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Former President John Dramani Mahama has asked the Supreme Court to annul the declaration of the December 7, 2020, Presidential Election result on the ground that none of the 12 participating candidates obtained the constitutionally mandatory more than 50 per cent of the total valid votes.
The National Democratic Congress (NDC) flag bearer, who was seeking a return to the presidency after he lost in 2016 as incumbent, is contesting in court that none of the candidates in the presidential election got more than 50 per cent of the total valid votes as mandated by law but the Electoral Commission (EC) Boss, Mrs. Jean Adukwei Mensa, who was the returning officer of the presidential ballot, declared the sitting President, Akufo-Addo, as the winner.
His lawyers in a closing address filed subsequently on the orders of the highest court averred that the result declared by the Chairperson of the EC Boss on December 9, 2020, was constitutionally flawed and could not be made to stand.
Former President Mahama in his address is saying that he filed his petition on December 30, 2021 (which should have read December 30, 2020) and it was reminiscent of the same errors he committed when the petition was the first to file before they made a subsequent amendment to correct the error.
Mr Mahama is pushing in his closing address that he has been able to prove through his pleadings and evidences of his witnesses that nobody got the required number of valid votes per Article 63(3) to have been declared the winner.
He further contended that per the declaration of the EC Chairperson, taking into account her assumptions made concerning the results of Techiman South Constituency, there should have been a run-off between himself and President Akufo-Addo.
Mr. Mahama also contended that the EC itself confirmed his positions in its pleadings when it failed to respond to his request to admit fact, which he said amounted to an admission.
“By the lack of response within 14 days, first respondent (EC) is deemed to admit not only the truth of the statements in the request to admit facts but also the authenticity of exhibit A, the video recording of the declaration she made,” he said.
The former President wants the court to declare that the results of the 2020 Presidential Election announced by the Chairperson of the EC was in breach of Article 63 (3) of the 1992 Constitution.
Mr. Mahama in his petition is urging the Supreme Court to annul the results of the December polls as per the data contained in the declaration that none of the candidates who contested the election got the required more than 50 per cent of total valid votes cast.
He is also asking the court for an order of injunction restraining President Akufo-Addo from holding himself out as President-elect.
Again, the former President wants the court to order the EC to organize a second election with himself and President Akufo-Addo as the only two candidates.
The petitioner called three witnesses – Johnson Asiedu Nketia, Dr. Michael Kpessa-Whyte and Robert Joseph Mettle-Nunoo, aka Rojo, to advance his case before the court.
Mr. Nketia’s evidence contained allegations of vote padding at some centres in favour of President Akufo-Addo which he said affected the outcome of the election.
His evidence also challenged the December 9, 2020 declaration made by the EC and the December 10, 2020 press statement which sought to correct an error made by the EC boss while declaring the results the previous day.
Dr. Kpessa-Whyte who was one of the two representatives of the NDC stationed at the National Collation Centre (Strongroom) of the EC during the election claimed that he witnessed “many material irregularities” whilst in the EC Strongroom.
His third witness, Mr. Mettle-Nunoo, also claimed that he was misled by officials of the EC to sign some collated results which had outstanding issues that needed to be addressed.
He also claimed that he and his colleague had been “sent to convey a message to the petitioner” after he had spoken to Ms. Mensa about the challenges with some of the summary sheets from the region and were shocked to have heard the EC boss announce the result in their absence.
The former President in his closing address averred that the terms of December 9, 2020, were not in doubt and what the respondents referred to as “inadvertent error” in their respective responses to the petition could not be considered by the court, especially when the two did not provide any evidence to that effect.
“The crucial testimony of PW1 (Mr. Nketia) in support of the case of the petitioner, particularly related to the declaration of December 9, 2020, and the press release of December 10, 2020, was not challenged in cross-examination. Indeed, on the contrary, all the critical facts have been admitted by first respondent (EC) through the Request to Admit Fact process,” he pushed.
Still, on the issue of admitted facts, Mr. Mahama averred that “The admission of all the facts contained in the paragraphs of the request to admit facts means that all the corresponding paragraphs in the witness statement and in the petition are admitted by first respondent.”
Burden of Proof
Mr. Mahama further averred that his lawyers were able to discharge the burden of proof conferred on a plaintiff in a matter, and once the EC admitted the facts in contention, there was no need for him to introduce figures.
“The admitted facts recited above, even by themselves, wholly discharge the burden of proof that the petitioner had to establish his case in these proceedings,” he stated.
He indicated that “the admission by the first respondent of averments definitely lead to no other possible conclusion of fact than that based on the data contained in the declaration made by the Chairperson of the first respondent, Mrs Jean Adukwei Mensa, no candidate obtained more than 50% of the total valid votes cast. This does not require figures from the petitioner about the results. It is based on what the Chairperson of the first respondent had admitted by not responding to the request to admit facts.”
Mr. Mahama added that “there is, therefore, no basis on which this court can reach a decision as regards the facts other than on the basis of the evidence put forward in this court by witnesses of the petitioner.”
The cloaking address also sought to place a differentiation between pleadings of this instant petition and the one filed in 2013 by then-candidate of the NPP, President Akufo-Addo, and others.
It stated that the 2013 petition made allegations of irregularities under 24 subcategories which they claimed took place in over 11,000 polling stations and sought to have over four million votes annulled.
It said the instant case was challenging the declaration made by the EC Chairperson hence the petitioner could not be required to bring his own figures along the lines of the 2013 petition.
“Obviously, the petitioner was not the returning officer for the election and he did not impose on himself in this petition the burden of proving anything beyond showing using the figures announced. In the declaration of Chairperson of the first respondent, she acted unconstitutionally.”
“The evidence from the terms of the declaration and the considerations that the Chairperson said were the basis of the declaration she was making led to the conclusion that the second respondent could only be credited with 49.625% of the votes at the time,” he added.
On the issue of correcting the error made by the EC Chairperson on December 9, 2020, Mr. Mahama averred that what the EC should have been seeking was the path to the correction of errors which would out of necessity, require the participation of agents of candidates.
“The Chairperson has never sought to set aside her declaration and put in place a new one, even though she has had every opportunity to do so by proceeding in a manner that is consistent with her constitutional duties under Article 23 and 296 of the constitution and Regulation 44(10) of C.I.127. She could lawfully do that and end up with an error-free valid declaration,” he stated.
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