Hearing begins April 16: Supreme Court narrows issues to two

 April 3, 2013 (Lead Story)

The Supreme Court has fixed April 16, 2013 for the hearing of the substantive petition challenging the legitimacy of President John Dramani Mahama.

After nine sittings to consider and rule on more than 20 interlocutory applications filed by parties in the case, the nine-member court fixed the date after considering issues raised by lawyers for the parties in the case.

The court has also set two issues for the trial. These are whether or not there were statutory violations, ommissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012 and also whether or not the said violations, omissions, irregularities and malpractices affected the outcome of the elections.

Following a stalemate reached between parties, who were advised by the court to meet and agree on common issues to be set out for trial, the court used its discretionary powers to set out the issues for determination.

To ensure the expeditious determination of the case, the court also decided to take evidence in the form of sworn affidavits from potential witnesses in the case.

It, accordingly, directed the petitioners to file the affidavits of witnesses on or before April 7, 2013, while the respondents were given five days from the date of service of affidavits filed by the petitioners.

On the issue of cross-examination and re-examination of affidavits, the court decided to use its discretion in considering those issues.

The Presiding Judge, Mr Justice William Atuguba, in announcing the decision of the court after considering issues raised by parties in the case, also stated that oral evidence would be taken from potential witnesses based on “compelling reasons”.

Other panel members are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.

Oral evidence

Although, the court was explicit in stating that it will only allow oral evidence from potential witnesses in the case based on compelling reasons; it gave an exception to the petitioners and the respondents in the case to give oral evidence when the full trial begins.

Following that, the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election; his running mate, Dr Mahamadu Bawumia and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, who are the petitioners in the case as well as the respondents, namely President John Dramani Mahama; the Electoral Commission (EC) and the National Democratic Congress (NDC), can give oral evidence.

Since the EC and the NDC are entities, they are expected to select representatives to testify on their behalf in the case which promises to be a milestone in Ghana’s legal and political history.

Audiovisual aids and power point presentations

The court refused the petitioners’ suggestion that audiovisual aids and other forms of technology-based gadgets be adopted in order to facilitate the trial.

According to the court, it preferred to go the “conservative” way to take evidence and subsequently arrive at its final judgement.

The court currently uses a recording system by which the clerks record and transcribe evidence adduced.

Panel members, as part of the practice, take handwritten notes while considering arguments from parties in the case.

Making a case for the need for the adoption of audiovisual aids and power point presentations during the trial, Mr Addison, one of the lawyers for the petitioners, said the evidence was so voluminous that it would be important for the court to adopt those forms of technology.

Although he did not disagree with the court’s suggestion for evidence to be taken through affidavits with respect to some potential witnesses, he said there was the need for the adoption of audiovisual aids to facilitate the trial.

“We are dealing with huge data here,” he explained.

But the court stood its grounds even after Mr Addison had suggested that the petitioners were prepared to provide the said gadgets.

Justice Atuguba on Kenya and audiovisual aids

Referring to a recent ruling on Kenya’s electoral petition which declared Uhuru Kenyatta as the validly elected President of Kenya, Mr Justice Atuguba reminded the parties in the case of the public’s reference to the Kenyan “precedence” and maintained that the court would accept a chunk of the evidence in the form of sworn affidavits in order to expedite the hearing of the petition.

“These audiovisual aids can work elsewhere but, as you can see, we do not have the necessary logistics,” he stated.

“The audio aspect we can get, but how do we get the visual aspect?” Mr Justice Baffoe-Bonnie queried counsel.

Mr Addison: We can provide that.

Mrs Justice Adinyira: Not all here are technologically equipped so it will be a disadvantage. We will go our conservative way. We had training but no equipment to work with.

Tsatsu Tsikata’s and power point presentation

Responding to the petitioners’ call for the use of audio visual aids and power point presentation during the trial, counsel for the NDC, Mr Tsikata, said, “The red herring about power point presentation and audio visual aids is irrelevant.”

