Opuni case: CJ's 'removal' of Kulendi, Koomson, Kwofie 'fuels needless speculation' - Kwaku Azar

Professor Stephen Kweku Asare, a Fellow in Public Law and Justice at CDD-Ghana, has said: "It is unprecedented for three of five Justices" of the Supreme Court, "to be pulled from a case that they have been assigned to."

Referring to the appeal case of former Ghana Cocoa Board CEO Stephen Opuni against the Court of Appeal's overturning of a de-novo ruling by Justice Anokye Gyimah of the High Court, which is currently before the Supreme Court, and whose original five-member panel was recently reconstituted by the Chief Justice, with her presiding, Prof Asare (Azar) argued: "It is against the democratic aspirations of reasonable Ghanafuo. It is contrary to any norms of justice, and it fuels needless speculations about the CJ’s motives."

The first five-member panel put together by the CJ in January 2024 that started hearing the matter, comprised of Justice Mariama Owusu (presiding), Justice Yaw Darko Asare, Justice Yonny Kulendi, Justice George Koomson, and Justice Henry Kwofie.

However, in May this year, the CJ knocked off three Justices of the original panel (Kulendi, Kwofie, and Koomson) and replaced them with herself (presiding), Justice Mensa-Bonsu, and Justice Gaewu.

Prof Asare, who is a KPMG Professor in accounting at the Fisher School of Accounting, believes: "Without an explanation of why the majority of the panel was unceremoniously circumcised, reasonable Ghanafuo will have no confidence in the decision of the reconstituted panel and will always wonder whether the original panel would have reached a different decision."

In his view, "The absence of an explanation also fuels unhealthy speculations", asking: "Why were those 3 Justices removed? Was Kulendi removed for his scathing dissent in the Anas case, etc.

"None of these is healthy for our democracy. None of this is good for public trust in the justice system", Prof Asare asserted.

He nonetheless noted: "This panel problem is not new. We have talked about it in the past, culminating in various practice directives."

For instance, he recalled: "Chief Justice Wiredu issued the following practice directive in 2000: 'In order to minimise the mounting criticisms and the persistent public outcry against the Judiciary in our justice delivery and to restore public confidence, it is my desire that where practicable and especially in constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven (7) justices of the court'".

Prof Asare said this directive was "cheered by all followers of the Court."

"For instance, Bimpong Buta, then editor of the Supreme Court of Ghana Law Report, said: 'The Practice Direction … makes the empanelling of the Supreme Court for the determination of constitutional cases more transparent; and more importantly, the Direction is in line with the democratic aspirations of all Ghanaians and the sustenance of the rule of Law in the country. It also has the obvious merit of insulating and freeing the high Office of the Chief Justice from all imaginary and unproven but disturbing allegations of political bias in the empanelling of the Justices of the Supreme Court'.”

The recent reshuffle, in Prof Asare's opinion, "seems to be reversing this progress and plunging us into a new era of opaque empanelment."

"Those of us who have been on the frontline of the battle for a transparent system can ill-afford to remain silent while the justice system is plunged into darkness", he noted.

He said: "The struggle has been real, progress has been slow, and silence in the face of a reversal of the progress is not an option!"

Prof Asare, thus, posed the following questions to the Chief Justice:

1. Do all Supreme Court Justices have a constitutional right to sit on all constitutional matters as enunciated in the Wiredu practice directive (see [2000] SCGLR 586)?

2. If not, what criteria are being used to assign Justices to such cases?

3. What is the right, if any, of Supreme Court Justices to sit on non-constitutional cases?

4. What criteria are being used to assign Justices to non-constitutional cases?

5. When do you plan to provide your reasoning for reshuffling the Opuni panel? This is a demand!

6. There are several software systems that randomly assign panels, taking expertise, workload, etc. into account. Will you commit to a transparent empanelling process?"

Prof Asare "considers panel manipulation to be misbehaviour that can trigger article 146 removal proceedings."

That article deals with the removal of Justices of Superior Courts and Chairmen of Regional Tribunals as follows: "(1) A Justice of the Superior Court or a Chairman of a Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of Body or mind.

(2) A Justice of the Superior Court of Judicature or a Chairman of a Regional Tribunal may only be removed in accordance with the procedure specified in this article.

(3) If the President receives a petition for the removal of a Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial Council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.

(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward them to the President.

(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.

(7) The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.

(8) All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.

(9) The President shall, in each case, act in accordance with the recommendations of the committee.

(10) Where a petition has been referred to a committee under this article, the President may-

(a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice;

(b) in the case of any other Justice of a Superior Court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.

(11) The President may, at any time, revoke a suspension under this article.