The Ghana Bar Association and its wild goose errand

By Dr. Michael J.K. Bokor

Thursday, July 2, 2015

Folks, the suit filed at the Supreme Court by the National Council of the Ghana Bar Association (as a corporate entity) and four members (as individuals, be they the executive officers of the GBA) against the appointment of Justices Apau and Pwamang to the Supreme Court by President Mahama implies a lot. For purposes of unpacking the suit, let us begin by saying that the suit has come after the fact—when the two justices have already been nominated (and not questioned by anybody or institution), vetted, confirmed and approved by Parliament, and sworn into office by President Mahama with a call on the Judiciary to help the government fight corruption, even if he blamed the Judiciary for not being active enough for that purpose.

The proceedings leading to the vetting and swearing in of both Justice Apau and Pwamang were conducted in the open for all to know what the entailments were. After satisfying itself of the integrity and professional competence of both, Parliament approved their nomination by the Executive, paving the way for their being sworn into office. Now come the National Council of the GBA and its executive officers to attempt throwing everything into disrepute. Where have they been all this while?

Before we proceed any further, let us consider the specifics of the suit. The plaintiffs are asking for four reliefs, their main argument being that “the appointing authority may have breached Article 144 clause 2 which stipulates that, “The other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament". These briefs are:

1. A declaration that upon true and proper construction of Article 114 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Superior Courts are valid only to the extent that such appointments are made in strict accordance with the advice of the 2nd defendant herein, the Judicial Council.

2. A declaration that upon true and proper interpretation of Article 144 (2) and (3) of the 1992 Constitution, a constitutional trust is created in the 2nd defendant herein, the Judicial Council, to make nominations of the person(s) best qualified to serve as Justices of the Superior Courts of Judicature and the 2nd Defendant is required to ensure that such nominations are actually submitted by the President to Parliament for approval after due consultations with the Council of State

3. A declaration that accordingly, upon true and proper construction of the Article 144 clauses (2) and (3) of the 1992 Constitution the Judicial Council of the Republic of Ghana has a constitutional obligation to specifically advise the President of the Republic of Ghana as to which specific person(s) is/are suitable for appointment to serve as Justice(s) of the Superior Courts of Judicature in accordance with which advice the President is mandatorily required to exercise his powers of appointment.

4. A declaration that an appointment or non-appointment by the President of the Republic of Ghana of a Justice of the Superior Court in a manner out of accord with the advice of the Judicial Council is unconstitutional, null, void and of no effect.

Clear reliefs being sought!!

My analysis of the contents of the suit reveal that a probable motivation for the suit can be found in another argument being raised by the plaintiffs: three persons were recommended for appointment to the Supreme Court but one was left out. Also, out of seven justices for the Appeals Court, the president appointed five. Who are those sidelined, and why should it be the concern of the plaintiffs?

Fair enough for us that the plaintiffs have given reasons for their legal action, claiming to be seeking “reliefs” and not necessarily targeting to humiliate Pr5esident Mahama and the two appointees. The law may not be an ass, after all. Specific motives (mostly politically motivated) render it questionable.

We have the background information, the substance of the four briefs, and the underlying motivation for this truth. And we appreciate the explanation by Tony Forson (spokesperson for the plaintiffs) that the decision by the National Council of the Bar was to seek clarification on a provision in the constitution bordering on the appointment of judges to the Superior Courts.

We note also Mr. Forson’s claim that the Bar’s action is “not retrogressive but prospective” and therefore has no bearing on the appointments. As he put it, “Nowhere in the petition did we say the appointment is null and void,” he maintained, stressing that the reliefs were not targeted at President Mahama”. And he was quick to add that if the plaintiffs had targeted the appointees, they would have filed for an injunction against them, even at the initial; stages of the process. (See http://www.ghanaweb.com/GhanaHomePage/NewsArchive/Justice-Apau-Pwamang-not-our-targets-GBA-366067).

