Dr Afari Gyan
The Electoral Commission (EC), in a desperate last-minute attempt to halt the hearing of the election petition before the Supreme Court, has filed an application asking the Court to vary its orders given in the petition in which three NPP chieftains are challenging the validity of the EC’s declaration of John Dramani Mahama as President in the December 2012 general elections.
Following EC’s motion on notice, the court, which fixed Tuesday April 16, as the definite date for the hearing of the landmark election petition, had to recall the parties today for the court to hear the motion.
The EC had up to Friday to file its particulars to enable hearing to begin next Tuesday after the petitioners, NPP presidential candidate for 2012 Nana Addo Dankwa Akufo-Addo (1st petitioner), his running mate Dr. Mahamudu Bawumia (2nd petitioner) and the party’s Chairman Jake Otanka Obetsebi-Lamptey (3rd petitioner) had filed volumes of documents to beat the court deadline of last Sunday.
However the commission made a U-turn asking the court to allow the petitioners to close their case before it was ordered to tender its evidence and other documents; which request the petitioners called on the court to dismiss.
Burden of Proof
The affidavit in support of the EC’s motion deposed to by Anthony Kodzo Dabi, one of its lawyers on April 8, 2013, which would be heard this morning, said that the commission had filed the motion because the suit, being the first of its kind, the petitioners had a ‘burden of proof or persuasion’ before the court.
“Since in the instant suit, this honourable court is functioning as a trial court or a court of first instance, it is respectfully requested that taking into account that the petitioners have a burden of proof or persuasion, the petitioners should be ordered to open their case, present their evidence (oral evidence and evidence of affidavit) and close their case before the 2nd respondent is required to open its case, present its evidence and close its case.”
According to the EC, the order they are seeking “will not cause any delay or hinder the expeditious hearing of this case.”
The EC stated that this would, “to the contrary, ensure a smooth and well-ordered trial in accordance with the established procedures of a court of first instance and with short deadlines being issued by them so as to ensure that unnecessary delays do not occur.”
Petitioners Oppose Application
Meanwhile, the petitioners have vehemently opposed the EC’s application, describing it as ‘wholly without merit, brought in bad faith, and calculated to overreach the petitioners and cause delay,” and wants it dismissed with “punitive cost”.
The affidavit in opposition deposed to by Akoto Ampaw, a leading member of the petitioners’ legal team said when the court gave firm orders as to the mode of trial, Tony Lithur, lead counsel for President Mahama even tried to urge the court to consider varying its order by asking the petitioners to file their affidavit and conclude their case before the respondents could follow suit but he (Lithur) failed to convince the court.
He said “in any event, I say in answer to the application that the novelty of this proposal cannot find support whether directly or by analogy in any rule of law, procedure or practice.”
The petitioners counsel said the 2nd respondent (EC) and other respondents “have a clear indication of the case of the petitioners, especially following the detailed particulars that the respondents applied to the court and obtained from the petitioners.
“It is the contention of the petitioners that the 2nd respondent may well apply to have the instant petition struck out for want of a reasonable cause of action.”
Counsel said in the absence of any such application, “the respondent, in keeping with the principles of justice and fair play, are under an equal duty to provide an indication of the nature of the case it intends to rely upon.”
The petitioners’ counsel held that an election petition, especially a presidential election petition is of “utmost importance for not only the contending litigants, but for all political parties, the electorate and indeed Ghanaians as a whole.”
Mr Akoto Ampaw said as a public constitutional body established and mandated to conduct public elections in accordance with the Constitution and the law, the EC ought to welcome the opportunity of demonstrating to all Ghanaians that the public trust was one that it had carried out ‘scrupulously’, in good faith and fairly in accordance with the Constitution and the law.
Emerging Issues
It was expected that once the petitioners successfully filed the affidavit, the respondents including President Mahama, as 1st respondent, EC 2nd respondent, and the National Democratic Congress (NDC) which later joined the petition as 3rd respondent, were given five days ending on Friday, April 12, to file their respective affidavits.
However, it remained to be seen whether the nine-member panel would accede to the commission’s request which when granted would change the mode of trial completely.
The nine-member panel, chaired by Justice William Atuguba, in setting out the mode of trial, made it clear in the ruling that it was only the petitioners and the respondents who could give oral evidence at the trial and that anybody wanting to testify could do so through an affidavit.
This directive had come to scuttle the threat by some of the parties, particularly the first respondent, President Mahama that he was going to unleash a multitude of witnesses on the court, running close to 5000.
The court, on April 16, will look at two key issues namely: Whether or not there were constitutional/statutory violations in the nature of commissions, malpractices and irregularities in the conduct of the Presidential Election held on December 7 & 8, 2012, and whether or not the violations, commissions, malpractices and irregularities affected the results of the election.
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