Lawyer for the Chairperson of the Electoral Commission (EC), was yesterday caught hiding behind a land case to justify their reason not to have her cross-examined by lead counsel for the petitioner, Lawyer Tsatsu Tsikata in the ongoing Election Petition hearing in the Supreme Court.
Justin Amenuvor, who is in court defending Jean Adukwei Mensa before the seven member Supreme Court justices, had in his justification not to allow her mount the witness box cited; "William Ashitey Armah v. Hydrafoam Estates (GH) Ltd" to say that the apex court had in that case disallowed a witness from mounting the box, hence same must apply to the EC boss.
But Mr Tsikata in a quick response, discovered that the case in question was a land case and the two parties had agreed to rely on expert knowledge on the sides to adduce evidence in court, therefore, this cannot apply for the EC boss, who is a public servant and performing stately responsibilities she must justify per the anomalies discovered by the petitioner John Dramani Mahama.
It is unclear, if the Supreme Court, will fall on public policy and trust for state institutions in making its decision on whether or not the EC will be in the witness box.
Mr Tsikata, who was livid over the refusal by Mrs. Mensa, to testify in the election petition hearing, further added her role was a constitutionally assigned responsibility which she must be made to account for, adding it will be an affront to justice, if Mrs. Mensa, is not cross-examined in the ongoing case.
"What is being put before you now is not only an affront to justice but is not in accordance with the rules of this court, and we respectfully submit that it must not be countenanced by this court," Mr. Mahama's lawyer said at the Supreme Court on Tuesday, February 9, 2021.
The court will resume tomorrow Thursday, February, 11, 2021, to give its ruling on the decision.
Mrs. Mensa, has already filed a witness statement where she denies allegations of malfeasance outlined in Mr Mahama's petition.
Mr Tsikata, argued that Mrs. Mensa's witness statement was one of the issues the petition was meant to address and necessitated cross-examination.
One of the issues outlined by the Supreme Court for determination, is whether or not the declaration of the presidential election results by EC was in violation of Article 63 (3) of the 1992 Constitution.
Mr Tsikata, had also insisted that Mrs. Mensa's witness statement can be considered as evidence.
"By filing its witness statement, the [EC] has clearly crossed the bridge as far as opening up the witness [Jean Mensa] for cross-examining is concerned."
When asked by the court bench if Mrs. Mensa was entitled to change her mind, Mr. Tsikata said that matter "should be openly put to this court and the court may have the power to disallow this change."
In his view, there is no basis for the EC Chairperson backing down as a witness since she has already filed statements to that effect.
"She has made representations to this court and other parties in this case. She has made her representations and she cannot now resign from those representations unless there is good reason," Mr. Tsikata said.
Lawyers for 2nd respondent, Nana Akufo-Addo, have also made the argument that their witness, Peter Mac Manu, will also not enter the witness box, insisting that arguments from the petitioner are misconceived and have not specified the burden of truth.
He further went on to state that, the Petitioner should rather be happy the respondents decided to close their case, adding "Our decision works in favour of the Petitioner", Mr Ampaw told the court.
However, Mr Tsikata, argued that the respondent's withdrawal is an affront to justice and not in accordance to the rules of the court, explaining that the EC boss is binded by her witness statement she filed before the court and must account to her constitutional duties.
He further said, the responsibilities of the EC Chair, as performed during the elections, was a major reason the petition was called.
"We would be holding great dangers to the republic. She should be accountable because she holds the highest office of the Electoral Commission."
The seven-member panel of judges after listening to all sides and adding their input will make a final determination tomorrow.
Counsels for the respondents both closed their cases on Monday, February 8, 2021, after the third and last witness of the petitioner, Robert Joseph Mettle-Nunoo, was cross-examined.
A spokesperson for the Petitioner, Dominic Ayine, who is also a member of Mahama's legal team, said the case before the court is of public interest and not a private matter.
Lawyer Ayine, was speaking on the back of a decision by both respondents in the case, to withdraw their witness statements and close their case after the petitioner had closed his case following the discharge of his 3rd witness.
Speaking to the media after the hearing, the Member of Parliament (MP) for Bolgatanga East Constituency, said his side, among other things, is dealing with the declaration of the results that is supposed to have reflected the sovereign will of the people of this country.
"The reason why we are insisting that she be allowed to testify is simply because this is not a debt collection case. We are not here dealing with a private matter…We are here dealing with Article 1 of the constitution that says the sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government must be exercised."
Mr Ayine added that the EC boss, must let the public in on how she arrived at the conclusion that Nana Akufo-Addo won the December 7 polls, especially with regards to the different election result declarations made.
"…And that constitutional duty means that she cannot, under any circumstance, be allowed not to account to the people through cross-examination because cross-examination is one of the mechanisms allowed by law for exacting accountability of litigants."