Has NPP Opened Supreme Court’s Pandora Box?

Wed, 16 Jan 2013 Source: Kofi Ata, Cambridge, UK

After dinner on Thursday January 10, 2013, I hurriedly wrote a brief article on the major news item of the day in Ghana. That was, the objection of the Presiding Justice of the Supreme Court (SC) panel hearing the first part of NPP’s petition to the SC asking for a number of reliefs, including the annulment of the declaration of His Excellency, John Dramani Mahama as winner of the 2012 Presidential Election and for the party’s presidential candidate, Nana Addo Dankwa Akufo Addo to be declared President instead (see, “Did the Supreme Court Falter on the First Step to a Giant Leap?”, Ghanaweb January 11, 2013). At the time of writing, media reports indicated that the Justice in question was Justice William A Atuguba, whose relative, Dr Atuguba has just been appointed by the President as his Executive Secretary. On face value, it appeared NPP had a genuine case and indeed, I sympathised with NPP. It was only after I read comments by readers that I realised my folly in rushing into writing the article without the necessary background information. In the tenth of post election articles, I try to analyse why NPP raised the objection only to back down in less than twenty hours.

As pointed out, if I had known the political and family connections within the Justices of the Supreme Court, the tone of my abovementioned article would have been different. However, I am pleased that I redeemed myself or recused from accusing the SC of wrong doing in the concluding paragraphs of the article, especially the last two sentences as follows, “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”.

I am sure a lot of Ghanaians would want to know from NPP, why the party raised the objection knowing very well that there were more Justices on the panel with family and political lineage to NPP than NDC? It is even alleged that SCJ Atuguba was a defeated parliamentary candidate for the Popular Front Party in the 1979 General Elections. Is it not a truism that UP became Progress Party (PP), metamorphosed into the Popular Front Party (PFP) and now the reincarnated New Patriotic Party (NPP)? So what is their bone of contention if the party allowed Dr Bawumia, whose family are from the opposite side of the political divide to be the Vice-Presidential candidate of the party on two consecutive occasions? Of course, one could say that SCJ Atuguba might have changed his political allegiance since 1979 but would that be rational for NPP to open the Supreme Court Pandora Box of conflict of interests?

As kid growing up with my late grandmother, she knew that as a twin I was banned from eating “rat” meat (kusie) but any time I reported my younger sister’s mischief to our grandmother, she will tell me that, “to leave the elephant in the forest and turn round only to shoot the rat was not only folly on my part but an act of desperation”. Why kill the rat when I know I cannot eat it, she asked? On other occasions, she will tell me, “when you have cotton wool hanging from your buttocks, you not jump over the naked flame” or ask me, “why do you worry about a speck in sister’s eye when you have a log in yours? This was because and according to her, out of the two of us, I was the more mischievous, so she did not see the point in me reporting my sister’s minor mischief. With time I became cautious in reporting my younger sister, no matter how naughty she had been and adopted “dzi wo fie asem” policy (mind your own business).

Was NPP aware that by raising the objection to the membership of SCJ Atuguba on the panel, the family and party connections of the remaining justices would become public debate and part of the political discourse? If so, then why did the party’s legal team take the risk and was it a political or legal strategy? Was it just to cut off their nose to spite their faces or what?

I do not believe NPP just wanted to cut off their noses to spite their faces but rather had a well calculated plot to put SCJ Atuguba on the defensive and to say that he is under their watch. That way the legal team hoped to ensure that he would not be biased against the party. However, this strategy could backfire because the objection has exposed all the connections within the nine member panel and has consequently put all the Justices with family and party connections on the watch of the public and the world at large. The potential result is that, whatever decision that comes from the Justices at the end of the hearing will be subjected to microscopic examination in the political laboratories of NDC/NPP. Ultimately, the written decision will be made public and the world would know who amongst the Justice voter for and against and that is when the family and political alliances would be confirmed in the minds of the public.

The other objective was to put Justice on notice and either compel or coerced him to recuse himself from the case. But that is not guarantee since that could be seen as an attack on the independence of the Judiciary. Others may regard such as outcome as weak on the part of the SC or the Chief Justice’s ability to take decisions and stand firm in the face of baseless opposition or criticism. In fact, die hard NDC members, supporters and sympathisers may conclude that the Chief Justice has chicken out to pressure by NPP or even doing the bidding of the party that appointed her to the position. It’s payback time and others will draw the connection to her sister being married to a member of the legal team of Nana Akufo Addo et al.

It is also feasible that the whole of the Justices could be hard on the party’s legal team for attempting to question their impartiality and their ability to be fair and administer justice despite their family and political lineage, past or present. To suggest that the Justices are incapable of assessing the merits of the petition and make an objective decision base on the facts of the case and the law of the land, is an attack not only an attack on one of their own but the whole family of Supreme Court Justices.

Though objecting to a judge or SC Justice is a right and part and parcel of the judicial process to ensure fair trial and for justice to be seen to have been done, this particular objection has also exposed the mistrust within the two leading political parties in Ghana of the important institutions that are to protect and defend the rights of the people, especially those that are part of governance or under the direct control of the Executive such as the police and the armed forces. This is particularly so for those institutions whose membership and leaders are appointed by the Head of State from time to time because the two parties use their appointing authority to influence or control the operations of such institutions through the patronage of their appointment decisions.

The objection was not in good faith and could be a risk to the independence of Judiciary and dangerous to the strengthening of state institutions, the development and deepening of democracy as well as the rule of law in Ghana. NPP’s objection of SCJ Atuguba on the panel may in the end, seek to weaken the SC as a whole, especially, after the objection was withdrawn without good reason when the supposed connection is still valid. Has the legal team realised that they bit more than they could chew?

In my view, NPP miscalculated and the objection was an error of judgement that as my grandmother told me, smacks of an act of desperation. NPP began their petition by an attempt to sway public opinion on their side and continued to prosecute the case in the court of public opinion with press conferences at every action they embarked upon on their journey to the Supreme Court. Though no press conference was called to announce their now infamous objection to the Presiding Justice or prior to and after the u-turn, it is now daunting on the party that, it is beginning to lose the public opinion war.

The Nana Akufo Addo el at legal knew that, when it comes to family relations and political connections within the judiciary in general and the SC in particular, the NDC is second to NPP. Again, it is common knowledge that because of the barbaric act of the murder of the judges in the first year of the PNDC reign, NDC has few friends among the judiciary. So, why NPP raised this objection is anyone’s guess. They might have unintentionally dislodged the fraternity they have with the judiciary and may reap the repercussions to come.

It was a bad move that may haunt them for years because the party has directly or indirectly served notice that it has no confidence in the some members of the judiciary or the judiciary as whole. When under attack, the natural cause of reaction is to go on the offensive and I would not be surprised if the judiciary resort to defending themselves but I pray and hope that the SC will prove to all and sundry that they are above the NDC/NPP hegemony. Until this objection, I wrongly assumed that NPP was pro judiciary but the goodwill could be slipping out of their hands with this irrational decision.

I am beginning to suspect that the public no longer have sympathy for NPP’s quest to seek election redress at the SC. For whatever reason/s (objective, rational or otherwise) that the objection was raised on that fateful day, NPP underestimated the public mood and could have themselves to blame. It may be too late to cry over spilled milk. Good luck NPP and avoid any further self inflicting damage. Perhaps, you should adopt the late Mills’s “dzi wo fie asem” policy that you ridiculed, otherwise, the party will end up committing suicide after suicide.

Columnist: Kofi Ata, Cambridge, UK