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Opinions Tue, 16 Feb 2021

Subpoena to compel the chairperson of the Electoral Commission to testify is a fishing expedition

The unwillingness of political parties to accept defeat and demonstrate democratic behaviour is a huge and negative factor in elections in Ghana.

Our democracy is very fragile and as such, each of us as Ghanaians have a duty and responsibility to defend the truth and defeat the lies. Ghanaian politicians must recognise when they have been defeated in an election.

If a leader can not endure being defeated in an election then that leader should leave politics. Accepting defeat is a challenging task which many political leaders are not prepared to do and instead blame the electoral commission for their own shortcomings.

The 2004 elections ended up in the Supreme Court because the opposition National Democratic Congress disputed the results but they lost on technicalities.

The 2012 presidential election between John Dramani Mahama and Nana Addo Dankwa Akufo-Addo resulted in an 8-months election petition trial at the Supreme Court after the Electoral Commission under the chairperson of Kwadwo Afari-Gyan declared John Dramani Mahama the winner who secured 5.5 million votes or 50.7%,Nana Addo Dankwa Akufo-Addo polled 5.2 million votes or 47.7%. The case was decided in favour of John Dramani Mahama by the Supreme Court.

The 2020 presidential election is currently in the Supreme Court after Nana Addo Dankwa Akufo-Addo was declared the winner by the Electoral Commission chairperson Jean Mensa. He secured 6,730,413 votes or 51.595%and John Dramani Mahama secured 6,214,889 votes or 47.366%.

A petition by John Dramani Mahama is seeking to set aside the results of the 2020 presidential election. The petitioner claimed that the votes obtained by Nana Addo Dankwa Akufo-Addo and the petitioner’s own votes as declared by the Electoral Commission chairperson Jean Mensa in the December 2020 election were not enough to be declared the winner. The petitioner presented three witnesses at the Supreme Court and they were cross-examined and the petitioner closed his case.

The fact that the respondents insist that the Electoral Commission chairperson can not go into the witness box because the burden of proof lies on the shoulders of the petitioner, a subpoena has been issued by the petitioner to force the Electoral Commission chairperson into the witness box. This is a witness summons to compel a testimony by a witness or production of evidence under a penalty for failure.

A court may set aside the whole, or part of a subpoena on the basis that it is a “Fishing Expedition “.This means fishing for information by the petitioner, especially incriminating information. Extracting admissions, acknowledgements and evidence from the other side is all part of the tactical fight that goes on in legal proceedings. In the recent case of Barnes versus Formation Group plc a party applied for such an order and the High court refused to grant it.

In the case of Lowery and the Insurance Australia Ltd the court of appeal held that where documents requested in the schedule of a subpoena are deemed to have no relevance to the proceedings in dispute, the subpoena may be set aside as it has no legitimate forensic purpose. Furthermore, it was held that it was not the role of the court to redraft the subpoena and narrow its scope to those issues in dispute.

The respondent has a right to object to the issuance of the subpoena if it is for an improper purpose, such as records that have no relevance to the proceedings, or persons who would have no evidence to present or records or testimony that is confidential or privileged.

The issue of the Electoral Commission chairperson mounting the witness box should be seen as an attempt to search for incriminating information by the petitioner to support his claim. Without proof of the petitioner’s claim, there is no case to answer. Objecting to the issuance of the subpoena is a right which the respondent can use. In my opinion, the subpoena is for an improper purpose. The Supreme Court can also set aside the subpoena on the basis that it is a “Fishing Expedition."
Columnist: Jonathan Mensah
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