The Supreme Court has questioned why Dr Michael Kpessa Whyte and Rojo Mettle Nunoo, who were the only two agents for the presidential candidate of the National Democratic Congress, Mr John Dramani Mahama in the 2020 election had to leave the Electoral Commission's (EC) strong room whilst collation was still ongoing.

At the hearing of the 2020 presidential election petition Tuesday morning, the bench asked why only one person [agent of the petitioner] did not leave but the two of them left with the explanation of going to confer with the petitioner, Mr John Dramani Mahama when they claimed to have detected some discrepancies in the figures.

"So if there was concern for you to leave, and in a heightened [atmosphere], you know in circumstances like that, will the two of you go? Because you see, you were there for a purpose, for the petitioner, his eyes, body, everything was you. You were going to confer with the petitioner, what were you expecting him to say, because you were the ones receiving the regional results. So if you had to go and confer with the petitioner, wasn't it enough for one of you to go, so that one stay around and see what is happening, looking at the atmosphere," the bench asked.

In response, Dr Kpessa Whyte said: "My lord with the greatest of respect, the question itself suggests that the first respondent [EC Chairperson] cannot be trusted and therefore we should have left one person there. I indicated to this honourable court, my lords, that we acted in good faith and realised lately that we were deceived. And so, yes, that option, we exercised the option that will allow us to give the petitioner the best of information that was available to us."

"For instance, my lords whilst he [Rojo] was there meeting with the Returning Officer, I was in the strong room. He [Rojo] needed to inform the petitioner what exactly was discussed at that time and I had to inform the petitioner what I was observing whilst I remain in the strong room, so it was important that both of us left," Dr Kpessa Whyte said.

The questions from the bench came after the counsels for first and second respondents had finished cross-examining Dr Kpessa Whyte when he mounted the witness box on Tuesday [February 2021].

He was the second witness for the petitioner, former President John Dramani Mahama.

Justice Yaw Apau's questions

As a follow up question from the bench, Justice Yaw Apau on his part asked why Dr Kpessa Whyte after going through training as an agent for the presidential candidate and was detailed to the strong room, had to leave the place on an alleged instruction by the Chairperson of the Electoral Commission for him and Roger Mettle Nunoo to go and confer with the petitioner on the said discrepancies in the figures they had received in the EC strong room.

Question from Bench [Justice Yaw Apau] : "Dr, I have a very simple question, is there a reason why there should be the two of you in the strong room at the same time?"

Kpessa Whyte: "Yes my lord, I believe it is for us to be able to confer for instance, the process involves a lot of calculations and if I may, at some point my colleague had to mention the figures for me, one by one whilst I calculate them both on the calculator and then the excel file. So there obviously was a reason why we had to, I noticed that the C.I. actually said the agents must not be more than two."

Bench: "So if there was concern for you to leave, and in a heightened, you know, circumstances like that, will the two of you go? Because you see, you were there for a purpose, for the petitioner, his eyes, body, everything was you. You were going to confer with the petitioner, what were you expecting him to say, because you were the ones receiving the regional results. So if you had to go and confer with the petitioner, wasn't it enough for one of you to go, so that one stay around and see exactly what is happening, looking at the atmosphere?"

Kpessa Whyte: "My lord with the greatest of respect, the question itself suggests that the first respondent [EC Chairperson] cannot be trusted and therefore we should have left one person there. I indicated to this honourable court, my lords, that we acted in good faith and realised later that we were deceived. And so, yes, there was that option, we exercised the option that will allow us to give the petitioner the best of information that was available to us."

"For instance, my lords whilst he [Rojo] was there meeting with the Returning Officer, I was in the strong room. He [Rojo] needed to inform the petitioner what exactly he was discussing at that time and I had to inform the petitioner what I was observing whilst I remain in the strong room, so it was important that both of us left."

Bench : "Dr, I want to be very clear on some of these issues. Now you already told this court that you were not sent to the strong room to take instructions from chairperson of the first respondent, is that correct. Your presence in the strong room was to see to the course of the petitioner but not to take instructions from the chairperson."

