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23.03.2021 Feature Article

Nana Frema Busia:Two wrongs of Election Petition 2020?

Nana Afua Frema BusiaNana Afua Frema Busia
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Turning a critical lens on the 2020 Petitioner, one may ask: Why Did we go round in Petitioner/ EC chicken /egg circuitous circles?

After all, the Petitioner took a "boot -for -boot" fortuitous advantage of seeming lapses in EC's figures, so why should EC not tit -for -tat, take an "all die be die" advantage of a tangible gap in Petitioner's case, so as not to testify in order to cause Petitioners case to die!

For the Petitioner to prove its case, after DisApproving of EC's credibility, He resolved to Disprove EC's numbers, by getting the EC to ReApprove the original numbers that the EC had itself Reproved on four occasions.

How fascinating, that as the EC's renewed numbers were PUT IN, the Petitioner was SHUT OUT, so the Petitioner also SPRUNG UP, with a Big bang of a Shout which fizzled out in a Cloud.

If the EC's original numbers which favoured a RERUN were a proven genuine Error, then Petitioner would have No Case. Conversely, If the roaming EC's numbers were Fake, Petitioner could Run a New Race.

However, the EC with mega clout, corrected THE "Original "Sin" Error, four different times, gazetted the fifth number AND stood adamant and Still, to so Chill without needed Clarity.

The Petitioner then set out to Extract EC "Repentance", and Refuted all EC's corrected numbers with vehemence without any Substitution and Reverted to EC's original "Sin" to have his legal stint which was deemed not distinct enough to be distinguished by the Supreme Court. Are you following the knitty gritty drill?

Ladies and Gentlemen of the public jury, This clash of titans, locking gyrating jaws, could be such fun except the subject matter is of course not funny and Ghana could get clawed and run aground with some of Petitioner's 6 million voters running riot amid loss of life that occurred during the election

***Thus the above recipe for a war zone set the Petitioner's legal tone with a seeming naivete' or extreme confidence in C1 - 99, the court rules which gave illicit protection to the EC to Recuse itself as a Recluse, in a proceeding which is all about the EC's actions and inactions and also Fused the declared Winner in the Confused fray for further needless friction***

However, the "distrusted" EC was to become credible by making Admissions under oath, and answer Interrogatories or in lieu thereof, be forced under cross-examination to become "Penitent" and justify sworn statements and gazetted figures fraught with "illegality" according to the distraught Petitioner's script. But none of this happened.

***The Petitioner's Strategy to prove EC's numbers wrong through EC's "Co-operation", in doing a multiple reversion in Petitioner's favour, without which its case could not be established, rather than provide substitute figures has been a thorny issue. *This by default made EC the Principal and probable SOLE witness in CONTROL of Petitioner's case.

Some have even opined that the Petitioner had no evidence which is inaccurate since the evidence at issue was the EC's Figures which were in existence

Nonetheless, What would have been the effect of Petitioner substantiating its assertion of "No Winner" with alternative figures? Would the Supreme court have been convinced to adopt Petitioner's figures? Would the EC wrongfully classified as "adversary" by C1 - 99 not to be compelled under any circumstance, have testified? Fellow Ghanaians we do not have a crystal ball.

So then, Let us get to the crux of Petitioner's petition and propound some reverse interrogatories for the petitioner.

Notwithstanding, an indication of EC's availability for cross-examination which fizzled out, Petitioner's own witnesses were peripheral, not substantive, and thus not in a position to establish Petitioner's circumstantial evidence case which relies on inferences to cumulatively, lead to a particular conclusion in favour of its proponent.

Even if one were to assume that Petitioner's agents were tricked to be absent during the compilation of the final results, that does not prove malfeasance as regards adulterated numbers

*Now, here is the crunch, how do you Expect a "suspiciously" acting EC to become contrite without proving lack of credibility in the EC's numbers? Prudential resourcefulness expected to see the Petitioner Posit a Pinnacle of what the actual figures ought to be and whether the reality of valid votes is inconsistent with EC's gazetted figures.

But, the food for thought is: should it be a Petitioner who seeks clarity's task to unhinge the EC as "adversary" or should the burden of accountability rest on the shoulders of the EC?

with perhaps a neutral People's Representative such as a Minister of Justice separated from the Attorney General in attendance to guide an administrative legal inquiry?

In any case, The "character" witnesses did not speak to the mechanics of deriving the numbers because it is the EC who is in a position to do so. Their absence or presence was also not required by law to make the pronouncement valid.

Furthermore, the Petitioner did not call independent Reps. who did not vacate their post in the "strong room" to speak to any visible manipulation after the EC whose "facts" were put at issue had "reconciled". Whereas EC's differing figures suggested malleability of its declared final result it was not dispositive of invalidity.

***Consequently, why did the Petitioner not call the EC chair who had critical information as a Principal Witness during its case in chief? Petitioner's case depended on so discrediting the EC's figures as to be held inconceivable or wrong***

***Alternatively Why did the Petitioner close its case without requesting an audit of EC's records and figures he was disputing when he did not present his own?

*****IF it was not permissible for the EC Chair to give evidence -in -chief for the Petitioner because the Public entity is deemed an adversary at law and cannot be compelled to testify, and if the EC Chair cannot also testify as an adverse witness unless she had previously testified in favour of the adversary as opined by the Supreme court, then this would mean that an aggrieved Petitioner is Barred or disabled from prosecuting any case unless at the Pleasure of the EC*****

One wonders whether the original erroneous declaration and various corrections should have been considered as prior favourable testimony, except they were not made in court though before the court as evidence!

