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Opinions of Saturday, 3 August 2013

Columnist: Ata, Kofi

Whose justice will the Justices’ justice Be

, NDC or NPP?

By Kofi Ata, Cambridge, UK

Ghanaians all over the world are anxiously hopeful the judgement of the nine Supreme Court Justices on the election petition will be delivered by the end of August 2013. Throughout the various stages of the petition, justice became the common parlance, especially, among the competing parties. In fact, what is now known as post petition peace in Ghana has been contextualised and defined in the prism of justice delivery. However, listening to both sides of the political divide, I get the impression that, though peace has the same meaning to them, justice on the other hand, has different and opposite meanings for both. In other words, when members, supporters and sympathisers of NDC talk about justice being served by the Justices, what they really mean is, a rejection of the petition. Equally, when NPP members, supporters and sympathiser say justice must be done, what they also mean is for the petition to be upheld. So whose justice will the nine Justices deliver? In this article, I will attempt to look at the concept of justice, relate it to the expectations of NDC and NPP and consider the options available to the Justices in dispensing justice to both parties to the petition.

Justice is a concept that is not easy to define because it’s a living concept that grows and develops over time and in space. Justice could be compared to beauty. It is in the eye of the beholder. Another problem with the concept is whether one is referring to natural or social justice, rights or interests bearing justice, needs or integrative based justice, equality or equity form of justice, output or process led justice, etc. It is therefore not surprising that, NDC and NPP mean two different things when both talk about the nine Justices delivering justice in the ongoing presidential petition.

Without boring readers with definitions, I will attempt to simplify a few as reference point for the discussion. According to Pluto, individually, justice is 'human virtue' that makes a person self-consistent and good whilst socially, justice is social consciousness that makes society internally harmonious and good. Aristotle defined the concept in two parts, general and particular justice. He explained the former as universal justice that can only exist in a perfect society and the particular as where punishment is given out for a specific crime or act of injustice. Kant also referred to justice as virtue, a trait of individuals grounded in social justice. Curzon’s Dictionary of Law provides four definitions including, “the basic value underlying a system of law”; “the virtue which results in each person receiving his/her due; and “the impartial resolution of disputes arising from conflicting claims”. The question is, is there one justice for all or are there different forms of justice for different groups?

When Thomas Jefferson wrote in the American Declaration of Independence, “We hold these truths to be self-evident, that all men (and women) are created equal, that they are endowed by their Creator with certain unalienable Rights”, did he really mean “all men and women? Historically, the reality is that his self-evident truths about inalienable rights have not seemed evident to some, if not most of the human race. Civilised societies have cherished ideals of justice and rights, but they have also failed in the realisation those ideals in terms of both individual and collective justice. Instead, the reality of justice for the rich and powerful or Blacks and Whites in society is very different as encapsulated in Martin Luther King’s August 28, 1963 “I have a Dream” speech. Though, today, there is an African American in the White House, the recent Trayvon Martin murder and the subsequent acquittal of Zimmerman is typifies example of how justice manifests itself for different people even in the one of most advanced justice systems in the world.

In Ghana, politicians and senior civil servants steal millions of public funds and nothing happens to them but the poor steals plantain from a farm and s/he is jailed for years. NDC foot soldiers vandalise public and private properties and nothing happens to them but an NPP MP is arrested, charged and prosecuted for genocide and treason when his crime was incitement to ethnic hatred. Is that justice, let alone for all?

Despite the differences between NDC and NPP on their perceptions of justice, both make justice a precondition for peace and in tune with the common saying that, “there is no peace without justice”. Interestingly, in (armed) conflict societies, justice is a prerequisite for post conflict peace building. Here again, there is no single concept of justice but varied, such as retributive and restorative justice. Retributive justice comes in two forms (the victors’ justice as in Rwanda where only perpetrators from the defeated side are punished and the victims’ justice, where perpetrators from both sides irrespective of who won or was defeated are punished). Human Rights practitioners consider the former as injustice and the latter the true justice. On the other hand, restorative justice grants amnesty to all perpetrators of human rights abuses in return for confessions with the possibility of reparation or restitution for victims by the state through Truth and Reconciliation Commissions as was in South Africa and Ghana. This has also been criticised by human rights activists as being soft on the perpetrators. So is there true, perfect or absolute justice?

From the above, when we hear people say "there is no justice" they are right because there are different expectations of justice and those expectations depend on where one is in the scale of things in terms of power, interests, conflicts, needs, equality, equity, opportunity, etc. Absolute or perfect justice is unattainable because that would require restoring someone or a situation to the exact condition prior to the occurrence of the injustice. For example, it means that, if a worker loses an arm in an accident at work due to the negligence of the employer, the employer must restore the worker’s arm to pre-accident state. That is impossible because justice requires that the worker is adequately compensated by the employer and possible prosecution for negligence under Health and Safety Act.

Notwithstanding the differences of opinion on what exactly justice is, it is commonly accepted that true justice must have dual definition, interpretation and application of equality (everyone should get or have the same -equal before the law regardless of) and of equity (people should get benefit/punishment in proportion to what they contributed or did to producing or incurring those benefits/punishment). In other words, justice must be just and fair. Unfortunately or fortunately, in the interpretation and application of the two principles of equality and equity of justice, society has introduced other human factors such as economic and political power, social status, ideology, religion, race including ethnicity and nationality, etc into the administration of justice such that in the eyes of some result in unfair justice.

