It’s Kulendi; it’s Torkornoo: It’s a shame.

A: Introduction

Story-telling is an integral part of the African identity. I had the pleasure of listening to ‘Kwaku Ananse’ stories from my mother at an early age. Being a teacher by profession, my mom was, and still is, one of the best story-tellers I know. When telling a story to my formative ear, she spared no effort in singing choruses at the right interlude, changing her voice to mimic whichever ghost, monster or bear was making an approach to devour a deviant fellow. One story I was told around age 5, which I still remember vividly to date, was about some children who were cracking palm nuts (kernel) for food in a hunger-stricken season. Unfortunately for them, anytime they hit a nut, it went down a hole, never to return. This worrying state of affairs continued till the children lost all their nuts. When the last nut went in, they decided to enter the hole and retrieve the lost nuts.

 

As the story went, the children entered the hole one after the other and followed a long trail in the belly of Mother Earth for miles. The Garden of Eden was hardly more primitive. They trekked for miles with no nuts in sight. As they were about to give up on the search and return to the surface, they saw an old woman seated on a throne. She had silver hair that flowed to her feet. She beckoned the children to come thither. The children did as they were told; for when hope had departed, fear had gone as well.

 After narrating the story of what led them into the ground, the old woman decided to help the children. She asked them to approach two earthenware pots in a corner and do as the pots would instruct them. The children nervously marched to the pots, hoping to retrieve their everlasting nuts and return home. As soon as they got close to the pots, both pots started singing in unison. One pot screamed: “tu me, tu me, tu me!” – meaning, ‘choose me, choose me, choose me.’ The other pot also yelled: “ntu me, ntu me, ntu me! – to wit, ‘don’t choose me, don’t choose me, don’t choose.’ Faced with this dilemma, what did the children do?

 

B: The media and the mind games

The proliferation of newspapers, television and radio stations in the 4th Republic is one of the boxes ticked to give Ghana high score on media pluralism, democracy and political stability. The Executive and Legislature (collectively called ‘politicians’) have their own TV station (GTV Governance). Religious bodies (Christian, Moslem, traditionalists) own radio and TV stations or pay for dedicated slots at public and private media stations to reach their followers. The same goes for chiefs and sub-chiefs; and business men and women. It is only the Judiciary that does not have the pleasure of a dedicated mouthpiece. Even so, the Ghana Bar Association (GBA) and the Judicial Service Staff Association of Ghana (JUSAG) have elected themselves to do the talking for the Judiciary whiles the Association of Magistrates & Judges of Ghana (AMJG) sleep. On occasion, the Judiciary hire the services of private law firms to ‘speak’ (through writing) on their behalf.

In the past week or two, a new phenomenon has come to town. Some members of the Judiciary appear to have defied their mouthpieces in the GBA and JUSAG. They have apparently gone to rent front page space in the traditional media (specifically, newspapers and their respective online portals) to serve as a launch pad for their bid to be chosen as the next Chief Justice of the Republic of Ghana. On the surface, there is nothing to suggest that the Justices whose fortunes are being propagated in the Press are the orchestrators of the campaigns. But the average person of Class 5 level intelligence and appreciation of life in GH knows that, Ghanaian media do not offer their hallowed front pages for free. It is the stories they plant there that shape the daily discussions on TV and radio stations around the country, and on online portals and social media around the world.   

Now, the subject-matter of the recent media campaign is that, Chief Justice Anin Yeboah is about to retire in a month’s time or so. As such, some individual Justices of the Supreme Court are readying themselves to jump into the little shoes[1] of the outgoing Chief Justice. First came the GHANAIAN CHRONICLE with the news that Justice Kulendi is tipped to be the next Chief Justice.[2] A few days later, the national daily newspaper, DAILY GRAPHIC, also announced boldly that Justice Torkonoo has been penciled to be the next Chief Justice.[3] As if the Kulendi ‘group’ needed a bit more fire power to counter the devastating and widely-circulated and reviewed DAILY GRAPHIC publication in favour of the Torkornoo ‘group,’ Kweku Baako’s NEW CRUSADING GUIDE jumped in with its own publication which emphatically stated that Justice Kulendi is the new Chief Justice.[4]

All the publications came with background information on the education, legal and judicial career of the two Justices in whose favour each newspaper wrote. Till date, none of the two Justices in the supposed ‘race’ has said anything in public to admit or deny knowledge of the publications. One wonders if this attitude fits the description of ‘acquiescence by standing by,’ or better still, ‘acquiescence by keeping mute.’ The Chief Justice, as Head of the Judiciary whose members are the subject-matter of these media mind games, has not issued one of his ‘directives’ on the famous “Honourable Chief Justice of the Republic of Ghana” letterhead to warn both factions to halt the embarrassing media campaign. The foremost judicial mouthpiece, the GBA, is now practicing golden silence. JUSAG has gone ‘awol.’[5]

Religious leaders have not seen the screaming headlines. Chiefs have not heard of what’s going on. Council of State and National Peace Council are presumably on recess with Parliament. Civil Society Organizations are keeping their distance because these are matters about ‘courts’ else, they risk being cited for contempt. Citizens are quiet because if they say something and one of the contenders become Chief Justice and such citizens get court cases - and it is the Chief Justice who has power to empanel courts, transfer cases, and so forth - … you know what that means. So, better safe than sorry. Mum is the word.

