You are here: HomeWallOpinionsArticles2013 09 03Article 284269

Opinions of Tuesday, 3 September 2013

Columnist: Akwah, Nana

When A Supreme Court Judgment Is At Odds With

For Instance - When A Supreme Court Judgment Is At Odds With The People's Sense Of Justice

I will begin this article with an understanding all is not well with the verdict that was issued forth from the 2012 election petition case. In one instance a Justice gives resounding verdict on an opinion and at the same time holding a conflicting and contradictory opinion. A very weird situation to deal with isn’t it!

The case of the 2012 Election Petition has brought sharply into focus for many Ghanaians, and other people around the world, that there can be many shortcomings in legal proceedings and processes. Majority of Ghanaians feel that a considerable injustice has occurred in the "Petition" case and they feel powerless to correct, or even influence, the situation.

I have no way of knowing whether 2012 Election Petition is worth outright dismissal or not, considering the fact that some haziness seems to be present in the summary judgment.

Because of this I am concerned that the legal process does not appear to have been fair or just. And I am equally concerned that similar injustices are occurring here in Ghana, despite the belief of many Ghanaians that our system is less unfair or unjust. This belief also seems to have permeated our political, governmental systems and our media.

Going forward there is the need to digest the summary judgment and proceed to find out or ascertain “when a Supreme Court judgment is at odds with the people's sense of justice”.

In doing so I will try to analyze without been bias by proceeding to ask, “What Is a Miscarriage of Justice?”

A miscarriage of justice can be defined in several different ways.

Most commonly, it refers to the conviction of a person, in a court of law, for a crime of which he or she is later proven innocent. A miscarriage of justice can also apply in the reverse manner, that of a guilty person being set free when there is overwhelming evidence, or later proof, that he or she was actually guilty of the crime of which they were accused.

The phrase is not solely restricted to crimes against persons or property, for it can also apply to civil cases where punishment consists largely of financial compensation. In short, a miscarriage of justice is any situation where an individual is somehow incarcerated, executed, or punished due to the error of the legal system.

A portion of the 1st Petitioner response must be a line of measure here.

“As I (Nana Addo - insertion mine) said earlier, whilst I disagree with the Court’s decision, I accept it. I accept that what the Court says brings finality to the election dispute. We shall not be asking for a review of the verdict so we can all move on in the interest of our nation. Everything in my bones, in my upbringing and in what I have done with my life thus far makes it imperative that I accept a decision made by the highest court of the land, however much I dislike or disagree with it.

I am saddened by the verdict and I know that many of our supporters are saddened too. However, for the sake and love of our country, we must embark on a path that builds, rather than destroys, to deal with our disappointment.

I appeal to all members and supporters of our party, the NPP in particular to accept the verdict of the court. Even in our disappointment we can take pride in the way we have conducted ourselves. Even in our disappointment we can take pride that the NPP has again led the way in deepening Ghana’s democracy. To quote one of the Supreme court judges, “After this case, elections in Ghana will not be the same.” In other words, we might not have been given the ruling we sought, but thanks to our efforts, we can hopefully look forward to an improved electoral process in our country”.

Miscarriages of justice are frighteningly common. Since the 1990s — when the science of identifying DNA evidence was perfected to an acceptable degree of reliability — many convicted murderers and rapists have been declared innocent of the crimes for which they were convicted.

The use of DNA evidence has become a major argument for those who oppose the death penalty. In many cases, blood or fluid evidence which originally led to a proclamation of guilt prior to the creation of DNA science can now be used to prove an individual’s innocence.

Miscarriages of justice can come about for reasons other than tainted evidence or judicial mistakes. Under some scenarios, police have coerced confessions from innocent parties, or withheld critical evidence from defense attorneys.

Miscarriages of justice have also taken place due to bias - preconceived opinions of guilt - due to race, ethnicity, color, lifestyle, or even appearance. In totalitarian countries, a lot of individuals have been convicted in show trials, with confessions of guilt arising via the use of torture.

In this latter instance, the “conviction” is frequently used as a tool to imprison or kill political dissidents or to paint and present political opponents in a bad light.

Those who are the victims of a miscarriage of justice may serve decades in prison or even be executed. Some countries, most notably the United Kingdom, the Netherlands, Norway, and Spain, provide compensation to those who have been improperly incarcerated.

Such payments, pardons, or acquittals are of small assistance to those who have spent many years behind bars, and are of even less value to those who are acquitted posthumously. The United States for instance, pays compensation to the wrongly convicted on a case-by-case basis.

The greatest hindrance to overturning a wrongful conviction is extremely difficult, as courts and judges usually display a marked tendency to avoid the impression that a judicial system is imperfect.

Famous examples of miscarriages of justice include Joan of Arc, who was accused of heresy in 1431 and posthumously acquitted in 1456. She was canonized by the Catholic Church in 1920.

