NANA VRS MAHAMA: MATTERS ARISING

NPP legal team heads for court

Posted on: www.dailyguideghana.com

A feature by William Yaw Owusu

Saturday February 2, 2012.

The Supreme Court hearing the landmark case in which the validity of the Electoral Commission’s (EC) declaration of John Dramani Mahama as President in the December 7 & 8, 2012 general election is being challenged, continues to be bombarded with applications by the parties involved.

As the court is set to rule on series of applications, the petitioners say they have also amended their petition because they have finally completed their analysis of all the pink sheets available to them, finding substantially more electoral violations and malpractices. 

These alleged irregularities now affect 4,670,504 votes out of the 10,995,262 "valid" votes cast.  

Annulling them will take out 3,101,590 from John Mahama's total and 1,473,346 from Nana Akufo-Addo. 

Tony Lithur is the President's counsel

The petitioners are therefore asking for the results in 11,916 polling stations to be annulled, instead of the 4,709 in the original petition. 

This will bring John Mahama's total valid votes cast to 39.1% (2,473,171) and Akufo-Addo's down to 3,775,552, making him the clear winner by 59.69%.
This is because about 67% of the illegal votes that the petitioners are asking to be annulled benefited the NDC candidate, John Mahama. 

The court action was initiated on December 28, 2012 by the NPP presidential candidate Nana Addo Dankwa Akufo-Addo, his running mate Dr. Mahamudu Bawumia and the party’s Chairman Jake Otanka Obetsebi-Lamptey after they said EC Chairman, Dr. Kwadwo Afari-Gyan declared the results without taking into consideration protest raised by the opposition party.

President Mahama, in his personal capacity as presidential candidate of the ruling National Democratic Congress (NDC) and the EC, the body that supervised the December general elections have been cited as respondents in the suit.

Tsatsu Tsikata is lead counsel for NDC

The Petitioners are praying that the highest court of the land to declare that “John Dramani Mahama was not validly elected president of the Republic of Ghana.”

They also want the court to declare that “Nana Addo Dankwa Akufo-Addo, the 1st Petitioner herein, rather was validly elected President of the Republic of Ghana,” as well as “Consequential orders as to this court may deem fit.”

All the sides have high profile lawyers representing them.

First Protest

The case officially commenced on January 8, a day after President Mahama had been sworn into office. The petitioners were the first to raise a protest when they saw the composition of the nine-member panel.

Even though the petitioners never made public statements as to which of the justices they wanted removed from the panel, there were wild rumours that it involved the Chairman of the panel Justice William Atuguba whose nephew Dr. Raymond Atuguba had just been appointed as Executive Secretary to the President.

The petitioners at the time had requested that piece of information to be heard in chambers but Tony Lithur, counsel for the President and Tsatsu Tsikata counsel for the NDC which had then filed an application for joinder to ask the court to allow them to join the case, insisted that the petitioners needed to make the request public.

The petitioners were in court 

The court later said it would hear that piece of information (in chambers) but the petitioners needed to file a motion officially before adjourning proceedings indefinitely (sine die).

Before the case was adjourned, Justice Atuguba appeared enraged after supposedly getting to know that the petitioners were referring to him.

NDC Joins Petition

The petitioners later made a u-turn to say that they were not interested in pursuing the panel composition matter and the court fixed January 16, for proceedings to continue. This paved the way for the NDC to move its application for joinder which was duly granted in a 6-3 majority.

The panel members that ruled that the NDC should be joined as an interested party were Justices Atuguba, Sophia O. Adinyira, Rose C. Owusu, Jones Victor Dotse, Sule N. Gbadegbe and Vida Akoto-Bamfo but Justices Julius Ansah, Anin-Yeboah and Paul Baffoe-Bonnie ruled that the NDC could not demonstrate to the court that it was a necessary party to the petition to warrant a grant.

With the decision, the NDC automatically became the 3^rd respondent in the case.

Applications for Further and Better Particulars

On January 22, when everybody thought the substantive case was finally going to be heard, the EC, followed by President Mahama, all filed application for ‘further and better particulars’ to get the court to order the petitioners to furnish them with the names and codes of the 4,709 polling stations that they (petitioners) claim there were irregularities.

Mr. Tsikata, counsel for the NDC did not file any application to either support or oppose the requests but when the petitioner’s lead counsel Philip Addison finished his argument opposing the requests, he (Mr. Tsikata) said the court needed to hear him because the NDC is  a party in the suit.

Mr. Addison opposed the move, arguing that Mr. Tsikata was not entitled to speak since he did not file any application. The court in 8-1 majority upheld Mr. Addison’s argument and said Mr. Tsikata was not allowed. It was only Justice Atuguba who had ruled that Mr. Tsikata could speak.

NDC gurus stormed the court

Application for Interrogatories

On January 29, the petitioners also moved a motion for interrogatories to order the EC to furnish the court with particulars of Ghanaians serving abroad including foreign service official, students on government scholarships abroad, Ghanaians working in international organizations and security service personnel returning on duties.

When the court was about to fix a date for ruling, Tsatu Tsikata again requested that the NDC be allowed to respond to the petitioner’s application because with the nature of interrogatory application all the parties in the matter needed to be heard.

As a result, the court in a 6-3 majority said that the NDC could be heard but must file officially. Justices Paul Baffoe-Bonnie and Annin Yeboah had ruled that the NDC could not be heard while Atuguba said Mr. Tsikata could be heard “on points of law now.”

On January 31, Mr. Tsikata moved the motion opposing the petitioner’s request saying it was an abuse of the court’s process but Mr. Addison countered that he did not understand why a third party (the NDC) should come into something that is strictly was between the petitioners and the EC who had conducted the Voters’ Registration Exercise.

The court fixed February 5, to rule on the three applications: EC & Mahama separate requests for ‘further and better particulars’ from the petitioners as well as the petitioners ‘application for interrogatories’ directed at the EC.

Fresh Evidence

Meanwhile, the petitioners have amended their petition because they say they have finally completed their analysis of all the pink sheets available to them, finding substantially more electoral violations and malpractices.

These alleged irregularities now affect 4,670,504 votes out of the 10,995,262 "valid" votes cast. 

Annulling them will take out 3,101,590 from John Mahama's total and 1,473,346 from Nana Akufo-Addo.  

Imminent Applications

It appears the commencement of the main petition might be delayed once again because President Mahama has also filed an ‘application for interrogatories’ directed at the petitioners.

Also, the NDC has filed an application for further and better particulars and Mr. Tsikata says it was set for February 5.

The landmark case has attracted attention of both local and international communities who see the handling of the case by the court as a critical test for Ghana’s fledgling democracy.

It is not clear when the President’s application would be moved but as it is now, all the applications would have to be dealt with by the court before the main petition could proceed.