Election Petition: Why ‘star witness’ Asiedu Nketia’s cross-examination was used against the petitioner

John Dramani Mahama, the Presidential Candidate of the NDC in the 2020 election, got his Election Petition dismissed by the Supreme Court of Ghana for lack of merit.

In the two-hour judgement of the seven-member panel delivered by Chief Justice Kwasi Anin-Yeboah last Thursday, March 4, the Justices identified some loopholes in the answers of Johnson Asiedu Nketia, Principal Witness One, when the latter was cross-examined.

The Chief Justice describing Johnson Asiedu Nketia as the ‘star witness’ for the Petitioner, John Dramani Mahama stated that the Petitioner was not in “Court to challenge the validity of the figures or data presented by the Chairperson of 1st Respondent that is why in his testimony, he did not provide any data to contradict that of the 1st Respondent.”

He continued: “His assertion was that the figures initially collated by the Chairperson contained errors, which his party, the NDC pointed out in a letter addressed to the Chairperson on the 9th of December, 2020 before the declaration. However, in effecting corrections to the wrong figures or data, the 1st Respondent did not invite them for their participation but unilaterally effected the said corrections, contrary to articles 23 and 296(a) and (b) of the 1992 Constitution.”

Justice Kwasi Anin-Yeboah then went on to read exchanges that accounted for the judge’s refusal to order a re-run between the petitioner and the second respondent Nana Addo Dankwa Akufo-Addo.

John Asiedu Nketia, Dr Michael Kpessa-Whyte and Robert Joseph (Rojo) Mettle-Nunoo were presented by the Petitioner as witnesses, but the Supreme Court of Ghana, saw the testimonies of Dr Kpessa-Whyte and Rojo Mettle-Nunoo as “fanciful tales”.

“As for the other two witnesses; i.e. PW 2 and 3, Dr Kpessa-Whyte and Robert Joseph Mettle-Nunoo, the little said about their testimonies relative to the issues at stake, the better,” the Chief Justice read as part of the Judgement.

“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. We describe this evidence as fanciful because, despite these alleged protests, they went ahead to verify and certify 13 of the 16 election regional collation sheets,” Chief Justice Anin-Yeboah read.

Below are excerpts of the cross-examination between Akoto Ampaw (AA), counsel for 2nd Respondent, and Johnson Asiedu Nketia (JAN), 1st Witness of the Petitioner on February 1, 2021.

AA: I am saying that from the declaration in the video clip that we just saw, which really is the basis of all your case - and you should know what is in it - the total number of valid votes that the second respondent obtained is 6,730,413?

JAN: That is correct my lords.

AA: The total number of votes that the petitioner obtained from the declaration announcement of your exhibit ‘A’ is 6, 214, 889.

JAN: That is so my lords.

AA: And I am also putting it to you that if you do a sum of these valid votes…

By court: You asked this question about an hour ago more than or twice and it has been answered.

AA: Can you tell the court what is 6, 730, 413 as a percentage of 13,121,111?

JAN: My lords, it’s 51,29453 ad infinitum. So, it can be round up to 51.295%

AA: So, 51.295% not so?

JAN: Yes.

AA: What about the petitioner: his total valid votes are 6, 214, 889. What is this sum as a percentage of 13,121,111?

JAN: It is 47.365569 ad infinitum. So, it can be rounded up to 47.366%.

AA: So, you admit that from the Chairperson of first respondent’s declaration on December 9, the second respondent crossed more than 50% threshold?

JAN: From the declaration as announced.

AA: From the figures that we just calculated, these figures which were announced, if you do them as a percentage of the actual total valid votes, these are the percentages you get for the petitioner and the second respondent. That is what I am putting to you?

By court: Mr Ampaw, when you recapture your question, this is what raises the difficulty. Your previous was, the second respondent crossed the 50% threshold. In recapturing, you changed the second part. So kindly stick to the question.

AA: I am saying that from the calculation of the figures of petitioner and second respondent, the second respondent nearly crossed more than 50% threshold?

JAN: Well, if the figures are correct, yes.

AA: Again, you see that when you calculated the percentage for the second respondent you came to a figure of 51.295%.

JAN: Yes, my lords.

The concluded that per the above exchanges there was no doubt the petitioner’s team accepted that the total valid votes cast was 13,121,111 and not 13,434,547 as erroneously described by the Chairperson of the first respondent on December 9, 2020.

It was the view of the panel that the evidence in court confirmed that the total valid votes cast was 13, 121,111.

It was at this point of the cross-examination that the CJ stated that there was no legal basis to contend that a different figure of 13, 334 574 was used as total valid votes in measuring the more than 50% threshold.

The Chief Justice continues reading

AA: So, you admit that it is completely wrong for anybody to use the total votes cast as a basis for determining the percentage of votes obtained by different candidates?

JAN: Yes

AA: Anybody who does that cannot be accepted anywhere in Ghana.

JAN: Yes my lord.

AA: I am putting it to you that you used this erroneous figure as a basis for calling for your re-run?

JAN: The question again, I want to get the question again so I can answer.

AA: You cannot use that wrong figure as a basis for your claim that there should be a rerun between the second respondent and the petitioner.

JAN: Yes, my lord.

The panel comprised Chief Justice Kwasi Anin-Yeboah (presiding); Yaw Apau, JSC, Samuel K. Marful-Sau, JSC; Nene Amegathcher, JSC; Professor Ashie Kotey, JSC; Mariama Owusu (Ms.), JSC; and Gertrude Torkornoo (Mrs), JSC.