The Supreme Court’s errors in the 2020 Presidential Election Petition and other issues, the Chief Justice’s behaviour, and the current practice of not providing justification for decisions and judgements have all been points of contention for the main opposition National Democratic Congress (NDC).
According to the NDC, if the judiciary, particularly portions of the Supreme Court, turn into or are perceived as hired guns or the political wing of a political party, neither Ghana’s democracy nor the values of freedom, justice, development, and equality of opportunity for all citizens, regardless of political affiliation, will be able to function effectively.
On Friday, July 22, 2022, General Secretary of the NDC Johnson Aseidu Mketia stated at a press conference in Accra that recent events, particularly those at the Supreme Court, had diminished their faith in the court. This loss of faith was what prompted their petition to the Secretary-General of the Commonwealth of Nations regarding various acts of human rights violations, criminal persecutions, and harassment of the members and supporters.
He declared that until proper legislation, like as a Judicial Proceedings Bill, is passed by Parliament to govern the writing of decisions by the courts, the NDC will request the Judicial Council to rectify and check the work of the Judicial Branch.
In order to propose appropriate corrective legislation, Mr. Nketia said, “The NDC will also petition Parliament for the Judiciary Committee of the House to conduct a public inquiry into the reasons for the errors committed by the Supreme Court in the 2020 Presidential Election Petition and other cases.”
Read the full statement below:
PRESS STATEMENT BY THE NATIONAL DEMOCRATIC CONGRESS ON CERTAIN DEVELOPMENTS WITHIN GHANA’S JUDICIARY
- The National Democratic Congress (NDC) has carefully considered certain recent developments within Ghana’s judiciary and is gravely concerned that if immediate steps are not taken to nib these negative developments in the bud they will fester with serious harmful effects on our democracy and the public’s confidence in the judiciary.
- Our decision to publicly address these concerns has not been taken lightly. We are aware of the auspicious role our judiciary plays in our democracy, the sometimes lonely and solitary lives of our judges, their traditional reserve and no comment policy on certain matters of national importance. These attributes of our judges require that we exercise great restraint in our public comments on the judiciary. We are however convinced that constructive criticisms of our judiciary, particularly the apex court, is a national duty, and as the largest opposition party in Ghana, we will be remiss in our duties to the nation and the people of Ghana if we remain silent about these developments. Accordingly, our duty to our national constitution and obedience to our national motto of “Freedom and Justice” compel us to speak.
- The NDC observes that our democracy cannot operate efficiently and deliver the values of freedom, justice, development and equality of opportunity for all citizens, regardless of political affiliation, if our judiciary, particularly, elements within the Supreme Court, become or are perceived to be the rented agents or the political wing of a political party. In recent times, certain happenings at the apex court, in particular, have dampened our faith in the court and it was this loss of faith that had provoked our petition to the Secretary-General of the Commonwealth of Nations regarding various acts of human rights violations, criminal persecutions and harassment of the members and supporters the NDC by the Government of Ghana headed by His Excellency, President Nana Addo Danquah Akufo.
- The NDC wishes to outline and share with the good people of Ghana some of the negative developments within our judiciary, particularly, the Supreme Court with the view to seeking remedial action promptly and effectively.
- NO REASONS ASSIGNED FOR JUDGMENTS AND RULINGS
- One disappointing, if not scandalous development, that is likely to make our justice system the butt of jokes among other democracies in Africa and the world at large is the phenomenon of court judgments without reasons. In recent times, our Supreme Court has handed down some judgments and rulings that do not make any legal or factual sense because the court failed to assign any reasons for these judgments. Two examples will suffice. It is instructive to note that in the recent case of Abdul Malik Kweku Baako vrs Attorney General, *(Suit No. J1/225/2018), which had raised certain important constitutional questions about the impeachment proceedings of Mrs. Charlotte Osei the then Chairperson of the Electoral Commission, the apex court simply declared that:
“After listening to counsel in the matter on the question whether the instant action is a proper invocation of our original jurisdiction and also having regard to the processes filed in this matter, we are of the view that the action does not raise any issue of interpretation or enforcement. Accordingly, we strike out the action which in our view is unmeritorious”.
- This cryptic judgment fails in many respects to meet the basic standards of a reasoned judgment. It is devoid of an analysis of the facts of the case, the case and arguments presented by the parties, the legal principles upon which the judgment is based, and how those legal principles apply or do not apply to the facts of the case. As to be expected, this. judgment cannot form the basis of any legal precedent, suggesting that it was a judgment of convenience fashioned out solely to deny justice to Mrs. Charlotte Osei, and once its immediate intended purpose has been achieved the judgment ceases to have any legal relevance in subsequent cases.
- True to form, the apex court again applied this scandalous technique in the case of the Republic vrs High Court, (Criminal Division) Accra; Ex parte: Stephen Kwabena Opuni & Anor (Civil Motion J5/15/22). The justice hearing the criminal case involving Dr. Stephen Kwabena Opuni, Mr. Justice Clemence Jackson Honyenuga, had in a recent ruling on an application to recuse himself on ground of real likelihood of bias accused Dr. Stephen Kwabena Opuni of “hallucinating”, “malicious lies”, “engineered to court public support”. In its ruling on this matter, the apex court stated that: “It is our considered opinion that the record does not reflect a personal interest by the trial judge in the matters in issue and the making of discriminatory orders to warrant the grant of an order of certiorari to quash the proceedings and orders of the trial court dated 16th December 2021. Regarding the application for prohibition we have thoroughly examined the processes filed by the parties and do not find the existence of a real likelihood of bias on the part of the trial judge such as would prevent the conduct of a fair trial by the judge. Accordingly, we dismiss the application in its entirety.”
