Everything Justice Atuguba said about the Gyakye Quayson case

These sorts of things do not augur well for constitutionalism in Ghana which it is the primary duty of the courts to ensure. Our 1992 constitution has ordained constitutionalism for Ghana. This is plain from particularly articles 1,2, 3 and 35 of the constitution which provide inter alia for the sovereignty and welfare of the people of Ghana, the supremacy and enforcement of the constitution and the blessings of democracy. Constitutionalism has been well explained by some eminent jurists in Ghana. In his very able book, CONSTITUTIONAL LAW OF GHANA: TEXT, CASES AND COMMENTARY, Prof. E. Kofi Abotsi states at page 32 thus “Constitutionalism as a concept can be defined as the limitation placed on the exercise of legal and political power. The concept of constitutionalism is peculiarly important for African countries given the long-standing experience of dictatorship, anarchy and misrule on the continent. As corollaries, constitutionalism and responsible government have been said to be mutually re-enforcing. Constitutionalism promotes responsible government in the sense that it compels government to act in a manner consistent with the expectations for the conferment of power and respond to feedback from the citizenry. In this context, one can accept that constitutionalism is a welfare- oriented concept to the extent that it seeks to ultimately champion the welfare of the governed by ensuring that governments exercise conferred powers in the best interest of the governed”. Also in his thoroughly researched book, THE NEW CONSTITUTIONAL AND ADMINISTRATIVE LAW OF GHANA: FROM THE GARDEN OF EDEN TO 2022, Prof. Raymond Atuguba states at page 2 as follows: “The mere existence of a constitution is not enough for proper governance. A constitution can lead to constitutionality or constitutionalism. Constitutionality is the rule of law at the constitutional level; no matter what the content of the law is that rules.

Constitutionalism on the other hand is good governance or people-centered governance at a constitutional level. With constitutionalism, there is limited government, people-centeredness, protection of minority and other rights, fairness, justice, equity. In countries such as the United States which practice constitutionality and not constitutionalism, a constitution exists along side social concerns like racism, gender inequity and the prisons industrial complex. These are incompatible with the countries that practice constitutionalism”.

See also Prof. Date- Bah’s very scholarly book; Selected Papers and Lectures on Ghanaian Law page 76.

The appointment of judges particularly of the Supreme Court as the fulcrum of constitutionalism and the Rule of law has its hiccups. It is the Judicial Council that recommends suitable lawyers or judges for eventual appointment by the President. Sometimes some judges are recommended by the Judicial council to the Supreme Court over and above more experienced and senior judges even though they are not more competent and experienced than their seniors. Often when there is regime change, some of the sidelined senior judges now get recommended for appointment to the Supreme Court through the same Judicial Council, but they then become juniors to their earlier juniors by reason of their later appointment. In practice, however, these later appointed judges often write the unanimous or lead judgements in difficult cases shortly after their appointment to the Supreme Court. Certainly, eyebrows can be raised over such practices. What can be the justification for such things?

Nonetheless, depending to some extent on the Judicial season the Judiciary has deepened constitutionalism in Ghana, notably the nullification of the 31st December holiday celebration funded from public funds, the freedom of choice of independent counsel by state bodies instead of the Attorney-General, despite Article 88(5) where there is conflict of interest, see Amegatcher v Attorney-General (1) [2012] 1SCGLR 679, National Media Commission v Attorney-General, supra.

As stated by Professor Date-Bah in his said book at pp.17-18: “constitutionalism is about having limits to the powers of constitutional bodies and enforcing those limits. The judiciary, through its exercise of the power of judicial review, is accordingly a vital actor in this process. The Ghana Supreme court has been quite effective in protecting the legal framework of the liberal multi-party democracy whose grundnorm is the 1992 constitution. An example here would be appropriate. To my mind, this case illustrates the contribution of law to the development in Ghana. At first sight, the case (Ahumah Ocansey v Electoral Commission; Center for Human rights and several liberties v The Attorney -General and the Electoral Commission (2010) SCGLR 575), which was decided by the Ghana Supreme court, would appear to have little to do with law and development. The main issue raised in the case which in fact consisted of two consolidated cases, was whether prisoners were entitled to vote. In spite of article 42 of the 1992 constitution, which provides that every citizen of Ghana of 18 years of age or above and of sound mind has the right to vote and is entitled to be registered for the purposes of public elections and referenda, the Attorney -General had argued in this case that it was in the public interest that convicted offenders are punished, kept under lock and key and not allowed to vote. The Supreme court rejected this contention and held that there was no justification for denying prisoners their unqualified right to vote. This right was conferred on all adult Ghanaians who are sane by article 42 of the Constitution. As I said in that case: “nothing in the core values and spirit of the 1992 Constitution justifies the restriction on prisoners’ right to vote, that is advocated by the learned attorney-general. There is thus no basis for implying the restrictions argued for by the Attorney-General to qualify the clear and unambiguous language of article 42”. However, it is lamentable as pointed out by Prof. Raymond Atuguba in his said Sterling book that ‘Notwithstanding the Supreme Court departed from the preposition espoused by Date-Bah, in the Osei Boateng Case, decisions of the Court after that departure still create doubt as to the current legal position. In some of these subsequent decisions, the Supreme Court seemed to be toeing the line of Date-Bah JSC in the Osei Boateng Case, by declining Jurisdiction to enforce the Constitution on the ground that the constitutional provisions sought to be enforced were clear and unambiguous. Notable cases are Mayor Agbleze v Attorney General and Asare v Attorney General and General Legal Council. Some other subsequent decisions of the Supreme Court have followed the reasoning in Noble Kor v Attorney General. This turn of events creates a cloud of confusion and inconsistency in our jurisprudential space, making it difficult for one to tell the direction of flow of our country’s constitutional law in this area. This must be a cause of worry to students and practitioners of Constitutional Law.”

