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Feature Article of Sunday, 13 January 2013

Columnist: Mensah, Nana Akyea

NPP Is Driving Its Petition Into A Legal Limbo!

Feature Article, by Nana Akyea Mensah, The Odikro.

The Forum for Governance and Justice is cautioning against the NPP’s
objection to the Supreme Court panel sitting on their petition over the
election results. At the first sitting over an application by the NDC to
join the suit, the NPP opposed the inclusion of Justice William Atuguba on
the judging panel. The party was concerned that the relationship between
him and the Executive Secretary to the President Dr. Raymond Atuguba could
compromise his stance. And his is not a lonely voice!

It is clear that what the NPP is doing is not simply dismissing a judge,
but dismissing their own case out of court! The absence of a judge to sit
on the case does not throw Ghana into a constitutional crisis. It only
throws the case out of the legal system, as we revert automatically to the
status quo. The Member of Parliament for North Tongu, Samuel Okudzeto
Ablakwah, also did not mince his words when he described as laughable and
ridiculous, NPP’s protest against Justice William Atuguba being a member of
the nine-member panel hearing its election rigging petition. According to
Hon. Ablakwa, no judge would be left to sit on the case if the argument is
stretched to relations.

“If we use just relations it would lead to a situation that no judge would
sit on this matter because we know that on that same panel are relations of
people who have been active in the NPP and have even been cabinet
ministers... to make it to the Supreme Court you should be appointed by a
President so who is going to be left. So I am very surprised that people
are inviting us to this absurdity”. [1]

The Convener for the Forum, Dr. Clement Apaak said from the way the NPP
opposed Justice Atuguba, Ghana would be left with no choice than to import
Justices from other countries to hear the petitions.

“If indeed the NPP is opposed to the presence of Justice Atuguba then that
raises a lot of questions and what is eventually going to happen is that
Ghana would have to import Justices to sit on this petition as well as all
matters pertaining to the petition," Dr. Apaak said." [2]

But that would not be necessary. What the NPP needs to bear in mind is
that the Supreme Court, as composed, is not obliged to respond to their
petition, if it finds itself technically incapable of doing so! Under the
English Law, whenever the Supreme Court is unable to arrive at a decision,
the decision of the lower court, or the competent legal authority prior to
the litigation, stands. Thus the question of the legitimacy of the
Presidency of President Mahama remains intact, since the Electoral
Commissioner is the last competent legal body that would be left as a
result of the incapacitation of the Supreme Court to sit on the case. Thus
the NPP is clearly playing a game it cannot win.

It is impossible for the sanctity of the Supreme Court to be preserved by
panelling only “NPP Judges” to hear the case! What would be the difference
between that and the accusations that the Head of the Ivorian
Constitutional Court was a friend of the then President Laurent Gbagbo, and
so his ruling that Gbagbo won ought to be dismissed with contempt? The
magnitude of the NPP's objections amount to the fact that the entire
Supreme Court will have to recuse itself. I remember a remarkable case in
which this happened when the US Supreme Court was unable to panel enough
judges to hear an appeal by some US multinational corporations against
damages from collaborating with the Apartheid regime, because most of the
judges had interests in these companies.

In this case that went before the US Supreme Court, the victims were
seeking damages reported to be worth more than $400bn (£205bn). Among the
corporations accused in the lawsuit are oil firms BP and Exxon Mobil, banks
including Citigroup and Deutsche Bank and multinationals like General
Motors and Ford. The plaintiffs bringing the lawsuit argued that the
corporations violated international law by assisting South Africa’s former
apartheid government. An appeals court in New York ruled had ruled earlier
that the lawsuit, being brought under a US law which allows foreigners to
sue in US courts over breaches of international law, could proceed.

“However, the court’s hands were tied by federal laws requiring at least
six of the nine justices to hear any case. Chief Justice John Roberts and
Justices Stephen Breyer and Samuel Alito all had to sit out because they
had financial interests in some of the companies concerned. According to
the Associated Press news agency, Mr Roberts owns stock in Hewlett Packard,
Mr Alito has shares in Exxon Mobil and Mr Breyer has stock in
Colgate-Palmolive, Bank of America, IBM and Nestle. Justice Anthony Kennedy
sat out the case because his son works for Credit Suisse, another company
concerned.”

The point to note is that the decision of the lower court was upheld
automatically in this case: “The US Supreme Court has cleared the way for a
lawsuit against major international companies accused of aiding South
Africa’s apartheid system. The court said it could not intervene over the
case because of a potential conflict of interests. Four of the nine
justices had ties to the firms involved and could not rule on the case, it
said. By law, at least six justices must sit in order for the Supreme Court
to hear a case. As a result, the court could only uphold a lower court
ruling allowing a lawsuit to go ahead against firms accused of aiding South
Africa’s apartheid system.” [3]

What the NPP must begin getting familiar with is that in their case, if
the Supreme Court is unable to panel enough judges to hear the it, the
decision of the Electoral Commission automatically stands. That is why the
NPP should have been the last to bite off their own noses, in order to
spite their faces! They have clearly and greedily bitten more than they can
chew! The objections raised by the NPP points at the stark reality that it
is not only Justice Atuguba who must recuse himself from the case, but the
entire Judiciary, including, and most especially, the Chief Justice!

