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Opinions Sun, 16 Jun 2013

Supreme Court of Ghana Betrayed Martin Amidu.

Yesterday the Supreme Court granted some of the reliefs sought by Mr.

Martin Amidu in his quest to retrieve for the State some monies paid out to

cronies of the government cloaked as 'judgment debts.' The Supreme Court

while upholding a considerable number of the reliefs he sought, declined

jurisdiction on some others, referred others to forums it thought proper

and stayed on giving any opinion on the aspect about Mr. Woyome until a

futuristic determination is made on that case by the High Court before

which the case now is pending.

While the judgment given yesterday was generally good, I would respectfully

submit that the august Court gave the judgment per incuriam having missed

the very important point Mr. Amidu sought to make. It is my view that even

though this per incuriam decision is not fatal to the cause of Mr. Amidu,

and though to many, Mr. Amidu was successful, he failed to obtain his goal

which was to get the Supreme Court to leave from some of their time long

principles particularly those on suits brought under Article 2(1) of the

1992 Constitution.

It is settled learning that Article 2(1) of the 1992 constitution provides

a general ground for a person who believes that the constitution or parts

of it has been breached by the acts of omission and commission of another,

or any enactment purporting to have been made under the authority of the

Constitution or an action carried under an enactment is in breach of the

Constitution to go ahead to the Supreme Court to seek for remedy of the

situation.

A plain reading of Article 2(1) suggests that a person who believes that an

act, omission or enactment is unconstitutional can go ahead to the Supreme

Court for enforcement orders or for interpretation of the relevant aspects

of the constitution; however that is not the case. The authorities are

settled on the requirements a person must meet before a suit brought under

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Article 2(1) of the constitution would be entertained. These requirements

are borne out of time long principles which the Supreme Court has set. If

the observations of Afreh JSC In Re Tsikata(No 2) is anything to go by,

then these principles actually are older than the constitution itself. I

would however on the authorities restrict myself to cases determined under

the current constitution which lay(s) one of the many principles guiding

suits brought under Article 2(1), 1992.

In Sam (No 2) v Attorney-General [2000] SCGLR 305, the Supreme Court held

that a suit brought under Article 2(1) must be brought by a Ghanaian. The

Supreme Court further held that there was no need in such suits for the

plaintiff to prove personal interest in the outcome of the matter. The

Supreme Court however drew a distinction between suits brought under

Article 2(1) and Article 33(1) of the 1992 Constitution, determining that

suits brought under Article 33(1) ought to prove a personal interest.

Bilson v Attorney General [1993-1994] 1 GLR 104 gave birth to the principle

that suit brought under Article 2(1) must contain a real case of

controversy or dispute, and not merely ask the Supreme Court enter into an

academic adventure. There must be some real cause of action so that the

determinations made by the Court would not be made in a vacuüm.

In New Patriotic Party v National Democratic Congress[2000] SCGLR 461, the

Supreme Court by a majority of 3-2 decision, held that the act or omission

complained of as being in breach of the Constitution ought to have happened

and not be a mere declaration of intent.

That position appeared to have been vacated by the unanimous decision of

the Supreme Court in the National Democratic Congress v Electoral

Commission of Ghana [2001-2002] 954 where the Court dismissed the

plaintiff’ suit for lack of evidence and not the absence of locus standi

even though the defendants in that suit had merely communicated an intent.

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Be it as it may, clarity of the Supreme Courts position can be found in

Amidu v President Kufour,[2001-2002]SCGLR 86, where the majority of the

Court held that the act or omission complained of, must not just a

statutory provision but must indeed violate a specific provision of the

Constitution. My understanding being that to have qualified under this

ground, the act or omission complained about ought to have taken place

thereby making intents not actionable under Article 2(1).

In that same case, the Supreme Court held that in cases where specific

remedy was provided by other provisions in the Constitution, the Supreme

Court would not entertain a suit brought under Article 2(1) of the 1992

Constitution.

