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Opinions of Wednesday, 11 September 2013

Columnist: Boateng, Agyenim

Blame Chief Justice Georgina Theodora Wood

By Dr. Agyenim Boateng,

As court tradition dictates, every Chief Justice owns his or her court. That is why lawyers or legal scholars are won’t to associate a particular court’s decision with the name of the Chief Justices .However, in the just adjudicated presidential election, petition post independent Ghana’s most landmark constitutional case involving challenge to presidential election saw the Chief Justice gratuitously missing in action( MIA). At the time her country needed her most to put her imprint on the most important constitutional case during her tenure as Chief Justice, she abdicated her responsibility as the presiding justice chief and ceded power to such an upstart Justice Atuguba whose demonstrably bias towards the petitioners and his court room lack of proper right judicial temperament were self-evident.

Mrs. Chief Justice Wood would have been the right person to have presided and provided the leadership, decorum within the hallowed chambers of the Supreme Court. The role of the Chief Justice is to act as the head of judiciary, supervises and gives direction to the other judges on the bench. But such wasn’t supposed to be, but rather she withdrew to sit on the sideline of history.

In this case, she abandoned her responsibility as the leader of her court and delegated her powers to some rogue judges who had their own preconceived ideas on what type of judgment they were going to render. Their first cause of action was to torpedo the rules of the court, except live broadcast by television as laid down by the missing CJ on the grounds that it was unconstitutional. The rules of the court as promulgated before the trial showed the length of the trial days including public holidays, the finality of the verdict as non-appealable, and the television broadcast of the entire proceedings. In spite of blatant defiance of her authority by Atuguba and his gang, not a whimper of protest came from the CJ. Even a protestation from a US law professor who wanted her intervention to combat the unnecessary red herrings over the trial by the so-called contempt of court against some citizens, including a journalist, who were arbitrarily and capriciously thrown into prison or fined for daring to comment on the misconduct of the judges during the trial shown towards the petitioners attorney. In Kenya‘s election petition trial its Chief Justice presided over the trial and brought it to an expeditious end.

Poor Nana Konadu Agyeman-Rawlings wanted Nana Akufo-Addo to explain the nuances in the rulings of the gargantuan 855 page opinion. Sorry Nana, no one could really fully explain to your satisfaction within such short of time. Perhaps the law professors from Legion, KNUST and Macula law schools probably using their pedagogical skills may read and explain to you and the rest the record setting 855 pages of the opinion which contained no outstanding jurisprudential orbiter dicta or ratio descendi. Except to rationalize why they voted and manipulated their votes on behalf of the Respondents. Was it meant to flabbergast the people with legal sophistry or razzle dazzles them with their intellectual brilliance? We will leave this to future constitutional jurists or constitutional historians to judge.

Compared to other well-known landmark constitutional cases in other jurisdictions such as U.S.A or even such as Brown v. BOE (1954), a landmark U.S. decision which declared “equal but separate ‘as unconstitutional” and laid the gate way for total integrations of the races in U.S. the en banc opinion by the nine justices was not more than 70 pages including foot notes. In the 2000 landmark decision of Bush v. Gore a presidential election decision; the decision including foot notes were not more than 45 pages including per curiam and the dissenting opinion. As it is the practice in most jurisdictions I know of, the known format of Supreme Court court’s opinion is as follows: a per curiam ( majority) opinion by the court; followed by a concurrent decision by other judges who supported the majority opinion and then a dissention opinion by each of the judges who did not support the majority decision. However in the just released election petition there is 855 page- opinions issued by nine different justices. Eight of them average about 35 pages with one coup de grace coming to stupendous 234 pages. Was he writing a doctoral dissertation or a legal treatise??

