Former President John Dramani Mahama, the petitioner in the 2020 presidential election, has adopted a new strategy to get the Chairperson of the Electoral Commission (EC), Mrs Jean Adukwei Mensa, into the witness box to testify in the petition.
Mr Mahama has filed an application urging the Supreme Court to grant him the permission to reopen his case to enable him to subpoena (ask the court to order) the EC Chairperson to testify.
The application was filed yesterday, barely an hour after the apex court had overruled an objection by his lawyer to the decision of the respondents (the EC and President Nana Addo Dankwa Akufo-Addo) not to call any witness to adduce evidence.
Mr Mahama brought his case to a close last Monday, after his third and last witness, Mr Robert Joseph Mettle-Nunoo, had been cross-examined by lawyers for the respondents.
Interest of justice
In a 39-paragraph affidavit to support his motion, the petitioner argued that it was in the interest of justice and fairness for him to be allowed to reopen his case to give his lawyers the opportunity to subpoena the EC boss.
He contended that at the time he closed his case, he was of the belief that his lawyers could use the cross-examination of the EC boss to enable him to ask the interrogatories, as she (the EC boss) had indicated that the interrogatories were not necessary as those questions could be asked during cross-examination.
“As of the time my counsel closed my case, the representation that had been made by each of the respondents to the court, and specifically to me, was that the witnesses who had filed their witness statements were going to testify. It, therefore, came as a surprise that counsel for the respondents announced, on Monday, 8th February, 2021, that that was no longer the case,” he averred.
The former President further contended that it would be in the interest of justice if he was allowed to reopen his case to enable his lawyers to subpoena Mrs Mensa, owing to her unique position.
“The witness (EC Chair) has a unique role under the Constitution in respect of the presidential election that took place in Ghana on December 7, 2020, and having her testify is critical for this court to ensure compliance with the Constitution, more so as the witness to be subpoenaed did make the declaration whose constitutionality and validity I am challenging in this suit,” he argued.
Former President Mahama also stated that it would be in the interest of justice and fairness if Mrs Mensa testified to some of the assertions made by his (Mahama’s) witnesses, as the lawyer for the EC sought to challenge them during cross-examination.
“It will be fair to all parties if Mrs Mensa testifies to what transpired between Mr Mettle-Nunoo and her so as to settle that important issue, which is relevant to matters before this court,” he 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 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.