Update - Day 9- Election Petition Hearing: My Lords, allow us to compare our Kelewele wrappers with documents in possession of the Electoral Commission

The 3rd February 2021’s hearing was about an application submitted by Tsatsu Tsikata, Lawyer for John Mahama to inspect or discover documents in possession of the Electoral Commission relating to the 9th December declaration of the presidential Election results. Both the Lawyers of Nana Akufo-Addo and the Electoral Commission argued in opposition to the application.

The Court dismissed the petition among the following reasons:

Failure to meet the Necessity threshold

The petition did not meet the necessity threshold. Inspection of document is generally allowed in litigation but you must prove the necessity of the inspection. Tsatsu failed to proof the necessity for the document. He made an attempt to argue that the granting of the application will contribute to fair hearing but he failed to demonstrate how a favourable ruling could contribute to a fair disposal of the petition.

Burden of Proof

Even those of us Facebook Lawyers are aware of the elementary Latin maxim ‘’semper necessitas probandi incumbit ei qui agit’’, which means he who alleges must proof. Or better still "Affirmati Non Neganti Incumbit Probatio" which means the burden of proof is upon he who alleges.

Generally it is the duty of the person who alleges something to produce evidence in order to prove it. It is the duty of the petitioner to submit sufficient evidence on an issue in order to avoid dismissal of the claim. In a civil case such as this, the burden of proof requires the petitioner to prove his case by a preponderance of the evidence. Nobody expects John Mahama to prove beyond a reasonable doubt. Unfortunately, John Mahama is in court alleging that Nana Addo did not win the election yet he has not produced a single evidence to support his claim.

For Tsatsu to apply to court seeking to discover evidence from the Electoral Commission is quite strange. Tsatsu and his Mahama are in court on a fishing expedition. The court is not River Ankobra or Offin, or Lake Volta or Bosomtwe where you could go and cast your net on an expedition to catch tilapia. No serious court will entertain that attempt to shift the burden of proof to a respondent, in this case the Electoral Commission.

No lack of documents

All the two witnesses of the petitioner, Asiedu Nketia and Dr Michael Kpessa-Whyte both admitted they have all the pinks and collation summary sheets from polling station to all the regions. They further affirmed that they have all the documents in their possession. We all know at every stage of the elections all other political parties and the independent candidate that contested the December 2020 presidential elections, were given duplicate copies of pink sheets and collation sheets through their representatives at the polling and collation centres and the strong room of the EC. It beats my mind why a brilliant and celebrated lawyer like Tsatsu will apply for the court to make an order for inspection of documents whose duplicates are already in your possession. Doesn’t Tsatsu know that under the Evidence Act, 1975, duplicates are admissible and have the same value as the original? A very bad case has a way of undermining even topnotch lawyer. It is Unfortunate how Tsatsu Tsikata has become a victim of an immortally terrible case.

At least if Tsatsu was able to prove that there was something wrong with the duplicates in the possession of the NDC and John Mahama, the Court could have considered his application favourably. Has the good old Tsatsu become rusty or he has an agenda? I can’t think far.

Granted the NDC and John Mahama do not have copies of the pink sheets and regional collation summary sheets. What were they going to compare the documents from the EC with to know the authenticity of the figures declared on 9th December? Were they going to compare with the wrappers of the Kelewele Rojo and Kpessa-Whyte were sent to buy for the EC? Hahahahaha Anyemi!!

Ec has nothing to hide

The petitioner further argued that the resistance of the EC to make the documents available meant that the EC has something to hide. Indeed, the EC has nothing to hide. Every document in the possession of the EC on the basis of which the December election results were declared are available to the public and the NDC and they are all on the website of the EC as well.

Then on the streets they are deceiving their supporters that they don’t have the form 13 containing the summary of the regional results because the agents of the petitioner in the Strong Room were instructed by the EC to go and confer with John Mahama. For the avoidance of doubt a copy of the Form 13 was posted on notices in the Strong Room of the EC as demanded by law and the same thing has been uploaded to the website of the EC.

When you bring a vexatious, misconceived, unmeritorious, ill-fated, misguided and incompetent applications not grounded in law and evidence but over-reliance on long talk and fine grammar mixed with disrespect and unnecessary drama, your application can only be used to serve Kelewele by the road side.

James McKeown

Helsinki

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