Fast Track Courts: Why we kicked them out

The Five law Lords of the Supreme Court whose votes outlawed the Fast Track Courts two weeks ago presented succinct and convincing arguments yesterday to back their votes, earning them high marks in the eyes of the public.

After about eight hours of academic and legalistic arguments, it became clear that the five judges knew what they were talking about when they said that the Fast Track Courts were unconstitutional and without power to try the case brought against former GNPC boss, Tsatsu Tsikata.

The majority led by Justices Kpegah and Adzoe punched holes in the submissions of the defendants (A-G).

Even the summons issued by the A-G, which imputed the name of the President, was deemed faulty and unconstitutional.

In the main, the majority argued that in their opinion, the Fast Track Court was unconstitutional and without jurisdiction because it is a court without the backing of the law, which is also operating under rules that are different from the normal High Court.

On the matter of the jurisdiction and constitutionality of the Fast Track Court, Justice Kpegah lambasted the A-G and said that the least said about the A-G's position on the matter the better adding that it is something that any law student should know.

The majority drew attention to the fact that aside the issue of irregularity in the establishment of the Fast Track Court; there were conflicts and differences in the rules and regulations governing it, which makes it impossible to be a division of the normal High Courts.

They wondered how the Fast Track Court, which is supposed to be a division of the High Court, could operate under rules that were inconsistent with that of the normal High Courts.

They pointed out, for example, that issues such as adjournments and duration of trials are very different from that of the normal High Courts.

The majority again observed that the Chief Justice whom they described as the administrative mind of the judiciary does not have the power to establish a division of the High Court adding that he can only recommend to Parliament for the establishment of a division of the High Court.

They intimated that the establishment of the Fast Track Court by the Chief Justice as a division of the High Court should have been backed by law and since this was not done it renders it unconstitutional and devoid of legal jurisdiction.

Spearheaded by Justices Kpegah and Adzoe, the majority further stated that the Chief Justice cannot arrogate powers to himself and establish a division of the Court and go ahead to dictate the rules and guidelines governing it.

"What then is the Fast Track Court? Is it a division of the High Court? My answer is no", Justice Bamford-Addo said.

"The establishment of the Fast Track Court should have been backed by law but I have not found anything in this respect. There is no evidence for the creation of the Fast Track Court as a division of the High by the Chief Justice" Justice Adjabeng observed.

The majority unanimously said that they were not against the mechanization of the Courts and that the idea was laudable.

Justice Kpegah said, "In fact, the mechanization of the court is very laudable. What we are talking about is not the mechanization of the court.

We are talking about whether a Fast Track Court exists and whether it is constitutional."

One after the other, the majority dismissed claims by the minority that the Chief Justice has the powers to establish a division of the High Court arguing that the reference to divisions are being misconstrued.

They said division in that sense refers to territorial and geographical divisions rather than the establishment of a "so-called Fast Track Court"

On his part, Justice Adzoe, who together with Justice Kpegah made the most convincing arguments on the majority side said "I disagree with the A-G that the Chief Justice can by himself establish a division of the High Court "

Adzoe further argued that neither the Chief Justice nor any officer under him has the power to make rules governing a court. He said jurisdiction cannot be inferred but must be conferred.

Commenting on the writ of summons issued by the Attorney General to invite the Plaintiff (Tsatsu Tsikata) to appear before the court, Justice Adzoe said that it was unconstitutional for the summons to be issued in the name of the President since it suggests that it is the President who was initiating criminal prosecution against the plaintiff.

"The President has no powers to institute criminal prosecution against the Plaintiff since that would undermine the independence of the judiciary." Adzoe added.

He said the move also obstructs the A-G from performing his constitutional duties.

Both the majority and minority supported this point. But the minority contended that erroneous as the summons in the name of the President may look, it is the substance of matter, which should be considered, and not the form.

It must be explained that the writ of summons, which was used to summon Tsatsu, indicated that the A-G was summoning the Plaintiff in the name of the President.

Justice Kpegah and Justice Adzoe who made long and well researched arguments stood tall in the minority side.

The rest of the majority side included Justices Bamford-Addo, Adjabeng and Ampiah.