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Opinions of Friday, 11 October 2013

Columnist: Bannerman, Nii Lantey Okunka

Atuguba’s Judiciary Must Stop the Morality Crusade!

On July 2nd, 2013, Ghana web published a article titled, “We will care for the ordinary Ghanaian, Atuguba assures”. I must confess that comments attributed to Justice Atuguba in the article were indeed troubling. Below, I sample some of the statements in the article, attributed to Justice Atuguba : “We will care on their behalf, Justice Atuguba said, for ordinary Ghanaians": “We want to give [peace and freedom] to the people of this country". "President of the panel hearing the election petition, Justice William Anaam Atuguba, has expressed the justices’ resolve to shield the ordinary people of the country". Justice Atuguba indicated that politicians appear to have taken on an ‘overmighty’ position in the country at the detriment of the ordinary people and if war erupts it is the latter who will be affected".

On the face of it, the above statements appear laudable and seem to be glazed with good intentions. However, a more nuanced examination of the above statements tells a gripping story of blatant judicial activism and a chiseled usurpation of mainly executive power by the judiciary. The primary duty and mission of the judiciary is to dispense justice. Separation of powers teaches us that the legislature makes the law, the judiciary interprets the law and the executive enforces the law. Nowhere in the constitution is the judiciary given the mandate to serve as the morality police of the country. So why is Atuguba and his comrades hot under the collar about morality of politicians?

My fellow Ghanaians, that Ghana is mired in a morality mess is not open to debate. Is the executive ineffective and corrupt? Yes! Are politicians stewing in moral decay? Yes! Is the press reckless and unprofessional in some instances? Yes! Is the legislature confused and feckless? Yes! Is the judiciary corrupt? Yes! Given all the above, is it the job of the judiciary to act as morality police? Heck no is my retort!! We must not accept this ongoing attempt by the judiciary to be the morality police. No way! We must not allow our frustrations or weariness over the moral decadence in the country to severely color our thought process. Whatever little freedoms we have left will fast dissipate if our judiciary or Supreme Court becomes the morality police or press Gestapo. The last I checked, so called “respect” for authority and institutions has not created a thing! I am not against respecting authority but I surely do not want this so called “lack of respect” canard to serve as excuse for taking away our freedom of self expression.

It is as if Atuguba and his peers have forgotten the very nature of the system they work in. The European Court system that we nurse in Ghana is adversarial in nature. An adversarial system creates winners and losers. A system that creates winners and losers cannot guarantee peace. How a loser in a court case behaves or for that matter, a winner, cannot be predicted or forestalled by the judiciary. Besides, keeping peace is not the constitutional responsibility of the Supreme Court. Keeping peace is the duty of the executive. Dispensing justice is never about looking out for the ordinary people or restoring morality. You cannot engage the sharp edge of the law if you operate with a predetermined mindset of looking out for the ordinary people or for that matter, any segment or swath of society. Just follow the law and quit the vainglory, grandstanding and self aggrandizement.

The law is the law and it must be applied without regard to any class or creed in our society. The chips should fall where they ought to be based on nothing but the law. Indeed, these Supreme Court Justices will open another can of worms if they continue this morality crusade instead of sticking to the substance of the law. If the law is hurtful or not good for ordinary people, the legislature should take it up and make it whole. The US Supreme Court has relayed this message several times to Congress. If you don’t like the law, change it. Until then, the Supreme Court can and will only stick to the law enabled by or enshrined in the constitution.

It is not the job of the judiciary to shield so called ordinary people of the country. Who is an ordinary person to start with? The judiciary is not charged with the responsibility of picking between ordinary and super ordinary. If a case is before the court and the law points to a decision that does not favor ordinary people, then the court must act according to the law. The United States Supreme Court for example, in my opinion, has made a few recent decisions that do not favor the ordinary person, depending on how you define the ordinary person. However, it must be noted that the decisions merely reflect the court’s interpretation of the constitution and law.

For example, in Citizens United versus the FEC, the Supreme Court decision allows corporations to spend as they wish in any election. Is this decision in the interest of ordinary people or special interest? Another case involves the voiding of key parts of the Voting Right Act. Is this decision in the interest of the super ordinary or ordinary people? How about the sub-ordinary people? I believe this notion of protecting one class or group against the other is a greasy pole we don’t want to climb. Justice should be in the interest of all citizens not just a segment of the population. Atuguba and his peers must stop hunting in tall grass!! Leave morality alone!!

What exactly does Jusitice Atuguba mean by saying that "politicians have taken an overnighty [sic] position in the country to the detriment of the ordinary people"? Politicians are free to take whatever position they want, so long as they are not breaking the law. And if they break the law, the justice system must act swiftly to dispense justice when asked to. What is Atuguba’s beef with what positions or actions our politicians are wedded to? The justices can promote freedom only to the extent that they uphold the law by dispensing justice swiftly and without regard to any class of society. It is interesting to note the eerie silence of the executive on this matter. Of course it is understandable since the executive did not want to anger the Supreme Court before it ruled on the election fraud case at hand.

The Supreme Court must care for all and not just ordinary people. The court should not be issuing statements that portray selectivity. Is Atuguba saying that the super-ordinary people or those below ordinary people, whatever ordinary means in this context or his mind, are not worthy of protection from the law? Is Atuguba alluding that upholding the law is like a shirt that can be taken off and slapped back on as needed? Is the Supreme Court finally showing its political hues? What is Atuguba’s problem with the super ordinary or sub-ordinary?

My fellow Ghanaians, whatever political persuasion you confess to, I am imploring you to take a good, hard and clear look at the kinds of broad statements coming from the bench. Our judiciary should not be making political statements of this nature nor profess their allegiance to any swath of society. The only allegiance the Supreme Court should worry about is justice based on the constitution and law of the land. Indeed, of all the organs of government, the judiciary should be the most apolitical. After all, we pay dearly to guarantee the independence of the judiciary. Atuguba must focus his energies on the law and find personal ways to deal with his anxieties about politicians. Politics after all, and against the wishes of many, is not overly centered on morality! Ironically, the judiciary is not about morality either. Atuguba and his friends need a dose of reality! Wishes will never be horses!

Nii Lantey Okunka Bannerman (Affectionately dubbed the double edge sword and recently mobbed as Santrofi Anomaa)
I don’t give the hell, I just tell the truth and they think its hell—Harry Truman