Friday, May 17, 2013

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

Friday, May 17, 2013
The cross-examination of Bawumia by Tsatsu Tsikata has so far travelled 10 days; although there are hints that it will soon end, there still remains some thorny aspects of the petitioners’ evidence to be scrutinized. The motion was one means to do so.
In arguing for it, Tsatsu drew the court’s attention to the fact that they were not seeking to cross-examine all of the witnesses but that they would pick and choose which one of them they deemed necessary at a time.
He grounded his arguments in legality and quoted portions of CI 74 which states that a person who has sworn an affidavit may be cross-examined and re-examined as necessary. He said these are witnesses whose testimonies are before the Lordships and that what the respondents’ counsel were seeking leave to do was to cross-examine those witnesses for their truthfulness to be determined by the court.

His arguments were, therefore, geared toward establishing the relevance of the motion for cross-examination of those witnesses. He said the rules of court make it quite clear that the process is of the essence of the trial. He quoted Section 62 (2) of the Evidence Decree to back his argument. He said the truth of the matter to which these witnesses have testified is an important basis for which they must be brought before the court.
The problem is that the dismissal of the motion won’t allow us to know more than we do now. As a friend put it, if the judges feel that in the absence of the cross examination of those witnesses their final declaration will not be affected, then, it's good for them to save time. However, I’m of the view that they should have allowed the respondents to cross examine them since the counsel for the petitioners is claiming that the respondents affirmed the said irregularities and hence not responding in their affidavits.
The EC’s stance
Quashie-Idun (counsel for the EC) said that the EC has not admitted or confirmed any of the acts deposed to in the affidavits filed by the petitioners—a contradiction of the claim made by the petitioners.
He said that the subject matter of the evidence of the affidavits of the deponents was not pleaded in any of the petitions, original and amended. He quoted paragraph 12 of affidavit sworn by Amadu Sulley, Deputy Chair of the EC, filed on 16th April, saying that if they had been pleaded the EC would have responded in their answer, he said.
He reinforced Tsatsu’s position that debunked claims by the petitioners that they had admitted to the testimony of the four NPP witnesses in their affidavits.
“There are several parts of the affidavits they had not responded to” and these parts could not be disclosed except through cross-examination.
So, by dismissing the motion, how does the Court want us to reconcile all these issues surrounding the “affidavit evidence” of the witnesses?
Addison’s opposition to the motion
Of course, Philip Addison had opposed the application insofar as it concerned Kwabena Twum Nuamah, Freda Prempeh, Eugene Sackey, and Peter Wule. He stated, however, that they were not opposed to the cross-examination of Abdulai Hamid and Fuseini Sofiano.
He said the order of the court made on 2nd April, 2013, was in pursuance of an expeditious trial and quoted CI 74 to back his arguments. Addison asked what purpose the cross examination of these witnesses would serve.
So, where are we now or will we be henceforth?
By dismissing the motion and giving reasons that resonate with the rationale behind Addison’s objection, Judge Atuguba has raised eyebrows.
We wait to see what happens next; but I wonder why anybody (including this Atuguba) should be talking about the case being "prolonged". What is the urgency for this exercise in futility for mere academic purposes or the law books as a case law?
I have insisted that this Supreme Court cannot impose Akufo-Addo on Ghanaians nor can it remove President Mahama from office. Anybody expecting anything of the sort must start looking for another country to make his or her own.
Some NPP elements may rush to conclude that the striking out of Tsatsu's motion is victory for them and that the Court will deal with the petition expeditiously. But I am not bothered because "expeditious trial" doesn't necessarily mean that the determination of the case will favour the petitioners.
Probably, the Court has already seen the futility of the petition and doesn't want the trial unnecessarily prolonged. How about that?
As one of my Facebook friends queried, why is the SC in a rush and not allowing the respondents to establish the facts of the matter through cross-examining these witnesses? His contention is that the motion filed by the respondents’ counsel had a strong and firm legal backing (evidence decree), but the petitioners did not oppose the motion with any legal backing and the judges did not dismiss the motion with any firm legal backing; so, the question is: Are we doing away with the laws of the land in the name of a speedy trial...?
Again, another said: It's very unfortunate that Justice Atuguba is not allowing this landmark case to be a reference point for future student lawyers. He is cutting things too short, understandably because he may have formed an opinion already; but it’s good to allow the arguments to flow for students to benefit from the experiences of the crack lawyers.
Has Judge Atuguba set the stage for litigation that will have a nasty sequel in terms of appeals for review of the court’s judgement? Will this denial of the opportunity to cross-examine these witnesses spark off this litigation and move it in a whole new direction altogether, especially if the court’s judgement goes against the respondents? Will the lawyers cite this instance as pivotal in the determination of their clients’ fate?
Has Judge Atuguba acted properly? Or has he already pre-empted the outcome of the case?
Some may infer from some comments in the course of the 17-day proceedings to suggest that the judges have already formed their opinions on the case even when evidence has not been taken from some high profile witnesses such as Dr. Kwadwo Afari Gyan (Chairman of the EC) and Johnson Asiedu-Nketiah (representing the second respondent, President Mahama, and the NDC, the third respondent).
Is Judge Atuguba giving “wrong” signals too early? Or is he merely being pedantic and not wanting to leave anything to chance? If not, why not?
I shall return…
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