CASE COMMENTARY AND ANALYSIS (I) Asante Fordjour LLB, LLM International Law And Criminal Justice

COMMENTARY

Human failure, according to Oxfam study (2008), is a bigger killer than nature when disasters strike. Poor decisions and bad management, the research reveals, cause more deaths in the wake of natural catastrophes. For example, deprivation in southern Asia- the most disaster-prone area in the world, it is said, means that such events are more likely to turn into humanitarian crises. As Ashvin Dayal, Oxfam’s south Asia regional director argues: “the Kashmir earthquake killed 75,000 people. That’s more than 12 times as many people as died in Japan’s Great Hanshin earthquake, which was of similar strength.” Why? “Poverty, exclusion and inequality policies raise risks for poor people- women, and minorities. States should reduce the risk of disaster by tackling basic problems such as poverty.” What then, had been Ghana’s disasters: freedom, justice, probity and accountability, rule of law or politricks?

The Supreme Court of Ghana is the final court of appeal in our country and has jurisdiction over matters relating to the enforcement or interpretation of our Constitution. Yet, ever since the Treason trial involving Tawiah Adamafio, Aku Adjei and three others over the Kulungugu bomb attack on the country’s first president- Osagyefo Dr Kwame Nkrumah, which led to the dismissal of some judges for finding some of the accused not guilty, the Ghanaian judiciary, had hardly been a cherished pal of both the ruler and the ruled. The Salla Case in the Second Republic, the smoke that enveloped the tribunal systems in the 1980s, and in our immediate past, the reconstitution of judges at the Supreme Court by the NPP, vis-à-vis the enforcement of the rule of causing financial loss to the state, seem to have put Tsatsu Decision in bad faith.

Re Tsikata, initially brought before an Accra Circuit Tribunal, according to Ampiah, J.S.C; was transferred to the Fast Track Court apparently for expeditious trial. “So far as the proceedings before this Court are concerned, the *plaintiff has not protested against the charge laid against him; he has *challenged the competency of the *Court to try him. He contended that the FAST TRACK COURT as constituted was *not known to the Constitution and therefore *had no jurisdiction to try him. Accordingly, he brought this Writ *invoking the original jurisdiction of this Court *to enforce the provisions of the Constitution by way of –

“(1) A Declaration that *there is no ‘FAST TRACK COURT’ with jurisdiction to try criminal cases established under the Constitution of the Republic of Ghana, and there is therefore no constitutional foundation for the Plaintiff ((here, Tsatsu)) to be prosecuted before such Court.

(2) A Declaration that the oral demand by agents of the defendant to the plaintiff *to appear before a ‘FTC’ when no such Court for trial is provided for in the Constitution of Ghana, is an *infringement of Articles 125 and 126 of the Constitution establishing the Judiciary.

(3) An injunction against the defendant ((Attorney-General)) and their agents restraining them from seeking to proceed with a trial of the plaintiff before the purported ‘FTC’. This Writ which was issued on *11th February, 2002 was with leave of the Court *amended on 16th February, 2002 to include the following reliefs –

(4) A Declaration that the *Summons signed by the Justice of Appeal served on the plaintiff *commanding him ‘in the *President’s name’ to appear in person before this Court is in *contravention of Articles 1(1) and 125 of the Constitution

(5) A Declaration that there is no ‘FT HIGH COURT’ established under the 1992 Constitution and therefore a summons to appear before such a ‘Court’ is null and void.”

In resolving this constitutional question Justice A.K.B. Ampiah (Justice of Supreme Court) set out his opinion as follows: “TSATSU TSIKATA, the Plaintiff in this action was a former Chief Executive of the Ghana National Petroleum Corporation (GNPC). He was arraigned before the FAST TRACK COURT of the High Court and charged with the offence of ‘Causing Financial Loss to the State contrary to Section 179A (1) of the Criminal Code (Act 29)’. Particulars of the offence were that he, “.... In or about February, 1993 in Accra in the Greater Accra Region *wilfully caused Ghana National Petroleum Corporation ((hereafter GNPC)) to *guarantee a loan of FRF 5, 5000,000.00 from Caisse Francaise de Development to *Valley Farm, a private company which loan Valley Farm *failed to repay resulting in the *GNPC repaying the loan and thus *causing the State to incur a loss of the said amount.”   With Chief Justice E.K. Wiredu presiding, the majority of the Justices of Supreme Court (5: 4), comprising J.A. BAMFORD-ADDO (MRS.); A.K.B. AMPIAH; F.Y. KPEGAH; E.D.K. ADJABENG; G.K. ACQUAH; W.A. ATUGUBA; S.A.B. AKUFFO (MS); and T.K. ADZOE; whilst upholding on 28 February 2002 the declaration being sought in favour of Tsatsu, and reserving its reasons for 20th March 2002, were confronted with-

