Jean Mensa – Chairperson of EC
The hopes of former President John Dramani Mahama to subpoena the Chairperson of the Electoral Commission (EC) in the ongoing election petition hangs in the balance as the Supreme Court will today decide whether or not to grant his application for leave to re-open his case.
Mr. Mahama who is challenging the results of the December 2020 Presidential Election in the Supreme Court is seeking to subpoena the EC boss, Mrs. Jean Adukwei Mensa, to testify as an “adversarial” witness after the court dismissed his earlier application to order her to testify in the trial and be cross-examined.
The petitioner closed his case last week 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.
Adducing Evidence
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.
Tsatsu Tsikata, his lead counsel, then filed an application urging the court to order the witness to testify but the court in a unanimous decision 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.
Fresh 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 to 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 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.”
Oral Argument
Moving the motion before the court yesterday, Mr. Tsikata argued that the Chairperson of the EC, in an affidavit in opposition to some applications, indicated that the petitioner would not be prejudiced if the applications were not granted because the petitioner would have the opportunity to cross-examine her on those issues.
He said it was under those circumstances and the sworn affidavits which had legal effects that they had reasonable expectation that the EC Chairperson would be testifying.
“We have a situation where the chairperson of the first respondent (EC) in affidavits made it clear that he petitioner would in no way be prejudiced because the questions sought in the interrogatories could be subjects of cross-examination,” Mr. Tsikata told the court.
He indicated that if the court granted leave to reopen the case and a subpoena was served on the EC Chairperson, she could invoke a witness privilege of a sort which is within her right, adding that “it is up to her to make that claim and put it before the court.”
Mr. Tsikata told the court that the chairperson is a witness who had every reason to accept a subpoena and go to court to testify to vindicate herself.
He added that the EC and its chairperson should be the ones to want the whole world to know that they exercised their stewardship in accordance with the constitution.
Tsatsu Apology
Mr. Tsikata at a point said, “To talk about a grievance of being served tea, respectfully that is such lack of truthfulness in terms of how the evidence came in.
Rojo Metle-Nunoo did not express a grievance here that they served tea and not biscuits. It was out of question and he answered truthfully.
He then said, “For the chairperson to descend into such triviality which was brought on by cross-examination of her own counsel, showed the depth to which she had sunk.”
The Chief Justice, Anin Yeboah, then stepped in and said “Mr. Tsikata, the practice is that you lawyers draft affidavit in applications, so please don’t let us go that far.”
Justice Prof. Nii Ashie Kotey, a member of the panel said, “Beyond that I would advise that you withdraw.”
Mr. Tsikata said “I withdraw the statement about the depth to which she has sunk. I apologize that I used unduly strong language and I apologize to the chairperson of the first respondent.”
EC Opposition
The application was opposed by counsel for the EC, Justin Amenuvor, who argued that the petitioner had indicated that he was calling five witnesses but ended up calling three, one of whom, was through the leave of the court upon application.
He said the petitioner voluntarily closed his case and could not now be seeking to re-open it based on representations made by the Chairperson of the EC.
He quoted an English case and argued that the petitioner who had a competent legal representation could not close his case and now be seeking to fill gaps in his case by subpoenaing the Chairperson of the EC.
Mr. Amenuvor also told the court that the application was not warranted by any rule or laws of procedure, but just an abuse of the processes of court.
The lawyer told the court that what the petitioner was seeking to do would collapse Ghana’s adversarial legal system, adding that the title of the motion alone is enough reason for it to be dismissed.
He insisted that no representation had been made to Mr. Mahama for which he filed the current application, adding that it was unfair for the petitioner to blame the EC and not himself for reasons he decided to close his case.
Nana’s Opposition
Akoto Ampaw, lead counsel for President Akufo-Addo, also opposed the application, stating that it was their view that the general principle of law that once a party announced that he had no further evidence to adduce and closed his case, the court was supposed to affirm that decision.
He argued that it was lawyer for the petitioner who closed his case after taking into consideration the evidences of his witnesses and their cross-examinations.
Counsel argued that the petitioner led all the evidences he had through his witnesses and could not come back to court seeking to reopen his case just to lead evidence on the same matter which his witnesses had already addressed.
Again, Mr. Ampaw argued that it was irrelevant to say that the Chairperson of the EC must be given the opportunity to mount the witness box to vindicate herself as a basis for reopening the petitioner’s case.
He indicated that the case before the court was about votes and numbers and there was nothing about the alleged engagement between Dr. Michael Kpessa-Whyte and Robert Joseph Mettle-Nunoo and the EC boss which showed how it affected the outcome of the election.
New Evidence
It was the position of Mr. Ampaw that to be able to reopen his case, the petitioner must be able to demonstrate that the new evidence he was seeking to introduce was not available at the time he closed his case and that the evidence they intended to adduce would have a material effect on the outcome of the case.
“The petitioner has not demonstrated any necessity because they have not shown how a grant of leave will have a material effect on the trial. All they said was that the chairperson of the first respondent (EC) must be held accountable. The court had already indicated that all the laws that applied to common people applied to her as well,” he said.
Mr. Ampaw ended his argument with a quote by Justice Nii Amaa Ollennu (Rtd.) who held that “It will be nothing but madness to allow a party to rely on the testimony of his opponent to prove his case.”
The seven member panel of the court presided over by the Chief Justice and assisted by Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo after listening to the lawyers adjourned the matter to today for ruling.
BY Gibril Abdul Razak