There is also another important element of justice delivery known as “the common good or public interest”. For example, where there are legitimate but conflicting interests from contesting sides, one or some interests may be compromised for the common good. That may also appear to be unfair to the losing side but because that option is seen as a lesser evil for society and in the public interest, it is considered right and appropriate to safeguard the common good against individual or minority interests. It is within the context of the different concepts of justice and the duality (equality and equity) of its definition and interpretation and the balancing of the common good that perhaps both NDC and NPP have come to the realisation that, justice have two different and opposite meanings to them.

The Ghanaian Judiciary as all human institutions cannot escape from the influence of political and economic power, social status, ideology and other factors that impact on the administration of justice in all societies. Many of us will want to believe that the Justices will not be influenced by any of these human factors but be guided solely by what happened in the court room and interpret and apply the laws of the land in reaching their decision. However, as a social scientist, my belief is that our actions and omissions are conditioned by our socialisation or our life experiences and the environment we live in. For this reason, I am of the view that it is possible that, the justice the SC Justices will dispense could be a combination of at least, politics and law. What I am unsure of, is which of the two will be the deciding factor. I tempted to say that the nine Justices will avoid the wholly political decision made by the US Justices in the Gore versus Bush case.

I say so because the Justices are fully aware that, Ghana’s democracy is not strong enough to withstand such one-sided political judgement. I also believe that by their training and practice, the nine Justices have a better appreciation of the concept of justice than many of us. For them, the equality and equity of justice is real. In other words, what is just and fair has no name, that is, there is nothing like NDC or NPP justice but only one justice.

Assuming I am right, what outcome would be just and fair to both NDC and NPP? In his article entitled “What Should Happen When the Court Speaks” (Ghanaweb July 20, 2013), Prof Stephen Kwaku Asare brilliantly outlined the three possible options that are available to the Justices whilst Dr Samuel Adjei Sarfo concluded in his article “A Template For the Resolution of the Elections Petition” (Ghanaweb, July 25, 2013), that the SC will maintain the status quo and reject the petition. I am taking a different approach from both to postulate that, there are only two options for the Justices. Either the petition is upheld or rejected. There is no third option of a re-run.

My reasons are many. First, I am not a convert of integrative based justice (win, win), neither am I a believer in the Biblical Solomon wisdom of “cut the baby into two equal partr”. Research suggests that this approach to justice has no place in modern day justice systems where sophistication in evidence gathering and cross examination during trial make such judgement, a travesty of justice. Though it is meant to satisfy all the contesting parties, in reality, it does not satisfy any. I will regard such judgement by the Justices as half baked and an attempt to wash their hands off and throw the decision back to the electorate.

The other reason is that such a ruling will pose a big dilemma for NPP for a number of reasons. The party claims it has lost trust and confidence in the Electoral Commission in general and Dr Kwadwo Afrai Gyan in particular. As a result, it has boycotted bye-elections since the December 2012 general elections. Since a re-run will mean that the same EC and Afari-Gyan will be in-charge, how can NPP take part? The party has also lost faith in the electoral register and I am not sure if there will be sufficient time and resources for a new register to be prepared for a re-run. If not, how can NPP take part in an election that the electoral register lacks credibility in the eyes?

Another reason is that I suspect both NDC and NPP are broke and do not have the resources to mount a successful and effective national campaign for a re-run. Moreover, the tension in the country following the petition is not conducive for a national election to be organised successfully (free and fair) and in a peaceful atmosphere.

The most valid reason is that, the state cannot afford a national election within the current financial situation. Simply put, there is no money for another presidential election that will require the printing and distribution of electoral materials, the payment of temporal electoral staff, let alone a new biometric voter registration. For the above reasons, a re-run should not be expected from the Justices. In my view, either the there was sufficient evidence to prove the petitioners’ claims and therefore the petition succeeds or there was insufficient evidence so the petition fails and is rejected accordingly. There is no middle way of a re-run and those banking on that will be disappointed.

In conclusion, I am confident that the Justices will deliver justice by looking at the evidence in court, interpret and apply the relevant laws of the land; rely on the duality of equality and equity of justice, the possible influenced of the human factors mentioned earlier and finally consider the public interest to arrive at their final judgement.

Irrespective of my propositions, NDC and NPP must accept that one of them will be victorious and the other, the vanquished. No matter the reasons behind the Justices’ decision, the defeated party will consider the decision as injustice or unfair to them for reasons I have alluded to. The fact still remains that the Justices are not at the Supreme Court to administer NDC or NPP justice. There is no such thing as NDC and NPP justice in law but only one justice. Whether that justice is for all, the majority or a few, is subjective. As far as I am concerned, whatever the decision, it must be decisive (at least, 6-3) so that there will be no reason/s for a review and to avoid the tension and uncertainty in Ghana. I leave you with two quotations on justice as we all wait for justice to be delivered by the Justices.

“True peace is not merely the absence of tension, it is the presence of justice” – Martin Luther King.

“I have always found mercy bear richer fruits than strict justice” – Abraham Lincoln.

Kofi Ata, Cambridge, UK