The First Cross Examination on 2020 Presidential Election Petition: A Street Lawyer’s Analysis

On the 20th January, 2021, the Supreme Court sets out the following issues for trial for the 7th December 2020 Presidential petition. The primary purpose is to set issues that will be on trial and to set the parameters that will inform the ruling of the Justices.

The Issues for Trial

1. Whether or not the petition discloses any reasonable cause of action

2. Whether or not based on data contained in the declaration of 1st Respondent, for the 2nd Respondent as President-elect 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 article 63 (3) of the 1992 Constitution 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 December, 2020 of the results of the Presidential election conducted on the 7th December 2020 was in violation of article 63 (3) of the 1992 Constitution

5. Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the Presidential election of 2020.

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The requirements of Article 63(3)

A person shall not be elected as President of Ghana unless at the presidential election the number of votes cast in his favour is more than fifty percent of the total number of valid votes cast at the election

Witness Statement

On Friday 29th January, 2021, the Supreme Court struck out most parts of the witness statement. In my opinion, what remains in the petitioner’s petition to fight his case are two.

A. The petitioner’s own numbers or figures provided in his petition and exhibits to that effect which shows that the 2nd Respondent won the presidential election.

B. Mr. Kpessa Whyte’s strongroom wrong collation argument, petition letter to the Electoral Commission, and his ‘errand boy’ with a motorcade story.

The Cross Examination of Justin Amenuvor, the Lawyer for 1st Respondent

The Issues Cross Examined

I. Reasonable Cause of Action

“The first issue for trial is,
“whether or not the petition discloses any reasonable cause of action.”

The 1st Respondent’s Lawyer suggested to the petitioner’s Witness that, the Petitioner had no evidence to support his allegation that was why the Petitioner brought only a sample of the collated figures to court. The Petitioner’s Witness responded as follows,

We are not in court to declare another presidential result by us. We are in court to challenge the performance of a constitutional duty of the 1st respondent, and to see whether that duty has been discharged faithfully.

This statemenr by the Witness of the Petitioner sounded as a testimony to the fact that, the Petitioner is not in court to challenge the validity of the Presidential election results but rather to challenge the performance of the 1st Respondent in the discharge of 1st Respondent’s constitutional duty and to see whether that duty has been discharged faithfully.

This singular statement by the Witness in my opinion, ceases the petition as a Presidential election petition and therefore renders the petition from having a reasonable cause of action.

II. Data Proved More Than 50% Of Valid Votes Cast.

The second issue set for trial is, “whether or not based on data contained in the declaration of 1st Respondent, for the 2nd Respondent as President-elect no candidate obtained more than 50% of the valid votes cast as required by Article 63(3) of the 1992 Constitution.”

Issue two is a straight forward matter. That is, on Form12 (Presidential Regional Results Primary Sheet) signed and certified by the Petitioner’s regional representatives and Form13 (Presidential Results Declaration Form) of the EC. Twelve of the Form13 were signed and certified by the Petitioner’s representatives and sixteen of the Form13 were signed and certified by the other candidates’ representatives at the national collation centre (strong room) effectively addresses issue two. The signatures have not been challenged by the petitioner.

The data to address issue two for trial is “data contained in the declaration of 1st Respondent, for the 2nd Respondent as President-elect.”

Unless the petitioner can introduce a different 1st Respondent’s data that is contrary, it sets the petitioner’s burden of proof of his allegation against a mountainous cliff.

III. Number Of Votes Cast in Favour Of 2nd Respondent Is More Than 50%

Issue two and issue four appears to compliment each other. If you prove issue two or otherwise with evidence, issue four follows chronologically. That is, whether the number of votes cast in 2nd Respondent’s favour is more than fifty percent of the total number of valid votes cast at the election as declared by 1st Respondent on the 9th of December, 2020.

IV. 2nd Respondent Met More Than 50% Threshold With Or Without Techiman South Constituency

Issue three as set for trial states,
“Whether or not the 2nd Respondent still met article 63 (3) of the 1992 Constitution threshold by the exclusion or inclusion of the Techiman South Constituency Presidential election results.”

Issue three ‘innovated’ the ‘hardcopy Makola calculator’ arithmetic between the Lawyer of the 1st Respondent and the Witness of the Petitioner.

The Lawyer of the 1st Respondent caused the Witness of the Petitioner to first admit to the fact that, as at the time the Petitioner was filing his petition, the result of the Presidential election for Techiman South was known to Petitioner. The Techiman South results were factored in the petitioner’s total figures or numbers which “still met article 63 (3) of the 1992 Constitution threshold” to declare 2nd Respondent as the winner of the 2020 Presidential election.

V. Vote Padding And Other Errors

Issue five, “Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the Presidential election of 2020”

Lawyer of 1st Respondent : “It is not true that the 1st Respondent padded any votes as you alleged, I am putting it to you?”

Witness of Petitioner: in his answer said: “My lord, I decline to answer to that assertion.”

Lawyer of 1st Respondent: “We are using the numbers that you have brought to the court and I am saying that the total of 4,693 is what you have put down there, is that correct?”

Witness of Petitioner: “I brought it as a sample. In my statement, I did indicate that this is from a sample of this particular constituency. I don’t understand sample to mean a total of the population.”

This arithmetic banter between the Lawyer of the 1st Respondent and the Witness of the Petitioner was to establish the fact that, the alleged vote padding by the 1st Respondent never existed. The witness replied that it was a sample.

This answer effectively shuts the door on any evidence on vote padding. Because, there is no other means by which the Petitioner or his Witness can bring any further evidence to prove vote padding allegation. The courts are not academic research supervisors that guides students with sample data to arrive at the total population or numbers. The courts exist to deal with evidence.

The issues set for trial would inform the evidence to determine “whether or not the petition discloses any reasonable cause of action.”

VI. Is It Validity of Results or Constitutionality of Performance?

However, as stated by the Witness of the Petitioner, the Petitioner is not in court to challenge the validity of Presidential election results but rather, the unconstitutional conduct/performance of the 1st Respondent.

“We are in court to challenge the performance of a constitutional duty of the 1st respondent, and to see whether that duty has been discharged faithfully.”

As 29th January 2020 was the first day of cross examination, the public would expect incontrovertible evidence on the unconstitutionality of the 1st Respondent’s performance that would meet the requirements of the five issues set for trial by the Supreme Court. And more especially, whether the unconstitutional performance of the 1st Respondent violates Article 63 (3).

VII. On The Matter Of Evidence

However, the Evidence Act of 1975 (N.R.C.D. 323) which clearly defined burden of producing evidence in part two of the Act, shall guide the ruling.

Evidence Act 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

And the evidence so produced, is (2) “sufficient evidence so that on the totality of the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.”

And it must be (4) sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.

MAJOLAGBE v. LARBI & ORS. [1959] GLR 190, Holding 4 @ 192, Per Ollennu J., HC; and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221@ 246, Per Kpegah J.A., CA also referred.

Court rise!!

By Kofi B. Kukubor

The author is a Governance and Policy Analyst