Lawyers of the Electoral Commission (EC) who have fought tooth and nail to keep Jean Mensah from the witness box in the ongoing petition hearing at the Supreme Court over visibly worrying numbers declared as Presidential result for the 2020 elections have admitted to making mistakes with the numbers.
Former President John Mahama’s case is that a run-off is required since no candidate in the December 7, polls obtained 50 per cent valid votes cast.
He insisted that in addition to fundamental constitutional infractions committed by the Returning Officer of the Presidential Election, Jean Mensa, the figures announced in the declaration on December 9, 2020, no candidate got more than 50 per cent of the valid votes cast.
But the lawyers, said despite the mistakes, it was unfortunate that they were dragged to court by the NDC’s 2020 Presidential Candidate.
According to them, the harmless mistake made by EC boss, Jean Mensah, while declaring the election results on December 9, had no bearing on the outcome of the election which has triggered the petition.
They further stated that the former President has failed to provide any evidence whatsoever to challenge the election results and for that matter, the declaration of the result and hence, they are calling on the court to dismiss the petitioner’s case.
The submission is contained in the written closing address filed by the lawyers in compliance with the Supreme Court’s orders.
The Apex court on Monday announced it will deliver judgment on the election petition on Thursday, March 4.
Mr Mahama, had filed a petition rejecting the election results as declared on December 9, stating that none of the candidates who contested the December 7 polls, including himself met the constitutional threshold of obtaining more than 50percent of the valid votes cast.
The Electoral Commission and President Akufo-Addo, were named as respondents in the petition as required by law.
The former President’s lawyers in the course of the trial served the EC with a document asking that it admits certain facts, including that its chairperson announced 13.4 million as valid votes cast, while handing President Akufo-Addo, 6.7 million votes.
They say the failure of the EC to admit or rebut these facts within 14 days as required by law means the facts have been admitted.
Admission of these facts they argue means President Akufo-Addo, did not obtain more than 50percent of the votes cast. They are therefore urging the Supreme Court to on March 4, to direct the EC to organise a run-off between President Akufo-Addo and Mr Mahama.
Mr Mahama, in his closing address filed by his lawyers, insisted that as a constitutional consequence, a run-off election would be required.
He argued that the evidence from the terms of the declaration and the consideration that the EC Chairperson said was the basis of the declaration reveals that “Nana could only be credited with 49.625 per cent of the votes at the time.”
Mr Mahama said, “The fact that he did not indicate in his Petition what he or the other candidates should have obtained compared to numbers declared by the EC, does not mean that the declaration by the EC Boss is constitutional.”
According to him, his own figures are “not relevant to determining whether that claim is well-founded or not.”
The petitioner invited the court to take judicial notice of the fact that ahead of the December 7, 2020 elections, political parties were urged not to seek to announce results based on figures they had collated, but to wait for the official declaration of the EC Boss as the returning officer for the Presidential Election.
He explained that the EC under provisions of Articles 43-54, 56 (7), 63 and 65 of the Constitution and CI 127 is charged with the conduct of the Elections.
Mr Mahama said “the starkly untenable nature of the claim that the petitioner should have put towards his own figures is put in sharp relief when it is recalled that, by virtue of Article 64 (1) of the Constitution, any citizen of Ghana can present a petition challenging the validity of the election of the president.
A citizen, in bringing such a challenge, would not be required to indicate the exact number of votes that candidates ought to have obtained. Being a candidate does not change the qualification for bringing such a Petition and cannot require more than any other citizen.”
He recalled that “No one is asking Nana Addo to bring his figures or the number of votes he and other candidates got, nor indicated his figures in this petition since that would have no relevance in the court before the court.”
Accordingly, the Petitioner discharged the burden of proof that was on him.
The Petitioner avers that “the unsigned press statement was not only correcting the alleged wrong total valid votes cast figures announced by Mrs Jean Mensa in her declaration on December 9, 2020.
She also went on to adjust the votes obtained by candidates Mahama and Akufo-Addo as declared for them on December 9, 2020. Votes of other candidates were also adjusted.”
All this, Mahama said it was done outside the framework provided by CI 127 and particularly, without the involvement of the agents of the candidates, contrary to the requirement of Articles 49 (2) and (3) of the Constitution and Regulation 44 (10) of CI127.
“Paragraph 29-30 of the amended Petition are very clear on how the Press Release issued on December 10, 2020, compounds the lack of transparency, fairness and candour of the 1st Respondent (EC) in the ever-changing figures,” the Petitioner said.
Also, he said the figure in the purported “correction” as to the total valid votes cast was itself repudiated by the first Respondent (EC) by the time the answer to the Petition was filed on January 9, 2021.
“It defied logic that the 1st respondent (EC) issued a “correction” on 10th December 2020 to a figure which is now claimed to have been the actual figure purported on Form 13 on December 9, 2020.”
Mr Mahama said “in the midst of changing figures of total valid votes cast as well as votes of individual candidates, it simply cannot be said that the overall results on Form 13 were not affected, especially when the figures claimed to have been form 13 are different from figures in the “correction” on December 10 2020.”
