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Opinions of Monday, 15 February 2021

Columnist: Dr. Samuel Adjei Sarfo, Esq.

The court’s order will not be circumvented, the petitioner will lose

The Supreme Court of Ghana The Supreme Court of Ghana

A court has the duty to ensure that its orders are effectively carried out; and it will therefore not entertain any action or motion that contradicts its prior orders and render them a nullity. It is also a legal mantra that the law cannot be construed to lead to an absurd consequence. A court will not contradict its order just because a party varied its motion and labelled it as something else. There ought to be consistency in the rulings of the court.

With this in mind, it is a frivolous posture for Petitioner’s counsel to attempt to upend the order that says that the Electoral Commissioner cannot be compelled to testify. That order was a unanimous decision of 9-0, and with this, any sane lawyer will not conceive of, let alone attempt to, use a backdoor approach to seek a contradictory opinion of the court’s decision.

This will amount to mocking the law lords by presenting a frivolous and vexatious motion aimed at making the court a laughingstock. And it is one more contumacious and brazen posture which Petitioner’s counsel has taken. In these particular proceedings, he has taken several equally reckless routes for which this case should have been shut down. But as I suspect, the law lords have shown themselves to be rather intimidated, mollified or confused by him.

The counsel for Petitioner is a lawyer who belongs to the museum as a relic and an artifact of a bygone era. If he had a modicum of modern currency, he should be able to predict the outcome of this strange subpoena filed before the lords and tell easily that it will be peremptorily thrown out, just as his motion to compel the Electoral Commissioner to testify was easily trashed. The simple reason being that it is indeed a Siamese motion with identical characteristics and outcome. But he must go forth with his stark frivolity to impress and become relevant? I don’t know.

But what I do know is the equally frivolous and ill-conceived invocation of the prevailing fallacy that the Petitioner himself should also be subpoenaed to mount the witness box. That kind of fallacy of equalization exposes the Respondents as being equally oblivious of how the procedure works. So what are these clueless lawyers hoping to achieve by that ridiculous peroration, and what rule says that Petitioner is required to reopen its case which it has concluded? And to whose advantage is this open and shut case going to serve if John Mahama indeed mounts the witness box? Or all this has now become a circus show of who can be allowed to humiliate a witness through cross examination?

The Respondent’s cackle of unsound threat is a testimony that they were praised too early for being competent because they are equally dumb. They should seek to argue the merits of a court allowing its orders to become nullified through a non-existent procedure rather than replicating that non-existent procedure to create a circus.

As this case stands, the matter has virtually ended and the Respondent’s have already won. What remains is just the simple summation of what has happened throughout the proceedings; to wit the presentation of the closing arguments.

In this context, the Respondents have not much to do except to demonstrate that Petitioner has not proved any matter to demonstrate that the Respondent did not get to 50%+1 vote; or that the First Respondent engaged in a concatenation of shenanigans to pad the Second Respondent’s votes to the point where it substantially varied the outcome.
And what is the Petitioner going to sum up in his closing argument?

That it has a hunch that the votes were rigged? Or that it “believes” that somehow, Akufo-Addo did not get to the magical number of 50% +1 votes to win the election? Or that the fraud was perpetrated because the Electoral Commissioner induced the NDC observers with a cup of tea and biscuits to leave the Strongroom on an errand to chase the wind and whirlwind? What will be the Petitioner’s summary of the case in his closing argument?

So this case is rather an open and shut one and non-quisquous: It has a foreseeable outcome; and both sides know how the outcome will be: It will be a 9-0 unanimous decision against the Petitioner. And thereafter, the ancillary question will forever be, “What was all the hullabaloo about?” Maybe the only residual benefit would be that if the Petitioner had not proceeded to court, there would still be a lingering question as to whether or not Akufo-Addo truly won the election.

But by his hollow hortatory, he would have instigated some doubts and confusion and garnered some sympathy for his cause. He went to court to obviate these lingering doubts!

There is a mantra in the good book that better shut up for people to wonder whether you are a fool than to speak up and remove all doubts. Petitioner has removed all doubts!

The question remaining is what has to be proven as a threshold for anybody to challenge an election. Is it through a belief, faith or hallucination? The court should establish a threshold as an initial mesh to filter whether the plausibility exists for any suit to challenge the results of a presidential election.

This is because everything that has happened in the Supreme Court is a huge joke at a huge cost; and a serious country cannot bear the burden of expensive jokes.
In the end, very high costs should be assessed against Petitioner to serve as a deterrent for any future vexatious and frivolous and unmeritorious lawsuit such as the one we have just witnessed.