The Supreme Court will pronounce its verdict in the presidential petition filed by the flag bearer for the National Democratic Congress (NDC) in the 2020 presidential election, John Mahama, on Thursday, March 4, 2021. The hearing on the petition began on January 26, 2021.
This petition is about Nana Akufo-Addo’s victory in the first round of the elections. According to the confirmed results published by the Electoral Commission (EC) on December 9, 2020, President Akufo-Addo won the presidential election with 6,730,587 votes (51.3%) while Mr Mahama polled 6,213,182 (47.4%). Third party and independent candidates collectively surveyed 1.339% of the valid votes cast.
However, Mr Mahama wants the Apex Court to invalidate Nana Akufo-Addo’s declaration as President-elect of the EC and to order runoffs on various grounds set out in his petition. These reasons include, in particular, the allegation that the results published by the EC on December 9, 2020, which allegedly confirmed Nana Akufo-Addo as President, violated Article 63 (3) of the Constitution because at the time of the said declaration neither he nor he nor Nana Akufo-Addo had received more than 50 percent of the total number of valid votes cast. He also alleges that the EC was “unfair”, “untrue” and “unreasonable” in compiling the results of the presidential elections because of indications of “fill-up” and spelling or calculation errors in compiling the results.
The first respondent to this petition – the Electoral Commission (EC) – in its response to the Petition, largely denied the petitioner’s allegations. The EC said it had “followed all legally established processes and procedures for conducting the presidential election on December 7, 2020 with fairness to any candidate and without malice, malice or prejudice against anyone”. [para 40 of 1st Respondent’s answer to petition]. The EC provided a detailed report on the whole process of compiling the President’s results, stating that the petitioner’s representatives had signed 13 of the 16 summary results of the regional election results, while representatives of the second respondent (President Akufo Addo) signed 15 of the results 16 overview sheets on regional results had signed. However, the EC acknowledged that some errors had been made in explaining the results of the President on December 9, 2020 and noted this
When reading out the results on December 9, 2020, the chairman inadvertently read out the number in which the Total number of votes cast than the figure representing the Total number of valid votesand the percentage of [the President] as 51.59% instead of 51.295%. ‘ [para 21 of 1st Respondent’s answer to petition]
The EC also admitted that the explanation of the overall valid votes was incorrect. However, the EC took the view that, despite these errors and given that timely corrections had been made after the Declaration, the percentage-converted figures showed that the President had received more than 50% of the valid votes, the constitutional threshold for the Elected President under Article 63 (3) of the Constitution. ‘ [para 28 of 1st Respondent’s answer to petition]
The second respondent, President Akufo Addo, raised some preliminary objections to the petition in his response to the petition. on the grounds that the petition should be deleted by the court on the grounds that it (the petition) is “incompetent, frivolous, angry and does not contain any reasonable cause for action within the meaning of Article 64 (1) of the Constitution”. The second respondent’s lawyer argued that the petition did not meet the constitutional requirement to question the validity of a presidential election. They also pointed to alleged factual weaknesses in the petition, including the claim in paragraph 13 of the petition that “a total of one hundred points three percent (100.3%)” results from the percentages announced by the 1st respondent (EC) on the 9th December 2020 ‘.
The court, in its pre-trial instructions, set the questions (questions) for determining the petition as follows:
- Whether or not the petition contains a reasonable cause for complaint
- Regardless of whether or not based on the data contained in the statement of the first respondent, no candidate received more than 50% of the valid votes cast under Article 63 (3) of the 1992 Constitution
- Whether or not the 2nd respondent has reached the Article 63 paragraph 3 threshold by excluding or including the results of the presidential elections in the Techiman South constituency
- Whether or not the statement made by the 1st respondent on December 9, 2020 on the results of the presidential elections held on December 7, 2020 violated Article 63 (3) of the Constitution
- Whether or not the alleged voting of votes and other errors complained of by the petitioner affected the outcome of the 2020 presidential election results
The court also ruled that its decision on the preliminary objection raised by the 2nd Respondent should be included in its post-trial judgment.
Important events during the process
Throughout the process, the Supreme Court had to make a number of decisions that border on procedural steps and evidence from the parties.
(I) January 19, 2021The Supreme Court unanimously rejected a petitioner’s request for questioning in order to elicit some answers from the court to questions related to the conduct of the elections from the first interviewee, the Electoral Commission (EC). The court ruled that the Rules of the Supreme Court (Amendment) (No. 2), 2016 (CI 99) provide for a speedy negotiation of a presidential election request and since the questions to which the petitioner sought answers could be answered in court, the request was irrelevant at this point.
(ii) January 28, 2021The court unanimously denied the petitioner’s request to review the court’s decision of January 19, 2021 on his request for questioning. The court ruled that the petitioner did not meet the conditions set out in Rule 54 of the Supreme Court Rules, 1996 (CI 16) to justify issuing the request for review. The court justified this by stating that the petitioner had neither demonstrated exceptional evidence that led to a wrong decision nor the discovery of new evidence that the court had not taken into account in its earlier decision.
(iii) February 3, 2021The court unanimously denied the petitioner’s request to see documents of the First Respondent (EC) related to the results of the presidential election on December 7, 2020. The court ruled that the petitioner had not shown that he did not have copies of the documents in question. The court found that the first interviewee (EC) was in accordance with the Public Election Ordinance, 2020 (CI 127)had already given copies of these documents through their accredited representatives to the parties that had participated in the presidential elections; a fact that the petitioner’s witnesses admitted under cross-examination.
(iv) February 11, 2021The court unanimously rejected arguments made by the lawyer on behalf of the petitioner, who requested the court’s permission to compel European Commission chairman Jean Mensah to testify after the first respondent decided not to provide evidence.
(v) February 16, 2021The court unanimously denied the petitioner’s motion to reopen his case and to summon the President of the European Commission, Jean Mensah, to testify as an “adverse witness”. The court ruled that the petitioner failed the legal test for making such requests. The test was: (i) that a new matter had arisen in the course of the process that was not reasonably foreseeable; (ii) that the new evidence that the claimant sought to produce will affect the eventual decision of the court; (iii) that after a reasonable and careful search, the applicant could not have known that such evidence was present; and (iv) that the retrial would not unduly prejudice the other party.
(we) February 18, 2021The court unanimously rejected a motion submitted by the petitioner to review the court’s decision of February 11, 2021 not to force the chairman of the first respondent, Jean Mensah, to testify. The court ruled that the petitioner did not meet the conditions for issuing a request for review under paragraph 1 Rule 54 of the Supreme Court Rules, 1996 (CI 16).
(vii) February 22, 2021The court unanimously upheld its decision on February 16, 2021 not to allow the petitioner to reopen his case, and forced the chairman of the first respondent to testify following a petition for review submitted by the petitioner.
What is likely the court’s decision?
The Ghanaian case law on electoral disputes takes the view that “not every irregularity or violation of law in the conduct of an election provides sufficient grounds for an election to be annulled; As long as the applicable laws and regulations have been substantially complied with or not complied with, the election will not be void unless the failure to comply has affected the results. “
Consideration of (i) the decision of the court in the petition for the 2013 presidential election (Nana Akufo Addo v Electoral Commission & John Mahama); (ii) the precedents of other constitutional courts in the West African sub-region; (iii) the basis of the petition; and (iv) evidence presented by the petitioner throughout the proceedings, it is very likely that the petition will be dismissed by the Supreme Court.