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Election petition: Supreme Court determines Mahama’s motion today

BY: Emmanuel Ebo Hawkson

Ghana will, from today, witness the adjudication of a presidential election petition to determine whether or not President Nana Addo Dankwa Akufo-Addo is the validly elected President of the Republic.

It is challenging the declaration of President Akufo-Addo as the winner of the 2020 presidential election and is the second presidential election petition in the history of the country, after the first one in 2012.

The petitioner, former President John Dramani Mahama, is essentially asking the Supreme Court to order the Electoral Commission (EC) to organise a second election (run-off) between him (Mahama) and President Akufo-Addo because in Mahama’s estimation, no candidate won the 2020 presidential election.

The apex court is, therefore, the stage where lawyers for the three main protagonists, former President John Mahama (petitioner), the EC (first respondent) and President Akufo-Addo (2nd respondent) will contest the results.

Lead lawyers for the three parties are expected to be Mr Tony Lithur for former President Mahama, Mr Akoto Ampaw for President Akufo-Addo and Mr Justine Amenuvor for the EC.

Information available to the Daily Graphic indicates that the Chief Justice, Justice Kwasi Anin Yeboah, is likely to empanel a seven-member panel.

If the Chief Justice elects to be a member of the panel, he will preside over the panel.

The hearing of the petition will be broadcast live on Ghana Television (GTV).

Motion for amendment

The first item for the Supreme Court to deal with is a motion for amendment of the petition filed by former President Mahama, the presidential candidate of the National Democratic Congress (NDC) in the 2020 presidential poll.

The petitioner wants the apex court to allow him to correct an ‘error’ in one of his reliefs (relief f) in which he “inadvertently” referred to the EC (first respondent) instead of President Akufo-Addo (second respondent).

In relief (f), the petitioner is seeking an order from the court directed at the first respondent (EC) to organise a second election between him (petitioner) and the first respondent (EC).

However, in his motion for amendment, the former President wants the court to allow him to change the relief (f) to an order directed at the first respondent (EC) to organise a second election between him and the second respondent (President Akufo-Addo).

President Akufo-Addo, through his lawyer, Mr Ampaw, has opposed the motion for amendment, describing it as ‘incompetent’.

Petitioner’s 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 the Chairperson of the EC, Mrs Jean Adukwei 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.

According to him, the EC Chairperson announced the total valid votes cast as 13,434,574, minus the results of Techiman South, with President Akufo-Addo obtaining 6,730,413 of the votes, representing 51.595 per cent of the votes, while he (Mahama) got 6,214,889, representing 47.366 per cent of the votes.

It is the case of Mr Mahama that per the figures, the actual percentage for President Akufo-Addo minus Techiman South ought to be 50.098 per cent and not 51.595 per cent, as announced by the EC Chairperson.

He also argued that his percentage minus Techiman South should be 46.26 per cent and not 47.366 per cent.

Techiman South

Doing more calculations, it is his argument that Techiman South had a total voting population of 128,018, and if that was added to the total valid votes cast, as declared by the EC, it would be 13,434,574 plus 128,018 (13,562,592).

Juxtaposing from that, the NDC presidential candidate said it was erroneous for the EC to state that even if all the votes in Techiman South were added to his votes, it would not change the results.

“Consequently, if all the votes of Techiman South were added to the petitioner’s (Mahama’s) votes, the 2nd respondent’s (President Akufo-Addo’s) votes will remain the same at 6,730,413, now yielding 49.625 per cent, while the votes of the petitioner will increase to 6,342,907, now yielding 46.768 per cent.

“Therefore, Mrs Jean Adukwei Mensa’s claim in the purported declaration that adding all the 128,018 votes in Techiman South to the votes standing in the name of the petitioner will not change the results was clearly wrong,” Mr Mahama argued.

Respondents’ responses

In their responses, 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.

The EC also made a case that the petition was incompetent because it did not contest “the lawfulness of votes” obtained by any candidate in any polling station where the election was held.

In simple terms, President Akufo-Addo and the EC are arguing that the petition does not only lack merit but also cannot even be described as a presidential election petition within the confines of Article 64 (1) of the 1992 Constitution.

“Errors by EC”

The main crux of the petition is the declaration of the results of the election by Mrs Mensa on December 9, 2020.

While President Mahama, in the petition, argued that the figures declared by the EC on December 9, 2020 backed his claim that no one had more than 50 per cent of the valid votes cast, the respondents disagree.

The EC admits that Mrs Mensa inadvertently read the figure representing the total number of votes cast as the one representing the total number of valid votes cast, and also gave the percentage of the votes garnered by President Akufo-Addo as 51.59 per cent, instead of 51.295 per cent.

It, however, averred  that the EC corrected the errors on December 10 and even said “the corrections and clarifications did not affect the overall results as declared”.

The EC, therefore, argued that former President Mahama’s “deliberate” reliance on the figures declared on December 9, 2020 to make a case that President Akufo-Addo did not obtain more than 50 per cent of the valid votes cast was “misleading, untenable and misconceived”.

President Akufo-Addo also argued that the corrections by the EC to the declaration on December 9 were done within the EC’s power and “do not infringe any law”.