Prepared by Nick Opoku
Facts
The Supreme Court shall deliver its judgment
in the presidential election petition filed by the flagbearer for the National
Democratic Congress (NDC) in the 2020 presidential elections, John Mahama on
Thursday, March 4, 2021. Hearing of the petition began on January 26, 2021.
At stake in this petition is Nana Akufo-Addo's first round
victory in the elections. According to the certified results declared by the Electoral Commission (EC) on December 9,
2020, President Akufo-Addo won the presidential election with 6,730,587 votes
(51.3%) while Mr. Mahama polled 6,213,182 (47.4%). Third party and independent
candidates collectively polled 1.339% of the valid votes cast.
However,
Mr. Mahama wants the
apex court to invalidate the declaration of Nana Akufo-Addo as the
President-elect by the EC and order run-off elections for various reasons
contained in his petition. Chief among those reasons is the contention that the results declared by the EC on December 9, 2020, which
purportedly confirmed Nana Akufo-Addo as President, violated Article 63(3) of
the Constitution because at the time of the said declaration, neither him nor
Nana Akufo-Addo had obtained more than 50 per cent of the total number of valid
votes cast. He also alleges that the EC was ‘unfair’, ‘untruthful’ and
‘unreasonable’ in collating the results of the presidential election because he
has evidence of ‘vote padding’ and clerical or arithmetical errors in the
collation of the results.
Arguments of Respondents
First Respondent:
The First Respondent
in this petition—the Electoral Commission (EC)—in its answer to the petition, largely
denied the claims made by the petitioner. The EC said it ‘complied with all the
processes and procedures laid down by law for the conduct of the 7th
December 2020 Presidential Election with fairness to every candidate and
without malice, ill will or bias against anyone’ [para 40 of 1st Respondent’s answer to
petition]. The EC provided a detailed account of the entire process for the
collation of the presidential results and said that the petitioner’s
representatives signed 13 out of the 16 Regional election results summary
sheets while representatives of the Second Respondent (President Akufo Addo)
signed 15 out of the 16 regional results summary sheets. The EC however
admitted that some errors were made during the December 9, 2020 declaration of
the presidential results, noting that
in reading out the results on 9th
December, 2020, its Chairperson inadvertently read out the figure presenting
the total number of votes cast as
the figure representing the total number
of valid votes, and the percentage of [the President] as 51.59% instead of
51.295%.’ [para 21 of 1st Respondent’s answer to petition]
The EC also conceded that there had been errors in
the declaration of the total valid votes. However, the EC took the position
that notwithstanding those errors, and in light of the fact that timely
corrections had been made after the declaration, ‘the figures converted into percentages showed that the president had
obtained more than 50% of the valid votes, which met the constitutional
threshold for the Election of President under Article 63(3) of the
Constitution. ’ [para 28 of 1st Respondent’s answer to petition]
Second Respondent:
The Second Respondent, President Akufo Addo, in his
answer to the petition, raised some preliminary objections to the petition;
arguing that the petition should be struck out by the court on grounds that it
(the petition) is ‘incompetent, frivolous
and vexatious and discloses no reasonable cause of action in terms of article
64(1) of the Constitution’. Counsel for the second Respondent, argued that
the petition fails to meet the constitutional requirement for challenging the
validity of a presidential election. They also pointed to alleged factual
weaknesses in the petition, including the claim in paragraph 13 of the petition
that ‘a total of one hundred point three
per cent (100.3%)’ is yielded from the percentages announced by 1st
Respondent (EC) on 9th December, 2020’.
Pretrial directions
The court, in its pre-trial directions set the
issues (questions) for determination of the petition as follows:
1. Whether
or not the petition discloses any reasonable cause of action
2. Whether or not based on the data
contained in the declaration of the 1st Respondent, no candidate obtained more
than 50% of the valid votes cast as required by Article 63(3) of the 1992
Constitution
3. Whether or not the 2nd Respondent still
met the Article 63(3) threshold by the exclusion or inclusion of the Techiman
South Constituency Presidential election results
4. Whether or not the declaration by the
1st Respondent dated the 9th of December, 2020, of the results of the
presidential election conducted on 7th December 2020 was in violation of
Article 63(3) of the Constitution
5. Whether
or not the alleged vote padding and other errors complained of by the
petitioner affected the outcome of the presidential election results of
2020
The
court also decided that its decision on the preliminary objections raised by
the 2nd Respondent would be incorporated in its post-trial judgment.
