By Kofi Ata, Cambridge, UK July 3, 2015

The Ghana Bar Association (GBA) has challenged the recent appointment of two Supreme Court (SC) Justices by seeking the correct interpretation of Article 144(2) and (3). The appellants (Messrs Nene A O Amegatcher, GBA President, Justin Amenuvor, National Secretary and Frank Beecham, immediate past president) are seeking four specified reliefs from the SC (see “GBA, Others pray SC to withdraw Justices Apau and Pwamang”, Ghanaweb July 1, 2015). Having issued the suit which clearly sought to reverse the two appointments by President Mahama, a GBA spokesperson, Mr Tony Forson claimed that the suit was not meant to reverse the appointments (see, “Justices Apau, Pwamang not our Targets – GBA”, Ghanaweb, July 2, 2015). This article is analysis of the suit and a contribution to strengthening constitutional democracy in Ghana.

The four reliefs are as follows:
1. “A declaration that upon true and proper construction of Article 114 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Superior Courts are valid only to the extent that such appointments are made in strict accordance with the advice of the 2nd defendant herein, the Judicial Council”;

2. “A declaration that upon true and proper interpretation of Article 144 (2) and (3) of the 1992 Constitution, a constitutional trust is created in the 2nd defendant herein, the Judicial Council, to make nominations of the person(s) best qualified to serve as Justices of the Superior Courts of Judicature and the 2nd Defendant is required to ensure that such nominations are actually submitted by the President to Parliament for approval after due consultations with the Council of State”;

3. “A declaration that accordingly, upon true and proper construction of the Article 144 clauses (2) and (3) of the 1992 Constitution the Judicial Council of the Republic of Ghana has a constitutional obligation to specifically advise the President of the Republic of Ghana as to which specific person(s) is/are suitable for appointment to serve as Justice(s) of the Superior Courts of Judicature in accordance with which advice the President is mandatorily required to exercise his powers of appointment”; and

4. “A declaration that an appointment or non-appointment by the President of the Republic of Ghana of a Justice of the Superior Court in a manner out of accord with the advice of the Judicial Council is unconstitutional, null, void and of no effect”.

From the above reliefs, especially the fourth, it is abundantly clear that GBA is seeking to overturn the appointment of the two Justices should their reliefs be granted. Yet, Mr Tony Forson had the audacity to say that the Bar’s action is “not retrogressive but prospective” and therefore has no bearing on the appointments. He said and I quote “nowhere in the petition did we say the appointment is null and void”. He maintained and stressed that the reliefs were not targeted at President Mahama. We are not quibbling with the current appointment, we are asking for a declaration by the Supreme Court that any appointment, going forward, which does not conform to, ('on the advice of') as declared by the Supreme Court will be null and void”. (see, “Justice Apau, Pwamang not our Targets – GBA”, Ghanaweb, July 2, 2015).

Is it not pure lies when Mr Forson claimed that, “nowhere in the petition did we say the appointment is null and void”? The questions for GBA and Mr Forson are: what does “unconstitutional, null, void and of no effect” in the last part of relief four mean? Why use “the President” and not “a president”? Who is GBA deceiving, Ghanaians or its members? I have never come across a suit that emanates immediately from a particular action or omission that also challenges the action/omission which is not targeted at the said action. Moreover, there is no word in the reliefs that is for the future. I do appreciate that the Bar uses complex language that can sometimes confuse those of us who are not from the legal fraternity. However, the language used by GBA in the suit is what can be described as plain English for that matter either GBA is being disingenuous or has a hidden agenda.

Though I welcome the action by GBA to seek interpretation of Article 144(2) and (3) and Article 70(2) where the same words “on the advice of” are used. That is, the meaning of these words regarding senior judicial appointments and the heads of constitutional bodies (NCCE, EC and CHRAJ) by the president. In other words, who does the search for suitable candidate/s and whether the advice to the president is binding, etc. And, in the case of three-staged appointment process, what is the role of the Council of State and can the Council of State revise the lists given to the president by the Judicial Council?

However, what is what is disturbing in the GBA suit is the language that reliefs are framed in. In fact, the language is so prescriptive to such an extent that, GBA is directly or indirectly seeking to amend the 1992 Constitution. A role reserved for Parliament and not an unelected, unrepresentative and unaccountable association of special interest who represents first and foremost, the interests of its members. GBA is more or less also dictating the language the Justices of the SC must use should the reliefs be granted.

