EC runs to Supreme Court - To vary April 2 order

 April 10, 2013 (Front Page)

The Supreme Court will sit today - Wednesday - to consider a request from the Electoral Commission (EC) for the court to vary its orders in a petition challenging the legitimacy of President John Dramani Mahama.
In a motion on notice filed on behalf of the EC by its solicitors, Lynes Quashie-Idun and Co, the EC is urging the court to vary its April 2, 2013 order which directed respondents in the petition to file their written affidavits within five days from the service of petitioners’ affidavits on them.
Rather, the EC is praying the court to review its order by directing it (EC) to file its written response “within five days from the close of the petitioners’ case”.
What the EC is requesting the court to do is allow it and other respondents to file their evidence in the form of written affidavits after the petitioners have closed their case in the trial, which is set to begin on April 16, 2013.
The EC’s motion, which was filed on Monday, April 8, 2013, barely 24 hours after the petitioners had complied with the court’s directive to them to file their evidence in the form of affidavits, has been opposed by the petitioners.
An affidavit in opposition filed on behalf of the petitioners by one of their lawyers, Mr Akoto Ampaw, and dated April 9, 2013 is praying the court to reject the EC’s plea because the commission had “a clear indication of the case of the petitioners, especially following the detailed particulars that the respondent applied to the court and obtained from the petitioners”.
The petitioners, in this particular instance, are referring to the further and better particulars on the 11,916 polling stations where alleged widespread malpractice and irregularities were recorded during the December 7 and 8, 2012 polls and which they (petitioners) furnished the EC with following the court’s order to that effect.

Affidavit in Support of EC’s Motion
An affidavit in support of the EC’s motion deposed by one of its lawyers, Mr Anthony Dabi, said since the court was functioning as a trial court, “it is respectfully requested, taking into account that the petitioners have the burden of proof or the burden of persuasion”.
It said the petitioners should be ordered to open their case, present their evidence (oral evidence and evidence by affidavit) and close their case before the second respondent was required to open its case, present its evidence (oral evidence and evidence by affidavit) and close its case.
The EC, which is the second respondent in the petition, is praying that its request would not cause any delay or hinder the expeditious hearing of the case but, on the contrary, it would ensure “a smooth and well-ordered trial in accordance with the established procedures of the court”.

Petitioners oppose EC
According to the affidavit in opposition, the petitioners said a presidential election was not a private matter between two individual parties “but a matter of utmost importance for not only the contending litigants but for all political parties, the electorate and, indeed, Ghanaians as a whole”.
It further argued that the EC’s proposal could not find support, “whether directly or by analogy, in any rule of law, procedure or practice”.
It said the EC’s application was without merit, had been brought in bad faith and calculated to overreach the petitioners and cause delay, adding, “It ought to be dismissed with punitive costs.”

Background to case
President Mahama and the National Democratic Congress (NDC) are the first and third respondents, respectively.
The petitioners, who are the presidential candidate of the New Patriotic Party (NPP) in the December 2012 presidential election, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, are calling for the annulment of 4,670,504 votes, representing votes cast in 11,916 polling stations across the country, due to what they termed “gross and widespread irregularities”.
But the respondents have denied the petitioners’ claims on the grounds that the election results were credible.
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 for hearing of the substantive matter after considering issues raised by lawyers for the parties in the case.

Issues for Trial
The issues set out for trial are whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections held on December 7 and 8, 2012.
The court will also ascertain whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results of the elections.
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, whether or not ballots cast without biometric verification were taken into account by the EC in the declaration of results, among others.