There were fireworks at the Supreme Court yesterday as the motion for joinder filed by the National Democratic Congress (NDC) to be part of the petition challenging the declaration of John Dramani Mahama as President was moved.
The NDC was due to move the motion on January 10 when the New Patriotic Party (NPP), whose candidate, Nana Addo Dankwa Akufo-Addo and two others have petitioned the court over the validity of the Electoral Commission's (EC) declaration of Mr. Mahama as president objected to the composition of the panel.
As a result, the nine-member panel presided over by Justice William Atuguba ordered the NPP legal team to officially file a motion challenging the composition of the court, but the NPP later wrote to the court that it was no longer interested in pursuing the matter, paving the way for the motion for joinder to be moved yesterday.
NDC Motion Moving the motion, Tsatsu Tsikata, lead counsel for the NDC, gave a break-down of the applicant's affidavit in support before going into the legal basis for the joinder application.
He said the NDC registered and sponsored the first respondent (President Mahama) in the 2012 presidential election and therefore the party should be allowed to be an interested party to the petition.
He said, "There is a particular reason why a party such as the NDC is a necessary party to this petition as Article 55 (1), (2), 3) clearly states."
Role of Political Parties
Apart from the constitutional provision that makes the NDC an interested party, Mr. Tsikata cited Sections 5 and 6 of Political Parties Act, 2000 (Act 574) as a legislative provision that acknowledges the role of political parties under the 1992 Constitution.
"There are numerous references in the Constitutional Instruments regarding public elections and the role played by political parties," he argued.
Using C.I. 75 (Public Election Regulation 2012) Regulation 12 (1), the NDC argued that "President Mahama was not an independent candidate but he was sponsored by a political party which is the NDC."
He said the definition of Act 574 Section 33 was relevant to the application and added that it was not in doubt that the applicant played a role in respect of the nomination of the 1st respondent to stand on the ticket of the applicant.
"The petition does not actually mention that the 1st respondent was the President of the Republic," he argued and added that "we seek to join this application in the interest of justice because the President was nominated, selected and to stand on the platform of the party."
Mr. Tsikata cited several cases that bordered on joinders, particularly the case in which Kwame Painim was prevented by Rosemary Ekwam from contesting presidential primary of the NPP in 1996 to buttress the NDC's case.
He said the NPP had applied to join that application adding that the NPP applied to join when it suited them but they were seeking to prevent NDC from joining when it did not suit them.
"In this petition, we have not waited to be invited to be heard. We have taken steps timeously to be joined as respondent."
He said the President was in the process of forming a government of the NDC and joining the suit as we seek to do would advance the interest of justice, adding, "All we are asking for is eminently supported by the precedents."
Touching on an affidavit in opposition filed by the NPP, Mr. Tsikata said the petition was replete with references to the Inter Party Advisory Committee (IPAC) and its deliberations and the applicant was an entity that participated in the IPAC deliberations and therefore had a stake in the matter.
He said President Mahama, in law, was the symbol of the NDC in the election and for that matter the party could not be sidelined in the petition.
"Our application is not brought in bad faith and with the sole purpose of causing undue delay. You know that we filed this application on 31st December 2012 after the petition has been filed on the 28th of December 2012.
"We stood ready to move this motion on the due date and I believe you know why we could not move this motion. It cannot be appropriate that we be accused of bad faith."
He said that for the petitioners to aver that the NDC was not a citizen of Ghana and did not participate in the election 'defies my imagination'.
Jake, Bawumia Factor
He asked why it was appropriate for the petition of the 3rd petitioner (Jake Obestebi-Lamptey) be regarded as necessary while the applicant whose candidate stood in the election should not be accepted by the court.
He also argued that the 2nd respondent, Dr Mahamudu Bawumia was not on the ballot but had filed a petition.
"We are seeking to join precisely because it is the validity of the election of 1st respondent that is being challenged and that is why the party on whose platform he stood should be joined.
"It is important we join to protect our interest as a political party that actively participated in election."
The Word 'Include'
He said the word 'include' in C. I. 74 should not be interpreted to mean 'exclusion' as the NPP is seeking to do saying "they interpreted it to exclude the NDC”.
"In the definition of C.I. 74, the word 'include' does not exclude the NDC. The word 'include' should be interpreted having regard to the principles articulated by the court."
Phillip Addison, Lead Counsel for the petitioners
After about a 15-minute break, the court heard the NPP's response from Philip Addison.
He said, "We are opposed to this application because it is completely unmeritorious."
He said the court first of all needed to consider whether the NDC's application was properly brought before the court before deciding on other matters.
He argued that the NDC brought the application under Rule 45 (4) of C. 1.16 but sub section 4 of the court's rules required that an application for joinder needed to be made by a party mentioned in the petition, which the NDC is not.
