Feature Article of Sunday, 13 January 2013
Columnist: Abubakari, Shuk
NPP Court Case: Justice Atuguba Must recuse himself and step aside
Say what you will about the long-term wisdom of NPP filling a motion to force Justice William Atuguba to recuse himself from the Bench hearing their case against the electoral commission and NDC. It's undeniable that the recent appointment of Dr. Raymond Atuguba by the President as his Executive Secretary makes Justice Atuguba’s presence on the Bench morally improper because of his personal relationship with Raymond Atuguba.
NPP General Secretary Kwadwo Owusu Afriyie popularly known as Sir John rightly said that - “We believe that in his own interest he ought to recuse himself from sitting on this matter. A formal motion will come and once a formal motion comes we would know the nature of the problem that we have. Sir John added that “his demeanour showed that he knew that something was wrong with his sitting on the matter and that he must go”
The Supreme Court by virtue of being the highest court in Ghana is the ultimate arbiter of all cases involving issues of our national law, and over a small range of cases. While the Supreme Court unlike the executive branch (headed by the presidency) cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. It is for the need to sustain and maintain public respect of its judgement especially in this case of national importance that, I believe any well meaning Ghanaians should support the NPP’s formal application demanding Justice William Atuguba recuses himself from the nine-member Supreme Court Bench empanelled by the Chief Justice to hear the party’s petition over the 2012 election results. Just as with anything else that requires human input, justice is not an exact science. Even when evidence seems irrefutable, there are often other factors, such as the appearance of bias. The often cited legal aphorism of Lord Justice Gordon Hewart, in a case: Rex v. Sussex Justices ex parte McCarthy (1924, UK), that “… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done,” This paramount principle of the Rule of Law- “Justice should be seen to be done” is not a term in law which should be taken lightly. What it means quite simply is that, the public needs to see justice done or they will feel that the system is failing them. The whole validity of the justice system is based on the public’s consent to justice served. For those who have forgotten the meaning of bias it still means: prejudice, partiality, inclination, leaning, bent, disposition, propensity, tendency, predilection, unfairness, proclivity, preconceived notion, foregone conclusion, favouritism, predisposition, preconception, susceptibility. I could go on but simply put, it is to affect unduly or unfairly.
There are several reasons a judge may recuse his or herself, or why a plaintiff’s lawyer might ask a judge to consider recusing his/ herself. For instance, the judge may have a conflict of interest: a party in the case might be a company in whom the judge has invested heavily, or may be a friend or family member. An lawyer or witness whom the judge knows personally may be involved in the case. Or the judge may feel that, for personal reasons, he will not be able to act impartially in the case.
Except, in this case Justice Atuguba has NOT recused himself and he apparently thinks he need not, which is even more disturbing and casts a shadow on his office, any potential judgement of our supreme court and the important role it performs in assuring public confidence in it.
NPP allegation of electrical fraud is a very heavy stuff not a simple matter of he said, she said and it deserves a pristine, unfettered and uncoloured examination by our Supreme Court justices without ANY possible conflicts real or even perceived for public confidence in their judgement to be completely accepted and respected.
I have no doubt that Justice William Atuguba will be able to judge cases before him objectively, I have nothing but respect for anyone who excelled in his or her profession and to rise to the position of justice in our supreme court. But this case is different; the complaint is now political, the stakes are extremely high and the public’s NEED for a completely sterile look at the issues involving the electoral commission’s declaration of the result should be paramount. Again in this case, Justice Atuguba’s nephew, Dr. Raymond Atuguba, was recently appointed by President Mahama as Executive Secretary to the presidency; therefore his recusal from this case will remove any suggestion of impropriety or conflict of interest.
In fact, it’s not even fair to Justice William Atuguba; even assuming there is NO conflict, who will now believe that if the Supreme Court rules against NPP? Justice Atuguba MUST steps aside from this case and MUST turn his brief over to another Supreme Court Judge … and have NO dealings with the matter or any of his staff working on it.
Anything less will be inappropriate, ineffectual, incredible … and unfair, to both the Ghanaian public to Justice William Atuguba and even to NDC and Dr. Raymond Atuguba.
Writer Shuk ABUBAKAR