Supreme Court Rules Jean Mensa Can Swerve Cross-Examination

Ghana’s Supreme Court has strangely Jean Adukwei Mensa, the Electoral Commission Chairperson whose controversial declaration of Nana Akufo-Addo as winner of the 2020 Presidential election led to the filing of a petition cannot be compelled to undergo cross-examination.

This is the ruling of the seven-member panel hearing the 2020 presidential election at the Supreme Court. 

According to the court, it does not lie in its power to compel anybody to give evidence in any case, even if it is the Chairperson of the Electoral Commission whose declaration of election results is in dispute. 

And as has been the curious pattern of the panel of apex court judges sitting on the case, the court gave this ruling too as a unanimous verdict.

The ruling means that Jean Adukwei Mensa has shrewdly succeeded in outsmarting every move that the lawyers for the petitioner, former President Mahama, had made to have her mount the witness box and explain how she declared Akufo-Addo President-Elect on 9^th December, using mathematics that has since refused to make sense.

Before the ruling, the controversial EC boss had resisted attempts by lawyers for Mr. Mahama to serve her interrogatories. She had used the excuse that the issues raised in the interrogatories were the very issues under determination and would therefore inevitably be dealt with during cross-examination, however, the cross-examination she declared to subject herself to has been dodged too.

After the court had assented to her refusal to be served interrogatories by the petitioner. Mr. Mahama made another attempt to get the EC boss to release public information critical to the justice sought in court, so, he applied to inspect her election documents. But again, the court, unanimously dismissed that application saying the issues are spelt out in the case of the petitioner and her responses.

All along, the EC’s lawyers had advertised that Jean Adukwei Mensa would be called as a witness who would be cross-examined. But people looking forward to hear Jean Mensa explain how she declared the results on 9^th December, and then subsequently changed the figures six times in the absence of agents of the candidates had the rag pulled from beneath them when the EC’s lawyers announced they will no longer call witnesses.

Lead Counsel for Mr. Mahama, Tsatsu Tsikata, had argued Jean Mensa, by her shrewd tactics, was trying to evade cross-examination. He had pointed out that even though Lawyers for the EC and President Akufo-Addo had announced they were closing their cases, they had not made a submission of no case and therefore the controversial Jean Adukwei Mensa must be compelled to enter the witness box.

But today, Counsels for President Akufo-Addo and the EC, gave oral arguments backing their position, and accused Mr. Mahama and his lawyers of trying to adduce evidence from the EC boss to help their case.

Citing Order 38, rule 3 (e) sub-rule 1 and 5 of CI 47 as amended by CI 87, the two counsels had argued that the burden of proof in the petition hearing lies on the petitioner and not the EC. 

Mr. Tsikata countered, reiterating that since a submission of no case has not been made, the burden of proof does not apply.

He also reiterated that Jean Mensa occupies a very important position and has a duty to give accounts leading to her controversial declaration of Akufo-Addo as the winner of the 2020 election.

The EC Chairperson, he added had submitted a witness statement and should therefore be available for cross-examination.

However, Chief Justice Kwasi Anin Yeboah who read the panel’s fourth consecutive decision in favor of President Akufo-Addo and the EC said submitting a witness statement does not constitute evidence until the witness enters the box and takes the oath to indicate reliance on it.

Also, the depositions in affidavits with regards to the interrogatories do not mean the witness can be compelled.

According to him there is no provision in the constitution to show the EC chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.

He and the panel sided with the respondents position that the burden of proof lies on the petitioner and can only be shifted when that condition has been satisfied.

Also, he said the court does not have the power to compel a party to give evidence.

The apex court has subsequently ordered the respondents to file their addresses for the closure of their case by February 17.

Hearing has also been adjourned to February, 18 2021.