He contended that there were discrepancies in figures provided for candidates of other parties and “the material increase of Akuffo-Addo whiles at the same time materially reducing the votes of the Petitioner clearly requires explanation.”
The former president said fundamentally, there was no evidence from the EC on the basis of which any of its contradictory claims could be accepted as “the truth.”
He held that attempt to “effect a correction by an unsigned press release is wholly untenable.”
According to the Petitioner, the testimony of the three witnesses for the Petitioner showed clearly not only the breach of the duty to be fair and candid under Article 23 of the Constitution but also the lack of due process in terms of Article 296 of the Constitution.
He submitted that when matters of breaches of the Constitution or of Statute arose before a court there was an urgency about addressing those breaches.
Mr Mahama said the conduct of the EC Chairperson in sending the agents of a major candidate who should have been present in the resolution of the outstanding issues leading to the declaration and “immediately going ahead to make the declaration without even the required steps under the Regulation 44(10) were self-evidently unreasonable.”
Interestingly, the lawyers for President Akufo-Addo urged the Supreme Court to dismiss the case filed by the 2020 NDC presidential candidate saying Mr. Mahama’s case actually proves that Akufo-Addo met the constitutional requirement of obtaining more than 50% of the valid votes cast.
This submission is contained in the written closing address submitted to the Supreme Court.
President Akufo-Addo’s lawyer argued that the testimonies by Mr. Mahama’s witnesses demonstrate clearly that the President won the polls.
Reference was made to the cross-examination of NDC General Secretary Johnson Asiedu Nketia by lead counsel for the President, Akoto Ampaw.
“Akoto Ampaw – I am saying that from the declaration in the video clip that we just saw, which really is the basis of all your case, and you should know what is in it, the total number of valid votes that the 2nd respondent obtained is6,730,413?
Asiedu Nketia – That is correct my Lords.
Akoto Ampaw – The total number of valid votes that the petitioner obtained from the declaration announcement, your Exhibit ‘A’, is 6,214,889?
Asiedu Nketia – That is so my Lords.
Akoto Ampaw – And I am also putting it to you that if you do a sum of all these valid votes…Can you tell the court what is 6,730,413 as a percentage of13,121,111?
Asiedu Nketia – My Lords, it is 51.29453 ad infinitum. So it can be rounded up to 51.295%
Akoto Ampaw – So 51.295%, not so?
Asiedu Nketia – Yes.
Akoto Ampaw – What about the petitioner, his total valid votes are 6,214,889. What is this sum as a percentage of 13,121,111?
Asiedu Nketia – It is 47.365569 ad infinitum. So it can be rounded up to 47.366.
Akoto Ampaw – So you admit that from the Chairperson of 1st Respondent’sdeclaration on 9th December, 2nd respondent crossed the more than50% threshold?
Asiedu Nketia – From the declaration as announced.…
Akoto Ampaw – From the figures that we just calculated, these figures which were announced, if you do them as a percentage of the actual total valid votes, these are the percentages you get for the petitioner and the2nd Respondent. That is what I am putting to you?
Asiedu Nketia – Well, if the figures are correct, yes.”
The President’s legal team, says this admission shows the petitioner “has made much ado about nothing of the fact that in announcing the total valid votes cast, the Chairperson of the EC stated a wrong figure of 13.4 million. “.
The lawyers say “This petition is an industry in futility. It has been designed, built, and furnished with lazy labour of facts and evidence that seek to attack the electoral choices of the people of Ghana.”
Meanwhile, ”on why NDC should have brought its own figures, the response of the legal team of the petitioner is that Mr Mahama, had proceeded to court on the basis of the declaration made by the Returning Officer for the election, Chairperson of EC, Mrs. Mensa, she gave certain figures as the basis for the declaration she was making.
The Petitioner says, based on those figures, the declaration she made is unconstitutional. As it turns out, the EC itself has, in an unsigned press release, admitted errors. They decided not to testify to the court about those errors. They decided not to testify at all! How can the court determine there were errors without their evidence?
What is also strange is that the number they put out in their “correction” on 10th December for total valid votes cast is not the figure they are giving in their Answer as the figure for total valid votes cast! How can that be? Yet they will not give evidence to explain what exactly is the right figure.
The Chairperson did not before making the declaration do what she was required to do under Regulation 44(10) of C.I. 127 of doing the assembling and collating of the material from the Regional Collation Centers so as to establish what the correct figures were for making a declaration.
Counsel for the EC acknowledged she was out of the office for three hours while Rojo Mettle-Nunoo was waiting for her. So she returns to the office, meets Rojo and admits there are issues, tells Rojo he and his colleague should go and meet their candidate with the indication she is ready to meet their candidate herself and undertakes not to make a declaration before they return- she would even send a dispatch rider to help them get back quickly- and, by the time the two agents get to the candidate to brief him about the discussion with the EC Chairperson, there she is on TV making the declaration. If that conduct is not outrageous chicanery what is?
The Constitution does not allow public officials to act like that -Articles 24 and 296. NDC bringing out different figures is totally irrelevant to the serious matters before the Supreme Court”.
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