For the second time under Ghana’s Fourth Republic, another election petition is here to test the resilience, independence, and trustworthiness of the judicial system. It is almost easy to forget that, in the distant past—when NPP’s Akuffo-Addo challenged the victory of the NDC’s Mahama in the 2012 general elections—the country’s Supreme Court Justices were similarly asked to weigh in accordingly. With such a historical moment in Ghana’s democratic history still fresh in many minds, the post-December 2020 election results petition presented by Mahama against the victory of Akuffo-Addo—as the tables have turned—is yet another history defining moment, but most importantly, a continued test of trust and confidence in institutions.
Maintaining trust and confidence against the backdrop of intense political propaganda can be a battle for any human institution entrusted by the law and citizens to be objective and unbiased in all cases; and the Supreme Court Justices finds themselves, once again, in such a delicate environment. Questions and doubts will be thrown against the Justices, from the bench makeup, experience, notional biases, to background. Some, if not many Ghanaians will charge the political atmosphere with a barrage of claims. Hence, it is imperative to objectively discuss those innate concerns for the benefit of the public.
With Justice Julius Ansah and Justice Gbadegbe retiring from the Supreme Court in 2020, the court is currently left with 16 justices., including the Chief Justice. By law, the discretion to empanel judges is the sole preserve of the Chief Justice, and the courts have confirmed that he is right to exercise such powers even in cases that he is a party to.
By law, The Supreme Court for the purpose of its work, is constituted by not less than 5 justices [Article 128(2)]. Following precedent—the practice of the courts—and constitutional matters, it is most likely that seven justices would be empanelled to preside over the election petition. Consequently, the purpose of this write-up is to assess some of the factors that may weigh on the Chief Justice mind when choosing the seven Justices to preside over the John Mahama v Electoral Commission and Nana Akuffo Addo case. This write up is without prejudice of the Petitioner to raise objection to justices who may be appointed for consideration of the court.
- Election Petition Experience:
As experience is the best teacher, the court currently has members who have experience in handling election petition. His Lordship Justice Anin Yeboah – Chief Justice, His Lordship Justice Jones Dotse and His Lordship Justice Paul Baffoe Bonnie were part of the 2012 election petition. This makes the three most senior judges of the court an easy consideration for the Chief Justice—with himself included. Should the rumour that His Lordship Jones Dotse might be appointed Speaker of the next Parliament be true, then the Chief Justice may be left with only himself and that of Justice Paul Baffoe-Bonnie to consider as judges to preside over the case. However, it is still relevant to underscore that the bench indeed has some experienced minds to leverage—a hallmark of any great human institution.
- Experienced Judges
Outside of election petition experience is also the bench experience of judges. The Chief Justice is fortunate to have judges who have done long service at the bench rising through the ranks from the High Court to the Court of Appeal and to the Supreme Court.
The following members of the Supreme Court have served at the various levels of the superior court Justice Anin Yeboah – Chief Justice, Justice Jones Dotse, Justice Paul Baffoe Bonnie, Justice Yaw Appau, Justice Samuel K. Marful-Sau, Justice Agnes M.A. Dordzie, Justice Mariama Owusu, Justice Avril Lovelace Johnson, Justice Gertrude Torkornoo, Justice Clemence J. Honyenuga and Justice Issifu Omoro Tanko Amadu.
In this regard it will be not be out of place if the learned Chief Justice makes a pick out of these judges counting on their trial experience to be brough to bear on the case.
- Appointment of the Chief Justice
It is important to mention that the power to empanel judges to preside over matters is also inclusive of the power to empanel himself as a judge. The role of the Chief Justice is dual in nature, one being administrative and the other being he acting as a judge.
In almost all election petitions across the world, the Chief Justice often serve as the presiding judge. In the Malawi Presidential Election Petition, Honourable Chief Justice A.K.C. Nyirera SC presided over same. In the Kenyan Presidential election petition, Kenya’s Chief Justice David Maraga presided over same.
In this regard the experience background of the current Chief Justice as a lawyer of several years experience and as a trial judge should not follow the precedence of the 2012 Presidential Petition where the then Chief Justice, Georgina Wood omitted to appoint herself unto the panel of judges who presided over the election petition case.
There is a need for the current Chief Justice to follow the international practice of his peers around the globe.
- Academia Background
The practice of law and the concept of academia—pursuit of research and scholarship—is valuable to any legal system. The panel that presided over the 2012 election petition were not appointed because of their standing in academia—That is with a PhD, to state categorically.
The 4th Republic appointment of Supreme Court justices have taken account of members of academia. The likes of Justice Dr. Date-Bah, Justice Kludze, Justice Dr. Seth Twum, Justice Prof. Madibo Ocran were true academics when they were appointed to the Supreme Court.
