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Opinions of Wednesday, 29 May 2013

Columnist: Asare, Kwame Ohene

Supreme petition – in whose bad faith

By Kwame Ohene Asare

To Paraphrase the words of the great Learned English Judge of history, Lord Denning, You cannot put something on nothing and expect it to stand, it will surely fall.

Undoubtedly, the victory of His Excellency John Dramani Mahama in the 2012 Presidential elections was shocking to a large section of Ghanaians, whether you were pleased or disappointed with the outcome. The nature of politics in Ghana is such that it lends itself to manipulations by even hoaxers and imposters. However, the same cannot easily be said of wining an electoral dispute in a Court of Law adjudicated fairly and objectively in the full glare of cameras with a global reach, in spite of the corruptibility of some Judges. I recently had opportunity to explain to someone that irrespective of the outcome of the on-going petition, a Judge will be protected whether corruptible or otherwise. Think about that? Even the impecunious victor will have power after the Court case! Worrying though the concept is, that is the reality. No judge should therefore find it necessary to stray from an honest and well-grounded decision.

In my view, it is easier to find a fair and objective ‘jury of judges’ than it is to find a fair and objective secret voter in an election. It takes a lot of training and discipline to qualify as a Lawyer and even more so for Judges. I hasten to add that voters all over the world can be quite gullible. Besides, the advocates in a Court of Law are supposed to be bound by various rules of professional conduct, which in a properly regulated environment means Lawyers on both sides and Judges alike have a professional duty to consider evidence objectively. For example in the U.K., Lawyers are monitored by a heavy regulatory regime which sees on an almost weekly basis, a significant number of Solicitors, a disproportionate number of whom are from ethnic minority backgrounds, get struck off the roll or sanctioned for various breaches of the professional code of conduct. Their problems may range from misdemeanours to common theft. The Courts also act as another level of control by either reporting aberrant Lawyers to their respective Regulatory authority or by imposing Cost Penalties against such erring Lawyers.

Having won the elections in allegedly very unsatisfactory circumstances and faced with a rigorous and probing adjudication of the fairness of his election, the President of the Republic has chosen a Legal Team who, with his implicit blessing, is seeking to win the votes of the 9 esteemed Judges by hurling unjustified accusations at the Petitioner’s Lawyers. Their accusations have included dishonesty, bad faith, disingenuousness, criminality and even pure insults. Already, at the inception of Tsatsu’s celebrated cross-examination, NDC communicators have been accusing Nana, Jake and Bawumia of criminality in the gathering of evidence or in the preparation of Court papers.

Even the retired Justice Kpegah’s efforts at helping the process was to deploy what appears in all probability to be a frivolous and vexatious allegation; a trumped up claim not dissimilar from the Woyome’s claim for money which he did not work for. You may excuse Justice Kpegah for his eccentricity; however, at times you wondered whether he did not have co-conspirators from the NDC legal team given the veiled and sometimes explicit support some of the members of the Legal Team gave him. Victor Adawudu was always on camera making contorted arguments in support of Justice Kpegah’s claim. Lawyer David Annan represented rtd Justice Kpegah at the last hearing and many other examples. By Jove, they are supposed to be professional Lawyers too. Why do they engage in conduct so unbecoming of the profession? Did Justice Kpegah’s Lawyers advise him of the prospects of success of his claim and/or about evidence reasonably obtainable? Is there no regime for Wasted Costs orders against Solicitors/Lawyers who bring cases which have no prospects of success? Is the profession in Ghana bereft of any of any powers? Are the Courts that susceptible to being used as a Propaganda machine?

Already we have seen what appears to be evidence of the Respondents’ wish to win this dispute by procuring or fabricating the existence of facts which if proven, will arm them with what they probably believe would be technical grounds for scuppering this Petition before its time. Alternatively, the Respondents appear to be running defences of a rather propagandist character.

Just as the Nation was waiting with bated breath, for the outcome of the rather expensive count of Pink Sheets, which without the NPP’s plea would have cost the parties a whopping $100,000, the NDC cries foul and causes the counting to cease. It felt like someone was bent on turning the on-going petition into a circus of sorts with some fascinating and dramatic turns and for whose benefit? It was obvious to everyone the NPP was unlikely to have had the capacity to carry out such an enterprise which would have required some military precision or movements of the ilk of the fictional James Bond. In any case, KPMG’s count thus far is rumoured as likely to exonerate the Petitioners and Court Registry.

No doubt, amidst his allegations of criminality, Tsatsu’s oral application for variation of the relevant consent order was therefore boxed into a really bad shape by his rather formidable opponent so much that the Lordships had no other alternative but to reject the application.

The Supreme Court is not without blame for all this, indeed what purpose was served by our Venerable Judges’ refusal of the Petitioners’ earlier request for disclosure of Pink Sheets held by the 1st Respondent? Under no circumstances would a Court under English Jurisdiction have refused disclosure of such highly probative evidence at such a preliminary stage? Ambush Litigation is more a thing of the past. It is an integral part of the Court’s procedures in most types of Civil Litigation for parties to exchange all unprivileged or unprotected documents whether currently held in their custody or in the past and for either side to be provided the opportunity to inspect such documents. In point of fact a party is required to disclose any relevant evidence whether favourable or detrimental. The Supreme Court should never have refused the Petitioner’s request for disclosure of Pink Sheets held in the possession of the 1st Respondent. The decision was flawed and it has inadvertently aided the Respondents in the pranks they have had opportunity to play on everyone. Come to think of it, in what Jurisdiction would a party be permitted to keep such unprivileged and highly probative evidence to themselves whilst suggesting that the other does not have the evidence?

