The Supreme Court is expected to hear former President John Mahama’s motion to reopen his case in the ongoing election petition today, Monday, 15 February 2021.
The legal team of Mr Mahama, who is challenging the results of the 2020 presidential election, filed the motion after they recently closed it.
“Take notice that counsel for and on behalf of [the] petitioner shall seek leave of the court to reopen the case of [the] petitioner for the purpose of serving a subpoena on the Chairperson of the Electoral Commission to testify upon the grounds contained in the accompanying affidavit and for such further or other orders as the honourable court may deem fit”, Mr Tony Lithur filed in court on behalf of the former President.
It followed the Supreme Court’s ruling on Thursday, 11 February 2021 that Electoral Commission Chair Jean Mensa, the star witness of the first respondent, cannot be compelled to testify in the matter as demanded by Mr Mahama’s lawyers.
Chief Justice Anin Yeboah read the ruling, which said in part: “We are minded to state that our jurisdiction invoked in this election petition is a limited jurisdiction clearly circumscribed by law”, adding: “We do not intend to extend our mandate beyond what the law requires of us in such petitions brought under Article 64 (1) challenging the validity of the election of a president”.
“Simply put, we are not convinced, and we will not yield to the invitation being extended to us by counsel for the petitioner, to order the respondent to enter the witness box to be cross-examined”.
“Accordingly, we hereby overrule the objection raised by the counsel for the petitioner against the decision of the respondents declining to adduce evidence in this petition,” he added.
Speaking to journalists after the ruling, former Attorney General Marietta Brew Appiah-Opong, who is one of the lawyers for Mr Mahama, said: “We disagree”, adding: “It is as simple as that”.
“We have nothing to do about the decision of the court but accept it, and, so, we are going to file for an application of review. Counsel for the petitioner has announced that he will file a review of today’s decision of the court. You heard the Lordships, they said no one can stop us from filing an application”, she noted.
She continued: “The Chairperson in the past has said she will be available for cross-examination. We have an EC who when a request for interrogatories was served on her in the past, she refused to respond. The EC has to be accountable to us and tell us how she made those errors. There are questions we have to put to her [Jean Mensa] that no one can answer. She alone can answer”.
Meanwhile, the lawyers for President Nana Akufo-Addo have said they are contemplating subpoenaing Mr Mahama to testify if his lawyers insist on subpoenaing Mrs Mensa to testify.
Speaking to journalists after the court ruling on Thursday, Information Minister-designate Kojo Oppong Nkrumah said: “Depending on what the court decides to do, our senior lawyers will take their next line of action”.
“Indeed, I have heard conversations, I don’t know if I have their permission to say this, I’ve heard conversations by some that if they elect to subpoena the EC Chair, maybe, we should also elect to subpoena the petitioner to be brought into the box”.
“I don’t know if they will agree to it at the end of the day but it is part of the various conversations”, he said.
The Ofoase Ayirebi MP also accused Mr Mahama of abandoning his own case, explaining that unlike the President’s star witness, who attends court proceedings without fail, Mr Mahama, who is the one challenging the 2020 presidential election results in court, has appeared just twice in court.
“I keep telling you that Chairman Mac Manu comes here every day, prepared that if they [petitioner’s lawyers] cross a threshold and we have to do that [mount the witness box], we’ll do that”.
“But, as you have noticed, unlike the petitioner who, as some of my colleagues have been suggesting, appears to be abandoning the case, because he’s been here twice, we are always here; if it becomes necessary, we’ll be happy to mount the box”, he said.
Mr Oppong Nkrumah said: “We are of the respectful, humble view that as the court said today, the principle is that you cannot compel a party under these circumstances to adduce evidence”.
He argued that “even if you prove some fresh evidence in extreme circumstances under which your case should be re-opened and then you come with your second application for subpoena; what is that subpoena supposed to achieve? To compel the person that the court has said cannot be compelled to give evidence, the subpoena is now to compel that person to come and give evidence”.
“We think it will be an interesting set of arguments”, he noted, adding: “But, wherever it goes, as we have said: if it becomes necessary that we put witnesses in the box to respond to issues, we are more than happy [to do so]”.