SUMMARY OF 2021 PRESIDENTIAL ELECTION PETITION AHEAD OF SUPREME COURT RULING

The Supreme Court shall deliver its judgment in the presidential election petition filed by the flagbearer for the National Democratic Congress (NDC) in the 2020 presidential elections, John Mahama on Thursday, March 4, 2021. Hearing of the petition began on January 26, 2021.

At stake in this petition is Nana Akufo-Addo’s first round victory in the elections. According to the certified results declared by the Electoral Commission (EC) on December 9, 2020, President Akufo-Addo won the presidential election with 6,730,587 votes (51.3%) while Mr. Mahama polled 6,213,182 (47.4%). Third party and independent candidates collectively polled 1.339% of the valid votes cast.

However, Mr. Mahama wants the apex court to invalidate the declaration of Nana Akufo-Addo as the President-elect by the EC and order run-off elections for various reasons contained in his petition. Chief among those reasons is the contention that the results declared by the EC on December 9, 2020, which purportedly confirmed Nana Akufo-Addo as President, violated Article 63(3) of the Constitution because at the time of the said declaration, neither him nor Nana Akufo-Addo had obtained more than 50 per cent of the total number of valid votes cast. He also alleges that the EC was ‘unfair’, ‘untruthful’ and ‘unreasonable’ in collating the results of the presidential election because he has evidence of ‘vote padding’ and clerical or arithmetical errors in the collation of the results.

Arguments of Respondents

First Respondent:

The First Respondent in this petition—the Electoral Commission (EC)—in its answer to the petition, largely denied the claims made by the petitioner. The EC said it ‘complied with all the processes and procedures laid down by law for the conduct of the 7th December 2020 Presidential Election with fairness to every candidate and without malice, ill will or bias against anyone’ [para 40 of 1st Respondent’s answer to petition]. The EC provided a detailed account of the entire process for the collation of the presidential results and said that the petitioner’s representatives signed 13 out of the 16 Regional election results summary sheets while representatives of the Second Respondent (President Akufo Addo) signed 15 out of the 16 regional results summary sheets. The EC however admitted that some errors were made during the December 9, 2020 declaration of the presidential results, noting that

in reading out the results on 9th December, 2020, its Chairperson inadvertently read out the figure presenting the total number of votes cast as the figure representing the total number of valid votes, and the percentage of [the President] as 51.59% instead of 51.295%.’ [para 21 of 1st Respondent’s answer to petition]

The EC also conceded that there had been errors in the declaration of the total valid votes. However, the EC took the position that notwithstanding those errors, and in light of the fact that timely corrections had been made after the declaration, ‘the figures converted into percentages showed that the president had obtained more than 50% of the valid votes, which met the constitutional threshold for the Election of President under Article 63(3) of the Constitution. ’ [para 28 of 1st Respondent’s answer to petition]

Second Respondent:

The Second Respondent, President Akufo Addo, in his answer to the petition, raised some preliminary objections to the petition; arguing that the petition should be struck out by the court on grounds that it (the petition) is ‘incompetent, frivolous and vexatious and discloses no reasonable cause of action in terms of article 64(1) of the Constitution’. Counsel for the second Respondent, argued that the petition fails to meet the constitutional requirement for challenging the validity of a presidential election. They also pointed to alleged factual weaknesses in the petition, including the claim in paragraph 13 of the petition that ‘a total of one hundred point three per cent (100.3%)’ is yielded from the percentages announced by 1st Respondent (EC) on 9th December, 2020’.

Pretrial directions

The court, in its pre-trial directions set the issues (questions) for determination of the petition as follows:

Whether or not the petition discloses any reasonable cause of action

Whether or not based on the data contained in the declaration of the 1st Respondent, no candidate obtained more than 50% of the valid votes cast as required by Article 63(3) of the 1992 Constitution

Whether or not the 2nd Respondent still met the Article 63(3) threshold by the exclusion or inclusion of the Techiman South Constituency Presidential election results

Whether or not the declaration by the 1st Respondent dated the 9th of December, 2020, of the results of the presidential election conducted on 7th December 2020 was in violation of Article 63(3) of the Constitution
Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the presidential election results of 2020

The court also decided that its decision on the preliminary objections raised by the 2nd Respondent would be incorporated in its post-trial judgment.

