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Opinions of Sunday, 16 June 2013

Columnist: Hagan, Ebenezer

Supreme Court of Ghana Betrayed Martin Amidu.

Yesterday the Supreme Court granted some of the reliefs sought by Mr.
Martin Amidu in his quest to retrieve for the State some monies paid out to
cronies of the government cloaked as 'judgment debts.' The Supreme Court
while upholding a considerable number of the reliefs he sought, declined
jurisdiction on some others, referred others to forums it thought proper
and stayed on giving any opinion on the aspect about Mr. Woyome until a
futuristic determination is made on that case by the High Court before
which the case now is pending.

While the judgment given yesterday was generally good, I would respectfully
submit that the august Court gave the judgment per incuriam having missed
the very important point Mr. Amidu sought to make. It is my view that even
though this per incuriam decision is not fatal to the cause of Mr. Amidu,
and though to many, Mr. Amidu was successful, he failed to obtain his goal
which was to get the Supreme Court to leave from some of their time long
principles particularly those on suits brought under Article 2(1) of the
1992 Constitution.

It is settled learning that Article 2(1) of the 1992 constitution provides
a general ground for a person who believes that the constitution or parts
of it has been breached by the acts of omission and commission of another,
or any enactment purporting to have been made under the authority of the
Constitution or an action carried under an enactment is in breach of the
Constitution to go ahead to the Supreme Court to seek for remedy of the
situation.

A plain reading of Article 2(1) suggests that a person who believes that an
act, omission or enactment is unconstitutional can go ahead to the Supreme
Court for enforcement orders or for interpretation of the relevant aspects
of the constitution; however that is not the case. The authorities are
settled on the requirements a person must meet before a suit brought under
Article 2(1) of the constitution would be entertained. These requirements
are borne out of time long principles which the Supreme Court has set. If
the observations of Afreh JSC In Re Tsikata(No 2) is anything to go by,
then these principles actually are older than the constitution itself. I
would however on the authorities restrict myself to cases determined under
the current constitution which lay(s) one of the many principles guiding
suits brought under Article 2(1), 1992.

In Sam (No 2) v Attorney-General [2000] SCGLR 305, the Supreme Court held
that a suit brought under Article 2(1) must be brought by a Ghanaian. The
Supreme Court further held that there was no need in such suits for the
plaintiff to prove personal interest in the outcome of the matter. The
Supreme Court however drew a distinction between suits brought under
Article 2(1) and Article 33(1) of the 1992 Constitution, determining that
suits brought under Article 33(1) ought to prove a personal interest.
Bilson v Attorney General [1993-1994] 1 GLR 104 gave birth to the principle
that suit brought under Article 2(1) must contain a real case of
controversy or dispute, and not merely ask the Supreme Court enter into an
academic adventure. There must be some real cause of action so that the
determinations made by the Court would not be made in a vacuüm.

In New Patriotic Party v National Democratic Congress[2000] SCGLR 461, the
Supreme Court by a majority of 3-2 decision, held that the act or omission
complained of as being in breach of the Constitution ought to have happened
and not be a mere declaration of intent.
That position appeared to have been vacated by the unanimous decision of
the Supreme Court in the National Democratic Congress v Electoral
Commission of Ghana [2001-2002] 954 where the Court dismissed the
plaintiff’ suit for lack of evidence and not the absence of locus standi
even though the defendants in that suit had merely communicated an intent.

Be it as it may, clarity of the Supreme Courts position can be found in
Amidu v President Kufour,[2001-2002]SCGLR 86, where the majority of the
Court held that the act or omission complained of, must not just a
statutory provision but must indeed violate a specific provision of the
Constitution. My understanding being that to have qualified under this
ground, the act or omission complained about ought to have taken place
thereby making intents not actionable under Article 2(1).

