Lawyer cum journalist, Gabby Asare Otchere-Darko, a Senior Partner at Africa Legal Associates and founder of the Danquah Institute, a political think tank based in Accra, opines, in this write up why former president John Mahama (JM) wants chairperson of the Electoral Commission, Jean Mensa (JM) in the witness box in the ongoing electoral petition.
John Mahama, the petitioner, the one challenging the declared results for Akufo-Addo, as invalid, exercised his right not to give evidence to support his own petition. In fact, he did not even give power of attorney to any witness to give evidence on his behalf.
That was why, when a tough question was always put to Aseidu Nketia, 1st witness for the petitioner, he could always say, and with the support of petitioner’s counsel and the Bench, that he, the witness, was not the petitioner to answer questions from the petition!
The respondents had given advance warning that they were not likely to call witnesses, way back on 20th January when they filed a preliminary objection for the entire case to be summarily dismissed for “no cause of action.” By that, the respondents were telling the petitioner in very plain terms that they truly don’t believe that this case is something for them to worry about.
After all, the votes being expressly challenged then were less than 6,000 for an election where the margin of victory is over 500,000 votes and the sum total of all errors being alleged, if put together, did not affect the outcome of the presidential election as declared and gazetted.
As it turned out during the course of the trial, by the time the petitioner called all his witnesses and adduced all the evidence he could muster, including “sampled details” of alleged vote padding, the numbers claimed as representing padded votes in favour of the declared winner had even dropped to below 5,000 and the petitioner’s own witnesses had admitted in the box that they did not come to Court to present any alternative numbers to challenge the declared results!
This petition, when all is said and done, is about numbers. Yes. Numbers. Remember what John Mahama said to a continental journal, Africa Report, in 2013, after the election petition of that time went his way? He said, there was nothing like “a perfect election” anywhere in the world. The Nov 3 presidential race in the US between Trump and Biden reaffirms that fact. Trump found evidence of infractions but were they material because if they were we wouldn’t have been following his second impeachment trial on CNN now.
If elections are generally not expected to be perfect then what is the standard? What is important is the weight of the imperfection in affecting the true will of the majority of a democratic contest as expressed on the ballot paper.
Now let us strip bare what the fuss about the obsession to get the EC chairperson in the box is all about. Why is the petitioner giving the nation the impression as if their case stands or falls on the testimony of Jean Mensa in the court room?
For those of you who think the EC chairperson being in the box is of event let me predict what is likely to happen, going by the pleadings and evidence available to the Court. Tsatsu will confront her with errors; he will dramatise those errors and she may even admit to each one of them (as she did in her pleadings) and explain coolly to the Bench the impact, if any, of each one of them; just as counsel for respondents confronted petitioner’s witnesses with those errors and their manifest immateriality which was exposed. She will say words to this effect and repeat same to each error showed to her: “Yes, but it did not affect the outcome.” Let me repeat: “Yes, but it did not affect the outcome.” Take note, that answer is not my invention. That answer has been consistent in all her admissions of errors in the EC’s pleadings.
Think about this for a moment because that is really what matters in a case like this: in any legal challenge of election results the bottom line ought to be that the petitioner is alleging that the results declared do not reflect the TRUE WILL of those who voted and it is that which he has come to court to set right. It is that simple!
But, that, curiously, is not the case here! It is rather the opposite. Let me explain.
John Mahama, his witnesses and lawyers are telling us that they are not in court to challenge the validity of the actual votes cast. No! They are not in court to say that the expressed wishes of the majority of Ghanaian voters have not been declared. No! They are rather in court for something that actually kicks against the democratic expression of the people as manifested on Monday, December 7.
Let me break it down. They are only saying that if the Court opts to ignore the true will of the people as expressed on December 7 and focuses, instead, fundamentally and predominantly, on the errors made by the returning officer on Wednesday, December 9 in DECLARING who won the presidential contest, then, surely, those oral errors she made with the announcement and all the other inconsequential errors, if taken for what they are, do not support the declaration, but even, only if you assume each one of the 128,000 odd people on the Techiman South voters’ register actually came out to vote and you go further to give, hypothetically and unreasonably, all their votes to John Mahama and take that out of the error the returning officer made when she announced as total valid votes, instead a number which was closer to total votes cast (plus all rejected ballots) rather than what the constitution requires to declare a candidate as having passed the 50% mark, which is of all VALID VOTES CAST, then HYPOTHETICALLY John Mahama should have been declared the winner! Therefore, John Mahama and his NDC deserve a runoff!
In short, fellow Ghanaians, this is the whole case of the petitioner and this is the “justice” which they seek and verily believe that putting Jean Mensa, the returning officer, in the witness box, to bombard her with the errors that do not affect the outcome is indeed that which is most material to the entire case of the petitioner, so we should, accordingly, indulge them. I’m done!