The Supreme Court, yesterday, in a unanimous decision upheld the application by the 1st (Electoral Commission) and 2nd Respondents (Nana Akufo Addo) not to call any witnesses in the ongoing election petition hearing.
The decision by the apex court followed oral arguments made by the lawyers for the Electoral Commission and President Akufo-Addo that their clients cannot be compelled to testify.
Citing Order 38, rule 3 (e) sub-rule 1 and 5 of CI 47 as amended by CI 87, the two counsels had argued that the burden of proof in the petition hearing lies on the petitioner and therefore it will be wrong for the lead counsel for Mr. John Mahama to induce evidence from the Chairperson of the EC, Jean Mensa.
But disputing the arguments, lead counsel for the petitioner, Tsatsu Tsikata said since the lawyers have not made a submission of no case, the burden of proof does not apply as argued by the lawyers for the EC and Akufo-Addo.
He also explained that the EC Chairperson has a constitutional duty to give accounts of events that led to the December 9, 2020 election declarations and to clarify how some errors were made.
But siding with the respondents in its verdict, the Chief Justice, Kwasi Anin -Yeboah said submitting a witness statement does not constitute evidence until the witness enters the box and takes the oath to indicate reliance on it.
Again, the depositions in affidavits with regards to the interrogatories do not mean the witness can be compelled.
He explained that no provision in the constitution or statute has been pointed out to show the EC chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.
Chief Justice Anin Yeboah also sided with the respondents that the burden of proof lies on the petitioner and can only be shifted when that condition has been satisfied.
He maintained that the court does not have the power to compel a party to give evidence.
The apex court has subsequently ordered the respondents to file their addresses for the closure of their case by February 17.
Hearing has also been adjourned to February, 18 2021.
Meanwhile, former flagbearer of the NDC, John Dramani Mahama, has filed a motion at the Supreme Court for leave to reopen his case.
Documents sighted by this paper indicated that the petitioner will subpoena the EC Chairperson to testify if the application is granted.
The application will be heard on Monday, February 15, 2021.
Meanwhile, one of the lawyers for the petitioners, Marietta Brew Appiah-Oppong has said that her side will put in a subpoena application to get the EC Chair, Jean Mensa to testify in the witness box.
“We disagree [with the ruling]. It is as simple as that. We have nothing to do about the decision of the court but accept it, and so we are going to file for an application for review. Counsel for the petitioner has announced that he will file a review of today’s decision of the court. You heard the Lordships, they said no one can stop us from filing an application”, she noted during a post-trial press conference.
Justifying why the EC Chair must mount the witness box, Marietta Brew Appiah-Oppong reiterated the numerous occasions where the Commission has refused to provide information thereby questioning the transparency and accountability of the electoral management body.
“The Chairperson in the past has said she will be available for cross-examination. We have an EC who when a request for interrogatories was served on her in the past, she refused to respond. The EC has to be accountable to us and tell us how she made those errors. There are questions we have to put to her [Jean Mensa] that no one can answer. She alone can answer”, Madam Appiah-Oppong added.