Full text: William Atuguba’s speech on Supreme Court judgments

The retired Supreme Court judge Justice William Atuguba has criticised the decision by the apex court which nullified the election of James Gyakye Quayson as the MP for Assin North in 2020.

Speaking at a public lecture organised by Solidare Ghana in collaboration with the University of Ghana on the theme “Protecting Our Democracy: the Role of the Judiciary” in the political science department on 24 October 2023, Justice Atuguba said many things about the Supreme Court, including how judges who are politically inclined are empanelled on certain cases which are political in nature.

Below is the full text of his lecture:

Mr Chairman, distinguished invited guests, media, ladies and gentlemen, let me appreciate the organisers for putting up this lecture.

Introduction

I feel highly honoured but down spirited by this invitation to lead this lecture today. Mr. Chairman, on the eve of our independence, our country was consecrated to the sacred and Immaculate Hearts of our Lord Jesus Christ and our Mother the Blessed Virgin Mary. This probably explains why Ghana has not experienced major mishaps. The returns from such a consecration are normally inestimable as exemplified in the cases of the United States of America and Israel.

Against this background, where Ghana stands now is a cause for grave lamentation. Ghana is heavily blessed in terms of natural and human resources so one is justified to ask: why the economic and social hardships?

That said, my mandate for this lecture as per my invitation letter is in terms of:

Sharing my lived experiences with the Justice delivery system vi-à-vis public confidence in the judiciary.

How recent Judicial pronouncements and rulings portend for consideration of Ghana’s democracy.

This is against the backdrop that the African youth are increasingly losing hope in the democratic experiment and are manifesting same by pouring onto the streets to show support for military juntas who overthrow democratically elected civilian regimes. Indeed, the flyer on this invitation is in even wider terms.

1. My lived experiences

Everything has a beginning. When I was in Form Two in Notre Dame Secondary School, Navrongo, our Latin master put before us a number of mottos for our choice. Some chose “Orando et Laborando”, “Fidelis in Parvo”, etc. I chose “Justitia Omnibus” and I still love it.

When I commenced my private legal practice at Bolgatanga in the then Upper Region of Ghana, in August 1975, I soon realised that there was much corruption in the judicial system. By the grace of God, I stayed out of it though it was very challenging. In the web of the 1979 revolution, a neighbour of mine was badly brutalised by some soldiers and he sent for me to hear his story and see his condition. Despite the heat of the revolutionary atmosphere, I issued a writ against them and they came to seek settlement. Unsurprisingly their terms of settlement centred around smoking the peace pipe in the form of sharing a roasted fowl. I rejected this and kept to the writ. Unfortunately, their duties in Bolgatanga had ended and they immediately returned to Accra and my attempt to serve them with further court processes received no co-operation from their command structure.

After the 31st December revolution, I was appointed chairman of the then Upper Regional Investigations Committee and subsequently also briefly, I was the acting special public prosecutor for the same region. In the course of time, a flight lieutenant from Accra came to Bolgatanga and asked why there were only a few cases for trial by the National Public Tribunal when it came to try cases in the Upper Region. I told him that the crime rate differs from region to region.

He then asked about our investigation into the affairs of the then Farmers Services Company (FASCOM) of the Upper Region. I told him that our committee had spent three months thoroughly investigating that case and that we were not prepared to change anything. He went away.

In addition, one evening a major of the Ghana Army from the Kamina Barracks in Tamale came to intervene in our committee’s investigation into a case involving his nephew, and his colleague officer who was temporarily stationed at Bolgatanga, introduced him to me that evening. I told him that we would attend to him the next morning. The next morning, I had him called into our committee sitting room and had him sworn. I then asked what was his mission. He could not testify meaningfully. I then addressed him that it was they the Army that launched the revolution to ensure justice prevailed so how could that be achieved if they tried to obstruct the due flow of justice? He became uneasy and was glad to be told to go his way. He saluted us and left. These are a few episodes.

I found myself appointed from the Bar to the Supreme Court on 30 November 1995. I soon noticed that public confidence in the Judiciary was of considerable concern in that there were perceptions of corruption and slanted Judicial positions especially constitutional cases. There were frequent calls for the entire number of justices of the Supreme Court to be empanelled on constitutional cases. I propose to try to unearth the causes for these perceptions which were built up over the years. The perceptions were aroused by perceptions of political inclinations on the part of some judges. There is a long history to it. Sometimes the suspicion was anchored on the incidence of political influence. This occurred in various ways to various degrees at various times.

• Political confrontation

On 20 April 1970 the Court of Appeal coram Apaloo, Siriboe, Sowah, Anin and Archer JJA, gave judgment in Sallah v The Attorney General 2 G&G 739 (2d) 1319. The court upheld the plaintiff’s claim for a declaration that his employment as a manager with the GNTC had been wrongly terminated by the Busia regime. This decision meant that well over 350 other persons whose employments were similarly affected could also successfully sue the government. Before the court could hear the case unsuccessful objections on the grounds of bias were raised against Apaloo JA (on the grounds of close friendship with the plaintiff and Sowah JA (on the ground that his brother-in-law’s wife had approached him to help her husband, Jonas, who was similarly affected as Sallah by the termination of his employment). In the evening of that day (20/04/1970) of the delivery of the judgement, an incensed Dr Busia, the then Prime Minister of Ghana made a Radio Broadcast on this judgement, the full text of which is in 2 G&G 739 (2d) 1374. Inter alia, he fumed as follows at 1378-1379: “… if any others who were not reappointed in the recent implementation of the transitional provisions of the constitution wish to sue the government, they are at liberty to do so.

“The government will not stop them. But if they hope thereby to coerce the government to employ them, then they will be wasting their time and money. My government will exercise its right to employ only those whom it wishes to employ.

