Judicial Scandal: Are Articles 146(1) and 151(1) being Misinterpreted?

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• Osei kofi 10 years ago

  Matters relating to the constitution is solely within the domain of the sc when it comes to interpretation.Any commentator on it will only expressing an opinion.
  
  Bribery and corruptions are criminal offenses and on the fac ...
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  Matters relating to the constitution is solely within the domain of the sc when it comes to interpretation.Any commentator on it will only expressing an opinion.
  
  Bribery and corruptions are criminal offenses and on the face of the evidence available against the Anas judges every reasonable person will want the matter to be determined.But determination does not mean bypassing the due process as you have been advocating.
  
  The CJ had set in motion the procedures that may lead to impeachment and should the case come to court,the question of entrapment will also be determined.We have a long way to go.
  
  There is no argument about your opinion on those articles but for now they are irrelevant.What is relevant is the process which is sacrosanct and that is what is taking place.

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• Dr. SAS, Attorney at Law 10 years ago

  Kofi,
  
  There is no need to distinguish between misbehavior, misdemeanor, malfeasance, malpractice, misconduct, criminal behavior, etc. If you do, you will be indulging in semantic acrobatics instead of legal analyses.
  
  At ...
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  Kofi,
  
  There is no need to distinguish between misbehavior, misdemeanor, malfeasance, malpractice, misconduct, criminal behavior, etc. If you do, you will be indulging in semantic acrobatics instead of legal analyses.
  
  At the irreducible level, they could all mean the same thing. Thus to draw a dichotomy between like terms and make a huge conclusion that a certain set of laws do not apply requires a naive leap of faith. The law does not subsist on mere words.
  
  To wit, the judges' conduct involves all of those stated phrases and could be broadly punished both as crime and also as misbehavior. That is why the process could be bifurcated to cater for their dismissal as well as their criminal prosecution. What they did was both misbehavior and crime. Period.
  
  And a constitution or civil procedure need not define every term. Where ambiguiies exist, precedent and convention will come in to supplement meaning. And under this context, we should simply look to what the laid-down procedure has been in disciplining judges in the past. If we don't have enough case law on the matter, we can look elsewhere for guidance. After all, our constitution did not evolve in the abstract.
  
  The problem we have now are rogue judges who have been allowed to ridicule the system with impunity. And that problem has nothing to do with the adequacy of the rules governing their discipline. It has nothing to do with the artificial semantics in "misbehavior" and "crime".
  
  In this sense, this article is a misnomer.

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• Kofi Ata, Cambridge, UK 10 years ago

  Dr SAS, if my "Kweku Baako" (street lawyer) interpretation of the Articles 146(1) and 151(1)are wrong, could you kindly share your opinion on the following:
  
  As indicated in my analysis, should the same process be followed ...
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  Dr SAS, if my "Kweku Baako" (street lawyer) interpretation of the Articles 146(1) and 151(1)are wrong, could you kindly share your opinion on the following:
  
  As indicated in my analysis, should the same process be followed in the case of a High Court or an Appeal Court Judge committing manslaughter before being prosecuted? If no, is it because manslaughter is a more serious crime than bribery and corruption? I will disagree because bribery and corruption in Ghana cause more harm and death than one manslaughter. In fact, President Mahama is on record to have described or compared corruption to murder.
  
  Moreover, the crimes of the judges, in my view are more serious than manslaughter because taking bribes to deliberately give false judgement is subversion of the Constitution and dangerous to rule of law and constitutional democracy. In fact, it is a threat to future peace and security of Ghana because when the citizenry do not get justice, it would come a time that they will resort to their form of justice or rebel against the state.
  
  Second, why is it that under Chapter Five of the same 1992 Constitution (Fundamental Human Rights and Freedoms), the processes for fair trial are prescribed. However, when an accused pleads guilty in court, the trial is truncated and the accused sentenced (sometimes after pre-sentencing report)?
  
  The judges have also admitted their crime but provided mitigating factor of entrapment, which by the way, is an illegal defence. If they have admitted the offence then why go through the processes prescribed in Articles 146 and 151? Why the different approaches and is it because they are judges or more human than others who come under Chapter 5 of the Constitution despite the fact that these are all about fundamental rights and freedoms?
  
