Respondents can choose not to testify

There are four questions to consider whether or not Jean Mensah should mount the witness box and the legal device to be used to settle the question. Is it by a directed verdict or a submission of no case or some other legal and procedural devices akin to them?

The first point implicates the question of whether the Petitioner has been able to prove any scintilla of its case in order for the Respondent to mount his defence. If the Petitioner proves his case by even a smidgen of evidence, then of course the Respondent has no option but to mount his defence. If there is no scintilla of probative evidence after the Petitioner’s case closes, the Respondent should make a Motion for Directed Verdict if that device exists in the rules of procedure.

I have no clue as to whether there exists any such legal device or any such related device under Ghanaian procedural law. If there is no such device at the moment, it will be a good idea to insert it within our rules of civil and criminal procedure. And if applied, the whole question will subsist on whether there ought to be only one conclusion, and no other as to the nature of the Petitioner’s case.

Did he meet the threshold and adduced a scintilla of evidence in discharging his burden of production? If there is even one probative evidence pointing to any element of the Petitioner’s case, then no directed verdict could be granted. Otherwise, the Court must grant a directed verdict after the defence rests, or even after the whole case concludes.

As far as I know, the directed verdict (or its concomitant colouration) is the procedural device which can be applied to terminate a case before the defence mounts his defence; and if it doesn’t 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 all the case presented by the Petitioner in the ongoing matter of the elections petition in Ghana, and ask ourselves what scintilla of evidence the Petitioner has adduced so far to support the issues raised in the case. The Petitioner went to court to claim that the Second Respondent did not meet the threshold of 50%+1 vote; and that if there had not been any rigging or padding, the elections would have entered a run-off. And for these averments, the Petitioner produced three witnesses.

The main failure of Asiedu Nketia’s testimony is that upon cross-examination, he did not produce any document demonstrating to the court that he had an alternative set of results indicating that the second Respondent did not win 50%+1 vote.

When directly asked whether he had such evidence, he answered that he did not bring it to court. The crux of both Dr. Kpessa-White’s and Jojo Mettle Nunoo’s testimony was on the issue as to whether the Electoral Commissioner instructed them to leave the Strongroom for whatever reason. Put together, these testimonies have nothing to do with the case at all.



So in effect, no matter the high bar required of the Motion for Directed Verdict, if there were one in the legal system in Ghana, it is that which has to be triggered to end this case.

That brings us to the third issue. And that is the issue of the witness’ statements which have been made by the First and Second Respondents. Does the fact that these statements have already been made by Ms. Jean Mensa and others compel them to take a stand in the witness box? I don’t think so.

The pointed question here is whether by providing a witness statement, one could be compelled to yield to cross-examination. The law is clear that a defendant in a case cannot be compelled to testify. But if so, can a witness who has already begun to testify refuse to continue the testimony. The answer is also yet because here in the USA, a witness can always plead the fifth during live testimony. And if this is the case, it disposes the question of whether or not a witness who has already provided part of his testimony can still decide not to mount the witness box; or if she mounts the box at all, refuse to answer any question which he claims to be self-incriminatory.

In this instance, the question does not even arise as to which part of that witness’ testimony that side is going to utilize. It may decide to utilize the statement even if it has not been subjected to cross-examination.

The fourth question is whether there is any device whereby the Respondents could terminate the whole trial by asking that the case should be submitted upon the sole testimony of the Petitioner? I think that the rules allow this. It is trite law that no party can be forced to testify to incriminate himself. A party can always indicate to the Court that the defence has no interest to mount a defence, and that all matters can be submitted to the Court for decision. If the Petitioner has not built his case, where is the case to answer?

In any case, this whole requirement of a witness statement is very restrictive to me. Here in the USA, there is no requirement for a witness statement; but if one provides one, then one could be held to it for purposes of impeachment or even perjury. But in the Ghanaian legal system, one is required to file a witness statement as a matter of compulsion. The disadvantages in this are that it will restrict cross-examination to matters raised in the statement.

It also means that there is no direct examination for the case to evolve according to the Petitioner’s testimony. There is no Rule 11 to be invoked for witnesses to be confined away from the courtroom. Other witnesses have access to the testimony and statements of other witnesses and can easily smith answers to questions.

There is also no creative ways to correct or repair any weaknesses in a witness statement, to subject it to cross and recross, to raise live objections for rulings by the court, or to create a leeway from the witness statement. To wit, the witness has been taken prisoner by his own prior statement and must be restricted to it.

This is not good for the Petitioner who goes first and allows the Respondent the opportunity to poke holes in his arguments.

In quantum coda, a party has a right not to incriminate herself and can opt not to mount the witness box. And where the Petitioner has rested without proving a scintilla of evidence to discharge his burden, a directed verdict; or any other coterminous devices should be available. Where these are not available, it is still the Respondent’s right not to testify, whether or not s/he has submitted a witness statement.

To wit, Ms. Jean Mensa, or any of the Respondent’s witnesses can choose not to testify, and allow the matter to be decided on Respondents own case in chief.