“No court can enforce any decision that seeks to compel the government to employ or re-employ anyone. That would be a futile exercise. I wish to make that perfectly clear.”

This outburst flew in the face of Article 102 (3) of the 1969 constitution of Ghana, that “in the exercise of the Judicial power of Ghana, the Judiciary in both its Judicial and administrative functions shall be subject only to this Constitution and shall not be subject to the control or direction of any other person or authority”.

Article 115 (1) and (2) of the said 1969 constitution of Ghana provided as follows:

1. The Chief Justice shall be appointed by the president, acting in consultation with the Council of State by warrant under his hand and the presidential seal.

2. “The other Judges of the Superior Court of Judicature shall be appointed by the President by warrant under his hand and the Presidential Seal acting in accordance with the advice of the Judicial Council.

Consequent upon this judgement Justices, Azu Crabbe and Apaloo who after Ollennu JA were the most senior justices of the Court of Appeal, see the list under the heading Judges of the Superior Courts of Ghana contained in (1968) GLR, E A L Bannerman who had been a senior magistrate, the equivalent of a circuit court judge, was appointed the Chief Justice of Ghana and K O Larbi, a private legal practitioner, and Siriboe J A (the only judge who ruled in favour of the Busia administration) were made more senior judges over them on the Supreme Court. What was more, V C R A C Crabbe, who in 1968 was the 11th most senior high court judge out of a list of 12 high court judges (see under Judges of the Superior Courts of Ghana (1968) GLR), was appointed from the high court to the Supreme Court as a senior over and above Azu Crabbe and Apaloo JJA.

The appointments aroused public scrutiny as revealed in Badu v The Republic (1974) 2 GLR 361. Thereat the facts of the case as summarised in the headnote are as follows: “the appellant, the editor of a newspaper. The spokesman published a front-page editorial commenting on the appointment of judges to the Supreme Court established under the suspended constitution of 1969, which indicated that the appointments, including that of the first prosecution witness, were improper.

“The editorial also imputed that the first prosecution witness who was at the material time a High Court Judge, was unfit to hold the post of a Supreme Court judge and that as Interim Electoral Commissioner, he had during the 1969 general election, misconducted himself by showing bias in favor of the winning party. The appellant was therefore charged with intentional libel arising from the publication, contrary to section 112 (2) of the Criminal Code 1960 (Act 29).”

Again, the plaintiff in Tuffuor v Attorney General (1980) GLR634 CA sitting as the Supreme Court, successfully claimed that even though the 1979 constitution preserved existing offices at the time it came into force, President Limann purported to nominate Apaloo who was the sitting Chief Justice for parliamentary approval, to be Chief Justice anew. Parliament rejected him on very tenuous grounds. Otherwise Apaloo C.J. would have been ousted and the Limann government would have had a free hand to pick the Chief Justice of his liking with its attendant implications.

President Limann also made a similar radio broadcast as Busia had done in 1969, when, as far as I can recollect, Colonel Frank George Barnasko rtd. challenged his scheme of the distribution of essential commodities in court.

Also President Kufuor, in swearing in a chief justice of Ghana, said that although the judiciary is independent yet he could not ignore politics and that he must take politics into account. When the Supreme Court ruled the Fast-Track court as unconstitutional President Kuffuor fumed from outside Ghana that he was dissatisfied with the decision and that he would do everything in his power to have it reversed. Indeed, Justice Kwame Afreh was promoted to the Supreme Court from the Court of Appeal and was part of the reversing panel on the final decision on the Fast-Track court matter.

Such executive intimidations, not forgetting the unfortunate murder of three high court Judges and a retired army major in 1982, could demoralise the judiciary. As noted in his book Ghana Bar Association Lectures in Continuing Legal Education 1993-1994, the very distinguished late legal scholar S Y Bimpong-Buta, quoted at pp1-3 of the Weekly Spectator No 1288 (28 November 1992) front page, referred to the fact that the New Patriotic Party (NPP), the People’s National Convention (PNC), the National Independence Party (NIP) and the People’s Heritage Party (PHP)’s “decision not to contest the results of the presidential elections is based partly on“ loss of confidence in the judiciary.

In the words of a leading member, of one of the four opposition parties: “it will be a waste of time and money to go to court, because the judiciary as at now is not independent: the judges have been so intimidated that there is no way they will rule in our favour against the government”. In fact, the leader of the NPP was quoted as having said that the decision of the party not to challenge the results of the presidential elections at the Supreme Court (was on the grounds, inter alia, that “the party had no confidence in the Chief Justice and the judges of the Supreme Court”. At p3 he stated thus: “And quite recently in an article appearing in the Ghanaian Chronicle, Professor Paul Ansah of the University of Ghana (now deceased) was able to assert that: ‘We know that with the kind of a de facto one-party system that we have, Parliament may not be able to do much, and with an enfeebled, emasculated and compromised judiciary, the prospects don’t look too bright.’ ”

Though the author subsequently states that the said loss of confidence in the Judiciary was not justified, this is not entirely correct. In The Republic v National Public Tribunals, ex parte Office of the Special Public Prosecutor (1993-94) 1 GLR 478 SC, the special public prosecutor applied to the Supreme Court for directions to the National Public Tribunal concerning a review application before it. At pp486-487 the very distinguished Adade JSC felt compelled to say thus “the proper party to apply in this case is the People or the Republic. The office of the special public prosecutor is none of these. If the special public prosecutor had mounted a full blown action under Article 2 of the constitution 1992, that is enforcement of the constitution provision, perhaps different considerations might arise. For the present, however, its locus standi is questionable.

Nonetheless, as this case raises constitutional issues of some importance, I propose to deal with it on the merits, and not dismiss it, justifiably, on the foregoing grounds, and risk being accused unjustifiably, of deciding it on so- called technicalities, even if those perceived technicalities are part of the laws which the courts are enjoined to interpret and enforce.”

