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Supreme Court dismisses Mahama's application which sought 12 answers from EC

BY: Enoch Darfah Frimpong and Justice Agbenorsi

The Supreme Court has dismissed the application by the presidential candidate of the National Democratic Congress (NDC) in the 2020 election petition, which sought to ask it to grant leave for the Electoral Commission (1st respondent) to answer 12 questions regarding the declaration of the presidential election results.

Former President John Dramani Mahama, had filed two legal processes at the Supreme Court on Monday but at the court's sitting Tuesday, the application for 12 interrogatories was dismissed.

The application which was filed Monday [Jan 18, 2021], was moved by counsel for Mr Mahama, Mr Tsatsu Tsikata at the Supreme Court Tuesday morning (Jan 19).

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

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

Read also: Election petition: Mahama seeks 30 answers from EC

Moving the motion Tuesday, Mr Tsikata argued that the objective of the application was to “narrow down” the issues for the trial.

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

The court explained that "reference was made to the 2013 [presidential election] petition in which an application for interrogatories was granted by the Supreme Court.

"However, 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 said.

"Indeed, Rule 69 of the Supreme Court amendment in C.I. 99 directs the expeditious disposal of petitions and sets timeliness for this court to dispose off the petition."

"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. 90 and therefore we will not apply Order 22 of C.I. 45 of 2004 in this circumstances."

"We accordingly refuse to grant the application and same is accordingly dismissed," the court ruled.

Case management

The court had earlier planned to move into the case management stage of the petition Tuesday morning [Jan 19] before the new application came about and so after the ruling, the court wanted to move into that matter.

But when the court asked to hear from the parties on their consensus on issues to be set out so that the court can give consequential orders to move into the trial stage, counsel for the petitioner, Mr Tsikata rose to his feet and demanded a certified true copy of the ruling to inform the petitioner on the next line of action to take.

Mr Tsikata insisted: "My Lord before we get into that, I may say that we will urgently require a certified true copy of the ruling that you have just given so that we can advise ourselves in respect of that. And if we can have it by the end of the day, that will assist in the further processes that will take place."

"Secondly my Lord, as I indicated in the beginning, we have sought to admit a request to admit facts... and a request to inspect documents."

Mr Tsikata said with the request to admit facts, which comes under a process of discovery under C.I. 47, the petitioner has a clear understanding that will take about three days to admit facts, which he acknowledged is not an application before the court, however he said that will affect whatever other steps being taken in respect of the case and that will also guide the petitioner in his recommendations for the case management. 

He also added that there was need to "as fairly normal, we are quite happy to set down the issues that are arising from the petition and the respective answers and put that forward so that it is considered by counsel. I do not think that it is a process that is easily done just on one sit in a courtroom to try to determine what are the issues. I think a normal process is perhaps for us, as petitioners to put forward issues and we are happy to undertake that with as much expedition as is consistent with the interest of justice."

2nd respondent

Lead Counsel for the 2nd respondent (Nana Addo Dankwa Akufo-Addo), Mr Akoto Ampaw prayed the court to move on with the case management stage arguing that counsel (Mr Tsikata) ought to have been prepared for that.

"Today was set up for case management and all lawyers know that case management involves determining the issues for trial and all of us should have been prepared for that. It is not acceptable that any counsel may suggest that when a date has been fixed for case management, especially in the circumstances of this proceedings where expedition is very paramount," Mr Ampaw argued.

But the court said the case management plan was overtaken by events with the application which had to be determined. 

The court adjourned the case to Wednesday Jan 20, 2021 for the parties to file the issues by 9:30am on Wednesday for the case to proceed on a common ground.

Watch the video below for the day's proceedings

Background

In the two legal processes Mr Mahama filed at the Supreme Court, he was seeking 30 answers from the Electoral Commission on the presidential election declaration.

This was in relation to his presidential election petition challenging the declaration of President Nana Addo Dankwa Akufo-Addo as winner of the 2020 presidential poll.

In his first process, motion for leave to serve interrogatories in what is called “further and better particulars", Mr Mahama is seeking permission from the Supreme Court to allow him to elicit answers that border on how the Chairperson of the EC, Mrs Jean Adukwei Mensa, arrived at the figures she used in declaring President Nana Addo Dankwa Akufo-Addo as the winner of the 2020 presidential poll.

With the second process — request to admit facts, the petitioner wants the EC to either admit or deny certain “facts” with regard to what ensued on December 9, 2020, the day Mrs Mensa, who is the returning officer for the presidential poll, declared President Akufo-Addo as the President-elect.

The two processes were filed at the Supreme Court yesterday.

Motion for interrogatories

Former President Mahama sought 12 interrogatories from the EC.

He argued in his motion on notice that the 12 interrogatories were crucial to his case, as they would help in the fair determination of his petition and assist the Supreme Court “to expeditiously determine the petition”.

The 12 interrogatories include how the results of the presidential election in the constituency collation centres were transmitted to the regional collation centres; how those from the regional collation centres were transmitted to the headquarters of the EC, and if in previous elections, results from constituency collation centres were transmitted directly to the “strong room” in the EC headquarters.

Mr Mahama also wants the EC to tell him if the National Communications Authority played any role or “facilitated in any way, the transmission of the election results to the headquarters of the EC”

Other interrogatories include: “How did Mrs Mensa get to realise there were errors in figures she had announced in her declaration on December 9?"

In respect of the purported corrections made to the figures in the declaration, the petitioner wants to know if there was any prior process of conferring with agents of the presidential candidates?

Did Mrs Mensa present the declaration of the presidential result form to all agents of the presidential candidates to sign; and, if so, did all the agents sign?

The petitioner further wants the EC to state which date Mrs Mensa posted a copy of the presidential declaration form at the head office of the EC, and if the EC recorded any discrepancies “which were occasioned by computational and mathematical errors in the course of the collation of the results.”

Request to admit facts

With regard to the second process, Mr Mahama is requiring 18 “facts” from the EC.

These include: If during the declaration on December 9, 2020, the EC Chairperson stated that President Akufo-Addo, the presidential candidate of the New Patriotic Party (NPP) in the 2020 election, obtained 6,730,413 votes, representing 51.595 per cent of the total valid votes cast?

He also wants to know if the results as declared on December 9, 2020, excluded the results from the Techiman South Constituency, and if indeed Mrs Mensa stated that if all votes from Techiman South were added to his (Mahama’s) votes, it would not change the outcome of the results?

Other supposed facts being requested by former President Mahama are if indeed Mrs Mensa refused to accept a letter from the NDC detailing certain errors in the collation of the results of the December 7, 2020 presidential elections, and if the EC admitted to errors in the declaration on December 9, 2020.

Mahama’s case

In the petition, former President Mahama argues that no candidate won the 2020 presidential election and, therefore, the declaration of President Akufo-Addo as winner of the election by the Chairperson of the EC 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.

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

Respondents answers

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.

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