THE SUPREME COURT SHOULD
BE BOLD AND FEAR NO EVIL
*
One intriguing jurisprudential teaching is that a variety of factors,
including the breakfast taken by judges, influence judges’ decisions. While
this teaching is irrefutable, it is trite that the teaching hardly squares
up to the ideal that justice be administered evenhandedly to all. In keeping
with the Freedom and Justice mantle of our independence and democracy, there
is no doubt that our judges aspire to exclude or at least guard against
injecting extra-judicial matters into their practical handling of cases.
However, the ways some cases have been handled recently make one wonder
whether our venerable Freedom and Justice ideal has any practical meaning in
Ghana. One case inciting this skeptical sentiment is the recent decision on
Nungua where, instead of taking the golden opportunity to address and rule
on the validity of the highly discredited and extremely divisive Indemnity
Clause, the five-member panel of the Supreme Court Justices endorsed a
patently erroneous ruling of High Court Judge Asamoah.
The Nungua case, readers may recall, sprang from PNDC 18, which purported to
prohibit Nii Odai Ayiku, IV, from performing his functions as the Chief of
Nungua. The existing laws, before the PNDC coup, entrenched the law on
chieftaincy as fundamental. Under these laws, chiefs were enstolled,
enskinned, destooled or deskinned by established customs and procedures. The
government simply did not have any authority to interfere with these
processes. Nor was it authorized to curb a chief’s powers by a dint of an
executive instrument. Upon ousting President Liman, the PNDC preserved
chieftaincy laws in their entirety. Thus, when Flt. Lieutenant Rawlings
purportedly prohibited Nii Odai Ayiku from exercising his chiefly functions,
Nii Odai Ayiku, the person sworn-in and installed as the Nungua Chief,
brought an action against the EI. Because Rawlings issued the EI as the Head
of State, only the A.G. is authorized to represent the State. Upon
information and belief, Rawlings’ Chieftaincy Secretariat advised Rawlings
against implementation of the EI. Presumably, consistently with this
admonishment, the A.G did not file any responsive pleading to the action
challenging the EI.
To protect the respect and dignity of the judiciary, any person against whom
an action is filed must answer or move to dismiss it within a specified
time, often 20 days. Failure to respond is deemed grossly disrespectful of
the judiciary, entitling judges to issue default judgments. Here, Ebiasah,
J., the High Court judge on the case, correctly defaulted the A.G. and,* a
fortiori*, the Government. While a defaulted party, with GOOD CAUSE, is
allowed to move within 10 to 20 days to vacate the default, the A.G. never
so moved in the Nungua case. Because the EI was clearly untenable under both
the substantive and procedural laws, violating all principles of justice,
including the *audi alteram patem* rule, one wonders what prompted the
A.G.'s inaction, whether it was the Chieftaincy Secretariat’s admonishment
or the A.G’s recognition that the EI was indefensible.
However, FOUR YEARS after the default and notwithstanding its legal
sanctity, Justice Asamoah, Justice Ebiasah’s colleague on the High Court,
allowed a PRIVATE INDIVIDUAL to file an action to lift the default. This
individual, who self-styled himself as Wor Bortelabi Borketey Larweh XIV
(when Nungua has never had any Wor Bortelabi Borketey Larweh I through
XIII), is not the A.G.; is not a chief; and is not an elder for chieftaincy
purposes. The puzzle is how Justice Asamoah could have ignored the law on
standing and allowed a person to do something that only the A.G. is
authorized to do and long, long, after the statutorily prescribed period had
expired. Nor did Asamoah, J., afford any meaningful basis for his ruling.
First, it is troubling that he grounded his decision on the argument that
Nii Odai Ayiku’s action affected Chieftaincy and that the High Court lacked
jurisdiction to hear such cases. But, ironically, Asamoah was a High Court
Judge like Ebiasah, and the matter at issue before him affected chieftaincy
even more than that before Ebiasah, considering that Asamoah’s plaintiff was
an imposter challenging a lawfully installed chief. Moreover, Asamoah, J.,
ludicrously stated that the imposter presented an affidavit indicating that
he had been installed as the Chief in 1999, clearly exhibiting a gross
abdication of Asamoah’s judicial role where the imposter is not from the
Nungua Royal family.
Further compounding the troubling vacation of the default, the Appeal Court
and, later, a five-member panel of the Supreme Court, affirmed that faulty
decision. In doing so, the appellate justices, without addressing the status
of Asamoah as a High Court Judge and the fact that the case before him
affected chieftaincy, dwelt on Asamoah’s error, especially his
self-contradictory statement that Ebiasah, J., had no jurisdiction to deal
with matters affecting Chieftaincy. In addition, the appellate judges
casually cited the Indemnity Clause, essentially saying that because
everyone is precluded from questioning the validity of any act done by the
PNDC and other military regimes, Asamoah’s decision should stand intact. As
judges appointed to uphold the law and dispense justice evenly without fear
or favor, and in keeping with the separation of powers principle, one would
expect the Supreme Court judges to seize this golden opportunity to address
and shed justiciable light on the highly discredited and intensely divisive
Indemnity Clause, especially given that the Indemnity Clause has been
side-stepped by the Human Rights and National Reconciliation Commissions,
etc., to redress wrongs visited upon people by our military regimes.
In conclusion, I humbly recommend to the Learned Justices of the Supreme
Court that, to be faithful to their judicial mission and thereby disabuse
the minds of all about Ghana’s sincerity to our Freedom and Justice slogan,
the Full panel of the Supreme Court revisit the Nungua and other cases and
correct their patent errors. In Nungua’s case, the pivotal issue is whether
or not the Indemnity Clause is valid. The Court cannot just uphold the* ultra
vires* and *void ab initio* EI by merely hiding behind the Indemnity Clause.
Instead, as the Organ whose province is to declare what the law is, i t
should hold the bull by the horn and, pursuant to the *audi alteram
patern* rule,
give the legitimate parties, Nii Odai Ayiku, et. al., and the A.G. a full
hearing and issue with finality its authoritative decision on the validity
of the Indemnity Clause and, *a fortiori*, the status of Nii Odai Ayiku *viz
a viz* the EI.
Boye Shakespear
