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Opinions of Friday, 3 May 2013

Columnist: Kennedy, Arthur Kobina

Ghana’s confused supreme court

1ST May, 2013

Ghana’s Supreme Court is confused and if unchecked, it may lead Ghana over a political cliff into civil unrest.

The court has just issued a ruling, in response to a writ filed by Mr. Bernard Mornah that has the potential of turning the election petition filed by Nana Akufo-Addo et al into a farce.

The five-member panel ruled that,

? The decision of the 9-member panel hearing the case can be appealed.

? It is unconstitutional for the Supreme Court to sit on holidays to speed the case up.

The ruling has the effect of prolonging this case that has already gone on for too long. This needless delay can be exploited by agitators to destabilize the nation.

Constitutional Instrument 74 was approved, in 2012, by Parliament at the request of the “RULES OF COURT COMMITTEE”, the body mandated by the constitution, per article 157:2, to “by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana.”

The “Rules of Court Committee” is not some ordinary committee. Its membership includes the Chief Justice, six members of the Judicial Council and two members of the Ghana Bar Association. The Judicial Council membership is a list of “who is who” in Ghana’s legal circles. To believe that CI 74 was put together without its constitutionality being determined by these luminaries is hard to believe. Indeed, a reading of their ruling with article 133, which the ruling seeks to protect shows how wrong it is. Article 133:1 of our constitution states, “The Supreme Court MAY review any decision made or given by it on such grounds and subject to such CONDITIONS as may be prescribed by RULES OF COURT.” The capitals are used for emphasis. Respectfully, what about the difference between “MAY” and “SHALL” did the Supreme Court panel not understand? “Shall” is a command while “May” is permission or a suggestion. It is clear that the barring of an appeal by the Constitutional Instrument was meant to speed up the resolution of a Presidential election dispute. That worthy goal has been undermined by this ruling. The Court’s ruling on sitting on holidays is even more astonishing. The justices averred that if the Supreme Court sits on public holidays and week-ends, they will be breaking the Public Holidays Act. Really? Are Constitutional provisions and instruments not supposed to trump laws when they are in conflict? Clearly, the act should have yielded to the instrument.

Are Doctors and Security Personnel breaking the law when they work on holidays to save lives and to protect the public respectively? Was this issue not settled for all time when Jesus supported the principle of doing important tasks on the Sabbath?

Aside from these questions of law, there is the question of prudence. Even granting that the Supreme Court was correct, was this the best time to make such a ruling? Why could this ruling not wait till the Presidential election dispute had been resolved? The most prudent thing to do would have been to shelve any ruling on this matter and then to make a ruling later, looking to the future. That would have respected “first come—first serve.” The court failed by that simple standard of prudence. Inspired by the personalities involved, the motives for seeking the court’s ruling, the timing of the decision and the strangeness of the reasoning, some are speculating that there may be factors other than high constitutional principles involved in this decision.

I disagree.

While I question the judgement of the court, I believe we must assume the best intentions and the presence honour in our Supreme Court justices--- without exception. I believe that our courts may yet rise to the high standards set by British Justice Coke in 1616 and American Justice Marshall in “Marbury versus Madison” in 1803. These decisions expanded the frontiers of justice and inspired judiciaries around the world. I pray that our judges may yet aspire to those standards.

Unfortunately, mindless partisanship has entered into the reactions to this ruling. Some NDC functionaries have welcomed the bar on sitting on holidays. Some in the NPP have speculated gleefully on the status of President Mahama if there should be an appeal. The fact is that President Mahama, Nana Akufo-Addo and indeed all of Ghana needs this case to be over as soon as possible. It has affected the President’s confidence. Nana is in limbo. The nation is edgy and productivity has fallen. Our parties cannot look to the future. The world is tittering at our inability to resolve this matter as speedily and decisively as Kenya did.

We need to move on.

I urge President Mahama and Hon. Nana Akufo-Addo to commit jointly that whoever wins this case, the other will not appeal so that Ghana can move on.

Let us move forward—together.

Arthur Kobina Kennedy