Prof Kwaku Asare insists CJ must explain the Opuni panel reconstitution

Professor Stephen Kwaku Asare, a D&D Fellow in Public Law and Justice at CDD-Ghana, is demanding an explanation from Chief Justice Gertrude Sackey Torkornoo regarding the reconstitution of the panel that heard the appeal of Dr. Stephen Kwabena Opuni, the former COCOBOD Chief Executive.

The reconstitution has drawn significant criticism and raised questions about the transparency and integrity of the justice system.

Prof. Kwaku Asare, popularly known as Kwaku Azar, argued that the lack of transparency undermines the integrity of the justice system and questioned the fairness and legality of the Chief Justice's actions.

"The CJ must explain the reconstitution of the Opuni panel. The opacity undermines the integrity of the justice system," the ace lawyer stated in a Facebook post on June 20, 2024.

His latest demand follows a ruling by a five-member Supreme Court panel led by Chief Justice Torkornoo on June 19, 2024, which unanimously dismissed Dr. Opuni's appeal. This appeal sought to reverse a Court of Appeal ruling on July 3, 2023. The panel, including Justices Mariama Owusu, Henrietta Mensa-Bonsu, Yaw Darko Asare, and Ernest Gaewu, upheld the decision to continue the trial based on proceedings conducted by retired Justice Clemence Honyenuga.

Dr. Opuni, along with businessman Seidu Agongo and Agricult Ghana Limited, faces 27 charges, including defrauding by false pretenses, willfully causing financial loss to the state, corruption by public officers, and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertilizer between 2014 and 2016.

The highly politicized case has seen significant legal maneuvers. After Justice Honyenuga's retirement, Justice Kwasi Anokye Gyimah was assigned to the case and ruled on April 4, 2023, that the trial should start afresh. This decision was appealed by Attorney General Godfred Yeboah Dame, leading to a controversial transfer of Justice Gyimah and reassignment of the case to Justice Aboagye Tandoh.

On July 3, 2023, the Court of Appeal overturned Justice Gyimah's decision, ruling that the trial should continue from where Justice Honyenuga left off.

Dr. Opuni's legal team, feeling that the judges of the Appeal's Court "committed an error of law" in their judgment, filed an interlocutory appeal at the Supreme Court on July 7, 2023.

The appeal contended that criminal trials should start afresh when reassigned to a new judge, a practice that could only be changed by statute.

Several months after the appeal was filed, parties were made to appear before the Supreme Court on January 17, 2024, for a hearing.

The court was presided over by Justice Mariama Owusu, together with four other Supreme Court judges: Justice Yaw Darko Asare, Justice Emmanuel Yonny Kulendi, Justice George Kingsley Koomson, and Justice Henry A. Kwofie.

The matter was then adjourned sine die for the Registry to issue a notice for parties to appear before the court for judgment. This was after the five-member panel had made orders for parties to file written submissions, which they later did.

Dr. Opuni's lawyers received the hearing notice on May 2, 2024, to appear before the court the following week.

The controversy deepened on May 8, 2024, when Chief Justice Torkornoo reconstituted the panel, replacing three of the original justices. This new panel was now chaired by the Chief Justice herself.

Dr. Opuni's lawyer, Samuel Codjoe, objected to this reconstitution, citing Article 157(3) of the 1992 Constitution, which he argued prohibits a judge or panel from withdrawing after hearing arguments until judgment is delivered.

Despite Codjoe's objection, the Chief Justice-led panel overruled him, stating that the case was not ripe for hearing when the previous panel issued its orders. The Supreme Court then proceeded with the hearing based on written submissions from the parties filed on the orders of the previous panel.

Meanwhile, Professor Asare, who is a KPMG Professor in accounting at the Fisher School of Accounting, has been one of the vocal critics of the Chief Justice's decision to reconstitute the panel. He emphasized that the Chief Justice's actions were capricious and undermined the principles of fairness and justice.

"Being the head of the judiciary does not give the CJ any power to treat justices and parties capriciously," Prof. Asare wrote on Facebook in May. "She can't send parties for directions from one panel and redirect them to another panel for other processes. She cannot reshuffle justices from cases as if she is a President reshuffling ministers from ministries."

Prof. Asare, on a number of occasions, criticized the lack of explanation for this reshuffling and questioned its legality under the 1992 Constitution.

He also argued that removing and replacing three members of a five-person panel raises profound questions about fairness, justice, and potential abuse of power.