The President’s decision to suspend the Chief Justice is a palpable act of treason which duly invites his impeachment. This cynical act of treason, done under the whirligigs of the constitution, speaks directly to the President’s open, albeit sinister, agenda to destroy our democracy, and to perpetuate his party’s rule in the country.
The President purportedly based his action on three puerile petitions written by citizens who don’t seem to have any basic understanding of the nuances of law, or the intricacies of the democratic dispensation. The first petition alleges among other infantile perorations, that the Chief justice wrote a letter to the President requesting and recommending that he added five more judges to the Supreme Court panel. It also alleges that due process was not followed when the Chief Justice, together with a panel of five judges, injuncted the speaker of parliament from dismissing certain members of parliament who had resigned from their parties.
As observed from the response of the Chief Justice, those types of charges cannot constitute misbehavior or incompetence under any rule of law: She has the full right as a Chief Justice to make any recommendation she wanted to the President. Indeed, she had the authority to make recommendations concerning promotions of judges as part of her job, and no law can support the view that she becomes incompetent and misbehaves just by making those suggestions to the President. Those suggestions were not even taken by the President who had the power to make those appointments. Ironically, three months into his term, President Mahama has deemed it fit to add seven judges to the Supreme Court while at the same time finding it improper that the Chief Justice even made that suggestion. On its face therefore, the idea that this petition is made a basis for removing the Chief Justice is highly improper.
The same petition makes allegations of misbehavior and incompetence in the ruling regarding the dismissal of some parliamentarians by a panel of the Supreme Court, it suffices to state as an initial matter that a panel made the decision for which they offered the required reasoning for their verdict. If anybody has any problem with the opinion, the recourse is to the court through the appellate procedure. Indeed, if the ex parte decision was improperly made, the recourse is to the same court under an expanded panel. It has nothing to do with a petition to remove the Chief Justice or any judge for any decision made in court.
In the second Petition by one Assistant Commissioner of Police, Ayamga Yakubu, this writer has strong sympathy with him concerning a piece of land which he purchased as a bona fide purchaser who purchased the land without knowledge of any wrongdoing. I empathize with his disappointment with the Court which deprived him of a piece of property to which he is entitled by right of purchase, no matter how defective his title.
But the judicial system has its inherent flaws, and the best cases lose, probably on account of the litigant’s posture in the courtroom itself. If one throws tantrums in court, one could forfeit a win by dint of the failure to observe court room decorum. And in Mr. Ayamga Yakubu’s case, the decision to commit him for contempt of court appeared to be the proper exercise of the inherent power of the court which is well established in law. This is because the court believed that he misconducted himself through abrasive behavior unbecoming of an officer of the court.
And if the court record was not properly made as Mr. Yakubu alleged in his petition, the Court gave sufficient constructive notice that the occurrence occurred in court. There was no contention that Mr. Yakubu was committed to prison for contempt of Court! And therefore, the victim still had recourse to any remedy of his choice because of his incarceration.
No case could also be asserted about any utterances which Mr. Yakubu may have found to be improper. A remark, no matter how inappropriate, may have its remedy in tort law, but cannot form the basis for the dismissal of any judge, let alone the Chief Justice. To base the removal of judges on the exercise of their power to contemn will flood the legal system with a deluge of petitions because whoever has a bad day in court will certainly like a judge fired! And to argue that an off the record sidebar by a judge could constitute grounds for that judge’s dismissal is unheard of, even within the context of admissible hearsay.
In the third petition, an allegation is made of some travel expenses by the Chief Justice and her family. She has already responded fully to that allegation, clarifying that it was part of the privileges of her job to which she was duly and properly entitled. The truth or otherwise of her response is duly ascertainable by the audit bodies set up to deal with such matters. And that body must be allowed to do its job to determine if there is something amiss. Unless there is the intent to defraud, the proper remedy, even if something is amiss, is the requisite restitution. That charge will not warrant the removal of the Chief Justice.
So put together, all these petitions make allegations which even if true, cannot support the removal of the Chief Justice who heads one of the three co-equal arms of government.
