A: Introduction
The New
Year started on a high political pitch with the colourful inauguration of the
new President. Many were those who were invited to grace the momentous occasion
of the second coming of St. John in this millennium. If the cheers from the excited crowd was the
yardstick for measuring popularity and admiration for each invited guest, then
the Burkina Faso leader, Capt. Ibrahim Traorė, won the day. The reasons for his
popularity may not be far-fetched. Reportedly born in 1988, the gentleman is
barely 37 years old. He is a breath of fresh air in West Africa where
octogenarian rule is gradually becoming the norm: Paul Biya, Allasane Ouattara,
Bola Tinubu, Nana Akufo-Addo (until recently). Meanwhile, our population
censuses show our youth constitute the greater percentage of our citizens.
Youthfulness
aside, the crowd also cheered Capt. Traorė admiringly because of what they
might have perceived as his ‘luck’ in getting to power through the barrel of a
gun. This is so because, if a young African wants to get to power through ‘democracy,’
it is a costly and forlorn wish, excepting perhaps in Senegal. If in doubt, ask
Baba Saddique and Ebi Bright; whiles at it, reach out to Ama Sey, too.
Thus,
Capt. Traorė epitomised the aspirations of the majority of the youth. They
admired his simplicity in appearance and apparel, and his fearsome body guards
who looked like they meant business. No wonder ‘Nurse Yaa Yaa’ dared not spring
forth from the crowd screaming: “Daddy, Daddy” in an effort to give Capt. a
well-deserved hug. In the premises, it
is understandable that Monsieur Capt. drew the most applause from the youth in
the popular stand at the Independence Square.
By
the way, welcome to the era of tossed tribunals, looted lots and smiling
statues.
B: The business of governance begins
With
the inauguration fun fair over, we are back to business and Parliament is in
full session. Apparently, the Minority caucus is missing the old days of
137/137. Hence, their leader has decided to work as if to cover grounds for
those MPs his side ceded to the other side in the last election. We pray he
sustains the momentum with which he has started the 9th
Parliament,
more especially at the Appointments Committee.
Talking
about the Appointments Committee (which retired O. K. Mensah-B alleges is
unlawfully constituted), it is commendable how they have hit the ground
running. As of the date of writing, three (3) Ministers had been vetted. The
Finance Minister-designate came and re-affirmed his Party’s commitment towards
removing some taxes and so on. Fair game. The Energy Minister-designate recited
Manifesto aspirations of keeping the lights on, etc. Hear, hear! The Attorney-General-designate’s vetting
proved more eventful. He stated that the ORAL Committee of five eminent
citizens announced by the President to recover looted State assets (as its name
clearly means) is lawful. He also announced that the Government intends to
reintroduce the long-scrapped ‘tribunals’ into the courts’ system.
C: Re-introduction of ‘tribunals’
I
must confess that I did not read the manifestoes of the political parties that
contested in the 2024 elections. I am not sure if the independent candidates
had manifestoes of their own. The fact remains that I did not read them even if
they did. In the various campaign messages that flooded cyber space, TV and the
air waves, reintroduction of tribunals was absent.
It,
therefore, came as a surprise when the Attorney-General-designate made the bold
pronouncement on tribunals’ reappearance on the legal landscape before the Appointments
Committee of Parliament. Not surprisingly, the non–NDC MPs on the Appointments
Committee looked completely dazed and unprepared for the ‘announcement.’ They
had no immediate and well-reasoned questions to submit to the nominee. Thus,
the nominee proffered his Government’s reasons for bringing back tribunals as
follows: The tribunals are part of the laws of Ghana and recognized in the
Constitution, 1992. Secondly the Constitution states that justice emanates from
the people so, it is only fair that ordinary citizens sit with judicial
officers and judges to administer justice. With that explanation, the nominee
went his way.
Now,
for citizens who were the spectators of the unfolding spectacle - and who
wanted to unravel the basis of the reincarnation of tribunals – two schools of
thought have emerged. The first school of thought posits that the Government
had no intention to upset the courts system as it currently exists. But after
observing the great applause and admiration the Burkina Faso military leader - Capt.
Ibrahim Traorė - enjoyed at the Independence Square on 7th
January, 2025,
it was obvious that the youth of Ghana missed military rule.
But considering
that any endorsement or encouragement of military rule would see political
parties disbanded, Parliament dissolved and all politicians thrown out of job,
the Government thought it wise to devise a scheme that would satisfy, albeit
only to some extent, the wish for some nostalgic military flavour. Thus it was
that after combing through the Constitution to find something with military
antecedent that would seem attractive to the populace, the lowest hanging fruit
turned out to be the tribunal system, which has been abolished from our courts
system for about 23 years now.
