the declaration of the December 7, 2020 Presidential Election, which it said President Akufo-Addo won.
The EC is insisting in its closing address that Mr. Mahama’s petition 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 Chairperson Mrs. Jean Adukwei 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.
“It is unfortunate that an innocuous error made by the chairperson of the first respondent in the declaration of the results on December 9, 2020, which has no bearing on the outcome of the election results has triggered this petition.
“My Lords, this case has been a strange one. The petitioner has led no evidence whatsoever to challenge the election results and for that matter the declaration made by the first respondent on December 9, 2020. At some point, litigation must come to an end. That point had been reached. The first respondent prays for a dismissal of the petition,” the EC through its lawyer, Justin Amenuvor, urged in the address to the court.
The former President wants the court to declare 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 is urging the Supreme Court to annul the results of the December polls as per the data contained in the declaration 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 from 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.
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.
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.
The seven-member panel presided over by Chief Justice Anin-Yeboah 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 former President then filed multiple applications seeking the court to order the EC Chairperson to enter the witness box and be cross-examined but each application was unanimously dismissed by the court.
Another one which sought leave of the court to reopen the case to enable him subpoena the EC Chairperson was also dismissed.
The EC is now urging the court to dismiss the petition for not properly invoking the special jurisdiction conferred on it by Article 64 Clause 1 of the 1992 Constitution.
The EC stated that it still relied on its arguments in the submissions made in the preliminary legal objection which sought the court to dismiss the petition for not disclosing any cause of action.
It says the jurisdiction conferred on the Supreme Court under Article 64(1) is only for the purpose of challenging the election of a President and not for any other purpose.
The EC argues that the court’s jurisdiction was not properly invoked and should not be exercised in respect of Ground (b), (C) and (d), which are challenging the declaration and not the election.
Burden of Proof
The EC was 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.
“The petitioner is not challenging the validity of the election conducted by the first respondent. It is challenging the validity of the results retuned by the Chairperson of the first on December 9, 2020. It is about votes and their cumulative numbers. The evidence led on behalf of the petitioner did not advance his case one whit,” the EC argues.
The EC also argued that the petitioner relied entirely on the figures announced by its chairperson and failed to produce his own figures contradicting those announced by the EC.
“My Lords, having failed or refused to furnish this honourable court with evidence of the figures he obtained form his own tally of the Presidential Regional Results Summary Sheet, which PW3 (Robert Mettle-Nunoo) admitted were in his custody during cross-examination, the only reasonable inference to be drawn is that the tallies do not support the petitioner’s case or that they confirm the case of first respondent, hence the decision of the petitioner not to make those forms available to the court.
“On the basis of the answers provided by PW1 (Johnson Asiedu Nketia) and PW3 confirming the data available to the petitioner, we humbly submit that the petition as a whole must fail,” the EC added.
The EC also touched on the claims of Mr. Mahama, which sought to add all the votes from the Techiman South Constituency to his total valid votes obtained, which the EC said was the main thrust of the petitioner’s claim and the basis for requesting a run-off.
“It is based solely on the conclusions reached in paragraph 16 of the petition that the petitioner is inviting this honourable court to order a run-off of the December 7, 2020 Presidential Election. No further pleadings were made or no evidence led to support this claim,” the EC argued.
It stated that at the time of filing the petition, the actual results of Techiman South Constituency was known and the petitioner’s first witness attached the result and the figures obtained by each candidate to his exhibits.
“If the petitioner had any concerns about the declaration of the results made on December 9, 2020, those concerns were automatically determined the moment the Techiman South Constituency result was declared. More so the Techiman South Constituency actual result was released long before the petition was filed.”
The EC denied the allegation of vote padding by the petitioner and his witnesses and stated that there was no such thing.
“My Lords, padding is a serious electoral fraud. The petitioner however has not been able to provide any particulars of such fraud as alleged in the pleading. The petitioner was first required to at least provide evidence of deliberate action on the part of the first respondent or its officers engaging in such conduct that actually favoured the second respondent and secondly that the alleged padding, if proven, affected the outcome of the December 7, 2020 Presidential Election Results.”
The EC is therefore urging the Supreme Court to dismiss the petition for leading no evidence to overturn the result of the 2020 Presidential Election Results announced by its chairperson on December 9, 2020.
BY Gibril Abdul Razak