Outcomes of Supreme Court cases do more than merely picking between winners and losers. Supreme Court decisions serve to advance our democracy, the rule of law, transparency, and the protection of fundamental rights. In interpreting procedural matters and the rules of the court such as the burden of proof when presiding over a case like the Election Petition, the interpretation must necessarily bear in mind the object of achieving the above substantive outcomes.
This being the case, substantive justice demands that in deciding whether the Petitioner must strictly meet, on his own, the burden of proof, the court ought to take judicial notice of the imbalance of power between the Petitioner – a citizen versus the Electoral Commission (a constitutional body).
This imbalance of power manifests itself by the fact that, by law, the original material facts essential to discharge the burden of proof and necessary for finality are in the exclusive possession of the Electoral Commission. Strict adherence to the burden of proof shall apply, for instance, in cases where private citizens of full capacity dispute in a contract.
On the vital question of whether or not Commission chair Jean Mensah should be crossed examined or subpoenaed, note that this Petition is not between John Dramani Mahama versus Jean Mensah but it has often appeared so throughout the proceedings in the arguments and exchanges in court.
Jean Mensah is only being sought as someone in a representative capacity and in possession of material information necessary for an effective resolution of the matter at hand. Under normal circumstances, being independent and acting fairly, she loses nothing and gains nothing however this Petition ends. She needs no protection from the witness box because she is not a party to the Petition, neither is she the EC.
The court produced quite a compelling list of case law authorities to decline the invitation to compel Chair Jean Mensah into the Witness box. But the Supreme Court’s hands cannot be tied because of a common-law principle that has found its way into the Evidence Act.
Crucially, commentary on this burden of proof fails to properly define what constitutes evidence in a trial. It is as if evidence must include only those produced by a petitioner all by himself. This cannot be correct. Evidence is the totality of material information available to a court (usually after trial), apportioned to parties according to their favorability and which is then weighted and a decision made on the balance of probabilities. So, therefore, the evidence Petitioner needs to discharge the burden of proof must necessarily include evidence elicited from Respondent during cross-examination.
It should never be the case that you call on Petitioner to proof his case, yet suffocate and constrain him from obtaining crucial complementary evidence from a legitimate source. It is inconsistent with the notion of substantive justice.