In America, in 1954, Dr. Sam Sheppard was accused and convicted of killing his wife. Sheppard served ten years in prison before the United States Supreme Court permitted the new trial that led to his acquittal. His case went on to become the inspiration for the long-running TV series, and feature film, known as ‘The Fugitive’. Most people may not know the letter of the law and its many technicalities but people have a sense of justice to tell them that a Court judgment is fair or unjust. The nine Supreme Court (SC) Justices who granted that highly debatable EP (Election Petition) verdict, which have allowed President John Dramani Mahama (JDM), the NDC and its supporters to retain the verdict of the 2012 elections, now find themselves at odds with the sense of justice of many Ghanaians.

Headed by SC Justice William Atuguba, the same nine Justices are going to walk with difficulty by a track record of voting in favor of JDM for a very long time. The perceived rush to pronounce judgment after a long wait is an indicative that creates doubt in many minds. By the action of the court many commentators are said to be conjecturing that all may not have been agreeably amongst the Justices.

Some discussants are of the opinion that the verdict to uphold John Dramani Mahama as validly elected is highly disputable if all the infractions presented are said to be of no significant importance by some Justices.

Most claims that from all indication the Supreme Court by this judgment seeks to undermine the Constitution, after the granting of its judgment. The impression one gathers is that, it seems to have led many Ghanaians to suspect a collusion to allow John Dramani Mahama and the NDC to escape from the case hounding them when one surf the internet.

All over social media, tri-media polls and discussions — public opinion against the ‘JDM 9' of the SC has been overwhelming. Many were convinced that the dissenting votes and legal opinions of Justices Julius Ansah, Rose Constance Owusu and Anin Yeboah provided the right and just decision and that the ‘JDM 9' should not have pronounced the judgment in favor of John Mahama without a recourse to re-run after hearing arguments from the Petitioners.

If a Constitutional Crisis happens because of this row, it should not be blamed on an administration that is only following its mandate to hold on to the declared verdict of the EC.

It is also just and appropriate for the "petitioners" to bring to the bar of justice those who were responsible for the climate of impunity that characterized the 2012 elections regime (Electoral Commission).

Some commentators are of the view that rather, it should be blamed on those who promulgate decisions that shock a people’s sense of justice.

The concept of a Supreme Court as the final arbiter of the law thrives when the High Court is largely perceived as fair, prudent, impartial and just in their decisions. They are on dangerous ground when public opinion sees them as otherwise. A colleague had the right words for it when he said that many people would accept poverty but not injustice.

Our recent past should remind us that it was the people’s sense of justice that triggered the 1979 People Power Revolution.

Then also is the first major injustice that jolted the nation’s conscience and consciousness -the brutal murder of Supreme Court Justices of June 30, 1982.

The ultimate injustice was the cheating operation of the 1992 Presidential Election that was undertaken by the P/NDC regime to rob popularly perceived winner, of victory, that led to the writing of the "Stolen Verdict".

It was again the people’s sense of justice that led to the NDC seeking redress in 2005 about the 2004 Presidential Election - triggered by Honorable Rojo Mettle-Nunoo and allies, of late president John Evans Fifi Atta Mills who were thrown out of Court for lack timing and sufficient evidence. They were largely perceived as from the fallout from an unmerited suit seeking to compel the EC to perform a certain function.?

To conclude, in 16th century England, under the reign of King Henry VIII, the monarchy had more powers than what modern Supreme Court has. Henry VIII was not only the king - he was also the self-proclaimed Head of the Church of England following the breakaway from the Papacy over the Anne Boleyn issue. In 1534, Henry VIII demanded that all his subjects must make an oath of allegiance to the controversial Succession Act.

Sir Thomas More, High Chancellor of Henry VIII, was a devout Catholic and rather than get into an issue with his king, Sir Thomas More opted to resign his office. However, he was too eminent not to glow like a beacon in the darkened realm of Henry VIII.

Sir Thomas More was a humble, loyal servant of the king but God’s first. For refusing to take the oath of allegiance, Sir Thomas More was convicted in a kangaroo court and beheaded.

Most of the English people and other Europeans saw Sir Thomas More, as a martyr and not a criminal. Today, Sir Thomas More is a canonized saint of the Catholic Church while King Henry VIII is largely perceived in history as a tyrant and an insatiable fornicator.

At the Ghana's premier University Law School, where some of the ‘JDM 9' had studied, I believe the example of Sir Thomas More is a favorite study topic when seeking to reinforce the virtues that make men holy and to expose the corrupt and evil acts that ensure a man’s place in hell.

Man may be able to subvert justice in the interim but God's justice cannot be subverted by man because God is the ultimate Justice.

Like the Tudor monarchy Institution of 16th century England and our Courts today, many commentators think the sc cannot act in total disregard of the people’s sense of justice.

Wrong honest mistakes the people can live with but not perceived willful injustice or the perceived obstruction of justice.

Oh yes! It is a fact of life that, most people may not know the letter of the law and its many technicalities but people have a sense of justice to tell them that a Court judgment is fair or unjust.

All these are true and so, because of varied individual perceptions.