The main opposition National Democratic Congress (NDC) has wondered if the New Patriotic Party (NPP) would have been happy had Dr. Kwadwo Afari-Gyan elected not to testify in the 2012 election petition in which Nana Akufo-Addo challenged the presidential results at the Supreme Court.

A member of the NDC’s communication team, Mr. Twum Barima, posed the question on Class91.3FM’s current affairs programme ‘The Watchdog’ hosted by Eugene Bawelle after a member of President Nana Akufo-Addo’s legal team in the ongoing election petition, wondered why Mr. Mahama was not happy that the first respondent in the case, Electoral Commission Chair Jean Mensa, has elected not to testify in the matter.

Nana Adjoa Adobea Asante had told the show that: “The petitioner should actually be happy and we still don’t understand why the petitioner is not happy that ‘you have adduced evidence, we are not going to adduce any evidence to poke further holes in your evidence but you are not satisfied’”.

She added: “We are a bit surprised that the petitioner is not happy that the first and second respondents do not want to adduce any form of evidence and that is why it is very important to remember what the court said: the strength of your case is not based on the weakness of your opponent’s case”.

“It is a tried principle of law that you cannot use your opponent to prove your case”, she stressed.

On Thursday, 11 February, the seven-member panel of Justices ruled, unanimously, that the EC Chair cannot be forced to testify against her will.

The legal team of Mr. Mahama, led by Mr. Tsatsu Tsikata, prior to the ruling, had put up a spirited legal fight through arguments to attempt to convince the judges to sway their gavel in their favour but to no avail.

Rather, Adobea Asante recalled, the court “reminded the petitioner that the onus of proof, the burden of proof, lay on the petitioner and not on the first or second respondent,” insisting: “So, you have brought us to court, you are the one who gave evidence first, you have given your evidence, you should believe that you have proven your case and on the preponderance of the probability that the judgment will be in your favour”.

“But you cannot seek to rely on the evidence that you want the first respondent to give, to prove your case,” she told Bawelle.

Advancing a counter-argument on the same show, Mr Twum Barima, said: “I have a different opinion to what my learned friend just said when it comes to whether we should not be happy because the first respondent in this matter has decided not to give any evidence to the court and that by virtue of that if it doesn’t harm our case, why are we not OK, why are we not happy?”

“I wish to give a comparative question: in the sense that: can we say that the NPP would have been very happy if Dr. Afari-Gyan had not mounted the witness box in 2013?” he asked.

“The answer is capital no”, he said, explaining: “Because the issues that were under determination which they [Akufo-Addo and the NPP] raised in 2013, the only way the court could understand – don’t forget, inasmuch as the court is going to give a ruling on the issue, the court, as they are there, they are learning; that is why they are keeping note of everything that you are saying because when it comes to elections, excuse me to say that we don’t go to the election grounds or field or the strong room with our judges. So, the time that they get to know what really happened is where we are telling them what really happened.”