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Opinions of Friday, 23 January 2015

Columnist: Ata, Kofi

Is Justice Daniel Mensah (Dormaahene) Fit to be a High Court Judge?

By Kofi Ata, Cambridge, UK January 21, 2015

Sometimes, when I read or hear about certain incidents in Ghana, I wonder if Ghana is a banana republic. Nearly a year ago, I read about the banishment of a health administrator by the Dormaahene, Osagyefo Oseadeeyo Agyeman Badu II, for disobeying his directives but I assumed the story was false because it did not make sense to me. What was not said in that report was that the Dormaahene is also a High Court Judge? Yesterday, the story was again reported by the Graphiconline and I was shocked beyond belief that under the current democratic dispensation and the rule of law in Ghana, a Justice of the High Court could take the law into his own hands and banish a Ghanaian citizen from part of Ghana without due process and for merely disagreeing with him. The purpose of this article is to question why the Judiciary and the police have allowed this breach of the 1992 Constitution and a serious violation of the rights of a citizen and to pose the question whether this High Court Judge could remain as a judge if the report is accurate.

The report claimed that, on February 17, 2014 the Dormaahene ordered the Presbyterian Health Service Administrator stationed at Dorma Ahenkro in the Brong Ahafo region, Mr Effah-Yeboah to leave the town by February 24, 2014. The Dormaahene was also alleged to have dissolved the Area Board of the Presbyterian Health Service on the basis that he, as the Paramount Chief, ought to be the automatic chairman of that board and further directed that the Aduanahene of the Dormaa Traditional Area, Barima Yeboah Kodie II, should be the chairman of the Area Board in his stead. A directive Mr Effah-Yeboah disregarded resulting in his banishment by Dormaahene and was advised by the police to leave the town for his security.

According the story, the traditional authorities were angered by the decision of the Presbyterian Hospital to construct a new mortuary, instead of relying on the services of the one built by the traditional authorities about 10 years ago. By arrangements, the mortuary shared its revenue with the hospital but after some time, the managers of the mortuary discontinued the periodic payments of revenue to the hospital. Following the completion of the hospital’s mortuary in December 2013, the people of Dormaa and other communities began patronising the services of the new mortuary, instead of the old one, which seemed not to have gone well with the managers of the old mortuary, who perceived the decision of the hospital to build a new mortuary without authorisation as a sign of disrespect to the traditional authorities.

The Presbyterian Health Services Directorate in a response to the above stated that the Dormaahene had no locus to dissolve the board that was constituted by the church. The Christian Health Association of Ghana (CHAG) also condemned the banishment of the hospital administrator and described the incident as “unfortunate and a worrying development for health care delivery.” Mr Effah-Yeboah made a complaint to the Judicial Council and the Chief Justice has set up a committee chaired by a Supreme Court Justice is currently investigating the case.

Among the questions I posed after reading the above report on Graphiconline of January 20, 2014 were: Is this really happening in Ghana and if so, why has the Judiciary allowed it for nearly one year? Why did the police advise Mr Effah-Yeboah to leave the area instead of telling the Dormaahene and High Court Judge that under Ghana’s constitution he has no power to banish a citizen of Ghana from any part of the country without due process? Did the Dormanhene have the authority to dissolve the Board and make himself the Board Chairman? Can Justice Daniel Mensah administer justice in his court?, etc.

Though when it comes to Ghanaian customs and traditions, I lack good knowledge and understanding I do respect them, including the institution of chieftaincy. In fact, I am aware that Article 11 of the 1992 Constitution regards the makeup of the laws of the country as including common and customary laws. Article 11(3) defines customary law “as rules, which by custom are applicable to particular communities in Ghana”. That means the customs and traditions of the Dormaa area that are compatible with the Constitution should be respected. However, if not respected, the traditional leaders must follow due process in administering any appropriate disciplinary measures that must also conform to the constitution.

Let’s even assume that Mr Effah-Yeboah disobeyed the orders of the Dormaahene. Was the Dormaahene or traditional council right in banishing him from the areas without due process? The answer is absolutely, no. Due process means, Mr Effah-Yeboah was tried by the traditional council in their court and given the right to defend himself against any charges and a judgement given at the end of the trial. He also had the right of appeal against any decision by the traditional council up to the Supreme Court.

Since the Dormaahene is also a High Court Judge, one expected that he did not only know this basic constitutional right but must also ensure its enforcement. Sadly, from the report, it appears that is not what happened, Rather the Dormaahene appears to have no respect for the laws of the country decided to do what he wanted by taking the law into his own hands.

Article 21 (1)(g) states, “all persons shall have the right to freedom of movement which means the right to move freely in Ghana, the right to leave and enter Ghana and immunity from expulsion from Ghana”. Again, did the Dormaahene or Justice Daniel Mensah know about this and if so why did he banish or expel Mr Effah-Yeboah from Dormaa Ahenkro? Does he think that the constitution does not apply to him either as Dormaahene or a High Court Judge? Was it ignorance of the law on his part, contempt for the law or the usual Ghanaian disease of indiscipline and lawlessness?

Who told this Dormaahene or made him believe that as Paramount Chief of the area he had automatic right to be the Chairman of the Board of an organisation that belonged to the Presbyterian Church of Ghana? What right is that? Was it by custom, birth right, citizenship right, judicial right, constitutional right or what? This man is a High Court Judge and if the report is accurate, then, Ghana is in serious trouble. How can a person who by all standards appears to be lawless be a High Court Judge? Does he think he is next to God in Dormaa traditional area or is he Yaya Jammeh (president of Gambia) of Dormaa?

The role of the Ghana police in this matter is also very disturbing. The Police are expected to protect citizens from arbitrary actions against them by others. This requires that officers of the force must know the basic tenets of the constitution regarding the rights and responsibilities of individuals. It was totally wrong and unconstitutional for the police to have advised Mr Effah-Yeboah to leave the town for his own security. Instead, they should have told the Dormaahene that he had no authority (traditional, judiciary or constitutional) to banish any Ghanaian citizen from any part of the country without due process and protected Mr Effah-Yeboah to stay put.

Article 151 (1) of the Constitution states, “a person holding a judicial office may be removed from office by the Chief Justice on the grounds only of stated misbehaviour, incompetence ........and upon a resolution supported by votes of not less than two-thirds of all members of Judicial Council”. In my view, if the report by the Graphiconline is accurate, then, Justice Daniel Mensah by his actions and omissions has misbehaved, brought the Judiciary into disrepute and must suffer the consequences for it. His judgment on this matter seriously impairs his ability to administer justice as a High Court Judge and must resign or be dismissed. This case should have been handled expeditiously and not let drag on for a year when Mr Effah-Yeboah’s rights to free movement and economic right to have a job have been violated by the actions of the Dormaahene/High Court Judge.

This matter raises the problem of pervasive indiscipline and lawlessness in Ghana. If a High Court Judge who should know better can take the law into his own hands how do we expect the ordinary Ghanaian to respect the law, rules and regulations of the land? Unless Ghanaians and I mean all Ghanaians, irrespective of position in society respect and obey the laws, rules and regulations of the country and the same are enforced without fear or favour, Ghana will remain undeveloped for decades to come. A country cannot develop in the midst of indiscipline and lawlessness. Justice Daniel Mensah is a disgrace to the Judicial and not fit to be a High Court Judge if the report is accurate.

Kofi Ata, Cambridge, UK