I respect the views of those who think requiring the EC Chair to take the stand serves justice best in an Election Petition. So, I do not disagree with those who take that position lightly. But I am not certain I find the reasons sufficiently compelling.

I know that H Kwasi Prempeh and Samson Anyenini are urging a more aggressive inquisitorial practice in an election petition case but I struggle to see why an Election Petition should be treated differently from a capital murder case, where even when the life of a woman may be at stake, the Court cannot compel the accused to mount the witness box or call a witness.

I say a "more aggressive inquisitorial practice" because I have always been quick to point out the myth that ours is purely an adversarial jurisdiction while others are inquisitorial. As perhaps, one of very few lawyers in Ghana, who was first trained as a lawyer in a civil law jurisdiction, believe me when I say I understand the utility and value of judicial inquisition.

However, in this case, it is important that the Court preserve the sanctity of the defendant’s right to defend their case how best they see it. Certainly, the answer cannot be that whenever a defendant submits a witness statement, they are bound to mount the witness box and cannot withdraw to testify if they later deem it as the best way to prosecute their defense.

Our laws already provide that a witness statement not tested under cross-examination cannot be admitted in evidence. The fact of its submission does not create estoppel. Now, lets presume that there is a basis in law to defect to an inquisitorial reasoning in order to require that the EC Chairperson take the stand as the Respondent's witness.

In order for this to be sustained, it must be the Court's case that the Petitioner has succeeded in mounting a case that requires the EC Chairperson to speak or otherwise risk a ruling against the EC. If that is the case, why not just give judgment against a Respondent who refuses to proceed further? Why compel the EC Chair to speak in order to buttress the Defendant's now "weak" defence?

If the reasoning is that the Petitioner's case requires the cross-examination of the EC Chair in order to proceed, then please, allow the Petitioner to rely on Section 72 of the Evidence Act to call and treat her as an adverse witness.

Do not compel the Respondent to submit a witness, why upend our legal system, when there is a pathway under the rules for how the impasse (if you can call it that) can be solved?

Also, if it is being contended that the Court should exercise its powers under Section 68 of the Evidence Act, to call, on its own motion, the EC Chair as a witness. Then surely the Court must tell us what evidence at all it is seeking from the EC Chair.

You see, we wont be in this whole mess if the Court had been better vigilant about the Application to inspect documents. I do not know what the EC Chair will be testifying to, that the documents would not have disclosed.

As a matter of law, I think the Court was wrong to refuse the grant of the application to inspect documents, in this case as well as in the last petition in 2013.

But I think the bigger problem stems from the failure of the Courts to properly distinguish Public Law respondents from Private Law Respondents.

First of all, the Rules of Court concerning the inspection of documents have been drafted without regard to the peculiarity of each of the parties; and presume a civil matter involving private parties.

I think we fail to remember that unlike documents held by private entities, all public documents are accessible as of right. As such unless any particular privilege is asserted, the documents must be made available AS OF RIGHT.

There has to be a different yardstick that takes into account how differently situated private law respondents and the public law respondents are, when a determination is being made as to the necessity of inspecting a document.

In my view then, so far as the documents are considered to be relevant in that they have probative value; the determination of necessity under Rule 11 of Order 21 of CI 47 must factor in the public or private nature of the documents requested.

And that the fair determination of matters involving public law entities must preserve public law values of transparency and accountability.
You cannot close the stables after the Horse has bolted. You will only be making the Horse homeless. Shalom!!