Election Petition: Mahama to seek review of ruling preventing cross-examination of Jean Mensa

The legal team for John Mahama, the petitioner in the election petition case, has served notice of seeking a review of the Supreme Court’s ruling on a decision by the Chairperson of the Electoral Commission not to mount the witness box.

Legal representatives of the petitioner said, they are in disagreement with the apex court’s decision and will therefore use the lawful means to have the EC Chair testify in the case.

The Supreme Court on Thursday, February 11, 2021, in a unanimous decision, upheld an application by the two respondents –the Electoral Commission and President Nana Akufo-Addo– not to have their witnesses testify.

Addressing the media, however, a spokesperson for the petitioner, Marietta Brew Appiah-Oppong while confirming the legal team’s subpoena application also gave an indication that their side will file a review motion on the ruling to have Jean Mensa dragged into the dock and be cross-examined on the declaration of December 7 polls which is being disputed.

“We disagree. 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 of 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.

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, 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.

Already, John Mahama’s [petitioner] counsel, Mr. Tsatsu Tsikata has told the court he is unhappy with the ruling and is, therefore “applying to reopen our case, and on that basis, we are issuing a subpoena addressed to the chairperson of the Electoral Commission of Ghana.”

The Ruling

The bench disagreed with the arguments of the counsel for the petitioner that the respondents especially the Electoral commission by virtue of filing a witness statement had elected to adduce evidence.

According to the Justices, suggestions made of providing clarification during cross-examination in some affidavits by the Respondents do not in any way compel Jean Mensa to mount the witness box.

Making known the reasons for the decision, Chief Justice, Kwasi Anin Yeboah indicated that Tsatsu Tsikata failed to point to any rules or cases when he argued that the Electoral Commissioner should be compelled to adduce evidence by virtue of her constitutional duty in the conduct of elections in Ghana.

“We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law. We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a president. Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner to order the respondents to enter the witness box to be cross-examined. Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition,” he ruled.