Ghanaians will, this morning, be treated to a “battle of legal wits” at the Supreme Court when four lead counsel in the presidential election petition meet to lock horns to justify why President John Dramani Mahama should or should not be maintained as President of the Republic.
The addresses will focus on protecting the interests of the petitioners who want President Mahama deposed on the strength of the 1992 Constitution and that of President Mahama, who was declared winner of the December 7 and 8, 2012 presidential poll.
Lawyers for the conductor of the polls, the Electoral Commission (EC), and the National Democratic Congress (NDC) will pray the court to affirm the EC’s declaration of President Mahama as the winner of the presidential election, while counsel for President Mahama will also seek to implore the court to maintain the status quo.
Barring any last-minute hitches, the oral advocacy will mark the last legal hurdle to pave the way for the delivery of the court’s judgement in the presidential election petition.
It is not clear which of the four lawyers will first address the court, but each will have 30 minutes to orally address the nine-member court, presided over by Mr Justice William Atuguba.
Other members of the panel are Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Constance Rose Owusu, Mr Justice Jones Dotse, Mr Justice Anin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
Importance of addresses
Messrs Philip Addison, James Quashie-Idun, Tony Lithur and Tsatsu Tsikata, lead counsel for the petitioners, the EC, President Mahama and the NDC, respectively, are expected to engage the court in their addresses.
Courts are usually addressed after evidence has been led in a civil or criminal case. Addresses are not compulsory, but the interest of a client can gravely be injured if a lawyer fails to address a court on issues raised during trial.
In this particular case, the addresses will focus on why votes should or should not be annulled due to over-voting, voting without biometric verification, some presiding officers not signing pink sheets (statement of poll and declaration of results form for the office of president) and some pink sheets having duplicate serial numbers.
Aside from the reliance on striking and relevant issues that may strengthen their cases, the lawyers are expected to respond to one another’s filed addresses during the oral argument.
In arriving at its decision, the court will take into account evidence before it, apply the 1992 Constitution and other statutes, as well as take into account both local and foreign authorities.
The case of the parties
The petitioners — Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the National Chairman of the New Patriotic Party (NPP), Mr Jake Otanka Obetsebi-Lamptey — have alleged gross and widespread irregularities at 10,119 polling stations across the country.
They have argued that Nana Akufo-Addo should have been validly declared President on December 9, 2012 because he obtained 4,0157,12 valid votes, representing 56.85 per cent, while President Mahama benefitted from 2,622,551 votes, representing 41.79 per cent of the valid votes cast in the 2012 election.
But the respondents have denied those claims.
To buttress their claims, the petitioners have filed a 176-page address to justify the annulment of votes at the 10,119 polling stations, while the President, the EC and the NDC have filed 84, 15 and 69-page addresses, respectively, to plead with the court to maintain the said votes on the grounds that the petitioners failed to prove the allegations.
Documents before the court
Apart from the record of proceedings, each of the justices has a copy of the total of 344-page addresses, with accompanying appendices, from the parties.
The court also has in its custody five volumes of the KPMG report on the audit of the pink sheets submitted by the petitioners.
The firm presented its report on June 24, 2013.
At the same time, more than 407,000 documents, including pink sheets, sworn affidavits from witnesses of the parties, as well as other relevant documents to assist in the determination of the petition, are also before the court.
Issues for determination
Following a stalemate by the parties on issues to be set out for trial, the court, on April 2, 2013, set out two issues for determination — whether or not there were statutory violations, omissions, irregularities and malpractices in the conduct of the elections, and whether or not the said violations, omissions, irregularities and malpractices (if any) affected the outcome of the results of the elections.
The Rules and Onus of Proof
The petitioners brought the petition under Article 64 of the 1992 Constitution; Section 5 of the Presidential Election Act, 1992 (PNDCL 285) and Rule 68 and 68A of the Supreme Court (Amendment) Rules 2012, C.I. 74.
Article 64(1) of the 1992 Constitution provides: “The validity of the election of the President may be challenged only by a citizen of Ghana, who may present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the results of the election in respect of which the petition is presented,” while Article 64(2) says: “A declaration by the Supreme Court that the election of the President is not valid shall be without prejudice to anything done by the President before the declaration.’’
Part VIII of the Supreme Court Rules — Challenge Of Election of President, Rule 68 — provides: “A petition presented pursuant to Clause (I) of Article 64 of the Constitution shall state (a) the full name and address of the petitioner and of his counsel, if any, which shall be an address for service; (b) the grounds for challenging the validity of the election; (c) a statement of the facts relied on to be verified by affidavit, and of the law in support of the petition; (d) the number of witnesses to be called, if any; and by (e) such other matters as the court may determine.”
Petitioners: The decision that this Honourable Court will finally arrive at will have fundamental and far-reaching consequences for the future of democracy in this country.
It will either affirm the commitment of citizens to our democratic journey and bolster their confidence in democratic institutions and the rule of law, or undermine their belief in political and legal institutions of the nation.
It is the respectful submission of petitioners that what all citizens expect from the highest court of the land is the interpretation and enforcement of the Constitution and the law and their application to the evidence adduced in this trial without fear or favour, as the judicial oath of the learned justices of this Honourable Court requires of them.
President Mahama: It is not Petitioner’s case that either 1st Respondent or the voters in all the polling stations where they are seeking to annul votes engaged in any wrongful acts.
To punish voters and or annul the votes cast in all these polling stations would be to punish a large number of voters and deprive them of their inalienable right to choose their President, when they had not engaged in any wrongful act, and especially, had no control over the acts of the election officials.
EC: My Lords, it is submitted that a pink sheet must be read as a whole and when so read, the errors it contains are discernible if one reads the form with the eye of a person desirous of conducting a careful analysis of its content as opposed to the eye of a person looking for errors and blank spaces for a possible harvest of votes for annulment.
NDC: It is our submission that the Petitioners have woefully failed to establish the alleged “irregularities, violations“ etc, nor have they proved that the alleged “irregularities, violations” etc affected the outcome of the 2012 presidential election.
We will make it abundantly clear to this Honourable Court that the case presented by the Petitioners comes nowhere close to discharging the burden of proof that lies on them to establish their allegations and warrant the reliefs they seek from this Honourable Court.
On the contrary, the documentary evidence provided by them and the oral testimony of their witness, the 2nd Petitioner, contains admissions about the results declared which fundamentally undermine the case of the petitioners and confirm the position of the respondents that the elections were conducted freely and fairly and that the results declared by the Chairman of 2nd respondent, namely that 1st Respondent was the winner of the 2012 presidential election, reflected the sovereign will of the people of Ghana and were lawful.