How the Busia government and the judges dealt with ...

How the Busia government and the judges dealt with bias case in Sallah v A-G

Gabby Asare Otchere-Darko

Ghana’s Deputy Attorney-General recently introduced an element of

footsoldierism to the courts by announcing on radio that the presiding

judge in the murder case involving 2002 killing of the King of Dagbon,

Ya-Naa Andani II, was bias. With that he has succeeded in getting the

judge to excuse himself from the case. So with what frame of mind is the

next judge expected to be in?

In the words of the judge at the centre of it, “I have felt insulted,

scandalised and indeed bastardised all in the name of the

Attorney-General’s office attempt to play politics with the Bench in

general and with me in particular.” Strong, damning words from the Bench

to Government’s top legal officer.

Barton Oduro succeeded in letting the whole world-wide-web believe that

the judge was actually recorded in a drinking bar ridiculing the

prosecution case before him while he was under the influence of alcohol.

Justice Anthony Oppong said in stepping down from the case. “Barton Oduro

Esq accused me of being a drunkard and being irresponsible enough to have

gone to a drinking bar and under the influence of alcohol made prejudicial

comments about the case. I vehemently deny thus. I have never been to a

drinking bar and made any comment whatsoever on this Ya-Naa’s murder case.

I challenge Barton Oduro Esq to substantiate this allegation or render an

unqualified apology to me for running me that down.”

The Deputy A-G’s allegation triggered an avalanche of insults and threats

against the judge, forcing him to withdraw from the case. Yet, when the

Deputy A-G was asked to provide evidence he could only say that what he

has captured on tape is the voice of an unnamed lady alleging that she

heard or overheard the judge at a bar. In short, hearsay.

Under such circumstances, the A-G, who may already be worried about the

strength of his case, considering the pressurized political background

that led to it, would have been in his rights to first assure herself of

the credibility of the lady’s allegation and proceed quietly to file a

motion on notice asking that Justice Oppong be disqualified from hearing

the case, particularly were the lady making the accusation prepared to

testify in court to back it. For a country where people make a profitable

industry out of rumour-mongering and peddling false allegations

responsible people should first satisfy themselves on the facts alleged

before giving it currency.

A a similar issue came up forty years ago in a similarly charged political

atmosphere – that time between the UP people (under the ruling Progress

Party) and those of Nkrumah’s CPP. The case was Attorney-General v

Sallah. Yet, in that case, when the rumours started making the rounds

about the judicial bias the Attorney-General went directly but quietly to

the Chief Justice to complain of possible judicial bias. Acting Chief

Justice Azu Crabbe informed the Attorney-General, NYB Adade, that if his

informants were willing to come forward to substantiate their allegations

of bias against two of the five Supreme Court judges sitting on the case,

the A-G could take up the matter in open court. And, that was how the

matter was pursued – civilly.

In the Oduro Barton case, the judge was right in condemning the modes of

objection chosen by the A-G and her deputy. The judge held, “Perhaps Baron

Oduro Esq, forgetting that being Deputy Attorney-General he is the second

leader of the Bar and in this regard a higher standard of legal practice

is expected of him. Why would a person of that calibre go on radio and use

me as a pawn to score cheap parochial political points, painting me as the

worst judge in this country? He should be ashamed of himself. He must be

told that that is not how we take objections to judges sitting on a case

for whatever reasons.”

After the National Chairman of the governing NDC made that reckless

statement that his party would cleanse the judiciary for the CJ using one

of several ways to kill a cat to accomplish that task, his apologists were

quick to refer to the case of Salla v Attorney-General (in the Court of

Appeal sitting as the Supreme Court, 20 April, 1970). As we are quick to

do here in Ghana, they refer to Prime Minister Busia’s controversial ‘No

Court!’ statement to show that even the founding fathers of the NPP

tradition disregarded judicial independence.

There, Kofi Badoo’s paper, the Spokesman, which served as the main voice

of the left, put a spin on an otherwise uncontroversial but not

politically advisable statement from Prime Minister Busia that even though

the Supreme Court had ruled in favour of a declaration sought by Mr Sallas

over his dismissal as a public servant, by common law practice, “no

court” could compel Government, or for that matter, any employer, to

employ a person it does not wish to work with.

