The case was filed by the National Democratic Congress’ 2020 Presidential Candidate, John Dramani Mahama. He is the former President of Ghana who lost the 2016 election and contested in the 2020 polls with the hope of capturing power.
In accordance with the rules governing the hearing of petitions in Ghana, Mr Mahama named Ghana’s electoral management body, Electoral Commission and Nana Akufo-Addo as respondents. President Akufo-Addo has been President of Ghana since 2016 and was declared the winner of the 2020 polls by the Electoral Commission.
John Mahama’s case
Mr Mahama claims none of the candidates who contested the polls obtained more than 50% of the votes cast. He alleges that the person said to have won the polls benefitted from vote padding.
He also claims the candidate benefitted from arithmetic and computational errors. He concludes that the EC’s declaration of President Akufo-Addo is unconstitutional since he did not obtain more than 50% of the votes cast.
What John Mahama wants?
He wants the Supreme Court to rule that the election results as declared by the EC Chairperson, Jean Mensa, breached the constitution. He is further asking the court to annul the results of the polls and order the EC to organise a run-off between himself and President Akufo-Addo.
Electoral Commission’s response
But the EC says the petition is incompetent. It admits that it’s Chairperson Mrs Mensa inadvertently read out the figure representing the total number of votes cast as the total number of valid votes and the percentage of Mr Akufo-Addo as 51.59% instead of 51.295%. It says the allegation of vote padding is untrue. It however admits that minor discrepancies may have occurred as a result of computational and mathematical errors in the course of collation. These errors the commission insists did not affect the outcome of the results as declared by the EC.
Nana Akufo-Addo’s response to petition
On his part, President Akufo-Addo says the petition does not disclose any attack on the validity of the election held in 38,622 polling stations. He says the allegation of vote padding involving some 6,622 votes is empty and insignificant to materially affect the outcome of the election.
He further contends that the petition does not state how many votes Mr Mahama should have obtained except pointing out that none of the candidates got more than 50% of the votes cast.
The case is being heard by Chief Justice Anin Yeboah and Justices Appau, Marful-Sau, Nene Amegatcher, Prof. Kotey, Mariama Owusu and Gertrude Torkonoo.
The Chief Justice was appointed to the Supreme Court by the New Patriotic Party’s John Kufuor in 2008 and elevated as Chief Justice in 2020 by President Akufo-Addo. He was part of the 2012/2013 petition and in his ruling he called for fresh elections to be organised since the polls were fraught with irregularities and statutory violations that have been proved.
Justice Appau was appointed to the Supreme Court by the NDC’s John Mahama in June 2015. One of the most recent public interest cases he participated in is the case filed by the AG asking that that the court sets aside an injunction granted against the gazzetting of John Amewu as Hohoe MP. He was actually the presiding judge and that court ruled 5-0 that the judge erred in granting the injunction. He was also part of the panel that heard the case filed by Prof Kwaku Asare challenging the monopoly of the Ghana School of Law. He agreed with his colleagues in dismissing this case.
Justice Marful Sau was appointed to the Supreme Court in July 2018 by President Akufo-Addo. He was previously a Court of Appeal judge. He was also part of the panel in the SALL case at the Supreme Court mentioned earlier and the Ghana School of Law case (He agreed with his other colleagues). He participated in the voters register case prior to the 2020 elections and agreed with his colleagues that the EC can compile a new register. He was also part of the case that challenged the eligibility of Martin Amidu as Special Prosecutor. He agreed with the majority opinion that Mr Amidu was eligible to hold office. He participated in the National Cathedral case and agreed with his colleagues that the decision to build the cathedral was in tune with the social and political objectives of the constitution.
Justice Nene Amegatcher was appointed as a Justice in July 2018 by President Akufo-Addo. Prior to that, he was a private legal practitioner. He participated in the following cases; Amidu’s eligibility, Ghana School of Law monopoly, EC register compilation. In all these cases, he agreed with his colleagues mostly unanimously in dismissing it or with the majority opinion.
Justice Prof Ashie Kotey joined the Supreme Court in July 2018. He was part of the voters’ register case and the Amidu eligibility case. In both matters he agreed with his colleagues.
Justice Mariama Owusu joined the Supreme Court in December 2019 and was part of the voters register case as well. She agreed with her colleagues.
Justice Gertrude Torkonoo joined the Supreme Court in December 2019 and was part of the SALL case that unanimously held that the High Court judge erred in granting the injunction against Peter Amewu.
Issues for Determination
The court before trial commenced set the following issues for determination:
- Whether or not the petition discloses any reasonable cause of action.
- Whether or not based on the data contained in the declaration of the 1st Respondent (EC), no candidate obtained more than 50% of the valid votes cast as required by article 63 (3) of the 1992 constitution.
- Whether or not the 2nd Respondent still met the article 63 (3) of the 1992 constitution threshold by the exclusion or inclusion of the Techiman South constituency Presidential Election Results of 2020.
- Whether or not the declaration by the 1st Respondent dated the 9th of December was in violation of article 63 (3) of the 1992 constitution.
- Whether or not the alleged vote padding and other errors complained of by the petitioner affected the outcome of the Presidential Election results of 2020.
Mr Mahama’s legal team is led by Tsatsu Tsikata and has Tony Lithur as a member.
The EC is represented by Justin Amenuvor and A.A Somuah Asamoah.
President Akufo-Addo’s lawyers are Akoto Ampaw, Frank Davies, Kwaku Asirifi and Yaw Oppong.
Three witnesses were presented by the petitioner to be cross-examined by the respondents. They are Johnson Asiedu Nketia, the NDC’s General Secretary, Dr Michael Kpessa Whyte, and Rojo Mettle Nunoo who were Mr Mahama’s representatives at the EC’s National Collation Centre (strongroom).
The crust of Mr Nketia’s testimony is that the declaration of the EC on December 9 is error-ridden; makes no mathematical sense and indicates that no one won the polls. The other witnesses alleged they discovered errors during the computation and informed the EC. They claim they were instructed to go and confer with the party’s presidential candidate. It was while they were away, that the results were declared.
The EC and President Akufo-Addo opted not to call any witnesses, insisting a case meriting an answer has not been made.
The seven justices and at times nine judges hearing the 2020 Election Petition have been called upon on 11 occasions to rule on various issues.
These are matters that have seen lawyers representing the Respondents (EC and President Akufo-Addo) take positions contrary to the position of the petitioner, John Mahama.
The seven judges hearing the case are Chief Justice Kwasi Anin Yeboah, Justices Yaw Appau, Marful Sau, Nene Amegatcher, Prof. Kotey, Mariama Owusu, and Gertrude Torkonoo.
They have on three occasions been joined by Justices Amadu Tanko (all three occasions) and Prof Henrietta Mensa Bonsu (twice) and Avril-Lovelace Johnson (once).
During the trial, it was only on one occasion that a request by the petitioner was wholly granted.
This was the request to correct mistakes.
The petitioner’s viewpoint has been partly upheld on two occasions when it came to striking out portions of witness statements.
The legal arguments of the Respondents have, however, swayed the judges eight times.
Read major rulings below: