Former President John Dramani
Mahama has asked the Supreme Court to annul the declaration of the December 7,
2020, Presidential Election result on the ground that none of the 12
participating candidates obtained the constitutionally mandatory more than 50
per cent of the total valid votes.
The National Democratic Congress
(NDC) flag bearer, who was seeking a return to the presidency after he lost in
2016 as incumbent, is contesting in court that none of the candidates in the
presidential election got more than 50 per cent of the total valid votes as
mandated by law but the Electoral Commission (EC) Boss, Mrs. Jean Adukwei
Mensa, who was the returning officer of the presidential ballot, declared the
sitting President, Akufo-Addo, as the winner.
His lawyers in a closing address
filed subsequently on the orders of the highest court averred that the result
declared by the Chairperson of the EC Boss on December 9, 2020, was
constitutionally flawed and could not be made to stand.
Avoidable Errors
Former President Mahama in his
address is saying that he filed his petition on December 30, 2021 (which should
have read December 30, 2020) and it was reminiscent of the same errors he
committed when the petition was the first to file before they made a subsequent
amendment to correct the error.
Bold Claims
Mr Mahama is pushing in his
closing address that he has been able to prove through his pleadings and
evidences of his witnesses that nobody got the required number of valid votes
per Article 63(3) to have been declared the winner.
He further contended that per the declaration of the EC
Chairperson, taking into account her assumptions made concerning the results of
Techiman South Constituency, there should have been a run-off between himself
and President Akufo-Addo.
Mr. Mahama also contended that
the EC itself confirmed his positions in its pleadings when it failed to
respond to his request to admit fact, which he said amounted to an admission.
“By the lack of response within
14 days, first respondent (EC) is deemed to admit not only the truth of the
statements in the request to admit facts but also the authenticity of exhibit
A, the video recording of the declaration she made,” he said.
Main Petition
The former President wants the
court to declare that the results of the 2020 Presidential Election announced
by the Chairperson of the EC was in breach of Article 63 (3) of the 1992 Constitution.
Mr. Mahama in his petition is
urging the Supreme Court to annul the results of the December polls as per the
data contained in the declaration that none of the candidates who contested the
election got the required more than 50 per cent of total valid votes cast.
He is also asking the court for
an order of injunction restraining President Akufo-Addo from holding himself
out as President-elect.
Again, the former President
wants the court to order the EC to organize a second election with himself and
President Akufo-Addo as the only two candidates.
Key Witnesses
The petitioner called three
witnesses – Johnson Asiedu Nketia, Dr. Michael Kpessa-Whyte and Robert Joseph
Mettle-Nunoo, aka Rojo, to advance his case before the court.
Mr. Nketia’s evidence contained
allegations of vote padding at some centres in favour of President Akufo-Addo
which he said affected the outcome of the election.
His evidence also challenged the
December 9, 2020 declaration made by the EC and the December 10, 2020 press
statement which sought to correct an error made by the EC boss while declaring
the results the previous day.
Dr. Kpessa-Whyte who was one of
the two representatives of the NDC stationed at the National Collation Centre
(Strongroom) of the EC during the election claimed that he witnessed “many
material irregularities” whilst in the EC Strongroom.
His third witness, Mr.
Mettle-Nunoo, also claimed that he was misled by officials of the EC to sign
some collated results which had outstanding issues that needed to be addressed.
He also claimed that he and his
colleague had been “sent to convey a message to the petitioner” after he had
spoken to Ms. Mensa about the challenges with some of the summary sheets from
the region and were shocked to have heard the EC boss announce the result in
their absence.
Mahama’s Case
The former President in his
closing address averred that the terms of December 9, 2020, were not in doubt and
what the respondents referred to as “inadvertent error” in their respective
responses to the petition could not be considered by the court, especially when
the two did not provide any evidence to that effect.
“The crucial testimony of PW1
(Mr. Nketia) in support of the case of the petitioner, particularly related to
the declaration of December 9, 2020, and the press release of December 10,
2020, was not challenged in cross-examination. Indeed, on the contrary, all the
critical facts have been admitted by first respondent (EC) through the Request
to Admit Fact process,” he pushed.
Still, on the issue of admitted
facts, Mr. Mahama averred that “The admission of all the facts contained in the
paragraphs of the request to admit facts means that all the corresponding
paragraphs in the witness statement and in the petition are admitted by first
respondent.”
Burden of Proof
Mr. Mahama further averred that
his lawyers were able to discharge the burden of proof conferred on a plaintiff
in a matter, and once the EC admitted the facts in contention, there was no
need for him to introduce figures.
“The admitted facts recited
above, even by themselves, wholly discharge the burden of proof that the
petitioner had to establish his case in these proceedings,” he stated.
He indicated that “the admission
by the first respondent of averments definitely lead to no other possible
conclusion of fact than that based on the data contained in the declaration
made by the Chairperson of the first respondent, Mrs Jean Adukwei Mensa, no
candidate obtained more than 50% of the total valid votes cast. This does not
require figures from the petitioner about the results. It is based on what the
Chairperson of the first respondent had admitted by not responding to the
request to admit facts.”
Mr. Mahama added that “there is,
therefore, no basis on which this court can reach a decision as regards the
facts other than on the basis of the evidence put forward in this court by
witnesses of the petitioner.”
2013 Scenario
The cloaking address also sought
to place a differentiation between pleadings of this instant petition and the
one filed in 2013 by then-candidate of the NPP, President Akufo-Addo, and
others.
It stated that the 2013 petition
made allegations of irregularities under 24 subcategories which they claimed
took place in over 11,000 polling stations and sought to have over four million
votes annulled.
It said the instant case was
challenging the declaration made by the EC Chairperson hence the petitioner
could not be required to bring his own figures along the lines of the 2013
petition.
“Obviously, the petitioner was
not the returning officer for the election and he did not impose on himself in
this petition the burden of proving anything beyond showing using the figures
announced. In the declaration of Chairperson of the first respondent, she acted
unconstitutionally.”
“The evidence from the terms of
the declaration and the considerations that the Chairperson said were the basis
of the declaration she was making led to the conclusion that the second
respondent could only be credited with 49.625% of the votes at the time,” he
added.
Correcting Error
On the issue of correcting the
error made by the EC Chairperson on December 9, 2020, Mr. Mahama averred that
what the EC should have been seeking was the path to the correction of errors
which would out of necessity, require the participation of agents of
candidates.
“The Chairperson has never
sought to set aside her declaration and put in place a new one, even though she
has had every opportunity to do so by proceeding in a manner that is consistent
with her constitutional duties under Article 23 and 296 of the constitution and
Regulation 44(10) of C.I.127. She could lawfully do that and end up with an
error-free valid declaration,” he stated.
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