The Legal Battle Of The Year 2002
The Kufuor administration is entering its third year in office with even greater determination to improve the justice delivery system. This follows its victories over the former Chief Executive Officer of the Ghana National Petroleum Corporation, Tsatsu Tsikata. Mr. Tsikata filed a suit at the Supreme Court challenging the legal basis of the Fast track court, where he was being tried for causing financial loss to the state. The twist the case took was dramatic and one that threatened the whole legal system of Ghana.
The DramaIt was a hot afternoon in February-in fact it was the last day of the month. It was almost business as usual in all of Ghana. Then the unexpected happened the Supreme Court declared that a group of high courts, equipped with recording machines and modern gadgets to speed up trials were unconstitutional.
With its 5-4 ruling, the Supreme Court threw the nation into controversy. Attorney General and Justice Minister, Nana Akuffo Addo, who was in the courtroom held his head in his palms in despair, and for all his reputation as a man of verbal acrobatics, Nana Addo could not utter a word for about five minutes.
It was one of the most desperate moments for President Kufuor and members of his governing team. President Kufuor, who was in far away Australia attending a Commonwealth Heads of State summit, is reported to have said that he would use all his constitutional powers to make sure that the Supreme Court ruling was reversed.
Having received the all clear from the President, the Attorney General called a press conference in Accra to outline how the administration would move to get the Supreme Court ruling reversed. What he did essentially was to file an application for review ? the equivalent of an appeal in a lower court. The day after the ruling, the media was abuzz with comments about the verdict. Former President of the Ghana Bar Association, Sam Okudjeto, is of the opinion that the ruling was not based on logic. "I could not just see any legal basis or any logic in the decision and my reason is simple. Technically when you talk about a fast track court, it is not instituting a new court".
At the time of the ruling, the Fast Track Courts had dealt with 63 cases. Two of those cases were criminal cases, including the conviction of former Youth and Sports Minister, Mallam Yusif Issa, on a charge of causing financial loss to the state. With this in mind, Accra-based legal practitioner, Nana Bediatuo, described the Supreme Court ruling as recipe for chaos.
''Here we had a situation where rulings had been given by a court that had been declared unconstitutional. It meant that cases that had been heard, properties handed over and monies that had exchanged hands as a result of rulings by the fast track had to be reverted. That was certainly going to create chaos''.
But there were others, mostly opponents of the government, who praised the eminent jurists of the Supreme Court, who mustered the guts to tell the government that the fast track was a wrong track. Cletus Avoka, the NDC Member of Parliament for Bawku West said "we did not want selective justice. The fast-track court appeared to be interested in persecuting only NDC officials when people who were committing more serious crimes were never taken to the courts".
The Hero And VillainIn the midst of the debates over the ruling of the Supreme Court, one person stood out for commendation and condemnation - the former Chief Executive of the GNPC, Tsatsu Tsikata, who filed the suit challenging the constitutionality of the fast track courts. He was applauded for daring to stand up against the system, which, many saw as a tool for persecuting opponents of the administration. But he was also chastised for attempting to bring a whole country's legal system to its knees literally clinging to every straw in sight to escape prosecution after he allegedly looted the GNPC.
Mr. Tsikata even got an Accra High Court to proclaim that it had no power to hear the case brought against him. Shortly thereafter, a botched attempt to arrest Mr. Tsikata in church added to the embarrassment of the government. President Kufuor returned from Australia, and seeking to avoid further embarrassment, he ordered the Attorney General's Department to end all legal proceedings against Mr. Tsikata until the Supreme Court sat on the review application. The review application presented a controversy of its own, which further pointed to the sharp divisions between the government and the opposition. But that is another story.
The legal battle of the year 2002 provided material for the academic study of the law. It also showed that with determination and the constitution on its side a government can do whatever it wants.
The Controversial AppointmentTsatsu Tsikatas challenge of the constitutionality of the Fast Track Courts also opened the floodgates for the appointment of more Supreme Court Judges. One of the new appointees, Justice Kwame Afreh, joined the ranks of the most senior judges in the country on a wave of controversy, as government sought a reversal of the ruling against fast track courts.
At the time of the fast track ruling, there were ten judges on the Supreme Court. But only nine of them sat on the case brought by Mr. Tsatsu Tsikata four voted for the Fast Track, five voted against. In seeking the review, government argued that there was the need for more Supreme Court judges to be appointed.
True to his word, President Kufuor seemed to be doing everything within his constitutional powers to ensure the reversal of the Supreme Court ruling. But his moves were creating controversy and providing fodder for opposition fire.
Sam Okudjeto says the government was caught in a dilemma that was partly the making of the constitution. "People were thinking the number of judges in the Supreme Court was being increased to ensure the government won the review. Fact of the matter however is that many of the judges in the court were retiring or about to retire so there was the need to get new ones. The problem arose because the constitution put a seal on the minimum number of judges in the Supreme Court without specifying the maximum".
In spite of criticism, President Kufuor named Justice Kwame Afreh to the Supreme Court. The appointment was criticized because, very few, if any, believed that Justice Afreh could be independent-minded enough to vote against the existence of a court he had been presiding over. Justice Afreh was sitting on a number of cases at the Fast track court when the Supreme Court handed down the verdict against the court.
No one questioned his competence or his qualifications but those who opposed his appointment to the Supreme were worried about ''the timing''. The Chairman of the Appointments Committee of Parliament, Freddy Blay, which approved Justice Afreh?s appointment, is of the view that the argument about timing was baseless. "I saw nothing wrong with it. The appointment of Justice Afreh to the Supreme Court was long overdue. He had been nominated by the bar association long ago but because he was not perceived to be pro-government, he never got there. He is a competent judge deserving a place on the Supreme Court".
The opposition members in Parliament refused to join the panel, which interviewed Justice Afreh and later approved his appointment. As it turned out, Justice Afreh, indeed went to the Supreme Court and voted in favour of the fast track court, helping to reverse the ruling by six votes to five. The NDC MP for Bawku West, Cletus Avoka, contends that the opposition pf the minority to the appointment of Justice Afreh was vindicated.
Who Is WhoSince Justice Afreh, six more judges have been appointed to the Supreme Court without controversy. The fast track courts are now firmly in place and government officials have been speaking about their determination to equip the judiciary to ensure the speedy administration of justice. More fast track courts are to be established around the country and the former GNPC boss is back in court, facing charges of causing financial loss to the state.
Despite his losses, Mr. Tsikata is not crying. But he is not laughing either. The sounds of laughter, for now, belong to Attorney General, Nana Akuffo-Addo and other members of the Kufuor administration. They have been laughing since June, when the Supreme Court reversed the infamous fast track ruling. And they could be laughing even louder if Mr. Tsikata is convicted.