Kpessa Whyte: "My lord yes."

Bench: "So when the first respondent said go and consult the petitioner, what were you going to discuss with the petitioner, you were in the strong room for a purpose. She told you to go and consult the petitioner on what, we want to know?"

Kpessa Whyte: "My lord, on the specific irregularities that we have brought to your attention and she did indicate also that, the reason she was asking us to do so, so that all the stakeholders including the NPP, Peace Council and others could be invited to ensure that we have a credible results before the announcement is made."

Bench: "But you know that part of your duty is in the strong room, at the end of the day, if you had refused to sign, you were to indicate the reasons why you had refused to sign."

Kpessa Whyte: "My lord it appears to me that there is a particular side of this narrative that has not been clear. I am saying with the greatest of respect that the forms that arrived in the room, and within that room itself, there was no space whatsoever for us."

Bench: "No. I don't mean that, I am saying that at a point in time in the strong room, there will be a time for you to indicate your displeasures on what had happened."

Kpessa Whyte: "My lords, we know that...but that opportunity was denied us."

Bench: "Then you see, would it be right for me to say that, by taking contrary instructions from the chairperson of the first respondent, granted what you are saying is true, you did not help the course of the petitioner who sent you there?"

Kpessa Whyte: "My lord I don't believe that is true. We were working in furtherance of making sure the results that ultimately get announced by the first respondent reflects and represents the will of the people and if she asking us to consult the petitioner is part of how we could get there, we were happy to do it."

Bench: "Then seriously speaking you did not take your training seriously. I want to be clear. You've gone to do a particular job, then instead of doing the particular job that sent you there, you take instructions from somebody else. Then you leave your job. You see that is what I want find out, then you did not help the petitioner."

Tsatsu Tsikata

At that point counsel for the petitioner, Mr Tsatsu Tsikata rose to his feet and said, "My Lord, with respect, his Lordship [Justice Yaw Apau] is entitled to his opinion about what the petitioner did. In terms of factual evidence, about what he did and the reasons that he had, he [witness] has answered it. His Lordship can have his opinion but his opinion..., so I don't think he [witness] can be harassed with this opinion."

Justice Yaw Apau: "Please I take deference to that. I'm not harassing the witness, it is not my duty to harass him. I know that he has been sent by the petitioner to do a job for him, then somebody tells you, oh! go to the petitioner and consult him. If the petitioner could do the job, he himself would have been there. That's what I want to find out. How am I harassing him?"

Below is the full questions and answers from the bench for Dr Kpessa Whyte

Questions from the bench: "Dr Kpessa Whyte. Kindly look at an exhibit, the presidential election regional results summary sheet, it is attached to your witness statement, Eastern Region. The one with the... look at the far right column, the bottom part, reasons if refused to sign, do you see it. So are you seriously saying that if you had any reason to refuse to sign, you couldn't have registered it there, that column,...Are you seriously saying this column could not have taken your reason for refusal to sign?"

Kpessa Whyte: "My Lord with the greatest of respect, this form is designed purposely for regional representatives at the collation centre at the regional level. They are the ones who are required to sign and a space made available for them and state reasons."

"At the national collation centre, my Lords, no space whatsoever is provided on any form whatsover, to indicate why we have a concern and we didn't get it registered. And infact, it is in consideration of that, that we decided that, lets have a conversation with the Returning Officer and raise our concerns."

Bench: "So you agree with me that at the regional level, there is a space for party representatives to assign reasons for not signing?"

Kpessa Whyte: "Yes my Lord, but not at the natioal level where I was a representative."

Question from the Bench: "Mr Kpessa Whyte, you said you received training before assuming your duties."

Kpessa Whyte: "Yes my Lord.

Bench: "So you've seen Form 13 before?"

Kpessa Whyte: "Form 13, I have seen the Form 13 during the training process."