He said the most important issue was the need for the petitioners to give evidence and be cross-examined and re-examined thereof, adding, “We are ready to hear evidence from the petitioners’ witness Number One.”

Mr Tsikata held that justice would best be served if witnesses were called into the witness box to testify on oath, pointing out that it was important for the petitioners to be made to come before the court and prove their allegations.

After raising a number of issues, the parties eventually expressed their satisfaction with the court’s decision to resolve their differences.

Crucial Issues 

Some of the irregularities, malpractices, omissions and violations complained of and due to be determined by the court are allegations of persons being allowed to vote without biometric verification, some presiding officers and/or their assistants not signing declaration forms (pink sheets), total number of votes cast exceeding the total number of registered voters as well as total number of ballot papers issued.

Other irregularities to be considered by the court include whether or not the alleged statutory violations introduced 4,670,504 invalid votes cast in the December 2012 presidential election as well as whether or not ballots cast without biometric verification were taken into account by the Electoral Commission (EC) in the declaration of results among others.

President’s Contention

Counsel for President Mahama, Mr Tony Lithur, informed the court that the petitioners had provided particulars for 8,579 instead of 11,916 polling stations, where alleged irregularities took place during the December 2012 presidential polls.

He alluded that the petitioners embarked on double counting and for that reason the court should accordingly order the petitioners to provide particulars in respect of the remaining polling stations beyond the 8,579 polling stations.

In the alternative, Mr Lithur prayed the court to order the petitioners to amend their second amended petition, to reflect the actual number of polling stations in respect of which they had provided particulars.

But a lawyer for the petitioners, Mr Philip Addison, held a different view indicating that the EC and the NDC had not objected to the 11,916 figure, adding “we will prove in the course of the trial that his calculation is wrong.”

EC, NDC oppose Mr Addison

Responding to Mr Addison’s submissions, lawyers for the EC and the NDC, Mr James Quashie-Idun and Mr Tsatsu Tsikata, disagreed and indicated they also had problems with the figures provided by the petitioners.

Mr Quashie-Idun informed the court that the EC had argued in its amended answer to the petition that the petitioners had not provided all the particulars on the 11,916 polling stations where alleged irregularities took place.

Mr Tsikata also stated that, “they are not acknowledging what they have supplied. The court will have to determine who is arithmetically challenged.”

The President of the court, Mr Justice William Atuguba, intervened and stated that the court will ascertain the actual figure in the course of the trial.

EC Amendment upheld

The court in a 6-3 majority decision, allowed the EC to provide clarification regarding the allegation that some declaration of results from different polling stations had the same serial numbers.

On the EC’s issue that 22 locations provided by the petitioners out of the 28 locations as being areas where elections took place illegally, the court struck out the remaining six areas that were not provided by the petitioners.

According to the petitioners who are - the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia and the Chairman of the NPP, Mr Jake Obetesebi-Lamptey, gross and widespread irregularities took place in 11,916 polling stations.

They are, therefore, calling for the annulment of 4,670,504 votes cast in those 11,916 polling stations.

But President Mahama, the EC and the National Democratic Congress (NDC) have denied any wrongdoing, and are of the view that the polls were free, fair and transparent; and for that reason, results declared were credible and accurate.

The Supreme Court (Amendment) Rule, 2012, (C. I. 74)

The main objective of the Supreme Court (Amendment) Rule, 2012, (C. I. 74) is to ensure that petitions of this nature are disposed of expeditiously.

By virtue of provisions in  the Supreme Court (Amendment) Rules, 2012 (C.I. 74),  the matter will be determined once and for all, since no provision is made for a review of the court’s decision, although the 1992 Constitution allows the court to review its own decisions.

The amendment to the Supreme Court rules states among other things that the hearing of a petition against a presidential election shall be done on a daily basis, including public holidays.