Former President John Dramani Mahama has refueled his legal pursuit to have the Chairperson of the Electoral Commission (EC), Mrs Jean Adukwei Mensa, testify in the 2020 presidential election petition at the Supreme Court.
When the highest court of the land resumes sitting on the petition today, it will deal with two applications by Mr Mahama (petitioner), both geared towards ensuring that the Chairperson of the EC testifies in court.
The first is a review application challenging the court’s ruling not to grant permission to the petitioner to reopen his case in order for his lawyers to subpoena Mrs Mensa to appear before the court and testify, while the second is an application for stay of proceedings urging the court to put the petition on hold until the final determination of the review application.
Lawyers for the petitioner filed the two applications last Thursday shortly after the apex court had dismissed another review application by Mr Mahama which was challenging the court’s decision not to compel Mrs Mensa to testify.
It is the petitioner’s contention that the court’s decision of February 16, 2021 not to allow him to reopen his case in order to subpoena Mrs Mensa was fraught with fundamental errors of law, which had “occasioned a grave miscarriage of justice” to him.
Among other things, Mr Mahama argues that the court did not take into consideration Section 72 of the Evidence Act, 1975 (NRCD 323), which he said would have allowed him to call Mrs Mensa to testify, subject to the discretion of the court.
He contends that the court rather relied on a subsidiary legislation — Order 38 Rule 3E (5) of C.I. 47, as amended by C.I. 87, to decide that the EC had the right to call or not to call witnesses.
“The ruling was in fundamental error in subjecting statutory provisions in the Evidence Act, 1975 to the provisions of subsidiary legislation, specifically Order 38 Rule 3E (5) of C.I. 47, as amended by C.I. 87, and has occasioned a grave miscarriage of justice to the applicant (Mahama),” the petitioner avers in his statement of case.
Mahama’s pursuit of Jean Mensa
Former President Mahama, the presidential candidate of the National Democratic Congress (NDC) in the December 7, 2020 election, filed the petition on December 30, last year to challenge the outcome of the election, in which the EC declared President Nana Addo Dankwa Akufo-Addo the president-elect.
He has made the need for the Chairperson of the EC to testify one of the cardinal principles of his case, with his lawyers arguing that Mrs Mensa has a duty to account to Ghanaians for her stewardship over the December 7, 2020 election.
However, he has not been successful in his first three attempts to get Mrs Mensa into the witness box.
In the first move, lead counsel for the petitioner, Mr Tsatsu Tsikata, objected to a decision by the EC (first respondent) to close its case without adducing any evidence, a strategy that meant that Mrs Mensa, the only potential witness on record for the EC, would not testify.
Lead counsel for the EC, Mr Justin Amenuvor, had submitted that Mr Mahama had not provided any substantial evidence to back his petition and, therefore, there was no need for his client (EC) to adduce any evidence, with Mrs Mensa as its witness.
On February 11, this year, the court overruled the objection by Mr Tsikata, with the explanation that it had no powers to compel any party in a case to adduce evidence if the party had chosen not to do so.
Mr Mahama then filed an application seeking permission to reopen his case to enable his lawyers to subpoena Mrs Mensa to testify on his behalf as a ‘hostile witness’.
That was dismissed by the court on February 16 on the basis that the petitioner had failed to demonstrate what evidence he was seeking from the Chairperson of the EC and how that evidence would aid his cause, or the determination of the petitioner.
It is this ruling that the current application for review is seeking to change.
On the same day, lawyers for the petitioner filed a review application challenging the decision of the court not to compel the Chairperson of the EC to testify.
The court dismissed that review application last Thursday. Shortly after the court’s decision, the petitioner filed the current review application against the court’s decision on February 16 not to allow him to reopen his case.
In his petition, former President Mahama contended that no candidate won the 2020 presidential election and, therefore, the declaration of President Akufo-Addo as the winner of the election by Mrs Mensa was “null, void, unconstitutional and of no legal effect”.
He argued that as per the results announced by Mrs Mensa on December 9, 2020, no candidate garnered more than 50 per cent of the total valid votes cast, as required by Article 63(3) of the 1992 Constitution.
Former President Mahama, therefore, wants the Supreme Court to declare the declaration on December 9, 2020 as null and void and also order the EC to conduct a run-off between him and President Akufo-Addo.
He has also accused the EC of engaging in vote padding by deducting some of his votes and adding it to that of President Akufo-Addo.
In their answers, President Akufo-Addo and the EC argued that the petition was incompetent, lacked merit and raised no reasonable cause of action.
It was their contention that the petition did not even meet the requirement of a presidential election petition, as stipulated in Article 64 (1) of the 1992 Constitution and was, therefore, incompetent.
That, they argued, was because the petition made no allegation of infractions in the election at any of the 38,622 polling stations and 311 special voting centres.