(i) Whether or not there is a Court known as the FAST TRACK COURT which is a Division of the High Court. (ii) Whether or not the “FAST TRACK COURT”, if it exists, is a Court of competent jurisdiction to try both civil and criminal cases and (iii) Whether or not the summons served on the plaintiff commanding him in the President’s name to appear before the “FAST TRACK COURT” offended against provisions of the Constitution.

This in turn centred on the interpretation of “Division” and “Summons” served in the name of the President on the accused. Indeed what makes the Trial that pilgrimage some six years instructive and perhaps, legally intriguing, as being witnessed in the on-going ex-gratia saga, where moral necessity seems to be usurping legal prudence as required by democracy, is not only its constitutional sensitivity, is not only how the prosecution, perhaps due to political anxiety and public outcry, shot its own legs on procedural issues, but also how the Law Lords preoccupied their minds and hearts in the interpretation of a single word- a “DIVISION”.

I take notice of Justice J.A. BAMFORD-ADDO (MRS), who in giving interpretation to a “DIVISION under Art 139(3) and having regard to Article 126 of the Constitution, considered the word as nothing short of the territorial, regional or geographical divisions into which the High Court is divided. To this end, she said: “For instance the word Division could be used to describe the two main jurisdiction possessed by a court i.e. Criminal Division or Civil Division of a court….But clearly what Article 139(3) does not do is to give power to the Chief Justice to create a new court or as the Defendant put it, a division of the High court different in species referred to as the Fast Track Court…The Chief Justice therefore has no power to create any court different from the existing ones without parliamentary backing…”

Thus the then Chief Justice Wiredu created the Fast Track Courts (FTC) as a case management device. But then when Tsatsu Tsikata was arraigned before the court, for allegedly causing financial loss to the Ghana, he robustly challenged the constitutionality of these courts. His argument was whether the CJ has the constitutional authority to create Fast Track Courts which attempt to trial him. Holding No by a 5-4 decision and with a separate collaborating written opinion from Justices BAMFORD-ADDO, AMPIAH, KPEGAH, ADJABENG and ADZOE, the Court held that the Fast Track Courts were unconstitutional.

Chief Justice Wiredu ((Akufo (MS), Atugah and Acquah)), who saw no reason why the Court should not have such jurisdiction to substitute error when only by doing so can it do justice said: “On 28th February 2002 I supported the dismissal of the plaintiff's Writ as disclosing no constitutional issue for determination. My reasons are in the joint effect of the opinion to be read by my brother Acquah, J.S.C. So Justce Acquah had this to say: “We are sure that the Plaintiff would be the first to admit that the divisions of the Court of Appeal and the High Court situate in all these places: Denu, Nkawkaw, Hohow, Tarkwa, Mampong, Goaso… Agona Swedru including the High Courts in the district capitals and dealing with specific cases are all constitutional. How were these High Courts established in the districts? By an Act of Parliament, legal instrument or what….Why should the plaintiff contend that the Fast Track High Court alone ought to be inserted in article 126(1) or some part of the Constitution before he will recognize it as constitutional,” the later to be Chief Justice, Acquah, puzzled. In the discussions that arose in this trial, the justices reasoned that the purported ‘Division’ of the High Court has given itself some Rules in the Guidelines. For example, contrary to Rule 2A(5) of the High Court (Civil Procedure) (Amendment) Rules, 1977 (L.I. 1107) which provides that judgments in the High Court must be delivered within *6 weeks of close of hearing, a judgment in Fast Track High Court is supposed to be given within 7 days of completion of hearing. The legal question that arose then was which rule was to prevail and what if a judge fails to deliver a judgment within the stipulated time-limit? The only body competent to make rules for the Courts (including the High Court), in the wisdom of the Law Lords, is the Rules of Court Committee. Thus Article 157(1) of the Constitution provides that-

