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Opinions of Thursday, 12 September 2013

Columnist: Atugiya, David

In the Defence of Tsatsu Tsikata

Tsatsu Tsikata is one among the few that the writer would jump to his defence without any hesitation not because one condones alleged wrong doing as others would want us to believe, but because of the writer’s outmost believe in the person and character of Tsatsu Tsikata. Tsatsu is a rear breed of honest people in Ghana today. He is the type that believes in what says and says what he believes in. He is also undoubtedly the undisputed legal heavyweight currently in Ghana. It is the inherent truth, legal prowess and brilliance and the practice of the truth that has inert so much hate for Tsatsu, especially among his political opponents and legal colleagues from the opposition party, particularly the NPP.
It is a fact that people who cannot stand the truth or have no cogent response in the face of bear facts and truth, resort to attacks and that sadly is what discerning Ghanaians are witnessing in the vile vilification of Tsatsu Tsikata in his candid TV3 interview he gave on TV3’s Hot Issues programme on Saturday August 31, 2013 about the Supreme Court Judgement of the Election Petition.
Many discerning Ghanaians including the writer who have listened to the full interview of what Tsatsu Tsikata had to say or said on TV3’s Hot Issues programme without any political biases and the selective reportage by other media avenues, would almost certainly come to the conclusion that what Tsatsu said did not in any way scandalise any Judge (s) and for that matter the Supreme Court. In my opinion he spoke his mind in the fervent believe that what he said was the truth. Of course others may disagree with him in the timing, presentation and content. But Tsatsu like any other person and most particularly as lead Defence Counsel for the NDC of the Election Petition case has the right to express his believe and the truth as he sees it in the Judgement delivered by the Justices of the Supreme Court. And no one can take this right away from him, not even the Supreme Court Justices.
Tsatsu Tsikata in reacting to the misplaced criticisms from his vociferous opponents mainly from the NPP, told XYZ Breakfast show on Tuesday, 3 September 2013 that whatever he said about Justice Anin Yeboah was “factual” and not “lies”. And there was nothing personal about his accusation and that he bears no personal grudge against Justice Anin Yeboah contrary to suspicions of such, after he accused him of bias. As Tsatsu Tsikata indicated in the XYZ Breakfast show, we need to address the truth in the observations that he made in the context of what all of us observed and also from the written judgements of the nine Justices that have been published.

Having scanned through the written reasons of the Justices on their verdict of the Election Petition Judgement on Thursday, 29 August 2013, I am absolutely with Tsatsu Tsikata on his latest saga. Tsatsu is right when he said “-------“It should not, but I’m giving you a frank example in a situation where it seems to me like somebody like that [Justice Anim Yeboah] really did not take up what I will call a truly balanced judicial posture in relation to the matters that were before him and I say that very frankly, but I believe that is an observation that one can make and we do recognise as Lawyers and as Law teachers particularly, we do recognise the ways in which sometimes decisions are affected by some of these personal prejudices and positions”
A thorough analysis of the written verdict by some of the Justices most especially the minority Justices leaves much to be desired and one does not need to be lawyer to quickly come to the conclusion that there have been some elements of bias.
To illustrate my support for Tsatsu’s position, let’s for example take the written judgements of the five Justices who dismissed the Election petition on two of the three issues that the five majority Justices had a disagreement with their colleagues. “Unsigned Pink sheets by Presiding officers and Over- voting”.
With the claim of unsigned pink sheets by Presiding Officers, while all the nine Justices agreed that was an infraction as pleaded by the petitioners in the election petition, the five majority Justices refused the strict interpretation of Article 49 (3) and C.I 75 (36) and therefore dismissed the claim of annulment of votes. However, the four minority Justices upheld the claim and called for annulment of votes except Justice Bonney. It is important to note that all nine Justices examined the issue of unsigned pink sheets by Presiding Officer in relation to Article 49 (3) of the 1992 constitution and Regulation 36 (2) of C.I.75. Any objective minded person having thoroughly read the nine Justices judgements on this particular issue without any tainted legal or political lenses would come to the conclusion the majority view is a thorough and balanced judicial posture in relation to the matters that were before them as compared to minority view which was or is strict and skewed

The majority Justices in their ruling provided the pros and cons of arguments relating to Article 49 (3) and C.I 75 (36) (2), in the case of the minority Justices they went for the strict interpretation of above Constitutional and Regulatory provisions. The majority held view which to me was the balanced one is that, in all the steps they advocated on the matter were or are warranted, inter alia, by the principle of constitutional interpretation, that the constitution be construed as a whole so that its various parts work together in such a way that none of them is rendered otiose. They further argued that in modern times the courts do not apply or enforce the words of statutes but their objects, purposes and spirit or core values. And that our constitution incorporates this principle as shown for example, in article 17(4) (d). This, as pointed out by Justice Atuguba means that the constitution should not be applied to satisfy its letter where its spirit dissents from such an application.

