Lawyers of the Electoral
Commission (EC) who have fought tooth and nail to keep Jean Mensah from the
witness box in the ongoing petition hearing at the Supreme Court over visibly
worrying numbers declared as Presidential result for the 2020 elections have
admitted to making mistakes with the numbers.
Former President John Mahama’s
case is that a run-off is required since no candidate in the December 7, polls
obtained 50 per cent valid votes cast.
He insisted that in addition to
fundamental constitutional infractions committed by the Returning Officer of
the Presidential Election, Jean Mensa, the figures announced in the declaration
on December 9, 2020, no candidate got more than 50 per cent of the valid votes
cast.
But the lawyers, said despite
the mistakes, it was unfortunate that they were dragged to court by the NDC’s
2020 Presidential Candidate.
According to them, the harmless
mistake made by EC boss, Jean Mensah, while declaring the election results on
December 9, had no bearing on the outcome of the election which has triggered
the petition.
They further stated that the former President has
failed to provide any evidence whatsoever to challenge the election results and
for that matter, the declaration of the result and hence, they are calling on
the court to dismiss the petitioner’s case.
The submission is contained in the written closing
address filed by the lawyers in compliance with the Supreme Court’s orders.
The Apex court on Monday announced it will deliver judgment
on the election petition on Thursday, March 4.
Mr Mahama, had filed a petition
rejecting the election results as declared on December 9, stating that none of
the candidates who contested the December 7 polls, including himself met the
constitutional threshold of obtaining more than 50percent of the valid votes
cast.
The Electoral Commission and
President Akufo-Addo, were named as respondents in the petition as required by
law.
The former President’s lawyers
in the course of the trial served the EC with a document asking that it admits
certain facts, including that its chairperson announced 13.4 million as valid
votes cast, while handing President Akufo-Addo, 6.7 million votes.
They say the failure of the EC
to admit or rebut these facts within 14 days as required by law means the facts
have been admitted.
Admission of these facts they argue means President
Akufo-Addo, did not obtain more than 50percent of the votes cast. They are
therefore urging the Supreme Court to on March 4, to direct the EC to organise
a run-off between President Akufo-Addo and Mr Mahama.
Mr Mahama, in his closing address filed by his
lawyers, insisted that as a constitutional consequence, a run-off election
would be required.
He argued that the evidence from the terms of the
declaration and the consideration that the EC Chairperson said was the basis of
the declaration reveals that “Nana could only be credited with 49.625 per cent
of the votes at the time.”
Mr Mahama said, “The fact that he did not indicate in
his Petition what he or the other candidates should have obtained compared to
numbers declared by the EC, does not mean that the declaration by the EC Boss
is constitutional.”
According to him, his own figures are “not relevant
to determining whether that claim is well-founded or not.”
The petitioner invited the court to take judicial
notice of the fact that ahead of the December 7, 2020 elections, political
parties were urged not to seek to announce results based on figures they had
collated, but to wait for the official declaration of the EC Boss as the
returning officer for the Presidential Election.
He explained that the EC under provisions of Articles
43-54, 56 (7), 63 and 65 of the Constitution and CI 127 is charged with the
conduct of the Elections.
Mr Mahama said “the starkly untenable nature of the
claim that the petitioner should have put towards his own figures is put in
sharp relief when it is recalled that, by virtue of Article 64 (1) of the
Constitution, any citizen of Ghana can present a petition challenging the
validity of the election of the president.
A citizen, in bringing such a challenge, would not be
required to indicate the exact number of votes that candidates ought to have
obtained. Being a candidate does not change the qualification for bringing such
a Petition and cannot require more than any other citizen.”
He recalled that “No one is asking Nana Addo to bring
his figures or the number of votes he and other candidates got, nor indicated
his figures in this petition since that would have no relevance in the court
before the court.”
Accordingly, the Petitioner discharged the burden of
proof that was on him.
The Petitioner avers that “the unsigned press
statement was not only correcting the alleged wrong total valid votes cast
figures announced by Mrs Jean Mensa in her declaration on December 9, 2020.
She also went on to adjust the votes obtained by
candidates Mahama and Akufo-Addo as declared for them on December 9, 2020.
Votes of other candidates were also adjusted.”
All this, Mahama said it was done outside the
framework provided by CI 127 and particularly, without the involvement of the
agents of the candidates, contrary to the requirement of Articles 49 (2) and
(3) of the Constitution and Regulation 44 (10) of CI127.
“Paragraph 29-30 of the amended Petition are very
clear on how the Press Release issued on December 10, 2020, compounds the lack
of transparency, fairness and candour of the 1st Respondent (EC) in the
ever-changing figures,” the Petitioner said.
Also, he said the figure in the purported
“correction” as to the total valid votes cast was itself repudiated by the
first Respondent (EC) by the time the answer to the Petition was filed on
January 9, 2021.
“It defied logic that the 1st respondent (EC) issued
a “correction” on 10th December 2020 to a figure which is now claimed to have
been the actual figure purported on Form 13 on December 9, 2020.”
Mr Mahama said “in the midst of changing figures of
total valid votes cast as well as votes of individual candidates, it simply
cannot be said that the overall results on Form 13 were not affected,
especially when the figures claimed to have been form 13 are different from
figures in the “correction” on December 10 2020.”
