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Notice of Sunday, January 31, 2021
Journalist: B. Kukubor Cafe
2021-01-31
The author is a governance and policy analyst
On January 20, 2021, the Supreme Court exposes the following questions for the presidential petition trial of December 7, 2020. The main purpose is to define the questions that will be submitted to the trial and to define the parameters which will inform the judges’ decision.
The challenges of the trial
1. Does the motion disclose a reasonable cause of action or not?
2. Whether or not on the basis of the data contained in the declaration of the 1st respondent, for the 2nd respondent as president-elect, no candidate obtained more than 50% of the valid votes cast as required by the Article 63 (3) of the 1992 Constitution.
3. Did the second respondent always comply or not with Article 63 (3) of the 1992 Constitution by excluding or including the results of the presidential election in the constituency of Techiman South?
4. If the declaration of the 1st Respondent dated December 9, 2020 of the results of the presidential election held on December 7, 2020 was in violation of Article 63 (3) of the Constitution of 1992
5. The alleged vote-stuffing and other errors complained of by the petitioner affected the outcome of the 2020 presidential election
The requirements of Article 63, paragraph 3
A person can only be elected President of Ghana if, in the presidential election, the number of votes cast in his favor exceeds fifty percent of the total number of valid votes cast in the election.
Witness statement
On Friday, January 29, 2021, the Supreme Court struck out most parts of the witness’s statement. In my opinion, what remains in the petitioner’s petition to fight his case is two.
A. The petitioner’s own figures or figures provided in his petition and documents to this effect which show that the 2nd respondent won the presidential election.
B. The mistaken classification argument of Mr. Kpessa Whyte’s vault, the letter of petition to the Election Commission and his “errand boy” with a story of a procession.
The cross-examination of Justin Amenuvor, counsel for the first defendant
The issues examined
I. Reasonable cause of action
“The first problem for the trial is,
“whether or not the petition discloses a reasonable cause of action.”
The lawyer for the first defendant suggested to the petitioner’s witness that the petitioner had no evidence to support his claim, which is why the petitioner brought only a sample of the figures collected to the court. The petitioner’s witness responded as follows:
We are not in court to declare another presidential result on our part. We are in court to challenge the fulfillment of a constitutional duty of the first defendant and to see whether that duty has been faithfully fulfilled.
This statement by the petitioner’s witness sounded like 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 first respondent’s accomplishment in fulfilling the constitutional obligation of the first respondent and to see whether this obligation has been faithfully fulfilled.
This singular statement by the witness, in my opinion, ends the petition as a presidential petition and therefore prevents the petition from having a reasonable cause of action.
II. The data proved more than 50% of valid votes cast.
The second question put to trial is: “Whether or not it is based on the data contained in the statement of the first respondent, for the second 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. “
The second problem is simple. This can be found on Form 12 (Primary Regional Presidential Results Sheet) signed and certified by the regional representatives of the petitioner and Form 13 (Presidential Declaration of Results Form) from the EC. Twelve of the forms13 were signed and certified by the representatives of the petitioner and sixteen of the forms13 were signed and certified by the representatives of the other candidates at the national collation center (strong room) effectively addresses the second problem. The signatures were not contested by the petitioner.
Data to solve the problem
two for the trial are “the data contained in the statement of the first defendant, for the second defendant as president-elect.”
Unless the petitioner can enter data to the contrary from a different first responder, this places the burden on the petitioner of proving their claim against a mountain cliff.
III. The number of votes cast in favor of the second respondent is greater than 50%
Number two and number four seem to complement each other. Whether or not you prove the second problem with evidence, the fourth problem follows chronologically. In other words, if the number of votes cast in favor of the 2nd respondent is greater than fifty percent of the total number of valid votes cast in the election declared by the 1st respondent on December 9, 2020.
IV. The 2nd respondent reached the threshold of more than 50% with or without the riding of Techiman Sud
Number three as defined for test states,
“Whether or not the 2nd Respondent has yet reached Article 63 (3) of the threshold of the 1992 Constitution by excluding or including the results of the presidential election for the constituency of Techiman South.”
The third question “innovated” the arithmetic of the “Makola calculator on paper” between counsel for the first respondent and the applicant’s witness.
Counsel for the First Respondent led the Applicant’s witness to first admit that, as at the time the Applicant filed his petition, the result of the presidential election for Techiman South was known to the Applicant. Techiman Sud’s results were factored into the petitioner’s total figures or numbers that “still met Article 63 (3) of the 1992 Constitution threshold” to declare the 2nd respondent the winner of the presidential election of 2020.
V. Filling in of votes and other errors
Question 5, “The question whether the alleged filling in of the votes and the other errors complained of by the petitioner affected the outcome of the 2020 presidential election”
Counsel for the first respondent: “It is not true that the first respondent completed votes as you alleged, I suggest it?”
Witness of the petitioner: “Monsignor, I refuse to answer this statement.”
Counsel for 1st Defendant: “We are using the numbers you presented to the court and I say the total of 4,693 is what you put down there, is that correct?”
Witness for the petitioner: “I brought it as a sample. In my statement, I indicated that this was a sample from that particular riding. I do not understand that “sample” means a total of the population. “
This arithmetic joke between counsel for the first respondent and the petitioner’s witness was intended to establish the fact that the alleged filling of votes by the first respondent never existed. The witness replied that it was a sample.
This response effectively closes the door to any evidence on the filling of votes. Because there is no other way by which the petitioner or his or her witness can adduce further evidence to prove the allegation of ballot filling. Courts are not university research directors who guide students with sample data to arrive at the total population or numbers. Courts exist to deal with evidence.
The questions at trial would inform the evidence to determine “whether or not the petition discloses a reasonable cause of action”.
Is it the validity of the results or the constitutionality of the performance?
However, as the petitioner’s witness stated, the petitioner is not in court to challenge the validity of the presidential election results, but rather the unconstitutional conduct / performance of the first defendant.
“We are in court to challenge the fulfillment of a constitutional obligation of the first defendant and to see whether that obligation has been faithfully fulfilled.”
With January 29, 2021 being the first day of cross-examination, the public would expect compelling evidence about the unconstitutionality of the 1st defendant’s performance that would meet the requirements of the five questions put to trial by the Supreme Court. And more particularly, if the unconstitutional execution of the 1st defendant violates Article 63 (3).
On the question of proof
However, the 1975 Evidence Act (NRCD 323), which clearly defined the burden of producing evidence in Part II of the Act, will guide the decision.
Evidence Act 11 (1) For the purposes of this Act, onus to produce evidence means the obligation on a party to present sufficient evidence to avoid a decision on the matter being made against that party.
And the evidence thus produced is (2) “sufficient evidence for a reasonable mind to conclude that the fact exists beyond a reasonable doubt, having regard to all the evidence”.
And it must be (4) sufficient evidence which, out of all the evidence, leads a reasonable mind to conclude that the existence of the fact was more likely than its non-existence.
MAJOLAGBE v. LARBI & ORS. [1959] GLR 190, Holding 422, Per Ollennu J., HC; and ZABRAMA against SEGBEDZI [1991] 2 GLR 221 @ 246, Per Kpegah JA, CA also cited.
Courtyard mounted !!
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