About two years ago, when the issue of “NPP functionaries, leaders,
sympathizers, and members, took two hundred and thirty plots in Accra alone
for themselves, paying ridiculously low prices and without regard for
laid-down procedure and any norm of decency”, came up. And it emerged that
the current Chief Justice of Ghana, *Georgina *Theodora *Wood* was one of
the beneficiaries. It further emerged that she had written a letter in
which she was said to have relinquished her interest in the plot until the
hullabaloo was over.

In “The Chief Justice Stinks!”, Mr. Kwesi Pratt, Jnr. Takes us through
some of the reasons why the NPP's request for Justice Raymond Atuguba does
not go far enough. In order to maintain the sanctity of the Judiciary, the
Judiciary must recuse itself from the case before them! It is not simply
because Mrs Georgina Wood was appointed by the former President Kufuor of
the NPP that puts her into a position of conflict of interest. Here is an
example of some of the questions likely to crop up, as the NPP pursues its
course of eliminating judges they are uncomfortable with:

"What we are discussing is not complicated at all. Indeed, it is a very
simple matter. You know, when we go and join the very long queues, in the
scorching sun, to get the opportunity to cast our ballots, what we are
doing is electing people into office, who will protect our interests,
protect state assets, and make sure that state assets would be utilized in
the best interest of the people of Ghana. So when you have a situation,
where elected officers, after four or eight years in office, leave office
carrying all our national possessions under their armpits, and on their
heads, it can only amount to the abuse of trust we have reposed in them.

This has been happening for a very long time. You recall that after the
1966 coup, the coup plotters and their allies, who included persons like K.
A. Busia and so on, came up with this notion that that "the state has no
business doing business." And therefore decided to privatize state
enterprises and other possessions. At the end of the day, by 1972, when the
Acheampong coup occurred, a vast array of state assets have ended up in the
hands of the elements of the Progress Party. Today, many of them are very
very rich people, and a very comfortable future have been guaranteed for
themselves, their children and grand-children, as a result of looting of
state assets.”

“On the other side, the unemployment rate is increasing because these
factories which were supposed to give employment to the Ghanaian people,
have ended up in private hands, and indeed some of them have been stripped
and sold in order to maximize profits. On the other hand, social services
which were being provided by all these state institutions and so on have
grounded to a halt, to the the extent that today, the State Housing
Corporation is no longer in a position to increase the housing stock and
improve the quality of housing! To the extent that today in Accra, and many
other parts of this country, there are too many homeless people, people
sleeping in the street and so on.

Now, this is the problem we are discussing. Is it right that after eight
years of NPP rule, NPP functionaries, leaders, sympathizers, and members,
took two hundred and thirty plots in Accra alone for themselves, paying
ridiculously low prices and without regard for laid-down procedure and any
norm of decency and so on. That is the crux of the matter! As for the Chief
Justice and the statement that she has made, hmm, I would like to seriously
disagree with my brother and friend, and indeed comrade, Dr. Tony Aidoo. I
don't see the basis for commending the Chief Justice! Commend the Chief
Justice for what? The Chief Justice stinks!

What does she say? All of this struggle to ensure that government lands
which have been stolen or illegally appropriated are retrieved, she sees
this struggle as "hullabaloo"! She sees it as hullabaloo! hullabaloo!
Useless! Without merit and so on! The struggles of the people of Ghana to
retain ownership of lands vested in them is not hullabaloo! Can never be
hullabaloo! It is a legitimate and proper struggle! What is worse, is that
in the end she says "when the hullabaloo dies down, [she] wants the land
back!" She has not even lost interest in the land. She is hoping for
another opportunity to grab the land again!”

“Now, what opportunity would enable her to grab the land back? And it is
very important to examine this. A court decision that the acquisition was
proper would be one of the circumstances under which she can grab the land.
Don't you forget that she is the Chief Justice of the Republic and
therefore in a position to influence the determination of the legality or
constitutionality of the acquisition of the land. If she still has an
interest in the land back, where does that leave those of us who think that
this is illegal, this is unconstitutional and needs to be reversed? So the
whole issue about her finding herself in a compromising position is brought
out in this letter which is interestingly dated February 2010! And it is
very, very interesting!

