Stop saying ‘the court cannot compel a witness to give evidence’ – Kwaku Azar

Professor Stephen Kwaku Asare, known popularly as Kwaku Azar, has charged the public to stop saying that “the Court cannot compel a witness to give evidence”.

According to him, the Supreme Court can get away with that but people should desist from repeating that statement, which has become popular in the ongoing Election Petition hearing at the Supreme Court.

Prof. Asare in a post on his Facebook timeline sighted by GhanaWeb explained that the common law is clear on who can be summoned as a witness in a court of competent jurisdiction.

He said, “Anyone at all can be deposed or subpoenaed and anyone can be summoned as a witness. The ‘non-election petition’ law on summoning witnesses is that ‘in any proceedings, and at any stage of the proceedings, a court either on its own motion or on the application of any party may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law’.”

Kwaku Azar stated further: “Our ‘non-election petition’ law provides that ‘A person present in court, whether a party or not in the proceedings before the court may be compelled by the court to give evidence or to produce any document in his possession or under his control, in the same manner, and subject to the same rules as if he had been summoned to attend and give evidence, or to produce the document, and may be punished in the same manner for refusal to obey the order of the court.”

Prof Kwaku Azar’s comments follow the shocking unanimous decision by the Supreme Court to dismiss an application by the 2020 NDC presidential candidate seeking leave to reopen his case.

John Dramani Mahama, who is the petitioner, had urged the court to grant his request saying he intends to subpoena EC Chairperson, Jean Mensa, to testify.

Arguing on this, Prof Asare stated that the law on discovery is equally clear that parties shall exchange evidence.

“Discovery, cross-examination, etc. have nothing to do with jurisdiction and the Supreme Court can get away with statements like ‘its limited jurisdiction does not allow it to follow the accepted law on discovery and summoning witnesses’.

But to the general public, Azar warns: “Do not go and give a witness statement and think you can run away from the parties’ examinations. Courts do not take lightly such statements and you will likely be cited for contempt especially if any of your affidavits, no matter what it was related to, [you] say you will be available for examination.”