Justice Kpegah's impartiality questioned

The essence of justice, it is said, lies in a fair hearing. The rule against bias is, therefore, strict. For instance, it is not necessary to show that actual bias existed; the merest appearance or possibility of bias will suffice.

Supreme Court judge, Francis Kpegah, who sided with the majority in the constitutional case last Thursday that shook the very foundation of Ghana’s legal system, also appeared as a defence witness in the Victor Selormey trial held at the fast Track division of the High Court late last year.

The fundamental dictate of justice is that both personal or financial interest in a case may disqualify a person from adjudicating. In the famous R v Sussex Justices ex-parte McCarthy case it was stated that “justice should not only be done but should manifestly and undoubtedly be seen to be done.”

The fact that Justice Kpegah, descended to appear as a witness for someone who was eventually convicted by the same court upon whose jurisdictional competence he ruled to the contrary smacks of bias to many commentators. Judges are expected not only to be impartial in fact, but also to be demonstrably and clearly free from the merest suspicion of bias as found in the landmark ruling of Dimes v Grand Junction Canal Ltd (1852).

In the McCarthy case, which has precedential value in our local courts, the applicant had been charged with dangerous driving and convicted. On discovering that the clerk to the magistrate’s court was a solicitor who had represented the person suing McCarthy for damages, McCarthy applied for judicial review based on bias on the part of the clerk. The clerk had retired with the magistrates when they were considering their verdict.

It was accepted that the magistrates neither sought advice nor were given advice by the clerk during their retirement. Nevertheless, McCarthy’s conviction was invalidated on the basis of the possibility of bias. According to Lord Denning in a subsequent case, “the court looks at the impression which would be given to other people.

Even if he was impartial as could be, nevertheless, if right-minded persons would think that, in the circumstance, there was real likelihood of bias on his part, then he should not sit. And, if he does sit, his decision cannot stand. “The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did.” He went on to conclude that, “Justice must be rooted in confidence and confidence is destroyed when right minded people go away thinking: “the judge was biased.”

The issue of Justice Kpegah’s impartiality may be raised by the Attorney General during the review. The review may not be heard until the first week in April since after the judges’ opinions are delivered on March 20, the Attorney General may need about a week to study the ratio of the decision.

In a related development a group calling itself the NDC Legal Committee, chaired by Mr Kwaku Baah, has called upon the Chief Justice “to decline to participate in any review of the decision of the Supreme Court if the Attorney General should proceed with his decision to apply for review.

The Statement said, given the revelation that it was the Chief Justice who set up the Fast Track division of the High Court, “There could not be a clearer case of conflict of interest or a person being a judge in his own case than this one.” As a servant of the law, the core of the Judge’s judicial duties require him to fix bounds of whatever dispute or question has been brought before the Court and reach a decision without fear or favour.