Supreme Court throws out Mahama’s application for inspection

The Supreme Court has dismissed a request for inspection of documents filed by the Petitioner John Dramani Mahama in the ongoing election petition hearing. 

The seven-member panel presided over by the Chief Justice Anin Yeboah held that the legal team of the petitioner led by Tsatsu Tsikata have not demonstrated that they have no record of the said documents they want to inspect.

It added that the two witnesses (Johnson Asiedu Nketia and Dr Micheal Kpessa-Whyte) who testified on behalf of the petitioner have admitted that they have copies of all the said documents.

The apex court’s decision comes after Counsel for the petitioner Tsatsu Tsikata raised the motion for their request to inspect the documents of the Electoral Commission.

It was the case of the petitioner that the EC Chairperson Jean Mensa mentioned five different figures that saw the declaration of the NPP presidential candidate Nana Akufo-Addo as winner of the polls.

The five different figures captured as total valid votes as announced by Mr Tsikata on Wednesday are as follows:

On December 9, last year, which is the day the EC Chairperson declared the results, a figure of 13, 434, 574 was stated as total valid votes then 13, 433,573, a corrected figure of the one the EC Chair stated earlier.

Mr Tsikata again mentioned a purported figure of 13, 119, 460, from the EC; 13, 121, 119, a figure which was quoted by the EC boss in her declaration video of the 2020 general elections and the last figure was 13, 121, 111.

All these figures, he said were conflicting and there is a need for some clarity, thus an inspection of the documents.

The request, if granted would allow for a proper validation of what the correct figure on which the basis of a declaration was made.

He argued that this was the only way to authenticate the figures would be to inspect the original documents of Ghana’s Electoral body.

Mr Tsikata also made reference to the 2012/13 election petition ruling by her Ladyship Sophia Adenyira, which essentially said the petitioner’s themselves had already put forward documents that they had confidence and therefore to ask to inspect documents that was contradictory.

But, with Mr Mahama’s application, Mr Tsikata said that they have not put forward any results or malpractices of 4,709 polling stations, as was in the case of the 2012/13 election petition.

Mr Tsikata makes a case that they (Petitioner) have put forward the figures as announced by the EC Chairperson Jean Mensa. In effect, he holds that the same cannot be said of their application.

In concluding, he noted that it is even in the interest of the first respondent (Electoral Commission) to be transparent and fair with its dealings with the court.

The two respondents mounted a spirited challenge, in its opposition to the application filed by the petitioner John Dramani Mahama.

Counsel for the Electoral Commission Justin Amenuvor

It was the case of Mr Amenuvor that the timing of the application was in clear disregard for the election adjudication process which required the apex court to settle this matter within 42 days.

For him, the application was coming too late. He makes reference to Article 64 (1) of the 1992 constitution which states that the petitioner has 21 days from the day of the declaration to file the said petition.

Mr Amenuvor argues that within the stipulated time, no request was made by the petitioner John Mahama. He, is therefore, surprised that the petitioner choses to request for the documents after 34 days.

Why now?, he quizzes.

He also makes reference to the fact that the first witness (Johnson Asiedu Nketia) confirmed that they have the documents which gives the actual figure during his cross examination.

Counsel for President Nana Akufo-Addo,  Akoto Ampaw 

Mr Ampaw, in opposing the application, says it is the petitioner’s duty to prove which is the correct figure the EC was supposed to have announced. This, ‘burden of proof’ according to him, is in the sole bosom of the petitioner John Mahama.

In legal terms, the burden of proof is a party’s obligation to prove a charge, allegation, or defense.

He believes the petitioner has all the necessary documents to prove which is the correct figure.

But Mr Tsikata maintains that the burden of proof regarding inspection of documents was irrelevant.

Background

The legal team for the petitioner in the ongoing election petition hearing at the Supreme Court filed an application to inspect documents of the Electoral Commission on February 2, 2021.

The team led by Tsatsu Tsikata is demanding the originals of the constituency presidential election result collation forms (form 9) for all constituencies, the originals of all constituency presidential election results summary sheet (form 10), and the originals of the regional presidential election collation forms (form 11) for all regions.

Aside that, the petitioner is asking for the originals of the regional presidential election results summary sheets (form 12) for all regions and the original of the declaration of the presidential results form (form 13).

The team also wants the records of the alleged update to the purported declaration of presidential election results on 9th December 2020, of the results of four (4) constituencies in the Greater Accra Region.

This, the respondents opposed to — the first respondent Electoral Commission and the second respondent President Nana Akufo-Addo.

Meanwhile, the cross examination of the second witness, Dr Michael Kpessa Whyte for the petitioner has ended.

The respondents, the Electoral Commission and President Nana Akufo-Addo team will take turns to examine the witness.

Michael Kpessa-Whyte, a former Executive Director of the National Service Secretariat, and Johnson Asiedu Nketia are the witnesses for Mr. Mahama in the ongoing case at the Supreme Court.

Cross-examination of Mr. Asiedu Nketia ended on Monday, February 1, 2021, and he was discharged by the court.

Dr Kpessa-Whyte has also been discharged.

On January 20, this year, the Supreme Court announced the roadmap for the election petition hearing that will determine if President Nana Akufo-Addo was duly elected.

In setting out the timeliness, it said it would not tolerate time-wasting as it took a cue from the 2012 election petition which travelled for more than eight months.

The roadmap announced will see parties making their case to determine if indeed there were some anomalies with the results that saw the NPP presidential candidate emerging winner of the 2020 polls.

The apex court has 42 days to conclude on the election petition filed on December 30, last year.

The Justices sitting on this case are made up of the Chief Justice Anin-Yeboah, Yaw Appau, Marful Sau, Professor Ashie Kotei, Mariama Owusu, Nene Amegatcher and Gertrude Tokonor.

Source: The Report Ghana

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