Judicial admissions of executive intrusion in the judiciary

In (1980)12 RGL at pp2-3, Apaloo CJ, in paying tribute to the late Akufo-Addo CJ and President of Ghana, said: “For a lawyer of his calibre, elevation to the bench was a matter of course. To most lawyers, that is the culmination of a successful legal career. It came in 1962 after he was in the law for 22 years, having been called to the bar in 1940. Such honour was deserved much earlier. That it did not come to him quicker cannot be explained by want of merit but by the political alignment of the day. But when it did arrive, its undue delay was acknowledged because he made history by being appointed, together with Lawyer R S Blay, to the then highest court of the land, namely the Supreme Court, bypassing the high court in the process.

“He was not destined to remain long in that court because, ironical as it seems, one of the treasured qualities of a judge which he possessed and exhibited became his undoing. He had the courage of his conviction and spoke his mind firmly in a judicial decision which displeased the then power in the land. He was dismissed in February 1964, having been on the bench for less than two years.

“But merit, like cork, never remains submerged. Just over two years afterwards, he was returned to the bench to fill its highest office Chief Justice. He remained in that office till August 1970, when he was invited to occupy a still higher office – the Presidency of Ghana. On the whole, he occupied high judicial office for just over five years and did so with great distinction.”

In New Patriotic Party v Inspector General of Police (1993-94) 2 GLR 459 at 469 to 470, SC Amua-Sekyi JSC, commenting on the statutory reversal of an acquittal and retrial of certain leading personalities on a charge of treason, bluntly said:

“Acquitted in proceedings intituled State v Otchere (1963)2 GLR 463, SC the verdicts were set aside by executive order: See Special Criminal Division Instrument, 1963 (EI 161). Put back on trial before a more pliant bench, the executive had the satisfaction of seeing them convicted and sentenced to death. Mercifully, the sentences were not carried out; but a grave precedent had been set. The judges were not spared: Korsah CJ was removed from office, and a constitutional amendment cleared the way for the dismissal of Adumoa-Bossman J (as he then was) and other judges whose loyalty to the Absolutist State was now called in question.” (The emphasis is ours.)

Again, in Wuaku v Attorney General (1993-94) 2 GLR 393 at 396, SC Amua-Sekyi JSC trenchantly stated as follows:

“After the overthrow of the Nkrumah regime, the judiciary came in for much criticism for the role it had played while the previous government was in power. It was said that it had departed from its traditional role as an independent arm of government and had become a willing tool of repression in the hands of the executive. It was also said that some of the appointments to the bench had been politically motivated in that persons with known sympathies for the regime had been favoured over those who exhibited an independent frame of mind. Worse still, it was said that some of the judges had become so depraved and demoralised that they habitually took bribes. The answer of the new administration was the wholesale dismissal of judges – cleaning the Augean stables, as it were – and appointing new ones to take their place. But it was soon realised that merely changing personnel would not be enough: what was required was a reappraisal of the role of the judge in the body-politic and the creation of the conditions necessary for the proper exercise of his functions.” [The emphasis is ours.]

In Hasen v Ankrah (1987-88) GLR 639 at 667, SC Sowah JSC said:

“Before I am done, I consider it ethically and judicially unacceptable the comments on the composition of the panel in this appeal. If my brother Taylor JSC had reservations, he should have made them abundantly clear before hearing and not after opinions have been rendered which are contrary to his own. And in any event the judges referred to are by all standards, including their knowledge of the law and integrity, competent to adorn the Supreme Court bench. It is by sheer accident of past politics that they have not taken precedence over some members of the Supreme Court.” (The emphasis is ours.)

This long-standing scepticism of the independence of the judiciary, and now the Supreme Court, in particular, led to the issuance of the following practice direction on empanelling of Justices of the Supreme Court reported in (2000) SCGLR 586 as follows:

Practice direction

Practice in empanelling Justices of the Supreme Court – 10 January 2001

Practice and procedure – Supreme Court – Constitutional cases – Empanelling of court by Chief Justice – Practice in – Chief Justice to empanel all available justices of the Supreme Court or at least seven justices in constitutional matters – Rationale for empanelling all available Justices of Supreme Court in such matters – Constitution, 1992, Articles 125 (4) and 144 (6).

It is provided by the Constitution, 1992, Articles 125 (4) and 144 (6) that:

“125 (4) The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”

“144 (6) Where the office of the Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of his office (a) until a person has been appointed to, and has assumed the functions of, that office; or (b) until the person, holding that office has resumed the functions of, that office; those functions shall be performed by the most senior of the Justices of the Supreme Court.”

(In exercising the functions of the office under Articles 125 (4) and 144 (6) of the 1992 constitution, His Lordship, the Acting Chief Justice, per his letter dated 10 January 2001 addressed to all the Justices of the Supreme Court and copied to the Judicial Secretary and the Registrar of the Supreme Court, directed as follows:

“In order to minimise the mounting criticisms and the persistent public outcry against the judiciary in our justice delivery and to restore public confidence, it is my desire that where practicable and especially in constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven justices of the court.

“In view of the above and in the instant case (ie, Republic v High Court, Bolgatanga and Hajia Fati Seidu; Ex parte Hawa Yakubu, Civil Motion No 2/2001), by virtue of the powers conferred on the Chief Justice by Article 125 (4) and on me by Article 144 (6), I have decided that Hon Justice Sophia Akuffo and myself, ie, Hon Justice E K Wiredu, Acting Chief Justice, be added to the justices already panelled.” [The emphasis is ours.]

