Ongoing Election Petition: SC tosses Mahama’s motion …for EC to answer set of questions in relation to 2020 election

By unanimous decision, the Supreme Court yesterday dismissed an application by former President John Mahama, seeking the Electoral Commission (EC) to answer certain questions of fact in the 2020 election petition.

The petitioner couched the questions in the nature of interrogatories which by law is a procedure that helps set out, narrow down or determine the issues for trial of a case.

In moving the motion for leave of the court to elicit answers from the EC, lead counsel for President Mahama, Mr Tsatsu Tsikata noted that the questions were relevant and very much at the heart of the petition.

Some of the questions the petitioner sought answers for relates to the practice in previous presidential elections involving collated figures, whether the practice are followed in terms of transmission of figures from regional to the EC headquarters, when the EC got to know there were errors with the declared figures, how the Chairperson of the EC got to know the errors, and whether the National Communications Authority (NCA) facilitated the transmission of results to the EC headquarters.

But the seven-member panel presided over by the Chief Justice, Justice Kwasi Anin Yeboah held that although the basis for the application was to assist the court to narrow the issues for trial, they must be relevant to the case.

It is the considered view of the court that the issue of relevance had not been established by the petitioner in the application.

The Chief Justice who read the short ruling reiterated that interrogatories were discretionary at common law, thus, the court has the power to grant the application or otherwise.

Both counsel for the EC and President Nana Addo Dankwa Akufo-Addo, Mr Justin Amenuvor and Mr Akoto Ampaw opposed the application arguing that the petitioner was seeking to railroad the trial by seeking information not pleaded  “through the backdoor.”

For instance, Mr Amenuvor contended that the information being sought by Mr Tsikata was within the domain of the petitioner.

Mr Ampaw insisted that interrogatories must be relevant to the matter in contention and urged the court to dismiss the application.

Meanwhile, the court admonished Mr Tsikata for allegedly seeking to attack the person of Mrs Jean Adukwei Mensa, the Chairperson of the EC by constantly mentioning her name instead of the institution.

But Mr Tsikata told the court that his reference to Mrs Mensa was not actuated by malice but grounded on the constitutional provision which makes Mrs Mensa the returning officer of the EC. 

The case has been adjourned to today for the parties to file issues for trial by 9am.

Mr Mahama is challenging the declaration of Nana Addo Dankwa Akufo-Addo as the winner of the 2020 election.

 Last week Thursday, the court granted a motion to enable Mr Mahama, the petitioner to correct an error in his petition.

The amendment process had since been filed at the Registry of the Supreme Court.

President Mahama inadvertently urged the court in one of his reliefs filed on December 30, 2020 to order a rerun between him and the Electoral Commission (EC) instead of Nana Addo Dankwa Akufo-Addo, who was declared the winner of the 2020 election

 Former President  Mahama is being represented by Tsatsu Tsikata and Tony Lithur, while President  Akufo-Addo’s senior counsel, Mr Akoto Ampaw leads Frank Davies, Yaw Oppong, and Kwaku Esrifie as counsel for President Akufo-Addo with Amenuvor, Miracle Takyi and Hope Aboado representing the EC.

Former President Mahama has urged the Supreme Court to annul the results of the December polls as none of the candidates who contested the election obtained the required 50 percent plus one of the total votes cast.

The petitioner is also asking the Apex Court for an order of injunction restraining Nana Akufo-Addo from holding himself out as President-elect.

Again, the former President wants the court to order the Electoral Commission to organise a second election with himself and Nana Akufo-Addo as the only two candidates.

Mr Mahama through his lawyer, Tony Lithur argues that the EC Chairperson, Jean Mensa announced the total valid votes cast as 13,434,574, minus the results of Techiman South, with President Akufo-Addo obtaining 6,730,413 of the votes representing 51.595 per cent of the votes while he (Mahama) got 6,214,889 representing 47.366 per cent of the votes.

It is his case that per the figures announced by the EC that the actual percentage for President Akufo-Addo minus that of Techiman South ought to be 50.098 per cent and not 51.595 per cent while his (Mahama’s) percentage minus Techiman South should be 46.26 per cent and not 47.366 per cent.

He argued that the Techiman South Constituency has a total voting population of 128,018 and if that is added to the total valid votes cast as declared by the EC it will be 13,434,574 plus 128,018 (13,562,592).

This according to Mr Mahama was erroneous for the EC to state that even if all the votes in Techiman South were added to his votes it wound not change the results.

“Consequently, if all the votes of Techiman South Constituency were added to the Petitioner (Mahama)’s votes , the 2nd respondent’s (President Akufo-Addo) votes will remain the same at 6,730,413, now yielding 49.625 per cent , while the votes of the petitioner would increase to 6,342,907, now yielding 46.768 per cent.