Throughout Ghana’s history, the judiciary has never failed to exist even under military governments. Therefore, even where the constitution is suspended and the executive is dismissed and parliament is dissolved, the judiciary remains under the ambit of the Supreme Court. It is the constant in the flux, fluctuations and functions of the country’s democracy. Because no matter which type of government is in power, it must be grounded on some tissue of the law and the interpretation thereof, all under the guidance of the judiciary and the supreme court. Therefore the judiciary, although acknowledged to be the weakest arm of the government, remains the bastion and bedrock to protect whatever remains of the liberties and freedoms of the people.
Therefore, in interpreting any rule of law, the judiciary remains the sanctuary of justice and the final refuge against the willful abuse of executive or legislative power. We have no civilization without the rule of law and its proper construction by the courts. And civilization ends where the law is construed willy nilly without the courts.
That is why the judiciary is the only constant in the whirligigs of our democratic wheel. It is the only center that holds in the face of the ephemerality of our governments, and one which affords the much-needed foundation to our republic. And if we understand the whole theories of government in this way, we will not dream of, let alone toy with, the foundations of the judiciary headed by the Chief Justice of the country.
That attempt alone will represent a palpable albeit treasonable adventurism by any government in power. Yet that is what the President and his cohorts have opted to do to destroy the foundations of our nascent democracy. They are seeking to antagonize and intimidate the judicial arm of government to emasculate it so that its work will pantomime the morbid agenda and sinister machinations of the NDC government.
That the NDC government planned to remove the Chief Justice upon the assumption of power is no secret. They openly stated their intentions on many platforms during the campaign and even wrote it in a book which was later leaked to the public. But to even contemplate that they would put this scheme to practice was almost impossible because the notion was laughable on its face even under article 146 (10) of the constitution of Ghana. That constitution was smithed under the strictest sense with the nation’s history as a guide.
In 1963, Kwame Nkrumah, the first President of Ghana, dismissed the Chief Justice, Justice Arko Korsah from office because he did not return a verdict Nkrumah liked: He acquitted the defendants charged in the Kulungugu bombings. He replaced the Chief Justice with the former President’s father, Justice Edward Akufo-Addo who then did the President’s bidding and sentenced the accused to death and long terms of imprisonment. Nkrumah was soon thereafter overthrown….
This lesson of history undergirded the intent of the framers of the 1992 constitution under which this President is serving. We must therefore see that the present constitution had guidance in the prior constitutional crises in Ghana under Nkrumah’s government, and it is to be construed in the strictest terms when it comes to its interpretation regarding the judiciary, since it was influenced by all the prior constitutions namely that of 1956, 1969, 1979, and 1992, together with all its amendments thereto. In our constitutional interpretations therefore, general guidance ought to be sought in all the prior national experience, legislative history, as well as the spirit of the constitution itself which is enshrined in Chapter Six of the constitution, precisely The Directive Principles of State Policy. There, the overarching principles underpinning the goals and aspirations of our democracy are duly stated. And from these principles, we must construe the true spirit and meaning and intent of the constitution.
Beyond legislative history and the Directive Principles of State Policy, one has to take account of the zeitgeist, (the spirit of the times), precedent, customs and traditions and in our particular case, the fundamental principles of the constitutional architecture itself. Every constitution has loopholes for abuse. That is why it is not enough to look at the letter of a constitution to act. Because it is a legal mantra that the law cannot be construed to lead to absurdity. At the minimum, we must construe that the penumbra of the law offers a high level of protection to the Chief Justice when it comes to the proceedings for her removal. When one wants to understand this penumbra of law, one must stand far away from the written law as it is to construe it from a proper perspective. One must ask the question whether the intended act is in the supreme interest of the country and devoid of any hidden or selfish agenda. One must also look to history and traditions as they exist in the commonwealth. And above all, one must look at the security of the country and the interpretation’s adherence to the interest of the democratic principles. It is not enough to mechanistically quote one law and become satisfied that one has followed its procedure to the letter. That will lead to absurdity…..
If you look at the prior utterances of the leadership of the NDC, the party’s main objective is the removal of the Chief Justice. This is not a secret as I have already impugned beforehand. The next target which is not an open secret of the NDC is the dismissal of the Chairman of the Electoral Commission. These preconceived notions make their action in suspending the Chief Justice an affront to the law and very biased against the proper constitutional construction. Because it is trite law that the constitution cannot be construed with bias to further one’s agenda.
