A missed opportunity by Supreme Court to advance substantive justice and public accountability

In support of Petitioner’s objection to the decision by the Respondents not to testify in the ongoing presidential election Petition, Lawyer Tsatsu Tsikata, Petitioner’s lawyer was saying that despite, the rules of court which the Respondents have relied on to decline the opportunity to give evidence, the Supreme Court (SC), should consider the constitutional importance of the office occupied by 1st Respondent and give a ruling, which ensures that 1st Respondent takes the witness stand, tender in her witness statement as evidence, and be cross-examined.

The SC itself noted in its 11th February 2021 ruling on this line of argument by Petitioner’s Lawyer as follows;

“Finally, it was contended by counsel for the Petitioner that 1st Respondent’s Chairperson performs a very important constitutional function and as such must be made to adduce evidence in this petition to account for her stewardship to the people of Ghana.

The SC noted further in its ruling that, “Counsel for the Petitioner has argued that because the 1st Respondent, performs a very important constitutional duty, when it is sued in an action such as in this case different rules should be applied. However, counsel failed to refer us to any provision of the 1992 Constitution or any statute which required that 1st Respondent being a constitutional body should be subjected to different rules of the court and our own industry did not unearth any such authority.

With all due respect, the case law authorities cited by the SC court to address the issue, the bone of contention before it, relates to a dispute between private parties.

The cases did not relate in anyway to the need for a testimony between a private individual and a public body performing public functions within the context of a dispute over the validity of the election of a president.

The best precedents, if the SC was actually looking for any, should have been decisions in election disputes in which the court either here in Ghana or elsewhere has ruled that, the head of an independent election body cannot be compelled to testify. There would have been none, and the SC would have seen that, it was really dealing with a novelty.

The SC cited cases on the burden of proof in disputes generally but those decisions were inappropriate to the specific context. If there is any best practice which ought to have guided the court, then it should have been the 2013 Election petition in which, the Electoral Commissioner testified before the court. This is granted that there was no clear constitutional, statutory or other subsidiary legislation dealing with the issue of whether a public officer must necessarily testify because of the nature of the public office.

In Oppong v Attorney-General, Atuguba JSC held that the courts do justice according to three main yardsticks. These yardsticks are; statute law, common law, and the well-known practice of the courts. With all due respect to the SC, the 2013 presidential Election Petition, was Ghana’s first Election Petition, and the best practice irrespective of the applicable rule of procedure should be what happened during the Petition hearing in 2013.

In all, over 500 pages of ink were spilled by the SC to address the issues. The issue, whether the EC should testify or not, did not arise in that Petition but given the value, the presence of the Electoral Commissioner Dr. Afari Gyan brought to the entire case, the need for such a material witness to testify should not have been in any doubt in 2021.

It is a constitutional fact that, the SC is the apex court beyond which there is no other court within the territory. Apart from matters in which its supervisory, interpretation and enforcement jurisdictions are invoked, the SC is the final court of appeal in all matters.

The relevant constitutional provisions, the basis for underscoring the power of the SC are articles 129 clauses 1 to 4 of the constitution, 1992. The relevant articles are reproduced as follows;

129. (1) The Supreme Court shall be the final court of appeal and shall have such appellate and other jurisdiction as may be conferred on it by this Constitution or any other law.

(2). The Supreme Court shall not be bound to follow the decisions of any other court.

(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.

The SC can refer to its own previous decision or depart from it as it thinks fit. For the avoidance of any doubt, the SC is not bound by its previous decisions although all other courts are bound by what it has declared on matters of law only.

In effect, in exercising any lawful legal function, the SC can change the law and in matters where there is no existing precedent/legal principle, establish one.

The conundrum and sometimes the good thing, however, is that, even if the SC applies the law wrongfully or per incuriam, it is only the Supreme Court itself which can change it on the next available opportunity or somehow, when there are statutory inroads by the legislature. These are significant points to note because of the SC’s claim in its 11th February 2021 ruling on the subject issue.

The court noted “However counsel failed to refer us to any provision of the 1992 Constitution or any statute which required that 1st Respondent being a constitutional body should be subjected to different rules of the court and our own industry did not unearth any such authority.” Seriously, the SC was not really looking forward to any provision in a constitution dealing with the issue before it.

From the ruling, it appears that one of the legs on which Petitioner’s Lawyer argued was novel. In simple language, the call that, a different procedure for giving testimony be applied to ask the 1st Respondent chairperson, Jean Mensah, who performs an important constitutional function to testify willy-nilly is new and, challenges conventional legal thought, that a person will not be compelled to testify. Probably right, generally in private litigations, but the court forgot the rules of subpoena which essentially gets a witness to testify under compulsion. Nothing is really absolute and Petitioner’s Lawyer has given the clearest indication in that regard that the EC will be subpoenaed.

Again, the concerns by the court that Petitioner’s Lawyer did not cite any constitutional provision or Statute to support the contrary argument that the EC should testify is not only confounding but shocking and convinces many that, the public interest and state welfare was not a consideration when the SC ruled on the matter.

It is obvious, that the insistence by Petitioner that, 1st Respondent testifies after having filed a witness statement is a novel one and no wonder the SC itself announced that, their “own industry did not unearth any such authority.”