Good grounds stated by the plaintiffs, but which I challenge for many reasons. First, considering the underlying motivation for their suit (that not all those recommended for appointment were indeed given the nod), I smell foul play on the part of the plaintiffs. Do they know why not all the recommended judges could be appointed? Or is the President bound by the constitution to appoint all those recommended?

Again, considering the fact that this appointment of Justices Apau and Pwamang are not the first ever to have been done by the President of Ghana, are the plaintiffs saying that something specifically went wrong in this case of Justices Apau and Pwamang that they alone know of and should pursue through this suit?

I think that the plaintiffs are behaving as if the President owes them an explanation or that he is bound to do as they wish. Are they aggrieved and in court because their favourites were sidelined?

Viewed from a wider angle, one may ask whether the process involved input from the Judicial Council and the Council of State. If it didn’t, then, there would be good grounds to challenge it to prove to President Mahama that he cannot act ultra vires. More so, it will be a good move to hold him in check so he doesn’t abuse his executive powers.

After all, our democracy needs a strong and independent judiciary to counter-balance any move by the Executive and Parliament. Thus, if this suit is framed around lapses in the appointment process—and not merely framed and portrayed as questioning why the President didn’t appoint all those nominated—it should serve non-partisan political purposes. Otherwise, it will end up as a mere ruse to score political points.

What will the granting of the briefs mean? That President Mahama will reverse what he has already done? If not so, what? Then, what is the benefit of this suit, after all? A lesson for future Presidents? Phew!!

Beyond this perspective, it will be good to note that by waiting for everything to be wrapped up before challenging it in court, the plaintiffs seem to be creating a misleading impression, which explains why their suit is dismissed by the government as absurd and preposterous. Could they not have risen up directly it came to light that there were issues as raised in the petition? They waited for the dust to settle before crying wolf. Too bad for people expected to reason more cogently and act decisively to uphold the law.

Has the Judicial Council said that it didn't nominate Justices Apau and Pwamang and the Council of State also said that it wasn't consulted before President Mahama appointed them? Would President Mahama be so naive as not to know what to do in accordance with the Directive Principles of State Policy? I doubt!!

For now, whatever the Supreme Court decides will open a new chapter in the appointment process of justices of the superior courts but it will also cast ugly shadows on antecedents. Why didn’t the GBA or any lawyer of repute go to court when previous President appointed justices to the Supreme and Appeals Courts as they are doing now?

If the Supreme Court rules in favour of the plaintiffs, what will be the fate of justices of the Supreme Court still in service appointed by previous Presidents (granted that the line wasn’t straight, after all, in their appointment)? Their appointments revoked? Will such a ruling of the Court have a retroactive effect or be limited to what is happening under President Mahama? What will be the justification for it?

We recall that When Kufuor packed the Supreme Court after Tsatsu Tsikata had humiliated its legal team headed by Akufo-Addo in terms of the Fast Track Courts (Are they still in existence?), where was the National Council of the Ghana Bar Association to help us know what it wants us to know now about the procedures for the appointment of justices to the Supreme Court?

We aren’t lawyers, but we know that law is grounded in commonsense, logic, and rhetoric. Its main bastion, though is commonsense (which is an amalgam of all others, including logic). Without commonsense, law is hollow, empty, and stupid. Commonsense is natural and dictates that anything initiated in the name of law must be grounded in it. Commonsense dictates that proactive action be taken to eliminate abuses in the administration of justice (including the appointment of those to do the administration as it is in the case of Justices Apau and Pwamang). And it goes against commonsense to run after horses only when they have break out of the stables in which they have been contained.

Once the dust settles on such appointments, any reactive move is nothing but a nuisance to be pooh-poohed. That is why I consider this suit as a mere academic exercise that won’t serve any useful purpose other than colouring impressions that the appointment of Justices Apau and Pwamang have an admixture of political overtones and undertones. Ghana’s judiciary can do better with proactiveness than reactionary legal suits of this sort.

I shall return…

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