Signed
Hon Mr Justice E K Wiredu Acting Chief Justice

“(Editorial note: In pursuance of the above directive, a panel of seven Justices of the Supreme Court, coram: Edward Wiredu Acting CJ, Adjabeng, Acquah, Atuguba, Sophia Akuffo, Lamptey and Adzoe JJSC in Republic v High Court, Bolgatanga, Ex parte Hawa Yakubu, CM No 2/2001, on 16 January 2001 unanimously granted (reserving the reasons), the application by Madam Hawa Yakubu for an order of certiorari to quash the proceedings and order of the high court, Bolgatanga dated 6 January 2001, in an electoral petition resulting from the 7 December 2000 parliamentary elections for Bawku Central …

“In the respectful view of the editor, the above practice direction, issued by His Lordship the Hon Ag Chief Justice, is to be most welcomed by all members of the bench and Bar and the general public; and it may also be considered as very appropriate and long overdue. The practice direction, in the form of a letter to all the Justices of the Supreme Court, makes the empanelling of the Supreme Court for the determination of the constitutional cases more transparent; and more importantly, the Direction is in line with the democratic aspirations of all Ghanaians and the sustenance of the Rule of Law in the country. It has also the obvious merit of insulating and freeing the high Office of the Chief Justice from all imaginary and unproven but disturbing allegations of political bias in the empanelling of the Justices of the Supreme Court SYBB.”

This scepticism, as noted at pp48-49 of Dr Date-Bah’s formidable book Reflections on the Supreme Court of Ghana (Wildy, Simmonds & Hill Publishing, 2015), has persisted under the current Chief Justice. He thereat states as follows:

“The Chief Justice’s power to empanel judges confers on him or her, arguably, the opportunity or potential to influence the outcome of particular cases. The Chief Justice’s knowledge of an individual judge’s track record on particular issues or his or her judicial inclinations on particular issues may give the Chief Justice this potential. This, rightly or wrongly, has attracted unfavorable comment from people in political circles, in relation to politically controversial decisions. It is in reaction to such comments that Chief Justice Georgina Wood decided that she would, during her tenure, empanel, as a matter of practice a bench of nine justices to hear all constitutional cases.

“On this current practice, the Constitution Review Commission commented that it finds in regard to Ghana’s judicial practice that no law has ever prescribed the maximum number of Justices of the Supreme Court that should sit on a case brought before the court, though it has been the practice to specify the quorum. It has noted that this is a deliberate policy on the part of the law makers to allow the highest court a certain flexibility and freedom in deciding when to field a full complement of members depending on the gravity of the case and the need for a reconsideration of the law. It acknowledges that this practice has helped ensure that in the adjudication of matters of importance, as many judicial minds as possible would be involved in settling the law and making a definitive pronouncement. In this regard, the Commission commends the emerging practice by which nine justices of the Supreme Court are empanelled to sit on constitutional cases.” [The emphasis is ours.]

The legal colossus Dr Date-Bah JSC (retired), at p201 of his said book, further observed as follows:

”A perception and conviction by the public of the Supreme Court’s impartiality between parties in its adjudication is vital to its fulfilment of its broader role. Nevertheless, there has in recent years been a degree of controversy in the media as to the impartiality of the judiciary in general in disputes between the Government (by which is meant the executive) and the individual. This has been a challenge that the Supreme Court, along with other courts, has had to live with. The challenge has arisen from the highly competitive nature of Ghanaian party politics in the last decade and the perceived tendency for a party in government to prosecute politicians belonging to opposition. The court has been caught in the middle of this conflict and in their endeavour to do justice between parties before them have incurred the wrath of political party activists of the governing party who have alleged that the judiciary is biased against the government. The best response to this challenge is for the conduct of the judiciary to manifest its indubitable impartiality.” (The emphasis is ours).

On the other hand, Dr Date-Bah JSC (retired), in his aforementioned book, states at pp211-212 regarding this matter thus:

“The mode of appointment of Justices of the Supreme Court is specified by Article 144 of the 1992 Constitution. It provides for their appointment by the President, acting on the advice of the Judicial Council, in consultation with the Council of State and with approval of Parliament. Thus, both the executive and the legislature are involved in the process. The intention of the framers of the Constitution, as confirmed by practice, appears to be that nominations should be made by the Judicial Council, although the appointment is by the President.

“The names of nominees recommended by the Judicial Council are forwarded to the President who places them before the Council of State for their views. If the views of the Council of State are not negative, the President then forwards the names to the Speaker of Parliament for Parliamentary vetting. It should be noted, however, that Presidents in the Fourth Republic have not considered themselves bound by the advice of the Judicial Council in relation to nominations for appointment to the Supreme Court. Presidents have on occasion refused to accept some nominees recommended by the Judicial Council.

“Under a constitution on the Westminster model, such as that in force in Ghana between 1957 and 1960, the Governor General was obliged to follow the advice given him on judicial appointments. However, this convention and understanding have not survived into the Republican era. Ordinarily, presidents tend to accept the nominees of the Judicial Council as, it has to be remembered, the Attorney General (the president’s principal legal advisor) and four nominees of the president serve on the Judicial Council. The president thus has ample opportunity to influence the nominations by the Judicial Council.

“Furthermore, because the constitutional provision requires Parliament’s prior approval, Parliament has a veto power over the appointment of any Supreme Court Justice.”

Judicial compromise of independence

Sometimes the judiciary gives the impression that it is giving an undue advantage to the executive. In National Media Commission v Attorney General (2000) SCGRL1 the National Media Commission complained to the attorney general that the president was usurping their clear authority under Article 168 of the 1992 constitution of Ghana “to appoint the chairmen and other members of the governing bodies of public corporations managing the state-owned media in consultation with the president”.

When it was unheeded, it sued the attorney general in the Supreme Court for a declaration in January 1996. However, it was not until November 1999 that the suit was listed for hearing and judgment was given in favour of the plaintiff on 26 January 2000, by which date the then President Rawlings had left office after two presidential terms of office!