Notwithstanding our misgivings about the conduct of the trial and the ensuing verdict or opinion there are certain take away lessons which must be immediately addressed by Parliament and other constitutional responsible bodies if we are to avoid the dissatisfaction that followed the verdict of the election petition trial in future. There must be effort to reform judiciary towards establishing competency, confidence and respect among the citizens for the administration of our justice system. To wit:
a. Parliament should immediately pass legislation on contempt of court to define , set standard including proceedings and sentencing guide lines to whittle down the unbridled powers of the Judges and Judges of our court of judicator. None of the branches of government under the constitution enjoys absolute power. So judges may not do what they please or when offended. Even the British whose common law of contempt of court Ghana inherited as part our legal law has amended its judicial contempt of court with 1981 Contempt of Act.. The Act defines the law of contempt of court, lay out sentencing guidelines and parameters for journalist and newspapers writers to write and report on going court trials.

b. The appointment of Judges and justices should not be farmed out to the Judicial Council, President and the Council of State. Since Ghanaians are the ultimate stakeholders in administration of Justice, citizens should have a voice on who is appointed a judge or Justice of lower courts and the Supreme Court. Judicial qualities such as Intellect, experience, integrity, judicial temperament and knowledge of the law about a potential judge are area of which citizens should be allowed to express an opinion. From what Ghanaians saw on TV during the trial I am sure a number of you have an option as to which of the justices embodied such judicial attributes.

c. The Supreme Court spent inordinate amount of time with lawyers haggling out which exhibits should be admitted on or not; worked out the disparity on the distributions of the pink sheet or exhibits among the Justice. There was a dispute among the lawyers as to number of exhibits filed by petitioners as well as those in custody of the respondents, petitioners, court registrar and some of the justices. Such was a waste of time and impeded smooth running of the trial. The court rules committee shall issue an order where by all the parties who file their exhibits properly marked in a binder. A pretrial conference before the judge should address and ascertain those which would be accepted by all parties and use at the trial.

d. The use of electronic devices such as CD-ROM and DVD has become part of modern trial process which facilitates a trial. Court should be made to freely admit into evidence authenticated copies which lawyers may proffer or tender evidence during trial. The court IT administrators should able to educate all the judges as well as other court’s functionaries

e. Finally, massive reform should be made by Parliament on the recommendations of some of the justices and try to restructure the Electoral Commission. This is the constitutional body mandated to conduct elections and referenda. Therefore the EC holds the key for peace and stability in future elections in the country but shouldn’t be allowed to initiate any self serving reforms on it own. However, Parliament should be dragged willy nilly to exercise over sight responsibilities to spearhead the reforms by amending or passing laws for the stated objectives of the EC. Some of the Justices indicated which areas need to be reformed. First EC as constituted, the President appoints all the ten members of the commission with additional three appointed through the approval of the Council of State. Without doubt it is untenable for the President to appoint al the thirteen members of the commissioners who are likely to do his bidding or the party is power.

In conclusion, as US Chief John Marshal opined centuries ago, an incompetent and corrupt judiciary, is a punishment from God on His offending people. While there is no evidence to support the current speculation of corruption among the Justices, I am sure lots of eye brows were raised about the conduct of Justice Atuguba and others during the trial his hostile attitude towards the petitioner’s lawyers and the subsequent opinion rendered. The debate among the conspiracy theorists will gain momentum and drag on for a long time. Others will debate on the competency of the Justices. But Ghanaians are sovereign people who created their own constitution and elected their government. Therefore it is incumbent on us as people to use the God given commonsense, the skills of our parliamentarians and the wisdom of our judiciary to initiate the much needed reforms I have outlined. This is our path way for the survival of our democratic governance that our forbearers have sacrificed their life, limb, liberty and property to maintain for us. According to the songster “ adu wo mene woso “ (it is our turn now)as citizens of Ghana to continue.
As to the conduct of CJ Chief Justice Georgina Wood abstained herself from presiding over the most important constitutional case of our time, history will be her better a judge. Her decision is between her conscience and her God. So do all the nine Justices who passed judgment on the presidential election petition.

Dr. Agyenim Boateng
Former Deputy/Asst. Attorney General
State of Kentucky, USA.
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