Major events during trial
Throughout the trial,
the Supreme Court has had to make a number of decisions bordering on procedural
steps and evidence by the parties.
(i)
On
January 19, 2021, the Supreme Court unanimously dismissed
an application for interrogatories filed by the petitioner seeking leave of the
court to elicit some answers to questions relating to the conduct of the
elections from the First Respondent, Electoral Commission (EC). The court held
that the Supreme Court (Amendment) (No. 2) Rules, 2016 (C.I 99) provide
for expeditious trial of a presidential election petition and since the
questions petitioner sought answers to could be answered at trial, the
application was irrelevant at the time.
(ii)
On
January 28, 2021, the court unanimously dismissed the
petitioner’s application for a review of the court’s January 19, 2021 decision
on his application for interrogatories. The court held that the petitioner had
not satisfied the conditions set out in Rule 54 of the Supreme Court Rules, 1996
(C.I. 16) to warrant the grant of the review application. The court
reasoned that the petitioner had neither demonstrated by way of evidence, any
exceptional circumstances which had resulted in a miscarriage of justice, nor
the discovery of any new evidence which the court had failed to take into
account in its earlier decision.
(iii)
On
February 3, 2021, the court unanimously dismissed the
petitioner’s application to inspect documents of the first Respondent (EC)
relating to the December 7, 2020 presidential election results. The court held
that the petitioner had failed to demonstrate that he had no copies of the
documents in question. The court reasoned that the First Respondent (EC), in
compliance with the Public Elections Regulations, 2020 (C.I. 127), had already
given copies of the said documents to the parties that participated in the
presidential elections through their accredited agents; a fact the petitioner’s
witnesses had admitted under cross-examination.
(iv)
On
February 11, 2021, the court unanimously dismissed
arguments by counsel for the petitioner seeking leave of the court to compel
Chairperson of the EC, Jean Mensah, to testify after the First Respondent had
elected not to adduce evidence.
(v)
On
February 16, 2021, the court unanimously dismissed an
application by the petitioner to reopen his case and subpoena the Chairperson
of the EC, Jean Mensah, to testify as an ‘adverse witness’. The court held that
the petitioner had failed to satisfy the legal test for the grant of such
applications. The test being: (i) that a new matter had arisen in the course of
the trial which was not reasonably foreseeable; (ii) that the new evidence the
applicant sought to adduce will influence the court’s eventual decision; (iii)
that the applicant could not have known of the existence of such evidence after
a reasonable and diligent search; and (iv) that re-opening the applicant’s case
would not unduly prejudice the other party.
(vi)
On
February 18, 2021, the court unanimously dismissed an
application filed by the petitioner for a review of the court’s February 11,
2021 decision not to compel the Chairperson of the First Respondent, Jean Mensah,
to testify. The court held that the petitioner had failed to satisfy the
conditions for the grant of a review application as outlined in Rule
54 of the Supreme Court Rules, 1996 (C.I. 16).
(vii)
On
February 22, 2021, the court unanimously affirmed its February
16, 2021 decision not to allow the petitioner to reopen his case and compel the
Chairperson of the First Respondent to testify following a review application
filed by the petitioner.
What
is likely to be the court’s decision?
Ghanaian
jurisprudence on electoral disputes adopt the position that ‘not every
irregularity or breach of law in the conduct of an election provides sufficient
grounds to void an election; as long as there has been substantial
compliance—or non-compliance—with the applicable laws and regulations the
election will not be invalidated, unless the non-compliance affected the
results.’
Considering (i) court’s decision in the 2013
presidential election petition (Nana
Akufo Addo v Electoral Commission & John Mahama); (ii) the precedents of
other constitutional courts in the West-African sub region; (iii) the basis of
the petition; and (iv) evidence adduced by the petitioner throughout the case,
it is very likely the petition will be dismissed by the Supreme Court.
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