The
second school of thought maintains that, the past eight (8) years of NPP rule
saw the worst politicization of the Judiciary in Ghana’s history. Party
affiliation to promote Government interests was considered the foremost
requirement for judicial appointments. Thus, appointments to the highest echelons
of the Judiciary oftentimes mimicked a nursery school game of fitting
triangular-shaped objects into rectangular ones. Membership of court panels made
for easy prediction of court decisions. Panels could change at any time without
notice. Some judges spent over a decade without promotion whiles others leapt
over their heads to the Supreme Court. Idle private practitioners populated the
Bench.
People
appointed into administrative roles with no prior practice experience at the
Bar metamorphosed into judges and performed BOTH administrative and judicial
functions in contumelious breach of the law. The well-designated court
divisions were jumbled up to allow puppet judges to be handpicked anytime from
any division to sit on any case that was of interest to the politico-judicial
heads. The rarely-used “additional judge” concept became the order of the day
whereby Supreme Court Justices routinely and willingly descended onto the lower
courts to serve as “trial judges” in cases deemed to be of importance to the
ruling political party.
Additionally,
the General Legal Council (GLC
) became the weapon of corrupt, extortionist
elements and a tool to silence political opponents – lawyers
and non-lawyers
alike. For instance, the body became so discredited when it wrote to warn an
NDC Parliamentary aspirant to desist from being called “lawyer,” based on a
complaint by the NPP candidate who was a lawyer. On the day of the resurrection,
- sorry, the election – the non-lawyer NDC candidate won, the prior GLC
intimidatory tactics, notwithstanding.
Furthermore,
Ghana Bar Association Annual Conferences became campaign platforms for the NPP.
The President could issue salvos to his political opponent from thence, to the
applause of party members in attendance. And in equal measure, to the disdain
of sympathizers of opposition parties and non-aligned members of the
Association. Remember the “perennial Presidential candidate” jab? Indeed, it
was at the 2023 Conference in Cape-Coast that the then Attorney-General
emphatically
announced that the incoming President of the 9th
Parliament will be
an economist. A pity it is that such a profound prophesy went terribly wrong.
Again,
while some cases of perceived political opponents were on trial for about 8
years (Republic v Opuni & Others
and Republic v Gregory Afoko
refer)
and CDD & Others v Attorney-General
(Domelovo’s
case), others promoting Government agenda were heard to conclusion within a
matter of days (
Markin v Speaker of
Parliament & Attorney-General
refers). Even a constitutional body like
the Rules of Court Committee was not spared the rod. The Committee was treated
with absolute disdain. The Chief Justice usurped the Committee’s exclusive
power to make the rules that govern the procedure used in all courts in Ghana.
Instead, a new phenomenon emerged whereby the Chief Justice handpicked some
judges with a sprinkling of lawyers to design ‘Practice directions’ for the
courts! Indeed, one could spend the whole day discussing the state of the
Judiciary in the past eight (8) years.
So, it
is in the light of the above state of affairs regarding the Judiciary that the
second school of thought is of the firm belief that, the NDC Government has
lost faith in the Judiciary in its current form. And that explains why it
intends to form its own court system, under the guise of reviving the tribunals.
It is submitted that, whatever be the reason for the Government’s intended
action of resuscitating the scrapped tribunals, caution and wise counsel must
prevail. It is a treacherous path to beat.
