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Opinions of Saturday, 6 August 2016

Columnist: Alifo, Eric Delanyo

Reviewing Supreme Court's decision in same case is unnecessary

Here, I am not talking about the Supreme Court's Appellate Jurisdiction in Article 131 of the 1992 Constitution, requiring the Court to review decisions of the lower courts through to the Court of Appeal, or otherwise. That is perfect, although I do not think the Court must entertain every appeal made to it. There must be a procedure to select appeals that are likely to correct harmful errors and miscarriage of justice at the lower courts, or appeals from which the Court may establish important legal principles, or settle pertinent questions of law.

This discussion is about the Supreme Court's jurisdiction in Article 133 of the 1992 Constitution, which requires the Court to, in certain circumstances, review its previous decision in the same case as though the Court is hearing an appeal from the earlier decision. I think this jurisdiction of the Court is absurd, and makes mockery of the Court whenever it overturns an earlier decision it has made. This practice is completely unnecessary and does not accord much dignity to the Court.

Bases for Article 133 Reviews

Article 133(1) of the 1992 Constitution allows the Supreme Court to review any of its previous decisions "on such grounds and subject to such conditions as may be prescribed by rules of court." The applicable rules of court are the Supreme Court Rules, CI. 16, which provides at section 54 as follows: "The Court may review any decision made or given by it on any of the following grounds - (a) exceptional circumstances which have resulted in miscarriage of justice; [and] (b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decision was given."

In addition to these conditions upon which the Court may review its earlier decisions, there are also arguments that because all of the Justices of the Court do not sit on each case, it may be prudent to hear the opinions of the remaining Justices on the issues in question. In my view, this particular state of affairs at the Court is unfortunate. I don't understand why our Constitution allows room for too many Justices to be appointed to the Court, and then allows just some of them to sit at particular times. In any case, this argument does not seem realistic when we normally have about fifteen Justices. I cannot imagine any review when all the 15 Justices shall sit; so, there shall always be some Justices left out, whose views may never be heard on the issues in question. Others have also argued that whenever the decision of the Court is very close, there is a possibility that the decision may change in a review. This argument is the most disrespectful to the majority in each decision of the Court that shall be brought for a review, and must not be countenanced at all.

Let's get back to the reasons given by the rules, for which reviews may be entertained. No matter how plausible they may sound, I do not think they are good enough reasons to cause the highest court of the land to overturn its previous decisions, which I think must remain revered until the issues come up again in different cases, where the Court may depart from its previous position as allowed by the Constitution. The present arrangement is heavily susceptible to abuse, especially when some people think that for reviews, new Justices may be added to the original panel. In at least one of the famous reviews of the Court, only the new Justices made the difference, and it does not project a good image of the Court.

It should be expected that when parties litigate in the Supreme Court, they would be diligent enough and present their best case as possible. The Court is equally expected to reflect carefully and adequately on the issues before it presents its judgment. Nobody would expect a perfect process; however, when all the players put in their very best efforts at the first instance, there must be no basis for the reasons provided in the rules to occasion a second chance for the Court to possibly change its earlier decision.

The Very Best Practice

I would stick to just one jurisdiction because in my view, it is working perfectly notwithstanding uproars in certain sections about some of their decisions. I am referring to the American system. Just in the last week, the US Supreme Court handed down two landmark decisions that mattered very much to American people. On Friday, June 26th, 2015, the Court made a tremendously transformative decision in a five 5-4 opinion to allow same-sex partners all over America to marry if they so wish. Just a day earlier, the same Court had upheld a key provision in President Obama's healthcare law, the Affordable Care Act, whose survival had been under severe threat by powerful politicians and key players in America.

It is important to note that these decisions were close, particularly, the gay marriage one. They are landmark decisions, which bother many Americans, particularly, the religious conservatives and powerful Republican party politicians who have appointed majority of the Justices of the present Supreme Court. The dissent in both cases was very strong and fiery, with some sort of attacks by some of the Justices on their colleagues who had decided otherwise. Notwithstanding all of these, it shall never cross anybody's mind to attempt to ask the Court to re-look at the questions in the same cases. They are the decisions of the American Supreme Court, and they have come to stay. Only aspects of them may arise in different cases in the future for the Court's attention.

Some of the reasons for this orderly nature in the US include the fact that the Justices of the Supreme Court are always nine, although their Constitution, just as ours, does not place a ceiling on the number of Justices that may be appointed to the Court. Also, all of the Justices sit on every case that the Court deems worthy of hearing. This Court is much more respectable than the one created under our 1992 Constitution.

The Way Forward for Our Supreme Court

I doubt very much if the powers that be would pay heed to these suggestions, which may be seen largely as radical. However, I think the best way forward is to cut the number of our Supreme Court Justices to nine; all of them must sit on every case that comes to the Court; and the Court must never review its decision in the same case. These would require some amendments of the Constitution, and I know it may be tough in our overwhelmingly conservative Ghana, but it shall be very useful if we can have the will and courage to effect it.