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The lead counsel for former President John Mahama in the ongoing election petition, Mr Tsatsu Tsikata, has said that Electoral Commission Chair, Jean Mensa, cannot run away from cross-examination.

Mr Tsikata made the comment in court on Monday, 8 February 2021 while arguing against the decision by the first respondent’s lawyer, Mr Justin Amenuvor, that his side did not intend to call any witnesses in the matter.

Mr Akoto Ampaw, the lead counsel for President Nana Akufo-Addo also took a similar stance.

"My Lords, we do not intend to call any witness and my Lord, we do not intend to call any witness because in our view, they have not satisfied the burden of proof. So, we can’t be forced to call any witness", he told the court. 

Should the court rule in favour of the respondents, it means Mrs Jean Mensa and Mr Peter Mac Manu, will not be mounting the dock for cross-examination.

Addressing the court after cross-examining Mr Robert Joseph Mettle-Nunoo, the third of former President John Mahama, Mr Amenuvor, said: “My Lords, with respect, it’s our submission that in view of the [pieces of] evidence led by the witnesses of the petitioner, and our cross-examination so far, speaking for the first respondent, I am of the view that there is sufficient evidence before the court for this petition to be determine and, therefore, my Lords, it is the first respondent’s case that we do not wish to lead any further evidence and, therefore, we are praying that this matter proceeds under Order 36 Rule 4(3) and C.I.87 Rule 3(e)(5) and, we hereby, on that basis, close our case”.

Asked by the Bench what that meant for the first respondent’s witness statement, Mr Amenuvor said: “My Lord, under C.I.87 Rule 3(e)(5): ‘If a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence, any other party may put that witness statement in as hearsay evidence’. So, My Lords, we are saying we are not calling any further witnesses. If [any party] decides to treat our witness statement as hearsay evidence, well, that side can treat it as such but we are not leading any further evidence”.

However, Mr Tsatsu Tsikata, counter-argued: “It is our respectful submission that counsel for the first respondent that not have it opened to him to take the course that he just proposed to this court. Order 36 Rule 4(3) that he referred to, specifically says: ‘Where the defendant elects not to adduce evidence’. In this proceedings, the defendant has put in a witness statement.”

“The election that they made to submit the witness statement to the court, is a clear a clear indication that they made an election to the contrary because My Lords, in these proceedings, at the point of case management, Your Lordships basically asked questions from all parties as regards witnesses being called and it is at the point of case management where such an election is notified to the court.

“At that point, they elected to submit a witness statement. Now, that witness statement is not yet in evidence; that is true, but this is referring to an election; the point of election came at the point of the case management and we are respectfully submitting that this witness cannot run away from cross-examination when they have elected”, he argued.

Chief Justice Anin Yeboah, however, asked Mr Tsikata to tone down on his choice of words, saying “evade” would have been a more appropriate word to use, to which Mr Mahama’s lawyer conceded.

Some of the Justices on the Bench also engaged Mr Tsikata with some questions about whether his arguments meant a witness must, by all means, mount the dock even against his or her wish.

Justice Gertrude Torkornoo, for instance wondered if it did not border on human rights.

"Mr Tsikata I want to understand something; are you suggesting that a witness can be compelled to give evidence? Mr Tsikata isn't compelling someone to testify a human rights questions? Nobody can compel a witness to testify".

The court adjourned the hearing to Tuesday, 9 February to hear arguments from both sides and make a ruling on that particular matter.