  I will appreciate your views on the above. It will be educative.

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• Dr. SAS, Attorney at Law 10 years ago

  The approaches for punishing the judges are two-tier: one administrative; one criminal; and they could be accomplished in any order. The judges can also plead out at any time for the process to be "truncated"; or go through t ...
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  The approaches for punishing the judges are two-tier: one administrative; one criminal; and they could be accomplished in any order. The judges can also plead out at any time for the process to be "truncated"; or go through the entire hearing and be found guilty.
  
  At the first disciplinary tier, the constitution and conventions are clear as to what constitutes due process separately for a superior court judge as opposed to a lower court judge; so this is not what the debate is about. Due process in criminal law applies equally to all; so all the judges will go through the same process once criminally indicted.
  
  The judges are now facing the administrative portion of the process by appearing before the committee established by the Chief Justice. Here, if they are found culpable (probably by clear and convincing evidence/the preponderance of the evidence) then the standard for "stated misbehavior" will have been met,and any administrative action will be meted out at that level.
  
  Thereafter, they could be made to face criminal prosecution under the relevant portions of the regular criminal laws.....
  
  The flaw in your article is that you consider the two processes mutually exclusive and proceed to parse pseudonyms to concoct a non-existent conclusion.
  
  
  
  
  
  
  
  Thereafter, the Judicial Couns

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• Jojo Hammond, New Jersey 10 years ago

  Kofi, since this scandal broke, and having watched the snail-pace of the processes set in motion by officialdom to deal with it, I have wondered why the potential crimes by these (in)Justices are being ignored.
  
  As a non ...
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  Kofi, since this scandal broke, and having watched the snail-pace of the processes set in motion by officialdom to deal with it, I have wondered why the potential crimes by these (in)Justices are being ignored.
  
  As a non-lawyer myself, I have been careful with my own views, no matter how "commonsensical" these views of mine appear to me.
  
  I have wondered why the Attorney General has not asked the police to arrest these judges, investigate and charge them for the crimes they have committed. Can this action, if initiated be deemed to be an interference with the processes being undertaken currently to deal with the judges? How can't both the criminal and the prescribed constitutional process of removing the judges, go hand in hand or simultaneously?
  
  Having read your piece I realize I am not crazy after all to be entertaining these views.
  
  I hope this is not a deliberate attempt by the elite or the ruling/political classes to protect their own. See how some lawyers are tripping over themselves to defend these common criminals in the name of rule of law. I agree with you that this is purely an abuse of the process and that if this had happened here in the US or the UK, these judges would not be sitting around for long to cause any mischief.

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• bimbilla 10 years ago

  Attah Kofi admitted that he is not a lawyer and honestly called for interpretation of his stated views by legal experts. That is what we expect the experts to do. To describe the article is a misnomer is unfortunate. Don't le ...
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  Attah Kofi admitted that he is not a lawyer and honestly called for interpretation of his stated views by legal experts. That is what we expect the experts to do. To describe the article is a misnomer is unfortunate. Don't let us descend into the same gutter that others do in this forum. Congratulations, Attah for stating this discussion, which, I hope will attract a lot of seasoned and informed arguments (legal) devoid of attempts to belittle contributors

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• Prof Lungu 10 years ago

  Kofi Ata,
  You ask the right question but arrive at the wrong conclusion.
  
  Should it depend on just one dictionary, or, are you saying the Oxford Dictionary is the original/required source for this type of quest?
  
  This is ...
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  Kofi Ata,
  You ask the right question but arrive at the wrong conclusion.
  
  Should it depend on just one dictionary, or, are you saying the Oxford Dictionary is the original/required source for this type of quest?
  
  This is what Merriam Webster says about "Misbehavior":
  
  "Improper or illegal behavior >>>Synonyms malfeasance, misbehavior, misdoing, wrongdoing
  >>>>Related Words CRIME, malefaction, misdeed, MISDEAMEANOR, sin, transgression, trespass, wrong;malpractice; goings-on, hanky-panky; familiarity, gaffe, impropriety, indiscretion; blunder, error, fault...."
  
