The Supreme Court will resume sitting this morning to consider, resolve and adopt some issues to be raised by lawyers in the petition contesting the legitimacy of President John Dramani Mahama.
Barring any last-minute hitch, the court’s sitting is likely to mark the last hurdle to be cleared before the hearing of the substantive petition which is calling for the annulment of 4,670,504 votes cast during the December 2012 presidential polls.
During the sitting, the court will arrive at issues for trial and subsequent determination based on the rules of the court, the law, consultation with the parties in the case where the need arises, evidence before it and also according to its discretion.
In doing that, the court is expected to decide whether or not to immediately reject some, approve all or fix a date to rule on more than 30 issues proposed by the parties to be set aside for determination.
The court might in accordance with the law and its discretion not delve into issues agreed on by all the parties in the case.
It will concentrate on stalemate matters, resolve those issues and thus pave the way for the hearing of the substantive matter which promises to be a landmark in the legal and political history of the country.
Key among the issues to be looked into is whether President Mahama was validly elected as President in the December 2012 presidential polls.
Another vital issue likely to be adopted by the court is whether or not voting took place without prior biometric verification at certain polling stations across the country.
The nine-member panel is also expected to consider or reject whether or not the alleged statutory violations, irregularities and/or malpractices resulted in 4,670,504 invalid votes being introduced into the total number of votes cast in the December 2012 presidential election.
During its sitting, lawyers for the petitioners, President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC) are expected to formally announce the outcome of a meeting they held on March 17, 2013 in their bid to arrive at a common ground on issues to be narrowed down for determination.
Lawyers for the parties met on Monday, March 17, 2013, following a March 14, 2013 directive from the court which advised them to meet, deliberate and arrive at issues to be set out for trial and determination, but they reached a stalemate.
Following the communication of the deadlock to the registrar of the Supreme Court on March 19, 2013, the registrar in another letter dated March 25, 2013, fixed April 2, 2013 as the date for the court’s next hearing.
Per the court’s procedures, the legal teams for the parties in the case are expected to officially announce the areas they agreed and disagreed on.
The court will then consider the issues disagreed on and arrive at a solution before the hearing of the substantive case begins.
Following that, a memorandum of issues will then be set out for trial.
Crucial among the memorandum of issues to be set out for trial are whether or not persons were allowed to vote without biometric verification, as well as whether or not votes cast in 11,916 polling stations should be annulled by the court.
On March 4, 2013, the petitioners filed issues to be set out for trial while the President on March 13, 2013 also filed application for directions.
President Mahama in his application for directions which was filed on his behalf by his lawyer, Mr Tony Lithur, is praying the court to decline the petitioners’ prayer for the court to allow parties in the petition to adopt audio-visual aids in the presentation of evidence.
Responding to the petitioners’ prayer that parties in the case be made to exchange documents to be relied on seven days before trial, the President is pleading with the court to dismiss that request.
President Mahama is also praying the court to decline the petitioners’ suggestions that seven days before the trial all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of each witness’ testimony to enable the court to determine its probative value.
The EC still has issues with the petitioners with regard to what the EC terms the failure of the petitioners to adhere to the court’s orders to provide further and better particulars on 28 alleged locations, where elections took place outside the approved 26,002 polling stations.
Despite the pockets of disagreements, President Mahama is not opposed to the petitioners’ suggestion that the hearing of the petition should take two months.
The parties are also not opposed to application on whether or not persons were allowed to vote without biometric verification and whether or not votes cast exceeded ballot papers issued to voters at polling stations during the polls in some polling stations.
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.
Article 64(1) of the 1992 Constitution provides: “The validity of the election of the President may be challenged only by a citizen of Ghana who may present a petition for the purpose to the Supreme Court within 21 days after the declaration of the results of the election in respect of which the petition is presented”, while Article 64(2) says: “A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.’’
Part VIII of the Supreme Court Rules — Challenge Of Election of President, Rule 68 — provides: “A petition presented pursuant to Clause (I) of Article 64 of the Constitution shall state (a) the full name and address of the petitioner and of his counsel, if any, which shall be an address for service; (b) the grounds for challenging the validity of the election; (c) a statement of the facts relied on to be verified by affidavit and of the law in support of the petition; (d) the number of witnesses to be called, if any; and by (e) such other matters as the court may determine.”
Rule 69 also says: “The Attorney-General and any other person upon whom a petition is served may file with the registrar, within two days of the service, an answer to the petition which shall state (a) the grounds of opposition to the petition; (b) the facts relied upon, verified by affidavit; (c) the law in support of the answer in opposition to the petition; and (d) the number of witnesses to be called, if any.”
Rule 71 says: “The court shall, at the conclusion of the hearing of the petition, deliver its judgement and the registrar shall, within seven days of the delivery of the judgement, forward a copy of the judgement to the Electoral Commission.’’
The petitioners, Nana Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed the petition at the highest court of the land praying the court to annul votes cast in 11,916 polling stations due to gross and widespread irregularities.
Coming under Article 64 of the 1992 Constitution; Section 5 of the Presidential Election Act, 1992 (PNDCL 285) and Rule 68 and 68 A of the Supreme Court (Amendment) Rule, 2012, C. I. 74, the petitioners are calling for the annulment of votes cast in 11,916 polling stations on grounds of widespread and gross irregularities.
They had in a December 28, 2012, petition called for the annulment of votes cast in 4,709 polling stations, but amended their petition on February 9, 2013 after the court had granted them permission to do so, citing 11,916 polling stations as the total number of polling stations where alleged irregularities were recorded.
The three had initially called for the cancellation of 1,342,845 valid votes cast during the election at 4,709 polling stations due to the alleged irregularities recorded during the elections, but are now urging the Supreme Court to pronounce additional 3,327,659 valid votes cast as invalid.
The Supreme Court on February 7, 2013, granted the petitioners’ prayer of amendment, and accordingly allowed the amendment.
President Mahama, who is the first respondent; the EC and the NDC, the second and third respondents respectively, have filed their responses.
They have all refuted the petitioners’ allegations on the grounds that President Mahama won the elections legitimately in the full glare of the media and local and international election observers.
The NDC applied to join the petition on December 31, 2012 and was duly granted permission by a 6-3 majority decision of the Supreme Court on January 22, 2013
On March 14, 2013, the Supreme Court unanimously dismissed applications filed by 327 persons who sought to join the petition.
In a unanimous decision, the nine-member panel held that the presence of the 327 applicants “was neither necessary nor convenient,” adding that their being allowed to join would defeat the purpose of the Supreme Court (Amendment) Rules 2012 (C. 1. 74), which calls for an expeditious trial in an electoral petition.
Per the court’s ruling, nobody can join the petition.
The nine-member panel
The matter is being heard by the court, presided over by Mr Justice William Atuguba. 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.
The petitioners are being led by a 10-member legal team including a former Deputy Attorney-General and Minister of Justice, Ms Gloria Akuffo, Mr Philip Addison, Mr Frank Davies, Mr Alex Quaynor, Mr Akoto Ampaw, Nana Asante Bediatuo, Mr Kwame Akuffo, Mr Kwaku Asirifi, Mr Godfred Yeboah Dame, Mr Egbert Faibille and Professor Ken Attafuah.
President Mahama is being represented by Mr Tony Lithur, while Mr Tsatsu Tsikata and Mr Samuel Codjoe are representing the NDC.
Story by Mabel Aku Banaseh
Writer’s e-mail: firstname.lastname@example.org