Former President John Mahama has said: “I am quite alarmed at the mutilation” of Mr Johnson Asiedu Nketsiah ’s testimony by the Supreme Court in its judgment on the election petition delivered on Thursday, 4 March 2021.
“Indeed, the ruling I heard today, virtually makes him the star witness of the 1st and 2nd Respondents”, Mr Mahama said in a speech he delivered in the evening, hours after the judgment, adding: “Many answers of his testimony in cross-examination were taken out of context to create the basis for the dismissal of our election petition”.
“This case will go into the Ghana Law Reports for the future, and academics and students of law alike will clearly find befuddling, the internal contradictions in our jurisprudence. At the appropriate time, the legal team will come out with detailed comments on the judgment”, the 2020 flag bearer of the main opposition National Democratic Congress said.
The court said President Nana Akufo-Addo, according to the evidence extracted from the General Secretary of the NDC, got more than 50 per cent of the valid votes cast in the 7 December 2020 presidential election to be declared the winner.
In its judgment, the seven-member panel, chaired by Chief Justice Kwasi Anin-Yeboah, said the 13,434,574 “erroneously announced” by Electoral Commission Chair Jean Mensa, as the “total valid votes cast” instead of the corrected figure of 13, 121,111, could not be used to argue that the President did not cross the required threshold.
According to the court, the testimony of Mr Mahama’s star witness bore out the correct total valid votes of 13, 121,111 out of which President Nana Akufo-Addo of the NPP obtained 6,730,413 while Mr Mahama obtained 6,214,889.
“In this petition, evidence has been adduced through PW1, Mr Asiedu Nketsiah , to show that the actual total valid votes cast, excluding the votes from Techiman South, at the time the declaration was made, was 13,121,111. This figure has been admitted by the petitioner in paragraph 12 of his petition”, the judgment read.
Mr Asiedu Nketsiah according to the judgment, admitted in court that President Akufo-Addo had 51.295 per cent of the valid votes while Mr Mahama, the petitioner, had for 47.366 per cent.
“From the pleadings of the petitioner at paragraph 12 thereof and the evidence elicited from Mr Asiedu Nketsia has shown above, there is no doubt that the petitioner accepts that the total valid votes cast was 13,121,111 and not the figure 13,434,574 erroneously described by the Chairperson of the first respondent on the 9 December 2020.
“Having determined, on the evidence adduced at the trial that the total valid votes cast was 13,121,111, there’s no legal basis for anyone to contend that a different figure of 13,434,574 be used as the total valid votes cast in measuring the more-than 50 per cent threshold required under article 63(3) of the 1992 Constitution”, the court said.
“Indeed”, it noted, “PW1, Mr Asiedu Nketsiah, under cross-examination on the same 1 February 2021 by counsel for the second respondent, admitted that it would be wrong for anyone to use the total votes cast to measure the threshold”.
“You cannot use that wrong figure as the basis for your claim that there should be a rerun between the second respondent and the petitioner?” the court quoted the second respondent’s counsel as putting to Mr Asiedu Nketsiah during cross-examination, to which the NDC General Secretary answered: “Yes, My Lord”.
“By the above evidence, PW1, Asiedu Nketsiah conceded that the figure representing the total votes cast, that is 13,434,574, cannot be the basis for measuring the more-than-50 per cent threshold required for a candidate to be elected the President under Clause 3 of article 63 of the 1992 Constitution, which provides thus: ‘A person shall not be elected as president of Ghana unless at the presidential election, the number of votes cast in his favour, is more than 50 per cent of the total number of valid votes cast at the election’”, Justice Anin-Yeboah read.
The above provision of the Constitution, he noted, “is clear that the threshold to be crossed by a candidate to be declared as President, should be more than 50 per cent of the total valid votes cast and not the total votes cast”.
“From the evidence on record, it is clear to us that it is absolutely wrong to hold on to the error committed by the Chairperson of the first respondent in announcing the total votes cast when from the data used in announcing the results and the true figure representing the total valid votes cast, actually totaled and was known to be 13, 121,111.
“The evidence also is that this error was corrected. More so, there is no evidence on record showing that the error and subsequent correction had any adverse impact on the results so declared. As demonstrated, the candidate declared as the winner, still passed the more-than-50 per cent threshold as required by clause 3 of article 63 of the 1992 Constitution.
“We are, therefore, of the considered opinion that the Chairperson of the first respondent had the right to effect the correction she made when she erroneously referred to total votes instead of total valid votes cast in the declaration. In conclusion this issue, we hold that there is evidence on record to show that based on the data contained in the declaration of the Chairperson of the first respondent, the second respondent obtained more than 50 per cent of the valid votes cast as required by article 63(3) of the 1992 Constitution”, the judgment read.
Mr Mahama, however, noted that “the national debate on the dismal state of our democracy and the increasing weakness of its institutions has only just begun” after the judgment, adding: “It is time we all come together to confront those who seek to destroy the very democratic system that brought them into office. It is our patriotic duty to do so”.