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Opinions of Friday, 15 March 2002

Columnist: Asare, Kwaku S.

The Real Issue Facing our Supreme Court Justices

On 20/3/2002, the justices of the Supreme Court (SC) will provide written justifications of their 5 to 4 decision that declared the Fast Track Courts (FTC) to be unconstitutional. The FTC, which was a division of the High Court, was set up by the Chief Justice in accordance with article 139 (3) of the constitution to facilitate the delivery of justice. The FTC, as a general-purpose division of the high court, had jurisdiction in all civil and criminal matters, consistent with article 140 (1) of the constitution.

Ironically, the first FTC was inaugurated at the SC premises in March 2001 and was charged with ensuring the expeditious and effective delivery of justice. To achieve this goal, the FTC was equipped to apply modern methods, based on information technology, to deal with cases. The FTC differed from other divisions of the high court because it was defined with respect to its use of these modern methods and technology rather than the types of cases that it handled (e.g, Tax Courts or Land Courts). In his remarks at the inaugural ceremony, attended by members of the SC, the then acting chief justice Emmanuel Wiredu charged judges sitting on FTC cases “to be firm, resolute and dedicated since the success or failure of the system depended on them.” In light of articles 139 (3) and 140 (1), as well as the participation of the SC justices in the inauguration and subsequent activities of the FTC, it will be very interesting to read the innovative principle or theory that formed the basis of the majority opinion. In particular, the average Ghanaian expects and is entitled to be told the particular provisions or principles of the constitution that were violated by setting up the FTC. It will be unacceptable to assert that the constitution has been violated without being able to point out the exact nature of the violation. Further, whatever reasons the justices come up with must apply not just to the facts of the particular FTC handling the Tsatsu Tsikata case, but must equally apply to all the FTC.

It will be equally interesting to read the dissenting opinion of the 4 justices. Hopefully, this dissent will articulate very clearly why the FTC are constitutional and set forth why the dissenting judges disagree with all the key issues raised by the majority. In light of the importance of this case, it might even be necessary and worthwhile for some, or even all, of the justices to write their separate dissenting (with the minority) or concurring (with the majority) opinions. We have given these justices enormous power and our only way of holding them accountable is by intense scrutiny of their opinions.

While the justification for outlawing the FTC is of academic interest and, perhaps, have some political consequences, there is a narrower question of immense practical significance that the justices must also address. Specifically, the justices must also tell us what we should do with the 63 cases that have been previously adjudicated by the FTC. I can see 4 options available to the SC in this regard: (1) STAY all prior FTC decisions; (2) VACATE all prior FTC decisions; (3) STAY some prior decisions and VACATE others; and (4) do not address this important question at this time. In my opinion, this is the most important question facing the court and the answer to it remains the most well guarded judicial secret in the country.

Before discussing the implications of each of these options, it is important to point out that we may very well get another vote tally which differs from the 5-4 verdict announced on 28/2/2002. That is, the justices may line up separately on how to address the prior FTC decisions. Regarding the 4 who found the FTC to be constitutional, one can reasonably infer that they would all vote to STAY the FTC decisions. Having previously voted that the FTC are legal, it will be nonsensical to then vote that their decisions should be VACATED.

However, some or even all of those who voted to outlaw the FTC may very well vote to STAY the prior FTC decisions (option 1) while others choose to VACATE the decisions (option 2). Nor are such multiple opinions on the same case a rarity. In the celebrated USA case between President George Bush and Albert Gore, the USA SC ruled 7-2 to vacate the Florida SC decision ordering a recount of the controversial votes. But not only did the USA SC stop the recount, it also proceeded to address the question of what should be done. Regarding this remedy, the court ruled 5 - 4 to effectively halt all election-related actions and disputes, a decision that handed Florida and the USA presidency to George W. Bush.

Turning now to the implications of the options facing our justices, a decision to STAY all prior decisions of the FTC will basically imply that the FTC are to be considered illegal as at 2/28/2002 and going forward but their prior decisions must not be disturbed. Can the court do this and, if so, why might it want to do this? The answer to the first question is a resounding YES! Regarding the second question, the SC may invoke the public interest argument by deciding that the cost of disturbing the FTC verdicts far outweighs any real or perceived benefits. This stance is particularly justifiable if the SC concludes that the FTC followed proper due process and their operations did not interfere, infringe or otherwise violated the rights of the affected litigants.

Further, some or all of the justices can and probably will think carefully about the doctrine of equitable estoppel, which is an old theory, that seeks to prevent unreasonable outcomes arising out of a situation that is caused by someone who could have prevented the outcome. Noteworthy, the SC itself gave its blessings to the FTC at the inauguration, heard appeals from the FTC and one of the SC justices is reported to have actually appeared as a defense witness in the Selormey trial. These actions and representations by the justices were enough to induce an assumption of legality by the general public. Having acted on this assumption, the SC must be keenly aware and significantly concerned about the detriment that would be suffered by the public if it subsequently denies that assumption. Even our SC Justices are also accountable for their actions and inactions.

