Attorney-General's defense of Chief Justice severely criticized by Prof Kwaku Azar

The Attorney-General and Minister for Justice faced criticism for comparing Chief Justice Gertrude Araba Esaaba Sackey Torkornoo and the president, insinuating that she has the power to move judges around mid-case, a practice similar to the president's reshuffling of ministers, as witnessed in the recent Supreme Court proceedings in the case of "Republic vrs. Dr Stephen Opuni & 2 Others.” 

The warning by Professor Stephen Kweku Asare, a Public Law and Justice Fellow at the Ghana Center for Democratic Development (CDD-Ghana), was in reaction to Godfred Yeboah Dame's confirmation that "the panel for the hearing of the appeal was reconstituted by the Honourable Chief Justice in exercise of her powers under the Constitution, 1992."

The banter follows The Herald's publication on Monday that the Chief Justice threw the Supreme Court into murmuring and speculations when she reconstituted a panel of judges hearing an interlocutory appeal filed by Dr Opuni and subsequently assumed its presidency after dropping Justice Emmanuel Yoni Kulendi, Justice Henry A. Kwofie, and Justice George Kingsley Koomson.

Interestingly, the same Chief Justice had transferred Justice Kwasi Anokye Gyimah to the Ashanti regional capital, Kumasi.

He had ruled that the Opuni case should be heard afresh – de novo – considering various factors, including complaints of bias against Justice Clemence Honyenuga, which led to his expulsion from the case by his peers in the Supreme Court.

A dissatisfied Attorney General had appealed to the Court of Appeal against Justice Gyimah's ruling and got Justice Honyenuga's records of proceedings adopted.

However, Dr Opuni appealed to the Supreme Court to challenge this ruling. The Supreme Court is to decide on this but has seen two panels emerge so far.

 Mr Dame, who has persistently fought claims of bias against Justice Honyenuga concerning the Opuni case, said in a statement issued yesterday, Tuesday, May 14, 2024, that reports on the change in the panel, where Dr Opuni is appealing a ruling by the Court of Appeal for his prosecution not to be restarted, are misrepresenting the facts of the case.

He said that the Chief Justice, who had replaced Justice Mariama Owusu, the president of the previous panel, reconstituted the court on May 8, 2024, because it was well within her powers; hence, an objection raised by the counsel of Dr Opuni was overruled.

He added that the Chief Justice determines the composition of every court in the country, and no party to a trial has the right to choose the court to hear his/her matter or the panel of justices to do so.

 According to him, "the parties duly complied with the directions of the court, and the appeal was subsequently listed for hearing on May 8, 2024. On that date, the panel for the hearing of the appeal was reconstituted by the Honourable Chief Justice, in exercise of her powers under the Constitution, 1992".

 The A-G also recalled that "Counsel for the appellant, Dr Opuni, citing Article 157(3) of the Constitution, raised a grotesque and wild objection to the reconstitution of the panel, and, in effect, insisted on the previous panel hearing his appeal."

 "The A-G prayed the Court to dismiss the objection as misconceived by alluding to the matters set out above and noted that the operative words in Article 157(3) of the Constitution are "…no person sitting in a Superior Court shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court... until judgment is delivered." There had been neither oral nor written arguments in the matter heard on January 17, 2024, and therefore Article 157(3) was not triggered," the A-G's statement said.

"The Chief Justice is a member of every court in the country and has the power to request in writing a Justice of any of the Superior Courts of Judicature to sit on either the Court of Appeal or the High Court at any time. Further, consistent with Article 128(3) of the Constitution, the Chief Justice presides at sittings of the Supreme Court, and in his absence, the most senior of the Justices of the Supreme Court, as constituted, shall preside," he said.

But Prof. Asare, who had earlier expressed his disappointment at the reshuffle of the panel by Chief Justice Torkornoo on various social media platforms, yesterday reacted to the attorney general's press statement, saying he was "least bit impressed by the argument that no hearing took place in January and the CJ is free to reshuffle the panel as long as there has been no hearing."

Prof. Asare contested Mr Dame's assertion that accounts of the courtroom events were false, pointing out that the Chief Justice had, indeed reconstituted the panel of judges.

 "What specific law empowers the CJ to empanel and remove justices of the SC from panels without explanations to the parties?" questioned Prof. Asare in his 12-point reaction, which said that "the A-G's press release does not deny that there was a reshuffling in May... Where, then, is falsehood?

 Professor Kweku Asare raised serious questions about the actions of the Honourable Chief Justice regarding a panel reshuffle.

