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Harruna Attah writes: From 'no court' to 'go to court'

Supreme Court Lead.jpeg?fit=1024%2C683&ssl=1 The Supreme Court of Ghana

“As sober as a judge”

The sobriety expected of judges goes beyond the avoidance of too much partiality to the bottled stuff to cover a judge’s entire persona. A tipple or two here and there could be overlooked but marriage to the bottle is not a welcome disposition in a judge at all. “As sober as a judge”, has become a time-honoured aphorism that goes to show the high esteem in which society holds judges. They play such a crucial role that they alone are singled out to be deferred to as “Your Lordship/M’lord” (UK/Ghana and elsewhere) or “Your Honour” (US and elsewhere).

In the case of the UK – and Ghana too – they are entitled to some of the most anachronistic costumes/uniforms imaginable, with wigs, scarlet robes and all! Don’t get me wrong: it is not as if I do not like uniforms. I love a good military outfit, a doctor’s white jacket and stethoscope hanging from or around the neck, an airline pilot’s uniform with shoulder stripes, and such things. Judges and religious leaders in their raiment, honestly, make me laugh – no irreverence meant, just, well, just like a Sir John Tenniel illustration in Lewis Carroll’s Alice in Wonderland, one cannot help but chuckle at the spectacle – see illustration above.

Though expected of all of us, but especially from public servants, the benchmarks of fairness, moral courage, integrity, honour, impartiality and non-partisanship are most highly expected in judges. In return, society lavishes them with privileges and remunerations over and above the average, so as to keep them on the straight and narrow. They are expected to keep very far away from the C-word: Corruption! And corruption can take many different guises, the most egregious and pernicious being when they allow partisan politics to sway them from doing the right thing.

Judges must be so exemplary that they would not invite public opprobrium to themselves. They must remain sober and clear at all times to be able to function as arbiters of right and wrong. All the high expectation is so that they will be fair and honest in arriving at judgements that would be acceptable to all, and even if such a judgement went against one side, it would be accepted as fair and square by all sides. That is all that is expected of them: fairness and honesty. But if they can be second-guessed even before a case has been tried, then they would have become saboteurs and subversives, not defenders and promoters of justice, human rights and democracy.

As a minor in secondary school, during the 2nd Republic, in 1970, I used to hear my elders talk of Apollo 568. The story became clearer when I grew up, details of which can be found in the archives of the Daily Graphic and Ghanaian Times of April 1970. The most quoted quote in the media at the time was the following: “No court can enforce any decision that seeks to compel the government to employ or re-employ anyone. That will be a futile exercise and I wish to make that perfectly clear.” That was Dr. Kofi Abrefa Busia, leader of the Progress Party (PP), the ruling party and Prime Minister, whose government had lost a case at the supreme court. It still remains a controversial, or perhaps notorious case in the history of Ghana’s government-judiciary relationship.

A political movement bearing the names of Prime Minister Busia and Dr. J.B. Danquah (a member of the UGCC), called the Danquah-Busia Tradition was cobbled together from the rump of the United Gold Coast Convention (UGCC) to contest elections after Dr. Kwame Nkrumah had broken off as General Secretary to form the Convention Peoples Party (CPP) to eventually become the founder of our independent country. The UGCC imparted some of its DNA to later political parties like the UP, PP, PFP UNC(?), and is operative to this day as in the New Patriotic Party (NPP).

They later grafted Dombo onto the name to read Danquah-Busia-Dombo Tradition. The tradition has had mixed fortunes and has been holding sway since Election 2016. Election 2020 which saw the tradition’s presidential candidate Nana Addo-Danquah Akufo-Addo, proclaimed winner by Madam Jean Mensa of the electoral commission, is at the present moment being challenged by John Dramani Mahama, the candidate of the National Democratic Congress (NDC) in a petition to the supreme court. The presidential elections of 2020 is now therefore in the hands of nine individuals of the court. So much expected of so few by so many.* A handful of disputed parliamentary cases are also awaiting final hearing in lower courts. All eyes and ears are now fixed on our judges…

With the power of contempt available to judges – and having served time for contempt myself – one must craft one’s words carefully in order to purge malice, and so: some individuals on the current supreme court, rightly or wrongly, are alleged by many (at least the almost 7 million Ghanaians who did not vote for the NPP candidate) as not matching the kind of fairness, moral courage, integrity, honour, impartiality and non-partisanship of their predecessors who ruled in favour of Mr. Sallah fifty years ago.

The critics of the court regard some panelists on the current petition as political outcroppings of the present-day Danquah-Busia-Dombo tradition, incapable of dispensing justice without sidelong glancing at the tradition’s leadership for direction. That is a tough call on the judges – and perhaps also unfair, because as they try the petition, they are also on trial by the public especially that the proceedings are telecast live and citizens can see and hear for themselves what’s going on. Of course, it is not all the judges that can or should be tar-brushed that way.

Behaving like bookmakers, I have heard critics already putting out bets on the final score just by looking at the composition of the panel – not for me to repeat here, but worrying enough, because according to such critics, the petition was decided by the simple maths of the panel. Calls to mind the king in Alice in Wonderland, who was also the judge (see illustration above) who asked jurors to consider their verdict when no evidence had even been put before the court in a case involving the Knave of Hearts!

But others argue (and I am one of those) that, there could be surprises. They point out how in the US, Trump-appointed judges from circuit courts all the way to the supreme court allowed democracy to win out the day by refusing to bend to the incumbent executive’s whims, and similarly, on our own continent, how in Malawi, the constitutional court annulled a presidential election due to its flaws and obvious cheating. The Malawi constitutional court is now the toast of the free world, earning it the highest award from Chatham House due to this glimmer of hope from Africa.

With these precedents in mind and our own supreme court’s courageous decision in 1970, I am quite sure that judges can be sober, honest and fair indeed – if they want to, and so I have optimism, in spite of the alleged unfriendly body language of some of the judges on the panel. My optimism ranges from average to slightly high…But we will see. From “No Court” of NPP’s predecessor’s blatant abuse of the judiciary to “Go to Court”, NPP’s taunt against the NDC after the latter’s inability to accept the outcome of Election 2020, it’s been half a century of a country still in search of the fairness that would allow citizens to look up to its judiciary for the independence they can all buy into…The last four years have seen Ghana buffeted by the whimsy and caprice of failed institutions of state which have been more beholden to the aggrandizement of the executive than the overall goodness of the state.

To end this cautionary tale, some more strong words from Dr. Busia: “I cannot be tempted to dismiss any Judge…I shall neither honour nor deify anyone with martyrdom: But I will say this, that the judiciary is not going to hold or exercise any supervisory powers not given to it by the constitution.” Time was in our history when our judiciary was truly independent of the executive. When the then acting chief justice was being nudged for the judiciary to mend fences with the executive, he quipped with one line: “We’ve no tiff with the executive.” True, M’lord, doing the right thing should not put you in any tiff with anyone…

Some food for thought there…

Note: Quotes sourced online and *pardon the Churchillian turn of phrase.

Columnist: Amb. Alhaji Abdul-Rahman Harruna Attah, MOV