Friday, May 17, 2013

The Supreme Court has enough evidence already? (Part I)

Friday, May 17, 2013
Presiding Judge William Atuguba yesterday dismissed the motion filed by Tsatsu Tsikata (counsel for the NDC) to cross-examine a number of witnesses whose affidavits were tendered as evidence by the NPP petitioners challenging the outcome of Election 2012 (Presidential).
In dismissing the motion, he said that “the court has enough evidence to make a firm decision and would not need extra information from the said witnesses to make a determination of the case”. He also said that granting the request would “prolong the case”.
By this stroke of judicial constraint, has Judge Atuguba prejudiced the outcome of the case already? Has he set the tone for dangerous speculation?

I find it difficult to answer these two questions; but I am persuaded that the dismissal of the motion and the reasons given for it by Judge Atuguba raise troubling questions and leave their answers open-ended.
If the Court already has enough evidence to make a firm decision and would not need extra information from those witnesses to make a determination of the case, why isn’t the hearing of the petition over by now?
The problem created by the dismissal of this motion and the reasons supporting the Court’s action has already added fuel to the entrenched position taken by the petitioners and their supporters vis-à-vis the respondents and their followers.
Already, there is much talk that whichever way the Court’s judgement goes, it will not be accepted by the losing party. The game of dangerous speculation is already in full swing and opinions being bandied about as part of the conscientization process in readiness for the outcome of the Court’s determination of the petition. And Judge Atuguba’s pronouncements aren’t helping matters.
We recall that the motion was filed on May 10 by Tsatsu to cross-examine the NPP MP for Tano North in the Brong- Ahafo Region (Freda Prempeh), Kwabena Twum Nuamah, Abdulai Hamid, and Hussein Safianu. The others are Eugene Sackey, (NPP candidate for Upper West Akim) and Peter Wuni Baga, (NPP candidate for Nalerigu-Gambaga). They had alleged irregularities in their sworn affidavits as prescribed by the court.
In filing the motion, Tsatsu was exercising the option of cross-examination and needed to provide compelling reasons why these witnesses must be hauled into the witness box.
Tony Lithur and Quashie-Idun had also served notice that they wanted to cross-examine those witnesses who had come by affidavits evidence.
Let’s examine the two main reasons given by Justice Atuguba to place our viewpoints in their proper context.
The Court has enough evidence
By saying that “the court has enough evidence to make a firm decision and would not need extra information from the said witnesses to make a determination of the case,” Judge Atuguba has created an impression with wide-ranging implications.
Is the court’s “enough evidence” based on the affidavit evidence provided by the very witnesses he has prevented the respondents’ counsel from cross-examining? How authentic is that “affidavit evidence” for the court to consider as “enough” and not warranting any cross-examination for its veracity or otherwise to be established and confirmed?
Is Judge Atuguba saying that the court has already accepted the “affidavit evidence” given by those witnesses as substantial enough to warrant no further scrutiny by the respondents’ lawyers? Or is he admitting from that one-dimensional view of the “affidavit evidence” that the court can determine the case with it; thus, no new angle should be opened? Baffling.
By precluding any further scrutiny, how does Judge Atuguba want us to assess the “affidavit evidence” from those witnesses?
This reason has provoked concern. While the petitioners may hail it as “victory” for them, others see things differently. Here is how someone sympathetic to the cause of the respondents sees things: the meaning of this ruling is that the judges are pleased with the facts so far on the side of the respondents; therefore, they don’t need further information for their verdict. It sounds clear that they want to cut things short and dismiss the case since they are convinced that this is not a case to waste time on. The respondents have given them enough so they don’t need to go any further.
The calibre of the witnesses
We know that Abdulai Hamid was the Presiding Officer at a polling station alleged to be the venue of irregularities. The other three witnesses were themselves candidates in the elections and they testified to matters that took place at collation centres which are essential to the determination of the case that is before the court.
As Tsatsu argued, if these were people who, indeed, had personal knowledge of the matter, “we will find out from the cross-examination whether they are telling the truth or not telling the truth.” He submitted that the court would be well served if people who claim to have personal knowledge of the facts to which they have deposed are cross-examined—all in the interest of fairness and justice that they be cross-examined to check the veracity of their claims. 
According to him, it is also clear in the testimony of the main witness (Bawumia) that they have also sought to rely on the allegations in those affidavits sworn by these witnesses.
By cutting short the process, is the Court saying that it has already established the truthfulness or otherwise of the witnesses? By what means could it do so?
Prolonging of the case
Judge Atuguba was quick to establish that hauling those witnesses into the witness box for cross-examination would prolong the case, which raises its own set of questions.
What is the urgency of the case being heard by the Supreme Court to warrant any talk of its being “prolonged” if further cross-examination was done by the respondents’ counsel?
How does the Supreme Court weigh the petition before it? Has it set any time frame within which to dispose of the matter? Where is it to warrant any fear that a cross-examination of the witnesses will prolong it?
For as long as the Supreme Court hasn’t informed us about any timeline for hearing/determining this case, any talk of “prolonging” is misplaced. Unless the Court wants to tell us that it has a secret time table by which to determine the case, there is no justification for what Judge Atuguba cited as a reason for dismissing the motion.
What is the urgency at this stage to warrant the court’s dismissal of the motion? What warrants that urgency?
It is past five months now since the petition was filed for the Court to determine. There has been much talk of this determination being done “expeditiously” (probably in reference to how the Kenyan Supreme Court handled that country’s version of the election petition filed by the defeated Raila Odinga). That may explain why the Supreme Court quickly stepped in to streamline affairs and narrow down the petition to only two categories of issues to determine.
The Court has also given directives on how the pink sheets exhibits should be put together for expeditious cross-examination. It has also urged the petitioners and the counsel for the respondents to work together to sort out differences so the matter could be heard without any hitch over technicalities in the course of proceedings. We have all seen the outcome.
That being the case, one expects that anything that can help the court function diligently and smoothly should be done. That is why the dismissal of the motion is questionable, and the reasons given for it are problematic.
I shall return…
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