This trend has continued in very recent times. Thus, in Ghana Centre for Democratic Development & 8 others v Attorney General, as Amegatcher JSC delivering the judgment of the Supreme Court, stated, Judgment was delivered in this case on 21 May 2023, long after Mr Domelevo had been pushed out of office. Coincidentally, it was on the same day that the Supreme Court also delivered judgement in the case of Professor Kwadwo Appiagyei-Attua & 7 others v the Attorney General. In this case the plaintiffs challenged the constitutionality of the Imposition of Restrictions Act 2020 (Act 1012) which was enacted in consequence of the deadly coronavirus (COVID-19) pandemic.

It can unhappily be said that the Supreme Court acted unconstitutionally and in bad faith when it inordinately delayed in delivering judgement in the National Media Commission v Attorney General, as well as the Domelevo and COVID-19 cases for short. This is because it is the constitutional duty of the Supreme Court to enforce the constitution forthwith when it is breached. That is the mandatory duty under Article 2 (1) of the constitution. Thus in Gbedemah v Awoonor-Williams 2 G&G 739 (2nd) 1167 at 1175 Azu Crabbe JA (as he then was) said:

“The pith of the plaintiff’s claim as expressed in paragraph 8 of his statement of claim is that on 5 September 1969 the defendant took his seat as a Member of the National Assembly, notwithstanding the fact that he was not qualified so to do by virtue of Article 71 (2) (b) (ii) and (d) of the constitution, and that the defendant intends to continue to sit in the said National Assembly. If the matter rests here, then prima facie there has been an infringement of the Constitution, and an alleged threat to continue such infringement.

“This would constitute a mischief, and it would become the inescapable duty of the Supreme Court to suppress it by enforcing the constitution.”

In the National Media Commission, Domelevo and COVID-19 cases the Supreme Court failed to suppress the mischiefs of the infringements of the Constitution for an inordinate period of time. The entertainment and determination of the James Gyakye Quayson’s case (Michael Ankomah Nimfah v James Gyakye Quayson and two others) WRT NO J1/11/2022, 17th May 2023 by the Supreme Court is quite unfortunate though the Court, in my humble view was misled by the earlier decision of the Supreme Court in Sumaila Biebel (No 1) v Dramani & Another (2011) 1 SCGLR132. Even there the Biebel case was not, unlike the Gyakye Quayson case, determined on its merits by the high court and the Court of Appeal.

However, the determinative consideration is that the constitution has clearly assigned post parliamentary election matters to the high court under Article 99 and post presidential election matters to the Supreme Court. These provisions are specific whilst the provisions of Articles 2 and 130 are general and therefore verba generalia specialibus non derogant. This is particularly so since In re parliamentary elections for Wulensi constituency; Zakaria v Nyimakan (2003-2004) 1 SCGLR 1 has decided (though I disagree with it) that post parliamentary election matters end at the Court of Appeal level. It is so in some other jurisdictions.

Common sense is also a rule of the construction of statutes, therefore since parliamentary elections occur in as many as 275 constituencies in our country, the constitution could not have reasonably contemplated and provided for post parliamentary election matters should be litigated in the centralised Supreme Court unlike the singular and unitary post presidential elections. If it is the consideration that the constitutional breach cannot be left unredressed after the 21-day period for presenting a parliamentary election petition, can it also be argued that after the 21-day period under Article 64 (1) of the 1992 constitution, a person can bring an action under Articles 2 and 130 of the constitution to invalidate a presidential election? And except otherwise provided by the constitution under Article 130 (which comprehends Article 2 also), the jurisdiction of the Supreme Court is exclusive of all other courts.

How can the Supreme Court have concurrent jurisdiction over any matter with another court, which is the implication if the Supreme Court purports to adjudicate post parliamentary electoral matters alongside the High court? There are instances in which it may be felt that some members of the judiciary pay allegiance apparently to the executive or otherwise instead of to Ghana.

Despite the clear provisions of Article 146, a very knowledgeable chief justice of Ghana wrote on two occasions to a justice of the Supreme Court terminating his tenure as a Supreme Court judge on grounds of ill-health without complying with the said Article 146. On being shown the letters by the judge concerned I strongly exhorted him to reply them raising the contravention of Article 146. The same chief justice indirectly suspended me for six months by not empanelling me on any case immediately after I maintained my solo dissent in Tsatsu Tsikata v The Republic when it came up for review by the Supreme Court.

Before I curtail this issue, the same chief justice sidelined me as the then realistic most senior justice of the Supreme Court, contrary to Article 144 (6), who should act as the chief justice in his absence. I felt that since the Supreme Court is the custodian of the constitution, I could not condone its infractions. I therefore assumed the functions of the chief justice with clearance from the then most senior justice who was then very seriously indisposed and handicapped until I got to know from him very shortly afterwards that he had become fit enough to act as chief justice upon the death of the then incumbent chief justice.

It is this event which led Kweku Baako, a very prominent journalist, to state on a radio programme that in the bid for the post of chief justice, I declared myself the acting chief justice, but when the said most senior justice of the Supreme Court got wind of it, he said, “You lie: I can act.”

When I heard that allegation I was gravely hurt since I have never in my life made any move to be appointed the Chief Justice of Ghana because I consider lobbying for a position as a corrupt act since it involves compromising one’s conscience.

Constitutionalism in Ghana

These sorts of things do not augur well for constitutionalism in Ghana which it is the primary duty of the courts to ensure.

Our 1992 constitution has ordained constitutionalism for Ghana. This is plain from particularly Articles 1, 2, 3 and 35 of the constitution which provide inter alia for the sovereignty and welfare of the people of Ghana, the supremacy and enforcement of the constitution and the blessings of democracy.

