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Opinions of Wednesday, 26 November 2008

Columnist: Dela, Bishop

Who Is Manipulating Ghana’s Supreme Court?

We, cowards of Ghana, continue to perpetuate our most cherished “general mediocrity” in the country by creating little gods out of our political leadership and officials of institutions that are established to ensure that the rule of law prevails in our nation. I have listened to lawyers and seasoned journalists on radio, who, in furtherance of this “general mediocrity,” talk as if the justices of our Supreme Court are semi-gods, whose decisions must not be criticized at all. I listen to these remarks, and I feel like vomiting. This is why we fail to scrutinize decisions that come from our Supreme Court, CHRAJ, SFO, etc. Decisions from these institutions require the most serious scrutiny by any civilized society because the only realistic check on these institutions is the reaction of the public. In Ghana, we have failed to hold these institutions to any high standards because of our acceptance of mediocrity as the order of the day. Consequently, we are pretending that our justices are not mortal beings, who are opened for errors, and vulnerable for manipulation by political authorities.

In Ghana, the perception among many is that our courts are not independent. Most people believe that our judiciary is manipulated by our political leadership. The view of this writer is that either it is true that the judiciary is being manipulated by our political leadership, or, although not being directly influenced, most of our judges nevertheless make decisions to please our political leadership. There are too many instances of the judiciary’s bias in favor of the government since the assumption of power by the NPP. Most of us would not accept that the judiciary (our judges) is fair and independent only because the Chief Justice has said so recently. We have brains to analyze the decisions that come from our courts, and we would determine the fairness or otherwise of the judiciary based on their decisions but not on comments made by the Chief Justice or anyone from the judiciary. Our judiciary’s partiality in favor of the NPP government has largely been exposed by the entire history of the Tsatsu Tsikata case. Some of us believe that although Tsatsu Tsikata has a solid case that would go in his favor in any civilized democracy, until NPP is out of power, Tsatsu will never get justice from our courts.

Why do I think Tsatsu will not get justice from our courts, including the Supreme Court, unless NPP is out of power? The answer is very simple. I will not even delve into the many bias decisions the courts have made against Tsatsu from the beginning of his case until his incarceration recently. I will help you with just one little (simple) analysis of the recent ruling of the Supreme Court that denied Tsatsu’s application to quash certain decisions, including the delivering of judgment and subsequent sentencing of him by Mrs. Justice Henrietta Abban. The Supreme Court’s reasoning on the main issue in that application was so outrageous that one would think the explanation was not written by learned justices. What could have been the reason for this? Now, take your time and reason along with me as I show you how outrageous the Supreme Court has reasoned on that issue.

The main issue in Tsatsu’s application was that it was arbitrary and capricious on the part of Mrs. Henrietta Abban to render judgment in his case on June 18, 2008 when the judge had earlier, on October 27, 2006, decided and placed on the records that she would not deliver her judgment until the Supreme Court ruled on an appeal made by Tsatsu to compel a material witness to testify in the trial court. In that decision of the trial judge, she intimated that “to avoid mistrial or a miscarriage of justice” she was adjourning to await the outcome of the appeal in respect of the International Finance Corporation (IFC) being called as a witness for the defence. THERE ARE TWO SIMPLE POINTS I WANT READERS TO PICK FROM HERE. First, readers must understand that all that Tsatsu meant was that it was a surprise to him that Mrs. Henrietta Abban had decided to deliver her judgment on June 18th. And, he is saying that it was wrong for the judge to “surprise” him in a criminal trial. This is what he had asked the Supreme Court to agree on and quash the judgment. The second point I want readers to note is that by everything Mrs. Henrietta Abban had said in that October 27 decision, she had decided that the outcome of the appeal at the Supreme Court was very vital for the determination of the case before her. So, if she did not wait for the outcome of that appeal and she ruled, there could be mistrial or miscarriage of justice, which she would not want.

