The second witness for former President John Dramani Mahama in the election petition hearing, Dr Michael Kpessa-Whyte, Tuesday denied a suggestion by counsel for the Electoral Commission (EC) that he (the witness) had left the EC ‘strong room’ when he realised that the petitioner had lost the presidential election.
According to the witness, it was not true that he, together with his other colleague in the strong room, had left the strong room when they realised that the petitioner had lost the election.
Dr Kpessa-Whyte was responding to a suggestion put to him by counsel for the EC, Mr Justin Amenuvor, that he had left the room because he realised Mr Mahama had lost the election.
“That is not true because we had not come to that point and so we could not have put the results together to know who was winning or losing,” he said.
In his witness statement, which was adopted by the court after he had been sworn in Tuesday, Dr Kpessa-Whyte said he, together with his colleague, Mr Robert Joseph Mettle-Nunoo, had not certified some of the summary sheets of the results from some of the regions because they had noticed “many material errors” in the collation of the votes.
In Paragraph Eight of his statement, the witness said after making their observations known to the Chairperson of the EC, Mrs Jean Adukwei Mensah, she asked them to go and consult with the petitioner and return, assuring them that she would hold on with any declaration of the results until their concerns with the collation of the votes had been addressed.
“She added that she would send a dispatch rider to accompany us back to the ‘strong room’ to relay the feedback from the petitioner before she declared the results,” Dr Kpessa-Whyte said in his statement.
During cross-examination by Mr Amenuvor, Dr Kpessa-Whyte admitted that the EC chair had not instructed him to leave the room personally but insisted that they left the room because of the issues raised about the collation process and for the ultimate will of voters in the election.
He reiterated that he had left the strong room with his colleague based on the assurance given to them by the Mrs Mensa that she would hold on with the declaration of the presidential results until the issues raised in respect of the material irregularities had been resolved, only for the EC to declare the results in their absence.
He added that it was the assurance given by the EC Chair that informed his decision to even leave all their belongings behind in the strong room.
Mr Amenuvor then asked why they did not sign some of the regional results, even though their regional party agents had signed them.
In his response, Dr Kpessa-Whyte told the court they did not sign the forms because due diligence needed to be done, adding that there was no space for them to indicate the reasons they did not sign the results.
Form 13, which is the collated presidential election declaration result, did not come to his attention throughout his time in the strong room, he said.
When Mr Amenuvor put it to Dr Kpessa-Whyte that they were never instructed by the Chairperson of the EC to leave the strong room, the witness replied that was not the case.
Counsel further put to the witness that he had abandoned his duty by leaving the strong room.
Dr Kpessa-Whyte said that was not the case, and that they had no reason to believe that the EC Chair was telling them a lie.
“We would not have left the strong room with our tools and car behind,” he said.
After an hour of cross-examination by Mr Amenuvor, Mr Akoto Ampaw, who is counsel for the second respondent, President Nana Addo Dankwa Akufo-Addo, took his turn to cross-examine Dr Kpessa-Whyte.
Mr Ampaw, in a short dialogue, put it to the witness that the EC chair had no power to instruct them, to which Dr Kpessa-Whyte replied in the affirmative.
But the witness again disagreed with counsel on a question that they had left the strong room on their own volition.
There was no re-examination by counsel for the petitioner, Mr Tsatsu Tsikata.
Members of the panel asked the witness further questions.
Justice Yaw Apau and Justice Mariama Owusu asked why both Dr Kpessa-Whyte and his colleague had left the strong room when they were there to represent the petitioner’s eye and body.
Dr Kpessa-Whyte said they both left in good faith.
Justice Samuel K. Marful-Sau wanted to know who had instructed him, since Dr Kpessa-Whyte had told the court that he did not speak to the EC Chairperson in person.
Dr Kpessa-Whyte said the instruction was issued through his colleague, Mr Mettle-Nunoo.
Before proceedings commenced yesterday, the legal team of the petitioner filed an application to inspect some of the EC’s original documents.
They include the originals of the presidential election results collation forms for all 275 constituencies, all constituency presidential election results summary sheets and the regional presidential election results collation forms for all regions.
The rest are the originals of all regional presidential election results summary sheets, the declaration of presidential results form and records of the alleged updates to the purported declaration of presidential election results on December 9, 2020 of the results of four constituencies in the Greater Accra Region.
Any more witnesses?
The Chief Justice and President of the panel, Justice Kwasi Anin Yeboah, asked Mr Tsikata whether the petitioner would be calling another witness.
Mr Tsikata told the court that a determination on whether to call a witness or not would be based on the feedback from the EC.
The panel then ordered counsel for the EC and President Akufo-Addo to file their responses to the motion by close of yesterday.
The court is, therefore, expected to hear submissions from all parties with respect to the motion today, after which it would make a ruling on it.
It is the case of former President Mahama that no candidate won the 2020 presidential election and, therefore, the declaration of President Akufo-Addo as the winner of the election by the Chairperson of the EC, Mrs Mensa, was “null, void, unconstitutional and of no legal effect”.
He argued that as per the results announced by Mrs Mensa on December 9, 2020, no candidate garnered more than 50 per cent of the total valid votes cast, as required by Article 63(3) of the 1992 Constitution.
The petitioner is, therefore, asking the Supreme Court to order the EC to organise a second election (run-off) between him (Mahama) and President Akufo-Addo because, in his estimation, no candidate won the 2020 presidential election.
In their responses, President Akufo-Addo and the EC argued that the petition was incompetent, lacked merit and raised no reasonable cause of action.
It is their contention that the petition did not even meet the requirement of a presidential election petition, as stipulated in Article 64 (1) of the 1992 Constitution, and was, therefore, incompetent.
That, they argued, was because the petition made no allegation of infractions in the election at any of the 38,622 polling stations and 311 special voting centres.