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Opinions of Monday, 23 September 2002

Columnist: Asare, Kwaku S.

Will the Real MPs Stand Out and Be Counted?

Parliament?s Appointments Committee will commence hearings on September 24, 2002 to consider the President?s nominations of justices of the Supreme Court (SC). The nominees are Mr. Justice Stephen Allan Brobbey, Mr Justice Glenn Baddoo and Mrs Justice Georgina T. Wood, all justices of the Court of Appeal. The rest are Prof Samuel K. Date-Bah, Special Advisor (Legal) of the Commonwealth Secretariat and Dr Seth Twum, a private legal practitioner.

These appointments were appropriately made in accordance with article 144 (1) and (2) of the constitution, which indicates that SC justices shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the APPROVAL of Parliament. Approving a nominee of the SC is probably one of the most important decisions that any MP can make during his or her tenure. In addition to their broad powers to interpret the constitution and act as final arbiters on all judicial disputes, SC justices have ?tenure? in that they can be fired from their positions only with significant difficulty.

Even more important, because article 128 (1) does not impose a ceiling on the number of SC justices, the country must rely on Parliament as the only potential CHECK on any President seeking to pack the court and to potentially hijack the minor democratic gains that we have made under Constitutional Rule. Article 128 (1) states that, ?The Supreme court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court.? This means the court can have anywhere from 10 to an infinite number of justices, an opportunity that can be exploited by a President acting in accordance with 144 (1). Only Parliament, by virtue of its APPROVAL function, can act as an effective check on such a President.

It is because of this problem with article 128 (1) that those of us from the liberal tradition had hoped that one of the first actions of President Kuffuor?s government will be to seek to amend this article. However, that has not proven to be the case. On the contrary and to our disappointment, Mr. Kuffuor appears bent on exploiting this constitutional loophole.

The hearings on Tuesday, therefore, present a unique opportunity for Ghanaians to see their MPs in action. It will be a test of Patriotism versus Partisanship. I know many of the nominees and all of them are exceptionally well qualified. But the issue before our MPs should not be mere qualifications. The issue should be the fundamental one of how many SC justices can a country like Ghana afford.

I expect MPs to have a vigorous debate on the marginal cost of a SC justice. This includes the salary, housing allowance, car allowance, car driver, other perks, pensions, etc. Then, they should also explore the marginal benefit of a SC justice. What will one more justices add to the court? If 11 justices cannot get it right, why do we expect 17 to get it right? On the other hand, if 11 can get it right, why will adding 6 more be an improvement? Further, without prejudice to the marginal analysis, the MPs should discuss the funding of these positions, given our precarious budget situation! Will the country not be better of f by diverting these additional costs to the primary schools, providing Water, Electricity and Toilet (WET) or even creating Fast Track Courts in the rest of the country?

For almost a decade, we have been operating a supreme court of 11 justices. This, to my knowledge, has never been a problem. In fact, article 128 (2) allows 5 justices to hear a case, although I believe this article creates the same abusive opportunities for the SC chief justice.

USA, a highly litigious country of 250M people has only 9 SC justices. Florida, a highly litigious state has only 7. There is no reason why Ghana should have 17 justices.

This hearing, and the subsequent vote by parliament, will be a particular trying time for the NPP MPs. After all, these are Kuffuor?s nominees. But the nation will listen very carefully to their every word! It would be especially interesting to hear the views of the minister of Justice, Nana Akuffo Addo and Alhaji Malik Alhassan, the learned MP from Yendi.

Not only must these nominees be rejected on grounds that the nation cannot afford them, it is now time for parliament to amend the constitution to place a ceiling on the number of SC justices of the SC. I suggest 7.


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