If the majority of justices vote to VACATE all prior FTC decisions (i.e. Option 2), the justices will be basically declaring the FTC to be illegal going forward as well as ab initio (i.e., from the beginning). Such a stance will have no precedence anywhere in the civilized world and, in all likelihood, will plunge the country into judicial chaos. The “slow track” courts will be immediately flooded with mountains of litigation from the parties to the 63 previously adjudicated cases. It will also mean freeing Victor Selormey and Mallam Issa, an action that pales in significance compared to trying to undo and redo civil disputes that have been previously settled.

How will the courts go about undoing and redoing prior civil settlements? The SC would effectively be saying that these criminals were convicted and sentenced by an illegal body, which prima facie is an admission that irreparable damage has been inflicted on these “criminals.” More importantly, the justices will also be indicating that they were active participants in perpetuating this illegality (via their appeals, as witnesses, and by inaugurating this FTC)? Put bluntly, the justices will be admitting that they violated their judicial oath which requires them to “at all times uphold, preserve, protect and defend the constitution and laws of the Republic of Ghana.” In my opinion, this will open the door for article 146 removal proceedings on grounds of incompetence and misbehavior. Unless there is a very compelling reason to choose this option, I fully expect the court to reject this option. But in the event that the court decides to surprise us again, it will do us a favor by giving us a carefully crafted and a comprehensive plan for undoing and redoing what the FTC have so carefully done in the last year.

A third option available to the court will be to STAY some of the decisions and VACATE others. While this is a theoretical possibility, it is very hard for me to immediately see the justification for such an outcome. The only remotely justifiable basis for this option will be to argue that the FTC was initially set up to deal with a selected number of civil cases involving investment, election petitions, specified commercial and industrial cases, prerogative writs, as well as human rights and revenue cases. Thus, on the weak theory that the FTC did not have jurisdiction to hear criminal cases, the SC can VACATE the criminal decisions while STAYING the civil decisions. I must emphasize that such reasoning will be grasping at straws and a manifestation of a court that allows form to override substance. Further, the SC will be confusing zany administrative matters with important constitutional questions. Setting up divisions of the courts are mere administrative matters that are at the discretion of the chief justice to facilitate the administration of justice. In light of the clarity of article 140 (1), I dare say that one must engage in reckless logic to conclude that a division of the high court, presided by some of the most experienced judges in the country, lacks criminal jurisdiction.

Finally, the SC may decide not to address the status of the 63 cases at this time. Choosing this option will keep the country in her current state of judicial uncertainty. Nobody will know what to do with the convicted criminals and the parties to the 61 decided civil cases would have to expend extra effort and resources to figure out the exact legal status of their cases. In other words, we would have learnt nothing from the much-awaited and talked-about 3/20/2002 opinion other than the innovative theory that the 5 justices applied in ruling the FTC to be unconstitutional. It would also mean that this SC would have written itself a one-way ticket to the judicial hall of shame. The justices will come across as incompetent, lazy, uncaring, negligent and perhaps not deserving of sitting on the SC. In light of the uncertainty and implications of this do-nothing option, I seriously doubt that Chief Justice Wiredu will allow his colleagues to get away with not addressing the status of the 63 cases. It is the only issue that really matters and heaven forbids that March 20 comes upon us without an answer to that question. The justices can take a cue from the USA SC, which ruled not only on the constitutionality of counting votes without a uniform standard but also how to proceed once the counting was declared illegal.

Now comes the most difficult and fun part of writing an article like this one, which is, predicting how the SC will decide. Many social and legal commentators have not even seriously commented on the options before the SC let alone predict how the justices will decide the matter. Predicting how the SC will decide any matter is a tricky issue and is even trickier here because of the stakes involved. But those who know me will readily testify that I am not one to shy away from a prediction. And, so do I predict that the SC will vote 5 to 4 to go with option 1, which is to STAY all the FTC decisions. I also predict that Justice Bamford Addo, who voted to outlaw the FTC, will join the 4 initial dissenters to STAY the prior decisions. Should the SC decides as I have predicted, it would have confirmed what I have been saying since it announced the 5 to 4 verdict that this is all much to do about nothing! But, before you go betting the family cocoa farm on this prediction, let me caution you that I also predicted the SC will dismiss the Tsatsu Tsikata FTC constitutionality writ as frivolous. Insha Allah!

In inaugurating the FTC in March 2001, Justice Wiredu advised the FTC judges to “bear in mind that society will forever blame you [the FTC Judges] if this experiment to expeditiously try cases fails.” My only words to the 9 justices are that posterity will never forgive them if they plunge the country into judicial anarchy. May God give them abundant wisdom, courage and righteousness in their deliberations! If any of them have any doubts, he or she must reread the judicial oath.