D: A look at the tribunal system of old
(a)
Origins of the public tribunal system
In
1979, a special tribunal was created by the Armed Forces Revolutionary Council
(AFRC) military regime and called “public tribunal.” The Provisional National
Defence Council (PNDC) came to power on 31st
December, 1981 when the
Government of Dr. Hilla Limann (of the 3rd
Republic) was overthrown
in a coup detát. The PNDC was, thus a military regime. The PNDC regime passed a
law to consolidate its existence.[1]
That was when the public
tribunals were established as independent tribunals to work alongside the
regular courts. The public tribunals had special laws passed to regulate their
processes and procedure.[2]
(b)
The type of cases handled by the public tribunals
The
purpose of the tribunals was said to be to achieve social justice, rather than
the rule of law. There were tribunals at the national, regional, district and
community levels and were governed by a Public Tribunal Board. The National
Public Tribunal (NPT) had original jurisdiction to handle cases resulting from
the report of a Commission of Inquiry, other offences arising under the
Criminal Code, 1960 (Act 29), offences relating to rent control, price control,
government revenue, imports and exports, and any offence created by the Public
Tribunals Law of 1984. The regular courts remained alongside the public
tribunals. However, their criminal, as opposed to civil, jurisdiction had been
drastically reduced and diluted in practice by the creation of parallel
institutions such as the Public Tribunals, the Citizens' Vetting Committees and
the National Investigations Committees.[3]
(c)
Opposition by Ghana Bar Association and
international human rights bodies to the public tribunals
The
creation and operation of the public tribunals received stiff opposition from
the Ghana Bar Association and international human rights institutions,
including Human Rights Watch. Prompted by the widespread revulsion over the
three judges' murder in June, 1982, the Ghana Bar Association (GBA) announced
the decision of lawyers in private practice to boycott the tribunal system. The
formal decision was taken at the GBA's annual meeting in September, 1982. The
GBA described as "detestable" the absence of a right of appeal and
described as "disturbingly prejudicial" the powers of the tribunals
to decide "in advance…that legal technicalities will not be tolerated."[4]
The GBA
boycott was denounced in the state-owned media and by the chairman of
the
National Board of Tribunals as a political act by "reactionary forces
hostile to the revolution." However in practice, individual lawyers had
been appearing before the Tribunals, either for financial reasons or when a
trial is seen to have a political dimension.
In January, 1984, then Chief Justice Apaloo reiterated the objections of the Judiciary
to the establishment of a parallel system of law and urged the government to
place the Tribunals under the supervision of the established courts. The same
month, the PNDC attempted to meet these concerns on the part of the legal
profession.[5]
(d)
The tribunals transitioned into the 4th
Republic
When
Ghana was ushered into constitutional rule, the public tribunals were merged
into the regular courts system.[6]
The main distinguishing
feature of the tribunals was that the magistrates and judges in those courts
sat and decided criminal cases with two persons who were members of the
community and were not lawyers. As those who were around during the early years
of the 4th
Republic would attest, the one most enduring feature of
the tribunals was that, it was the magistrates and judges who did the work. The
two non-lawyer panel members were mostly seated, staring either into thin air
or in the faces in the public gallery. Or much worse, uninhibitedly dozing off,
with pleasure.
(e)
The tribunals were sent off in 2002
Consequently,
when during President’s Kuffour’s first term in office the Circuit tribunals
were abolished and the District and Regional tribunals were merged into the
District and High Courts respectively, it was well received. Since then, the
courts have worked just fine, with all their shortcomings. It is for this
reason that the supposed reintroduction of tribunals into the judicial system
is at once shocking and perplexing.
E: Are tribunals the answer to our
judicial woes?
As
the adage goes in Twi: “Sԑ wo di deԑ etuo ayԑ akyi a, wo nwe ‘nam da.” This
loosely translates as “one will never eat meat if one dwells on the atrocities
the gun has committed.” There is no point in dwelling on the past when one has
the advantage of the future ahead. Are the tribunals the answer to dealing with
the aspects of the judicial system that have failed Ghanaians?
Admittedly,
the judicial system needs massive resetting (excuse the pun). Crucial areas
that need immediate attention include the following:
I.
Transparent and merit-based appointments to
the Bench through an independent, non-politicized appointments body backed by
law.
II.
True and proper implementation of the
e-justice system.
III.
Uproot corruption from both the
administrative and judicial sections of the Judiciary.
IV.
Purge the judicial system of magistrates and
judges who have infiltrated the Bench to serve political party interests and
those of expired corrupt judicial officers.
V.
Among many others,… kindly fill in the blank
space.
To
the average Ghanaian who silently went to vote for change on 7th
December,
2024, these are the real changes they want to see in the Judiciary, not a cosmetic
re-characterisation of courts, likely with a sprinkling of non-lawyer party
faithful as ‘tribunals’ that will supposedly serve as the salvor of all
conscience. We do not need to go back to an era that only evokes anger and pain
in a section of our citizens. Many of those citizens have moved on and,
probably, voted for change in last December’s election. The Government needs to
move forward and act incisively on the huge tasks ahead in the matter of the
Judiciary.
F: What is the basis of the ORAL
Committee’s existence?
As
noted earlier, the Attorney-General- designate defended the ORAL (Operation
Recover All Loot) Committee that was recently unveiled by the President. As its
name implies, the Committee is tasked to “recover all loot” from politicians
and their collaboration. Once citizens started questioning the legality of
such a committee, the narrative changed to the objective of “gathering
information from the public” for onward transmission to constitutional and
lawful bodies such as CHRAJ, EOCO, OSP, the Police and the Attorney–General’s Department.
