It’s judgment day - Supreme Court to affirm Akufo-Addo or order run-off

The 2020 presidential election petition will reach a climax today when the Supreme Court delivers its judgment.

It is expected to be a judgment that will either affirm or shoot down the Electoral Commission (EC’s) declaration of President Nana Addo Dankwa Akufo-Addo as the winner of the December 7, 2020 presidential election and the constitutionally elected President of the Republic of Ghana.

Depending on how the judgment goes, Ghanaians will also know whether or not the seven -member panel of the apex court, presided over by the Chief Justice, Justice Anin Yeboah, will grant the main thing the petitioner — former President John Dramani Mahama — is seeking, which is for the court to order the EC (first respondent) to conduct a run-off between him (Mahama) and President Akufo-Addo (second respondent).

The Chief Justice will be joined by the other panel members - Justices Yaw Appau, Samuel K. Marful-Sau, Nene Amegatcher, Professor Nii Ashie Kotey, Mariama Owusu and Gertrude Torkornoo, in pronouncing the court’s decision.

The numbers

Former President Mahama filed the petition on December 30, last year.

Per the Supreme Court Rules (Amendments), 2016 (C.I 99), the petition was to have a lifespan of 42 days.

However, with the judgment coming on today, it means the petition travelled for 64 days.

During these 64 days , the court sat on 17 occasions to hear the respective arguments of the lawyers for the parties (Mahama, the EC and Akufo-Addo).

The petitioner called three witnesses to buttress his case.

They were Mr Johnson Asiedu Nketiah, the General Secretary of the National Democratic Congress (NDC); Dr Michael Kpessa Whyte and Mr Robert Joseph Mettle-Nunoo (the two representatives of the NDC in the EC’s strong room)

The two respondents — the EC and President Akufo-Addo — decided not to call any witness and urged the court to decide the case on the strength of the petitioner’s case.

Also, during the course of the hearing, the petitioner filed nine applications out of which he won one and lost eight.

The only application upheld by the court was his application for the court to allow him to amend his petition.

The eight applications that were lost included interrogatories, objection against the EC’s decision not to adduce evidence, permission to reopen the petitioner’s case and three review applications challenging the court’s decision to dismiss the first three mentioned applications.

The rest were permission for the petitioner to file a supplementary statement of case, and another one seeking permission to inspect some original documents from the EC.

Cause of action

When the highest court of the land delivers its judgment today, it will be answering the five issues it set out for determination in the petition.

After the determination of the five issues, the court will then give its consequential orders.

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

This particular issue goes to the heart of the petition and deals with the foundation upon which the petition was filed.

It was the basis upon which the respondents (the EC and President Akufo-Addo) filed preliminary legal objections urging the court to dismiss the petition from the onset and not even go into its merits.

The court in its wisdom, however, decided to consider the preliminary legal objections in its final judgment, and allowed the petition to be heard.

A determination of the first issue will lead the court to also examine if the petitioner has properly invoked its jurisdiction to adjudicate a presidential election petition as set out in Article 64 (1) of the 1992 Constitution.

Lawyers for the petitioner contended that the petition disclosed reasonable cause of action because the petitioner alleged constitutional breaches by the Chairperson of the EC, Mrs Jean Adukwei Mensa, and in their estimation, invalidated the results that she declared.

On the other hand, President Akufo-Addo has argued that the petition raises no reasonable cause of action on the grounds that Mr Mahama was attacking the declaration on December 9, and not the actual election process that took place in the 38,622 polling stations.

They contend that for a presidential election petition under Article 64(1) to succeed, the petitioner must challenge the validity of the actual elections (voting, counting and collation) at the polling stations, and then lead evidence during the trial to show how the alleged infraction materially affected the outcome of the election.

“A challenge to the declaration of a person as President is not an election petition,” they argued.

For the EC, the petition raises no cause of action on the basis that the facts contained in the petition do not even support the petitioner’s claim that President Akufo-Addo did not meet the constitutional threshold to be declared as President-elect by the EC.

50 per cent threshold

The second issue for determination by the court is “whether or not based on the data contained in the declaration of the first respondent (EC) of the 2nd respondent (Akufo-Addo) as President-elect, no candidate obtained more than 50 per cent of the valid votes cast as required by Article 63(3) of the 1992 Constitution.”

This issue is tied with the third issue - “whether or not the second respondent (Akufo-Addo) still met the Article 63(3) of the 1992 Constitution threshold by the exclusion of or inclusion of the Techiman South Constituency.

The two issues are the centrepiece of the petition.

Former President Mahama argues that per the figures used in the declaration by the Chairperson of the EC on December 9, none of the 12 candidates, including him and President Akufo-Addo, got more than 50 per cent of the valid votes to be declared as President -elect.

Per the calculations done by the petitioner in the petition, taking into consideration the results from Techiman South, he (Mahama) got 46.768 per cent, while President Akufo-Addo got 49.625 per cent of the valid votes.

The EC and President Akufo-Addo have rejected the assertions in what they described as “strange calculations” by the petitioner.

They argue that the figures declared by the Chairperson of the EC on December 9, with or without the results of Techiman South, clearly put President Akufo-Addo over the 50 per cent threshold, and make him the validly elected President of Ghana

Constitutional

With regard to the fourth issue, the court will determine “whether or not the declaration by the first respondent (EC) dated the 9th of December, 2020 was in violation of Article 63 (3) of the 1992 Constitution.

Former President Mahama argues that none of the 12 candidates got more than 50 per cent of the total valid votes, and therefore the EC’s declaration that President Akufo-Addo won was in breach of Article 63(3) of the 1992 Constitution.
Article 63 (3) of the 1992 Constitution stipulates that to be declared a President-elect , a candidate must obtain more than 50 per cent of the total valid votes.

However, the two respondents are of the contention that President Akufo-Addo clearly passed the 50 per cent threshold and therefore the EC had not breached Article 63 (3) of the 1992 Constitution.

Vote padding

The last issue deals with vote padding as alleged by the petitioner. The court will determine if the alleged “vote padding and other errors complained of by the petitioner affected the outcome of the presidential election results.”

The petitioner makes a case that the EC reduced some of his votes in favour of President Akufo-Addo.

This has been refuted by the two respondents.

They argue that there was no vote padding, and even if there was as alleged by the petitioner, it did not affect the outcome of the results.

Writer’s email: emma.hawkson@graphic.com.gh