For the avoidance of any doubt, the prescriptive language of concern include “are valid only to the extent that such appointments are made in strict accordance with the advice of the Judicial Council” and “the Judicial Council is required to ensure that such nominations are actually submitted by the President to Parliament for approval after due consultations with the Council of State”.

Nowhere in Articles 144(2) and (3) and or 70(2) are such language used in the constitution. There is nothing in the same to suggest that these are what the framers of the constitution intended. In other jurisdictions of modern (liberal) democracy, an unelected and unaccountable constitutional body such as the Judicial Council and or the Council of State do not order or compel an Executive President to make such executive decisions. Even if those who claim that the role of the president in making judicial appointments is just a mere formality, what about the role of the Council of State? Could the Council of State in consultation with the President revise the list provided by the Judicial Council? If not, then why did the framers make judicial appointments a three-stage process? Is the role of Council of State also a mere formality? What about if Parliament rejects any of the names provided by the Judicial Council to the president and submitted to Parliament by the president? If that can happen, then, is the language used by GBA unnecessary?

It has since emerged that the Judicial Council in its written advice to the president, recommended in a ranking order that Justice Marful-Sau, Appeals Court, Professor Henrietta Mensah Bonsu, University of Ghana, Justice Yaw Apau and Mr Gabriel Scott Pwamang to be considered for Justices of the SC appointments. However, President Mahama ignored the raking order and opted for the two at the bottom of the order (see, “Mahama may have erred in Supreme Court appointment – Frank Davis” (Ghanaweb July 1, 2015). That is what annoyed the GBA and therefore the suit. Had the first two on the list been appointed GBA would not be insisting that all those on the list ought to have been appointed? This also explains the choice of language used by GBA in the reliefs. It is couched purposely to ensure that not only the Judicial Council has the final say in judicial appointments but also its preferred candidates are appointed.

Why do I make the above allegations against GBA? The current membership of the Judicial Council makes interesting reading. Among others, it has two representatives from the GBA, which at the moment are the current president and the immediate past president and who are also two of the appellants. If that is the case then GBA must and ought to have known that since the Fourth Republic, all senior judicial appointments under Ex-Presidents Rawlings, Kufuor and the late Mills followed the prescription GBA is now seeking to impose on President Mahama and future presidents. GBA cannot claim not to be privy to how judicial appointments under ex-presidents were made because their representatives were part and parcel of the processes. If those appointments did not follow what they are asking for, then, why challenging the status quo now?

I am not suggesting that if the practice in the past was wrong then it should not be corrected. The problem is the wrong approach of seeking to amend the constitution by default through prescriptive language with the sole objective of making the Judicial Council the sole appointing body in a three-stage appointment process. If GBA’s intention was solely to improve constitutional democracy, then it should have simply asked the SC for interpretation and leave the language to be used to the Justices rather than dictate to them.

Finally, the GBA are aware that the Judicial Council has majority of its members from the legal profession (9 out of the current 18, excluding the Attorney General), who are generally conservative by ideology and potentially hostile to NDC, so they can use their majority to appoint Judges and Justices who may be anti NDC. That is why they are seeking to remove the powers of the president and Council of State in judicial appointments. This is particularly dangerous for the SC because it has the risk of packing the highest court of the land with only conservative Justices, which is will be a disaster for constitutional democracy.

In most jurisdictions including the US, appointments to the SC is both political and ideological decision and not merely administrative or formality by the executive president. This ensures that the SC is made of both liberal and conservative Justices through appointments by both Republican and Democratic presidents. The presidential prerogative to appoint their preferred candidates ensures a balance between conservative and liberal justices on the SC. Again, SC decisions are not purely legal but also political and ideological. Therefore, the attempt by GBA to make the Judicial Council the sole appointing authority for senior judges and SC Justices will result in one sided conservative controlled senior judges and SC Justices that will not augur well for Ghana’s constitutional democracy.

There is the perception among some Ghanaians that President Mahama should not be the one to be appointing judges, SC Justices and heads of NCCE, EC and CHRAJ. The GBA suit by its prescriptive language and its timing is part of that agenda, otherwise GBA should have brought this suit during Rawlings’s or Kufuor’s time and or should have left the language of interpretation open for the Justices to determine and not be that prescriptive.

Kofi Ata, Cambridge, UK