In order to put the second cross examination of the Petitioner’s witness by the Lawyer of 2nd Respondent, Lawyer Akoto Ampaw in the right frame of analysis, it is imperative to remind readers of the issues for trial as determined by the Supreme Court for the petition. This is intended to guide the analysis and the reader.
The Issues for Trial
1. Whether or not the petition discloses any reasonable cause of action.
2. Whether or not based on data contained in the declaration of 1st Respondent, for the 2nd Respondent as President-elect no candidate obtained more than 50% of the valid votes cast as required by Article 63(3) of the 1992 Constitution.
3. Whether or not the 2nd Respondent still met article 63 (3) of the 1992 Constitution threshold by the exclusion or inclusion of the Techiman South Constituency Presidential election results.
4. Whether or not the declaration by the 1st Respondent dated the 9th December, 2020 of the results of the Presidential election conducted on the 7th December 2020 was in violation of article 63 (3) of the 1992 Constitution.
5. Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the Presidential election of 2020.
The Requirements of Article 63(3).
A person shall not be elected as President of Ghana unless at the presidential election the number of votes cast in his favour is more than fifty percent of the total number of valid votes cast at the election
The Lawyer for the 2nd Respondent approached his cross examination by first adopting to discredit the testimony of the first Witness of the Petitioner and the petition. The purpose is to contest the credibility of the Witness’s or Petitioner’s testimony.
The Lawyer for the 2nd Respondent sought to discredit the testimony of the first Witness in the following,
i. Previous divergent testimonies. These were statements of the Witness and the Petitioner before proceedings that diverges from what the Witness says in the hearing or from facts/evidence submitted in his petition and/or in the witness statement. The Lawyer of the 2nd Respondent also tried to prove it by relying on other data such as other people’s testimonies.
ii. Special divergences. The mistakes of the witness in one fact or circumstance, the Witness’s testimony cannot be considered credible with regard to the rest of facts. This argument depends on the specific mistake submitted to the court’s for consideration.
The Video Clip
The video clip as suggested, was intended to prove discrepancies in the Witness’s statements before proceedings and during hearing.
In my opinion, the Lawyer of the 2nd Respondent partly succeeded in discrediting the testimonies of the Witness. The witness on occasions in the video declared victory for the Petitioner without stating any specific figure except the Parliamentary seats of 141 seats which is not a matter before the Supreme Court. The Deputy General Secretary of the National Democratic Congress statement of declaring victory for the petitioner by 50.15% may be considered.
However, the witness admitted to his image and voice on the video but denied that he had at any time stated that the Petitioner won the election.
The degree at which the discredited testimonies will affect the issues for trial is at the discretion of the Justices of the Supreme Court.
Key Highlights of the Cross Examination by Akoto Ampaw, Lawyer for 2nd Respondent. 1st February 2021
a. The witness admitted that, the Petitioner had no data whatsoever to contradict the data of the Electoral Commission. This was confirmed by the Witness when one of the Justices sought for further clarification.
JUSTICE YAW APAU: Mr. Nketia, you claim the elections have been rigged to favour 2nd Respondent. Is that right?
ASIEDU NKETIA: Yes my Lord.
JUSTICE YAW APAU: Are you able to tell the court, per your own internally collated figures the total number of votes the Petitioner got?
ASIEDU NKETIA: My Lord, I didn't bring the figure with me to the court.
JUSTICE YAW APAU: Mr. Asiedu Nketia can you tell the court, again from your own figures the total number of votes the 2nd Respondent is supposed to have had?
ASIEDU NKETIA: No my Lord.
JUSTICE YAW APAU: Thank you very much. That's all."
This conversation between the JSC and the witness addresses issue one for trial. “Whether or not the petition discloses any reasonable cause of action,” and the Evidence Act. And that, the Petitioner has no evidence apart from the EC’s declared results to prove that no candidate has won.
Or that, the Petitioner’s internal collation proves the 2nd Respondent meets the requirement of article 63 (3) of the 1992 constitution. The reason why the Petitioner deliberately refused to attach an independent collation of his own which is the normal practice with every Presidential election.
b. The Witness also admitted under cross examination that, based on the various data of the EC, the 2nd Respondent still won the elections. This answers issue four and five for the trial.
c. On the issues of figures, after a long arithmetic session, the witness admitted that the error of the declaration of the day (13,434,574) cannot be the total valid votes because if you add up the aggregation of votes for each of the candidates as mentioned by the Chair of the EC on the day it amounted to 13,121,111. Issue one addressed. No reasonable cause of action was established. And issues four and five addressed.
d. The witness further admitted that based on the EC data, if you give the whole of the available registered voters (128,018) of Techiman South to the Petitioner the 2nd Respondent still won. And again with the Total Valid Votes using the actual numbers of Techiman South the 2nd Respondent still won the election. Issue three for trial addressed effectively.
However, all the documents relied on by the Lawyer of the 2nd Respondent, are the very documents/exhibits submitted to the Court by the Petitioner.
e. The witness denied knowledge and presence of a pen dive and its contents attached to the Witness statement. This in my opinion cast doubt on the credibility of vote padding allegation.
f. The witness admitted under cross examination that, elections results are announced/declared at the Polling stations, collated at constituencies, then to regional and to the National as enshrined in C1 127.
In summary, in my opinion, the petitioner’s own documents/exhibits submitted to the court proved that, the 2nd Respondent crossed the 50% threshold as required by article 63 (3).
Furthermore, the evidence or exhibits attached to the petitioner's petition and that of the witness's statement proves nothing contrary to what the 1st Respondent has declared.
Second witness mounts the witness box at 9:30am in the forenoon.
The author is a Governance and Policy Analyst