The Supreme Court has set out five key issues to be determine in the Election Petition filed by former President John Dramani Mahama, who is challenging the results of the December 7, 2020 Presidential Election as declared by the Electoral Commission (EC) on December 9, 2020.
The court after considering the petition and responses filed by the EC (first respondent) and President Akufo-Addo (second respondent) to contest Mr. Mahama’s claims, ordered the parties to file their various memoranda of issues.
The parties obliged and filed the issues they presumed were paramount for the court’s determination as far as the allegations made in the petition and responses to same were concerned.
The court, after going through the memoranda of issues filed by lawyers for the petitioner and the respondents, settled on five for the determination of the petition.
Settled Issues
The issues set by the court are common among those chosen by the lawyers for the parties in the matter.
A five-member panel of the court 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 Getrude Torkornoo was set to determine “whether or not the petition discloses any reasonable cause of action.”
The court will also be determining whether or not based on the data contained in the EC’s declaration of Mr. 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 would determine whether or not Mr. 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 fourth issue the court would be determining was 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.
Finally, the court would also determine 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.
More Orders
The court, after setting out the issues to be determined, has also made orders in line with C.I.99 for the determination of the petition within strict timelines.
Per the orders, Mr. Mahama is to file witness statements with exhibits if any by the noon of Thursday, January 21, 2021.
The former President’s witness statements are to be served on lawyers for the respondents by the close of Thursday, January 21.
The respondents and their witnesses if any are to file their witness statements with exhibits if any by the close of Friday, January 22, 202.
Again, the respondents have been ordered to file submissions on their preliminary objections to the petition which they are urging the court to dismiss for not disclosing any cause of action by 12 noon of January 22.
The registrar of the court is to ensure service of submissions on the preliminary objection by close of Friday, January 22 and the petitioner shall then file any response to the submissions of the preliminary objection by Monday, January 25.
The registrar is to then ensure that the petitioner’s response to the submissions on the preliminary objections is served by close of Monday, January 25.
Meanwhile, the court has indicated that its ruling on the preliminary objection will be incorporated in the final judgement of the court.
Hearing continues on January 26, 2021 when the court is expected to begin the full trial.
Displeasure
The decision by the court to set the issues for determination and the timelines for the filing of witness statement and exhibits did not go down well with Mr. Tsikata who is lead counsel for the former President.
He stated that it was case management and the court should have given them the opportunity to make inputs to it.
He also had issues with the court’s order for the petitioner to file witness statements and exhibits if any by noon of January 21, 2021, stating that “we are humans.”
Mr. Tsikata also argued that there were outstanding issues which had not been discussed and mentioned; for instance, an application for review of the court’s decision on January 19, 2021.
But the court reminded him that the filing of an application for review of its decision did not operate as a stay of proceedings, hence could not affect the strict timelines provided by C.I. 99 which the court was bound to follow.
Mr. Tsikata believes the timeline within which they are to file the witness statement is not fair to them, adding that “justice must not be sacrificed for expedition.”
C.I.99 History
C.I. 99 was enacted as an important public law policy to ensure that election petitions were dealt with expeditiously without compromising the administration of justice.
This law, which was gazetted on October 12, 2016, was facilitated by inter alia, Mrs. Henrietta Brew Appiah-Opong, Attorney General and Minister of Justice under Mr. Mahama’s tenure.
C.I. 99 (Supreme Court (Amendment) (No. 2) Rules, 2016) says the “court shall inquire into and determine the petition expeditiously and the time for the processes in relation to the petition shall be…1. Filing and service in January; appearance and answer on the seventh day; pretoria’s on the 10th day; hearing on the 15th day; end of hearing on the 21st day and judgment on the 42nd day.”
Main Petition
The former President petitioned the Supreme Court over the results of the 2020 presidential election, which the EC declared President Akufo-Addo as winner of the contest.
Mr. Mahama is alleging among others that there was padding of votes at some centres in favour of the President.
Mr. Mahama, in his petition, is urging the Supreme Court to annul the results of the December 7 polls as he claims none of the candidates that contested the election got the required more than 50 per cent of the total valid votes as mandated by law to be declared President-elect.
He is also asking the Supreme 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 run-off between him and President Akufo-Addo as the only two candidates.
Akufo-Addo’ Response
The President in his response to the petition labeled it as a face-saving gimmick by Mr. Mahama after he had claimed that he won the election prior to the declaration by the EC.
“The instant action is a ruse and face-saving gimmick by the petitioner, after the petitioner and many senior members of the NDC party had prematurely claimed outright victory in the election, only to be badly exposed by results of the first respondent (EC) corroborated by all media houses of note in the country as well as many independent local and international observers,” the President argued.
He argues that the petition does not disclose any attack on the validity of the election held at any of the 38,622 polling stations and 311 special voting centres or any of the processes set out for results tallying.
The President avers that Mr. Mahama from the reliefs sought, claims that none of the candidates obtained more than 50 per cent of the total valid votes cast in the election and therefore seeks a run-off.
However, he does not indicate the number of valid votes or percentages that he or Akufo-Addo should have obtained in the election to support his request for a run-off.
EC’s Response
The EC in its response avers that the Presidential Election Declaration Form (Form 13), which is the tally of the 16 Form 12s transmitted, without the results of Techiman South Constituency, and showing the total votes cast and the total valid votes, shows that President Akufo-Addo won the December 7, 2020 election.
It further argues that the figures from the results converted into percentages showed that Nana Akufo-Addo had obtained more than 50 per cent of the valid votes, which met the constitutional threshold for election of President under Article 63(3) of the constitution.
The EC also denies allegations of wrong aggregation and vote padding in some constituencies and describes the allegations as misleading and self-serving.
Sitting continues on Tuesday, January 26.
BY Gibril Abdul Razak