Beyond
impunity.
Francisca Serwaa Boateng
16th May, 2024
A:
Introduction & background facts
“[I]f
we were so unfortunate as to get for our Chief Justice a cynical, mischievous
and obstinate individual who also had the ear of the President, at least, a sizeable
section of the Judiciary could be subjected to mayhem, with a not too remote
consequence of bedlam.”[1]
In the past one week, a lot has happened on
the law front. Two of the most well-known cases in this Republic came on for
hearing in the Supreme Court. The cases concerned first, were the LGBTQI cases
seeking to abort the signing of the Proper Human Sexual Rights & Ghanaian
Family Values Bill into law and second, an appeal in the matter of criminal
proceedings against one Dr. Stephen Opuni. Thanks to the power of the media –
both traditional and social – the entire country was feted to the full details
of what transpired in the hallowed sanctum of the Supreme Court in both cases.
The hearing in the LGBTQI cases was beamed
live on television. The Attorney-General reportedly requested the live TV
transmission of the proceedings and it was granted by the Chief Justice who
chaired the panel. It is unclear what input, if any, was solicited from or made
by the other parties in the cases before cameras were zoomed into their faces
in open court. Be that as it may, it is the entire citizenry’s expectation that
when the actors make time to review their performances on live TV, they will be
fully satisfied with what they see.
In the matter of the Opuni proceedings, there were no TV cameras present but the
after-court-session reports in the media made startling reading. It will be
recalled that when Honyenuga, JSC retired from the Supreme Court bench at 70
years + 6 months, the criminal proceedings he was handling as an additional
High Court judge in Republic v Stephen
Kwabena Opuni, Seidu Agongo and Agricult Ltd was put before a High Court
judge, Anokye Gyimah, J. The new judge ruled that he would hold a fresh
hearing. The Attorney-General appealed against the ruling. The Court of Appeal
overturned the ruling and ordered the judge to adopt the proceedings held before
Honyenuga, JSC and continue from where the latter left. Before Anokye Gyimah, J
could do as he had been ordered by the Court of Appeal, he was given a meteoric
transfer to Kumasi.
In the meantime, the accused persons appealed
against the Court of Appeal’s decision to the Supreme Court. It is reported
that the appeal was previously placed before a duly constituted 5-member panel.[2] The appellant and
respondent appeared before the panel in January, 2024. They were ordered to
file their respective statements of case, which they did. Their appearance in
court this week – 8th May, 2024 - was for the panel to give judgment.
To the utter shock of the accused/appellant
and others present, when the case was called, a differently-constituted panel
of 5[3] – now chaired by the Chief
Justice – came to sit. Later events show that the prosecutor/respondent, the
Attorney-General, did not share the appellant’s shock. The appellant immediately
raised a legal objection to the changed composition of the panel, citing
article 157 (3) of the Constitution, 1992.[4] The said article states
that when a judge of a Superior Court (that is, Supreme Court, Court of Appeal
and High Court) is handling a case and the parties have made their legal arguments
but judgment has not yet been given, the judge cannot withdraw from the case.
The Chief Justice overruled the appellant’s
objection, stating that the case was not ready for hearing when the Mariama
Owusu, JSC panel instructed the parties to file their statements of case. According
to reports, the Chief Justice indicated that the proceedings so far held in the
appeal did not constitute a ‘hearing’ and as such, she was right in changing
the panel since there had been no hearing and no judgment given in the appeal.
As soon as the happenings in court came into
the public domain, reactions were swift and mostly negative, Chief Justice-wise.
Whether by design or by fatigue, the perennial protectors of judicial officers
and the Judiciary – Ghana Bar Association – has gone into hiding. His Lordship,
Mr. Justice Kulendi who, in normal times, would have stepped up to the plate to
entreat citizens to mind their language is himself caught in the eye of the
storm. He is part of the ‘triple K’ squad who have been jettisoned from the
case. Naturally, the appetite for PR duties will be lost on any one under such
circumstances. Considering the reported “Always let me land” exchanges that
occurred recently in the LGBTQI trial in the Supreme Court, one wonders whether
Sory @ Law will lend itself to a retainer In re: Judiciary Public Relations Affairs.
So, with Ghana Bar Association and Company
effectively withdrawing their ‘mouth-piece’ services, the lot fell on the
indefatigable Attorney-General - the prosecutor/respondent in the pending
appeal – to issue a press release[5] in defence of the Chief
Justice (President of the panel). What the Attorney-General wanted all ye men
present to know was that, the Chief Justice is, by law, a member of every court
in Ghana. The Chief Justice is also, by law, the person who empanels courts and
changes panels. Therefore, by simple logical deduction, the Chief Justice can
replace any judge sitting in any court in Ghana at any time during proceedings
in any court on any subject matter and involving any parties and without notice
to the party who initiated the proceedings and finally, install herself as the
judge.
Oblige me, but this public relations role
played by the Attorney-General – apart from the fact that the reasoning in his
statement is misconceived in law - is symptomatic of what Mr. Justice Gabriel
Pwamang aptly described in a recent case as “symbiotic posturing.”[6] At any rate, is the
Attorney-General’s own position as an interested party in the appeal congruent
with his role as the ‘public relations officer’ of the Chief Justice, the
president of the panel? Your guess is as good as mine.
