The Supreme Court’s dismissal of motion of leave to serve interrogatories -A case of irrelevance or inadmissibility

 

The Supreme Court has just dismissed a motion of leave to serve interrogatories filed by Counsels for the petitioner in the 2020 election petition hearing.

It may interest you to know that in 2013 a similar motion of leave to serve interrogatories was filed by Counsel for then petitioner Nana Akufo-Addo, the 9 Justices of the Supreme Court in a judgement read on their behalf by Justice Gbadegbe unanimously granted that motion for leave to serve interrogatories.

The motion of leave to serve interrogatories in that instance was filed by the petitioners to solicit some answers to key questions which they thought would be relevant to the trial and their case... 

All the 9 Justices of the Supreme Court agreed with the petitioners that the interrogatories were relevant to the petitioners case and so they granted it.

Today a 7 member panel presided by Justice Anin Yeboah who was part of the 9 Justices that granted that motion of leave to serve interrogatories in 2013 have unanimously dismissed another motion of leave to serve interrogatories filed by another petitioner on the basis that cross examination would provide  Counsel for the petitioners the opportunity to solicit the answers  to those questions filed in their motion.

Our contention here is that in the 2013 election petition hearing, there was cross examinations during the main trial and even though the Judges knew of the possibility of such cross examinations, it still granted the motion of interrogatories filed by then petitioner Nana Akufo-Addo, so what has changed this time round?

I have seen some lawyers and legal commentators argue that even though the motion of leave to serve interrogatories was refused by the Court, nothing spoil!

Counsel for the petitioner can still raise those issues during the course of the trial especially during cross examination which we totally agree, but there is a saying in Akan that says “a slap that belongs to you, the earlier you take it the better”

So what the Supreme Court has done through this dismissal is only to defer this unavoidable “slap” that ultimately belongs to the Chairperson of the first Respondent to later in the the trial.

From my layman observation, what Counsel for the petitioner the legendary Tsatsu Tsikata sought to do with this motion of leave to serve interrogatories was to cleverly expose some very fundamental flaws in the conduct of the first respondent as early as possible and that would have totally shaped the course of this trial remotely but most importantly cast a perpetual doubt on the credibility of the chairperson of the first respondent right from beginning of this case and that would have been a technical knockout for the first and second respondents.

What the Judges have done through their ruling is to provide an early shield for the first respondent and deny the petitioners an early lead that’s all.

Again issues of interrogatories are matters of discretion that lies solely in the chest of the learned justices and no one can fault them.

As for the issues of relevance, I’ll leave you to make your own determination but not without a little preamble....

First of all, what is the case of the petitioners?

The summary of case of the petitioners is that the results as announced by the first respondent on the 9th of December,2020 was flawed and that the second respondent did not acquire the legal percentage of votes required by law to be declared winner of the elections by the chairperson of the first respondent.

So consider the following questions filed in the interrogatories and  tell us whether they are relevant or not?

For instance,under  question 4 and 5 the petitioners are seeking to find out how results were transmitted from the Constituency collation centers to the Regional Collation Centers and also from the Regional Collation centers to the headquarters of the first respondent.

Well the final declaration made by chairperson of the first respondent was based on these results transmitted to her and so how she received those results from the constituencies and regions basically would play a key role in determining the credibility of the final declaration.

True or false?

Under question 6 of the interrogatories, the petitioners are seeking to find out if the National Communication Authority,(the NCA), the state entity in charge of the State’s Communication Infrastructure played any role in the transmission of results.

Now why is this question relevant?

Well in my layman’s opinion, this is relevant mainly because the NCA is manned by Politically exposed persons loyal to the second respondent, if the NCA played any role, then to what extent did their involvement affected the credibility of the eventual declaration by the chairperson of the first respondent?

This for me is one of the most crucial questions in the entire interrogatories which I would explore later in a separate write up.

Under question 7, the petitioners aim was to accertain at what material time, the Chairperson of the first respondent discovered that she had made a mistake in her declaration?

This question was based on the ECs own admission that there were errors with her final declaration through a press statement on the 10th of December,2020.

In that statement, the Chairperson of the first respondent, admitted that she inadvertently used a wrong figure in computing the percentage of votes acquired by the candidates (emphasis on “she” because the statement read, “the Chairperson of the Commission inadvertently used....”) the statement clearly laid the errors right at the doorstep of the chairperson of the first respondent, this is the EC speaking, who are we to dispute that?

Under question 8, Counsel for petitioners wanted to know how the chairperson of the first respondent got to know that there were errors in her December,9th declaration?

Very simple question but extremely relevant to credibility of the results...

Was through re-collation or re-computation?

Under question 9 Counsel for the petitioner just wanted to know, if the chairperson of the first respondent, after realizing that she had committed an error in her December 9th declaration, conferred with official agents of the parties or candidates before amending her declaration on the 10th December?

How can anyone argue that this question is not relevant, this question questions the legitimacy of her amended declaration!

And under the final question 12, Counsels for the petitioner were asking if the chairperson of the first respondent RECORDED any discrepancies in the computation of the results?

These are questions that goes to the heart of the petitioner’s case.

Their relevance per the respondents petition can never be in doubt, but what we would wait patiently for is the full ruling of the Court on this matter and consider the reasons attached to this decision to unanimously dismiss these interrogatories by the judges then we can all take a cue from it going forward but I very much doubt the issue of relevance would feature in his Lordships reasons.

For now, the Chairperson of the first respondent has only deferred a “slap” that ultimately belongs to her for another day, because the nature of the questions as filed in the interrogatories by Counsel for the petitioner requires that only she can respond to these questions if they show up during cross examination and we can only wish her well when the time comes...Madam Jean Adukwei Mensah( with due permission from Justice Nene Amegatcher to mention her name just once more!!)

Mensah Thompson

Executive Director,ASEPA