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The cross examination of the ‘errand boy' on 2020 Presidential Election Petition: A street lawyer’s analysis

Wed, 3 Feb 2021 Source: Kofi B. Kukubor

Technically, the Petitioner has practically finished his trial today, 2nd February 2021. Barring any supplementary pleadings (which shall be determined tomorrow, 3rd February 2021,) the Petitioner was not able to prove unconstitutional discharge of the Chair of the 1st Respondent as indicated by the 1st Witness of the Petitioner.

Until the Lawyer of the Petitioner starts his cross-examination of the 1st Respondent, it is hazy at this moment to determine how the “unconstitutional performance and faithful discharge of 1st Respondent’s constitutional duty" can be proved vis a vis the issues for trial.

Nevertheless, considering the issues for trial, the cross-examination of the 2nd Witness, may at best fall under issue one of the trial, “whether or not the petition discloses any reasonable cause of action.”

The Journey Through The Processes, Procedures and The Forms Leading To Declaration of Results (CI 127)

The Lawyer of the 1st Respondent directed his cross-examination at establishing whether the 2nd Witness has adequate knowledge and full comprehension of the processes in order for the 2nd Witness to have the requisite capacity to challenge the legality of the conduct of the process.

In addition, the Lawyer of the 1st Respondent and 2nd Respondent also sought to establish whether the 2nd Witness was fully aware of his terms of reference as the Petitioner’s representative in the national collation centre (strong room), and his command structure.

The Regulations

The 2nd Witness admitted that he was trained to understand the process from filling Form8B (Presidential Election Polling Station Results Form), Form9 (Presidential Election Results Collation Form), Form10 (Presidential Election Results Summary Sheet), Form11 (Presidential Regional Collation Form), and Form12 (Presidential Regional Summary Sheet), and Form 13 (Declaration of Presidential Results Form), and the regulations thereof.

Under oath, the 2nd Witness admitted that the he and his other representative of the Petitioner complained to the EC about certain irregularities when the regional summary sheets were being sent to the “strong room”.

Notwithstanding complaints of the 2nd Witness and his co-agent, his co-agent of the Petitioner certified the collated results from 12 regions.

The 2nd Witness also admitted that the Petitioner’s regional collation centre agents did sign Form12 without stating any objections except for Sefwi Wiawso constituency in the Western North Region which was subsequently certified by 2nd Witness’s co-agent in the strong room.

It should be noted that, CI 127 mandates the Presidential Returning Officer to collate results of Form12 onto Form13 for declaration. Not from Form10. So, the issue of 2nd Witness’s co-agent signing in “error” does not even arise.

The 2nd witness further stated that, the complaints were based on hearsay, phone calls, etc (from one Mr. Peter Otokunor, the Deputy General Secretary of NDC), but not based on objections stated on Form12 as required by regulations 44 (9) (c), (d), (f) and (d), 44 (10) and 44 (10) (a) of CI 127.

The Mysterious Form 13 (Declaration of Presidential Results Form)

Form13 which was not in evidence before the court was rightly objected to by the Petitioner’s Lawyer, when the Lawyer of the 1st Respondent attempted to smuggle it to the 2nd witness for the purpose of cross examination.

However, one of the Justices used the Form13 to assess the integrity of the 2nd Witness’s knowledge of the forms and the regulations thereof. The 2nd Witness tumbled by saying, the Form13 as designed in CI 127 is different from the one presented to him. And that, the Form13 in CI 127 has no column for the agents to state “reason if refused to sign".

However, cross checking Form13 in CI 127, it has a column for “reason if refused to sign". Assuming the Form13 that was presented to the 2nd Witness is even varied from the one in CI 127, section 30 of Interpretation Act, 2009 (Act 792), addresses the issue on deviation in forms.

Section 30 Interpretation Act, 2009 (Act 792). "Where a form is prescribed or specified by an enactment, deviations from that form not materially affecting the substance and not calculated to mislead shall not invalidate the form used.”

Establishing The Facts of Bad Faith (The question of the ‘errand boy')

Lawyer of 1st Respondent: “I put it to you that you were not instructed by the Chairperson of the first respondent to leave the room.”

2nd Witness of Petitioner: “My Lords we were instructed by the first respondents. I have no reason ever to just lie or deceive this honourable court if that was not the case. As I have indicated our leaving there was not in secret.”

The Judges Clarification

Bench: “Will it be right to say that by taking contrary instructions from the chairperson of the 1st Respondent, granted what you have said is true, you did not help the course of the petitioner who sent you there?

2nd Witness of Petitioner: “My Lord, I don’t believe that is true. We were working in furtherance of making sure that the results that ultimately gets announced by the 1st Respondent reflect and represent the will of the people and if she, asking us to consult with the petitioner is part of how we will get there, we were happy to do it.”

The 2nd Witness of the Petitioner however testified that, the 2nd witness and his co-agent were instructed by the 1st respondent to leave the strong room to go and consult the petitioner on irregularities they complained about to the 1st respondent. The 2nd witness however admitted that, 1st respondent had no such powers to instruct him. The 2nd witness further admitted that the 1st respondent never spoke to him directly.

By this admission, the integrity of the 2nd witness's word against the 1st respondent, his understanding of his command structure, and his terms of reference as a representative of the petitioner in the strong room were in my opinion discredited.

The ‘Petition’ Letter

The 2nd witness testified that the letter of petition delivered to EC as claimed had no evidence of receipt, and no electronic trail (not sent by email).

The Lawyer of the 1st respondent insisted that, the purported petition was rather put in the public domain to hide the failures the 2nd witness and his co-agent.

However, during earlier cross-examination of the 1st witness of the petitioner, the 1st witness of the petitioner admitted that, the letter of petition also contained Parliamentary complaints. This has cast doubt on the intention of the letter as the Returning Officer for the presidential candidate does not address petition relating to parliamentary results.

The Issue of Harassment

Judges should be impartial and neutral and must not be seen to demonstrate excessive interventions in cases before them, when they are seeking clarification after cross-examination.

The judge's excessive interventions during examination of witnesses should not turn the trial into an inquisitorial rather than an adversarial process. Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281 and Jones v. National Coal Board [1957] 2 QB 55, referred.

The statement by one of the Justices "then seriously speaking you did not take your training seriously” in trying to seek clarification from the 2nd witness, as much as bias may not be adduced, in the writer’s opinion, the Justice’s statement was rather on the side of excessive intervention.

The Court adjourned to 3 February 2021 at 9:30am in the forenoon.

Court rise!!

Columnist: Kofi B. Kukubor
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