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Opinions of Monday, 6 May 2013

Columnist: Asare, Kwaku S.

Court Observer: Tsatsu's Problem as I See it?

S. Kwaku Asare

Tsatsu Tsikata's cross-examination of Dr. Bawumia was much anticipated and billed as the "thrilla in Accra." Unfortunately, it has turned out to be the "trivia in Accra," with Tsatsu posing non-probative repetitive questions, which the crafty Dr. Bawumia has handled with ease and sometimes even with humor.

Here are the 8 top reasons why Tsatsu has failed to make an impact thus far.

Facts: Tsatsu does not have the facts or evidence needed to address the issues raised by Dr. Bawumia and the petitioners. His client (NDC) has not been accused of anything. It is the Electoral Commissioner (EC) that has been accused of violating the election laws and declaring the wrong person as President. Thus, only the EC can address the issues raised by the petitioners. NDC, and its lawyers, cannot explain why there are Overvotes, GROPAAvotes, under-the-table votes, non-biometric votes, etc.

Witness: He faces a witness who has clearly studied the issues involved in the litigation more than he has. Without any disrespect for Tsatsu, Dr. Bawumia also appears smarter, younger and sharper. Tsatsu is right in describing Bawumia as Dr. Pink Sheet.

Experience: Clearly Tsatsu is not a trial lawyer and does not understand election law. This weakness shines in the courtroom for any careful observer. Further, he has been away from the teaching of law for decades. And when he taught law, litigation practice was not his course. The importance of trial practice in sharpening a lawyer's skills tend to be, as in this assignment, underestimated.

Preparation: Tsatsu lacks preparation. In too many instances, Mr. Lithur (counsel for 1st Respondent) is coaching him on how to ask questions and even something as elementary as how to tender evidence. Preparation matters!

Purpose: Tsatsu's cross-examination is purposeless. Evidence of that is taking over 5 days. Lawyers, who know what they want, go in ask those questions, establish their points very quickly and take their sit. This is Ghana where time has little or no value. Nowhere else will a Judge give a lawyer 5 days to cross examine one witness, when the average trial, in most serious countries, last 5 days. A purposeful cross-examination of Dr. Bawumia should take no more than one day, given the issues.

Assumptions: Tsatsu's assumptions about cross-examinations are almost at the layman's level. Every trial lawyer knows that not every mistake made by a witness is probative. But Tsatsu is spending days pointing out exhibits that have been mislabeled, after Mr. Lithur had spent days on the same issue. In most jurisdictions, the Judge would have said, let us relabel the exhibits and move on! But here we are on the 9th day of talking about labeling, which has nothing to do with the issues.

Etiquette: In cross-examination, you only ask questions that you know or can predict the answers. You get rid of good witnesses as quickly as possible. You quit as soon as you have made your key points. Tsatsu does not know these basics or he has forgotten them. He has asked too many questions that have allowed Bawumia to "score easy goals." He has not recognized that Bawumia is smarter, on the disputed issues, than he is, which has allowed Tsatsu's emptiness to be exposed for 5 days. And he cannot quit because he has not scored any goals (see expectations).

Expectations: Tsatsu is laboring from unreasonable expectations. We create too many luminaries and expect magic from them. Then the luminary puts himself under pressure to meet the unrealistic expectation. Tsatsu is stressed, his questions are laughable, the "got you moment" that he wants for his fanatics has not been forthcoming and he continues to look for that elusive goal.

Tsatsu's problems are epitomized by his repeated attempts to threaten Dr. Bawumia with the possibility of criminal charges for perjury. No professional lawyer will do this and it is surprising that the Justices allow him to get away with it. If a lawyer resorts to such empty threats and needless reminders, it clearly evidences that he has lost the plot!