The President Akufo-Addo vs Daniel Domelevo case

Does Ghana’s Supreme Court Understand that “justice delayed is justice denied”?

The history of the legal maxim, “justice delayed is justice denied” is as old as the 1215 Magna Carta. Clause 40, states, "To no one will we sell, to no one will we refuse or delay, right or justice." It simply means that if legal redress or equitable relief to an injured party is available, but is not forthcoming in a timely fashion, it is effectively the same as having no remedy at all.

It is also the principal basis for a speedy trial. In fact, one of the cardinal duties of a judge or a court is to dispose of cases promptly or timeously. However, in Ghana, this important principle in the administration of justice is totally disregarded by the judiciary.

Criminal and civil cases drag on for years in the courts from the High Courts to the Supreme Court, despite their negative or detrimental impact on all parties, including the potential risk of injustice to all parties involved.

A few cases come to mind. For example, the murder trial of the former Abuakwa North MP, the late Joseph Boakye Danquah Adu, the corruption trial of the former Chief Executive of the Cocoa Marketing Board and others, and the murder trial of the Upper East NPP Regional Chairman, the late Adams Mahama.

Though the blame for such long delays cannot squarely be put on the judiciary alone but also partly the fault of the Attorneys of parties involved in trials. However, the judiciary takes the lion's share of the blame for the excessive delays because courts and judges are responsible for the administration of judges and must take control of cases in the court and stop attorneys from both sides from the abuse of judicial processes that cause long delays.

The other cause of the delays is the volume of cases at the courts relative to the resources available to the courts in the administration of justice.

Irrespective of the causes of the delays, there are certain cases that must not be delayed by the courts in the administration of justice for the reason, “justice delayed is justice denied”. One such case is invoking the authority of the Supreme Court to interpret the 1992 Constitution, especially when challenging a decision or action by the Executive and the Legislative arms of government.

The importance of expediting action on such cases is such that, in fact in some jurisdictions, ongoing cases are suspended to deal with strategic and constitutional matters. This is because if it is not expedited the potential damage to those affected by the action would be unimaginable as they may also not have recourse to recover their loss.

For example, in the UK when the then Prime Minister, Boris Johnson had difficulties seeking parliamentary approval to meet the deadline to reach an agreement with the EU on Brexit, he decided to prorogue parliament so he could meet the deadline without accountability from parliament.

Therefore, on 28 August 2019, his government advised the late Queen to prorogue parliament, and parliament was prorogued accordingly. This was immediately challenged in early September 2019 at the highest court of Scotland, which ruled that the prorogation was not justiciable (not subject to trial in a court of law).

This decision was immediately challenged at the UK Supreme Court and on 24 September 2019 the Supreme Court ruled unanimously that, the prorogation was both justiciable and unconstitutional and therefore quashed the prorogation (see, “R Miller v The Prime Minister and Cherry v Advocate General for Scotland” ). Just note that the case traveled from the highest Court of Scotland to UK Supreme Court in less than one month because of its constitutional importance.

The opposite is what happens in Ghana. President Nana Akufo-Addo ordered the then Auditor General, Mr. Daniel Domelevo to proceed on his accumulated leave and retirement in a letter dated March 3, 2021 (see, “Akufo-Addo sacks Domelevo with compulsory retirement”, GhanaWeb, 4 March 2021).

It is important to note that the Office of the Auditor General is independent and not subject to control by any state agency. It reports to Parliament but its decisions are subject to judicial review. NGOs and public interest lawyers subsequently challenged the decision of the president at the Supreme Court as unconstitutional.

The Supreme Court only released its judgment in a unanimous decision that the act of the president was unconstitutional, null and void and of no consequence on 31 May 2023, over two years after the act and after the challenge at the Supreme Court.

The long delay rendered the judgment as what is known in law as “pyrrhic victory” (a victory that inflicts such a devastating toll on the victor that it is tantamount to defeat. In other words, the victory negates any true sense of achievement or damages long-term progress).

This means that for over two years, Ghana lived under the unconstitutional act of the president, yet, Mr. Domelevo cannot get back his job as Auditor General despite the decision being unconstitutional, null and void, and of no consequence because it has become irrelevant and unrealistic or even impossible to enforce the reliefs granted or consequential orders (if any) made by the Supreme Court.

It is also important for the judiciary in Ghana to note that “justice must not only be done but must also be seen to be done” as laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices, [1924] 1 KB 256. The judiciary must know that the interpretation of its actions and omissions are important in the administration of justice.

Such unexplained and excessive delays by the Supreme Court in such critical constitutional matters can wrongly give the impression that the case was delayed to assist the president get away with his unconstitutional act and avoid embarrassment to him.

It also appears to give the impression that the judiciary was protecting the president from being held accountable. This is because the duties of the judiciary, among others are to hold the Executive and the Legislative arms of government accountable expeditiously.

The Ghana Supreme Court should know that such delays in the administration of justice do augur well for not only the judiciary but also the country as a whole and do result in the people losing confidence in the judiciary. That is dangerous and must be addressed by the incoming Chief Justice as a matter of urgency.

If the UK with a population of over 60 million and 12-member Supreme Court Justices can decide a similar important case in less than one month, why should Ghana with a population of over 30 million and 15-member Supreme Court Justices take over two years to decide on a similar case of constitutional jurisprudence?

This is a disgrace to Ghana and must not happen again.