So,
if someone visits an ORAL committee member in the dead of night and informs him
that a certain Julor Kwakwe, a former member of Bank of Ghana owns a GH₵100 million
mansion in Cantonments, Accra, and must be jailed; and the ORAL Committee
passes on the information and supporting land documents to the Attorney-General
for prosecution; and the Attorney-General decides to prosecute, who will be the
complainant? The ORAL Committee members or the informant? Who will testify on
behalf of the State; the informant or ORAL Committee members? Food for thought.
Thus,
whether recovering loot or gathering information about loot, the ORAL Committee
must reassess itself and yield to EOCO or the OSP.
G: I’ll praise myself while I’ve breath.
One
phenomenon that gained traction, if not notoriety, in the past ten years or so,
was the erection of busts and statues of certain persons in their own “honour’.
Up until that time, there were, of course, statues dotted around schools and
institutions in the country. In university of Ghana in the 1990s, we had busts
of Mr. David Mowbray Balme at Balme Library and John Mensah Sarbah at Sarbah
Hall, and so on. Considering that the illustrious lawyer and politician - Mr.
Sarbah - died in 1910 and the Mensah Sarbah Hall of Residence was named after
him, it was a posthumous honour done him. Also posthumous was the imposing
statue of the great man that adorns the frontage of the Hall.
On
the contrary, the splurge on statues in recent times have been made in honour
of living beings, who present themselves to unveil the statues to much applause
from their rented crowd. The bizarre part is where the “honour” is done at the ‘honouree’s’
cost. Even more bizarre are the honourees who feign ignorance and shock at the
honour done them when they unveil the fibre-glass versions of themselves.
Lately, we have seen busts and statues germinating all over the place, showing
smiling and contended effigies of the beneficiaries. The living beneficiaries
of these statues have been as varied as they have been intriguing.
Indeed,
some have about three statues to their names and counting. The beneficiaries
have included politicians, members of parliament, alumnus of public schools,
traditional rulers, public servants, heads of educational institutions and so forth.
Unbeknownst to the ‘honourees,’ the general public have become increasingly
irritated by such acts of self-glorification and aggrandizement, while
galloping inflation eats away the remnants of their resources after mandatory
“haircuts.”
Matters
came to a head when two particular individuals stepped forward with scissors in
hand to cut open and announce their own entry into the “Statues Hall of Fame.”
They were the sitting President of the Republic and the Executive Director of
the Economic & Organized Crime Office. From thence, citizens openly
criticized the proliferation of these statues and condemned the use of State
resources for what they termed as needless self-adoration. The militant types
even promised to destroy the statues if the then Government lost power in the
impending national general election in December, 2024.
Even
before the election date, some aggrieved persons could not hold their anger long
enough. They attempted to topple the President’s imposing statue at Effia
Nkwanta under the cover of darkness. It appears the cock crowed too soon that dawn
so the perpetrators had to abandon their mission. But they would not leave without
creating a gaping hole in His Excellency’s left calf. The plaque that was meant
to teach posterity about the great man was also removed that night. Undaunted
by the temporary desecration, the sponsors of the national honour quickly
performed the needed surgery to restore Nana to his former gait.
In
the meantime, on 7th
January, 2025, minutes after the new President
had taken his oaths of office, a band of aggrieved citizens reportedly invaded
the premises of EOCO on the High Street, Accra, in broad daylight and smashed
the EOCO boss’s statuette into smithereens. They walked away free. Coming
events, so the saying goes, cast their shows.
On
13th
January, 2025, the country awoke to the sad news that His
former Excellency’s statue at Efia Nkwanta had been attacked once again by
unidentified persons. Unfortunately, the attack this time had been more lethal and
he had succumbed to his injuries. Pictures that appeared in the news depicted a
pitiful sight. The entire edifice had been destroyed, leaving in its wake tiny
pieces of fibre glass scattered around the concrete tiled base on which His
Excellency once stood to welcome the sick and the dying to Efia Nkwanta
Hospital. But in a rare show of the resilient and indomitable human spirit, His
Excellency’s head, spotting his iconic heart-warming smile, did not take a hit
from the brutal assault inflicted on the body. The severed head, which had
detached from the body after the decapitation, managed to settle itself on a dry
patch of the Harmattan-withered grass. It was most refreshing to see that
despite the brutality His Excellency had suffered in the hands of the brutes,
he kept his smile on. That is the mark of a true statesman.