Now, to the pith and marrow of the discourse:
Was the Chief Justice justified in overruling the appellant’s legal objection
to the new composition of the panel after the parties had filed their
statements of case as ordered by the original panel? Are the views expressed by
the Attorney-General right? For answers to these queries, kindly come along.
B:
When is the Supreme Court seised of a criminal appeal?
In civil appeals,[7]
the Supreme Court assumes jurisdiction to control the appeal proceedings after
the Registrar of the Court of Appeal has transmitted the record of appeal to
the Supreme Court. Thus, the Supreme Court has jurisdiction over an appeal only
after Form 6 has been issued and served on the parties notifying them that the
record has been transmitted to the Supreme Court. This position has been
affirmed in cases such as Republic v High
Court, (Human Rights Division), Accra, ex parte Akita, (Mancell-Egala &
Attorney-General Interested Parties),[8]
Republic v High Court; ex parte
Evangelical Presbyterian Church of Ghana,[9]
and Shardey v Adamtey; Shardey v Martey
(Consolidated).[10]
Unlike civil
appeals, the Supreme Court Rules[11]
contain no elaborate procedure for determining when the Supreme Court is said
to be seised of a criminal appeal. Criminal appeals have very simple rules
because they usually involve the rights of individuals and are handled, or
ought to be handled, expeditiously. The rules simply provide that when an
appellant files a notice of a criminal appeal or the appellant is granted leave
to appeal by the Court of Appeal, the Court of Appeal Registrar must forward
the following documents to the Supreme Court Registrar:
(a) The notice of the criminal appeal or the
notice of an application for leave to appeal with the order of the Court of
Appeal granting leave to appeal; and
(b) Nine (9) copies of the proceedings in the
Court of Appeal.
(c) The original exhibits in the case and any
other documents that form part of the record.[12]
In the Opuni
case, once the notice of the criminal appeal or the notice of an application
for leave to appeal with the order of the Court of Appeal granting leave to
appeal, as well as the original exhibits were forwarded to the Supreme Court,
the appeal was ripe for hearing. That explains why the Mariama Owusu, JSC panel
held court in January, 2024, ordered the parties to file their statements of
case within certain fixed time periods and gave 8th May, 2024 as the
date for judgment. In the light of these basic legal principles, legal
ingenuity will be sorely taxed to propound a theory to support the Chief
Justice’s assertion that the appeal was not ripe for hearing when the Mariama
Owusu, JSC panel ordered the parties to file their statements of case. One
wonders what form of ‘hearing’ was expected to be undertaken in a simple interlocutory
criminal appeal such as the Opuni
case.
C:
What is the significance of an order for parties to file statements of case in
criminal appeals?
In civil appeals in the Supreme Court, the
parties’ statements of case (also referred to as “written legal submissions” or
simply, “written submissions”) refer to the legal arguments or statements the
parties make to the Supreme Court to argue their respective cases. The
expressions ‘statement of case’ and ‘written submissions’ are used
interchangeably. The statement of case filed by each party to the appeal should
be based on the evidence on the record of appeal. It should not set out new
evidence or facts that are not already in evidence as part of the record. A
statement of case must set out the following: (a) the full case and
arguments to be advanced by the party including relevant authorities,
references to any relevant decided cases and statute law on which the party
intends to rely; and (b) in the case of a respondent, may include a
contention that the decision of the court below be varied.[13]
In criminal appeals in the Supreme Court, however,
there is no requirement for filing statement of case. But the Supreme Court can
request statements of case in lieu of
oral arguments. It is trite knowledge that the point at which the Supreme Court
takes statements of case is where it considers that the hearing is over. Thus,
the parties’ submission of their statements of case in the Opuni case signified the close of their legal arguments. What was
left was the judgment to be rendered and the Mariama Owusu, JSC panel had fixed
it for 8th May, 2024.
By the clear provisions in article 157 (3) of
the Constitution, 1992, after the parties filed their statements of case and
the only outstanding matter was the judgment to be given, the Chief Justice
could not have withdrawn the three (3) Justices from the case.[14] She had no power under
the Constitution nor any other law to withdraw the Justices from the case that
was ripe for judgment. The withdrawal was against the express constitutional
position in article 157 (3). The Chief Justice also had no power to shove off
the presiding Justice and install herself as President of the panel when she
took no part in the proceedings leading up to the judgment. Such attitude is
beyond impunity. It is unconstitutional. It is unlawful. It is an affront to
constitutional democracy.
E:
Is the Attorney-General’s position justifying the Chief Justice’s action right in law?
According to the Attorney-General’s Press
statement, "[i]n accordance with the Constitution and the Courts Act, 1993
(Act 459), the Chief Justice determines the composition of every court for the
hearing of any matter." He added that "The Chief Justice is a member
of every court in the country and, has the power to request in writing a
Justice of any of the Superior Courts of Judicature to sit on either the Court
of Appeal or the High Court at any time." For him, "consistent with
article 128 (3) of the Constitution, 1992, the Chief Justice presides at
sittings of the Supreme Court, and in his absence, the most senior of the
Justices of the Supreme Court, as constituted, shall preside."
