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Supreme Court

We cannot compel Jean Mensah to give evidence – Supreme Court judges hearing Mahama’s election petition

The Supreme Court has in a unanimous decision upheld the application by the 1st and 2nd Respondents not to call any witnesses in the ongoing election petition hearing.

The decision by the apex court follows oral arguments made by the lawyers for the Electoral Commission and President Akufo-Addo that their clients cannot be compelled to testify.

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 therefore it will be wrong for the lead counsel for Mr. John Mahama to induce evidence from the Chairperson of the EC, Jean Mensa.

But disputing these arguments, lead counsel for the petitioner, Tsatsu Tsikata said since the lawyers have not made a submission of no case, the burden of proof does not apply as argued by the lawyers for the EC and Akufo-Addo.

He also explained that the EC Chairperson  has a constitutional duty to give accounts of events that led to the December 9, 2020 election declarations and to clarify how some errors were made.

But siding with the respondents in its verdict, the Chief Justice, Kwasi Anin -Yeboah said submitting a witness statement does not constitute evidence until the witness enters the box and takes the oath to indicate reliance on it.

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

He explained that no provision in the constitution or statute has been pointed out to show the EC chairperson can be subjected to different rules contrary to established rules of procedure and settled practice.

Chief Justice Anin Yeboah also sided with the respondents that the burden of proof lies on the petitioner and can only be shifted when that condition has been satisfied.

He maintained that the court does not have the power to compel a party to give evidence.



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