Constitutionalism has been well explained by some eminent jurists in Ghana. In his very able book, Constitutional Law of Ghana: Text, Cases and Commentary, Professor E Kofi Abotsi states at p2 thus:

“Constitutionalism as a concept can be defined as the limitation placed on the exercise of legal and political power. The concept of constitutionalism is peculiarly important for African countries given the long-standing experience of dictatorship, anarchy and misrule on the continent. As corollaries, constitutionalism and responsible government have been said to be mutually reinforcing.

“Constitutionalism promotes responsible government in the sense that it compels government to act in a manner consistent with the expectations for the conferment of power and respond to feedback from the citizenry. In this context, one can accept that constitutionalism is a welfare- oriented concept to the extent that it seeks to ultimately champion the welfare of the governed by ensuring that governments exercise conferred powers in the best interest of the governed.”

Also in his thoroughly researched book The New Constitutional and Administrative Law of Ghana: From the Garden of Eden to 2022, Professor Raymond Atuguba states at p2 as follows: “The mere existence of a constitution is not enough for proper governance. A constitution can lead to constitutionality or constitutionalism. Constitutionality is the rule of law at the constitutional level; no matter what the content of the law is that rules.

“Constitutionalism, on the other hand, is good governance or people-centered governance at a constitutional level. With constitutionalism, there is limited government, people-centeredness, protection of minority and other rights, fairness, justice, equity.

“In countries such as the United States which practice constitutionality and not constitutionalism, a constitution exists along side social concerns like racism, gender inequity and the prisons industrial complex. These are incompatible with the countries that practice constitutionalism.”

See also Professor Date-Bah’s very scholarly book Selected Papers and Lectures on Ghanaian Law (p76).

The appointment of judges particularly of the Supreme Court as the fulcrum of constitutionalism and the Rule of law has its hiccups. It is the Judicial Council that recommends suitable lawyers or judges for eventual appointment by the president.

Sometimes some judges are recommended by the Judicial council to the Supreme Court over and above more experienced and senior judges even though they are not more competent and experienced than their seniors. Often when there is regime change, some of the sidelined senior judges now get recommended for appointment to the Supreme Court through the same Judicial Council, but they then become juniors to their earlier juniors by reason of their later appointment.

In practice, however, these later appointed judges often write the unanimous or lead judgements in difficult cases shortly after their appointment to the Supreme Court. Certainly, eyebrows can be raised over such practices. What can be the justification for such things?

Nonetheless, depending to some extent on the Judicial season the Judiciary has deepened constitutionalism in Ghana, notably the nullification of the 31 December holiday celebration funded from public funds, the freedom of choice of independent counsel by state bodies instead of the Attorney-General, despite Article 88(5) where there is conflict of interest, see Amegatcher v Attorney-General (1) [2012] 1SCGLR 679, National Media Commission v Attorney-General, supra.

As stated by Professor Date-Bah in his said book at pp17-18: “Constitutionalism is about having limits to the powers of constitutional bodies and enforcing those limits. The judiciary, through its exercise of the power of judicial review, is accordingly a vital actor in this process.”

The Ghana Supreme Court has been quite effective in protecting the legal framework of the liberal multiparty democracy whose Grundnorm is the 1992 constitution.

An example here would be appropriate. To my mind, this case illustrates the contribution of law to the development in Ghana.

At first sight, the case (Ahumah Ocansey v Electoral Commission; Centre for Human Rights and Several Liberties v The Attorney General and the Electoral Commission (2010) SCGLR 575), which was decided by the Ghana Supreme Court, would appear to have little to do with law and development.

The main issue raised in the case which in fact consisted of two consolidated cases, was whether prisoners were entitled to vote. In spite of Article 42 of the 1992 constitution, which provides that every citizen of Ghana of 18 years of age or above and of sound mind has the right to vote and is entitled to be registered for the purposes of public elections and referenda, the Attorney General had argued in this case that it was in the public interest that convicted offenders are punished, kept under lock and key and not allowed to vote.

The Supreme Court rejected this contention and held that there was no justification for denying prisoners their unqualified right to vote. This right was conferred on all adult Ghanaians who are sane by Article 42 of the constitution. As I said in that case: “… nothing in the core values and spirit of the 1992 constitution justifies the restriction on prisoners’ right to vote that is advocated by the learned attorney general. There is thus no basis for implying the restrictions argued for by the attorney general to qualify the clear and unambiguous language of Article 42.”

However, it is lamentable, as pointed out by Professor Raymond Atuguba in his said stirling book, that: “Notwithstanding the Supreme Court departed from the preposition espoused by Date-Bah, in the Osei Boateng Case, decisions of the Court after that departure still create doubt as to the current legal position. In some of these subsequent decisions, the Supreme Court seemed to be toeing the line of Date-Bah JSC in the Osei Boateng case, by declining jurisdiction to enforce the constitution on the grounds that the constitutional provisions sought to be enforced were clear and unambiguous.”

Notable cases are Mayor Agbleze v Attorney General and Asare v Attorney General and General Legal Council. Some other subsequent decisions of the Supreme Court have followed the reasoning in Noble Kor v Attorney General. This turn of events creates a cloud of confusion and inconsistency in our jurisprudential space, making it difficult for one to tell the direction of flow of our country’s constitutional law in this area.

This must be a cause of worry to students and practitioners of constitutional law.”

Realistic independence of the judiciary

I want to emphasise that there is a vast chasm between independence of the judiciary in theory and its independence in practice. Thus, as explicitly stated by Dr Date-Bah in his aforementioned book at page 90 “Independence of the judiciary has two dimensions: the institutional and the personal.

Personal independence relates to the commitment of individual judges to the judicial values that ensure their impartiality and fairness. I am here referring to values such as eschewing corruption and not allowing ethnic and other particularistic considerations to affect judicial determinations.

