Refusal of EC Boss to testify bad precedent – Mahama

The petitioner in the 2020 election dispute, John Dramani Mahama, has accused the Supreme Court of setting a bad precedent after it ruled that the EC Boss would not testify during its hearing.

“Ghanaians were hoping to hear her testify and many are still baffled by the refusal of Mrs. Jean Mensa to be held to account by testifying in this case. Unfortunately, with the unanimous agreements of the Justices of the Supreme court, the vital part of the process to establish the truth and hold Mrs. Mensa accountable, was blocked time and again by a protective cordon and firewall that I’m sure has confounded many Ghanaians.

“The refusal of this Chairperson to testify is in sharp contrast to the readiness with which Dr. Kwadwo Afari Gyan, then Chairman of the Electoral Commission, willingly testified in the 2013 election petition filed by then-candidate Nana Akufo-Addo.

“Speaking as a Ghanaian with no legal training, I believe that the refusal of the Electoral Commission Chairperson to testify in this election petition leaves a very bad precedent for the future,” he said while addressing the media after the apex court dismissed his suit challenging the election results.

In a unanimous ruling on February 11, 2021, the Supreme court said it could not compel the EC Boss to mount the witness box to testify in the election petition.

The court explained that its rules did not give it the power to order parties to call witnesses to adduce evidence if they (parties) chose not to do so.

Despite these explanations by the court, Mr. Mahama disagreed. He believes it is a dent on the country’s democracy.

Final verdict

The Supreme Court in a unanimous decision on March 4, 2021, dismissed the 2020 election petition filed by the NDC Flagbearer, John Dramani Mahama.

The seven-member panel presided over by Chief Justice Anin-Yeboah, said the petition challenging the declaration of the NPP presidential candidate Nana Akufo-Addo as the winner of the polls, failed to meet the legal threshold.

The ruling which is the longest yet in the Supreme Court took almost 2 hours to deliver.

The court pointed out that the petitioner, John Mahama, failed to provide any evidence to prove that the declaration by the EC boss Jean Mensa was rigged with errors.

The CJ was of the view that the petitioner’s team led by Tsatsu Tsikata has not presented 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.

The Chief Justice further said the testimonies of the three petition witnesses (NDC General Secretary Johnson Asiedu Nketia, representatives in the EC strong room Dr Michael Kpessa-Whyte and Robert Joseph Rojo Mettle-Nunoo) were of no relevance to the petition.

The three witnesses, according to the panel, failed to prove to the court the said illegalities that characterised the December 7 election. The three merely submitted individual accounts of what they believed was true at the said time.

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.

It was the view of the court that once the representatives signed the regional collation sheets, there was no basis for the complaints.

Justice Yeboah also mentioned that the evidence before the court confirms that the second respondent Nana Akufo-Addo indeed satisfied the 51 percent 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.

The CJ believes what the entire petition sought to do was to bring to bear the errors committed by the commission. This error, the CJ said was mentioned several times during the entire proceedings.

Also, the impact of the alleged vote padding, if proven would have been very insignificant because the NPP candidate would have crossed the 50 percent threshold.

“Even if the vote padding took place, same was not material enough to cause any major change because the NPP candidate would have been in the lead with more than 50 percent of the votes cast.

“The petitioner did not demonstrate in anyway how the errors made by the commission accounted to the NPP candidate winning, we have therefore no reason to order a rerun of the December 7 elections,” the CJ read the unanimous decision.

Why Mahama is in court

The petition filed by the flagbearer of the opposition National Democratic Congress Mr John Mahama, challenged the 2020 election results, which was declared in favour of the New Patriotic Party (NPP) candidate Nana Akufo-Addo.

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 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 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

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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