Former President John Dramani Mahama has, for the third time, failed to convince the Supreme Court to allow his lawyers to cross-examine the Chairperson of the Electoral Commission (EC), Mrs Jean Adukwei Mensa, in the 2020 presidential election petition.
The court yesterday dismissed a review application by Mr Mahama, the petitioner, urging the court to change its ruling, delivered on February 11, this year, which held that it could not compel Mrs Mensa to testify.
In a unanimous decision, a nine-member review panel of the apex court ruled that the application did not meet the criteria for review, as set out in Rule 54 of the Supreme Court Rules, C.I. 16, the statutory requirements governing applications for review.
According to the court, the two criteria for review were exceptional circumstances which had occasioned a miscarriage of justice and a new or important matter not taken into consideration by the original ruling.
“This application fails and it is hereby dismissed,” the ruling, as read by the Chief Justice and President of the panel, Justice Anin Yeboah, held.
The review panel was made up of the seven original judges hearing the petition and two additional judges.
The seven original members were the Chief Justice, Justices Yaw Appau, Samuel K. Marful-Sau, Nene Amegatcher, Professor Nii Ashie Kotey, Mariama Owusu and Getrude Torkornoo, while the two additional judges were Justices Avril Lovelace-Johnson and Issifu Omoro Tanko Amadu.
Stay of proceedings
After dismissing the review application, the court also struck out a stay of proceedings application by the petitioner, which had urged the court to put the petition on hold until the final determination of the review application.
The court held that the application for stay of proceedings was moot, as the review application had already been determined by the court.
Making a case for the review, lead counsel for the petitioner, Mr Tsatsu Tsikata, argued that the court, in its ruling on February 11, failed to take into consideration Section 26 of the Evidence Act.
He submitted that the Chairperson of the EC had deposed to affidavits indicating that she would be available for cross-examination, and, therefore, per Section 26 of the Evidence Act, she was estopped (barred) from not going by her own statement to testify.
It was his case that by not taking into consideration Section 26 of the Evidence Act, the court had acted “per incuriam” (making the ruling without due regard to the law or facts).
Such a situation, he argued, was an exceptional circumstance which had occasioned a miscarriage of justice.
The court, however, ruled that it was not persuaded by that argument.
It was the court’s view that Section 26 of the Evidence Act could not bar the EC Chairperson from not testifying and, therefore, its ruling on February 11, 2021 had not occasioned a miscarriage of justice.
That, it held, meant the applicant had not met the exceptional circumstance criterion for review.
“In this application, learned counsel for the applicant has taken us through various aspects of the ruling without demonstrating to the court areas in this ruling which have occasioned a miscarriage of justice,” the court ruled.
New or important matter
With regard to the new or important matter criterion, the court held that Mr Tsikata’s reference to Article 19(13) of the 1992 Constitution to make a case that the ruling did not give the petitioner a fair hearing did not constitute a new or important matter.
“We are of the view that the applicant has failed to satisfy the court that a new or important matter resulted from the reference to the constitutional provision,” the court held.
This is the third failed attempt by Mr Mahama, who was the presidential candidate of the National Democratic Congress (NDC) in the December 2020 elections, to get the Chairperson of the EC into the witness box to enable his lawyers to cross-examine her.
In the first attempt, Mr Tsikata objected to a decision by the EC (the first respondent) not to adduce any evidence, which ostensibly meant that Mrs Mensa would not testify.
The court, however, on February 11, this year, overruled that objection on the basis that the rules of court and decided cases did not grant it the power to compel a party to adduce evidence if the party decided not to.
It was against the above decision that Mr Mahama filed the review which was dismissed by the court yesterday.
The petitioner also filed an application for leave (permission) to reopen his case to enable his lawyers to subpoena Mrs Mensa to appear before the court and testify.
That was also dismissed.
Apart from the three attempts, the court has dismissed four other applications by the petitioner.
The first application to be dismissed was the one for interrogatories, which asked the court to grant leave for the EC to answer 12 questions regarding the declaration of the presidential election results.
The second was an application which asked the court to review its ruling on the application for interrogatories.
That was followed by the dismissal of a three-prong legal process that sought to file an additional ground of review, replace Paragraph 28 of the original statement of case and file a supplement to the statement of case.
Again, the court dismissed the petitioner’s request to inspect some original documents of the first respondent (the EC).
New review application
After the ruling yesterday, Mr Tsikata informed the court that his client had also filed a review application challenging its decision not to allow him to reopen his case.
Counsel also told the court that his client had also filed an application for stay of proceedings for the court to put the petition on hold until the final determination of that review.
The court adjourned the petition to Monday to hear the review application and the application for stay of proceedings.
In his petition, former President Mahama contended that no candidate won the 2020 presidential election and, therefore, the declaration of President Nana Addo Dankwa 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 them to President Akufo-Addo’s.
In their answers, President Nana 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.