Institutional independence of the judiciary, on the other hand, relates to the constitutional, statutory, and other arrangements put in place to assure the independence of the judiciary. Issues that are customarily dealt with under institutional independence include: separation of powers; security of tenure for judges, including appropriate provisions on the appointment process of judges, the conditions of service of judges and the process for the removal of superior court judges; financial and administrative autonomy of the judiciary; and measures are what make judicial independence justifiable. It would be unacceptable to have independent but unaccountable judges.

Summary

The James Gyakye Quayson’s decision by the Supreme Court is with all due respect scandalous in that the court, in the teeth of the settled maxim Res Judicata et non quieta movere, readjudicated the same matter that has been adjudicated upon by the High court on the merits. All that was left was its execution according to court processes.

Again, the stress laid by the court on the statutory processes for acquisition and renunciation of citizenship shot it self in the foot. If the certificate of renunciation is so mandatory and conclusive why was it not conclusive in its effect to qualify Gyakye Quason when he received it, dated 26 November 2020, whereas the parliamentary election was held on 7 December 2020?

Statutes, judgements, and documents must always be applied with consistency both in the letter and spirit. These must always be construed holistically and as instruments of justice since it is a well settled principle that the duty of a court is to do justice and a court should not be turned away from doing justice.

In the 2013 presidential election petition (2013) SCGLR (Special Edition) 73 at 141, I stated as follows: “Again in Osman v Tedam (1970) 2 G & G 1246 (2d) CA and Osman v Kaleo (1970) 2 G&G 1380, the Court of Appeal held that though the respondents were members of the Convention People’s Party whose constitution made all Members of Parliament of the Convention People’s Party members of the party’s Regional Executive Committee that did not without more, make the respondents members of such committees and therefore disqualified to contest the 1969 Parliamentary Elections, which they had won.

“The decision in Osman v Kaleo is even more striking. Though the respondent had secured exemption from disqualification from contesting the parliamentary elections, it was submitted that since his exemption had not been published in the Gazette, upon which publication it will have effect, under paragraph 3 (5) of NLCD 223, 1968, the same was inoperative, notwithstanding that under paragraph 3(7) of that decree, the decision of the Exemptions Commission was final and conclusive. The Court of Appeal rejected that contention.”

Again in Justice Dery v Tiger Eye PI & Others (2015-2016) 2 SCGLR 816, the Supreme Court unanimously held that though the impeachment process against the plaintiff was published in contravention of Article 146 of the 1992 constitution that could not vitiate the crucial impeachment procedures against him. In other words the substantial and more important provisions on the removal of a corrupt judge could not be diverted by the incidence of the unconstitutional publication of the impeachment petition.

Similarly, then the certificate of Renunciation dated 26 November 2020 was more important than the anterior participation by Gyakye Quayson in the parliamentary campaigns between 5 and 9 October 2020 when he filed his parliamentary nomination papers with the Electoral Commission. The Supreme Court does not stand in good light, with all due respect in disqualifying Gyakye Quayson despite his clear certificate of Renunciation of his Canadian Citizenship as from 26 November 2020.

By analogy also, in CLOGSAG v Attorney General & 2 Others (2017 -2018) 1SCGLR 210, the Supreme Court unanimously held that a member of the Civil Service or Local Government Service can join a political party but cannot actively participate in politics or hold office as a political party nominee or remain in the Civil Service after election as a member of the district assembly. In other words, the operative evil to guard against is membership of the district assembly not the contest for the same. Similarly, therefore, the operative evil to guard against about a dual citizen is, as regards parliament, his actual membership of it, not just the campaigns.

That is why in the Gyakye Quayson case, his renunciation of Canadian citizenship certificate dated 26 November 2020 is the operative consideration. In any case it will be noticed that his certificate of citizenship is tied to an oath of allegiance.

The two move together, the letter and the spirit. It is difficult to think that Gyakye Quayson, who submitted his renunciation of citizenship papers to Canada in 2019, could still in December 2020 be held as seriously owing allegiance as a matter of hard realism as opposed to formalism, to Canada. In the King David example I cited in Asare v Attorney General (2012), 1 SCGLR 460, his Israelite citizenship became of real concern to the Philistines when going into actual war with Israel.

Current public image of the judiciary in Ghana

The current public image of the judiciary in Ghana is reflected on social media. For example, “Ghanaians are losing confidence in the judiciary system” by Dr Lawrence, as published on ghananewsonline.com on 16 October 2023.

Founder of the Diaspora Progressive Movement in the (USA), Dr Lawrence Appiah, has said that Ghanaians are losing confidence and hope in the ability of the court to administer Justice in the country.

He accused the New Patriotic Party (NPP) government of appointing cronies to the judiciary. In a recent interview with ghananewsonline.com.gh, Dr Lawrence claimed that President Nana Addo Danquah has deliberately appointed judges who are in bed with him in order to skip accountability.

In a statement signed by Dr Lawrence and circulated on social media, he said in Ghana, the Judiciary is gradually becoming a thin god [sic], allowing them to pass some outrageous judgments.

He argued that some of the judgments passed by some notable courts in the country leave much to be desired.

“In Ghana today, the birth certificate is not a legal document to prove that someone is a Ghanaian. Meanwhile, the birth certificate is the base document used to prepare a Ghanaian passport which is used to travel the entire world.”

He emphasised that the judiciary is packed with NPP-inclined judges because this government has carried out a deliberate policy of putting their people onto the bench to frustrate Ghanaians.

He further said, it will take a new leader like John Mahama in the next NDC administration to lead the process to repair what he describes as (badly dented image) of Ghana’s judiciary for people to win the trust [sic] in the system.

In his opinion, the deteriorated image of the Judiciary easily sparks laughter from the citizenry when one decides to go to the court for justice, adding that it is of the scariest existential threats to any democracy when citizens think their judiciary holds no value for them or no use to them, and this is the security threat that the National Security apparatus tried to draw the attention of the nation to recently but was poorly received by the president.