“There shall be a Rules of Court Committee which shall consist of - (a) The Chief Justice who shall be the Chairman (b) Six members of the Judicial Council other than the Chief Justice nominated by the Judicial Council. (c) Two lawyers one of not less than ten and the other not more that five years’ standing, both of whom shall be nominated by the Ghana Bar Association. (2) And that the Rules of Court Committee shall, by constitutional instrument, make rules and regulations for regulating the practice of all Courts in the Republic of Ghana.”   In other words, the High Court as it exists at the moment, has Rules for regulating the practice and procedure in that Court, namely the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). It follows that “If the Fast Track Court is to be a Division of the High Court, then these Rules must apply to it. But where it is intended that some new Rules should apply to this Division to regulate the practice and procedure therein, then the Rules must have a constitutional backing as required under article 157 of the Constitution otherwise the new Rules become invalid...,” the majority reasoned. Justice Ampiah, for example, submitted:

“I intend to deal first with the last issue since there seems to be no real dispute, though the defendant ((here, the Prosecution)) contended that whatever mistake or error had been made in the issue of the summons had gone only to the form and not the substance of the issue. He further contended that the subsequent notice served on the plaintiff had cured the defect or normalized the process and validly put the plaintiff, as an accused, before the Court.”

Whereas the minority and indeed the prosecution thought that the procedural errors ought not to vitiate the substantive merit of the application of the law in the contested case, the plaintiff insisted that that act was in contravention of the Constitution. “In respect, particularly of criminal proceedings which seek to determine guilt or innocence of a person on a criminal charge, there is no room for ambiguity and doubt about the designation of the Court before which the person is brought,” he said. The Court found that a simple and straight forward adherence to the Court designations provided for in the Constitution avoids such ambiguity and doubt. Tsikata cited Article 125(1) and (3) of the Constitution in support of his argument.

It states: “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.”

In her support Bamford-Addo (JSC), said that a distinguishing feature of the Fast Track Court from the ordinary High Court, is the method of initiating a civil case which according to p.2 of the guidelines, a writ filed at the FTC Registry will not automatically be placed on the Fast Track list until approved by the Chief Justice and without criteria for setting out that decision. “This is a novel procedure unknown to LN 140A…there permission is not sought from the Chief Justice before a case is ripe for hearing. It is distributed to judges of High Court with regard to the subject matter of the case… It is important that uniform rules of procedure statutorily made be made to apply to all courts of the land in respect of particular matters.”

This argument was reinforced by Justice Ampiah who said: “To understand and appreciate the stand of the plaintiff it would be necessary to look at the summons in question, namely ‘Exhibit TT4’. The Summons is headed – “IN THE MAGISTRATES COURT, FAST TRACK HIGH COURT 1”…One may wonder whether the plaintiff was to appear before, a ‘Magistrates’ Court or a ‘Fast Track High Court 1’…” Considering all these, Bamford-Addo (JSC) concluded that the FTC which, among others, was originally envisaged to have civil jurisdiction over such areas as Banking, Commercial and Industrial disputes and Human Rights issues, is really not what it purports to be of the High Court, nor was it created under Article 139(3) nor was it cognizable by the Constitution or any other law and for that reason had no legal or constitutional foundation for its existence and is therefore unconstitutional.

Ever since, Tsatsu- the legal brain-child of Ghanaian jurisprudence, whose trial centred not only on constitutionality but also criminally argued, compellability of a vital witness, and the recent presidential crow that he reluctantly succumbed and had been indeed released, knowing the implications of criminal culpability, seems to be entrapped by the 5- year jail term, handed down by Mrs Justice Henrietta Abban, He seems therefore, to be seeking absolute and perhaps, unconditional legal cleansing from a charge and a conviction he continues to rebut.

At this point, the legal analysis of Tsatsu Tsikata- A Victim of Justice or Politricks (?), would be rested for now, until the long-awaited judicial trial and decision of the Court of Appeal, that might hopefully, be supervised by an Attorney-General of Tsatsu’s choice and chance?

Asante Fordjour LLB, LLM (Master of Laws) International Law And Criminal Justice

Credit JusticeGhana.com