The Supreme Court has set Thursday, 11 February 2021 to rule on whether the witnesses of the first and second respondents in the ongoing election petition, EC Chair Jean Mensa and the governing New Patriotic Party’s Peter Mac Manu, should mount the dock to testify.
The Bench set the date for the ruling after hearing arguments from lawyers for the petitioners and respondents on Tuesday, 9 February 2021.
Counsel for the two respondents, Mr Justin Amenuvor for the EC and Mr Akoto Ampaw for President Nana Akufo-Addo, had notified the court on Monday, 8 February 2021 that they had no intention of calling any witnesses.
During Tuesday’s hearing, Mr Tsatsy Tsikata, lead counsel for former President John Mahama, the petitioner, argued that: “What is being put before you now is not only an affront to justice but is not in accordance with the rules of this court, and we respectfully submit that it must not be countenanced by this court,”.
Mr Amenuvor, however, said: “It is my submission that the petitioner’s counsel cannot approbate and reprobate regarding Rule 3(e)”.
Addressing the court after cross-examining Mr Robert Joseph Mettle-Nunoo, the third witness of former President Mahama, Mr Amenuvor, said: “My Lords, with respect, it’s our submission that in view of the [pieces of] evidence led by the witnesses of the petitioner, and our cross-examination so far, speaking for the first respondent, I am of the view that there is sufficient evidence before the court for this petition to be determine and, therefore, my Lords, it is the first respondent’s case that we do not wish to lead any further evidence and, therefore, we are praying that this matter proceeds under Order 36 Rule 4(3) and C.I.87 Rule 3(e)(5) and, we hereby, on that basis, close our case”.
Asked by the Bench what that meant for the first respondent’s witness statement, Mr Amenuvor said: “My Lord, under C.I.87 Rule 3(e)(5): ‘If a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence, any other party may put that witness statement in as hearsay evidence’. So, My Lords, we are saying we are not calling any further witnesses. If [any party] decides to treat our witness statement as hearsay evidence, well, that side can treat it as such but we are not leading any further evidence”.
Mr Ampaw, who took a similar stance, also said: "My Lords, we do not intend to call any witness and my Lord, we do not intend to call any witness because in our view, they have not satisfied the burden of proof. So, we can’t be forced to call any witness".
However, Mr Tsikata said: “It is our respectful submission that counsel for the first respondent that not have it opened to him to take the course that he just proposed to this court. Order 36 Rule 4(3) that he referred to, specifically says: ‘Where the defendant elects not to adduce evidence’. In this proceedings, the defendant has put in a witness statement.”
“The election that they made to submit the witness statement to the court, is a clear a clear indication that they made an election to the contrary because My Lords, in these proceedings, at the point of case management, Your Lordships basically asked questions from all parties as regards witnesses being called and it is at the point of case management where such an election is notified to the court.
“At that point, they elected to submit a witness statement. Now, that witness statement is not yet in evidence; that is true, but this is referring to an election; the point of election came at the point of the case management and we are respectfully submitting that this witness cannot run away from cross-examination when they have elected”, he argued.
Some of the Justices on the Bench engaged Mr Tsikata with some questions about whether his arguments meant a witness must, by all means, mount the dock even against his or her wish.
Justice Gertrude Torkornoo, for instance wondered if it did not border on human rights.
"Mr Tsikata I want to understand something; are you suggesting that a witness can be compelled to give evidence? Mr Tsikata isn't compelling someone to testify a human rights questions? Nobody can compel a witness to testify".