In the light of the news publications, the media have now taken it upon themselves to force into citizens’ consciousness, their preferred choice of Chief Justice of the Republic. Shockingly, those whose duty it is to carry out the task of appointing a Chief Justice are quiet whiles the media are becoming emboldened every day, with a different media house coming to throw its weight behind one or the other of the two ‘candidates’ they are trying to force down our throats. From the media’s posturing, we either work around their two choices or be damned. The media have hijacked such an important national and constitutional process and playing mind games with it and we are staring on haplessly.

In seeking to save our own skin from any collateral scratches, we have not spared a moment to think about the tension this media campaign must be generating among the Judiciary. Are all other judges supposed to ‘throw their weight’ behind one or the other of the media-conceived and media-imposed ‘contenders’? If so, what happens if one’s choice loses out in the contest? Worst still, what if the President’s nominee for Chief Justice turns out to be neither of the two who are already rolling in the mud? In all sincerity, my sympathies are greatly with the contenders’ colleagues on the Supreme Court Bench. How do they support one against the other when they also deem themselves worthy of consideration for the prestigious ‘primus inter pares’ position?

Whether the two contending factions will admit it or not, their open media campaign is, at best, uncomfortable for most observers. At worst, it is repulsive and portrays a cunning attempt to force the President’s hand in choosing one of the two, to the exclusion of all otherwise qualified persons. At any rate, if one media house’s preferred candidate wins, will that mean he or she will be their puddle? Will the other media house be seen as an enemy? A worrying fallout will be that, it will create the impression that nominees for Chief Justice are chosen at the behest of lobbyists and other political opportunists (personified as the media), and not on merit or by the dictates of judicial and constitutional expediency. We cannot leave the appointment of such an important constitutional significance to the whims and pleasure of the media. This will not bode well for our country. As noted earlier, newspapers do not waste their front page slots for nothing. So, whose interests are these two opposing forces pushing?

 

C: Choosing a Chief Justice

History teaches us that, the choice of a Chief Justice is not a game of draught to be played under the ‘Odum’ tree in the Village Square. It is also not an Easter masquerade show to be screened to the public through the lenses of the media. It is an important and solemn project undertaken with utmost seriousness by the Executive (making the appointment),[6] the Bench and the Bar (undertaking preparatory background work to assure that the nominee is a good pick) and Parliament (to vet and decide whether to approve the nominee or not). Somewhere in between these layers of screening, the Council of State also play their part. The media, no doubt, play a critical role in informing citizens about the nomination processes. But it is not the media’s role to foist potential contenders on those who have the constitutional mandate to make the choice.

It must be noted that the task of appointing a Chief Justice of Ghana has never been an easy one. In years gone by, this important national assignment had, in some instances, ended in rancorous litigation before the Supreme Court. The celebrated case of Tuffuor v Attorney-General[7] readily comes to mind. This is the case in which Mr. Justice Fred Kwasi Apaloo’s nomination as Chief Justice under the 3rd Republican Constitution[8] was affirmed by the Supreme Court, after a fortuitous legal battle. This is what Sowah, JSC (as he then was) said about the appointment of Chief Justices in his celebrated and epoch-making opinion:

The Chief Justice is sui juris… [T]he Chief Justice under our system of government is appointed as such. He could be a member of any of the courts before such an appointment. He could be appointed straight from the Bar. His appointment would be that of the Chief Justice all the same. When so appointed, he becomes the Head of the Judiciary. In his capacity as the Chief Justice, he automatically becomes a member of each of the courts established by the Constitution. He is not a Chief Justice by virtue of his being a member of a particular court. He is a member of the Supreme Court, the Court of Appeal and the High Court of Justice,[9] because he is the Chief Justice.”

Thus, a President has a wide breadth of sources from which to appoint a Chief Justice. So, why are some elements trying to stampede the President into making an ‘either/or’ choice, and in the process, embarrassing the whole nation?

It is pathetic to observe how we have obliterated basic provisions in the 1992 Constitution only to turn around and scream that we need to amend the Constitution. I disagree with those beating the constitutional amendment drum. We do not need constitutional amendment. We need constitutional enforcement. That is the hard work we need to do as a nation. We cannot promulgate a Constitution and go to sleep, secure in the knowledge that the constitutional provisions will self-enforce. We need to accept that it is our duty as citizens and duty bearers to enforce the provisions of the Constitution. Unfortunately, enforcing the provisions of the Constitution is not like running the country’s finances where, if we fail, we can go to the International Monetary Fund, the vampires-in-waiting, and borrow ourselves further into destruction.

