It Should Be Possible To Treat Jean Mensa As A Hostile Witness – Law Professor

US-based Ghanaian Professor of Law, Kwaku Asare, has questioned the decision by the legal team of the Electoral Commission (EC) to shield Jean Adukwei Mensa, the EC Chairperson, from mounting the witness box to be cross-examined in the ongoing election petition case.

In a write-up, Prof. Asare, popularly known as Kweku Azar, notes that the move is an evasion in bad faith and suggests that given Jean Mensa’s centrality to the whole case, she should be treated as a hostile witness.

A hostile witness is a witness in the case but is antagonistic towards a party to a case asking her to testify because she is hiding the truth. Such a witness may be compelled to testify.

“It is also my belief that the Petitioner should be able to call the Returning Officer and treat her as a hostile witness if she chooses not to appear to defend her witness statement. The only reason the Returning Officer should be shielded from the witness box is if the Court concludes that the Petitioner’s case does not meet the prima facie test,’’ Prof. Azar wrote.

Today, expectations that Jean Mensa would mount the witness box to defend her witness statement after the petitioner, former President Mahama had closed his case did not materialize when the EC’s lawyers announced they had rescinded their decision to let Jean Mensa enter the witness box.

The EC’s lawyers’ move followed a similar move by the lawyers for President Akufo-Addo who also abandoned their earlier promise to call Peter Mac Manu as a witness.

Prof. Azar points out that while Mac Manu can be excused from mounting the witness box, Jean Mensa is not just some private individual, but the head of a public institution whose testimony should provide very important clarity on the issues.

“However, the Second Respondent, in my opinion, is neither a necessary nor a material witness. It is entirely within his right not to enter the witness box,” Prof. Azar wrote of Mac Manu.

But in respect of Jean Mensa, and the Supreme Court panel’s agreement with the position of the EC’s lawyers, Prof. Azar suggested that there was no good faith in that decision. 

“An Article 64 petition is however sui generis. The returning officer is not just a necessary and a material party but more important she is the only person who can provide definitive evidence that rebuts the Petitioner’s claims. She performs a public function and has a responsibility to answer the Petitioner’s questions. Such answers are important to all parties and the country as a whole to remove any clouds surrounding the election outcome,” Kwaku Azar pointed out.

 According to the law lecturer, not only should the Returning Officer want to tell her side of the story, the Court must actually be interested in hearing what she has to stay. “This is especially so in light of the Court’s rulings denying the Petitioner access to some materials in the Returning Officer’s custody,” he said.

Prof. Azar pointed out that if Lawyers for President Akufo-Addo and the EC feel the petitioner has not proven a prima facie case, they can go ahead and ask for a dismissal. He however wrote that in such a development, the Petitioner will have the right to provide supplementary evidence.

“Once such a motion is made, the Petitioner has the right to an opportunity to supplement its evidence so as to defeat the motion.”