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Opinions of Tuesday, 21 October 2008

Columnist: Antwi, William

Tsatsu Tsikata: The Supreme Court's Nightmare!

Today’s Supreme Court’s decision dismissing Mr. Tsatsu Tsikata’s certiorari application without assigning any reasons reacquaints the nation with the disturbing and uncomfortable notion that the highest court of the land is not helping in the image rebuilding project of the judiciary and for that matter our democracy. Also, left outstanding on the court’s calendar is the central issue regarding the immunity of the International Finance Corporation - a subsidiary of the International Monetary Fund that carried out the feasibility study on Valley Farms Co. Ltd. which study helped Mr. Tsikata to sign the guarantee contract with Caisse Francaise. We are at a loss to understand why these important issues have not been settled in an effective and competent manner by our Supreme Court.

We keep asking ourselves how and why these five learned justices of our Supreme Court could not offer reasons for their decision in light of the fact that they have had this important matter for more than two months! Equally troubling is the fact that our Supreme Court appears incapable of asserting itself in sensitive cases of national importance. Also, we do not even know if their decision was unanimous or not.

Be that as it may, are we looking at a justice system that appears to have completely broken down to the point that our justices are even unsure as to what to do to bring certainty to the administration of justice? It is worth recalling here that it is this same court that took more than three years to resolve a simple but important electoral dispute involving the results of the December 7, 2004 presidential elections! Yes, more than three years in a case where the legitimacy of a-four-year-term presidency was at stake. And, here we are again with the same court refusing to offer reasons for such an important and emotionally charged national case and, especially, in a matter that has been pending before them for more than two months. This is not reassuring coming from an august body that is supposed to be the bulwark and engine of our constitutional development. This is simply unacceptable! Something is simply not right here!

Are our justices too embarrassed and/or frightened to accept the painful fact that Justice Abban - a Court of Appeal judge - egregiously abused the rights of Mr. Tsatsu Tsikata? We all know the implication of such an admission because, then, our justices would have to decide whether such abuses rise to level of miscarriage of justice. In the instant matter at bar, concerned Ghanaians are now compelled to enter into the speculation game as to why our learned justices could not offer reasons for their troubling decision in the face of such obvious instances of extreme abuse of a man’s right to a fair trial. For instance, how are our learned justices going to explain away Justice Abban’s rush to judgment in the face of her own ruling on record to the effect that she was going to await the decision of the Supreme Court before handing down her judgment in the substantive criminal case?

In fact, we have our reasons for asking if our five justices are too "embarrassed" to admit that Justice Abban violated Mr. Tsatsu Tsikata’s right to a fair trial with impunity contrary to our constitution. We draw on the full strength of the following issues:

1. How could Justice Abban deprive Mr. Tsatsu Tsikata legal representation on the 18th of June 2008?

2. How did she fail or refuse to give fair notice - which is a cardinal principle of rule of law - to Mr. Tsatsu Tsikata that she was going to overrule herself and that she was no more going to await the ruling of the Supreme Court in the IFC immunity matter, although, she had tacitly admitted to the materiality of that issue in determining the outcome of the substantive case?

3. And that after overruling herself, she was going to hand down her judgment and, if possible, her sentence in the case.

4. How could she have prepared her judgment without a ruling from the Supreme Court on the IFC immunity issue for which she had adjourned proceedings for more than two year?

5. Further, how could she have prepared her judgment without addressing the defense’s motion to adduce fresh evidence - which motion was the subject matter before the court on that fateful 18th of June 2008 day? Does anybody smell prejudice here?


6. Why the element of surprise in these important matters? Are courts supposed to surprise accused persons?

Equally important to this discussion is the notion that our highly learned justices seem to be scared of or frightened about "something". We say this for a reason:

What is so difficult and stressful about these issues that our justices need more than two months to find reasons? In fact, how could they have arrived at their decision without addressing and discussing their reasons for so doing? We do not want to believe that they arrived at their decision before going to think about the reasons to assign to it! It is a fact that it is always difficult finding reasons to support a wrongly decided case or matter. Hence our justices’ reasonable dilemma!

As the highest court of the land, we - minions - are bound to respect and accept our Supreme Court's decisions, rulings and orders. However, bowing to the will of our justices does not mean that we cannot and should not criticize them in an aggressive, fair and honest manner especially in this instant matter where their ruling is not accompanied by reasons. As concerned citizens determined to build for ourselves a system of government devoid of intimidation, personal vendetta, victimization, fear, cronyism, judicial uncertainty etc; we are duty bound to point out to our judges, their shortfalls. This does not mean that we hate them. In fact, we are doing them a favor by constantly reminding them of their oaths of office. Needless to state here that, we would be doing our justice system grave disservice if we keep quiet while an innocent man is being railroaded.

As a matter of emphasis: What is critically important is that the Supreme Court had about two and half months to write a decision supported by reasons on such a important national matter. Therefore, it is surprising that our justices could not grant us the privilege of reading the wisdom behind their decision which reasons would have gone a long way to define their ability to dispense justice in a transparent, honest and fair manner. It is unfortunate that the image of the Supreme Court is taking some heavy pounding for our justices' inability to give reasons for dismissing the application. It has set tongues wagging and conspiracy theorists are having a field day. But why should we blame them?

The truth is that the Supreme Court continues to lose large chunks of its essence and judicial star power for botching important national assignments. With the burden of proof now squarely on our justices, they better come out with very good, cogent reasons for dismissing Mr. Tsikata’s application. Who really wants to see our Supreme Court as one of those tainted and conflicted national institutions like the Police, SFO, CHRAJ, the Presidency, Parliament etc?

It is not over until it is over.

We shall return.

OCTOBER 16, 2008.