Care for free and fair elections Ghana (CARE GHANA) has described as worrying, attempts by the first respondent(Electoral Commission)’s counsel to prevent its chairperson, Mrs. Jean Mensa from mounting the dock for cross-examination in the ongoing election petition.

The supreme court will today, Tuesday, 9 February 2021, consider legal arguments from both sides and rule on whether it is appropriate for the first and second respondents in the ongoing presidential election petition to close their cases without subjecting their witnesses to cross-examination, despite the fact that they had filed their witness statements.

In the court on Monday, 8 February, the Electoral Commission’s lawyer, Mr. Justin Amenuvor, closed the EC's case, indicating that his side is no longer interested in calling any witnesses in the matter.

Mr Akoto Ampaw, the lead counsel for President Nana Akufo-Addo, the second respondent, also took a similar stance.

However, the lead counsel for former President John Mahama, the petitioner, opposed the arguments adduced by the first respondent for deciding against calling a witness.

Mr Tsikata argued that: “It is our respectful submission that counsel for the first respondent that not have it opened to him to take the course that he just proposed to this court. Order 36 Rule 4(3) that he referred to, specifically says: ‘Where the defendant elects not to adduce evidence’. In this proceedings, the defendant has put in a witness statement.”

“The election that they made to submit the witness statement to the court, is a clear indication that they made an election to the contrary because My Lords, in these proceedings, at the point of case management, Your Lordships basically asked questions from all parties as regards witnesses being called and it is at the point of case management where such an election is notified to the court.

“At that point, they elected to submit a witness statement. Now, that witness statement is not yet in evidence; that is true, but this is referring to an election; the point of the election came at the point of the case management and we are respectfully submitting that this witness cannot run away from cross-examination when they have elected,” he argued.

CARE Ghana, in a statement issued on Tuesday, 9 February 2021, said that if the EC Chairperson does not testify in court, “it would appear as though the Electoral Commission has something to hide.”

“With esteem reverence for the Apex Court and without prejudice pending case, we wish to state that the decision of Counsel for the Chairperson of the 1st Respondent, Madam Jean Mensah on whose behalf and in whose name a witness statement was filed and not any other representative from the 1st Respondent’s outfit not cross-examined by the Petitioner’s Counsel would make it appear as though the Electoral Commission has something to hide.

“A perception which will further cast a huge slur on the credibility of the Electoral Commission (EC) as well as the integrity, legitimacy and fidelity of the outcome of the 2020 elections. A perception which with all intends and purposes is unfair to both Petitioner, the 2nd Respondent and the country as a whole,” the statement added.

It continued: “It can be recalled that the 1st Respondent throughout the hearing thus far has vehemently resisted all attempts at getting the EC to respond to issues that certainly would have helped clear some doubts in the minds of the general public. First was the issues of the interrogatories, second was the issue concerning discoveries and now refusal to be cross-examined.

“The current matter is not like mere civil suit between private parties. It is a constitutional matter whose outcome is far-reaching beyond just the Parties involved. The EC is a public institution and critical one at that when it come to our democratic dispensation.

The Chairperson of the Electoral Commission occupies a public office, not a private one, she was not just requested to testify on certain matters of private interest but called to account for her stewardship to the public whose taxes fund the EC and pay her emolument. She is testifying to matters bothering on the performance of a public officer which the public has the right to know the truth,” it further stated.

CARE Ghana also alluded to the 2012 Election petition, when the then EC Chairperson, Afari Djan mounted the witness box in court and underwent cross-examination, thereby urging Mrs Jean Mensa to emulate.

“We refer to the electoral reforms that resulted from the 2012 Presidential Election Petition most of which were occasioned by the testimonies of Dr. Afari Djan, the then Chairperson of the EC and encourage Madam Jean Mensah to follow that precedence in the interest of the public”.

The group further intimated that “CARE” Ghana is least interested in who won the election or who lost, our only and overriding interest is the credibility of the electoral process which we think has been an issue even periods preceding the elections that is why we find this current development howsoever legally strategic it may be is going to dealt a heavy blow on the credibility of the EC going forward”, adding that: “It is on the bases of the foregoing reasons that we call on the EC and its Legal team to reconsider their position and get the 1st Respondent to testify to her witness statement by way of cross-examination”.

Read full statement below:

FOR IMMEDIATE RELEASE

PRESS RELEASE

9th February 2021

THE ATTEMPT BY CHAIRPERSON OF THE ELCTORAL COMMISSION TO AVOID CROSS-EXAMINATION WORRYING – CARE FOR FREE AND FAIR ELECTIONS GHANA.

Care for free and fair elections Ghana (“CARE” GHANA) has followed keenly the ongoing 2020 Presidential Election Petition hearing and as a body interested in the credibility of Ghana’s electoral system, it came as a surprise to us when at the close of the Petitioner’s case yesterday Counsel for the 1st Respondent indicated that they were not going to produce their witness for cross-examination.

With esteem reverence for the Apex Court and without prejudice pending case, we wish to state that the decision of Counsel for the Chairperson of the 1st Respondent, Madam Jean Mensah on whose behalf and in whose name a witness statement was filed and not any other representative from the 1st Respondent’s outfit not cross-examined by the Petitioner’s Counsel would make it appear as though the Electoral Commission has something to hide. A perception that will further cast a huge slur on the credibility of the Electoral Commission (EC) as well as the integrity, legitimacy and fidelity of the outcome of the 2020 elections. A perception which with all intends and purposes is unfair to both Petitioner, the 2nd Respondent and the country as a whole.

It can be recalled that the 1st Respondent throughout the hearing thus far has vehemently resisted all attempts at getting the EC to respond to issues that certainly would have helped clear some doubts in the minds of the general public. First was the issues of the interrogatories, second was the issue concerning discoveries and now refusal to be cross-examined.

The current matter is not like mere civil suit between private parties. It is a constitutional matter whose outcome is far reaching beyond just the Parties involved. The EC is a public institution and critical one at that when it come to our democratic dispensation. The Chairperson of the Electoral Commission occupies a public office, not a private one, she was not just requested to testify on certain matters of private interest but called to account for her stewardship to the public whose taxes fund the EC and pay her emolument. She is testifying to matters bothering on the performance of a public officer which the public has the right to know the truth.

We refer to the electoral reforms that resulted from the 2012 Presidential Election Petition most of which were occasioned be the testimonies of Dr. Afari Djan, the then Chairperson of the EC and encourage Madam Jean Mensah to follow that precedence in the interest of the public.

“CARE” Ghana is least interested in who won the election or who lost, our only and overriding interest is the credibility of the electoral process which we think has been an issue even periods preceding the elections that is why we find this current development howsoever legally strategic it may be is going to dealt a heavy blow on the credibility of the EC going forward.

It is on the bases of the foregoing reasons that we call on the EC and its Legal team to reconsider their position and get the 1st Respondent to testify to her witness statement by way of cross-examination. We wish to reiterate that winning the ‘credibility battle’ is worth more than winning the ‘legal war’ as the credibility battle could be much more protracted and destructive.

Thank You

Signed

David Kumi Addo