- This ruling is also devoid of the factual matrix of the case, the case and arguments presented by the parties, the legal principles upon which the judgment is based, and how those legal principles apply or do not apply to the facts of the case.
- The NDC notes that the phenomenon of unreasoned court judgments has become so commonplace especially in cases with high political stakes. The NDC wonders how the apex court could engender public confidence in the administration of justice and remain accountable to the people when it assumes a calculated posture of rendering unreasoned judgments. The NDC believes that unreasoned judgments violate fundamental principles of justice and fair trial, and we wonder whether this phenomenon of unreasoned judgments is a clear manifestation of dereliction of judicial duties.
- TRESPASSING INTO DOMAINS RESERVED FOR THE LEGISLATURE
- The NDC is also greatly concerned by the unholy haste of the apex court in trespassing into domains reserved for the legislature by the 1992 Constitution. We note that one entrenched principle of our legal governance since 1993 has been the recognition by our courts that it is not their business to get into certain matters that by law have been assigned to other branches of government. Contrary to this principle, we have observed a creeping tendency of the apex court to trespass into domains reserved for parliament. In the process, the court has demonstrated legal or institutional hubris and thrown overboard the restraints the court has exercised in the past over matters that fall within the domain of Parliament.
- ADMINISTRATIVE ABUSES BY THE CHIEF JUSTICE
- Quite apart from the above, the Honourable Chief Justice, Justice Kwasi Anim Yeboah, is likely to go down in history as the worst Chief Justice of Ghana since the Inception of the 4th Republic. His reign as Chief Justice has been characterized by unimaginable administrative abuses. These abuses are thrown into sharp relief when the conduct of the current Chief Justice is measured against the professionalism and conduct of former Chief Justices. We recall in particular the words of Chief Justice Kwasi Apaloo at his send-off ceremony that: “The one great quality I would wish to see in my colleagues is courage that is to say they should be in a position to defend to the death positions they believe to be right….I charge you to keep or help keep the flag of the judiciary flying and may the profession as a whole provide leadership and best counsel on these professional matters which we have all held in trust for the benefit of generations yet unborn”.
- It would appear that this wise counsel of Chief Justice Apaloo has no resonance with our current Chief Justice, who has failed to show leadership and to “keep the flag of the judiciary flying” by abusing his power to empanel the courts. It has been our understanding that the setting up of divisions of the High Court in Accra such as the Criminal Division, Land Division, the Human Rights Division, and the Commercial Division were all meant to ensure that these specialized courts deal with matters that directly fall within their competence and jurisdictions. In fact, these courts started very beautifully and many were those who hailed the establishment of the court. Incidentally, in recent times these beautiful arrangements appear to have been thrown into a state of utter confusion where we could now witness even land cases being sent to commercial courts, clear-cut commercial court cases being sent to the human rights court and criminal cases sent to the judges at the Land Division. Sometimes the assignment of cases to particular judges is done in a manner that makes one wonder what is the motivation for the case assignment. Recently, the case involving Dr. Cassiel Ato Forson was originally assigned to Justice Solomon Oppong Twumasi only for the judge to announce in open court that the Chief Justice had reassigned the case to another judge in another division of the High Court. This development is quite mind-boggling and we wonder why for us in Ghana, we start everything with so much aplomb and funfair only for us to ruin it along the way.
- Another worrying phenomenon is the appointment of Court of Appeal Judges to preside over High Court Cases, For us these appointments are a damper and go a long way to demotivate our judges at the High Courts. By these appointments, is the Chief Justice saying that the said cases could not have any competent Justice of the High Court as currently constituted to deal with them or it is more the case that the Chief Justice has a cadet of justices who are specially deployed to do the bidding of his political masters? Without mincing words, we state that we see the appointments of Court of Appeal justices to preside over these cases as worrying.
- The NDC is saddened by and gravely concerned about the phenomenon of unreasoned judgments, lack of fidelity to the record of cases, unpardonable factual errors that have become commonplace in judgments of the apex court as well as glaring administrative abuses by the Chief Justice. We were particularly shocked by the palpable blunders committed by the apex court in the election petition judgment. In a case of such magnitude, we expected excellence, professionalism, attention-to-detail and meticulousness from our Supreme Court. Instead, what the people of Ghana obtained from the court were these unpardonable blunders, which have the potential to affect people’s confidence in the administration of justice.
- We therefore call on the Judicial Council to institute an internal inquiry to ascertain the reasons for these blunders and appropriate recommendations made to the Chief Justice to forestall their recurrence until appropriate legislation, such as a Judicial Proceedings Bill, is passed by Parliament to regulate the writing of judgments by our courts. The NDC will also petition Parliament for the Judiciary Committee of the House to conduct a public inquiry into the reasons for the blunders committed by the Supreme Court in the 2020 Presidential Election Petition and other cases with the view to proposing appropriate remedial legislation.
- The NDC remains committed to Ghana’s democracy and the promotion of the Rule of Law. Accordingly, we shall endeavor at all times, in line with our social democratic ethos, to ensure that the justice system performs the role assigned to it by the 1992 Constitution by serving the interest of all Ghanaians devoid of any political or partisan considerations.