He added that such lawlessness in the country threatens the peace and stability of Ghana’s democracy and must be quickly corrected (because) if pragmatic measures are not taken, it will get to a stage where people will have no qualms about taking the law into their own hands because they do not have the confidence that they can get any justice in the system.

Dr Lawrence writes: The dangers of our current judiciary

… During the hearing of Hon. Gyakye Quayson’s case after the 2020 elections, the lower courts ruled that he was not supposed to go to Parliament whiles his case was ongoing.

The Supreme Court ruled that the Member of Assin North, Honourable Gyakye Quayson, after he was elected by his constituents, that not only should he not be able to represent his constituents; [it] went further to order Parliament to strike his name from Parliament’s records as if he never entered Parliament.

During the recently ended limited registration exercise by the Electoral Commission, the NDC and some civil society organisations filed a motion at the Supreme Court to stop the EC from conducting the exercise. The Chief Justice came and set a hearing date for 17 October 2023. Meanwhile, the whole limited registration exercise ended on 2 October 2023.

During the hearing of Honourable Gyakye Quayson’s case after the 2020 election, the lower court ruled that he was not supposed to go to Parliament whilst his case was ongoing.

At the same time, another lower courts hearing the case of the MP for Techiman South, ruled that the people of Techiman South need a representative in parliament, so while the case was ongoing, the MP could still represent his people. The case is now stalled in that court.

This same outrageous court agreed with the Attorney General that after |Hon. Gyakye Quayson’s had been elected the second time to parliament was to appear in court every day for hearing. The case has become inactive when the minority in parliament resolved to join their colleague in court.

When the executive needs a reform, the President is changed. When the legislative needed reform, the Speaker was changed. When the Judiciary needs a reform, the Chief Justice needs to be changed. If Nana Addo could remove the Electoral Commissioner, the Auditor General and it was good, so should John Mahama be able to remove the Chief Justice.

We need serious reforms in every institution including the NPP. This is one of the reasons Ghanaians want him to be President again.

I heard for talking too much, the Paramount Chief of Dormah Traditional Council and a High Court Judge, Osagyefo Agyeman Badu II has been transferred from the Greater Accra to the Volta Region. (Ghanaians are not angry enough).

My second example is “Mike Oquaye calls for appointments and removal of judges” as published on myjoyonline.com on 28 April 2022, where it was reported that Professor Aaron Michael Oquaye, the former Speaker of Parliament, has called for reforms in the appointments and removal of judges as provided for in the 1992 constitution to strengthen the country’s judicial system.

Professor Oquaye said the case of Justice Amoah Sekyi gave the country the lesson that where the executive was bend on removing a judge, it was easier to do so than meets the eye.

On the appointment of Council of State members, he suggested the need to introduce institutional representation and not allow the president to choose his advisors because the 1992 constitution gave the president too much power in the appointment of the members. “We need to adopt the recommendation of the committee of experts which provided that ‘the Council of State shall aide and counsel the president, the Council of Ministers, Parliament and other organs of state in the performance of their functions under the constitution or under any other law (sec 3i)),” he said.

In pointing out all these matters, I am not oblivious to the very difficult tasks of interpreting our 1992 constitution amidst the several decisions and dicta of the Supreme Court. But it is important that there be great reflection on the core issues and principles which should be the basis for decisions of the courts instead of the lesser considerations which tend to arouse suspicions, speculations and concerns in the body politic.

Conclusion

In view of all this what matters most is the realistic auditing and restructuring of the judiciary and indeed all other governmental institutions because just as the cyanide of illegal mining (“galamsey”) has devastated our forest lands and poisoned our water bodies so also has the cyanide of political corruption poisoned our governance institutions.

Appointments to the judiciary or any other governance institution must be made by thoroughly independent bodies based on nothing but merit and not on things like protocol, cronyism, ethnicity, or other improper considerations.

The governance institutions, particularly the judiciary, must be realistically insulated against presidential and other political pressures. Service conditions must be reasonably attractive and security of tenure of office must be enshrined. The executive powers of the president and his functionaries must be drastically curtailed. There must be real separation of Parliament from the executive branch.

The emphasis should be on good and sincere governance in the interest of the people and not on hollow over exaggerated notions of electoral conferment of power on any body or group of persons.

But no meaningful political reforms can be reasonably expected even under a regime change without sustaining the political renaissance which has started and is growing well in Ghana.

It is for this reason that I would like to acknowledge, encourage, and congratulate nationalists like Kwasi Pratt, Dr Arthur Kennedy of the USA, Dr Gyampo of the University of Ghana, Professor Bokpin of the University of Ghana, Prof Agyemang-Duah of the Centre for Democratic Development (CDD), recently Dr Asare-Baah (retired), formerly of the political science department, KNUST, Kwame Pianim, Dr Nyaho Nyaho-Tamakloe, Kelvin Taylor [sic] of the USA (though he should desist from insults), Emmanuel Wilson Jnr, the Chief Crusader Against Corruption in Ghana. I don’t know most of these people I have mentioned personally but I have followed their works on social media, and I am impressed. However, I hope that they will remain nationalistic no matter the regime in power.

I also wish to acknowledge some of the many civil society organisations such as Ghana Centre for Democratic Development, Ghana Integrity Initiative, Citizen Ghana Movement, Africa Centre for Energy Policy, Parliamentary Network Africa, Penplusbytes, Media Foundation for West Africa, Send Ghana, One Ghana Movement, Centre for Democratic Development, Democracy Hub, Occupy Ghana and the Institute for Democratic Governance. I regret I cannot recall all of them but, nonetheless, none of them should feel excluded.

Mr Chairman, invited guests, media friends, ladies, and gentlemen, permit me once more to show my appreciation to all of you, including the organisers for this platform and the hearing,

God bless our homeland Ghana and lead us to the promised land.

Thank you.

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