"The petition was brought under Part 8 of C.I 16 in C.I. 74. Under Part 8, there are no provisions for joinder. The provisions for joinder stated in Part 4 cannot be brought under Part 8."
He argued that "in Part 4 there is no time bound but under Part 8, there is a time bound. There is no restriction of who can invoke the court's jurisdiction under Part 4." He said that Part 4 was made pursuant to Article 130 and added that "clearly the joinder under Part 8 defeats the purpose of the applicant's motion.
"There is no action in Part 4 and if they are bringing an action there then it is incompetent. It will defeat the express purpose under Part 8 if the application is granted. On this score alone, this application ought to be thrown out."
Mr. Addison cited Article 63 of the' Constitution which relates to the election of the President and said "provisions relating to the election of the President make no reference to political parties."
He said that Article 64 talks about challenging elections and C.I. 74 sets out clearly the rules as to who to challenge adding that C.I 74 (b) directs that where there is still no complaint even against the EC, the petitioner was enjoined to bring the EC in a petition.
"In this petition, no allegation is made against the candidate. No relief is sought against them. The EC filed its answer to our petition and nowhere in that answer did the EC say they needed the NDC's assistance.
"The 1st respondent (President Mahama) also filed a response and nowhere did he say he will need the assistance of the NDC as a party," adding that "there is no reference to political parties in C.I 74."
He argued that under Presidential Elections Act (PNDC Law 285) section 3, there is no mention of political parties adding that "it is clear the nomination is done by a document and not political parties."
"He (President) swears the oath and not political parties swear," adding, "We have gone through the statutory declaration and nowhere did it say the candidate should declare his political party."
He said the 1st respondent (President Mahama) is not President of NDC but President of Ghana, adding, "If he resigns from the NDC today as President he will continue to be President of Ghana that is why we have independent candidates."
He said membership of a political party is not a necessary condition to the election of a candidate and added that nomination of a presidential candidate is by a document which the candidate signs himself.
"Applicant (NDC) can't claim to be more interested than the applicant who contested the election. They didn't give details of how they have direct interest or they will be directly affected if they are not joined to the petition."
Mr. Addison said in filing the application, the NDC made certain averments saying, "I don't understand why the application for joinder was filed before the EC's response and yet were able to make certain reference to the EC's answers."
He said even though the NPP sponsored Nana Akufo- Addo, the party is precluded from bringing a petition in the same instance as the NDC.
He dismissed Mr Tsikata's submission that the NPP applied to be joined in the Ekwam v. Pianirn case, saying there were reliefs sought and the NPP automatically became an interested party. "It is different from what the NDC is seeking to do in this case."
He also said the case in which Mr. Tsikata himself testifies during his (Mr. Tsikata) trial could not apply in this case saying, "The IFC had not applied to join the Tsikata proceedings. In this case, the NDC is seeking to join."
He said "the NDC woefully failed to demonstrate that they are a necessary party to this petition."
He said that applications for joinders were normally done to avoid a multiplicity of suits and in this case that fear was erased because the case was time-bound adding, "They are not even qualified to bring a petition." He said that interestingly, the NDC cited all the cases that Chris Ackumey relied on unsuccessfully when he filed to join the suit in which one Ransford France tried to block the EC from going ahead to create 45 additional constituencies.
"Are they suggesting they can put up a better fight than the respondent who is threatening to bring 4,800 witnesses?" he asked, adding that "the application if granted will muddy the waters."
Mahama Legal Team
When counsel finished his long submission, Tony Lithur representing President Mahama told the court he wanted to respond on points of law but the NPP team objected saying he should have filed formally to be able to make an input.
After a back and forth argument, the court, by a 6-3 majority decision, said Mr. Lithur could put in a submission.
He said he associated himself with the NDC's application and added that the pluralism of the Constitution found expression in political parties.
"The NPP seeks to eliminate political parties for the contest of the highest office of the land."
Mr. Addison again responded that there was nowhere in President Mahama's answer to the petition that he would need the NDC, saying, "I think it is an afterthought."
"He didn't file any affidavit or state in its response that it would require an answer. It is a breach of the rules and it is an afterthought."
EC's Position James Quarshie-Idun representing the EC said "it is not our intention to make any submission on this motion for joinder."
Mr. Tsikata then mounted the platform to reply to the NPP's submission and cited C.I. 16 Rule 4 (b)(1) and said it is relevant to Rule 45 (4).
He said that statutory declaration had nothing to do with the constitutional role of political parties because "we are standing on the constitutional right."
The court adjourned proceedings until January 22, for ruling on whether or not the NDC should be allowed to join the petition as respondents.