Election Petition: Detailed account of what transpired in court on Day 22
On Day 22, that is Wednesday, January 20, 2021, of the election petition filed by former President John Mahama, the justices of the Supreme Court were seated by 9:35 am, but the counsel for the petitioner was notably not present in his chair.
Johnson Asiedu Nketia, General Mosquito represented the petitioner.
Asiedu Nketia explained that Tsatsu Tsikata and Co were at the court’s registry trying to file some processes upon enquiry by the Chief Justice (CJ).
Tsikata arrived in time and explained that he had filed some processes in obedience to the short notice given the previous day by the court.
The court suspended sitting to go and attend to those documents.
They, however, returned and announced timelines for the case to proceed, in complete disregard for their own request, the previous day, for suggestions from the parties on how the case management should proceed.
The counsels for the petitioner protested but the counsels for the respondent sat in their chairs, only expressing gratitude.
Tsikata explained that the processes they had filed if acted upon will affect how they lead their case but the Chief Justice disagreed saying those processes do not serve as a “stay of proceedings”.
Tsikata again protested that the parties were present for case management but that had been ignored by the bench.
Justice Mariamma Owusu, however, countered that Tsikata should have known that under the new rules, preparing witness statements are done in advance of filing the case in court hence Tsikata had no excuse.
Tsikata, however, replied that he was not “superhuman” to do that.
Besides, the processes he had filed, especially on a review of the ruling on the application asking the EC to admit facts, could affect how their witness statements will be prepared.
Once witness statements are to be filed on Thursday 21st by order of the court, and the review of the ruling on his application attended to later, he could not see his way clear in the matter, he contended. But the court rose, adjourning the hearing to 26 January 2021.
The issues for the trial are (paraphrased):
a. Whether or not Petitioner’s petition discloses a reasonable cause of action?
b. Whether or not based on the statement of results by the EC, the 2nd Respondent crossed the threshold in article 63?
c. Whether or not the 2nd Respondent by the exclusion or inclusion of the votes in Techiman South Constituency crossed the threshold in article 63(1)?
d. Whether or not the alleged case of votes padding affected the results of the 2020 elections?
e. Whether or not the declaration of 9 December 2020 breached article 63 of the 1992 Constitution?
The court announced the timelines in chronological order as follows:
1. The petitioner and witnesses shall file witness statements with exhibits, if any, by the noon of Thursday, January 21, 2021.
2. The witness statements shall be served on the counsels for the respondents by the close of Thursday, January 21, 2021.
3. The respondents and the witnesses, if any, shall file their witness statements with exhibits, if any, by the close of the day on Friday, January 22, 2021.
4. a. The first and second respondents shall file submissions on the preliminary objections raised to the petition by 12 noon of January 22.
b. The registrar shall ensure service of the aforementioned submissions by close of Friday, January 22.
c. The petitioner shall file any response to the submission of the preliminary objections by Monday, Jan 25.
d. The registrar shall ensure service of the petitioner’s response by close of Monday, January 25.
e. Ruling on the preliminary objections will be incorporated in the final judgement of the court.
The court indicated that it was operating under strict timelines based on the provisions of the law governing the case, that is Constitutional Instrument 99 (C.I.99) of 2016.
Consequently, the court fixed January 28, 2021, which is Day 30, for the hearing of the application for a review filed in respect of the “12 interrogatories” designed to get the EC to admit to some facts, which Tsikata averred would hasten the trial since it will shorten the time for cross-examination of witnesses.
The Chief Justice cautioned Dr. Dominic Ayine, a former Deputy Minister of Justice and Attorney General who is part of the petitioner’s legal team of misconduct.
“Mr Ayine, you are a senior member of the court. When the bench engages counsel, you don’t sit down and make gestures as if you are part of the legal team,” the CJ charged. “I’ve been watching you. This is not fair. The other time, we heard you clearly when an objection was taken. When the representations were announced, I asked Mr Tsikata whether they were limiting themselves to only two counsels. And he said he was with Mr Lithur. So, Mr Ayine, out of respect for you, don’t do that again.”
Dr. Ayine promptly apologized.
The court will sit on Tuesday 26th January, by which time all the orders of the court in respect of filing and serving documents should have been served.
Marietta Brew Appiah-Oppong, speaking on behalf of the petitioner’s legal team after the day’s hearing argued that the case management processes was scheduled to take five days and that it was shocking that on only the second day of the case management, counsel at the bar was not even allowed to have a say in the matter, but orders were dished out to them.
Baba Jamal, an NDC leader, later told reporters that the judges were being biased and unfair. Frank Davis, speaking for Akufo-Addo’s legal team was, however, happy that the court had included in the matters for determination what they, the Akufo-Addo legal team, had suggested in their response to the petition.