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Did the Supreme Court Falter on the First Step to a Giant Leap?
Opinions Fri, 11 Jan 2013

Did the Supreme Court Falter on the First Step to a Giant Leap?

Media reports from Ghana indicate that NPP objected to the membership of the Justices empanelled by the Chief Justice to hear the first part of the presidential petition at the Supreme Court. That is, the application by NDC to join the suit as third respondent. According to Joy Online report posted, the nine Justices empanelled to sit on the case are, William A. Atuguba, (Mrs) Rose C. Owusu, (Ms) Sophia A. B. Akuffo, P. Baffoe Bonnie, Julius Ansah, (Ms) S. O. Adinyira, Jones V. M. Dotse, Anin-Yeboah, and Mrs. Vida Akoto-Bamfo. It is understood the Presiding Justice is SCJ W A Atuguba. I also suspect this is the Justice that the NPP is not happy to be on the panel let alone preside over proceedings. Two days ago, the President appointed Dr Raymond Atuguba (who is understood to be related to SCJ W A Atuguba) as the Executive Secretary at the presidency. In this brief article, I intent to assess the fairness or otherwise of the panel and the potential for conflict of interest.

In most democracies, Supreme Justices are divided along conservative and liberal ideologies which are often reflected in the way they vote on issues that go before the Supreme Court. It is also commonly known that, Presidents, Prime Ministers and Heads of States who nominate or appoint senior Judges onto Supreme Courts often do so along political ideologies. For example, in the United States, Republican Presidents tend to nominate conservative Judges as Supreme Court Justices and Democrat Presidents also tend to nominate Judges with liberal views.

I am sure the practice in Ghana is no different and therefore it is most likely that Presidents Rawlings and the late Prof Attah Mills might have appointed Judges who were sympathetic to NDC political ideology and so did President Kufuor also appointed Judges who were sympathetic to NPP philosophy unto the Supreme Court.

No matter what the ideological or philosophical background of a Supreme Court Justice, what is required of him or her, is first and foremost, to administer justice. Though their decisions are influenced by their ideological views or they way they see the world around them, they do not always vote purely on ideological or political lines. For example, in the recent Health Care Act case in the US (Obamacare) that went before the Supreme Court, some were surprised by the direction taken by the Chief Justice who is considered to be conservative minded and was appointed by President George Walker Bush. As to whether the decisions Supreme Court Justices make are fair or not, it is critical that, justice is always seen to be done by the people and that is what they are on there for.

One element of ensuring that justice is seen to be done is the avoidance of “conflict of interest” in all judicial matters. Conflict of interest simply means real or potential existence of a direct or indirect benefit (either personally, through a family member, an associate, acquaintance, friend both past and present, etc) and associate includes both persons and corporate bodies. The conflict must be known or should have reasonably been known at the time of the case.

Where there is real or potential conflict of interest, the Judge concern must declare it for a an independent person to assess the potential impact of the conflict on the case and make appropriate recommendation on whether the individual Judge should be recused from the case. In most cases, the Judge in question will decide to recuse himself or herself from the case because of the risk of real or potential bias as well as the risk of an appeal to a higher court or even a judicial review if the conflict of interest becomes public knowledge after the case. The consequences of not declaring a conflict of interest is not only the possibility of damage to the image and credibility of the Judge but the judiciary as a whole.

I expected that due to the importance of the case as well as its novelty, the Chief Justice would have been a member of the panel. However, it is reasonable to expect that because it is known that her sister is married to a leading member of the NPP, it would have been considered a potential or real source of conflict of interest since her membership could disturb the principle of “justice being seen to be done” and therefore it is right and appropriate for the Chief Justice to recuse herself from the panel. This is because her brother-in-law could be affected directly and indirectly or benefit directly or indirectly from the decision of the Justices.

In the same vein, I expected that after the appointment of Dr Raymond Atuguba as Executive Secretary to the President by the President, whose position as President is being challenged by the NPP at the Supreme Court, SCJ William A Atuguba would have considered it necessary to recuse himself from the case. If he did not see the real or potential conflict of interest, then the Chief Justice should have considered it and act accordingly to recuse him. It is possible that the Justices were empanelled before the President made his appointment but as soon as the appointment became public knowledge, the membership should have been reviewed. The failure to do so was a misjudgement

For Justice William A Atuguba not to have considered his position and for the Chief Justice not to have addressed the potential conflict of interest is to say the least, a very bad move that may haunt the Supreme Court. It is even serious if as it is reported SCJ William Atuguba is the Presiding Justice. Though as Presiding Justice, he only manages the hearing and other Justices could over vote him, he plays a key role on the direction of how proceedings are conducted.

For the above reasons, I have strong sympathy for NPP’s objection to SCJ William Atuguba on the panel because his relative has just been appointed Executive Secretary by the President. In my view, the first step taken by the Supreme Court by way of the membership of the panel to hear this landmark case has not been the best.

Having said that, is it really true that SCJ William Atuguba could not have administered justice in the case just because of his relative being a member of the presidential staff? We will never know but when the in the minds of the people, such connection casts doubt in their minds and most likely that society would not have believed that justice would have been seen to have been done, it is justified for NPP to make their objection known.

In that case are there any more Justices on the panel that NPP or NDC may object to? We are yet to know but my advice is that, both NPP and NDC should be careful in tagging the Justices as pro or anti-NPP/NDC. After all they are also human and Ghanaians, they have their own opinions, family members, friends and acquainted from within the Ghanaian society. They have school mates and work colleagues, people they worship with, neighbours and many other human relations in everyday endeavours, which in totality could influence and compromise their views and possibly their judgement. However, we should not judge them only by such connections but above all, their ability to decide on the merits of the case before them. Otherwise, we might as well ask angels from heaven to be on the panel.

Supreme Court of Ghana, Ghanaians and the world are watching.
Columnist: Ata, Kofi