This admission is significant for the ensuing questions; Does it mean that, the authorities the SC relied on in its 11th February, 2021 Ruling in respect of the need to call/compel the EC to testify despite its Lawyer’s decision, because of its important constitutional function were inappropriate?

Does it also mean that the SC just found some private law rules to apply to such public interest litigation? Undoubtedly the SC is as powerful as the British Parliament capable of making any law and even if they were wrong.

Even if the SC is wrong who can take on the Watchman? Probably the Media. But should this not have been an opportunity for the SC to evolve a new jurisprudence that would advance public accountability on the part of public officials? Was the SC actually looking for another authority in Ghana or from another sovereign country to tie its hands or to empower it to evolve a new case law in a special context for the Republic of Ghana? It is the domain of the SC to pronounce in the most binding way, the state of the law.

In the decision of the Supreme Court of Malawi annulling its 2020 presidential election declaration, the court while discussing the burden of proof in election disputes noted that a presidential election Petition is a special suit. It is unlike other suits for that matter. (my emphasis).

That being the case, it should be easy for a SC to develop, special processes towards the ends of justice. The Malawi Supreme Court of Appeal stated “We have earlier underscored the significance and paramountcy of an election in a constitutional democracy.

As we consider the burden of proof and related standard of proof in an election challenge, we should highlight the fact that elections are perhaps the most visible, eventful and concrete expression of democracy in a democratic society. For that reason, a case challenging an election cannot be an ordinary venture. More so a case challenging the election of president.”

By way of further comment, there is nothing wrong if the head of the independent electoral body is subject to a different rule of evidence or a procedure regarding testimony before the court. Of course, there is ample logic or even indirect references in support of that position.

The EC is a public official and not a private person. Madam Jean Mensah’s testimony will not relate in any way to her personal life. The EC performed a public function on which rights depended. Not a private one. The general standards of conduct have not been the same for public officials and private individuals. Actually, for private persons, no institutionalized standard exists. But it does for Public officials. Chapter Twenty-Four of the Constitution, 1992 is titled; CODE OF CONDUCT FOR PUBLIC OFFICERS.

Significantly, Article 284 under this CHAPTER Twenty-Four, provides that “a public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.” This reference is only to emphasize the point that the framers of the Constitution, 1992 never intended to hold both private and public officials to the same standard of conduct. One, the public officer, certainly has a higher standard. The Asset Declaration Regime under Article 286 is also targeted at public officials.

The provision does not apply to private persons. This is why, it baffles me that the apex court of seven learned justices did not see reason in the argument of Mr. Tsatsu Tsikata. It is true that the SC was not engaged in a constitutional interpretation. It was engaged however in the interpretation of a Rule of Court or the application of some legal principles and absolutely, nothing tied the hands of the court from seizing the golden opportunity to advance the frontiers of law.

Regrettable as it is, the SC must desire another opportunity to pronounce on this similar issue and when it is brought before it, the SC should not refer to its 11th February 2021 ruling as precedent because, to say the least, the ruling is retrogressive and takes the fight against abuse of public office decades back. Otherwise, the disservice to judicial advancement must be remedied somehow, forthwith, by not putting any impediments in the way to subpoena the 1st Respondent’s Chairperson. This will be a nice backdoor approach to remedy the 11th February, 2021 backward decision.

Besides, that opportunity to advance law, was one which the SC should have taken advantage of to bring some practical value to the petition currently going on. As a footnote to this write-up, however, there is also great befuddlement why, the SC has become so fixated with the Rules of Court, which are merely subsidiary legislation and have generally, and consistently and on many occasions in application, been derogated from at all levels of the courts; District, Circuit Court, High Court and Court of Appeal.

The Rules of Court; Orders 38 of C.I 87, on which the SC focused its ruling, and even Order 36 of the same rules, the basis for Tsikata’s election argument, are mere handmaidens and not mistresses. The rules are servants and not masters.

They are to aid the ends of justice and not to stifle it. In this case, the rules are being used as Mistresses instead of handmaidens.

Despondency is setting in on the proceedings at the SC, and the SC must hold the Republic together in this volatile time. The evidence of the volatility and the high public interest is the continuous presence at the SC premises of armed military men and police, during the election Petition hearing.

By way of rounding up, this writer finds a surprising coincidence/similarity in the conduct of the SC, and that of the EC, and the article will end by highlighting that; The Electoral Commission and its Commissioner are being accused by John Dramani Mahama, Former president and the candidate of the NDC in the 2020 presidential elections, of serious infractions of electoral laws and also acting malafide.

The opportunity presents itself for the EC to confront and to persuade its accuser before the SC or undermine the accuser’s case, and the EC says, it has nothing to say. Incredible. Equally, the SC is the apex Court of the Land and has the power to make case law by way of advancing the law, and then the opportunity presents itself in a unique way, and the Supreme Court says, it refuses to advance the law. Hopefully, this sad situation can be remedied for Madam Jean Mensah to enter the witness box.

Anything short of that places Ghana’s future elections and the country’s peace and stability in danger because any biased Electoral Commissioner, will manipulate the National Collation Centre and its processes in favor of its preferred candidate.