Ghanaians will know today whether the Chairperson of the Electoral Commission (EC), Mrs Jean Adukwei Mensa, will mount the witness box and testify in the 2020 presidential election petition filed by former President John Dramani Mahama.
The seven-member panel of the Supreme Court will rule on an application by the respondents — the EC and President Nana Addo Dankwa Akufo — not to call any witness.
The issue of whether Mrs Mensa will testify or not has become the major bone of contention in the petition, with lawyers for the respondent and the petitioner battling it out with copious legal arguments.
While the legal teams of the respondents insist there is no rule of court that obliges them to call witnesses, the petitioner argues that the EC has already decided to call witnesses and in view of that it cannot let its witness (Mrs Mensa) avoid cross-examination.
Pursuant to an order by the court during the case management stage, all the parties (the petitioner and the respondents) filed their respective witness statements.
For the petitioner, the General Secretary of the National Democratic Congress (NDC), Mr Johnson Asiedu Nketia, and a member of the NDC team in the EC’s ‘strong room’ during the 2020 elections, Dr Michael Kpessa-Whyte, filed their witness statements.
Mrs Mensa also filed a witness statement on behalf of the EC, while the Campaign Manager of the New Patriotic Party (NPP) in Election 2020, Mr Peter Mac Manu, filed on behalf of President Akufo-Addo.
Mr Asiedu Nketia and Dr Kpessa-Whyte were accordingly cross-examined by lawyers for the respondents and were discharged.
The petitioner decided to call a third witness — Mr Robert Joseph Mettle-Nunoo, another representative of the NDC in the EC “strong room”— who was also cross-examined and discharged.
Consequently, former President Mahama closed his case and the responsibility shifted to the first respondent (the EC) to open its defence by calling its witness (Mrs Mensa).
However, lead counsel for the EC, Mr Justin Amenuvor, informed the court that his client (the EC) would not call any witnesses.
That meant the EC had decided that Mrs Mensa would not mount the witness box.
Mr Akoto Ampaw followed suit and said his client (President Akufo-Addo) would also not call any witness, meaning Mr Mac Manu would not testify.
The two lawyers informed the court that they would not adduce any evidence to challenge the petition and so the apex court should determine the petition on its merit and the testimony adduced by the three witnesses for former President Mahama.
According to them, the rules of court allowed a defendant to elect or choose to adduce evidence, but they had decided not to exercise that right and would, therefor,e not call any witness to adduce evidence.
The petitioner, they argued, should rejoice and be excited that his petition would be determined on its merit, without any input from witnesses who would have presented contrary evidence challenging the petition.
“If the petitioner has a good case, he should be dancing and happy about the position taken by us,” Mr Amenuvor had argued.
Lead counsel for the petitioner, Mr Tsatsu Tsikata, however, took the position that the EC had already ‘elected’ or decided to call a witness when it filed its witness statement.
In view of that, he argued that Mrs Mensa could not evade or be shielded from cross-examination.
Also, it was his case that as the Chairperson of the EC, Mrs Mensa had a constitutional duty to account to the people of Ghana and how she discharged her duties during the 2020 elections, especially those in contention in the petition.
“She wants to shield herself from accountability by not submitting herself to cross-examination. She must account for that public duty and the best forum to do that is the Supreme Court,” Mr Tsikata added.
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.
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 is 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.