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Feature Article of Tuesday, 15 January 2013

Columnist: Quainoo, Siisi

Red Alert: C. I. 74 To Create Serious Crisis!

By Siisi Quainoo

Ghana’s Chief Justice, Mrs. Georgina Theodora Wood, can easily throw the whole country into an unsurpassed political, economic and social turmoil following the enactment of the Supreme Court (Amendment) Rules, C. I. 74, on January 9, 2012 concerning Presidential electoral disputes, which Instrument is being challenged by PNC General Secretary, Bernard Mornah as being unconstitutional.

C. I. 74 was sponsored by the Rules of Court Committee which is chaired by Chief Justice Georgina Wood and one of the reasons Bernard Mornah is challenging its constitutionality is the provision contained in it that a decision of the Supreme Court in relation to a Presidential election petition may not be reviewed by the Supreme Court itself or any other court. However, the 1992 Constitution provides that any decision of the Supreme Court may be reviewed by the court itself and that when the Supreme Court is reviewing its own decision/s, a minimum of seven (7) Justices must be empanelled by the Chief Justice to sit on the case.

It is important to point out that the provisions in CI 74 conflict with the Constitution and therefore cannot stand. When the Constitution of the country clearly states that a decision of the Supreme Court can be reviewed, this cannot be set aside in a CI which denies the power of review.

Under the controversial C. I. 74 however, the Chief Justice can empanel only five (5) Justices of the Supreme Court to hear a case concerning a Presidential electoral dispute and a decision by the five (5) Justices in such an electoral dispute is final and may not be reviewed.

The implication therefore, is that if Chief Justice Georgina Wood empanels five (5) Justices of the Supreme Court to determine the current Supreme Court case filed by the defeated NPP Presidential candidate, Nana Addo Dankwa Akufo-Addo, his running mate, Dr. Mahamadu Bawumia and the NPP Chairman, Jake Obetsebi Lamptey, concerning the 2012 Presidential election, and the decision goes in favour of the NPP, there is no way for the decision to be ever reviewed again. And that decision can be as narrow as 3-2!

What it means is that once the judgment is given by the five (5) empanelled Supreme Court Justices, nothing else can be done about the case. The decision becomes final and the loser/s can never call for a review of the case. It’s FINITO!

This is why the NPP hierarchy led by Nana Akufo-Addo and its supporters are so confident that the pending originally claims of electoral fraud case, now sanitized as an elections irregularities case, before the Supreme Court will be decided in their favour and that Nana Akufo-Addo would eventually be inaugurated as President of the our beloved Ghana, Kwame Nkrumah’s Ghana.

But what Ghanaians need to know is that on January 10, 2001, His Lordship Justice E. K. Wiredu, the then Acting Chief Justice, in a “Practice Direction” to all the Justices of the Supreme Court published at [2000] Supreme Court of Ghana Law Reports (SCGLR) at page 568, directed that in order to minimize mounting criticisms and persistent outcry against the Judiciary, in all constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven (7) Justices of the Supreme Court must sit.

The “Practice Direction” referred to above states as follows: “[In exercising the functions of his office under articles 125 (4) and 144 (6) of the 1992 Constitution, His Lordship, the Ag Chief Justice, per his letter dated 10 January 2001 addressed to all the Justices of the Supreme Court and copied to the Judiciary Secretary and the Registrar of the Supreme Court, directed as follows:]

“In order to minimize the mounting criticisms and the persistent public outcry against the Judiciary in our justice delivery and to restore confidence, it is my desire that where practicable and especially in constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven (7) Justices of the Court”.

Is it not therefore very strange that in spite of this “Practice Direction”, the Rules of Court Committee which is chaired by Chief Justice Georgina Wood would proceed to have a SUPREME Court Rules enacted which appear to undermine the letter and spirit of an admirable “Practice Direction” which is described in the following terms by the Editor of the Supreme Court of Ghana Law Reports and which is published as an Editorial Comment on the “Practice Direction”:

[Editorial Note: In pursuance of the above Directive, a panel of seven Justices of the Supreme Court, coram: Edward Wiredu Ag CJ, Adjabeng, Acquah, Atuguba, Sophia Akuffo, Lamptey and Adzoe JJSC in Republic v High Court, Bolgatanga, Ex parte Hawa Yakubu, CM No 2/2001, on 16 January 2001 unanimously granted (reserving the reasons), the application by Madam Hawa Yakubu for an order of certiorari to quash the proceedings and order of the High Court, Bolgatanga, dated 6 January 2001, in an electoral petition resulting from the 7th December 2000 Parliamentary Elections for Bawku Central Constituency. In the respectful view of the Editor, the above Practice Direction, issued by His Lordship, the Hon Ag Chief Justice, is to be most welcomed by all members of the Bench and Bar and the general public: and it may also be considered as very appropriate and long overdue. The Practice Direction, in the form of a letter to all the Justices of the Supreme Court, makes the empanelling of the Supreme Court for the determination of constitutional cases more transparent; and more importantly, the Direction is in line with the democratic aspirations of all Ghanaians and the sustenance of the Rule of Law in the country. It also has the obvious merit of insulating and freeing the high Office of the Chief Justice from all imaginary and unproven but disturbing allegations of political bias in the empanelling of the Justices of the Supreme Court.]

