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Opinions of Friday, 3 May 2013

Columnist: Asare, Kwaku S.

Matters Arising from the Mornah Court

According to multiple media reports, the Supreme Court, in Mornah v. Attorney General, has held that the rule requiring the Court to sit “on holidays as well as weekends,” as prescribed by C.I. 74 is “unconstitutional.” Further, the Mornah Court has held that decisions arising out of Presidential election disputes can be reviewed, contrary to Rule 71(b) of C.I. 74, which makes no room for a review.

I have not seen or read the opinion of the Mornah Court. Nor have I read the plaintiff’s writ or for that matter the Attorney General’s response. I have not done so not because I am unable or unwilling to do so but rather because the writs and opinion are unavailable, notwithstanding multiple promises and pledges to make such writs and opinions available on the Court website. Nevertheless, I make the following preliminary observations about the holding and retain the option to make further commentaries as those writs and opinions become available.

1. There is nothing in the Constitution that bars a Court from sitting on any given day! So the notion that it is unconstitutional for the Court to sit on a holiday is bizarre. Unbeknownst to many people, an action (or inaction) cannot be unconstitutional unless it contravenes a provision of the constitution.

2. According to Article 64 (3) of the Constitution, “The Rules of Court Committee shall, by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President.” This is an unconditional mandate that cannot be preempted by an Act of Parliament.

3. The Rules of Court Committee consist of (a) the Chief Justice, who chairs the Committee; (b) six members of the Judicial Council other than the chief Justice nominated by the Judicial Council; and (c) two lawyers, one of not less than ten and the other of not more than five years' standing, both of whom shall be nominated by the Ghana Bar Association.

4. In the exercise of its powers under Article 64(3) and its general powers to make rules and regulations for regulating the practice and procedure of all courts in Ghana, the Rules of Court Committee is subject only to the Constitution.

5. It follows that the Rules of Court Committee can require the Courts to sit on any day and at any place, unless sitting on such days or places are expressly forbidden by the Constitution.

6. The Rules of Court Committee can declare Judicial Holidays and can ask the Courts to sit on Public Holidays, if doing so serves the end of Justice.

7. The Monarh Court is required to treat decisions of the Rules of Court Committee with deference and uphold its rules, unless a clear case of constitutional violation can be made. It is hard for me to see why sitting on a public holiday violates the Constitution or even any law.

8. The Public Holiday Act is an Act of Parliament not a Constitutional provision. This Act codifies days that are set aside for commemorating/ celebrating some events and for which normal work is suspended or reduced.

9. The Public Holidays Act recognizes that holidays are not sacrosanct and gives the president the power to add or subtract holidays, if the public interest so dictates.

10. There is no provision in the Public Holiday Act that bars the Courts from sitting on public holidays. If there were such a provision it would be per se unconstitutional because it is only the Rules of Court Committee that can make rules and regulations to govern courts’ practices and procedures.

11. The Public Holiday Act only bars a person from opening “a shop for the purposes of selling or trading or engaging in a business on a public holiday.” Administration of Justice, including policing, is not barred on these days.

12. The mere notion that a Court sits on a Public Holiday, to hear emergency cases, does not mean that the Public Holiday Act has been amended. The Public Holiday Act makes several exceptions for so called essential services. The only reason judicial services are excluded from these exceptions is that they lie beyond the purview of Parliament.

13. In all jurisdictions, the Courts can sit on any day, including a holiday if the courts decide that doing so furthers the pursuit of justice. Ghana, under the Monarh rule, may be the only exception.

14. The Supreme Court should, as a matter of urgency, release all writs filed in this case as well as the transcripts to facilitate a review of this absurd decision. The decision is as absurd as the 5-4 decision to outlaw the Fast Track Courts.

15. In particular, the nation is entitled to assess the quality of representation that it receives from the Attorney General in these public litigations. It is too soon to speculate but Woyome teaches us that the Attorney General may not always act in the interest of the Republic.

16. The holding of the Monarh Court that election petitions are reviewable conflict with the principle espoused by the Nyimakan Court that there are “rival appellate procedures:” a three-tier general appellate procedure, under article 131, and a two-tier election appellate procedure. The Supreme Court should start acting with some consistency if it is to gain the respect of the people.

17. Of course, the Court can choose not to follow its own precedents. But when it does, it must give solid reasons.

18. The current situation where panels of the Court decide as if they are unaware of prior decisions made by other panels is retarding the jurisprudential growth of the country. It is as if we have several supreme courts instead of The Supreme Court!