Tsikata challenges govt's decision to seek review

Mr Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC), has filed a writ at the Supreme Court challenging the decision by the government to seek a review of the Supreme Court decision, which declared the Fast Track High Court (FTHC) unconstitutional.

The defendants in the case are the Chief Justice and the Attorney-General. Mr Tsikata, who was standing trial at the FTHC for allegedly causing financial loss to the state filed a writ at the Supreme Court challenging the legality of the trial court and won the case by a five-four majority decision early last month.

The new writ said in view of the clear interest shown by the Chief Justice that his dissenting view in the suit should become the majority view upon the review, the empanelling of two additional justices would be a way of increasing the chance of reversal of the majority decision and would be a violation of article 296 (a) and (b) of the constitution.

Mr Tsikata is, therefore, seeking an interpretation and enforcement of article 133 (2) of the 1992 constitution to the effect that there is no constitutional requirement for there to be a panel of 11 justices of the Supreme Court to hear a review of a decision by a panel of nine judges.

He said the same constitutional clause states that except in the case of a decision by a panel of five judges of the Supreme Court, there is no requirement for the Chief Justice to add two additional judges to hear an application for a review of its decisions.

The writ said the January 10, 2001 Practice Direction of the former Chief Justice, being used as a reference point should be declared null and void and contrary to article 128 (2) of the 1992 constitution. The defendants must, therefore, be restrained from acting on the basis of the said Practice Direction of empanelling justices of the Supreme Court.

Mr Tsikata, who was represented by Professor Emmanuel Victor Oware Dankwa, noted that on a true and correct interpretation of Article 128 (2) and Article 133 (2) of the 1992 constitution, there is no "ordinary bench" nor is there a "full Bench" of the Supreme court as existed under the 1992 Constitution and the 1971 Courts Act, Act 372.

He said at the time the application for review was filed, the number of judges of the Supreme Court was in conformity with Article 128 (10) the constitution on the composition of the Supreme Court.

He said in respect of the appointment of Mr Justice Kwame Afreh, a press release of March 11, 2002, issued by the Minister of Information and Presidential Affairs stated that in event of a review of the FTHC decision, there would be an appointment of 11 members, a larger bench than the nine members who heard the original case.

Mr Tsikata insisted that there is no requirement either in the constitution or judicial practice that the Chief Justice should empanel a larger bench than the nine members who heard the original case.

He said the Chief Justice has even procured the nomination and appointment of a new Justice of the Supreme Court, Mr Justice Kwame Afreh, to bring the number of Justices to eleven and use the Practice Direction to compel this new Justice of the Supreme Court for the review.

He is of the view that the appointment of Mr Justice Afreh does not confer on him, a constitutional right to sit, where practicable and especially, in constitutional cases as the application of the Practice Direction would necessitate nor is it necessary for him to sit on the review of the case.

It said in relation to a review, the constitution has the requirement of a minimum of seven judges, which has already been complied with in the composition of the panel for his case.

Mr Tsikata is, therefore, calling for a direction by the Supreme Court that the discretionary powers vested in the Chief Justice under Article 125 (4) of the constitution should be exercised in accordance with Article 296 (a) and (b) of the constitution and not on the basis of erroneous interpretation of the constitution.