The reason for this “red alert” is that if Bernard Mornah loses his challenge to C. I. 74 and the Chief Justice decides to empanel five (5) Justices of the Supreme Court who unknown to her may have pro-NPP sympathies to sit on the case brought against President John Dramani Mahama and the Electoral Commission and they decide by even 3-2 in favour of the NPP, the 3 Justices of Ghana’s Supreme Court would have decided who should be President of Ghana and that decision cannot be reviewed!

Who can say how the people of Ghana would react to such an unlikely scenario? And yet it is a possible scenario which should make every Ghanaian very concerned!

I am therefore emphasizing the need for great guardedness on the part of the members of the Judiciary as they handle such a case. The actions/inactions of the Justices of the SC who will sit on the case can easily plunge the country into serious crisis if they act as if they have such “Absolute Power”.

Ghanaians and the world alike would be looking at the Justices to determine the case based on its merits/demerits, because any mistake on their part to allow themselves to be clouded by any political party colours will have adverse consequences on the country’s history.

The full text of Acting Chief Justice Edward Wiredu’s “Practice Direction” reads as follows:

PRACTICE IN EMPANELLING JUSTICES OF THE SUPREME COURT

10 JANUARY 2001

Practice and procedure – Supreme Court – Constitutional cases – Empanelling of court by Chief Justice – Practice in – Chief Justice to empanel all available justices of the Supreme Court or at least seven justices in constitutional matters – Rationale for empanelling all available Justices of Supreme Court in such matters – Constitution 1992, arts 125(4) and 144(6).

It is provided by the Constitution, 1992, arts 125(4) and 144(6) that:

“125(4) The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”

“144(6) Where the office of the Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of the his office – (a) Until a person has been appointed to, and has assumed the functions of, that office; or (b) Until that person, holding that office has resumed the functions of that office, as the case may be, those functions shall be performed by the most senior of the Justices of the Supreme court.”

“[In exercising the functions of his office under articles 125 (4) and 144 (6) of the 1992 Constitution, His Lordship, the Ag Chief Justice, per his letter dated 10 January 2001 addressed to all the Justices of the Supreme Court and copied to the Judiciary Secretary and the Registrar of the Supreme Court, directed as follows:]

“In order to minimize the mounting criticisms and the persistent public outcry against the Judiciary in our justice delivery and to restore confidence, it is my desire that where practicable and especially in constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven (7) Justices of the Court”.

In view of the above and in the instant case [ie Republic v High Court, Bolgatanga and Hajia Fati Seidu; Ex parte Hawa Yakubu, Civil Motion No 2/2001], by virtue o the powers conferred on the Chief Justice by article 125(4) and on me by article 144(6), I have decided that Hon Justice Sophia Akuffo and myself, ie Hon Justice E. K. Wiredu, Ag Chief Justice, be added to the justices already panelled.

Signed Hon Mr Justice E. K. Wiredu Ag Chief Justice.”

[Editorial Note: In pursuance of the above Directive, a panel of seven Justices of the Supreme Court, coram: Edward Wiredu Ag CJ, Adjabeng, Acquah, Atuguba, Sophia Akuffo, Lamptey and Adzoe JJSC in Republic v High Court, Bolgatanga, Ex parte Hawa Yakubu, CM No 2/2001, on 16 January 2001 unanimously granted (reserving the reasons), the application by Madam Hawa Yakubu for an order of certiorari to quash the proceedings and order of the High Court, Bolgatanga, dated 6 January 2001, in an electoral petition resulting from the 7th December 2000 Parliamentary Elections for Bawku Central Constituency. In the respectful view of the Editor, the above Practice Direction, issued by His Lordship, the Hon Ag Chief Justice, is to be most welcomed by all members of the Bench and Bar and the general public: and it may also be considered as very appropriate and long overdue. The Practice Direction, in the form of a letter to all the Justices of the Supreme Court, makes the empanelling of the Supreme Court for the determination of constitutional cases more transparent; and more importantly, the Direction is in line with the democratic aspirations of all Ghanaians and the sustenance of the Rule of Law in the country. It also has the obvious merit of insulating and freeing the high Office of the Chief Justice from all imaginary and unproven but disturbing allegations of political bias in the empanelling of the Justices of the Supreme Court.]

SYBB

esiisiq2000@yahoo.com

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