Had Petitioner called EC chair as his Primary witness before closing its case, It would have been most revealing of the incongruity and dilemma in CI -99 which must be amended or repealed.

*The fact though is: at the time Petitioner closed its case, Petitioner had not established its case yet, waiting to pounce on the EC under cross-examination which was a tactical error in my view*

***ALTHOUGH arguably had the Petitioner been granted due process requests to get copies of the official election documents, administer its Admissions and submit interrogatories which ought to have been answered by the EC, Petitioner should not have been in an awkward corner backed into a legal wall. Herein lies the issue of manifest injustice ***

***The EC's windfall posture then became: If you have not made your case, why should I counter a case not made? Your case is not self-reliant. It is based on me your "adversary" and I choose not to give you the aid you need to be victorious over me. I will not assist you to prove that my serial figures are unreliable. You Petitioner koraa Why? Are you serious ?***

***But the Pathos or grievous and unfathomable error of the proceeding is : if EC's figures were wrong then it is Ghana's True Intent that was being sought not EC's DEFEAT. Thus in actual fact, the Petitioner, the EC and Ghana ought to have been on the same side, not on Adverse or Opposing sides of Victor vrs Vanquished soldier needing resuscitation **

The adversarial C1 - 99 put Petitioner's attempt to get the EC to "confess" to Petitioner's Regressed version of Truth and EC's own final UNEXPLAINED and professed gazetted figures, into an intractable antagonism.

This is where it gets dicey. Was the Petitioner outsmarted or manipulated by the EC, aided by the Supreme Court when his interrogatories were not permitted on the basis that they would be addressed under cross-examination which did not occur? OR

Was Petitioner in a non -starter or default no-win scenario where its case was pre-empted by CI -99 and also at the mercy of the court by "prematurely" closing and seeking to re-open in order to Subpoena the EC at the discretion of a court that seemed not predisposed whatsoever to Petitioners entreaties after having its case backed in a legal corner?

The arguments distinguishing the EC not as an adversary or on a Public Interest exception or to be Subpoenaed as an adverse witness for the EC to be examined became critical to Petitioner. The unconvinced court shook its head violently at Petitioner and said "we no go sit down make you overwhelm us with English language or legal lingo daabida"

So that the case died on its own disquieting accord after it derailed into a tense battle of nerves to see if the court will blink or capitulate, but, the court was straight-faced and hard-nosed as it became a Petitioner's frustrating spinning wheel "spectacle" vrs Supreme Court as "adversary", rather than Petitioner Vrs EC as "adversary" because the purely adversarial process that sidelines the EC is a misfit for a Genuine election result and Truth inquiry.

Ghana is worse for wear due what transpired that seemed effectively as NPP Osono kukrudu President-Elect, plus EC and Supreme Court on one side vrs "Akatamanso Kyiniy3" Opposition Candidate's continuation fight for the Presidential Crown regarding what is the unconstitutionality of a Constitutional instrument that makes the declared Winner an inherent party to the case together with the EC as respondents in an alliance when there are no conspiracy allegations. This did confound rather than facilitate the process as the case became deadlocked over the EC chair's testimony which is the Central Feature of any election petition.

Thus, We did not get to see the Petitioner unleash its war arsenal of missile questions to whip the EC into submission!

Nonetheless, the million-dollar head-scratching question is: if the Petitioner indeed had alternate figures as suggested by its "Mosquito General" Mr Asiedu Nketia, why leave a most potent weapon at home?

This was a fatalistic approach that short-circuited Petitioner's case as though by electric shock for hoarding figures under lock and key presumably to descend like a stunt gun on cross-examination of an EC that had a bare chest in terms of all its figures upfront and therefore any element of surprise on cross-examination with hitherto unrevealed figures had no redeeming value as a tactic or strategy

As things turned out the surprise like a destructive earth tremor was on Petitioner whose case unravelled. If Petitioner's ultimate motive Was to prove an Erroneous Election Petition Procedure and consequential Supreme Court bias, then it succeeded Gung-ho but that was not the stated intent which was to secure a Re-run of the election. However, the Residual hard lessons must be learned.

It is interesting that the EC opted out of the proceedings as a dynamic of CI.99 which was promulgated during Former Attorney General Marrieta Brew and her Deputy AG who got himself into a side contempt show and were part of Petitioner H. E. John Mahama's legal team and term as President after the 2012 election Petition, without anticipation of the scenario of a non-testifying EC Chair that has come to haunt them and Ghana as a whole.

This is why the incumbent President H.E Akufo Addo and the judicial and legal establishment and indeed all thoughtful and well-meaning Ghanaians must be ever so mindful of palpable procedural electoral injustice that will come back and haunt Ghana"s electoral future if not addressed regardless of the Party seeking Redress.

It is indeed ridiculous and unjust to have an Election Petition process that expects any Petitioner under the best of circumstances to meet its proof burden without some basic EC examination so that admissions that were not allowed to be administered or interrogatories that did not have permission to be asked in anticipation of testimony that was not given, added to official pink sheets that could not be redeemed, cannot be best practice as a standard operating procedure going forward.

So then, we have had an election 2020 Petitioner's Case which was Premised on EC errors, that may be, ought not to have been made, leading to a case, that should maybe, not have been taken to court, entertained by a court that seemingly shortchanged the case, by a judicial process that seemed unfair, thereby giving exponential wings to the case after it failed to win, because EC errors that should maybe not have occurred, to create the case in the first place, is yet to be explained.

What a "fine Mess" that leaves confidence in the political, judicial, electoral and legal leadership wobbly and dangling.

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