In the Sallah case itself, 568 public servants received dismissal letters

on 21 February 1970 from a presidential commission, acting in pursuance of

a constitutional provision. Sallah, a former GNTC manager was one of the

affected workers, who took the matter to the supreme court for a

declaration that upon proper interpretation his office fell outside of

the offices contemplated by that constitutional provision.

The judges who sat on the case -- from March 16-18, 1970 -- were Apaloo,

Siriboe, Sowah, Anin and Archer.

But, as the judges were deliberating to give their ruling, on March 24 the

A-G filed a motion on notice asking that justices Apoloo and Sowah be

disqualified from sitting and taking part in the hearing for fear of bias.

That trial within trial in the Sallah case gives us some education in what

to do and what not to do when you suspect judicial bias.

Victor Owusu, External (Foreign) Affairs Minister at the time swore an

affidavit to the effect that Justice Sowah had more than a judicial

interest in the Sallah case because whiles on the golf course with Justice

Sowah, the judge told him that after the Presidential Commission ordered

the dismissal of the so-called Apollo 568, the half-sister of Justice

Sowah, a Mrs Jonas, approached the judge in tears and asked him to help

her husband whose employment had been terminated to be reinstated. Mr

Jonas was formerly of the Lands Secretariat.

The A-G argued that not only was Justice Sowah related to one of the 568

affected workers, but that by talking to a cabinet minister, Victor Owusu,

about it he had indeed taken steps to implement the request of his sister,

whose husband was nevertheless still an Apollo 568 victim.

In the case of Justice Apaloo, several witnesses came to testify that he

was a close personal friend to Sallah and that the relationship between

them was so intimate that it would be difficult, if not impossible, for

him to decide the case impartially. The allegation as retold below had a

cunning semblance to that against Justice Oppong today.

When the evidence of the witnesses was put to strict proof it was found to

be an “infamous invention”. Two of the three witnesses were journalists

and Moslems – Alhaji Yakubu and Fatayi Braimah. They said on February 7,

1970 they went to dine at the Hotel Continental (now Golden tulip) at

about 10pm where they saw Justice Apaloo, Mr Sallah and two ladies dining

together at one table. They said they went to eat there after seeing

pilgrims off at the airport to Mecca. They both said the flight departed

at 1am.

The Duty Officer of Ghana Airways testified that on the night in question

the Haj flight to Mecca departed on schedule at 10pm. Another witness, the

Restaurant Manager at the Hotel Continental told the court that there were

only two dinners for four people that evening at his restaurant, one of

which was paid for by a resident of the hotel and the second through a

charge account by a name which was neither Apoloo nor Sallah. The other

order contained pork, which according to the court, “no Moslem, not to

mention an Alhaji or one who had just seen off a pilgrimage to Mecca,

would touch. The evidence of those two witnesses must therefore be

rejected as an infamous invention.”

It was not in dispute that Apaloo knew Sallah, even Victor Owusu also gave

evidence to that effect. Defence lawyers, led by Joe Rheindorf, did not

dispute the friendship but the level of intimacy argued by the A-G. The

court held, “there was the opinion volunteered by Mr Victor Owusu, a

Minister of State, that from his knowledge of both Justice Apaloo and the

respondent he would describe their relationship as that of very close and

intimate friends. We are bound to give the most serious consideration and

to pay respect to the opinion of a Minister, but we would have wished for

some factual statement of the basis of his opinion to enable us evaluate

for ourselves the degree of friendship in order to determine if it would

give rise to that likelihood of bias which the law should avoid…

Unfortunately, we had no such facts from the Minister.”

It was held, “In objections like the instant one, evidence is not often

required because the facts, which are often true, are uncontroverted. But

where the facts are controverted as in the instant application, they must

be proved.”

Barton Oduro should read Justice Amissah’s reasoning: “Upon consideration

we reject [the story of the two Moslems witnesses] as an infamous

invention. It is a matter of concern that on an issue as grave as this

and in a case of such importance when the reputation of a judge of the

superior courts of the land is, in the conditions of the country, bound to

suffer in some measure, whatever lawyers might say about the harmless

nature of objections on the ground of bias, by a mere allegation however

baseless it is, no prior attempt seems to have been made to check this

story before it was given currency. It is even more disquieting when it

is realised that the allegation was made through one who has the whole

investigating machinery at his disposal.”