  Therefore,
  YOUR QUESTION: "...Will this crime also be one of the stated misbehaviour and therefore the processes outlined in Article 146(2) to (11) be followed in removing the judge before prosecuting him for the manslaughter?..."
  
  YOUR ANSWER: "...The answer is no because crime is crime and not misbehaviour. In my humble opinion, the corrupt judges are criminals and should be treated as such..."
  
  WE SAY: We must read "misbehaviour" as a "crime" per Merriam Webster.
  
  When we do that, we meet with you... "corrupt judges are criminals and should be treated as such".
  
  THE PROCESS: As we said in our essay (28 September 2015, Get Up: Anas Judgment Day Has Arrived!) on this topic, "... Chief Wood ought to be able to find a solid legal principle or two to guide her. That is, before she sends the dockets to the Ghana Police Service for prosecution of the judges. But, the Chief will have to make sure she keeps copies of the cases, just in case!..."
  
  In this case, there are two principles.
  
  The process simply requires the Chief and her office to swiftly investigate, to allow her to take administrative action, then with equal measure, turn over all the records to the criminal branch for prosecution. (But the Chief Justice cannot take forever, or hide behind other "judges").
  READ: www.ghanaweb.com/GhanaHomePage/features/Get-Up-Anas-Judgment-Day-Has-Arrived-384234.
  
  Greetings!

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• Kofi Ata, Cambridge, UK 10 years ago

  Prof, you are right to fault me for making reference to only one Dictionary. I guess it's because I am not writing an academic paper. It's also because these days, readers prefer shorter articles. Point well taken.

  Prof, you are right to fault me for making reference to only one Dictionary. I guess it's because I am not writing an academic paper. It's also because these days, readers prefer shorter articles. Point well taken.

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• Prof Lungu 10 years ago

  Kofi Ata,
  No apologies necessary!
  
  You did raise important questions, which we categorize as KAToQ (Kofi Ata Type of Question) on the other side (with respect to the Francis Kwarteng essay).
  
  Your conclusion that crimi ...
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  Kofi Ata,
  No apologies necessary!
  
  You did raise important questions, which we categorize as KAToQ (Kofi Ata Type of Question) on the other side (with respect to the Francis Kwarteng essay).
  
  Your conclusion that criminal prosecution is required for the judges who abused their authority, in our opinion, is a valid one. That, as we've said more than once, ought to swiftly occur, after the administrative review(s), decision(s), and remedy(ies).
  
  Greetings!

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• Godd 10 years ago

  I think the issues raised by Kofi Ata are just minor procedural matters rather than constitutional un-clarities. And as SAS explains, the two designations described by Ata can be brought down to the same thing.
  
  But we will ...
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  I think the issues raised by Kofi Ata are just minor procedural matters rather than constitutional un-clarities. And as SAS explains, the two designations described by Ata can be brought down to the same thing.
  
  But we will still have to wait to see how the process ends and what interpretations are made and/or precedence established.
  
  For another interesting (but slightly non-legal) discussion of the current "crisis", see Stanley Seshie's article of today.

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• Dr. SAS, Attorney at Law 10 years ago

  "synonym"

  "synonym"

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• Abeeku Mensah 10 years ago

  Laws of a nation are not works magicians or tricksters but mostly formulated to police conduct of society relative ti acceptable community moral norms and behavior. So while some laws may have been derived from laws in other ...
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  Laws of a nation are not works magicians or tricksters but mostly formulated to police conduct of society relative ti acceptable community moral norms and behavior. So while some laws may have been derived from laws in other nations, the laws of Ghana, I hope, cover acts of moral turpetude which includes behavior.
  
  Why and how then would a US Law lecturer, even if of Ghanaian birth or parentage, hold sway over the interpretation of the term behavior in Ghana's 1992 cobstitution? Unless the lecturer was privy to debates surrounding use of word behavior during the drafting and ratification of Ghana's constitution why would his take be acceptable than a layman's interpretation?

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• Mensah 10 years ago

  accepting bribe is both misbehaviour and criminal, and freeing criminals for taking bribes is the worst misbehaviour any Judge can indulge in

  accepting bribe is both misbehaviour and criminal, and freeing criminals for taking bribes is the worst misbehaviour any Judge can indulge in

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