“Therefore, Mrs Jean Adukwei Mensa’s claim in the purported declaration that adding all the 128,018 votes in Techiman South Constituency of the votes standing to the name of the petitioner would not change the results, was clearly wrong,” Mr Mahama argued.

The petition is asking the Supreme Court to declare that the “purported declaration made on  December 9, of the results of the Presidential Election by Mrs Jean Adukwei Mensa is unconstitutional, null and void and of no effect.”

In his response, counsel for President Nana Akufo-Addo, Mr Akoto Ampaw described the petition as incompetent, devoid of substance and does not measure up to the legal criteria or an action invoking the jurisdiction of the apex court under article 64(1) of the Constitution, 1992.

He said the petition was merely conjectural and born out of petitioner’s unfounded imagination, and that the material facts in the petition do not support the reliefs sought.

Mr Ampaw argued that the election petition does not disclose any attack on the validity of the election held throughout the 38,622 polling stations and 311 special voting centres.

The second respondent contended that the petitioner “only devotes an overwhelming portion of the petition(30 out of 35 paragraphs) to weak and inconsistent complaints about the “declaration of the winner” of the election by 1st Respondent, and the remaining five(5) paragraphs to empty allegations of “wrong aggregation of votes” and “votes padding,” which collectively involve about 6,622 votes- an amount patently insignificant to materially affect the outcome of an election in which 2nd respondent defeated Petitioner by well over 500,000 votes.”

He averred that even though the petitioner, from reliefs sought, claimed that no candidate  obtained more than 50 per cent of valid votes cast in the election, and therefore seeks a second election between the two leading candidates, the petitioner does not indicate the number of valid votes or percentage thereof that he should have obtained in the election, or the number of votes or percentage thereof that the second respondent should have obtained to support the allegation and request for a rerun.

It is the case of President Akufo-Addo that the failure on the part of the petitioner to plead this “supremely material allegation of fact and provide particulars thereof in the petition completely divests petitioner of cause of action.”

The second respondent stated that it would raise preliminary legal objection and invite the court to make a determination that the petition was incompetent, frivolous and vexatious and disclosed no reasonable cause of action.

  He said the objection would be on grounds that the petition do not meet the requirement imposed on a petitioner under article 64(1) of the Constitution, 1992; that the reliefs claimed by the petitioner particularly those that purports to declare as unconstitutional the declaration of the presidential election by the EC and consequently claim an order of annulment of the Declaration of President-Elect Instrument, 2020 (C.I 135), are not supported by facts pleaded in the petition.

That the petition recount allegations of mathematical errors contained in parts of the declaration made by Chairman of the EC, and that at law, a challenge of the declaration of results of an election does not amount to an attack on the validity of an election; that the petition has not challenged the validity of the election conducted throughout the 38,622 polling stations and 311 special voting centers in the country, and has therefore not challenged the lawfulness of the election.

The EC in its response said it would also raise preliminary legal objection  to the effect that the petition was incompetent because the petitioner failed to raise reasonable cause of action.

Its counsel, Mr Amenuvor of the Amenuvor and Associates stated that his client had put in place a system ot help it deliver a seamless and timely collation of results.

The counsel said that numerous requests for recounts at polling stations and re-collation at the constituency and regional collation centers raised by candidates and agents that were attended to in accordance with the rules governing the election did not allow for the prompt tallying and collation of the results as expected.

The EC said it admitted in reading out the results on December 9, 2020, its Chairperson inadvertently read out the figure representing the total number of valid votes cast as the figure representing the total number of valid votes, and the percentage of the second respondent as 51.59 per cent instead of 51.295 per cent.

Again, the EC stated on December 10, 2020, it made a correction and clarification of the results declared on December 9 through a press release, but adds that, that correction and clarification did not affect the overall results as declared.

The EC contends that a tabulation of all the valid votes obtained by the candidates in the declaration of December 9 was 13,121,111 and not 13 434,574, which represented the total votes cast and petitioner was therefore well aware that 13,434,574 declared as the total valid votes was an error.

The first respondent averred that notwithstanding all the resources and training deployed and the facilities put in place, there is a possibility of minor discrepancies as a result of computational and mathematical errors made in the course of the collation of results, but these did not have a material effect on the overall results as declared.

The first respondent maintained that in a bid to enhance transparency and public participation in the electoral process, it published all the Regional Election Summary Sheets on its website. 

In further denial of the petitioner’s claim, the EC said that it complied with all the processes and procedures laid down by law for the conduct of December 7 Presidential Election with fairness to every candidate and without malice, ill will or bias against anyone.

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