Mettle-Nunoo and Kpessa-Whyte not credible – Supreme Court

The Supreme Court has described the testimonies of Dr Michael Kpessa-Whyte and Robert Joseph Rojo Mettle-Nunoo, two of the petitioners’ witnesses in the 2020 election petition, as unworthy for consideration as they told fanciful tales.

However, the apex court considered National Democratic Congress (NDC) General Secretary John Asiedu Nketiah’s testimony as apt.

The three persons were representatives of the petitioner, John Dramani Mahama, in the strongroom of the Electoral Commission (EC) during the collation of results for the 2020 elections.

The 2020 flagbearer of the NDC, former President John Mahama, had filed a case at the apex court to dismiss the election results challenging the EC’s declaration of the New Patriotic Party’s Nana Akufo-Addo as the winner.

Three filed their witness statements and were called into the witness box for cross-examination.

However, the final ruling delivered by the Supreme Court, which was read by Chief Justice Kwasi Anin Yeboah, disregarded the evidence of Dr Kpessa-Whyte and Mr Mettle-Nunoo as irrelevant.

What did the Chief Justice say?

The chair of the seven-member panel said out of the three witnesses, “the one whose testimony appeared to have some relevance in the issues at stake was Mr Johnson Asiedu Nketia”.

“He was in fact the star witness of the petitioner. His testimony vividly explained the reasons why the petitioner is in court. As for the other two witnesses, that is PW2 and PW3 – Dr Kpessah Whyte and Mr Robert Rojo Mettle-Nunoo- the little said about their testimonies, relative to the issue at stake, the better”.

The court said their testimonies were based mainly on what allegedly happened in the Strong Room during the final collation and the fact that they failed to sign the final form of the presidential election scored because of the disagreements they had with the Chairperson.

“They recounted a fanciful tale of how the Electoral Chairperson refused to heed their complaints and some irregularities they noticed in some of the collation forms that came from some of the regions,”. He stated. “We describe these evidence as fanciful because, despite these alleged protests, they went ahead to verify and certify 13 of the 16 election regional collation sheets”.

Mr Mettle-Nunoo and Dr Micheal Kpessa-Whyte said they left the Strong Room on the instruction of the EC to discuss some anomalies detected with the NDC flagbearer.

However, in their absence, the EC declared the final results in favour of President Akufo-Addo.

The justices ruled that “they did not give any indication as to how this happened and how the absence affected the final results announced by the first respondent”.

“Having signed or certified these forms, their witnesses, particularly PW3 cannot turn round to talk about irregularities in the same forms”.

The apex court was of the view that “Their testimonies would have carried some little weight if the purpose of the petition was to challenge entries made on the collation forms or summary sheets but that is not the case”.

To this end, they concluded that “their testimonies were therefore of no relevance whatsoever to the issues set down for determination and we found them unworthy for any considerations whatsoever in the settlement of the issues.

The judgement further pointed out that if testimonies of the two are to be believed, “They have to blame themselves for abandoning their post at a time certification and verification were ongoing”.

Aside from the CJ, the other panel members were Yaw Apau, Samuel K. Marful Sau, Nene Amegathcher, Professor Ashie Kotey, Mariama Owusu and Gertrude Torkornoo.

Details of the ruling 

The CJ was of the view that the Petitioner’s team led by Tsatsu Tsikata did not present any data to counter the figures announced by the EC Chairperson on December 10, 2020, as total valid votes.

In the judgement read, citing various authorities, the CJ said if the petitioner’s team had presented figures to prove that the New Patriotic Party presidential candidate Nana Akufo-Addo did not meet the legal threshold, all the reliefs sought would have been granted.

According to the panel, the representatives of the NDC flagbearer in the EC strong room basically neglected their duties to oversee happenings in the National Collation Centre.

Justice Anin-Yeboah also mentioned that the evidence before the court confirms that the second respondent Nana Akufo-Addo indeed satisfied the 51 per cent threshold as per the constitution, with the exclusion or inclusion of the Techiman South results.

In effect, the Petitioner failed to provide evidence to show that the NPP candidate did not meet the 50 plus benchmark.

Why Mahama is in court

Former President Mahama said none of the 12 presidential candidates attained the 50 plus one mark for the Electoral Commission (EC) to declare a winner.

Although the EC said the NPP candidate got 51.59 per cent of the votes against Mahama’s 47.37 per cent, the petitioner insists that was not a true reflection of the December 7 polls.

Among other things, Mr Mahama wants the court to set aside the declaration made by EC Chairperson Jean Mensa on December 9, 2020.

He also urged the court to declare as “unconstitutional, null and void and of no effect whatsoever, of the results declared on the said day”.

Mr Mahama further wants the court to order the Electoral Commission to organise a rerun between him and the NPP presidential candidate, Nana Akufo-Addo.

The respondents in the case (Electoral Commission and Nana Akufo-Addo) decided not to present any witness to testify in court.

The apex court was compelled to decide on the matter based on the three persons who testified on behalf of the petitioner.

The three persons were the NDC General Secretary Johnson Asiedu Nketia, the two representatives of Mr Mahama in the EC strongroom Dr Michael Kpessa-Whyte and Robert Joseph Rojo Mettle-Nunoo.

Thursday’s judgement addressed five substantive issues:

• Whether or not the petition discloses any reasonable cause of action.

• Whether or not based on the data contained in the declaration of the Electoral Commission of President Akufo-Addo as president-elect, no candidate obtained more than 50% of the valid votes cast as required by Article 63 (3) of the 1992 constitution

• Whether or not the second respondent still met Article 63(3) of the 1992 constitution threshold by the exclusion or inclusion of the Techiman South constituency presidential election results.

• Whether or not the declaration by the first respondent dated December 9, 2020, violated Article 63(3) of the 1992 constitution.

• Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the presidential election results of 2020.

All these issues, the apex court held that the petitioner’s team failed to address.

Reliefs sought by Mr Mahama

(a) A declaration that Mrs Jean Adukwei Mensa, Chairperson of the first respondent and the Returning Officer for the Presidential Elections held on December 7, 2020, was in breach of Article 63(3) of the 1992 Constitution in the declaration she made on December 9, 2020, in respect of the Presidential Election that was held on December 7, 2020

(b) A declaration that based on the data contained in the declaration made by Mrs. Jean Adukwei Mensa, Chairperson of the first respondent and the Returning Officer for the Presidential Elections held on December 7, 2020, no candidate satisfied the requirement of Article 63(3) of the 1992 Constitution to be declared President-elect

(c) A declaration that the purported declaration made on December 9, 2020 ‘of the results of the Presidential Election by Mrs. Jean Adukwei Mensa, Chairperson of first Respondent and the Returning Officer for the Presidential Elections held on December 7, 2020, is unconstitutional, null and void and of no effect whatsoever

(d) An order annulling the Declaration of President-Elect Instrument, 2020 (C.1. 135) dated December 9, 2020, issued under the hand of Mrs. Jean Adukwei Mensa, Chairperson of first respondent and the Returning Officer for the Presidential Elections held December 7, 2020, and gazetted on December 10, 2020

(e) An order of injunction restraining the second respondent from holding himself out as President-elect

  1. f) An order of mandatory injunction directing the first respondent to proceed to conduct a second election with Petitioner and second respondent as the candidates as required under Articles 63(4) and (5) of the 1992 Constitution

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