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Opinions of Saturday, 10 October 2015

Columnist: Ata, Kofi

Judicial Scandal: Are Articles 146(1) and 151(1) being Misinterpreted?

By Kofi Ata, Cambridge, UK October 9, 2015

The ongoing investigations into the Judicial Scandal of judges taking bribes and deliberately give false judgment and freeing the accused before their courts that was exposed by Anas has generated public discourse from various angles including legal, constitutional and moral perspectives. However, one area of the debate that appears to be missing is the accurate interpretation of the relevant articles of the 1992 Constitution. This is an analysis and accurate interpretation of the relevant Constitutional Articles.

Article 146(1) of the 1992 Constitution states, “A Justice of the Superior Court or Chairman of the Regional Tribunal shall be not be removed from office except for stated misbehaviour or incompetence or on grounds of inability to perform the functions of his/her office arising from infirmity of body or mind”. Subsections 2 to 11 describe the processes for the removal.

Article 151(1) also states, “A persons holding a judicial office may be removed from office by the Chief Justice on the grounds only of stated misbehaviour, incompetence or inability to perform his/her functions arising from infirmity of body or mind and upon a resolution supported by the votes of not less than two-thirds of all members of the Judicial Council”.

For the purposes of this analysis we are only interested in the above Articles and not the processes. In fact, I will limit the analysis to just two words, “stated misbehaviour” that appear in both Articles above and which I believe are the grounds for the actions being taking against the judges caught not only on tape taking bribes but also gave false judgement in the cases for which they accepted the bribes.

Unfortunately, the framers of the Constitution failed to define what or provide a list of behaviours that constituted the “stated misbehaviour”. This failure, I also believe is the cause/s of the current confusion in Ghana that has given room to some of the judges such as (In)justice Dery to have the effrontery of misusing the courts to seek injunction upon injunctions to prevent the public showing of the Anas Video as well as going to the Supreme Court to stall the disciplinary actions against the High Court Judges.

Since there is no provision of a definition or a list of the stated misbehaviour in the Constitution, what is the ordinary meaning of misbehaviour? According to the Oxford Advanced Learner’s Dictionary, it’s to behave badly or in an unacceptable way. Others that come to mind are misconduct, mischief, disorder, naughty, disobey delinquency, misdemeanour, rude, bad manners, shenanigans, etc.

From the above, no reasonable person will describe the actions of the judges as misbehaviour. In other words, the behaviour of the judges did not amount to misbehaviour or the stated misbehaviour. For this reason, the corrupt judges cannot benefit from Articles 146 and 151. This is because the accurate and plain language to describe the behaviour of the corrupt judges is CRIME. They committed acts of crime which are not misbehaviour. Crime is different from misbehaviour because crime is always punishable by law but not misbehaviour. The accurate interpretation of the words “stated misbehaviour” in the Constitution will therefore exclude criminal activities. I am more than convinced that the framers of the constitutional did not envisage criminals being judges, let alone Justices of the Superior Courts.

Let me explain myself with an example and a question. Manslaughter is a crime and not misbehaviour, bribery is also a crime in Ghana punishable by law. Now judges have taken bribes in Ghana and they are treated as if they have misbehaved under Articles 146(1) and 151(1). What will happen in Ghana if a Justice of a Superior Court commits a crime of manslaughter? Will Article 146 be followed in such a situation? Will this crime also be one of the stated misbehaviour and therefore the processes outlined in Article 146(2) to (11) be followed in removing the judge before prosecuting him for the manslaughter?

The answer is no because crime is crime and not misbehaviour. In my humble opinion, the corrupt judges are criminals and should be treated as such. In fact, if it is true that some of them manipulated the video given to them by Anas to appear as if they were innocent, then, they are common criminals and should treated as common criminals as Mr Dominique Strauss-Kahn, the former IMF head was arrested in New York in May 2011 for sexual offence despite his position and diplomatic immunity. The law should not be a respecter of positions or persons but on the contrary.

It is also my belief that once the judges have not denied what is on the tapes, Articles 146 and 151 become irrelevant, therefore they should be dismissed outright from the judiciary and prosecuted as criminals. The application of the two Articles on this scandal is the wrong interpretation of the Constitution because crime is not misbehaviour. Moreover, to subvert justice by deliberately administering injustice and causing miscarriage of justice are very serious criminal offences. Last but not the least, their defence that they were entrapped is illegal defence and must not be entertained by any court.

The processes outlined in Articles 146 and 151 for the removal of judges and judicial office holders respectively were to prevent the interference of the judiciary by politicians as witnessed in the past or since independence. However, they are being misinterpreted and abused by members of the judiciary themselves. It makes nonsense of the safeguards and therefore the legal actions by the corrupt judges amount to abuse of process and subversion of the Constitution itself which should not be allowed.

As I am not a lawyer, I would like to hear from Constitutional Lawyers, especially Prof Kwasi Prempeh of Seton Hall University School of Law, in the US regarding my view that the two articles are not be applicable in the case of the Anas tapes and the corrupt judges because crime cannot be one of the stated misbehaviour.

Kofi Ata, Cambridge, UK