REALISTIC INDEPENDENCE OF THE JUDICIARY

I want to emphasize that there is a vast chasm between independence of the judiciary in theory and its independence in practice. Thus, as explicitly stated by Dr. Dat-Bah in his aforementioned book at page 90 “Independence of the judiciary has two dimensions: the institutional and the personal. Personal independence relates to the commitment of individual judges to the judicial values that ensure their impartiality and fairness. I am here referring to values such as eschewing corruption and not allowing ethnic and other particularistic considerations to affect judicial determinations. Institutional independence of the judiciary, on the other hand, relates to the constitutional, statutory, and other arrangements put in place to assure the independence of the judiciary. Issues that are customarily dealt with under institutional independence include: separation of powers; security of tenure for judges, including appropriate provisions on the appointment process of judges, the conditions of service of judges and the process for the removal of superior court judges; financial and administrative autonomy of the judiciary; and measures are what make judicial independence justifiable. It would be unacceptable to have independent but unaccountable judges.

SUMMARY

The James Gyakye Quayson’s decision by the Supreme Court is with all due respect scandalous in that the court, in the teeth of the settled maxim Res Judicata et non quieta movere, re adjudicated the same matter that has been adjudicated upon by the High court on the merits. All that was left was its execution according to court processes. Again the stress laid by the court on the statutory processes for acquisition and renunciation of citizenship shot it self in the foot. If the certificate of renounciation is so mandatory and conclusive why was it not conclusive in its effect to qualify Gyakye Quason when he received it, dated 26th November 2020, whereas the parliamentary election was held on 7th December 2020? Statutes, judgements, and documents must always be applied with consistency both in the letter and spirit. These must always be construed holistically and as instruments of justice since it is a well settled principle that the duty of a court is to do justice and a court should not be turned away from doing justice. In the 2013 presidential election petition (2013) SCGLR (Special Edition) 73 at 141 I stated as follows: ‘Again in Osman v Tedam (1970) 2 G & G 1246 (2d) CA and Osman v Kaleo (1970) 2 G&G 1380, the Court of Appeal held that though the respondents were members of the Convention Peoples Party whose constitution made all Members of Parliament of the Convention Peoples Party members of the party’s Regional Executive Committee that did not without more, make the respondents members of such committees and therefore disqualified to contest the 1969 Parliamentary Elections, which they had won.

The decision in Osman v Kaleo is even more striking. Though the respondent had secured exemption from disqualification from contesting the parliamentary elections, it was submitted that since his exemption had not been published in the Gazzeet, upon which publication it will have effect, under paragraph 3 (5) of NLCD 223, 1968, the same was inoperative, notwithstanding that under paragraph 3(7) of that Decree, the decision of the Exemptions Commission was final and conclusive. The court of Appeal rejected that contention”.

Again in JUSTICE DERY v TIGER EYE PI AND OTHERS (2015-2016) 2 SCGLR 816, the Supreme Court unanimously held that though the impeachment process against the plaintiff was published in contravention of Article 146 of the 1992 Constitution that could not vitiate the crucial impeachment procedures against him. In other words the substantial and more important provisions on the removal of a corrupt judge could not be diverted by the incidence of the unconstitutional publication of the impeachment petition.

Similarly, then the certificate of Renunciation dated the 26th November 2020 was more important than the anterior participation by Gyakye Quayson in the parliamentary campaigns between 5th and 9th October 2020 when he filled his parliamentary nomination papers with the electoral commission. The Supreme Court does not stand in good light, with all due respect in disqualifying Gyakye Quayson despite his clear certificate of Renunciation of his Canadian Citizenship as from 26th November 2020. By analogy also, in CLOSSAG v ATTORNEY GENERAL AND 2 OTHERS (2017 -2018) 1SCGLR 210, the Supreme Court unanimously held that a member of the Civil Service or Local Government Service can join a political party but cannot actively participate in politics or hold office as a political party nominee or remain in the Civil Service after election as a member of the District Assembly. In other words, the operative evil to guard against is membership of the District Assembly not the contest for the same. Similarly, therefore, the operative evil to guard against about a dual citizen is, as regards parliament, his actual membership of it, not just the campaigns. That is why in the Gyakye Quayson’s case, his renunciation of Canadian citizenship certificate dated 26th November 2020 is the operative consideration. In any case it will be noticed that his certificate of citizenship is tied to an Oath pf allegiance. The 2 move together, the letter and the spirit. It is difficult to think that Gyakye Quayson who submitted his Renunciation of Citizenship Papers to Canada in 2019 could still in December 2020 be held as seriously owing allegiance as a matter of hard realism as opposed to formalism, to Canada. In the King David example I cited in Asare V Attorney General (2012), 1 SCGLR 460, his Israelite citizenship became of real concern to the Philistines when going into actual war with Israel.

CURRENT PUBLIC IMAGE OF THE JUDICIARY IN GHANA