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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