Nana
Ato Dadzie (above) speaks for the NDC legal team while Gloria Akuffo speaks for
the NPP
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Thursday January 17, 2013.
There were fireworks at the Supreme Court, Accra
yesterday as the motion for joinder filed by the National Democratic Congress
(NDC) to be part of the petition challenging the declaration of John Dramani
Mahama as President was moved.
The NDC was due to move the motion on January 10,
when the New Patriotic Party (NPP) whose candidate Nana Addo Dankwa Akufo-Addo and
two others have petitioned the court over the validity of the Electoral
Commision’s (EC) declaration of Mr. Mahama as President raised objection to the
composition of the panel.
As a result, the nine-member panel presided by
Justice William Atuguba ordered the NPP legal team to officially file a motion
challenging the composition for the court to take a decision but the NPP later
wrote to the court that it was no longer interested in pursuing the matter,
paving the way for the joinder motion to be moved yesterday.
NDC
Motion
Moving the motion, Tsatsu Tsikata, lead counsel for
the NDC gave a breakdown of the applicant’s (NDC) affidavit in support before
entering into the legal basis for the joinder application saying “we seek to be
joined as respondent in this petition.”
He said the NDC registered and sponsored the first
respondent (President Mahama) in the 2012 presidential election and therefore
the party should be allowed to be an interested party to the petition.
He said “there is a particular reason why a party
such as the NDC is a necessary party to this petition as Article 55 (1,2,3) clearly
states.”
Role
of Political Parties
Apart from the constitutional provision that makes
the NDC as an interested party, Mr. Tsikata cited Sections 5 and 6 of Act 574
of the Political Parties Act of 2000 as a legislative provision that
acknowledges the role of political parties under the 1992 Constitution.
“There are numerous references in the Constitutional
Instruments regarding public elections and the role played by political parties,”
he argued.
Using C.I. 75 (Public Election Regulation 2012)
Regulation 12 (1), the NDC argued that “President Mahama was not an independent
candidate but he was sponsored by a political party which is the NDC.”
He said the definition of Act 547 Section 33 is
relevant to the application and added that it was not in doubt that the
applicant played a role in respect of the nomination of the 1st
respondent to stand on the ticket of the applicant.
“The petition does not actually mention that the 1st
respondent was the President of the Republic,” he argued and added that “we seek
to join this application in the interest of justice because the President was
nominated, selected and to stand on the platform of the party.”
Cases
Mr. Tsikata cited a number of cases that borders on
joinders particularly the case in which Kwame Painim was prevented by Rosemary
Ekwam from contesting presidential primary of the NPP in 1996 to buttress the
NDC’s case.
He said the NPP had applied to join that application
adding that the NPP applied to join when it suited them but they were seeking
to prevent NDC from joining when it did not suit them.
“In this petition, we have not waited to be invited
to be heard. We have taken steps timeously to be joined as respondent.”
He said the President was in the process of forming
a government of the NDC and joining the suit as we seek to do would advance the
interest of justice, adding “all we are asking for is eminently supported by
the precedents.”
Nana’s
Opposition
Touching on affidavit in opposition filed by the NPP
to challenge the NDC’s application, Mr. Tsikata said the petition is replete
with references to the Inter Party Advisory Committee (IPAC) and its
deliberations and the applicant is an entity that participated in the IPAC
deliberations and therefore has a stake in the matter.
He said President Mahama in law was the symbol of
the NDC in the election and for that matter the party cannot be sidelined in
the petition.
“Our application is not brought in bad faith and
with the sole purpose of causing undue delay. You will know that we filed this
application on 31st December 2012 after the petition has been filed
on the 28th of December 2012.”
Trying to convince the court further, Mr. Tsikata
said “We stood ready to move this motion on the due date and I believe you know
why we could not move this motion. It cannot be appropriate that we be accused
of bad faith.”
He said that for the petitioners to aver that the
NDC is not a citizen of Ghana and did not participate in the election ‘defies
my imagination’.
Jake,
Bawumia Factor
He questioned why it was appropriate for the petition
of the 3rd petitioner (Jake Otanka Obestebi-Lamptey) to be regarded
as necessary while the applicant whose candidate stood in the election not to
be accepted by the court.
He also argued that the 2nd respondent,
Dr Mahamudu Bawumia was not on the ballot but had filed a petition.
“We are seeking to join precisely because it is the
validity of the election of 1st respondent that is being challenged
and that is why the party on whose platform he stood should be joined.”
“It is important we join to protect our interest as
a political party that actively participated in election.”
The
Word ‘Include’
He said the word ‘include’ in C. I. 74 should not be
interpreted to mean ‘exclusion’ as the NPP is seeking to do saying “they
interpreted it to exclude the NDC.”
“In the definition of C.I. 74, the word include does
not exclude the NDC. The word include should be interpreted having regards to
the principles articulated by the court.”
NPP’s
Argument
After about 15 minute break, the court heard the
NPP’s response with Philip Addison leading the charge.
He said “we are opposed to this application because
it is completely unmeritorious.”
He said the court first of all needed to consider
whether the NDC’s application was properly brought before the court before
deciding on other matters.
