Jean Mensa must testify to explain why she failed to add Biscuit and Nunoo Milk to Rojo's Tea

I am among some of the people who expected Rojo Mettle-Nunoo to mount the witness box in the presidential election petition hearing. However, the day appeared uneventful except that contrary to the advice from the NDC to all its agents at various levels of the elections not to accept any food from anybody except accredited NDC officials, Mr. Rojo Mettle Nunoo during cross-examination, demonstrated how he abandoned his job as agent for John Mahama in the strong room in search of Tea whitened with a jar of Nunoo Milk and a hot tea bread big enough to feed all the agents in the strong Room at the Electoral Commission Secretariat.

Moreover, Rojo under cross-examination, admitted that he signed 13 out of the 16 regional summary sheets. He further admitted that all the regional summary sheets were signed by the agents of the Petitioner and none of them assigned a reason for refusing to sign any of sheets.

The big story of the day was when Lawyer Justin Amenuvor stood to speak after the Cross-examination of Rojo Mettle-Nunoo. Before that, Tsatsu Tsikata indicated to the Court that he would not call any further witnesses and closed his case.

When Amenuvor stood up, I thought he would apply to the Court to throw the case away since the Petitioner has failed to raise a reasonable cause for action so far. To the Surprise of many, he rather stated that, the Petitioner has failed to adduce any evidence to support the petition and therefore elected not to call the witness of the EC, Madam Jean Mensah and went ahead to close their case in line with the provisions of C.I 87. The Lawyer for Akufo Addo also elected not to call his witness to testify citing similar grounds. As expected, Counsel for the Petitioner opposed. After few backs and forth, the Court directed the Counsels to prepare and address the Court on the subject matter the following day, Tuesday, February 9th 2021.

Can the EC Chair be compelled by the Petitioner to testify?

The purpose of Jean Mensah's testimony was to support the defence statement of the Electoral Commission. The EC on its own volition elected to submit a witness statement. We should remember that a witness statement is not a piece of evidence until it has been accepted by Court through the necessary procedure. The NDC insist it has provided enough evidence to support their claim that no one won the election. The purpose of Jean Mensah's testimony was to refute such claims if they exist.

If the EC has decided not to testify, I expected the NDC to be happy since the case will be judged on the strength of the evidence they have adduced in Court. One of the principles of law is that you win on the strength of your own case, not your opponent's weakness. In that case, for Tsatsu to insist that Jean Mensah should testify, means that he is sure he has failed monumentally to argue strongly for his case and that he is hoping to find evidence from a witness of the EC to make his case. Once again, you don't go to the Court empty-handed with an incredulous petition and seek to go on a fishing expedition to find evidence for your case in the courtroom. You can only expect this kind of voodoo thinking from NDC lawyers.

After Tsatsu submitted the witness statement of Rojo Mettle-Nunoo, imagine a situation where Rojo is unable to testify on health grounds or any other ground. How was it going to be possible to compel him to appear before the Court? After all, Rojo is a witness just like Jean Mensah.

John Mahama is running away.

The issue of Jean Mensah running away can only arise in the figment of an imagination of a lawyer in Lalaland seeking to salvage a case which has been destroyed beyond redemption. The Electoral Commission headed by Jean Mensah has provided a 13-page response to John Mahama's petition. Why will John Mahama want Jean Mensah to mount the witness box? Instead, we should be asking John Mahama why he has failed and refused to mount the witness box. In the 2013 election petition, there were 3 petitioners namely Nana Akufo-Addo, Dr Mahamudu Bawumia and Jake Obetsebi Lamptey. The petitioners mounted the witness box in the person of Dr Bawumia. Suppose the NDC is arguing that for the sake of precedence Jean Mensah must testify. Why has John Mahama refused to testify?

The law requires that if for some reason, you cannot be in the witness box yourself, you can elect somebody to do so on your behalf. Nana Akufo-Addo has given a power of attorney to Mr MacManu to speak on his behalf. Who is speaking on behalf of John Mahama? Nobody. You recall when Asiedu Nketia Mounted the witness box he kept insisting he cannot answer some critical questions because he is not the Petitioner. Is it not interesting how John Mahama who has gone to Court to claim nobody won the 7th December election feels he cannot be compelled to testify to explain how nobody won the election based on his own calculations but expects the defendant to testify? People must be serious in this country. If there is somebody who has run away from his own case, then look no further. It is John Dramani Mahama.

Has Amenuvor Destroyed Tsatsu's Case?

A few days ago, I was quite surprised to read a statement from Mr Abraham Amaliba suggesting that the day Jean Mensah will mount the witness box should be a public holiday to enable every Ghanaian to watch the live cross-examination by Tsatsu Tsikata. Having failed to demonstrate any evidence to support their case, the NDC has Jean Mensah as its last hope. Suppose the NDC strongly believe they have presented solid proof before the Court. Why are they crying about the EC Boss's intention not to testify any longer? Section 14 and 17 of the Evidence Act is unambiguous that, he who alleges must prove. You don't need your opponent to prove your case. In the case of the 2013 petition, the Petitioner did not go to Court without concrete evidence. They submitted pink sheets from over 11, 000 polling stations across the country? Yet John Mahama has not produced a single pink sheet to back his case.

In any court trial, the lawyers' strategy and tactics are as important as the evidence they adduce. Lawyer Justin Amenuvor on this occasion demonstrated his tactical superiority over Tsatsu guy guy. Many people were surprised about the move of the Lawyer Amenuvor, but I was not. I predicted this Surprise on February 3rd 2020 in a post on my Facebook wall. You may check ( https://m.facebook.com/story.php?story_fbid=10218179025136301&id=1509258529 ). That was not all, I also suspected the NDC to withdraw their case once they manage to cross-examine Jean Mensah by claiming that the judges are not fair just to continue to tickle the folly of their *foolsoldiers*( https://m.facebook.com/story.php?story_fbid=10218189620241172&id=1509258529 )

In Sun Tzu's Art of War, he emphasizes Surprise's potency as a strategy in winning a war. Mr Amenuvor, the master tactician employed this strategy efficiently to create confusion in the camp of the NDC. According to Sun Tzu, to Surprise means to come from unexpected quarters. He calls it indirect manoeuvres. To him, direct warfare favours frontal attack, indirect warfare attacks from behind. This is exactly what Amenuvor did. Classic!!

Without attempting to be contemptuous of the Supreme Court, I am struggling to see how the Supreme Court can compel a witness to testify under this circumstance with law. However, I wish the Supreme Court could compel Jean Mensah to testify to at least offer explanation as to why she failed in her constitutional duty to add biscuit or better still teabread to Rojo Mettle's tea.

Whatever the judges decide tomorrow, the petition is still Yaamutu.

James McKeown

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