Bench: "Alright, I'm going to show you a copy of the Form 13 that has been brought to this court. It is not in evidence yet, but I'm going to show it to you... Do you see a column that is headed reason for refusal to sign?"

Kpessa Whyte: "Yes my Lord."

Bench: "Thank you."

Kpessa Whyte: "And my Lord if I may, this is not Form 13.

Bench: "What is it?"

Kpessa Whyte: "Only the first respondent (EC) can answer because if you look into the C.I. 127, a sample of the Form 13 is there. It requires you to list the regions, and list the candidates, and their individual votes as obtained from the regions. This form only listed the candidates, the votes they obtained and then subsequently had agents and the candidates and signature. So this is not Form 13."

Bench: "So when you say, that the Form 13 as you know it does not have a place for indicating your refusal to sign, you are thinking about what is in the law?"

Kpessa Whyte: "My lord I have not said the Form 13 as I know it. I only said we were not given any form in the national collation centre, that required or there was a space for us to sign."

Bench: "Thank you."

Kpessa Whyte: "Thank you my lord."

Question from Bench [Justice Yaw Apau] : "Dr, I have a very simple question, is there a reason why there should be the two of you in the strong room at the same time?"

Kpessa Whyte: "Yes my lord, I believe it is for us to be able to confer for instance, the process involves a lot of calculations and if I may, at some point my colleague had to mention the figures for me, one by one whilst I calculate them both on the calculator and then the excel file. So there obviously was a reason why we had to, I noticed that the C.I. actually said the agents must not be more than two."

Bench: "So if there was concern for you to leave, and in a heightened, you know, circumstances like that, will the two of you go? Because you see, you were there for a purpose, for the petitioner, his eyes, body, everything was you. You were going to confer with the petitioner, what were you expecting him to say, because you were the ones receiving the regional results. So if you had to go and confer with the petitioner, wasn't it enough for one of you to go, so that one stay around and see exactly what is happening, looking at the atmosphere?"

Kpessa Whyte: "My lord with the greatest of respect, the question itself suggests that the first respondent [EC Chairperson] cannot be trusted and therefore we should have left one person there. I indicated to this honourable court, my lords, that we acted in good faith and realised later that we were deceived. And so, yes, there was that option, we exercised the option that will allow us to give the petitioner the best of information that was available to us."

"For instance, my lords whilst he [Rojo] was there meeting with the Returning Officer, I was in the strong room. He [Rojo] needed to inform the petitioner what exactly he was discussing at that time and I had to inform the petitioner what I was observing whilst I remain in the strong room, so it was important that both of us left."

Bench : "Dr, I want to be very clear on some of these issues. Now you already told this court that you were not sent to the strong room to take instructions from chairperson of the first respondent, is that correct. Your presence in the strong room was to see to the course of the petitioner but not to take instructions from the chairperson."

Kpessa Whyte: "My lord yes."

Bench: "So when the first respondent said go and consult the petitioner, what were you going to discuss with the petitioner, you were in the strong room for a purpose. She told you to go and consult the petitioner on what, we want to know?"

Kpessa Whyte: "My lord, on the specific irregularities that we have brought to your attention and she did indicate also that, the reason she was asking us to do so, so that all the stakeholders including the NPP, Peace Council and others could be invited to ensure that we have a credible results before the announcement is made."

Bench: "But you know that part of your duty is in the strong room, at the end of the day, if you had refused to sign, you were to indicate the reasons why you had refused to sign."

Kpessa Whyte: "My lord it appears to me that there is a particular side of this narrative that has not been clear. I am saying with the greatest of respect that the forms that arrived in the room, and within that room itself, there was no space whatsoever for us."

Bench: "No. I don't mean that, I am saying that at a point in time in the strong room, there will be a time for you to indicate your displeasures on what had happened."

Kpessa Whyte: "My lords, we know that...but that opportunity was denied us."

Bench: "Then you see, would it be right for me to say that, by taking contrary instructions from the chairperson of the first respondent, granted what you are saying is true, you did not help the course of the petitioner who sent you there?"

