Tsikata’s Supreme Political Verdict

For whatever reasons that Mr. Tsatsu Tsikata decided to play a role as lead counsel for the NDC in the recent Election Petition trial (EPT), one would have thought that he would be content with victory for his client. But, whereas even the losers in the trial have decided to quietly lick their wounds, even forgo a review of the Supreme Court (SC) decision, Mr. Tsikata has decided he hasn’t quite had enough yet. In the process, he is fast exposing his real motives for being part of the EPT.
In recent remarks on TV3’s Hot Issues (Saturday, Aug. 31, 2013), a talk show hosted by Mr. Kwesi Pratt, Mr. Tsikata made so many tasteless, ungraceful, even disparaging, claims that cannot be allowed to go unanswered. But, first, let me make two opening remarks. While I concede that I’m not as old or anywhere nearly as successful as Mr. Tsikata, I believe the youth of Ghana must begin to speak truth to power and to intellectual sophistry. Second, while I wasn’t convinced by Mr. Tsikata’s sophistic (not sophisticated) arguments, I also thought it would take more than the case Lawyer Addison made to have the wishes of the petitioners granted.
CLAIM 1- JUSTICE ANIM-YEBOAH IS BIASED AGAINST THE NDC & TSIKATA:
Quite clearly, Mr. Tsikata saw the trial as payback to anyone who so much as remotely played a role in jailing him for causing financial loss to the state. Besides attacking Justice Anim-Yeboah for allegedly showing bias against the NDC's cause, he also attacked Gloria Akufo for failing, as a former student of his, to take her studies seriously and therefore lacking proper understanding of the law.
Tsikata’s charge against his former student includes her alleged failure to understand his reference to “retroactive penalisation” during the EPT and “retroactive legislation” during his own trial for causing financial loss to the state. As deputy Attorney-General, it was Ms. Akufo who signed the charge sheet on the latter trial. But, in this interview with Mr. Pratt, Mr. Tsikata didn’t appear to have taken his own lesson notes seriously enough.
Lawyers, we’re told, are taught to disagree with the decisions of judges, if they feel like it, but to do so in a manner that doesn’t impugn the integrity of the justices or that of the court. Yet, by his own accusations, Mr. Tsikata is not only impugning the person of Justice Anim-Yeboah, but also opening the floodgates for unnecessary commentary on perceived political biases of the other justices, including all those who also voted against all six of the petitioners’ claims.
Incidentally, Justice Anim-Yeboah voted along with everyone else on the panel to dismiss three of the petitioners’ claims, which together contained the largest number of votes in contention. So, how can Mr. Tsikata single out Justice Anim-Yeboah for showing open bias to the NDC’s cause unless he has an axe to grind? Are we to understand by Mr. Tsikata’s claims that what we heard on Thursday, August 29, was a Supreme Political Verdict instead of a Supreme Legal Verdict?
CLAIM 2- I'M BETTER THAN PETITIONERS' COUNSEL
Referring to a response by counsel for petitioners on his arguments, Mr. Tsikata also claimed that "quite frankly I have a better grasp on these legal matters". He based his claim on two points. One is that nearly all the members of the petitioners’ counsel were his students. Mr. Tsikata even spoke of them as his students in the present tense, as if to suggest that he still sees them as his students rather than as colleague lawyers. The other is that he has been teaching law for over 40 years.
Besides his shameless boastfulness, Mr. Tsikata’s thinking here is, “quite frankly”, offensively illogical, even anti-academic. That an opponent counsel was once your student, and you've been studying and teaching law for over 40 years, doesn't necessarily make you any more knowledgeable. In fact, in the same interview, Mr. Tsikata was caught off guard when he was asked to explain the difference between "criminal contempt" and "civil contempt".
He did a poor job of the question, and, realising he had fudged his response, quickly added with jest that that's what he could remember. But I've heard much younger lawyers give far more superior answers to the same question. Mr. Tsikata must know that he is not the only Ghanaian who had a first class at Legon and subsequently made it to Oxford or some other world class or Ivy League school. These days, that's a well-trodden path for many young Ghanaians.
CLAIM 3- RETROACTIVE PENALISATION:
From all the foregone, it's hardly surprising that Mr. Tsikata would smuggle into his arguments against the petition the notion of “retroactive penalisation”, on which same principle he had earlier sought to extricate himself, albeit unsuccessfully, from the clutches of the law on causing financial loss to the state. But there is a problem here. The two situations are far from being similar.
