Tsatsu Tsikata
The Supreme Court yesterday unanimously bounced an attempt by former President John Dramani Mahama to get the court to compel the Electoral Commission (EC) to disclose certain documents regarding the declaration of the December 2020 Presidential results.
The former President, who is challenging the results of the election which he lost, wanted the highest court to order the EC to provide him with the originals of the constituency and regional declaration forms as well as summary sheets.
He was also seeking the original of the declaration of the Presidential Results Form (Form 13) copies, which were given to agents of all contesting candidates including the former President’s party, the National Democratic Congress (NDC).
Mr. Mahama’s request was made midway into the trial which had seen two of his witnesses Johnson Asiedu Nketia and Dr. Michael Kpessa-Whyte testifying in the Presidential Election Petition.
No Way
However, during the proceedings yesterday which was being telecast live, a seven-member panel of the court presided over by the Chief Justice Kwasi Anin Yeboah, dismissed the application moved by Mr. Mahama’s lead counsel, Tsatsu Tsikata, for not raising any issues concerning the authenticity of the duplicates which was in the petitioner’s possession.
Main Application
The former President on January 19, 2021 served a request on the EC to disclose the documents, which included the summary sheets and declaration forms of the Presidential Election results through the various stages of collation across the country.
He later filed an application asking the court to order the EC to provide those documents for inspection.
He was seeking the originals of the Presidential Election Results Collation Forms of all constituencies in Ghana (Form 9)
He was also seeking the Presidential Election Results Summary Sheets (Form 10) of all constituencies across the country.
Again, the former President was seeking the originals of all the Regional Presidential Election Result Collation Forms (Form 11) as well as Regional Summary Sheets (Form 12).
Further, Mr. Mahama was seeking the original of the declaration of the presidential election results.
He also wanted the EC to provide him with the original of the Declaration of the Presidential Results Form (Form 13).
Finally, the former President was seeking “the alleged update to the purported declaration of presidential election results on December 9, 2020 of the four constituencies in the Greater Accra Region.”
Moving Motion
Moving the motion yesterday, Mr. Tsikata told the court that the EC was the only entity that had lawful custody of the documents they were seeking, and it was clear that these documents were public records in the custody of the EC.
He told the court that there were discrepancies between the results of the presidential election results as announced on December 9, 2020, the figures in the correction made on the December 10, 2020, press statement correcting the errors as well as the figures presented by the EC in its witness statement before the court.
Mr. Tsikata told the court that the discrepancies necessitated the need to get the originals of the documents they had requested so that they could do what he called proper validation of what the proper figures were.
“The reality of changing numbers is inexplicable in this election petition. In respect of the changing figures, there is the need to refer to the originals so that it can be compared to whatever that we have,” he said.
He also told the court that access to those documents was important to fair hearing because it was not in the powers of the EC to choose which figures to use in determining the outcome of the election.
EC’s Objection
The application was opposed by Justin Amenuvor, counsel for the EC who questioned the timing of the application especially when the petitioner by law had 21 days within which to file his petition after the declaration of the results.
He argued that the application failed to disclose how the production and subsequent inspection of those documents were necessary to the trial, as his own witnesses had already indicated that they had all the documents being requested.
Again, Mr. Amenuvor told the court that Mr. Mahama failed to provide any evidence to support his petition that was why at the end of the cross examination of his witnesses he filed the application so that he could file further witness statements.
“They cannot come at this late hour to make this application,” he told the court.
Nana’s Objection
Akoto Ampaw, lead counsel for President Akufo-Addo, the second respondent in the case, also opposed the application, saying it was just an attempt by Mr. Mahama to shift the burden of proof on to the respondents in the case when he (Mr. Mahama) was supposed to discharge that burden since he filed his own case.
He told the court that the accredited representatives of Mr. Mahama had all the carbonized copies of the documents he was seeking so if he had any issues with the authenticity of the documents, he must provide the duplicates to prove that they are different from the originals.
He also told the court that the application did not demonstrate how the grant of it would aid in disposing off the case and prayed the court to dismiss it as being unmeritorious.
Ruling
The Chief Justice assisted by Justices Yaw Appau, Samuel Marful-Sau, Nene Amegatcher, Prof. Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo in their ruling, held that the documents under consideration were required under Public Elections Regulations 2020 (C.I. 127) to be given to every candidate who participated in the Presidential Elections through their accredited agents.
The court held that Mr. Mahama did not demonstrate that he did not have copies of the documents in question and as a matter of fact, his two witnesses (Mr. Nketia and Mr. Kpessa-Whyte) had told the court under oath that Mr. Mahama had all the documents.
Again, the court held that Mr. Mahama in his application did not raise issues with the authenticity of the duplicate copies of the documents he was seeking the EC to produce.
The court was of the opinion that no proper case had been made before it to warrant the exercise of its discretion in favour of Mr. Mahama to order the EC to produce the documents; and therefore, dismissed the application.
Fresh Witness
After the application had been dismissed, the panel demanded to know if the petitioner’s counsel had anything else to present before they proceeded to the cross-examination of witnesses of the respondents.
Mr. Tsikata then informed the court about the petitioner’s intention to bring another witness to testify in the case.
He said, however, that the witness was suffering from some health complications and added that if given the opportunity to file a witness statement, the witness would help bring some pertinent evidence and facts to help Mr. Mahama to make his case.
He said the witness was currently suffering from an undisclosed illness saying “the potential witness has a health situation.”
Following the development, all seven judges and lead counsel for the petitioner and both respondents, retired to their chambers to deliberate on whether or not the said witness should be given time to file the witness statement and be cross-examined subsequently.
However, when the court resumed, the case was adjourned until tomorrow and there was no indication whether a decision was taken on the witness.
By Gibril Abdul Razak