Election Petition Review: What you don’t see from your TV screen - 2

Last week, we brought you the first of the Weekly Special Report on happenings at the Supreme Court as the 2020 Presidential Election Petition unfold.

The report is to help you follow and be up to date with happenings in the 2020 election petition.

EC Chairperson and her tearing notepad

On Monday, February 8, Rojo Mettle-Nunoo was cross-examined through a video conference. Throughout his cross-examination, one characteristic of the sitting was the consistency with which EC Chairperson Mrs Jean Mensa kept tearing her notepad.

From the moment, Justin Amenuvor, lead lawyer of the Electoral Commission (EC), the 1st Respondent, took charge to cross-examined the witness; the short pen of Mrs Mensa was busy throughout while passing on information to her lawyers through pieces of papers she had tore from her notepad.

The crux of Rojo Mettle-Nunoo’s testimony was how he alleged that, the EC Chairperson asked them to deliver a message to the Petitioner and declared the results in their absence.

With the speed with which Mrs Jean Mensa was tearing pages of her notepad to pass on information to her lawyers, it came as no surprise when Counsel posed the question to Rojo Mettle-Nunoo indicating that he was served with “tea and biscuit” though the witness denied that of the biscuit.

Summary from week’s hearing

On the week that commenced on Monday, February 8, 2021 to Friday, Februay 12, the apex court had three sittings –(Monday, Tuesday and Thursday).

On the Monday’s hearing, Rojo Mettle-Nunoo mounted box and was cross-examined by lawyers of the respondents. Rojo was the last of three witnesses the Petitioner had called after Johnson Asiedu Nketiah and Dr Michael Kpessa-Whyte.

His cross-examination was concluded by Akoto Ampaw, Lead Counsel for the 2nd Respondent Nana Akufo-Addo after putting questions to the witness and requesting answers aimed at discrediting the witness’ own statement.

The witness was discharged with Mr Tsikata indicating that the Petitioner had close his case.

But the Respondents who were to open their defense by calling in witnesses, one after the other indicated to the court that, they do not intend to call any witnesses on grounds that, the Petitioner has not discharged the burden of proof as per their evidence before the court.

That indication took the Petitioner aback and Mr Tsikata indicating to the court that they opposed to the move by the respondents.

The court adjourned the case Tuesday, the 12th sitting for the parties to advance legal arguments to support their positions.

Legal submissions

On Tuesday, February 9, the apex court welcomed legal arguments from the parties on whether or not Mrs Mensa should testify; lawyers for the parties (Mr Mahama, the EC and President Akufo-Addo) made their respective arguments.

They touched on the rules of court relating to witnesses, case laws on the rights of parties to call or not to call witnesses to adduce evidence, vis-a-vis the court’s power to intervene in the exercise of those rights.



Respondents’ arguments

Lawyers for the respondents, Mr Justin Amenuvor (the EC) and Mr Akoto Ampaw (President Akufo-Addo) both took the view that the rules of court, specifically the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and its subsequent amendment, C.I. 87, supported their decision not to call any witness.

Akoto Ampaw, the lawyer for Akufo Addo, 2nd Respondent added that, if the Petitioner has a good case, he should be happy that the respondents have decided not to give evidence

Tsatsu disagreement

Mr Tsikata, Lead Counsel for the petitioner opposed to the submission, made by the respondents to the effect that, the respondents’ position was not in compliance with any rule of court, including CI: 99, the rules governing presidential election petitions.

According to him, it was in the best interest of justice for the EC Chairperson to be cross-examined adding that Mrs Jean Mensa was responsible for the declaration of the presidential results and that had the responsibility to account to the people of Ghana.

Mr Tsikata argued that the EC chairperson must be in the box because she had deposed to a witness statement and also made certain assertions in her affidavits which presupposes that she was offering herself to be cross-examined



It was the further case of Mr Tsikata that the EC opposed to the petitioner’s application for interrogatories with the explanations that those interrogatories could be asked during cross-examination.

The chairperson he said has elected to be cross-examined and had long crossed the bridge where they can say she does not want to mount the box.

Mr Tsikata indicated that, should they withdraw the Witness Statement, there is an option of subpoena where the court can compel her to be cross-examined.

The court after hearing the parties adjourned ruling to Thursday, February 11, 2021 as there was no sitting on the day before.

Supreme Court can’t compel Jean Mensa to testify

The Supreme Court in a unanimous decision ruled that the Chairperson of the EC, Jean Mensa and Peter Mac Manu cannot be compelled to testify in the Election Petition case.

The apex court made the ruling on Thursday, February 11, 2021, on the back of an application filed by lead counsel for the EC, Justine Amenuvor and that of President Akufo-Addo, Akoto Ampaw, asking for permission not to call any witness.

Chief Justice Kwasi Anin-Yeboah who read the ruling said the judges were not convinced by the contrary arguments made by Tsatsu Tsikata, lead counsel for the petitioner.

The CJ explained that court’s jurisdiction cannot be extended beyond what the law requires.

“We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a president.



“Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined.

Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition,” he added.

Order to file written addresses

The apex court consequently ordered lawyers for the parties to file their closing statements by close of day Wednesday 17, 2021.

The CJ in making the orders asked the lawyers to file the addresses simultaneously and return on February 18, 2021 for oral submissions on their addresses and subsequently fix a date for judgement.



By Court

“Per the ruling just read, the respective cases of the 1st and 2nd respondents are deemed closed. This court hereby orders that the parties herein shall simultaneously file their respective closing addresses on or before Wednesday, February 17, 2021.

“The petition is hereby adjourned to Thursday, February 18, 2021, for counsel in this petition to highlight on the written addresses or submissions so far for the petition to be adjourned for judgement,” he said.

Petitioner to re-open case

Following the declined of their request for the EC Chairperson to be mount the witness box, the petitioner, John Mahama, through his lawyers filed an application to re-open their case and serve the EC Chairperson with a subpoena to appear to testify.

Counsel also indicated they were in the processes of filing a review application against the ruling of the court.

Parties involved

With the Petitioner John Dramani Mahama- Mr Johnson Asiedu Nketia has been representing him, while Jean Adukwei Mensa represents the EC (1st Respondent) except on an occasion where she turned up late and was represented by Sylvia Annor.

Nana Addo Dankwa Akufo-Addo had Mr Peter Mac Manu representing him with a power of Attorney.

8 Legal brains

With regards to legal representation, Mr Tsatsu Tsikata and Tony Lithur are for the John Mahama (Petitioner). Justin Amenuvor and Alexander A Somoah Asamoah represent the EC (1st Respondent).

The 2nd Respondent Nana Akufo-Addo has four lawyers and they are Mr Akoto Ampaw, Lead Counsel and had support from Mr Frank Davies, Kweku Asirifi and Yaw Oppong.



Expectations

The seven-member panel; Justice Yaw Appau, Justice Samuel Marful-Sau, Nene Amegartcher, Justice Prof Nii Ashie Kotey, Justice Mariama Owusu and Justice Gertrude Torkornoo are expected to hear the motion to re-open Petitioner’s case on Monday, February 15, 2021.

Issues regarding the motion for review and the subpoena are expected to be dealt with in the coming week.