In the case of the EPT, Gloria Akufo was right that there is no such thing as “retroactive penalisation” in cancelling votes because the law upon which the petitioners were praying the court to make the annulment already existed at the time of the elections. That most voters were ignorant of the law, as most of us are of many laws governing public conduct, is quite beside the point. Indeed, while intent affects the weight of a judgement, it's a basic principle of law that ignorance is no excuse.
Upon request by Justice Atuguba, Mr. Tsikata attempted an explanation of his use of the term. It became evident that his whole point was that voters cannot be punished for the failure of electoral officers to perform a public duty, such as signing the pink sheets. If that's the case being made, and it's hardly a sound one, then what Mr. Tsikata actually meant to say was VICARIOUS PENALISATION.
The question is: how did the master of language, according to Nana Ato Dadzie, get his phraseology wrong? One answer is to suggest that Mr. Tsikata is, in spite of himself, equally linguistically challenged. Another, and a more plausible, answer is that, ever embittered over his supposedly wrongful imprisonment for causing financial loss to the state, the man wanted to prove a point by using the same strategy to win the EPT, as if doing so somehow also proved his innocence in the matter of causing financial loss to the state.
CLAIM 4- IFC SUBPOENA COULD HAVE SAVED TSIKATA FROM GOING TO JAIL
In all his public comments about his trial so far, Mr. Tsikata never addresses the following facts: that as Chief Executive of the Ghana National Petroleum Corporation (GNPC), he got GNPC to guarantee a loan from Société Général for a private firm, without a mandate to so commit the state, and that the private firm defaulted, thereby compelling the Ghanaian state as the owner of GNPC to assume the debt obligations of the private firm.
Mr. Tsikata’s claim that officials of the International Finance Corporation (IFC) had positively sanctioned the commercial viability of the private firm’s operation is quite beside the point, as is his now public battle with Justice Anim-Yeboah on whether IFC officials enjoy similar immunity as do IMF officials. On the latter point, Mr. Tsikata is right, but only to the extent that it would have been more appropriate for Justice Anim-Yeboah to cite the IFC/World Bank’s Articles of Agreement.
The IFC is a member of the World Bank Group, not of the IMF. Nevertheless, the effect of doing so would have been the same. Officials of both Bretton Woods institutions, as members of the UN system, derive their immunity from the 1946 UN Convention on Privileges and Immunities. Such immunity is spelt out in articles of agreement that international organisations, including each of the five members of the World Bank Group, sign with the countries they deal with.
Still, whichever way you look at it, the entire point is moot, merely a technical lazy hair-splitting, the kind that Mr. Tsikata, as we saw in the EPT, likes to revel in “for whatever it is worth”. Whatever a subpoenaed IFC official would have said about the commercial viability of the project would not have eliminated the above-stated facts, unless, in addition, Mr. Tsikata also successfully proved his much more relevant claim on retroactive legislation.
Incidentally, the latter is not what Mr. Tsikata seems to be quarrelling with Justice Anim-Yeboah about. Moreover, there is something cynically depraved about arguing that one has, in fact, caused the state to lose millions of dollars, but shouldn’t be punished because at the time the offence was committed, there was no law prescribing appropriate sanctions. If our public officials thus use their world class education to exploit weaknesses in the law, this country will be in serious trouble.
CONCLUSION- MY OWN CLAIMS:
While the reasons underpinning the SC verdict are yet to be made public, one is almost certain that the claim about “retroactive penalisation” failed to convince. Mr. Tsikata probably knew that the term was a wrong turn of phrase in the particular circumstance of the EPT, but it was his rhetorical device to highlight by association what he thinks was an injustice done him in his own conviction.

After his trial had travelled all the way up to the SC and ended in a SC review that sent him to jail, Mr. Tsikata may feel that he has very limited options in using a retrial to prove his innocence. A review of the SC review, for example, is most unlikely. Thus, the true value of “retroactive penalisation” as used in the EPT has to be judged not by its contribution to the respondents’ case, but by its “propaganda value” for Mr. Tsikata’s efforts at self-rehabilitation.
Even so, Mr. Tsikata can seek any legitimate means, including propaganda, to clear his good name without all these rather bathetic post-judgement attacks on Justice Anim-Yeboah. “Quite frankly”, that’s in Contempt of Fairness and Decency.

P. K. Henderson [hendersonpka@gmail.com].