On the objection against Justice Sowah, the court held that the testimony

given by Victor Owusu “was not evidence but hearsay and that where the

evidence was available there was no reason why in a matter of this

gravity, we should be treated on this as well as on other allegations to

hearsay… On the fact of [Victor] Owusu’s deposition, the case cannot be

put above a casual reference to Mr Jonas’ plight made by Justice Sowah in

conversation in a sporting club with Mr Owusu. That the direct evidence on

the point falls so markedly short of the hearsay gloss put on it must

serve as a warning of the danger in relying upon hearsay as a means of

proof…”

With Justice Siriboe dissenting, Justices Amisaah, Jiagge, Anin and Archer

threw out the objection motion on the bases that the evidence did not

support allegations of bias sufficiently to disqualify the two judges and

that the standard of proof must be that applied in a civil case – on

balance of probability.

They held, “We do not think that in that case there is any justification

for lowering the standard of proof. If that is done the courts would be

laying themselves open to the danger we spoke of before, namely, of giving

the party the right to choose his own judge. We do not think that the

courts should be reduced to the position in which parties before them may

assume the competence of judges to decide in their favour but their

incompetence to decide against them. And that is why the allegations of

fact when challenged must be proved.“

Referring to an affidavit by state attorney EE Mensah, the court held that

the A-G seemed to suggest “that talk and gossip of the relationships

described are ‘assuming scandalous proportions and appear to be

undermining public confidence in the independence and impartiality of the

judiciary,’ we have already indicated our opinion that in a matter of this

nature idle talk and gossip cannot be the measure of the dependence or

independence of the judiciary. But, further, in a society where it is

generally recognised by all right-thinking people that rumour-mongering

ought to be stamped out, and ought to be stamped out rigorously, the least

the judiciary can do is to refuse to be deflected from what they believe

to be their duty by whatever goes by the description of ‘talk and

gossip’…”

The wisdom in that judgment given more than 40 years ago should help us

today as, like then, the country seems divided on partisan lines. Then in

a move to purge the civil service of the serious politicisation it

experienced under the First Republic Section 9(1) of the Transitional

Provisions, as restated in the First Schedule of the 1969 Constitution,

which came into force on 22 August 1969, provided that “any person holding

a public office under the National Liberation Council shall after the

Constitution comes into force, continue to hold that office only for six

months unless reappointed.”

568 persons lost their jobs. This was the hot issue at the time and the

government at the time lost the case before the highest judges of the

land. It was a matter of unfair dismissal which ordinarily leads to

damages and not necessarily reinstatement.

Sallas’ writ of summons and statement of claim sought: “a declaration that

on a true and proper interpretation of the provisions of section 9(1) of

the First Schedule to the Constitution (Part IV) the Government of Ghana

was not entitled to terminate the plaintiffs appointment as a manager in

the Ghana National Trading Corporation.”

The defence argued that section 9(1) dismissed all public servants or gave

them notice to the effect that after six months from 22 August, 1969 their

services would no longer be required. The plaintiff counter-argued that

such an interpretation would be inconsistent with Article 138 of the

Constitution which protected public servants from dismissal or removal

without just cause. Section 9(1) was clear that “save as otherwise

provided in this Constitution” and “as far as is consistent with the

provisions of this Constitution.”

Justice Archer, articulating the majority view, held, “It sounds strange

that the whole gallant army of soldiers and police who brought about the

revolution should all be dismissed by the very Constitution which came

into force as a result of their prowess. It would mean that all doctors,

nurses, locomotive drivers, firemen, teachers, sanitary workers and every

employee in the public service were all dismissed.”

The court agreed with the argument of the plaintiff the MLC introduced

various committee and appointed various commission and established offices

upon assuming power and it was only natural that the new government would

wish to review and make the necessary adjustments to suit its own

administration in conformity with the provisions of the new constitution.”

Today, some public servants of the previous government are winning cases

in court and the ruling party and the A-G are accusing judges of political

or judicial bias purely on hearsay. The facts and ruling of the Sallas

case, both the substantive case and the mini trial, suggest that we have

lessons from the past but we don’t seem prepared to let the imperatives of

learning from those lesson get in the way of our short term partisan

considerations.

The author is the Executive Director of the Danquah Institute –

gabby@danquahinstitute.org