By Kofi Ata, Cambridge, UK

Sometimes, the actions and omissions of some in the legal profession in Ghana including the Judiciary up to the Supreme Court leave much to be desired. One of such actions, omissions and personalities that have attracted much attention is no mean person than the recently elevated Justice of the Supreme Court (JSC), Justice Yaw Appau and his Judgement Debt Commission Report. Though the report has not been made public, snippets of information put out by the media allude to the fact that the sole Commissioner made adverse findings of fact against Nana Akufo-Addo and Ex-President Kufuor. It is the adverse findings that are the subject of analysis in this article.

I was concerned when Justice Appau appeared before the Parliamentary Appointment Committee during his Supreme Court confirmation hearing to claim that the late Yaa-Na died in a war. As someone who studied the Law of Armed Conflict and the Use of Force, I knew the Supreme Court nominee knew nothing about the law on war to make such claim. Then, the media published extracts from the Judgement Debt Commission report. The adverse findings against Nana Akufo-Addo and Ex-President Kufuor greatly troubled me. They troubled me not because I have any evidential value to suggest that the two have no case to answer.

The right to be heard before judgement is a long established practice in law and principle of justice eight hundred years ago (to be precise, since June 15, 1215) in the Magna Carta and reaffirmed in the UN Universal Declaration of Human Rights in 1948. It is therefore baffling and troubling for the then Justice of the Appeal Court to make adverse findings against the leader of the main opposition party and the Ex-President of the Republic without hearing from them. This is a fundamental right enshrined in international and regional conventions and national legislation including the 1992 Ghanaian Constitution, for which JSC Appau will now adjudicate on. The injustice to and utter contempt for a potential president and the Elderly Statesman is a constitutional breach of their rights and the fact that he is now a member of the apex court of the land are some of the reasons that troubled me most.

The reason given by the Justice that he had all the information required and therefore there was no need for the two to appear before him is simply untenable, particularly in the case of Nana Akufo-Addo since all relevant parties and officials involved in the drill ship sale were invited by the Commission and heard. Indeed, we are told Nana Akufo-Addo willingly offered to appear before the Commission to give his side on the matter but that offer was not taken. The question is, why? Was it because Justice Appau had already made up his mind and found Nana Akufo-Addo guilty as charged?

Another disturbing aspect is the personalisation of the office, the role and the office holder just to narrow them to Nana Akufo-Addo. As Justice of the Appeal Court, he ought to have known that the three are severally or separately legal entities in their rights (the Attorney General’s Department, the Attorney General and Nana Akufo-Addo).

There was also the impression that either the then Attorney General or Nana Akufo-Addo personally failed to appear before the London Court to defend Ghana. I am not suggesting that it was right that Ghana was not represented but that should not be blamed on one individual, especially in Ghana. I started following socio-economic and political issues in Ghana from 2010. The past five years have clearly indicated to me that, the Attorney General’s Department “no show” in court is historical. In fact, it is the department’s culture not to turn up in court and I believe the practice did not start when Nana Akufo-Addo was Attorney Gneral. I became aware from Multimedia News during the strike by staff of the department this week that the problem is financial. That is, the department has no vehicles to convey Attorneys from one court to the other and no money for them to take taxi. When they use their own money to take taxi, it takes decades before then fare is refunded to them. As a result they do not bother despite their dedication and patriotism of some. If these are the reasons and no appearance has been happening in Ghanaian courts for financial reasons how much more could it be blamed on Nana Akufo-Addo for not sending an Attorney from Accra to London to represent Ghana, when the department cannot pay for taxi fares in Accra?

Let’s give Justice Appau the benefit of the doubt that he had all the data and information and therefore did not need to hear from both Nana Akufo-Addo and Ex-President Kufuor in person. What about after he made adverse finding against them? Wouldn’t it have been right and proper to give them the opportunity to respond to the specific adverse findings prior to finalising and presenting his report? In the democratic societies where the rule of law is respected, advance copy of adverse findings by a commission is given to those concerned for their responses before the final report and their responses are reflected in the final report. This is done whether or not those individuals appeared in person or represented by an Attorney before the commission. That is partly why the release of the UK Iraqi Inquiry’s (chaired by Sir John Chilcot) report has been unduly delayed. This is because of the large number of individuals and organisations who appeared before the commission and had to be provided with the relevant sections of the draft report as well as the sensitive nature of some of the documentary evidence to be provided to them.

The failures by Justice Appau now leave me with no option than to speculate that, the Judgement Debt Commission was a ploy by NDC and the government to eliminate the greatest challenge to their continued hold onto political power through foul or fair means. If that was the plan, then they have miscalculated badly as any attempt to rely on the commission’s adverse finding against Nana Akufo-Addo to disqualify him from contesting the 2016 presidential election will backfire on them. At worst, it will make Nana Akufo-Addo more popular and could gain sympathy votes from any such ill conceived legal action. At best, the commission’s finding against Nana Akufo-Addo will be ruled unconstitutional, null and void. I disagree with Dr Arthur Kennedy’s view that Nana Akufo-Addo should not go to court to clear himself of the adverse finding. Failure to do so could taint Nana Akufo-Addo’s character and will remain on record history forever.

Kwaku Baako described some aspects of the adverse finding as “voodoo mathematics”. My view on the adverse findings is that they are constitutionally fraud, legal anathema, ethically bankrupt and the political smoking gun that could haunt Justice Appau for the rest of his legal career. I am not here to defend Ex-President Kufuor and Nana Akufo-Addo. In fact, I am not qualified to do so because the two statesmen are both lawyers. I am also not saying that if there are questions for them to answer they not do so. All I am saying is that, no one should be judged without being heard. By this failure and denial of the right to be heard, Justice Appau has trivialised his Commission’s work and reduced it to political vendetta for which he has been handsomely rewarded through political patronage.

Kofi Ata, Cambridge, UK