By: Francisca S. Boateng, Esq.
A few days ago, I saw a video on social media of some men and women engaged in serious fisticuffs in what appeared to be the chamber of some Parliament. The dramatis personae were all adults of seemingly sound mind and when I read that the venue of that juvenile behaviour was allegedly the chamber of the African Parliament, I smiled and shook my head. My mind momentarily went to our own day of national disgrace of a few months ago – 7th January, 2021. I closed my phone, left social media behind and returned to the ‘flesh and blood’ reality called life. For a couple of minutes, strangely, I could not shake off the pictures of that day floating in my mind, especially the swearing in of the Speaker, the Vice-President and the President of the Republic. I found my memory’s wanderings strange because at my age, I have had the great fortune of watching all the eight swearing in ceremonies on TV. I just couldn’t put a finger on why several months after the ceremony, my mind was ruminating on the scenes I saw on TV that day.
Then, eureka! My thoughts settled on the Judicial Secretary, the second female to occupy the position in this 4th Republic, and I presume, the second ever since independence. It was her first attendance at a swearing in ceremony as she had been appointed in October, 2018. She reportedly resigned from another public service institution to take up the Judicial Secretary position as she could not have held two portfolios within the public sector. In my thoughts, I remembered her meekly and mildly taking out sheets of paper containing the various oaths of office from a black portfolio for the Chief Justice to administer to the Republic’s top three VVIPs. The thought that a grown person in full legal regalia will be part of a ceremony just to turn over a sheet of paper and a pen to His Lordship, the Chief Justice in his white-gloved hands seemed so feudal to me but, “it is tradition”! Perhaps, if we modify and modernize the pomp and ceremony, it might “open the floodgates” for our “traditions” to be diluted, dented and disregarded. We have bought this tag line before, haven’t we? “Opening the floodgates” is the new euphemism for continuity. It has been adopted by contented public servants who are just fine with the way things are and wishes them to remain so. That way, they need to do very little and our society stays stagnant for centuries while for other countries, the notion of ‘opening their floodgates’ is what has led to their innovation and advancement in all spheres of life. That is why for us, a child’s eagerness to go to school is not as relevant as the type of natural hair he carries on his head. We thank God for a forward-looking judgment that has saved the day and saved us from ourselves. But I digress.
- Who is a judicial secretary and what role do judicial secretaries play?
The current Judicial Secretary was appointed as such in her capacity as a lawyer of standing on the roll of lawyers in October, 2018. In less than two years, that is, in August 2020, she was appointed as a judge of the Court of Appeal. Now, Her Ladyship had to ditch her own ceremonial gown for the drab black gown and collaret worn by lawyers for the national swearing in ceremony. She could not be seen wearing the same regalia as the Chief Justice and at same time, serve as his attendant. Interestingly, her colleagues on the Court of Appeal bench and her ‘juniors’ on the High Court bench attending the swearing in ceremony had to wear their ceremonial robes, that is, the red velvet gown and extended wigs; the same as the one worn by the Chief Justice. I believe it was to avoid some of these awkward situations that for so many years after independence, lawyers and not judges, served as judicial secretaries. Those who wanted a career on the bench only did so after they left the judicial secretary position; for instance, the late G. A Aryeetey was a lawyer when he was appointed as Acting Judicial Secretary and he joined the High Court bench only after he left his position as acting judicial secretary. The judge cum judicial secretary combination appears to have started with the appointment of the incumbent’s predecessor as a High Court judge whiles serving as judicial secretary. The practical challenges are now manifesting themselves as will be demonstrated presently.
In the earlier ruminations I alluded to, I guess my thoughts dwelled on the Judicial Secretary longer than necessary because I started wondering what might have happened to her after that swearing in ceremony. The reason was not far-fetched. Soon after ushering the nation into the 8th Parliament of the 4th Republic, the Judicial Secretary appeared to have taken a ‘leave of absence’. This is because the Hon. Chief Justice of the Republic resorted to writing and signing his own official letters on the letterhead of the ‘Office of the Hon. Chief Justice’. As is the convention and practice, all communication from the Judiciary and the Chief Justice as its head emanates from the Judicial Secretary, and so, this development raised many an eye-brow. Secondly, when citizens of Ghana, personified as the ‘media’, were perceived to be all-knowing and commenting ignorantly on the 2020 Presidential Election Petition pending before the Supreme Court, the judiciary reportedly instructed a private law firm to write and warn the erring fellows. No one knew where the Judicial Secretary then was. And when those the cap seemingly fit decided to wear it and asked the letter writer to ‘bring it on’, the lot fell on a Justice of the Supreme Court, no less, and not the Judicial Secretary, to address a joint press conference with the media on behalf of the Chief Justice.
