Opinions Sat, 4 May 2013

The Mornah Ruling: Did the Supreme Court Err?

By Kofi Ata, Cambridge, UK

Since the Supreme Court ruling on Bernard Mornah versus the State/Attorney General, four interesting articles have appeared on Ghanaweb, three critical and the other in support of the judgement. The first was an emotive one by Gabby Asare Otchere-Darko, a Barrister and Director of the Danquah Institute who described the decision as timid (see “Supreme Court shows its timidity in Mornah Case”, Ghanaweb, April 2, 2013). The remaining three appeared on May 3, 2013 (see, “Unfair Criticism of the Supreme Court and What Gabby Didn’t Really Say”, by Hahmoud Jajah who is a law student; “Ghana’s Confused Supreme Court” by Dr Kobina Arthur Kennedy and “Matters Arising from the Mornah Court” by Prof Stephen Kwaku Asare). This article is a contribution to the debate on this important judgement.

The above articles, especially, the first and the last two raised very interesting and debatable questions on the ruling. With no disrespect to the first two, I will limit my observations to the last two. Dr Arthur Kennedy raised a number of issues that need further interrogation and analysis. The first was that, the ruling could turn the NPP presidential petition into a farce. Is that really true?

There were two matters decided on by the Justices that may have direct and indirect implications for the petition. However, there is no basis or evidence whatsoever for his conclusion. In my opinion, the ruling that the judiciary (Supreme Court) sitting on public holidays is unconstitutional has no bearing on the current petition because since the petition was filed and hearing began, the Justices have not sat on a public holiday or at weekends and I have no doubt that, that will not change in the near future. In other words, the ruling has no immediate and will have no impact on the expeditiousness or otherwise of the petition and therefore, the status quo remains.

The other ruling was on the authority of the Supreme Court to review its decisions under Article 133 of the Constitution, which was torpedoed by Rule 71B of C.I 74 and now ruled unconstitutional by the five Justices. This ruling, though may appear to be potentially problematic, cannot and will not turn the present petition into a farce for a number of reasons. First, both Nana Akufo Addo (the lead petitioner) and President Mahama (the first respondent) have promised to accept the decision of the Supreme Court and I believe this ruling should not change those positions.

I am not naive to assume that the ruling could not be recipe for disaster because it could lead to protracted presidential petitions, including this one, particularly as fodder for the losing and dissatisfied party in the petition. However, we should not lose sight of the reason behind the judgement. The supreme law of any democracy is the Constitution. Rule of law, the application and interpretation of law are in pecking or hierarchical order with the Constitution at its apex. For these two reasons, the ruling is right and soundly grounded in constitutional law.

First, a Constitutional Instrument is subordinate to the Constitution and cannot contain any directive/s which is over and above what is enshrined in the Constitution. Moreover, the Constitutional Instrument (C.I 74) was the product of the creation of a Court Committee, an unelected body and also subordinate to the Supreme Court. Even Parliament cannot pass primary legislation that contravenes the Constitution without first having to amend the relevant section/s of the Constitution breached by such primary legislation. If that happens and the legislation is challenged before the Supreme Court, it will be ruled unconstitutional. The Court Committee is not above the Supreme Court, even if the Chief Justice sits on it. As far the interpretation of law in Ghana is concerned, the Supreme Court is the final arbiter, as Justice Atuguba rightly put it, “the law is in our bosom”.

One lesson that I learnt from my work with judges and within the Employment Tribunal system in the UK, is the extra mile judges go to, in ensuring that their decisions are free, fair and soundly routed in law, so that they are not appealed and or reversed. In fact, they consider an appeal or a review of their decisions as failure on their part. Indeed, success or failure in the profession is highly dependent on judges making the correct and sound judgements on cases that come before them. They are therefore always mindful of the risk of appeal and particularly, the potential for criticism of their decisions by a higher and superior courts. I believe that this serves as check on them and ensures that justice is not only served but seen to be served.

For the above reason, I believe that if a panel of Justices who may be politically tainted or bias sits on a presidential petition in Ghana, the lack of any review of their decision could lead them to a false sense of invincibility and likely to make a perverse decision/s that flies in the face of both the evidence and the law, which could lead to chaos and conflict in Ghana. The availability and possibility of a review could reduce the risk of such perversion and therefore the risk/s of a protracted petition is outweighed by the benefits of prudent decisions which could, in reality reduce the option for a review. I am therefore of the view that the Supreme Court was right to extend the right of a review of Supreme Court decisions in the Constitution to presidential petitions, irrespective of the dangers of protracted petitions that may last over the 4-year presidential term.

Dr Kennedy also questioned the timing of the ruling. According to him, the five Justices should have delayed judgement until after the nine Justices have given their decision on the presidential petition. I know Dr Kennedy is not a lawyer so he can be forgiven for this view. In fact, the reverse is the case. Any challenge to C.I 74 must be heard and disposed of before the presidential petition because that is the very basis of the petition. On this occasion, Dr Kennedy was totally wrong.

It is understandable why Dr Kennedy concluded that the ruling could turn the petition into a farce. His fears, among others is that, since some sections of the C.I 74 have been ruled unconstitutional, it is possible that the section on Biometric Verification (“No Biometric Verification, No Vote”), which forms a major plank of the petitioners’ case could also be ruled unconstitutional by the nine Justices. Though that is a possibility, it is not guaranteed or forgone conclusion and in fact, the nine Justices could take a different view on this matter. Even if that section is also ruled unconstitutional, the petitioners’ case would not disintegrate into a farce since the other malpractices, irregularities and omissions as alleged are more than sufficient to sustain the petition, if proven.

