Supreme Court Opuni ruling: Judges should never be punished for doing their job

The Attorney General has since time immemorial served in the dual capacity as government’s principal legal advisor and Minister of Justice.

Thus, the Attorney General is often described as the “Leader of the Bar”, a symbolic representation of this role as the lead advocate in Ghana’s legal system that embodies the tenets of fair trial, impartial adjudication, consistency and predictability of the law.

This duty enjoins the Attorney General to be an active participant in the prosecution of crimes and where, in his estimation decisions of the Supreme Court offends established principles of law, take steps to have it corrected since such decisions bind all Courts below it.

In the particular case of the Republic v Dr Stephen Opuni and two others, the spirited attempt to suggest that the state, through the Attorney General, is trying to choose its judge by filing a review against the 3-2 decision of Supreme Court is most unfortunate, and appears to be a carefully orchestrated propaganda targeted at persons with limited knowledge of the workings of the legal system.

What are the facts?

Fact 1

The Attorney General has since 2017 been prosecuting Dr Stephen Opuni, a former chief executive of COCOBOD, for causing financial loss to the state.

Fact 2

After the prosecution called all its witnesses and tendered documents, lawyers for the accused (Stephen Opuni) made a  submission of no case to the high court presided over by Justice Clemence Honyenuga.

Lawyers for the accused wanted the court to discharge Dr Opuni without him opening his defence. In law, this is possible only if the judge believes the evidence provided does not meet the minimum threshold of the requirements to prove the offence.

Fact 3

Justice Honyenuga after considering all the submissions, refused the application and invited Dr Opuni to open his defence.

The judge, in performing his duty of evaluating the evidence and in exercising his discretion at law, rejected certain evidence brought – on the basis that they do not meet the test demanded by the law under the Evidence Decree.

Fact 4

Lawyers of Dr Opuni, in disagreeing with Justice Honyenuga, filed a special legal application called certiorari at the Supreme Court to strike out portions of Justice Honyenuga’s decision and prohibit him from continuing to hear the case.

Fact 5

On 28 July 2021, the Supreme Court ruled by a 3-2 majority prohibiting Justice Honyenuga from continuing as the presiding judge in the case.

Fact 6

The Attorney General, pursuant to constitutionally guaranteed rights, also filed an application for the Supreme Court to review its decision as it has a binding effect on all other courts.

Fact 7

The Attorney General argues principally that, since Justice Honyenuga was performing his regular duty of adjudication and had the power to do so, the accused person should have appealed to the Court of Appeal and not resorted to the special application for certiorari, which can be only made if the court had no power at all to reach the decision it made. The decision therefore deviates from established principles of law on the subject.

Fact 8

The Attorney General further contends that, Justice Honyenuga only applied a decision of the Supreme Court in excluding the evidence not essential for determining the matters in dispute. Simply stated, Justice Honyenuga acted lawfully.

This being the case, a failure to review the decision will amount to giving lower courts leeway to decide which judgments of the Supreme Court to follow.

Fact 9

It has also been contended before the Supreme Court that, no evidence of bias or real likelihood of bias has been brought against Justice Honyenuga to warrant his prohibition from continuing a trial of four years.

At best, in the opinion of the Attorney General, what the accused alleges is a mere suspicion of bias, which is never the standard required for judicial review in the Republic.

Fact 10

Finally, the Attorney General canvasses that failure to review and reverse this decision will offend the constitutional requirement of trial being within a reasonable time as the entire trial may have to restart all over at huge costs to the state.

A recent media article notes that the decision by the Attorney General to seek a review last occurred when the sitting president was himself the Attorney General, thus insinuating that the decision to apply for a review of the Supreme Court’s decision has arisen twice in the past two decades.

What the writer fails to realise is that in the just-ended election petition, counsel for the petitioner filed several review applications at the Supreme Court which resulted in the judiciary empaneling additional justices on the review bench.

Now here only two questions arise.

1. Does the state represented by the AG have a right to apply for a review of a ruling it is dissatisfied with?
2. Was it the state or the judiciary which empaneled the additional judges in the 2021 Election Petition case?

I suggest that these facts, make mockery of any assertions that, by filing an application for review, the state is seeking to choose its judges when it was not the state who empaneled the judge to hear the matter to begin with.

On the contrary, the ends of justice demands that a judge who has heard witnesses for about four years on a criminal matter should not be prohibited from performing his duty unless there are extreme and compelling reasons.

In defence of the administration of justice, the leader of the Bar has this binding duty to ensure that decisions of the Supreme Court are well grounded in the several principles of law and also that the decisions foster consistency, fairness and predictability.

The attempts at ascribing ill-motives to the review application are very unfortunate.

Wilberforce Asare

Asaase Radio 99.5 – tune in or log on to broadcasts online
Follow us on Twitter: @asaaseradio995
#AsaaseRadio
#TheVoiceofOurLand