In Attorney General (No 2) v Tsikata(No 2),[2001-2001] SCGLR 620,specially

at page 698, per Afreh JSC, as he was then, the Supreme Court reaffirmed

her earlier position not to entertain suits cloaked as though it were for

interpretation and/or enforcement when in real sense other remedy laid

available per specific provisions of the constitution. In the estimation of

Afreh JSC, as he was then, that was a fundamental principle that the

Supreme Court had for over a period of 30 years abide by and which, when

breached should result in a dismissal of the suit so brought in limine.

And finally mention must be made of Yeboah v JH Mensah, [1998-99] SCGLR 492

where the majority of the Supreme Court held that actions brought under

Article 2(1) were not time bound.

I do concede that these principles are good for the purpose for which they

were established, what I would disagree with is the use of these principles

to frustrate attempts by persons such as Martin Amidu to protect and

promote the public interest. For in my view, the legitimacy of the

constitution is structured on the true warranted belief that it promotes

public interest and public good.

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Mr. Martin Amidu being Ghana's longest serving Deputy Attorney-General and

after Attorney-General and being a party to some of the cases that

established these principles was clearly aware of the position of the law

on his suit, especially on those aspects that bothered on jurisdiction.

What in my humble view he sought to do, however, was to invite the Supreme

Court to leave their earlier positions especially on matters of

jurisdiction and to assume its proper authority of asserting control over

events in lower courts when it is demonstrated that Justice would not be

served and the national interest would not be protected.

It is my suggestion that had the Justices of the Supreme Court properly

directed their minds to the facts surrounding the Woyome, Waterville and

Austro-Invest case, their decision, particularly with regards to the

Attorney- General would have been different. There clearly isn't any basis

to trust that the Attorney-General as a person, or her office as an

institution, intend to recover the monies illegitimately paid out to

Woyome. It should be noted that as a department, the Attorney-General's,

had all the documents, at all material times, that proved beyond all doubt

that Mr. Woyome had no basis for the claims that he was making, yet, that

same department went ahead to issue orders and instructions, and even a

purported consent judgment with Mr. Woyome, entitling him to the payment of

those monies. As a person, Ms. Brew, the Attorney-General, is a member of

the law firm that led, against all ethics and indeed against the laws of

Ghana, a defunct company called Austro-Invest to make the claims they made

against Ghana. She, is indeed, neck-deep in the allegations of impropriety

leveled against the law firm of which she is a senior partner. Again, the

Court ought to have taken judicial notice of the statements made by the

former Deputy Attorney General, the current Deputy Attorney General and the

pronouncements of frustration by the trial judge Ajeet-Nasem over the

inability of the State to continue timeously with the prosecution of this

case.

Even though specific remedy, constitutional and statute wise, did seem

available to Mr. Amidu, consideration should have been made of the obvious

truth that those in whose hands these powers are, are themselves so

implicated in the scandal as to not to use it or intend using. Mr. Amidu's

quest was to bypass Articles 88(3) and 88(5) to do what the

Attorney-General, had clearly failed to do. Sad to say the Supreme Court

declined the invitation preferring to stick to their iron-cast modus

operandi with regards to Article 2(1).

The greatest danger is that when an Attorney-General fails to properly

discharge his or her duty even when such a failure is so clear and

deducible on the facts alone, that any move by any person to correct the

situation at the Supreme Court, would not be entertained unless there is a

clear need for interpretation or enforcement. I think most respectfully

that the highest Court of the land, while they were commendable yesterday

in taking notice of the great patriotism of Mr. Amidu ought to have gone

further by making pronouncements on the Woyome aspect of the suit

regardless of the case pending before a High Court. Where it is clearly

demonstrated that the public interest is at stake, the Supreme Court, ought

to in my humble view, not to be distracted in the handling of justice by

mere technicalities and legal doctrines.

The Supreme Court ought to take note and properly direct itself in future

on how it intends to handle issues like the one brought before it by Mr.

Martin Amidu. Respectfully submited.

Columnist: Hagan, Ebenezer