In that same case, the Supreme Court held that in cases where specific
remedy was provided by other provisions in the Constitution, the Supreme
Court would not entertain a suit brought under Article 2(1) of the 1992
Constitution.
In Attorney General (No 2) v Tsikata(No 2),[2001-2001] SCGLR 620,specially
at page 698, per Afreh JSC, as he was then, the Supreme Court reaffirmed
her earlier position not to entertain suits cloaked as though it were for
interpretation and/or enforcement when in real sense other remedy laid
available per specific provisions of the constitution. In the estimation of
Afreh JSC, as he was then, that was a fundamental principle that the
Supreme Court had for over a period of 30 years abide by and which, when
breached should result in a dismissal of the suit so brought in limine.

And finally mention must be made of Yeboah v JH Mensah, [1998-99] SCGLR 492
where the majority of the Supreme Court held that actions brought under
Article 2(1) were not time bound.
I do concede that these principles are good for the purpose for which they
were established, what I would disagree with is the use of these principles
to frustrate attempts by persons such as Martin Amidu to protect and
promote the public interest. For in my view, the legitimacy of the
constitution is structured on the true warranted belief that it promotes
public interest and public good.

Mr. Martin Amidu being Ghana's longest serving Deputy Attorney-General and
after Attorney-General and being a party to some of the cases that
established these principles was clearly aware of the position of the law
on his suit, especially on those aspects that bothered on jurisdiction.
What in my humble view he sought to do, however, was to invite the Supreme
Court to leave their earlier positions especially on matters of
jurisdiction and to assume its proper authority of asserting control over
events in lower courts when it is demonstrated that Justice would not be
served and the national interest would not be protected.
It is my suggestion that had the Justices of the Supreme Court properly
directed their minds to the facts surrounding the Woyome, Waterville and
Austro-Invest case, their decision, particularly with regards to the
Attorney- General would have been different. There clearly isn't any basis
to trust that the Attorney-General as a person, or her office as an
institution, intend to recover the monies illegitimately paid out to
Woyome. It should be noted that as a department, the Attorney-General's,
had all the documents, at all material times, that proved beyond all doubt
that Mr. Woyome had no basis for the claims that he was making, yet, that
same department went ahead to issue orders and instructions, and even a
purported consent judgment with Mr. Woyome, entitling him to the payment of
those monies. As a person, Ms. Brew, the Attorney-General, is a member of
the law firm that led, against all ethics and indeed against the laws of
Ghana, a defunct company called Austro-Invest to make the claims they made
against Ghana. She, is indeed, neck-deep in the allegations of impropriety
leveled against the law firm of which she is a senior partner. Again, the
Court ought to have taken judicial notice of the statements made by the
former Deputy Attorney General, the current Deputy Attorney General and the
pronouncements of frustration by the trial judge Ajeet-Nasem over the
inability of the State to continue timeously with the prosecution of this
case.

Even though specific remedy, constitutional and statute wise, did seem
available to Mr. Amidu, consideration should have been made of the obvious
truth that those in whose hands these powers are, are themselves so
implicated in the scandal as to not to use it or intend using. Mr. Amidu's
quest was to bypass Articles 88(3) and 88(5) to do what the
Attorney-General, had clearly failed to do. Sad to say the Supreme Court
declined the invitation preferring to stick to their iron-cast modus
operandi with regards to Article 2(1).

The greatest danger is that when an Attorney-General fails to properly
discharge his or her duty even when such a failure is so clear and
deducible on the facts alone, that any move by any person to correct the
situation at the Supreme Court, would not be entertained unless there is a
clear need for interpretation or enforcement. I think most respectfully
that the highest Court of the land, while they were commendable yesterday
in taking notice of the great patriotism of Mr. Amidu ought to have gone
further by making pronouncements on the Woyome aspect of the suit
regardless of the case pending before a High Court. Where it is clearly
demonstrated that the public interest is at stake, the Supreme Court, ought
to in my humble view, not to be distracted in the handling of justice by
mere technicalities and legal doctrines.
The Supreme Court ought to take note and properly direct itself in future
on how it intends to handle issues like the one brought before it by Mr.
Martin Amidu. Respectfully submited.