2020 Election petition: Supreme Court decides today

The Supreme Court is expected to deliver its ruling on the 2020 election petition today, March 4, 2021.

Chief Justice,  Kwasi Anin-Yeboah, made this known after proceedings on Monday,  February 22, 2021.

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 (NDC) 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 is 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.

Today’s judgement is supposed to address 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.

Meanwhile, within this short period, the counsel for NDC Flagbearer filed many applications questioning the Supreme Court decisions and steps since the petition started on January 19, this year.

In all, the petitioner’s team has filed 13 applications, where eight of them were dismissed, four struck out, and one granted.

The Electoral Commission, on the other hand, filed just one application —  the abridgement of time, which was struck out.

President Nana Akufo-Addo’s team did not file any.

Theghanareport.com brings you a chronology of events as they happened with regards to applications that were dismissed.

• Interrogatories dismissal

It all started on January 26, 2021, when the team had their interrogatories application dismissed.

Interrogatories are a formal set of written questions propounded by one litigant and required to be answered by the opposing party or parties in order to clarify matters of fact and help to determine in advance what facts will be presented at any trial in the case.

The interrogatories application was to demand answers to some 12 key questions, the petitioner said was relevant in discovering the ills of the December 7 elections.

They sought to haul Mrs Mensa into the witness box, but the Supreme Court disagreed.

The application was dismissed unanimously by a seven-member panel because the new Constitutional Instrument 99 does not give them much room for interrogatories.

The court explained “reference was made to the 2013 [presidential election] petition in which an application for interrogatories was granted by the Supreme Court.

“However, subsequent to 2013, several statutory amendments have been made by C.I. 99 of 2016, which has restricted the practice and procedure of this court as regards Election Petition.

“Indeed, Rule 69 of the Supreme Court amendment in C.I. 99 directs the expeditious disposal of petitions and sets timelines for this court to dispose of the petition. The amendments provide us [court] with the new procedural regime and strict timelines.

“We are strictly bound to comply with C.I. 90, and therefore we will not apply Order 22 of C.I. 45 of 2004 in these circumstances. We, accordingly, refuse to grant the application, and the same is accordingly dismissed,” the court said.

• Review of interrogatories ruling

The petitioner, however, challenged the ruling of the court and filed a review of the ruling on January 26, 2021.

The petitioner had maintained that the court “fundamentally erred in law when it held that C.I. 99 repealed or otherwise excluded the application of C.I 47 either in whole or in part”.

“We want this court to make a volte-face and grant leave for the interrogation to be served on the first respondent,” the concluding part of the application read.

A volte-face is a total change of position, as in policy or opinion. The expression comes from the French language. The petitioners wanted a U-turn of the decision by the seven-member panel.

This time, a nine-member sat for the review. After a barrage of arguments, the new panel upheld the apex court’s earlier ruling.

Mr Mahama’s request to ask the Chairperson of the Electoral Commission some questions was dismissed for the second time.

In its ruling on Thursday, the nine-member panel said the arguments raised by the petitioner’s legal team does not merit a grant of their application.

The panel said the application submitted had not met the threshold to apply for review and subsequently dismissed it.

The court presided over by the Chief Justice noted that there was no new, important matter or evidence that the petitioners had raised in its review argument.

“We have read the processes and have listened to counsel; we are not satisfied that the applicant has met the statutory requirement of rule 54(a) of C.I. 16 in order to succeed in an application for review. The application fails and it is accordingly dismissed,” the Chief Justice read out a unanimous ruling.

Read: Don’t bring God into court matters – EC Counsel to Tsikata

• Inspection of documents application dismissed

With several attempts to get the court to change its stance concerning the interrogatories application, the petitioner raised the issue of inspection of documents.

Lead counsel for Mr Mahama, Tsatsu Tsikata, argued that access to the documents would ensure a fair determination of the case.

He insisted it had been established during the cross-examination of Johnson Asiedu Nketia that some areas had multiple summary sheets showing different results.

This application was again dismissed by the apex court.

The seven-member panel in its decision read by Justice Anin Yeboah stated that the applicant had not denied having copies of the documents being requested.

The judges said no new evidence had been given by the petitioner to warrant the court granting the application for the original documents to be handed over to the petitioner.

The court said its detailed decision would be incorporated in the final ruling on March 4.

• A third attempt by the petitioner tossed out

This was after all three witnesses of the petitioner had testified – the NDC General Secretary Johnson Asiedu Nketia, representatives of Mr Mahama in the strong room, Dr Micheal Kpessa Whyte and Robert Joseph Mettle Nunoo.

The petitioner shortly after closed his case, urging the respondent’s counsels (Justin Amenuvor and Akoto Ampaw) to do the same.

What this meant was that the Electoral Commission was not under any obligation to provide a witness.

The court gave all parties a chance to argue it out and decided that it cannot force or subject a witness to testify.

The seven-member panel said they could not extend their mandate beyond what the law granted. Therefore, they could not employ society’s laws to subject the witness to testify.

Justice Anin Yeboah maintained that no provision in the constitution or statute had been pointed out by the petitioner to show that the EC chairperson is subject to different rules contrary to settled rules of procedure and settled practice.

• Petitioner filed for a review for Jean Mensa to testify

The review panel affirmed a seven-member panel decision that the Electoral Commission could not be compelled to call its Chairperson to testify in the election petition.

They relied on rule 54 of the Supreme Court rules (C.I 16) to insists that the conditions meriting a review had not been met.

• Reopening case application

After the back and forth, the petitioner pushed his last card. Mr Tsikata filed for a chance to reopen his case and to subpoena the EC Chairperson.

But the apex court, in a unanimous decision, dismissed an application by the 2020 NDC presidential candidate seeking leave to reopen his case.

Backing this stance, the CJ said the petitioner had not indicated how the evidence he intended to solicit from the EC Chairperson would help in the case.

He also stated that the arguments raised by the petitioner are almost the same as those raised in the objection to the first respondent’s decision not to call a witness; thus Section 26 of the Evidence Act is not applicable in this case.

The CJ concluded by indicating that the EC Chairperson was not on trial; hence she cannot be asked to vindicate herself.

• Review panel to hear the reopening application

The review panel dismissed a request that it reviews its decision not to allow the petitioner reopen his case.

The CJ maintained the earlier ruling that the petitioner had not indicated how the evidence he intends to solicit from the EC Chairperson would help.

He explained that a review jurisdiction should not be seen and used as an emotional reaction to an unfavourable judgment. In effect, the review could not be used as an opportunity by the petitioner to advance their case further.

• Mahama’s first and only victory

In all these failed applications, the petitioner had only one victory. On January 15, Mr Mahama was allowed to correct his application errors.

The request was granted on the ground that the amendment does not affect the substance of the petition.

The NDC General Secretary Asiedu Nketia and Joseph Robert Mettle Nunoo had portions of their witness statement struck out.

Three stays of proceedings were tossed out the door.

Supreme Court Panel

Chief Justice Kwasi Anin Yeboah presided at all times.

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.

The new additions to the panel included Imoro Tanko, Henrietta Mensa Bonsu and Avril Lovelace Johnson.

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