Respondents can choose not to testify



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Petition for the 2020 Election: Respondents May Choose Not to Testify

By Samuel Adjei Sarfo, Esq.

There are four questions to consider whether or not Jean Mensah should mount the witness stand; and the legal device that will be used to resolve the issue. Is it by a directed verdict or by the presentation of any case or by other legal and procedural devices related to them?

The first point involves the question of whether the petitioner has been able to prove any iota of his case so that the defendant can mount his defense. If the petitioner proves his case with even a shred of proof, then of course the defendant has no choice but to mount his defense. If there is no evidence of evidentiary evidence after the petitioner’s case is closed, the defendant must file a motion for directed verdict if that device exists in the procedural rules.

I have no idea if there is such a legal device, or a device related to Ghanaian procedural law. If there is no such device at this time, it will be a good idea to insert it within our rules of civil and criminal procedure. And if applied, the whole question will remain as to whether there should be only one conclusion and not another as to the nature of the petitioner’s case. Did you hit the threshold and provide a shred of evidence to unload your production load? If there is even evidentiary evidence pointing to some element of the petitioner’s case, a direct verdict cannot be rendered. Otherwise, the Court must render a direct verdict after the defense rests, or even after the entire case is concluded. As far as I know, the directed verdict (or its concomitant coloration) is the procedural device that can be applied to terminate a case before the defense assembles its defense; And if it does not exist in Ghana, then the question is, how do you proceed to terminate a case before its natural conclusion?

That brings us to the second point. We can review the entire case presented by the petitioner in the ongoing matter of the Ghana election petition, and ask what spark of evidence the petitioner has adduced thus far to support the issues raised in the case. The petitioner went to court to allege that the second defendant did not reach the 50% + 1 vote threshold; and that if there had been no manipulation or filling, the elections would have entered a second round. And for these statements, the petitioner presented three witnesses.

The main failure of Asiedu Nketia’s testimony is that after questioning, he did not present any documents to show the court that he had an alternative set of results indicating that the second respondent did not get 50% + 1 of the votes. When asked directly if he had such evidence, he replied that he did not take it to court. The crux of Dr. Kpessa-White and Jojo Mettle Nunoo’s testimony was on the question of whether the Election Commissioner instructed them to leave the Strong House for any reason. Collectively, these testimonies have nothing to do with the case. So in effect, regardless of the required high level of Directed Verdict Motion, if there is one in the legal system in Ghana, it is the one that has to kick in to finish this case.

That brings us to the third topic. And that is the problem with the witness statements made by the First and Second Respondents. Does the fact that Ms. Jean Mensa and others have already made these statements, does it force them to take a position on the witness stand? I do not think so.

The key question here is whether by providing a witness statement, one might be forced to give in to cross-examination. The law is clear in the sense that a defendant in a case cannot be compelled to testify. But if so, a witness who has already begun to testify may refuse to continue with the testimony. The answer is also still because here in the US, a witness can always plead the fifth during live testimony. And if this is the case, the question is resolved as to whether a witness who has already provided part of his testimony can still decide not to take the stand; or if she rides the box at all, refuse to answer any questions he claims to be self-incriminating. In this case, the question does not even arise as to which part of that witness’s testimony that part will use. You can decide to use the statement even if it has not been cross-examined.

The fourth question is whether there is any mechanism by which Defendants can terminate the entire trial by requesting that the case be presented with the Plaintiff’s sole testimony. I think the rules allow it. It is a trivial law that neither party can be forced to testify to incriminate himself. A party can always indicate to the Court that the defense has no interest in assembling a defense and that all matters can be referred to the Court for resolution. If the petitioner has not built his case, where should he respond?

In any event, this entire requirement of a witness statement is very restrictive for me. Here in the US, a witness statement is not required; but if one provides one, then one may be required to impose it for the purpose of prosecution or even perjury. But in the Ghanaian legal system, one must present a witness statement as a matter of compulsion. The downsides to this are that it will restrict cross-examination to the issues raised in the statement. It also means that there is no direct examination for the case to evolve based on the petitioner’s testimony. There is no Rule 11 that must be invoked for witnesses to be confined outside of the courtroom. Other witnesses have access to the testimony and statements of other witnesses and can easily get answers to questions. There are also no creative ways to correct or repair any weaknesses in a witness statement, to cross and cross it, to raise live objections to court rulings, or to create room for maneuver over the witness statement. Namely, the witness has been taken prisoner by his own previous statement and must limit himself to it. This is not good for the petitioner who goes first and gives the respondent a chance to poke holes in their arguments.

In the quantum coda, a party has the right not to incriminate itself and can choose not to mount the witness stand. And where the petitioner has rested without proving an iota of evidence to unload his burden, a direct verdict; or any other neighboring device must be available. When these are not available, the Respondent has the right not to testify, whether or not he has presented a witness statement.

That is, Ms. Jean Mensa or any of the Respondent’s witnesses can choose not to testify and allow the matter to be decided in the Chief Respondent’s own case.

Dr. Samuel Adjei Sarfo, Esq.

[email protected]

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