Where was this letter all this time? But we are told that this letter is
dated February 2010! Now, the other scenario under which she can get her
land back - and from her letter, it is obvious that she really values the
land! This is a precious possession. So precious that that even in the face
of what she calls "hullabaloo", she still wants it back. So precious! The
other circumstance under which the Chief Justice can get her land back if
there is regime change and attitudes change and so on. Now if the land is
so precious to her and so on, would she contribute to regime change? And if
she is going to contribute to regime change, what methods is she going to
use? Will the office of the Chief Justice play a part in securing that
regime change and so on, you understand? So all these questions crop up." [4]


Kwame Arhin pointed out recently in a feature article, The Judiciary And
The Promotion Of Democracy In Ghana, “The late Sir IVOR JENNINGS, one time
Vice Chancellor of the University of Cambridge and a legal luminary in his
book “DEMOCRACY IN AFRICA” had this to say about our practice of Democracy.
“When a stone is rolled down a bare-hill-side, it dislodges other stones,
and other stones so dislodged, dislodge other stones, so that in the end
not a single stone but a cascade of stones reaches the bottom of the
hillside” [5] No judge is going to be left to hear their case!

"The other judges on the panel, one of them is an ex-constituency
executive of the NPP in the Volta region, another judge is a nephew of
ex-president Kufour who is an elder in the NPP. Should those judges on the
panel also recuse themselves? Georgina Woods who empanelled those judges is
the sister in-law of Atta Akyea who is a lawyer of Akuffo Addo. Let all
those judges recuse themselves and let Georgina Woods not impanel the
judges for this case because the temptation is there for her to be bias. Do
this and your reservations will stand on the basis of principle." [6]

I have no power other than the strength of my argument. And so far as this
argument goes, it extends the potential conflict of interests being
currently pursued by the NPP to cover the entire Supreme Court of Ghana!
And I do request the Supreme Court to recuse itself as a body and thereby
uphold the decision of the Electoral Commissioner. The inability of the
Judiciary to sit on a case is also part of the Justice system since the
contrary does not necessarily mean justice but a grave injustice involving
a conflict of interests! It does not throw us into a constitutional crisis.
We already have a legitimate President!

Forward Ever! Backwards Never! For Life, the Environment, and Social
Justice!

Nana Akyea Mensah, Ghana Steering Committee, P-AI, Social Media Campaigns |
January 12, 2013
SocialMedia@panafricanistinternational.org - Pan-Africanist International -
a grammar of Pan-Africanism and its manners of articulation!
www.panafricanistinternational.org

*REFERENCES:*
[1] Ablakwa fires NPP; Protest against Atuguba is absurd
http://mobile.ghanaweb.com/wap/article.php?ID=261872

[2]*Ghana would have to import Justices to hear petitions -Apaak, *General
News of Friday, 11 January 2013 Source: radioxyzonline.com
http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=261855&comment=8764665#com

[3]* US Supreme Court Allows Apartheid Claims* * BBC World Service, Monday,
12 May 2008 21:26 UK, Page last updated at 20:26 GMT, Monday, 12 May 2008
21:26 UK

[4] *The Chief Justice Stinks! - Kwesi Pratt, *Audio*, *Date: 21-Oct-2010|
Hot Audio Bites, Myjoyonline.com:
http://newsaudio.myjoyonline.com/pages/newsaudio/201010/54.php

See also the transcription here: *The Chief Justice stinks - Kwesi Pratt*,
theodikro.blogspot.com:
http://theodikro.blogspot.be/2010/10/chief-justice-stinks-kwesi-pratt.html

[5] *The Judiciary And The Promotion Of Democracy In Ghana*, Feature
Article of Thursday, 10 January 2013 Columnist: Kwame Arhin,
http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=261593&comment=0#com.


[6] *Comment: Don't Advance UNSUSTAINABLE ARGUMENT*, Author: Whatever,
Date: 2013-01-11 09:02:41, Comment to: Did the Supreme Court Falter on the
First Step to
http://www.ghanaweb.com/GhanaHomePage/features/artikel.php?ID=261789&comment=8765358#com


Just noticed this. Wondering if they are seeing what I am seeing:
NPP rescinds decision to challenge Supreme Court
composition
Date Posted: January 11, 2013: 21:06* Source: *Ghana - RadioXYZonline.com

A letter circulating on social media platform, facebook, indicates that
lawyers of the New Patriotic Party (NPP) have decided against pursuing an
objection in relation to the Supreme Court hearing of the NPP’s case
against the Electoral Commission and President John Mahama.

On Thursday, the legal team of the party expressed their displeasure about
aspects of the trial believed to be in connection with the composition of
the bench.

This was during the hearing of the petition for joinder brought by the
National Democratic Congress to be joined in the case against the EC and
the President, John Mahama.

They were asked by the President of the justices hearing the case, William
Atuguba to file a formal objection on their displeasure but the letter
issued by what seemed to be lawyers of the party and addressed to the
Registrar of the Supreme Court on Friday said: “We have upon consideration
decided not to pursue the matter in order to facilitate an expeditious
determination of the petition.”

The letter said: “This will in addition ensure an early hearing of the
application for joinder.”

“We would therefore be obliged if the application for joinder could be
fixed for an early hearing.”

*Read the supposed letter below*

*Forward Ever! Backwards Never!!!*

*Cheers!*




*Nana Akyea Mensah, The Odikro*

*Twitter: http://twitter.com/TheOdikro**, Feature Articles:
http://nanaakyeamensah.blogspot.com/*

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http://www.facebook.com/people/Nana-Akyea-Mensah*

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