He also made references to legal or judicial authorities in the UK and USA to remind the Justices how they should go about their duties. Again, I disagree with him because law is not only applied in the past (historically) but also contemporary (present). The right approach is to treat law as a living document, that grows and develops over time but not static. It is right and proper to learn lessons from the past and share best practice from the developed democracies but that must not necessarily mean to do as others did. We should improve upon what was done in the past and not just copy 17th and 19th centuries’ legal authorities, even if they withstand the test of time. Is Dr Arthur Kennedy implying that the nine Justices must follow or copy the US Supreme Court in Gore versus Bush?

On the other hand, Prof Stephen Kwaku Asare listed thirteen matters as his basis for concluding that, the Justices’ ruling on public holiday sittings unconstitutional as bizarre with Article 64 (3) of the Constitution as his main authority. He may be right that, “there is nothing in the Constitution that bars the Courts from sitting on any given day”. However, if there is an Act of Parliament, that bars public bodies from working on any given day such as public holidays (The Public Holiday Act), can a Constitutional Instrument contravene an Act of Parliament? If that is not unconstitutional, then, is it not illegal since an Act of Parliament prohibits such an act and therefore must be ruled accordingly by the Supreme Court, if challenged?

It is important to remind ourselves the pecking order of legislation, instruments and regulations passed by various constitutional bodies and subject to the supreme law of the land (the Constitution). Next to the Constitution are Acts of Parliament before Case Law, Executive, Constitutional, Statutory and Legislative Instruments in that order, I believe that to be so but I stand corrected. I am confident that Acts of Parliament are second and therefore a Constitutional Instrument cannot be the law if it is in breach of an existing Act of Parliament. For this reason, I disagree with my good friend, Prof Asare that the Supreme Court ruling is wrong and bizarre.

The composition of the membership of the Court Committee and the wording of Constitutional, Statutory and Legislative Instruments with words such as “SHALL” are relied upon by some to claim that directives contained therein are sacrosanct, legally binding and not subject to interpretation and review by the judiciary, including the Supreme Court. I find such assertion very naive, if not infantile. We can put the President, Speaker of Parliament and the Chief Justice or some Justices of the Supreme Court on the Court Committee, their decision/s will still be subject to the Constitution, Acts of Parliament and therefore could be interpreted and ruled unconstitutional or illegal because either it breaches the Constitution or in conflict with an Act of Parliament. It does not matter who is or was on the constitutional body if their final product is found to be a violation of the Constitution or an Act of Parliament and notwithstanding the language of such product is written in, it could be ruled unconstitutional or illegal. It’s simple as that, so whether the Chief Justice was part thereof or SHALL was used, it’s irrelevant when it comes subjecting the directives to interpretation and application of the law. They are not the Ten Commandment given from God and written by Moses.

Prof Asare sounded a word of caution that I am in total agreement with him. That is, the interpretation and application of the Public Holiday Act must be reasonable. It would be untenable for the Act to be applied religiously and irrespective of the situation and prevailing conditions. For example, in cases of national emergency and to preserve state security or to protect life, it may be necessary to make an exception to allow a judge or judges to sit on public holidays for a brief period as is done in most jurisdictions. This must be an exception rather than the rule since it could be abused by either the Executive or the Judiciary for parochial and political interests.

At the moment, I do not think presidential petitions deserve such an exception unless the Constitution is amended to require presidential petitions to be decided before the ‘legally’ elected president is sworn into office. As the Constitution stands at the moment, there is no urgency for the Supreme Court to sit on public holidays when hearing presidential petitions. We should therefore not blame the five Justices for their ruling but the framers of the 1992 Constitution who failed to attach a sense of urgency to the expeditious hearing of presidential petitions but allowed the declared president to be sworn in whilst the petition against his or her declaration is disputed. This is an unpardonable anomaly.

Both Prof Asare and Gabby Otchere-Darko identified one problem that must be of interest to every Ghanaian and that is the role of the Attorney General’s Department and its ability to defend the State against claims or suits. It appears most often than not, the AG’s Department is more than willing to abdicate its responsibilities either by way of no defence or deliberate weak defence. In some cases, the very officials who are supposed to defend the State and challenge such claims are in cahoots with claimants. Judgement Debt Claims are typical examples of negligence and dereliction of duty by the AG’s Department such as the Woyomegate and the GHC 11 million land claim against the Second Infantry Brigade in Kumasi (the Ministry of Defence), which according to the Sole Judgement Debt Commissioner, was not only undefended by the AG’s Department but also actively encouraged by the same officials from the department and the booty shared (see “Sole Commissioner Accuses AG’s Department of Cooking Cases”, Ghanaweb, May 1, 2013).

It also appears this constitutional challenge to sections of the CI 74, which should have enhanced and deepened constitutional democracy in Ghana was not only the act of a citizen who genuinely wanted to exercise his constitutional rights but was instituted and pursued with the active or tacit participation and approval from the Executive. It is not yet known whether the AG’s Department put up a defence and if so, a good one. I am not suggesting that, the AG’s Department must defend every claim or case against the State no matter the strengths and or weaknesses of such cases. Far from that but the practice on the ground is disturbing and that is a danger to democracy and potentially against the separation of powers because the Executive cannot be part of and turn a blind eye to unconstitutionality as well as turn round later to clandestinely challenge it in the courts.

Lastly, the Legislature must take some of the blame for this situation. Their role is scrutinise any bill or Instrument laid before it (parliament) to identity any inconsistencies or breaches with the Constitution and existing legislation, both primary and secondary. Their failure to play this role effectively is a, if not the contributory factor to the Executive playing the dual role of what it was originally part of and (mis)using citizens to challenge what ought to have been corrected by the Legislature. Notwithstanding these concerns, the rulings are legally right and morally sound in my view.

Kofi Ata, Cambridge, UK
Columnist: Ata, Kofi