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Opinions of Tuesday, 9 February 2016

Columnist: Asare, Kwaku S.

Is the constitution a compendium of suggestions to Ghana’s Supreme Court?

S. Kwaku Asare

"In a per incuriam (i.e., careless) unanimous decision, the Supreme Court has held that "even though Tiger Eye PI did violate article 146 clause 8 of the 1992 constitution, it does not mean that the constitutional process to inquire into the petition should be declared null and void."

It is profoundly wrong to perpetuate this notion that the Constitution is a Compendium of suggestions and its provisions can be violated without consequences. A violation of the Constitution carries with it the implied remedy that the offending act is unconstitutional, void ab initio, null and of no effect.

An unconstitutional petition is in reality no petition at all and is wholly void, null and ineffective for any purpose. Thus, were Article 146(8) violated, it should follow that the constitutional process to inquire into the petition is null and void! Fortunately, as explained infra, Tiger Eye could not have violated Article 146(8).

Article 146(8) provides that "All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice."

Tiger Eye PI cannot violate Article 146(8) because he does not control proceedings under that Article, has no ability to hold those proceedings in or out of camera and cannot deny the Chairman or Justice against whom the petition is made hearing or access to a lawyer.

Article 146(8) seeks to protect the rights of the Justices against whom the petition is made from those constitutional officers who are empowered to hold the indicated proceedings. The Court itself claims that the "secrecy" of the petition is to protect the Judges' right to privacy and fair trial. An unconstitutional act that violates citizens' substantial and constitutionally protected right cannot be a harmless act that carries no consequences. Nor can the citizen be asked to seek a relief under tort law (e.g., defamation) for a violation of his constitutional right. The offending act must be voided. Of course, I emphasize that I disagree with the Court's holding that publicizing the petition under Article 146(3) violates the requirement for an in camera proceeding under Article 146(8).

The proceedings referred to in Article 146(8) occur after someone has petitioned the President who, in turn notifies the Chief Justice who then forms a Committee to investigate the petition.

Article 146(8) is not addressed to the petitioner, who is therefore unconstrained in the observations or evidence that can form the basis of his petition. Likewise, Article 146(8) does not prescribe the form of the petition. In fact, a petitioner who does not know how to contact the President may very well publish his petition in the media or organize a town hall to discuss the petition and to figure out a way to reach the President. None of that will come close to violating Article 146(8)!

Thus, Tiger Eye's intercourse with the Constitution occurred under Article 146(3) not Article 146(8). Article 146(3) provides that "If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case."

There is absolutely no constitutional requirement for the petition to the President to be in camera. Nor does the petition constitute part of the proceedings under Article 146(8). In fact, there is no Article 146(8) proceeding unless the Chief Justice determines there is a prima facie case. Moreover, the Chief Justice's determination and composition of the Article 146(8) panel must necessarily be publicized!

What if Tiger Eye or others involved in the Article 146(8) proceedings leaked information from the in camera proceedings? Again, this will not be a breach of Article 146(8) because the proceedings remain in camera. However, Tiger Eye or the leakers would have violated the oath of secrecy that they took pursuant to partaking in the proceedings. In that case, Tiger Eye is a contemnor and is punishable for violating his oath (unless he has an Adjaho exception) and for contempt. Further, the panel may decide to exclude his evidence but his leak does not violate Article 146(8) and does not in anyway invalidate the constitutional process to inquire into the petition.

This illustrates an important point. Constitutional law is public law and does not concern itself with actions by private citizens but rather actions by state actors to ensure that they exercise the power in constitutional permissible ways. This is why a state official's (such as the police) invasion of a citizen privacy triggers a constitutional issue while the same invasion by a private citizen does not, although the latter may raise private tort claims!
The Court's problem is one of following Date Bah's prior poor reasoning in the Agyei Twum case ([2005-2006] SCGLR 732) that the filing of a petition is part of Article 146(8) proceedings. That is a palpably flawed holding that is creating the absurdity that a private person who simply files a petition can be found to be in violation of the Constitution.
The requirement that citizens file petition with the President should be enabled by statute specifying the form, nature, etc. of the petition. A citizen may be found to violate this statute but never be deemed to have violated the Constitution for simply filing a petition.

Of course, shrouding the petition process in secrecy disables a fundamental assumption that citizens will play a key part in holding judges accountable. If a petition is to be filed in secrecy, how will other citizens who have relevant evidence know that a petition has been filed? How can someone who wants to report a judge's misbehavior but does not know how to secretly contact the President proceed? What compels the President to act on a petition if the petitioner is not allowed to publicize the petition? If a petition leads to a prima facie case, how is the Chief Justice supposed to announce a Committee to examine the petition without providing reasons for forming the committee? How can the President suspend a judge during the pendency of the in camera proceedings without publicizing the rational for the suspension or its subsequent revocation?

It goes without saying that filing a petition under Article 146(3) is not part of the in camera proceedings contemplated under Article 146(8).

Even accepting the ridiculous position that a petition is part of the mandated "in camera proceeding," the proper holding should have been to declare the publicizing of the petition as a contempt of the proceedings not an unconstitutional act, which carries with it the implication that the petition is void.

In sum, I disagree with the Supreme Court’s holding that Tiger Eye has violated Article 146(8). I do not think Tiger Eye or Private citizens can violate Article 146(8). Were Article 146(8) violated, for instance by holding the proceedings in public or denying the Justices hearing or access to lawyers, then, in my opinion, the process would be unconstitutional, null and void.