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Opinions of Saturday, 17 August 2013

Columnist: Adams, John Kwame

Atuguba's Error

There are certain statements that sound very well but a closer inspection reveals that they are problematic. One such statement was made by Justice Atuguba yesterday while he scolded Sir John at the Supreme Court. According to, Atuguba made the statement below:

“Politicians have disabled law enforcement agencies because of the power they have arrogated to themselves and it is up to the judiciary to clamp down on political bigotry. If we don’t, we will be letting the state down”.

I do not believe that anyone in this country doubts that politicians behave with impunity and so I am not disputing that assertion. What I dispute however is the idea that Atuguba or any judge in this country is charged with the mandate of clamping down on political shenanigans. I am willing to be educated. If there is a part of the constitution that gives the Court this authority, I will only be too glad to have it pointed out to me. From where does Atuguba derive this power? This idea that judges must now step up to check politicians offends two principles: the separation of powers and due process of law enforcement. Two principles that are essential in any democratic country.

To see why Atuguba's statement contradicts the separation of powers, let's make an observation and then imagine a scenario. The observation is simply that it is the job of the law enforcement agencies to maintain the peace in the country. The law enforcement agencies are however a department of the executive arm of government. Law enforcement agencies do not fall under the the Judiciary. Now let us say that John Mahama is in a similar situation as Atuguba. The president feels that his government has been losing too many cases in court and so he begins to believe that the courts have compromised their integrity. Because of that Mahama says:

“Judges and magistrates have disabled the courts because of the bribes that they take and it is up to the executive to clamp down on judicial corruption. If I don't, I will be letting the state down”.

If you, the reader, were to hear such a statement from Mahama, what would you think? With the exception of a few die-hard NDC supporters, the majority of the country would be up in arms against the president for overreaching. We would all be quick to point out that there is a separation of powers in the country and that the president's words are unconstitutional. This reaction would be the correct reaction. So why is there no outrage over Atuguba's comments that judges should take up the jobs of law enforcement agencies?

Another problem with Atuguba's statement above is its complete disregard for established procedure in the country. The constitution provides for a police force whose job is to maintain law and order, whose job it is to maintain the peace. If politicians are running rampant, the appropriate thing to do is to exhort the police to step up their efforts to curb the threat of the politicians. What the Court shouldn't do however, is try to do the job of the police. It is not the business of the Court to keep the peace, unless we are saying that the IGP is incompetent and so he will sit idly by while law and order breaks down in the country. If so, Mahama should be urged to find a new IGP. Just because the Court perceives that the police are not effective does not mean that the Court should now declare that it will do the job of the police.

The Court is simply not equipped to do that job. Sir John and Hopeson Adorye have been yelled at and fined, sure, so we hope they will not make any irresponsible statements for a while. Others might also keep quiet for a while. But after the judgment is given, and a few months have passed, I assure you that the politicians will be back to playing their normal game, which is threatening each other and the rest of us with death at every turn. What will the Court do then? Will they come on TV to announce the names of people who should come and receive jail sentences? Is the Court now going to listen to the radio and watch TV and read newspapers and spend their time monitoring all the politicians in this country? This a job that the Court is simply not equipped to do. Moreover, it wouldn't be long before the politicians get fed up with being treated like school boys in a headmaster's office and start fighting back. Which they can easily do by passing laws in parliament to strip the Court of its contempt powers.

Atuguba's statement is problematic because it violates the separation of powers. It is also problematic because it violates the process of law enforcement in this country. The Court arrogating to itself the powers of the police will not solve our long term political problems. Only time and effective work from the police will solve that problem. The Court should stick with its constitutional mandate which is interpreting the law. No more, no less!