The provision in article 128 (3) on the
general powers of a Chief Justice to preside over Supreme Court sittings, which
appears to appeal very much to the Hon. Attorney-General, is of no moment to
the question of how a Chief Justice can shuffle a panel ready to give judgment
in a case. It is submitted that what the Attorney-General referred to in his
Press statement as a “grotesque and wild objection” by the appellant based on
article 157 (3) is rather the meat of the issue. It is most strange that the
Attorney-General who has reportedly filed a statement of case in the appeal as
ordered by the Mariama Owusu, JSC panel now contends that “[t]here had been
neither oral nor written arguments in the matter heard on 17th January, 2024,
and therefore, article 157(3) was not triggered.” Some public relations tasks
must be daunting, indeed.
F: Conclusion:
We were warned; we did not listen.
There is an unmistakable and, perhaps,
unhealthy concentration of power in the hands of the Chief Justice vis-à-vis
other justices of the Superior Courts, not to mention inferior court judges,
magistrates and other judicial officers. No arrangements exist within the Judiciary
itself to safeguard individual judges against such common human failings as
jealousy, pettiness and just plain personal dislike. Any respectable
sociologist will confirm that in the societal context of Ghana, as indeed
elsewhere, any institutional arrangements for securing the independence of the
Judiciary must take account of the freedom of individual judges from possible
arbitrary transfers, irrational promotions and questionable appointments. We
are arguing now for independence of judges rather than independence of the
corporate Judiciary.
As the provisions stand now, if we were so
unfortunate as to get for our Chief Justice a cynical, mischievous and
obstinate individual who also had the ear of the President, at least, a
sizeable section of the judiciary could be subjected to mayhem, with a not too
remote consequence of bedlam. If the answer to these fears is that none of our
present or prospective judges who could be made a Chief Justice is likely to
abuse the unusually vast powers conferred on the office of Chief Justice, then
we need to remind ourselves that, generally, men are not angels, and, … it is
not safe, in the nature of things human, to erect principles round the
personality and character of any particular person.[15]
I rest here.
FOOTNOTES
[1] S. O. Gyandoh, “The Role of the Judiciary under the
Constitutional Proposals for Ghana” [1968] VOL. V NO. 2 UGLJ, 133—156.
[2]
The 5-member panel reportedly comprised of Mariama Owusu (Presiding), Kulendi,
Kwofie, Koomson and Darko Asare, JJSC
[3]
The new and differently constituted 5-member panel that sat on 8th May,
2024 was made up of the following: Gertrude Torkornoo, CJ (Presiding), Mariama
Owusu, Henrietta Mensa-Bonsu, Gaewu and Darko Asare, JJSC
[4]
Article 157 (3) provides as follows: “(3) Without prejudice to clause (2) of
this article, no person sitting in a Superior Court for the determination of
any cause or matter shall, having heard the arguments of the parties to that
cause or matter and before judgment is delivered, withdraw as a member of the
court or tribunal, or as a member of panel determining that cause or matter,
nor shall that person become functus
officio in respect of that cause or matter, until judgment is delivered.”
[5] https://www.graphic.com.gh/news/general-news/chief-justice-did-not-violate-1992-constitution-in-constituting-a-panel-in-opunis-appeal-ag.html#:~:text=The%20Office%20of%20the%20Attorney,Ghana%20Cocoa%20Board%2C%20Dr%20Stephen
(accessed on 16th May, 2024)
[6] Francis Osei-Bonsu v Attorney-General
Writ No. J1/18/2023 judgment dated 24th April, 2024, SC
[7]
See: Rule 16 of the Supreme
Court Rules, 1996 (C.I. 16) on “control of proceedings during pendency of
appeal”
[8] [2010]
SCGLR 374
[9] [1991]
1 GLR 323, SC
[10] [1972] 2 GLR 380, CA
[11]
1996 (C.I. 16)
[12]
See: Rule 36 of C.I. 16
[13] Rule 15 (6) of C.I. 16; Ejisu Stool & Ejisu Pinkra Stool Land v J. C. Addai Civil
Appeal No. J4/32/2021 judgment dated 15th December, 2021, SC
[14]
The triple- K squad comprising of Kulendi, Koomson & Kwofie, JJSC
[15]
These two paragraphs in this concluding section were culled verbatim from S. O. Gyandoh, “The Role of the Judiciary under the
Constitutional Proposals for Ghana” [1968] VOL. V NO. 2 UGLJ, 133—156. I
deliberately left out quotation marks and, I believe, whiles reading, you
thought it was my admonition regarding the choice of Chief Justices and
safeguarding the independence of the Judiciary in 2024. Sorry to disappoint
you. This was the late Emeritus Prof. Gyandoh writing in 1968 about the then
incoming 1969 Constitution. How far off the path Prof. Gyandoh proscribed have
we trodden off in the 4th Republic?