In my opinion, the Respondents were fully aware that such evidence would be detrimental to their case and were seeking by stealth rather than by acceptable methods to prevent their opponent from adducing the evidence. Furthermore it appears to be aimed at lending credence to their accusations of padding and duplication which had dominated all their cross-examination. It sounds like the Respondents planned this as a Central plank of their Defence to the Petition and were now fabricating scenarios on which to hang the Defence.

We have perhaps not seen the last of their mischief.

Needless to say, a politically motivated suit such as this Petition provides very fertile grounds for breeding serious instances of professional misconduct. It is therefore the reason which the Respondents have engaged in needless accusations of bad faith against the Petitioners

Phillip Addison of Counsel is a member of the Prempeh, Akuffo Addo and co chambers of which one of the Petitioners is the head of chambers. Phillip’s affiliation with the NPP, if any, is relatively unknown. He was probably hitherto completely unknown to the Party. I will not be surprised if he is not a member of the NPP.

Tony Lithur on the other hand may have better known associations with the NDC. He is known to have represented the NDC in their electoral petition/suit challenging the 2004 elections. His former wife is the Minister for Gender, Children and Social Protection and Tony Lithur’s business Partner is the current Attorney General. He has everything to gain from a Mahama presidency. Is he a card bearing member of the NDC? Little is known about Quarshie Idun’s political proclivities but if the passion or non-existence thereof that he has exhibited thus far in defending the EC is anything to go by, then you could be pardoned for suspecting he might vote NPP next time irrespective of where his sympathies lay previously. How can a seasoned Lawyer making representations in the recent motion for Tsatsu to cross examine additional witnesses contend that an ‘admission’ of particular facts is not an ‘admission’ just because the Court has yet to make a determination on the matter? He made this statement twice. It is ludicrous.

Tsatsu Tsikata is the most famous of these Lawyers. A Law Lecturer, he was closely linked to the founding father of the NDC at the time the founder was the head of the Military Junta that ruled the Country. He obviously supported a Coup de tat and was obviously a pillar of strength for Government during one of the worst periods of human rights abuse in the Country. Tsatsu was once the Chief executive of the Ghana National Petroleum Company, having been appointed to the post by Chairman Rawlings, formerly under his ideological tutelage. He should be a card bearing member of the NDC. Under Kuffour’s government he was prosecuted for causing financial loss to the Nation and sentenced to prison by one of the nine Judges on the panel for the on-going dispute. He really has an axe to grind. It therefore comes as no surprise that he has already earned himself a reputation for one of the most protracted cross-examinations in Ghana’s Legal History, whether purposeful or otherwise.

In my opinion there is a preponderance of greater motivation on the part of the Respondents’ Lawyers to tell lies in this matter and/or to turn a blind eye to their clients’ dishonesty and/or to fabricate, than for the Petitioners’ representatives. Most importantly I share Kwaku Baako’s view that the Respondents’ representatives either knowingly or recklessly peddled falsehoods against the Court Registry about the alleged increase in the number of boxes of Pink Sheets at the Court Registry. There are many ways to kill a cat indeed.

But I must stress that the perception that Lawyers are professional Liars and that they are there to help you tell a ‘better lie’ is seriously misconceived despite the bad example set by His Excellency’s representatives. There used to be a common belief that because they tell lies, Lawyers don’t shut their eyes when they die. Sounds like a fairly innocuous punishment for one not to be desirous of becoming a Lawyer though, I will be surprised if the Presidency does sleep with their eyes closed given the blatant lies being told by his team. The Presidency should not forget that the Lies are either their own or the Lawyers, none of whom are permitted by Law to lie to the Court so freely.

Lawyers throughout most of the advanced parts of world are subject to some really rigorous regulation and monitoring. Knowingly helping your client to propagate untruths in Court is a serious offence, which if proven, could cost a Lawyer his liberty and practising certificate. The only reason most erring Lawyers escape prosecution is because what they tell their clients is privileged albeit with some exceptions.

However, this does not belie the fact that some lawyers are skilled liars and unscrupulous; they just will help you tell a good lie if the price is right. Furthermore under difficult circumstances even a good lawyer may tell lies. That is why, as a professional person, you do not put yourself in circumstances where you may be tempted to help disseminate untruths. However, if the Lawyer can carry his client with him he may be entitled to limit himself to finding and pursuing some technical reasons as to why the opponent’s case should not succeed, whilst keeping himself within the ethics of his profession.

Juxtaposed against that is the reality that the client usually needs to feel that his Lawyer is passionate about his case and is prepared to do his bidding. Lawyers are not obliged to take on any case at all costs!

These considerations are even more profound for the Judiciary for whom the duty to be unbiased is paramount. Many will recall the case of Gore V Bush which became Bush v Gore. The Judiciary voted according to their political colour. In the end a Neutral Judge who would have made a difference was chased away from the Bench, thus paving the way for a Bush victory. The worry is that the Judiciary at various levels in the Litigation could just not differentiate their political allegiances from their legal opinions and would propound any specious arguments to cloak their political bias. Bush v Gore was an embarrassment for American Jurisprudence but let us not be deceived into following this rather bad example because it comes from the USA. The U.S. is a sound and resilient Country. Ghana may not withstand just one of the tornadoes that have bedevilled the U.S.

Lawyers, including the Judiciary are trained to analyse facts however nebulous or convoluted. They are able to separate the wheat from the chaff when their clients present their version of facts, the paramount considerations being relevance of the facts and credibility of the witnesses. Judges have a higher duty to undertake a similar and even more credible exercise. In all this let’s not be swayed by propagandist evidence, fabrications and insults, they are lies; they are brought by Hoaxers and Imposters. They are meant as opium for the masses not meant for the Court’s consumption. God redeem our homeland Ghana from decorated and pompous liars. This cannot be our destiny.

Kwame Ohene Asare Croydon, U.K.