In the bosom of the minority Justices as stated by Justice Ansah in his judgement, “the duty cast on the presiding officers to sign the declaration was couched in mandatory terms and deserves obedience and not meant to be disobeyed. An election much more so, Presidential Elections, are serious matters governed by well laid rules to preserve sanctity and integrity of the elections, especially where a specific duty is imposed on election officials. A breach of any of those duties meant the integrity of the election was compromised and ultimately affected the exercise of the right to vote as well as jeopardizing the sovereign will of the people”. How does Justice Ansah and his colleagues justices square this with their ruling that the sins of the counsel for the third respondent could not be visited on his client when he failed to comply with the court order to submit his written address on the date stipulated by the court.

Again, on the issue of over -voting, the majority Justices decision was more objective and balanced than the position taken by the minority Justices. To determine what constituted over voting the minority Justices without any offence to them were plainly wrong to have opted for the definition or evidence of Dr. Mamudu Bawumia which said over-voting is a situation where the number of ballots in the ballot book exceeds the number of ballot papers issued to the relevant polling station. As opposed to Johnson Asiedu Nketia’s definition or evidence, where the number of those who voted at a polling station exceeds the number of voters contained in the relevant polling station register. Dr Bawumia’s evidence as we all saw it could not hold water. This was a witness who conceded under cross examination that the Pink Sheets could not tell the whole story and that one needed to look at other documents to establish over-voting. This concession led to the petitioners as indicated by Justice Atuguba, rather belatedly, towards the end of the case, realised the need for the adduction in evidence of such vital documents like the voters registers, collation sheets, etc and tried to do so, sometimes with the indulgence of the Supreme Court, through cross-examination of Dr. Kwadwo Afari Gyan, Chairman of the Electoral Commission and also through unsuccessful applications for leave to serve on him notices to produce such documents. Yet, the minority Justices failed to see what we all saw courtesy of the live telecast of proceedings in court, that there was no evidence of over-voting except administrative errors. And again as stipulated by Justice Atuguba it is judicially acknowledged (except Justice Ansah and his minority colleagues) that failure to sign an official document could be due to an administrative error. In Practice Note (Guardianship: Justices’ Signatures) In re N(A Minor) (1972) I WLR 596 at 597 Sir, George Baker P."

If there is any person who needs to be taken to the cleaners following from the fallout of the 29 August, 2013 Supreme Court verdict, this should be Gabby Asare Otchere-Darko so called Executive Director of Danquah Institute. Who said the decision of the Supreme Court was or is corrupt and farcical because it gave a corrupted interpretation of the [1992] Constitution. To him it is like the Supreme Court Justices sought to amend an entrenched constitutional provision. When caught with bear faced lies, hypocrisy and double standards, he said his comments on the decision of the nine-member panel must not be taken to mean that the Justices who came to that conclusion that they came to were or are corrupt. Gabby Asare Otchere-Darko who has the habit at any given opportunity of insulting the President of the Ghana, Ministers of States and denigrate people like Tsatsu Tsikata on My Joy Newsfile programme must be called to order. Criticisms yes, but not those regular open insults that he sprees at his opponents. Any time I hear or see the “all knowing” and “all righteous” Gabby speak I wonder what he thinks of himself, the best brain in Ghana or what?

Kwame Okoampa-Ahoofe, Jr., Ph.D, the person one most often disagrees with his writings and who is a staunch NPP supporter could not hide his disdain for Gabby, when he said “ My problem with the Director of the Danquah Institute's attempt to justify his characterization of the Election 2012 Presidential Petition verdict by the Supreme Court as "corrupt," is the critic's tentativeness towards the same.----------------- Mr. Gabriel Otchere-Darko uncomfortably quibbled by rather lamely claiming that his was a criticism against a judgment and not the persons of the nine jurists who heard the petition. In other words, Mr. Otchere-Darko's criticism was anything but ad-hominem or a personal attack” (refer to Ghanaweb, Comment: Supreme Court judges are not angels, 6 September 2013).

Tsatsu Tsikata’s only problems that one can see and nothing can be done about them, are that his opponents particularly in the NPP cannot stand his truthfulness and legal brilliance, and also that any time he speaks he sends shivers through the spinal cord of his opponents.

David Atugiya
The author is a Human Rights and Social Justice Campaigner, Finance and Management Consultant; Specialist in NGO; Chartered Fellow, CMI and Millennium Awards Fellow