With the Constitution, once we fail to apply and enforce the provisions according to its letter and spirit – as we have sadly mastered in the 4th Republic – we have no external austere cushion to fall on. We have to dig ourselves out of any constitutional quagmire with our own hands. No amount of constitutional review, amendment, changes, enhancements, safeguards, protection – or whatever epithets one may want to employ – will save us. Thus, if we sit aloof and allow the media to choose our Chief Justices for us, we should not later hide in our ivory towers and lament that we need to amend the Constitution and state in ‘black and white’ that the media have no power to appoint Chief Justices!

            The worrying aspect of the media ‘war’ is that, it concerns two Justices of the Supreme Court who, on any given day, can receive a nomination for the position of Chief Justice on their own merit. To my mind, neither of them need media hype and embellishment to qualify for the position. They have earned the right to be on the Supreme Court Bench. Ultimately, they have equally earned the right to catch the President’s eye for the Chief Justiceship. What they should not do is to allow the media to fan flames of acrimony on their account.

 

D: Conclusion

To return. Faced with the two opposing choices presented by the singing pots, the children were in a fix. But they had to decide one way or the other and leave the Earth’s belly and return home. Night was drawing nigh. They had to take their young destinies into their own hands and make their respective choices. In view of the differing songs coming from the pots, the children had divided opinion. One set of children were attracted to the pot that was coaxing them to choose it. The other set of children were attracted to the pot that was literally begging them not to choose it. At last, the die was cast.

The two groups of children approached the two pots, kept their fingers crossed, and hoped for the best – to find their nuts. Behind each pot was a hole that led into a tunnel. After each set of children entered the respective holes behind their chosen pots, this is what happened: The children who chose the “ntu me, ntu me, ntu me” (don’t choose me) pot were led into a big room with several pots of gold. They took away as much as their young bodies could carry home. The children who chose the “tu me, tu me, tu me” (choose me) pot, entered the hole only to be led into a bottomless pit, never to be seen again. The moral of the story is that, appearances can be deceptive.

It may very well be possible that the media are just putting out a charade only to set the stage for the President to swerve both Justices and nominate an entirely different person.[10]  Both Justices have worked hard to be where they are now, by all accounts. They should not be made pawns in a media configuration and permutation which may turn out to be their undoing.

 

 

 

FOOTNOTES


[1] More figuratively, less literally

 

[2] The front page publication of the Ghanaian Chronicle newspaper dated 4th April, 2023 under the caption: The Chronicle Exclusive: Yoni Kulendi To Be Next CJ …Getrude Torkornoo also in the race”

is available online at https://thechronicle.com.gh/the-chronicle-exclusive-yoni-kulendi-to-be-next-cj-getrude-torkornoo-also-in-the-race/ (accessed on 23rd April, 2023)

 

[3] The Daily Graphic publication dated 18th April, 2023 and  titled “Gertrude Torkornoo pencilled as Chief Justice to replace Kwasi Anin Yeboah” is available online at https://www.graphic.com.gh/news/general-news/gertrude-torkonoo-penciled-as-chief-justice-to-replace-kwasi-anin-yeboah.html (accessed on 23rd April, 2023)

 

[4] The emphatic statement by the New Crusading Guide published on 22nd April, 2023 under the caption “Search For C.J: Justice Kulendi Is The Next Chief Justice … Akufo-Addo Swerves Gertrude Torkornoo” is available at https://thenewcrusadingguideonline.com/search-for-c-j-justice-kulendi-is-the-next-chief-justice/ (accessed on 23rd April, 2023)

 

[5] Absent without leave

[6] Article 144 (1) of the 1992 Constitution provides as follows: “The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament.”

 

[7] [1980] GLR 637, Full Bench, CA (sitting as the Supreme Court)

 

[8] 1979. Mr. Justice F.K. Apaloo served as Chief Justice up to 1986. He was succeeded by Mr. Justice E.N.P. Sowah, - who coincidentally presided over Tuffuor v Attorney-General – from 1986 to 1990

 

[9] This is codified in the 1992 Constitution: see: Articles 128 (1), 136 (1) (a) and 139 (1) (a)

[10] That will not be surprising at all. After all, in our lifetime, we have seen ‘no IMF-we have gone to IMF,’  ‘no haircut-there is a haircut,’ ‘individual/pensioner bondholders will be paid- individual/pensioner bondholders not paid.’ In the circumstances, ‘It’s either Kulendi or Torkonoo’ can easily turn out to be ‘It’s neither Kulendi nor Torkornoo.” A word to the wise…

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