Major events during trial

Throughout the trial, the Supreme Court has had to make a number of decisions bordering on procedural steps and evidence by the parties.

On January 19, 2021, the Supreme Court unanimously dismissed an application for interrogatories filed by the petitioner seeking leave of the court to elicit some answers to questions relating to the conduct of the elections from the First Respondent, Electoral Commission (EC). The court held that the Supreme Court (Amendment) (No. 2) Rules, 2016 (C.I 99) provide for expeditious trial of a presidential election petition and since the questions petitioner sought answers to could be answered at trial, the application was irrelevant at the time.

On January 28, 2021, the court unanimously dismissed the petitioner’s application for a review of the court’s January 19, 2021 decision on his application for interrogatories. The court held that the petitioner had not satisfied the conditions set out in Rule 54 of the Supreme Court Rules, 1996 (C.I. 16) to warrant the grant of the review application. The court reasoned that the petitioner had neither demonstrated by way of evidence, any exceptional circumstances which had resulted in a miscarriage of justice, nor the discovery of any new evidence which the court had failed to take into account in its earlier decision.

On February 3, 2021, the court unanimously dismissed the petitioner’s application to inspect documents of the first Respondent (EC) relating to the December 7, 2020 presidential election results. The court held that the petitioner had failed to demonstrate that he had no copies of the documents in question. The court reasoned that the First Respondent (EC), in compliance with the Public Elections Regulations, 2020 (C.I. 127), had already given copies of the said documents to the parties that participated in the presidential elections through their accredited agents; a fact the petitioner’s witnesses had admitted under cross-examination.

On February 11, 2021, the court unanimously dismissed arguments by counsel for the petitioner seeking leave of the court to compel Chairperson of the EC, Jean Mensah, to testify after the First Respondent had elected not to adduce evidence.

On February 16, 2021, the court unanimously dismissed an application by the petitioner to reopen his case and subpoena the Chairperson of the EC, Jean Mensah, to testify as an ‘adverse witness’. The court held that the petitioner had failed to satisfy the legal test for the grant of such applications. The test being: (i) that a new matter had arisen in the course of the trial which was not reasonably foreseeable; (ii) that the new evidence the applicant sought to adduce will influence the court’s eventual decision; (iii) that the applicant could not have known of the existence of such evidence after a reasonable and diligent search; and (iv) that re-opening the applicant’s case would not unduly prejudice the other party.

On February 18, 2021, the court unanimously dismissed an application filed by the petitioner for a review of the court’s February 11, 2021 decision not to compel the Chairperson of the First Respondent, Jean Mensah, to testify. The court held that the petitioner had failed to satisfy the conditions for the grant of a review application as outlined in Rule 54 of the Supreme Court Rules, 1996 (C.I. 16).

On February 22, 2021, the court unanimously affirmed its February 16, 2021 decision not to allow the petitioner to reopen his case and compel the Chairperson of the First Respondent to testify following a review application filed by the petitioner.

What is likely to be the court’s decision?
Ghanaian jurisprudence on electoral disputes adopt the position that ‘not every irregularity or breach of law in the conduct of an election provides sufficient grounds to void an election; as long as there has been substantial compliance—or non-compliance—with the applicable laws and regulations the election will not be invalidated, unless the non-compliance affected the results.’

Considering (i) court’s decision in the 2013 presidential election petition (Nana Akufo Addo v Electoral Commission & John Mahama); (ii) the precedents of other constitutional courts in the West-African sub region; (iii) the basis of the petition; and (iv) evidence adduced by the petitioner throughout the case, it is very likely the petition will be dismissed by the Supreme Court.

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