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Opinions of Thursday, 7 March 2002

Columnist: Asare, Kwaku S.

On the 5-4 Verdict: Stop the Waiting and Review Games Now

Alas, nobody is sure what this decision means or what the implications of the decision are. The reason is that the justices SHIRKED on one of their most important responsibilities, which is, to tell us why they have decided, simultaneous with giving us a decision. A decision without support is the way you talk to 2 year-olds and even that is changing!

In a classic display of a "slow track" mind set, the SC simply told us to go about our normal businesses for the justices will need 3 weeks to tell us why they have decided. In the meantime, the justices have created an untenable situation where Mallam Isa and Selormey have been sent to jail by an "unconstitutional" court. Does the ruling mean these "criminals" should be freed? There is nobody who can answer that question because we have not seen the basis of the decision.

This wait is unacceptable in a democracy. The justices have a duty to decide and the people have a right to know why and how they have decided. It is only when they tell us the why of their decisions, concurrent with their decisions, will they have done their job and the peoples' right to know be preserved. Judges, like university professors, have job tenure and only intense scrutiny of their opinions will make them accountable to the people. Otherwise, they become LORDS, which we rejected with the 1992 constitution!

Three weeks is a long time for many analysts and commentators to provide reasons in the media justifying or condemning the majority decision. This can create additional material for the justices to justify their decisions or otherwise enhance their dissent. They can include reasons that did not go into their prior opinions or eliminate reasons that went into their prior opinion. This is ex-post decision justifying which should have no place in our Courts.

The only way we can understand how the court decides is by reading its opinions and it is only proper for us to mandate that the court must issue its decisions and the supporting opinions at the same time.

We must never wait again for the supporting reasons for a decision.

Another game that is in town and that must be stopped in its tracks is asking the SC to review its decisions. This request flows from article 133 (1) which reads:

"The Supreme Court may review any decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court."

It is not clear what grounds and conditions the Courts have prescribed for this clause to kick in. Nevertheless, some have misinterpreted this article to mean that one has a right to ask the SC to review any and all decisions. This is a serious misinterpretation of article 133 (1) and arises because people read this clause in isolation.

After all, why must one be able to turn around to ask the SC to review a decision that it just made? It cannot be because the petitioner is telling the justices that they did not think carefully about the issues and that they should now think carefully about the issues. Such a reason for asking the SC justices to review their decisions is inherently unacceptable because it starts with the assumption that the justices do not always think carefully before they decide. But what are we left with if we grant this indictment of the justices?

To be sure, some of the justices do not think carefully about the issues, as we have found out in the Tsatsu versus AG case, but asking such careless justices to review their opinions is a waste of intellectual and legal resources. They won't change their minds.

What then accounts for article 133 (1)? Article 133 (1) was created because of the unacceptable quorum provision of 128 (2) which reads as follows:

"The Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution."

Anticipating that less than the full court may decide cases, on sometimes, narrow margins, the Constitution allows the litigants to throw the matter to the full court for additional deliberation. This is exactly the basis for 133 (2), which reads as follows:

"The Supreme Court, when reviewing its decisions under this article, shall be constituted by not less than seven Justices of the Supreme Court."

A simultaneous consideration of 128 (2), 133 (1) and 133 (2) leads to the following five bargain points:

(1) That 5 justices can sit on a case;

(2) That these 5 justices are fallible and lack finality of word;

(3) That because of the lack of finality of word, a party can ask for a review of the decisions rendered by the 5 justices;

(4) That the review court must comprise of more justices than the bench that rendered the original verdict;

(5) That the review justices are fallible but have finality of word.

It makes no sense to ask the SC to review its decision when 9 members, that is the highest number that can be constituted since it now has 10 members, have rendered a verdict.

Let us stop this review business and hope that the 5 justices rethink their decisions and will write their opinions in a way that inoculate the prior decisions of the now "unconstitutional" FTC. The AG should, as he has done, simply haul Tsatsu Tsikata to the High Court, which will be the same FTC with a less elegant name. This is justice made in Ghana!