Election Petition: Mahama’s 12 interrogatories that were dismissed by the Supreme Court

John Dramani Mahama, the petitioner in the ongoing election petition filed an “application” directed at the 1st respondent, namely the Electoral Commission, to interrogate Jean Mensa, their Chairperson, regarding “what actually happened” during the declaration of the presidential election results.

The legal process which was filed at the Supreme Court on Monday, January 18, under a procedure called “Discovery” with a specific subset called “Interrogatories sought to ask “12 questions” about the processes leading up to the declaration of results as explained in the EC’s own response to the petition.

However, the Supreme Court dismissed the “Application” during its sitting on Tuesday, January 19 dubbed “Day 21”.

According to the rules governing the petition (Constitutional Instrument 99 or C.I. 99) of 2016, the case must end by the forty-second day or Day 42 counting from when the petition was filed.

The application was filed on Monday 18 January, and directed at the EC only and was served on them in time. The counsels for the EC had filed an opposition to the said Application in time, thereby enabling the Supreme Court to hear the matter.

On Tuesday, Jan 19, the Chief Justice, president of the court, asked Tsatsu Tsikata, counsel for the petitioner, what matters he wanted to tackle first since that day marked the beginning of the hearings called “Case Management” or “Pretrial”.

The court had initially planned to move into the pre-trial issues of case management in the petition to determine the common grounds for the case to proceed.

But that was overtaken by the Application which was to be determined.

Tsatsu Tsikata argued that the objective of the Application was to “narrow down” the issues for the trial.

But Justine Amenuvor, counsel for the EC responded that the 12 questions had all been answered in the EC’s Response and that the Application was designed to “waste time”.

Tsikata then argued that that very answer implied that the 12 questions were relevant and therefore if they were answered now, unnecessary delays during cross-examination of witnesses will be avoided.

Akoto Ampaw, counsel for Nana Akufo-Addo, was allowed to contribute on his claim that even though the questions were not directed at his client, he wanted to assist the court on matters of legality.

He ended up opposing the Application arguing that the questions could be asked during cross-examination.

The court then adjourned for about an hour to consider the Application since some Justices countered Justin Amenuvor that the Application had merit based on the matter of the 2012-2013 “precedent” that Tsikata raised, and was thus properly brought before them.

However, in their ruling, the seven-member panel of the court presided over by Justice Kwasi Anin Yeboah, the Chief Justice, dismissed the Application with the view that the crucial issues of relevance had not been established by the petitioner.

Further, the court stated in their certified true copy of the ruling which Tsikata had requested for so that his team can advise itself that, “subsequent to 2013, several statutory amendments have been made by C.I. 99 of 2016 which has restricted the practice and procedure of this court as regards Election Petition”.

The court explained that even though "reference was made to the 2013 [presidential election] petition in which an application for interrogatories was granted by the Supreme Court, "Rule 69 of the Supreme Court amendment in C.I. 99 directs the expeditious disposal of petitions and sets timelines for this court to dispose off the petition."

The court continued in its unanimous decision: "It implies that even amendments brought here and granted as well as..., subsequent statutory amendments pointed out after the 2013 [presidential election petition], has provided us [court] with new procedural regime and strict timelines…..We are strictly bound to comply with C.I. 99 and therefore we will not apply Order 22 of C.I. 45 of 2004 in this circumstance...We accordingly refuse to grant the application and same is accordingly dismissed."

Find below the 12 questions filed under “Interrogatories” that were dismissed:

1. Was there a practice in previous Presidential Elections in the 4th Republic of collated figures from constituencies being received in “the strong room” at the Headquarters of 1st Respondent in the presence of agents of the candidates?

2. Was that practice described in paragraph 1 herein followed in respect of the 7th December 2020 elections?

3. Is the 7th December 2020 Presidential Election the first time Regional Collation Centres have been interposed between Constituency Collation Centres and the Headquarters of 1st Respondent?

4. How were results transmitted from the Constituency Collation Centres to the Regional Collation Centres?

5. How were results transmitted from the Regional Collation Centres to the Headquarters of 1st Respondent?

6. Did the National Communications Authority facilitate in any way the transmission of results to the Headquarters of 1st Respondent?

7. When did Mrs Jean Adukwei Mensa, the Chairperson of 1st Respondent and the Returning Officer for the Presidential Election, first realise there were errors in figures she had announced in her Declaration of 9 December 2020?

8. How did Mrs Jean Adukwei Mensa, the Chairperson of 1st Respondent and the Returning Officer for the Presidential Election, get to realise there were errors in figures she had announced in her Declaration of 9 December 2020?

9. In respect of the purported “corrections” made to the figures in the declaration by 1st Respondent, was there any prior process of conferring with agents of the Presidential Candidates?

10. Did Mrs Jean Adukwei Mensa, the Chairperson of the 1st Respondent, present Form 13 (The Declaration of Presidential Result Form) to all the agents of the Presidential Candidates to sign; and, if so, did all of the agents sign?

11. On which date did Mrs Jean Adukwei Mensa, the Chairperson of the 1st Respondent, post a copy of Form 13 at the Head Office of the 1st Respondent?

12. Did the 1st Respondent record any discrepancies which were occasioned by computational and mathematical errors in the course of the collation of the results?