- The Chief Justice’s invitation to the public to criticize the judiciary.
The Justice of the Supreme Court, speaking for the Chief Justice, did a good job by calling upon all and sundry to criticize the bench violently but pleaded that the bench should not be insulted. His Lordship delivered the “criticize us violently” sermon against the backdrop of the bronze busts of the three slain High Court judges and the President of the Ghana Bar Association, among other persons. This put paid to the notion that the Judicial Secretary’s job description had been reviewed to curtail her ability to write or speak for the Judiciary and the Chief Justice. One probable reason that could be proffered to explain the situation was that, she might have assumed her role on the Court of Appeal bench and the Judicial Service was either looking for a replacement or grooming one of the numerous deputies to step into Her Ladyship’s shoes. Indeed, deputy Judicial Secretaries who were appointed to the bench some time ago have left the office and are sitting as judges in courts. Therefore, I wagered I could not have been far from right in my guesstimation. Boy, was I unpardonably wrong; Her Ladyship is very much at post with all her duties and responsibilities as Judicial Secretary intact. In fact, it appears Her Ladyship’s duties have now been enhanced.
- The petition by the Chief Justice to the General Legal Council.
By a letter dated 25th May, 2021, and addressed to the Chairman of the Disciplinary Committee of the General Legal Council, the Judicial Secretary lodged a petition on behalf of the Hon. Chief Justice of the Republic of Ghana against a certain Dr. Dominic Ayine, a former Attorney-General. The essence of the letter was, in summary, to petition the Disciplinary Committee to investigate an allegation that Dr. Ayine passed disparaging comments about the manner in which the Supreme Court handled the 2020 election petition, that is to say, “the Supreme Court’s failure to apply the rules of procedure as well as the consistent and continuous dismissal of the petitioner’s applications or reliefs”. The letter continued, “His Lordship, the Chief Justice, therefore, finds his alleged disparaging comments totally unacceptable and would like you to investigate this matter further”. The letter also made reference to an apology Dr. Ayine rendered to the Supreme Court during the trial of the 2020 election petition when he was summoned to appear before the Supreme Court on charges of contempt of court. Since the publication of the letter, it has emerged that the alleged disparaging comments were made at a forum organized by CDD-Ghana, a civil society organization on democracy and governance, to discuss the election petition and its implication for governance in Africa.
- The bizarre nature of the petition
Coming just about two months after the Chief Justice assured the nation through a press conference that the citizens are free to criticize the courts (albeit devoid of insults), it is most bizarre that the Chief Justice will personally take offence for a citizen’s criticism of the Supreme Court’s handling of a case that has ended. This move is unprecedented and it bodes ill for the fledgling tenets of rule of law and democracy in Ghana. If every judge should sit on a case and thereafter set out to monitor discussions that follow on radio, TV, social media, pubs and drinking spots, including the not-so-flattering comments, then we are done for as a country.
Secondly, the Chief Justice caused the petition to be lodged in his own name. In my view, if the petition were actuated by a desire to protect the judiciary as an institution, then any employee of the Judicial Service could have lodged the same. The petition filed in the name of the Chief Justice, therefore, sets a dangerous precedent for the judiciary. If the Chief Justice is criticism-averse and will not tolerate views he disagrees with, then very soon, we should not be surprised to hear that His Lordship has petitioned the President for the removal of the four justices of the Supreme Court who recently gave a majority ruling and left the Chief Justice a lone dissenter in a case at the Supreme Court.
Furthermore, the Chief Justice is the Chairman of the General Legal Council. It is the General Legal Council that appoints the members of the Disciplinary Committee. The Disciplinary Committee is, as the name implies, a committee. Therefore, it only makes recommendations and it is the General Legal Council itself that takes the final decision and imposes sanctions. In the circumstances of the instant case, the Chief Justice is the petitioner so he must appear before the Disciplinary Committee and give evidence to support his allegations in the petition. Then, as the Chairman of the General Legal Council, he will be part of those who will take the final decision in the case based upon the recommendations of the Disciplinary Committee.
