2020 Election Petition: Overbilled cross-examination of Jean Mensa that never was

It won’t be an exaggeration to suggest that one of the most anticlimactic moments of the 2020 Presidential Election Petition at the Supreme Court, was the highly anticipated cross-examination by Counsel Tsatsu Tsikata of EC Chairperson, Mrs. Jean Mensa, that never materialized. The anticlimax though, by itself, created enough drama to complete several episodes of a Courtroom Melodrama, thanks in part to Counsel Justin Amenuvor’s strategic move to close the case of the 1st Respondent after the Petitioner had closed his case.

Prior to that drama though, several people had been quoted in the media billing the expected cross-examination like a high-stakes boxing match.

· Abraham Amaliba, Esq. was reported to have called for a public holiday to be declared on the day Mrs. Jean Mensa would mount the witness box.

· Franklin Cudjoe of Imani tweeted thus: “Actually, who in his or her right frame of mind seeing what Tsatsu is doing will put his or her sister in harm's way by forcing her into a witness box?

· Sammy Gyamfi, Esq. was reported to have said: “People should wait for the cross-examination of Jean Mensa by Tsatsu Tsikata…You cannot afford to miss that. That will be the climax of the election petition.”

From my ringside position during the melodramatic motions and reviews that were all intended to get Mrs. Jean Mensa to testify, I raised one question on Facebook about what legal strategy other lawyers would have adopted if they were in the shoes of Counsel Justin Amenuvor. I am grateful to Professor Kwaku Asare (a.k.a. Kwaku Azar), who voluntarily offered ‘to get into the witness box for cross-examination’ on my question. Here’s what transpired:

Me: You are a lawyer and an activist. That’s great. May be you also practice in our courts. Fantastic. But tell me, by your professional training, if you were the lawyer for the Electoral Commission and not a lawyer-activist, would you have advised Mrs. Jean Mensa to mount the witness box? Please be honest.

Kwaku Azar: Good question. If it was me, I will definitely advise her to. I will explain the importance of clarifying any doubts and maintaining the institution’s integrity. Of course, others may offer different advice. The ultimate decision rests solely with the election manager. And if I was the election manager, I will jump on the opportunity to clear any doubts and show that my work is konk and that I welcome being proved wrong.

Me: Thanks, Prof., for your honest answer. Would your answer change if you thought the other party had malice and ill-motives aforethought?

Kwaku Azar: NO. My answer is without prejudice to who the other party is or what their motives are. My focus will be on my job, protecting the institution and assuring the citizens that my results are correct. Further, that I welcome any and all attempts to show otherwise.

Me: Even when the courtroom is not the only or final avenue to address the same issues you’ve raised? Would you still throw your client to a party who may have malice or ill-motives aforethought?

Kwaku Azar: Yes! All my client has to do is to tell the truth. No cross examination or examination can change or hurt the truth! There is absolutely nothing to fear. On the other hand, not doing so invites too many speculations.

Me: Thank you. So, for all cross-examinations, the skills and experience of the lawyer doing the cross-examination do not matter, so long as the witness is telling the truth?

Kwaku Azar: Yes. It is like a rotten fish. No matter how good the chef, it will not come out well. No cross examiner can prove that a validly elected person was not validly elected.

Me: So, I can safely presume from your responses, that all those who were hyping the spectre of Counsel Tsatsu Tsikata cross-examining Mrs. Jean Mensa, including Franklin Cudjoe of Imani and several NDC lawyers and activists, had made the presumption that Mrs. Jean Mensa was not going to tell the truth in the witness box, not because Mr. Tsikata's expertise could make any difference? Right?

Kwaku Azar: I have no clue what others were thinking. For me it was about procedural fairness. My view will be the same for any petitioner and any EC manager in a trial. The same is true for discovery.

So, there you have it. The cross-examination that never was, was overhyped and could well have been anticlimactic in itself. In the view of Prof. Kwaku Azar, all that had to happen was for Mrs. Jean Mensa to simply matter-of-factly and truthfully tell the Court what happened during the 7th December 2020 presidential election. Was that the strategy of the Petitioner’s legal team? We will never know.