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Opinions of Tuesday, 5 June 2012

Columnist: Dorfe, Mathias

NDC to Disband the Supreme Court

whilst NPP files impeachment charges against Mills

Many comments have been made on the Supreme Court verdict in the Jake Bungalow saga and on Mills’ subsequent decision to discontinue the sale of the house to Jake. Most of these comments highlighted how the NPP and the NDC have become entrenched fault lines on our democratic landscape. These two parties take joy in inflicting fatal wounds on our democratic institutions including the arms of government by bastardizing them with reckless abandon for partisan motives.
In the aftermath of the Jake bungalow case for instance, we have heard members of the NDC miscommunication team talking in ways as if they wanted to see the Supreme Court disbanded for its “politically wrong” verdict in the case. The NPP apologists on their part have been virulent in their attack on Mills for what they conveniently choose to call contempt of the Supreme Court in order to create an imaginary support for their unwarranted call for his impeachment. How bizarre!

I am neither a lawyer nor a political scientist. I can at best be described in the parlance of my village folks as a pocket lawyer. I believe everybody who has grown up in a village in Ghana knows who a pocket lawyer is. With the permission of the learned and wig-wearing men and women of our motherland, I would like to bring what I consider as the pocket lawyer’s sanity into the debate.
First of all, it is important for all of us to appreciate the fact that although the transaction between Jake and the government of Ghana was brewed in the pot of political cronyism, it is essentially a commercial transaction but NOT a constitutional one. The rights and responsibilities of the parties (Jake and the government) are therefore not rights conferred on them by the constitution or by the Supreme Court but they are rights and responsibilities that flow from a contract.
In the language of ordinary mortals like me, what the Supreme Court simply said was that the contract between the Government of Ghana and Jake for the sale and purchase of the bungalow was compliant with due process and was for that matter a valid contract enforceable under the laws of Ghana. By the ruling, the Supreme Court simply affirmed whatever rights the contract had already conferred on Jake including the right to take ownership of the house. The ruling does not cover what the proper lawyers would refer to as “specific performance”. In other words, it did not order the government to hand over the bungalow to Jake. True or false? If the court did so, then I am sorry for missing it.
Contrary to the wolf cry of the NDC folks, I am very impressed with the Supreme Court’s verdict in the matter. Don’t get me wrong. I am totally against ruling governments selling state assets to apparatchiks of their political parties. The truth of the matter however is that, the work of the Supreme Court is unfortunately not guided by my sentiments. It is guided by the law. Its ruling therefore reflects the legal merits of a case as the judges see them, but not what I feel.
I have heard a lot of the moral arguments from the NDC propagandist machinery and I totally agree that morality should guide everything we do as a people. However, we may never get developed to a stage where all the key moral values of our society would be appropriately codified into law. There will always therefore be a gap between the law and morality. But until such gaps are fully closed, the Supreme Court can only read morality into the law to the extent that the law is framed to accommodate such morality. It cannot use morality to override the law. Let us not forget the fact that the democratic path we have chosen is universally described as the rule-of-law but NOT the rule-of-morality. Although most of us will give morality a higher place of honor in our personal scheme of things than the law, the judges are trained to do exactly otherwise. This means that where morality is in conflict with the law, the law will prevail before the judge. That is simply how it goes and how it will continue to go for a long time to come!
I however dare to speculate that it is probably in recognition of the morality dimension of the case that the Supreme Court restrained itself from giving an order of specific performance to compel the state to hand over the property to Jake. By so doing it has left the morality window open. The government saw this opened window and has appropriately jumped through it by abrogating the contract. A truly politically-inspired Supreme Court would have been over-zealous enough to order a return of the house to Jake, a situation which would have foreclosed any possibility of abrogating the contract without falling in contempt of the court. I am most impressed by this exercise of political restraint.
Over the years, the NPP lawyers have shown unprecedented astuteness in winning cases of indictment against the party’s apparatchiks on technical grounds so that the merits or demerits of the cases are never heard. I truly admire them for their mastery of the art of technical knock-outs in the legal ring. I am therefore surprised that they have this time round, failed to see the technical window of opportunity the Supreme Court ruling had left open. If a court rules that a valid contract exists between two parties but does not order any specific performance under the said contract, a subsequent abrogation of the contract does not constitute any injury whatsoever to the court. NONE and I say NONE! I am not a lawyer and cannot therefore quote any legal authority or judicial precedent to support this position. Common sense and basic human logic are my only sources of authority here. The abrogation however injures Jake. But with all due respect, an injury to Jake cannot be a basis for my village JSS Compound Overseer to be impeached let alone the President of the Republic. What he can do if he so wishes, is to sue the government for breach of contract and ask the court for appropriate reliefs.
I want to use the opportunity to congratulate Mr. Kwabena Agyapong, who is reported to have advised Jake to let sleeping dogs lie so that they can concentrate on the business of winning back power. I guess he has seen great wisdom in the biblical admonition in 1 Corinthians 10:23 that it is not everything which is lawful that is expedient for us to do. I can hear him in my mind’s ear saying “Prof’s one-time health insurance premium experiment has failed; let us concentrate on working hard to win Nana the chance to also fail in his free secondary education experiment. After all, one failed promise deserves another.”
In my layman’s opinion, the Supreme Court did not err at all in its judgment and I appeal to my NDC friends to hold their fire. In the same vein, Mill’s abrogation of the contract with Jake does not constitute any affront whatsoever to the Supreme Court and I also entreat my NPP pals to leave Mills in peace for him to concentrate on steering his Better Ghana agenda out of danger.

Mathias Dorfe