He contended that there were discrepancies in figures
provided for candidates of other parties and “the material increase of
Akuffo-Addo whiles at the same time materially reducing the votes of the
Petitioner clearly requires explanation.”
The former president said fundamentally, there was no
evidence from the EC on the basis of which any of its contradictory claims
could be accepted as “the truth.”
He held that attempt to “effect a correction by an
unsigned press release is wholly untenable.”
According to the Petitioner, the testimony of the
three witnesses for the Petitioner showed clearly not only the breach of the
duty to be fair and candid under Article 23 of the Constitution but also the
lack of due process in terms of Article 296 of the Constitution.
He submitted that when matters of breaches of the
Constitution or of Statute arose before a court there was an urgency about
addressing those breaches.
Mr Mahama said the conduct of the EC Chairperson in
sending the agents of a major candidate who should have been present in the
resolution of the outstanding issues leading to the declaration and
“immediately going ahead to make the declaration without even the required
steps under the Regulation 44(10) were self-evidently unreasonable.”
Interestingly, the lawyers for President Akufo-Addo
urged the Supreme Court to dismiss the case filed by the 2020 NDC presidential
candidate saying Mr. Mahama’s case actually proves that Akufo-Addo met the
constitutional requirement of obtaining more than 50% of the valid votes cast.
This submission is contained in the written closing
address submitted to the Supreme Court.
President Akufo-Addo’s lawyer argued that the
testimonies by Mr. Mahama’s witnesses demonstrate clearly that the President
won the polls.
Reference was made to the cross-examination of NDC
General Secretary Johnson Asiedu Nketia by lead counsel for the President,
Akoto Ampaw.
“Akoto Ampaw – I am saying that from the declaration
in the video clip that we just saw, which really is the basis of all your case,
and you should know what is in it, the total number of valid votes that the 2nd
respondent obtained is6,730,413?
Asiedu Nketia – That is correct my Lords.
Akoto Ampaw – The total number of valid votes that
the petitioner obtained from the declaration announcement, your Exhibit ‘A’, is
6,214,889?
Asiedu Nketia – That is so my Lords.
Akoto Ampaw – And I am also putting it to you that if
you do a sum of all these valid votes…Can you tell the court what is 6,730,413
as a percentage of13,121,111?
Asiedu Nketia – My Lords, it is 51.29453 ad
infinitum. So it can be rounded up to 51.295%
Akoto Ampaw – So 51.295%, not so?
Asiedu Nketia – Yes.
Akoto Ampaw – What about the petitioner, his total
valid votes are 6,214,889. What is this sum as a percentage of 13,121,111?
Asiedu Nketia – It is 47.365569 ad infinitum. So it
can be rounded up to 47.366.
Akoto Ampaw – So you admit that from the Chairperson
of 1st Respondent’sdeclaration on 9th December, 2nd respondent crossed the more
than50% threshold?
Asiedu Nketia – From the declaration as announced.…
Akoto Ampaw – From the figures that we just
calculated, these figures which were announced, if you do them as a percentage
of the actual total valid votes, these are the percentages you get for the
petitioner and the2nd Respondent. That is what I am putting to you?
Asiedu Nketia – Well, if the figures are correct,
yes.”
The President’s legal team, says this admission shows
the petitioner “has made much ado about nothing of the fact that in announcing
the total valid votes cast, the Chairperson of the EC stated a wrong figure of
13.4 million. “.
The lawyers say “This petition is an industry in
futility. It has been designed, built, and furnished with lazy labour of facts
and evidence that seek to attack the electoral choices of the people of Ghana.”
Meanwhile, ”on why NDC should have brought its own
figures, the response of the legal team of the petitioner is that Mr Mahama,
had proceeded to court on the basis of the declaration made by the Returning
Officer for the election, Chairperson of EC, Mrs. Mensa, she gave certain
figures as the basis for the declaration she was making.
The Petitioner says, based on those figures, the
declaration she made is unconstitutional. As it turns out, the EC itself has,
in an unsigned press release, admitted errors. They decided not to testify to
the court about those errors. They decided not to testify at all! How can the
court determine there were errors without their evidence?
What is also strange is that the number they put out
in their “correction” on 10th December for total valid votes cast is not the
figure they are giving in their Answer as the figure for total valid votes
cast! How can that be? Yet they will not give evidence to explain what exactly
is the right figure.
The Chairperson did not before making the declaration
do what she was required to do under Regulation 44(10) of C.I. 127 of doing the
assembling and collating of the material from the Regional Collation Centers so
as to establish what the correct figures were for making a declaration.
Counsel for the EC acknowledged she was out of the
office for three hours while Rojo Mettle-Nunoo was waiting for her. So she
returns to the office, meets Rojo and admits there are issues, tells Rojo he
and his colleague should go and meet their candidate with the indication she is
ready to meet their candidate herself and undertakes not to make a declaration
before they return- she would even send a dispatch rider to help them get back
quickly- and, by the time the two agents get to the candidate to brief him
about the discussion with the EC Chairperson, there she is on TV making the
declaration. If that conduct is not outrageous chicanery what is?
The Constitution does not allow
public officials to act like that -Articles 24 and 296. NDC bringing out
different figures is totally irrelevant to the serious matters before the
Supreme Court”.
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