Run-off is required as no candidate got 50 percent of valid votes’ cast – Mahama to Supreme Court
The case of the Petitioner is simply that, in addition to fundamental constitutional infractions committed by the Electoral Commission chairperson, who was the returning officer of the Presidential Election, the figures announced in the declaration she herself made on December 9, 2020, no candidate got more than 50 per cent of the valid votes cast and, as a constitutional consequence, a run-off election would be required.
These were contained in former President John Dramani Mahama, the petitioner’s closing address filed by his lawyers at the Supreme Court.
Mr Mahama argued that the evidence from the terms of the declaration and the consideration that the EC Chairperson said was the basis of the declaration she was making, led to the conclusion that “Nana could only be credited with 49.625 per cent of the votes at the time.”
Mr Mahama said, “The fact that Petitioner is not indicating in this Petition what he or the other candidates should have obtained compared to numbers declared by the EC, cannot lead to a conclusion that the declaration by the EC Boss is constitutional.”
According to Mr Mahama, his own figures are “not relevant to determining whether that claim is well-founded or not.”
Mr Mahama invited the court to take judicial notice of the fact that, ahead of the December 7, 2020 elections, political parties were urged not to seek to announce results based on figures they had collated but to wait for the official declaration of the EC Boss as the returning officer for the Presidential Election.
He explained that the EC under provisions of Articles 43-54, 56 (7), 63 and 65 of the Constitution and CI 127 is charged with the conduct of the Elections.
Mr Mahama said “the starkly untenable nature of the claim that the petitioner should have put towards his own figures is put in sharp relief when it is recalled that, by virtue of Article 64 (1) of the Constitution, any citizen of Ghana can present a petition challenging the validity of the election of the president.
A citizen, in bringing such a challenge, would not be required to indicate the exact number of votes that candidates ought to have obtained. Being a candidate does not change the qualification for bringing such a Petition and cannot require more than any other citizen.”
He recalled that “No one is asking Nana Addo either to bring his figures or the number of votes he and other candidates got, nor has Nana put forward his figures in this petition as that would have no relevance in the court before the court.”
Accordingly, the Petitioner discharged the burden of proof that was on him.
The Petitioner avers that “the unsigned press statement was not only correcting the alleged wrong total valid votes cast figures announced by Mrs Jean Mensa in her declaration on December 9, 2020.
It also went on, explicably, to adjust the votes obtained by candidates Mahama and Akuffo-Addo as declared for them on December 9, 2020. Votes of other candidates were also adjusted.”
All this, the Petitioner said was done outside the framework provided by CI 127 and particularly, without the involvement of the agents of the candidates, contrary to the requirement of Articles 49 (2) and (3) of the Constitution and Regulation 44 (10) of CI127.
“Paragraph 29-30 of the amended Petition are very clear on how the Press Release issued on December 10, 2020, compounds the lack of transparency, fairness and candour of the 1st Respondent (EC) in the ever-changing figures,” the Petitioner said.
The Petitioner said the figure in the purported “correction” as to the total valid votes cast was itself repudiated by the first Respondent (EC) by the time the answer to the Petition was filed on January 9, 2021.
“It defied logic that the 1st respondent (EC) issued a “correction” on 10th December 2020 to a figure which is now claimed to have been the actual figure purported on Form 13 on December 9, 2020.”
Mr Mahama said “in the midst of changing figures of total valid votes cast as well as votes of individual candidates, it simply cannot be said that the overall results on Form 13 were not affected, especially when the figures claimed to have been form 13 are different from figures in the “correction” on December 10 2020.”
He contended that there were discrepancies in figures provided for candidates of other parties and “the material increase of Akuffo-Addo whiles at the same time materially reducing the votes of the Petitioner clearly requires explanation.”
Mr Mahama said fundamentally, there was no evidence from the EC on the basis of which any of its contradictory claims could be accepted as “the truth.”
Petitioner held that attempt to “effect a correction by an unsigned press release is wholly untenable.”
According to the Petitioner, the testimony of the three witnesses for the Petitioner showed clearly not only the breach of the duty to be fair and candid under Article 23 of the Constitution but also the lack of due process in terms of Article 296 of the Constitution.
Petitioner submitted that when matters of breaches of the Constitution or of Statute arose before a court there was an urgency about addressing those breaches.
Mr Mahama said the conduct of the EC Chairperson in sending the agents of a major candidate who should have been present in the resolution of the outstanding issues leading to the declaration and “immediately going ahead to make the declaration without even the required steps under the Regulation 44(10) were self-evidently unreasonable.”