Tsatsu's case: Review put on hold

The much-expected review of the Supreme Court decision that declared the fast track court system unconstitutional has been put on hold.

The development is as a result of a writ filed by Mr. Tsatsu Tsikata, who is accused of having allegedly caused financial loss of CFA 5.5 million to the state.

In a writ filed in Accra by his leading counsel, Professor E.V.O Danquah, Tsatsu is praying the court (Supreme Court) for a declaration that the discretionary power vested in the Chief Justice (CJ) under Article 125 (4) of the 1992 Constitution, should be exercised in accordance with Article 296 (a) and (b) and not on the basis of erroneous interpretations of provisions of the 1992 Constitution.

The writ dated Thursday March 27, 2002, was served on the CJ, Mr. Edward Kwame Wiredu and the Attorney-General, Nana Akufo-Addo as first and second defendants respectively, the Daily Guide reports.

Referring to the discretionary powers allegedly vested in the CJ, the plaintiff asserts that the practice direction in purporting to confer on “available justices of the Supreme Court” where practicable and particularly in Constitutional right to sit” is in contravention of Article 125 (4) as it is an unconstitutional fetter on the discretion of the Chief Justice, based on an erroneous interpretation of the Constitution, which furthermore leads to departure from clear constitutional provisions as to how the Supreme Court is constituted to hear cases forcefully argues Mr. Tsikata who already has two court victories in his basket against the A-G and for that matter, the government.

In a move suspected by legal analysts to prevent newcomer Mr. Justice Dixon Kwame Afreh from sitting on the review panel, Tsatsu’s writ contends that the appointment of Justice Afreh does not confer on him a “constitutional right to sit where practicable and particularly in constitutional cases as the application of the Practice Direction would necessitate, nor is it necessary for Mr. Justice Afreh to sit on the review of the original writ filed before the Supreme Court on February 2, 2002 as the press release of the Minister for Information and Presidential Affairs suggested.

This was in reference to a press release issued by Jake Obetsebi-Lamptey on March 11, 2002, which stated that, “In the event of a review of the fast track court decision, the appointment of Mr. Justice Afreh will enable the Chief Justice to meet the requirement to empanel 11 members, i.e. a larger bench than the nine members who heard the original case.

According to the plaintiff’s writ however, there is no requirement either in the constitution or judicial practice that the chief justice should empanel an 11-member or should empanel a larger bench than the nine members who heard the original case.

In seeking an interpretation as to the practice direction of the chief justice, referred to in Article 133 (2) of the constitution, which says a minimum of seven (7), justices must be empanelled to hear a review, Mr. Tsikata conceded that since that direction has already been complied with in the composition of the original panel which sat on the case, there was the need not to introduce any absurdity into empanelling of the bench.

Mr. Tsikata however contends that the practice direction as it so exists currently, is the Chief Justice’s personal desire, which has continued to be the basis for official action by His Lordship, the Chief Justice, Mr. Justice Wiredu.

Consequently, Mr. Tsikata cited a case to support his claim. Referring to the Supreme Court of Ghana Law reports for the review 2000 the plaintiff asserted that this report captures a concrete example of the CJ’s practice direction as follows:

In view of the above, and in the instant case, (i.e. Republic V. High Court, Bolgatanga and Hajia Fati Seidu, Exparte Hawa Yakubu, civil motion No. 2/2001). It reads; “by virtue of the powers conferred on the Chief Justice by Article 125 (4) and on me by Article 144 (6), I have decided that Hon. Sophia Akufo and myself, i.e. Justice E.K. Wiredu, Acting Chief Justice should be added to the Justices already empanelled. Signed, Hon. Justice E.K. Wiredu, Acting Chief Justice.”

This is the gel of Mr. Tsikata’s argument, his counsel says.

In his judgment in re: Adum Stool (No. 2) (2000), Wiredu JSC, (as he then was) erroneously referred to “ordinary bench” in reference to Supreme Court when on a true and correct interpretation of Articles 128 (2) and 133 (2) of the 1992 Constitution, there is no “ordinary bench” of the Supreme Court, nor a “full bench” unlike the case with the court of Appeal under the 1969 Constitution and 1971 Courts Act, Act 372, he further claimed.

The writ contended that the reference to the said practice direction by the Chief Justice in a recent radio programme as well as more recently in a speech he delivered at a conference of the Methodist Church Men’s Fellowship in Kumasi, the Ashanti Regional capital of Ghana, indicates that the Chief Justice continues to apply the said practice direction in the conduct of his responsibilities as head of the judiciary.

Mr. Tsikata claims therefore that it is essential that the unconstitutionality of the said practice direction, be pronounced upon and His lordship, the Chief Justice, restrained from acting on the basis of it.