Kpessa Whyte: "My lord I don't believe that is true. We were working in furtherance of making sure the results that ultimately get announced by the first respondent reflects and represents the will of the people and if she asking us to consult the petitioner is part of how we could get there, we were happy to do it."

Bench: "Then seriously speaking you did not take your training seriously. I want to be clear. You've gone to do a particular job, then instead of doing the particular job that sent you there, you take instructions from somebody else. Then you leave your job. You see that is what I want find out, then you did not help the petitioner."

Tsatsu Tsikata

At that point counsel for the petitioner, Mr Tsatsu Tsikara rose to his feet and said, "My Lord, with respect, his Lordship [Justice Yaw Apau] is entitled to his opinion about what the petitioner did. In terms of factual evidence, about what he did and the reasons that he had, he [witness] has answered it. His Lordship can have his opinion but his opinion..., so I don't think he can be harassed with this opinion."

Justice Yaw Apau: "Please I take deference to that. I'm not harassing the witness, it is not my duty to harass him. I know that he has been sent by the petitioner to do a job for him, then somebody tells you, oh! go to the petitioner and consult him. If the petitioner could do the job, he himself would have been there. That's what I want to find out. How am I harassing him?"

Question from the Bench: "My last question, by the way, what do you lecture at the University of Ghana, the subject?"

Kpessa Whyte: "My lord I teach public policy."

Bench: "Thank you."

Question from the Bench: "I have one more question for you. I want to be clear in my mind. You've said in evidence that you never spoke to the chairperson of the first respondent."

Kpessa Whyte: "My lord I did say that I never spoke to her in person. But I do know that my colleague had spoken to her on our behalf."

Bench: "So how did she instruct you, the person never spoke to you. You admitted on oath."

Kpessa Whyte: "My lord, I'm surprised at this question... the instruction was issued through my colleague, Rogo Mettle Nunoo and on the basis of that we had to comply. Thank you my lord."

Motion

Before proceedings commenced Tuesday, the legal team of the petitioner filed an application to inspect some of the EC’s original documents.

They include the originals of the presidential election results collation forms for all 275 constituencies, all constituency presidential election results summary sheets and the regional presidential election results collation forms for all regions.

The rest are the originals of all regional presidential election results summary sheets, the declaration of presidential results form and records of the alleged updates to the purported declaration of presidential election results on December 9, 2020 of the results of four constituencies in the Greater Accra Region.

Any more witnesses?

The Chief Justice and President of the panel, Justice Kwasi Anin Yeboah, asked Mr Tsikata whether the petitioner would be calling another witness.

Mr Tsikata told the court that a determination on whether to call a witness or not would be based on the feedback from the EC.

The panel then ordered counsel for the EC and President Akufo-Addo to file their responses to the motion by close of Tuesay.

The court is, therefore, expected to hear submissions from all parties with respect to the motion Wednesday [Feb 3, 2021], after which it would make a ruling on it.

Mahama’s case

It is the case of former President Mahama that no candidate won the 2020 presidential election and, therefore, the declaration of President Akufo-Addo as the winner of the election by the Chairperson of the EC, Mrs Mensa, was “null, void, unconstitutional and of no legal effect”.

He argued that as per the results announced by Mrs Mensa on December 9, 2020, no candidate garnered more than 50 per cent of the total valid votes cast, as required by Article 63(3) of the 1992 Constitution.

The petitioner is, therefore, asking the Supreme Court to order the EC to organise a second election (run-off) between him (Mahama) and President Akufo-Addo because, in his estimation, no candidate won the 2020 presidential election.

Respondents answers

In their responses, President Akufo-Addo and the EC argued that the petition was incompetent, lacked merit and raised no reasonable cause of action.

It is their contention that the petition did not even meet the requirement of a presidential election petition, as stipulated in Article 64 (1) of the 1992 Constitution, and was, therefore, incompetent.

That, they argued, was because the petition made no allegation of infractions in the election at any of the 38,622 polling stations and 311 special voting centres.