Biased interpretation to further one’s agenda is therefore a prohibition against legal interpretation. And anyone with that mindset is prohibited in interpreting law as per natural justice. So, where the NDC has formed an agenda to cause a certain course of action, its leadership is per se debarred from interpreting the constitution because of the inherent conflict of interest it has with its partisan agenda. If you want to convict me of murder, and you have declared so in public, the law bars you automatically from sitting in judgment over me simply because you will use the law to further your expressed agenda.
Now the foregoing reasoning should be enough to bar this President from making any further move to remove the Chief Justice; and insofar as they were not in power, their empty rants were to be viewed as brutum fulmen. But in power, they have found the expression in three frivolous petitions to give fulfillment to their dastardly agenda.
Everybody can do what the President is doing to malign our most sacred democratic institution. Just contract some citizens to scribble nonsense and lies and proceed to find merit in the frivolous petition, pass it on to a compliant and complicit Council of State with the requisite inducements, and bingo! They come out with the desirable advice to suspend the head of one arm of government to fulfill your agenda.. That is why I say that the constitution could be construed anyhow to fulfill one’s mischievous agenda.
So, this thing is not about the misconduct, or the misbehavior set forth in Article 146 (10) OF Ghana’s constitution. Rather, it is about a brazen attempt by a sitting President to combine executive power with the judicial power to impose a dictatorship and perpetual rule upon the country. Otherwise in making the judicial decision to pass on these frivolous petitions to the compliant and complicit Council of State, the President would have been guided by the principles enshrined in Article 296 of the constitution. This article offers a prophylactic, consistent and coherent guidance for the President in the proper use of his discretionary powers. In this context, the President is required not to use his judicial discretion capriciously but to be fair, candid impartial, and objective, and not to decide willy nilly and out of personal dislike and interest. Furthermore, the President is required to document and memorialize the legal reasoning that underlie his conclusion to exercise his discretionary power adversely. There is no record or evidence that the President did that, thus violating the constitutional and natural right of the Chief Justice against whom he has adversely exercised a discretionary power.
Another point of note is that the accusation of this government for demanding the removal of the Chief Justice is that her court has been giving judgements it does not like. So they want someone else in the Chief Justice’s seat who can give them verdicts they like. This kind of reasoning tallies in with the action of Nkrumah who used arbitrary power to dismiss the then Chief Justice….
Of course, anybody that approaches the court wants to win his case. But it is not the court’s duty to satisfy the whims and wishes of the litigants. The court stands for objective justice, and unless one can prove that a particular judgment is influenced by inducement and self-interest, one cannot accuse any judge of having acted in bad faith. So the mere fact that a petition emanates from any citizen based on the rulings of the court means that the Petition should be dismissed ab initio. Consequently, the fact that President Mahama moved this petition forward shows that he has no understanding of the work of a judge.
As regards the decision of the court, if its judges are composed of a panel of judges, that decision is the court’s decision to be construed as the court’s verdict. The recourse of the person that loses a case before court is to access the appellate process, not to call for the removal of the judges just because you don’t like the outcome of a lawsuit. The courts are not there to satisfy individual egos and choices in legal outcomes.
It is conceivable for the government defenders to claim glibly and peremptorily that the President has given fidelity to the law. This is because just like a person that wins a court case no matter how jaundiced, he would say that the courts has given him justice. But one irony under democracy is that it goes full cycle. The test therefore of the fidelity to the law is when you are the one at the receiving end of justice. When justice is being perpetrated against one under the collar of law, that individual may not be able to articulate the complex reasoning undergoing the injustice; but he can look at the posture of the court to feel the pain of disappointment. That disappointment, seen as a victory for the opposing side, holds a future retribution when the tables finally turn as they inevitably do. If this government lasts for twenty years, it will reap the repercussions of its injustice.
What the president has therefore done is an affront to the very constitution to which he has sworn to protect. We cannot wait for history’s ironies or karmic repercussions of the kind articulated by some people opposed to the action of the President. He must therefore be immediately and urgently impeached.
The impeachment process may not necessarily lead to the removal of the President, given his super majority in parliament, but it will assemble the record of his misconduct and document his panoply of constitutional violations. Besides, even if it does not lead to a final conviction, it will send him a resounding warning to alert him of the power of the people’s House to remove him from his office. This will make him think twice before embarking on a panoply of constitutional violations.
