Dr. Kwadwo Afari-Gyan - EC Chairman
Posted on: www.dailyguideghana.com
By William Yaw Owusu
Wednesday April 10, 2013.
The Electoral Commission (EC) in a last minute
desperate attempt to halt the hearing of the election petition before the
Supreme Court, has filed an application asking the Court to vary its orders
given in the petition in which three NPP chieftains are challenging the
validity of the EC’s declaration of John Dramani Mahama as President in the
December 2012 general elections.
Following EC’s motion on notice, the court which had
fixed Tuesday April 16 as the definite date for the hearing of the landmark
election petition had to recall the parties today for the court to hear the
motion.
The EC had up to Friday to file its particulars to
enable hearing to begin next week Tuesday after the petitioners, NPP presidential
candidate for 2012, Nana Addo Dankwa Akufo-Addo (1st petitioner),
his running mate, Dr. Mahamudu Bawumia (2nd petitioner) and the
party’s Chairman, Jake Otanka Obetsebi-Lamptey (3rd petitioner) had
filed volumes of documents to beat the court deadline of last Sunday.
However the commission had made a U-turn asking the
court to allow the petitioners to close their case before it is ordered to
tender its evidence and other documents; a request the petitioners have called
for its dismissal.
Burden
of Proof
The affidavit in support of the EC’s motion deposed
to by Anthony Kodzo Dabi one of its lawyers on April 8, 2013, which will be
heard this morning said that the commission had filed the motion because the
suit being the first of its kind, the petitioners had a ‘burden of proof or persuasion’
before the court.
“Since in the instant suit, this honourable court is
functioning as a trial court or a court of first instance, it is respectively
requested that, taking into account that the petitioners have a burden of proof
or persuasion that the petitioners should be ordered to open their case,
present their evidence (oral evidence and evidence of affidavit) and close
their case before the 2nd respondent is required to open its case,
present its evidence and close its case.”
According to the EC, the order they are seeking
“will not cause any delay or hinder the
expeditious hearing of this case.”
The EC held that “but would, to the contrary, ensure
a smooth and well-ordered trial in accordance with the established procedures
of a court of first instance and with short deadlines being issued by them so
as to ensure that unnecessary delays do not occur.”
Petitioners
Oppose Application
Meanwhile, the petitioners have vehemently opposed
the EC’s application describing it as ‘wholly without merit, brought in bad
faith, and calculated to overreach the petitioners and cause delay,” and wants
it dismissed with “punitive cost.”
The petitioners in court recently
The affidavit in opposition deposed to by Akoto
Ampaw, a leading member of the petitioners’ legal team said when the court gave
firm orders as to the mode of trial, Tony Lithur, lead counsel for President
Mahama even tried to urge the court to consider varying its order by asking the
petitioners to file their affidavit and conclude their case before the
respondents could follow suit but he (Lithur) failed to convince the court.
He said “in any event, I say in answer to the
application that the novelty of this proposal cannot find support whether
directly or by analogy in any rule of law, procedure or practice.”
The petitioners counsel said the 2nd
respondent (EC) and other respondents “have a clears indication of the case of
the petitioners especially following the detailed particulars that the
respondents applied to the court and obtained from the petitioners.”
“It is the contention of the petitioners that the 2nd
respondent may well apply to have the instant petition struck out for want of a
reasonable cause of action.”
Counsel said in the absence of any such application,
“the respondent in keeping with the principles of justice and fair play are
under an equal duty to provide an indication of the nature of the case it
intends to rely upon.”
The petitioners counsel held that an election
petition, especially a presidential election petition is not a private matter
between two individual parties but a matter of “utmost importance for not only
the contending litigants, but for all political parties, the electorate and
indeed Ghanaians as a whole.”
Mr Akoto Ampaw said the EC as a public,
constitutional body established and mandated to conduct public elections in
accordance with the Constitution and the law, the EC ought to welcome the
opportunity of demonstrating to all Ghanaians that the public trust is one that
it has carried out ‘scrupulously’, in good faith and fairly in accordance with
the constitution and the law.
Emerging
Issues
It was expected that once the petitioners
successfully filed the affidavit, the respondents including President Mahama,
as 1st respondent, EC 2nd respondent, and the National Democratic
Congress (NDC) which later joined the petition as 3rd respondent who
were given five days ending on Friday April 12 to file their respective
affidavits.
However, it remains to be seen whether the
nine-member panel would accede to the commission’s request which when granted
would change the mode of tria l
completely.
The nine-member panel chaired by Justice William
Atuguba in setting out the mode of trial made it clear in the ruling that it is
only the petitioners and the respondents who can give oral evidence at the
trial and that anybody wanting to testify could do so through an affidavit.
This directive has come to scuttle the threat by
some of the parties, particularly the first respondent, President Mahama that
he was going to unleash a multitude of witnesses on the court running close to
5000.
The court on April 16 will start looking at two key
issues in: Whether or not there were constitutional/statutory violations in the
nature of commissions, malpractices and irregularities in the conduct of the
Presidential Election held on December 7 & 8, 2012 and whether or not the
violations, commissions, malpractices and irregularities affected the results
of the election.
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