This state of affairs, therefore, presents a veritable case of one being a judge in his own cause. It offends against the nemo judex in causa sua rule of natural justice and the Chief Justice ought to be advised accordingly by his lawyers to forestall any unpleasant consequences this situation might cause. In this 4th Republic, we have had Chief Justices who have been sued in their personal names by the Bar Association for purposes of constitutionalism and we remember them for their sense of accommodation. They did not draw swords against their adversaries but rather saw such legal challenges to their exercise of power as a legitimate and healthy cause in a democracy. We have also encountered those who felt intoxicated by the “My Lord, My Lord” chorus and decided to teach others a lesson in how not to use words like ‘judicial chicanery’. After all was said and done, the Ghana Bar Association put together a strong legal defence team, embarked on a strike action in support of their colleague and a month’s jail sentence was served at Nsawam Medium Security prison. Surely, there must have been a momentary feeling of release but what memory did that course of action etch on the minds of Ghanaians? Who was the poorer for all that happened?
The petition is bizarre not only in terms of the personal role played by the Chief Justice but also that of the Judicial Secretary as the person who lodged the petition on His Lordship’s behalf. The role of the Judicial Secretary as the representative of the Chief Justice as petitioner is most intriguing. The Judicial Secretary is the secretary to the General Legal Council. The Judicial Secretary is also the one who ensures that the decisions taken by the General Legal Council, including those emanating from the Disciplinary Committee, are carried out. In the recent past, a Judicial Secretary was dragged to court in proceedings bothering on his role relative to the enforcement of a decision of the Council. In the light of the foregoing, the Judicial Secretary’s role as the advocate of the Chief Justice in his petition to the Disciplinary Committee is most untenable. Just like the Chief Justice, the Judicial Secretary is not an independent person; she is very much an important feature in the affairs of the General Legal Council.
At any rate, the Judicial Secretary’s role as the advocate of the Chief Justice by lodging the petition on His Lordship’s behalf on her “Office of the Judicial Secretary” official letterhead is antithetical to her position as a Justice of the Court of Appeal. Judges cannot, and ought not, act as advocates or representatives of litigants and parties before the courts or other adjudicating bodies such as the Disciplinary Committee of the General Legal Council. It will, therefore, be most appropriate for the Judicial Secretary to cease her representation of the Chief Justice in the petition forthwith to curtail any further assault on the due process of law. Since appeals against decisions of the Disciplinary Committee of the General Legal Council are heard by the Court of Appeal, it will be interesting to see how the Judicial Secretary’s colleagues on the Court of Appeal bench will handle an appeal in such a case where she was the person who filed the petition on a party’s behalf.
- The future of the legal profession
From the contents of the petition, the basis of the petitioner’s action is the views expressed by Dr. Ayine at an academic forum to discuss the Supreme Court’s handling of the 2020 presidential election petition. Apparently, the respondent’s commentary on the case was not music to the petitioner’s ears. Can anyone, in all sincerity, give judgment in a case of such national importance – with a victor and a vanquished – and expect to receive hugs and kisses from all and sundry? Certainly not. And that is why the petitioner and the judiciary must come to terms with the fact that in a democracy, expression of divergent views and “violent criticisms” are part of the landscape. When the judiciary’s letter from its externally-instructed law firm got to the press, the expression of opprobrium by the press and civil society organizations was swift. That should have alerted the powers-that-be that any acts that amount to stifling of free speech in Ghana will not be suffered gladly.
To think that a precedent is now being set to curtail lawyers’ right to comment on decisions of the courts is a new low in our Republic. If the press expressed their opprobrium when an attempt was made to gag them as alluded to earlier, then the Bar must show its abhorrence to the attempt at striking at the very heart of their professional duty as lawyers. Lest, we see the beginning of the end of our beloved profession. When the Bar dies, so will the Bench. The Bench grows out of the Bar. Even a magistrate ought to have some years of practice at the Bar before appointment to the Bench.
Currently, there is not one Disciplinary Committee of the General Legal Council. There are, at least, two such Disciplinary Committees and the Chief Justice sits on one as its Chairman, to the best of my knowledge. As to which of these two Disciplinary Committees will be handling the petition, only time will tell.