 According to the press release from the Attorney General's office, the court issued directions to the parties in January 2024, with a scheduled hearing set for May of the same year. However, in May, the Chief Justice reconstituted the panel for the appeal hearing, citing powers vested in her by the Constitution of 1992.

While the Attorney-General's statement acknowledged the reshuffle, it did not address concerns raised by Prof. Asare and others on social media. Prof. Asare, in particular, has lambasted what he perceives as falsehoods surrounding the reshuffle. He contends that commentary, including his own, has not been laden with falsehood but rather with questions regarding the constitutionality and propriety of the Chief Justice's actions.

 "Why did the CJ reshuffle the January panel and remove Kulendi, Kwofie, and Koomson? We want an answer!" demanded Prof. Asare, highlighting the lack of transparency and accountability in the reshuffling process.

 He further questioned the rationale behind setting up a panel to direct parties in January only to introduce a new panel for the May hearing. Prof. Asare emphasized the need for clarity on the specific law, empowering the Chief Justice to empanel and remove justices from panels without explaining it to the concerned parties.

 Addressing arguments that no hearing took place in January, Prof. Asare dismissed them as puerile, insisting that the head of the judiciary cannot treat justices and parties capriciously.

He analogized the Chief Justice's actions to a president reshuffling ministers from ministries, stressing the gravity of the matter at hand. 

"In fact, GOGO has treated that argument with contempt and has not addressed it because it is puerile.

…Being the head of the judiciary does not give the CJ any power to treat justices and parties capriciously.

…. She cannot reshuffle justices from cases as if he is a president reshuffling ministers from ministries."

 As debates intensify on social media and within legal circles, the controversy surrounding the panel reshuffle underscores broader concerns about judicial independence, transparency, and the exercise of power within the judiciary.

Prof. Asare's critique adds weight to calls for accountability and adherence to constitutional principles in the highest echelons of the judiciary.

In an earlier statement on the same matter, Prof. Asare said, "The Supreme Court (SC) consists of the Chief Justice (CJ) and not less than nine other Justices of the SC.

 "The Constitution stipulates that any five members of the SC can sit on a case. The minimum number of justices to review a case is seven.

 "If there is no limit on the number of SC justices, but any 5 of them can decide a case, then who or what determines the five that can sit on a particular case?

"This is not a trivial problem because it can readily be seen that the resolution of a case turns on the justices who are selected to sit on a case.

"Unfortunately, the Constitution does not tell us how the panel of five is to be chosen. Historically, the CJ has been responsible for choosing the panel. This practice may have evolved from NLCD 84 and Akuffo-Addo v. Quarshie-Idun [1968].

"Of course, even though the CJ is assumed to have high integrity and is presumably thoroughly vetted by parliament, it is also the case that he is human and therefore subject to the well-known human frailties.

"Many have therefore raised questions about this practice and have pointed out that an opportunistic CJ could predetermine the outcome of a case by empanelling Justices of known views on the law.

"These are not merely theoretical or conceptual problems. Justice Atuguba has publicly stated that he was frozen out of sitting in court cases for six months.

"These questions have exercised the minds of some CJs, with CJ Wiredu addressing it with a practice directive that all but two of the justices will sit in constitutional cases. The two are set aside in case there is the need for a review.

"The questions persist, and it's time for the Rules of Court Committee to address them. GOGO proposes that the creation and scheduling of the panels be assigned to the court's registrar or registry. Further, the registry should be mandated to use a verifiable random system to choose court panels, using a court practice management software.

"GOGO also suggests that a minimum of 9 justices sit on all constitutional cases. This will avoid the problem of panels reaching different decisions on the same constitutional issue, as has happened in Osei Boateng (whether ambiguity is a precondition for enforcement) and other cases.

"For the avoidance of doubt, the CJ or other justices should have no role in forming court panels. It must be understood that in his role as a judge, the CJ is primus inter pares. He has 1 vote on a panel. He has no power to freeze other members or to decide who should and should not hear a case.

"Whatever questions exist or solutions that are offered for the empanelling problem, there must be no doubt that nobody can reshuffle a constituted panel without cause once it has been announced.

"Any attempts to interfere with the composition of an announced panel without cause must be considered as an obstruction of justice or interference with the administration of justice.

"Justices of the SC must also be assertive and refuse to be reshuffled without cause. The recent reshuffling of justices in the Opuni and Agongo case raises profound questions about fairness, abuse of power, and justice.

"GOGO calls for reinstating the status quo by reversing the reshuffle and returning the case to the original panel. GOGO calls for a full explanation of the attempted reshuffle.

"At a time that trust in the justice delivery system is at an all-time low, GOGO calls for transparency, not arbitrariness. Public confidence will further decline if the public believes that the court system has become a one-person show."