On the second point, it should be clear to everyone that Mrs. Henrietta Abban must change her mind and deliver her judgment before the outcome of the appeal in the Supreme Court only if she believed that the outcome was no longer material to the determination of her case. Because of what she had said earlier, which she was reported to have re-affirmed on 3 subsequent times, allowing adjournments to await the outcome of the appeal at the Supreme Court, nobody would reasonably think that she would change her mind on June 18 and deliver her judgment unless she had given notice earlier of the change of mind. Because Tsatsu was not in Mrs. Henrietta Abban’s mind, Tsatsu would not reasonably know that the judge would change her mind. I DON’T THINK THIS WOULD BE TOO DIFFICULT FOR BASIC SCHOOL PUPILS TO UNDERSTAND. Why then did our Supreme Court justices fail to understand this?

Anyway, the main thrust of Tsatsu’s application is the arbitrary and capricious (surprise) action of Mrs. Henrietta Abban. The fact that the Supreme Court has discussed this issue extensively in its judgment means that the court recognizes that a defendant in criminal trial must not have any surprises in the trial. In fact, there must not even be surprises from prosecutors. The only issue left for our learned justices of the Supreme Court to determine was whether or not it was indeed “a surprise” for Tsatsu that Mrs. Henrietta Abban had delivered her judgment on June 18th when she had earlier said she would not deliver judgment until the appeal at the Supreme Court was determined. SO, HOW DID OUR LEARNED JUSTICES ANSWER THIS QUESTION? In their written decision, the Supreme Court justices of Ghana wrote that Tsatsu “ought reasonably to have anticipated the possibility of the judge declining to grant any further adjournment.” WOW! Did our Supreme Court justices reasoned like that? Tsatsu had told them that the trial judge had not made any remarks that would suggest to anyone at all that she would change her earlier position. Indeed, since the trial judge had made the decision to avoid mistrial or miscarriage of justice by waiting until the outcome of the Supreme Court appeal before she delivered her judgment, she had granted 3 subsequent adjournments on that basis. How then would anyone think that the judge would not grant further adjournments to await the outcome of the appeal? BUT OUR SUPREME COURT JUSTICES, IN FINDING REASONS TO DISMISS TSATSU’S APPLICATION TO QUASH MRS. HENRIETTA ABBAN’S JUDGMENT, SUGGESTED THAT TSATSU OUGHT TO HAVE GONE INTO MRS. HENRIETTA ABBAN’S HEAD TO KNOW THAT SHE COULD HAVE CHANGED HER MIND. Isn’t this very outrageous? Here, our Supreme Court has agreed with Tsatsu that the trial judge had not informed him about the change of mind. Except that the Court also reasoned that Tsatsu should have known that the judge could have changed her mind anytime. IN EFFECT, OUR SUPREME COURT RULED THAT TSATSU SHOULD HAVE BEEN EXPECTING SURPRISES FROM THE JUDGE ANYTIME. Jesus Christ! This is our Supreme Court.

I would, generally, have wanted to stop here, but before I go, I want to bring to your attention a big contradiction in the minds of our Supreme Court justices. When they wrote that Tsatsu “ought reasonably to have anticipated the possibility of the judge declining to grant further adjournment,” what they implied was that there was no clear notice anywhere for Tsatsu to know that the judge would change her mind. However, Tsatsu should have reasonably known that the judge could change her mind. BUT, THE SAME JUSTICES also wrote elsewhere in the same decision that “it is clear from the records (particularly the Applicant’s original affidavit and his supplementary affidavit) that June 18, 2008 was a date set for the delivery of judgment.” TSATSU DENIES ANY SUCH INDICATION IN ANY OF HIS AFFIDAVITS. But, fellow Ghanaians, just think about what our Supreme Court justices are saying for a moment. If Tsatsu had indicated in his affidavits that June 18, 2008 was set for judgment, why did the Supreme Court justices not say Tsatsu knew that judgment was coming on that day but they rather said he “ought to have anticipated the possibility” that judgment would be delivered? THESE ARE THE JUSTICES THAT ARE DECIDING CASES IN OUR HIGHEST COURT. Something must be wrong.

I will pause here while we continue to promote our “general mediocrity” in Ghana.

Dela BISHOP dela@bishop.com

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