President John Mahama would not be deemed by law to have ever been a president of the republic in the event that the Supreme Court overturns a declaration by the Electoral Commission that he won the 2012 presidential polls, law lecturer Kofi Abotsi has said.
The Petitioners in the ongoing election petition are praying the Supreme Court to overturn the declaration that John Mahama was the legitimate winner of the last December polls because of what they allege was massive fraud during the elections. They are asking the court to also declare the opposition New Patriotic Party (NPP) candidate for that election, Nana Akufo-Addo as president.
The court on Wednesday gave the opportunity to Petitioners and Respondents to give the final statements of their case before the court gives a judgement on the petition.
In his last address, Tsatsu Tsikata who is counsel for the third respondent - National Democratic Congress (NDC)- said the demands by the Petitioners are nothing but a request for the judges to impose a retroactive penalty on innocent voters who went to queue in the sun to vote, a request that is not backed by law and should not be taken seriously.
But Mr. Abotsi, speaking to Joy News, disagreed with Tsatsu Tsikata's claim of retroactivity. He noted that there is nothing retroactive about nullifying votes obtained by a candidate in an election if they are proven to be invalid.
He pointed out that in the event of a judgement that upholds the case of the Petitioners, the president, according to the law, would have been deemed never to have been in office.
He grounded his argument on Article 2(1) and 2(2) of the 1992 Constitution which state that "2(1) A person who alleges that - (a) an enactment or anything contained in or done under the authority of that or any other enactment; or (b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect."
Article 2(2) says "The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be given, to the declaration so made."
The law lecturer said assuming a declaration by the Supreme Court states that Mr. Mahama was not validly elected, it would mean that “Right never passed, liabilities never created and you cannot even claim to have even exercised that particular position, power or authority conferred on you.”
Lawyer Abotsi said the constitution nonetheless preserves the actions of the president during the period in which he occupied the position for the “purposes of reality”, but technically he was never a president.