Unfortunately
for the EOCO boss, her ‘assassins’ were more ruthless. They destroyed
everything of hers that adorned her statuette, including her bob-styled wig.
Thus, we are unable to tell whether she kept her smile on, or she worked up a
look of shock on her face as she did on the day she unveiled her own statutte
at her office premises and wanted the world to believe that she had no idea about
it until she was blinded-folded and marched to “Obaatanpa Tiwaa Gardens” to
unveil it.
For
some unexplained reasons, people have moved on as if the beneficiaries of the
vandalized statue and statuette had gotten their just desserts. For most
others, those events simply leave them cold. They have no feelings or opinions
one way or the other. Some have even expressed the view that if the wanton
self-adoration through the vehicle of statues does not stop henceforth, those
already causing silent irritation among citizens will suffer the same fate.
What sayest thou?
H: Conclusion
It
has been refreshing to see the country once again change Government smoothly,
to the admiration of all, including coup makers in power elsewhere. Ghanaians
expect the new Government to walk the talk of its resetting agenda. For the
Judiciary, we expect many positive changes, including expeditious hearing of
cases to conclusion within a few days. After all, in Markin v Speaker of Parliament & Attorney–General
, Ghanaians
saw that a case could be filed, docket opened, motion assigned to a 5-member
panel, the panel is convened, sits and makes a ruling, the ruling is typed,
corrections are made, signed by all 5 Justices, certified by the Registrar, and
issued to the applicant all in one day. Such is the swift justice citizens want
to see, not a reintroduction of a tribunal system that has long been taken away
from our courts system by law.
Again,
if the new Government wants Ghanaians to take them serious (based on the
overwhelming endorsement received at the polls), then they must strengthen and
empower existing state institutions recognized under law to work. Such ad-hoc measures
as the ORAL Committee may end up empowering the intended “customers” to cry watch-hunting, and thereby scuttle the loot
recovery efforts. It appears ORAL is an outcome of
Ablakwah
& Another v Attorney–General & Obetsebi–Lamptey[7]
(the “Jake bungalow case”). Thus, one would have expected that in the 137/137 8th
Parliament, an effort would have been made to pass a law to regulate acquisition
of State property by politicians and politically-exposed persons. In the
absence of a specific law, much as the intention behind the ORAL Committee may
be laudable, their effectiveness may be seriously hampered. It will be without
any lawful basis.
On
the subject of honouring statesmen and women, there is no doubt that such
honours, epitomized by statues, is best when done posthumously. Thus, the
recent phenomenon of persons in public office idolizing themselves with their
smiling statues gives cause for worry. It appears the citizens’ abhorrence for
such actions is what ended up in the President and EOCO boss’s statues being
destroyed. There will be a better smile on one’s face in their grave when they
know that their great deeds in their lifetime would live after them. Inaugurating
one’s own statue and seeing it destroyed in their lifetime may be a tough reality
to live with.
[1]
The law was called Provisional National
Defence Council (Establishment) Proclamation, 1982 (PNDCL 1)
[2]
See, for instance: Public Tribunals Law 1982 (PNDCL 24),
Public Tribunals Law 1984 (PNDCL
78), Public Tribunals (Amendment) Law 1985
(PNDCL 108), Public Tribunals
(Amendment) Law 1989 (PNDCL 213)
repealed by the Courts Act, 1993 (Act 459)
[3]
Source: https://judicial.gov.gh/jsweb/index.php/summary#:~:text=The%20National%20Public%20Tribunal%20(N.P.T.,offense%20created%20by%20the%20Public
(accessed on 16th January, 2025)
[4] Culled verbatim from article titled “Ghana: Revolutionary Injustice: Abuse of the Legal System Under the PNDC Government,” produced by Human Rights Watch on 31st January, 1992, available online: https://www.refworld.org/reference/countryrep/hrw/1992/en/21899 (accessed on 17th January, 2025)
[5]
Same source as above
[6]
On
the recommendation contained in the Report of the Committee of Experts
on Proposal for a Draft Constitution
of Ghana, 1991
, pp.
124-130. See: Regional tribunals created under article 142-147 of the
Constitution, 1992 and sections 23-27 of the Courts Act, 1993 (Act 459) and
Circuit and District tribunals originally set up under the Courts Act, 1993
(Act 459) but repealed by Courts (Amendment) Act, 2002 (Act 620)
[7] [2012] 2 SCGLR 84