He argued that the NDC brought the application under
Rule 45 (4) of C. I. 16 but Sub section 4 of the court’s rules required that an
application for joinder needed to be made by a party in mentioned in the
petition which the NDC is not.
“The petition was brought under Part 8 of C.I 16 in
C.I. 74. Under Part 8 there are no provisions for joinder. The provisions for joinder
stated in Part 4 cannot be brought under Part 8.”
He argued that “in Part 4 there is no time bound but
under Part 8, there is a time bound. There is no restriction of who can invoke
the court’s jurisdiction under Part 4.”
He said that Part 4 was made pursuant to Article 130
and added that “clearly the joinder under Part 8 defeats the purpose of the
applicant’s motion.”
“There is no action in Part 4 and if they are
bringing an action there then it is incompetent. It will defeat the express
purpose under Part 8 if the application is granted. On this score alone, this
application ought to be thrown out.”
Mr. Addison cited Article 63 of the Constitution
which relates to the election of the President and said “provisions relating to
election of President make no reference to political parties.”
He said that Article 64 talks about challenging
elections and C.I. 74 sets out clearly the rules as to who to challenge adding
that C.I 74 (b) directs that where there is still no complaint even against the
EC, the petitioner was enjoined to bring the EC in a petition.
“In this petition, no allegation is made against the
candidate. No relief is sought against them. The EC filed its answer to our
petition and nowhere in that answer did the EC say they needed the NDC’s
assistance.”
“The 1st respondent (President Mahama)
also filed a response and nowhere did he say he will need the assistance of the
NDC as a party,” adding “there is no reference to political parties in C.I 74.”
He argued that under Presidential Elections Act PNDC
Law 285 section 3, there is no mention of political parties adding “it is clear
the nomination is done by a document and not political parties.”
“He (President) swears the oath and not political
parties swear,” adding “We have gone through the statutory declaration and
nowhere did it say the candidate should declare his political party.”
He said the 1st respondent (President
Mahama) is not President of NDC but President of Ghana adding “if he resigns
from the NDC today as President he will continue to be President of Ghana that
is why we have independent candidates.”
He said membership of a political party is not a necessary
condition to the election of a candidate and added that nomination of a
presidential candidate is by a document which the candidate signs himself.
“Applicant (NDC) can’t claim to be more interested
than the applicant who contested the election. They didn’t give details of how
they have direct interest or they will be directly affected if they are not
joined to the petition.”
The
Exposure
Mr. Addison said in filing the application, the NDC
made certain averments saying “I don’t understand why the application for
joinder was filed before the EC’s response and yet were able to make certain
reference to the EC’s answers.”
He said even though the NPP sponsored Nana
Akufo-Addo, the party is precluded from bringing a petition in the same
instance as the NDC.
Reacting to Mr. Tsikata’s point that President
Mahama is in the process of forming an NDC government, Mr Addison said there is
nowhere in the law that mentions a party in government adding “but that is the
interest they seek to protect.”
He dismissed Mr. Tsikata’s submission that the NPP
applied to be joined in the Ekwam/Pianim case saying there were reliefs sought
and the NPP automatically became an interested party saying “it is different
from what the NDC is seeking to do in this case.”
He also said the case in which Mr. Tsikata himself
filed an application to bring the IFC to
testify during his (Mr. Tsikata) trial could not apply in this case saying “The
IFC had not applied to join the Tsikata proceedings. In this case, the NDC is
seeking to join.”
He said “the NDC woefully failed to demonstrate that
they are a necessary party to this petition.”
He said that applications for joinders are normally done
to avoid a multiplicity of suits and in this case that fear is erased because
the case is time bound adding “they are not even qualified to bring a petition.”
He said that interestingly, the NDC cited all the
cases that Chris Ackumey relied on unsuccessfully when he filed to join the
suit in which one Ransford France tried to block the EC from going ahead to
create 45 additional constituencies.
“Are they suggesting they can put up a better fight
than the respondent who is threatening to bring 4,800 witnesses?” he asked,
adding “the application if granted will muddy the waters.”
Mahama
Legal Team
When counsel finished his long submission, Tony
Lithur representing President Mahama told the court he wanted to respond on
points of law but the NPP team objected saying he should have filed formally any
process to be able to make an input
After a back and forth argument, the court by a 6-3
majority decision said Mr. Lithur could put in a submission.
He said he associated himself with the NDC’s
application and added that the pluralism of the Constitution finds expression
in political parties.
“The NPP seeks to eliminate political parties for
the contest of the highest office of the land.”
NPP’s
Rebuttal
Mr. Addison again responded that there was nowhere
in President Mahama’s answer to the petition that he would need the NDC saying
“I think it is an afterthought .”
“He didn’t file any affidavit or state in its
response that it will require an answer. It is a breach of the rules and it is
an afterthought.”
EC’s
Position
James Quarshie-Idun representing the EC said “it is
not our intention to make any submission on this motion for joinder.”
Mr. Tsikata then mounted the platform to reply to
the NPP’s submission and cited C.I. 16 Rule 4 (b) (1) and said it is relevant
to Rule 45 (4).
He said that statutory declaration had nothing to do
with the constitutional role of political parties saying “we are standing on
the constitutional right.”
The court adjourned proceedings until January 22,
for ruling on whether or not the NDC should be allowed to join the petition as
respondents.
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