Several Jurists have shared that it will be beneficial to have a justice from academia to write a judgement concerning an election petition as it would greatly assist the court in its jurisprudence. In the current panel of Supreme Court Justices, we have his Lordship Justice Prof. Nii Ashie Kotey and Her Ladyship Justice Prof. Henrietta Joy Abena Nyarko Mensa-Bonsu as justices who were appointed from academia.
- Seniority at the Supreme Court Bench
In the legal profession, seniority at both the bar and the bench is highly regarded. This is semantically reflected in how judges names are written in the various legal summaries and reports. The Chief Justice is deemed by practice the most senior person on the bench and presides (or chairs) over every case he is empanelled.
Another capture of seniority is seen in how the Justices are seated in the court. The senior members are the ones who sit in the middle and junior members of the bench sit at the extreme ends. Should seniority be considered, then the seven most senior members of the court are the following: Justice Anin Yeboah – Chief Justice, Justice Jones Dotse, Justice Paul Baffoe Bonnie, Justice Yaw Appau, Justice Gabriel Pwamang, Justice Samuel K. Marful-Sau and Justice Agnes M.A. Dordzie.
However, taking the seniority approach will be novel as the court does not do that in practice with cases. Additionally, this will defeat the conscious effort to achieve gender balance when empanelling judges for cases of national importance—an issue that weighs heavily on the mind of the Chief Justice.
- Gender Balance
There are calls by some Civil Society Organizations for the Chief Justice to consider empanelling female judges of the justices to form the Election Petition panel. In the 2012 election petition, out of the 9 justices, three of them were females—Justice Sophia Adinyira, Justice Rose Owusu and Justice Akoto-Bamfo. The current Supreme Court, there are five female justices: Justice Agnes M.A. Dordzie, Justice Gertrude Torkornoo, Justice Mariama Owusu, Justice Avril Lovelace Johnson and Justice Prof. Henrietta Joy Abena Nyarko Mensa-Bonsu.
It will therefore not be strange should the Chief Justice follow the 2012 pattern of appointing three females out of the seven.
- Bar Dimension
The Bar symbolizes a learned person’s character, duty, and ethics. Hence, one cannot discount the role of judges who have been appointed directly from the bar to the Supreme Court. Consider the rich contribution of Justice William Atuguba, and former Chief Justice, Justice Sophia Akuffo to the development of the law.
In the 2012 election petition, the only bar member on the panel was Justice William Atuguba. The current members of the Supreme Court who were elevated from the bar are Justice Gabriel Pwamang, Justice Nene Abayaateye Ofoe Amegatcher and Justice Emmanuel Yonny Kulendi.
- Appointment Factor
This is the weakest of all factors that should weigh on the mind of the Chief Justice. It is purely politics and mostly deemed to be dangerous for a budding democracy like Ghana. Some have argued that judges appointed by a ruling or previous political regime will most likely rule in favour of the regime or person(s) that appointed him or her in a given case.
This is particularly threatening to the constitutional independence of the judiciary and essentially puts appointed judges across the same party lines rather than their fit for understanding the law and issuing judgements based on the law. It also sends the wrong message to the public and potentially damages the judicious exercise of duty even beyond the election petition into all matters of law.
Any notion of a political bench will be as damaging as the political division and propaganda we see today. Furthermore, if this dangerous factor is anything to go by, then the Chief Justice must ensure a balance in his empanelling of persons appointed by different regimes. However, doing so will be a corruption of the entire independent judiciary. The men and women of the bench, from the lowest to the highest courts are appointed to serve the nation at the behest of the constitution of the land and not a political party or person(s).
Amongst the current members of the Supreme Court President J.A. Kuffour appointed Justice Anin Yeboah – Chief Justice, Justice Jones Dotse and Justice Paul Baffoe Bonnie. Former President Mahama also appointed Justice Yaw Appau and Justice Gabriel Pwamang. President Akuffo-Addo also appointed Justice Samuel K. Marful-Sau, Justice Agnes M.A. Dordzie, Justice Nene Abayaateye Ofoe Amegatcher, Justice Prof. Nii Ashie Kotey and Justice Mariama Owusu. The rest are Justice Avril Lovelace Johnson, Justice Gertrude Torkornoo, Justice Clemence J. Honyenuga, Justice Issifu Omoro Tanko Amadu, Justice Prof. Henrietta Joy Abena Nyarko Mensa-Bonsu and Justice Emmanuel Yonny Kulendi
These justices, no matter who appointed them will consider the case on its merit and rule. We need not be reminded that in 2012 Justice Sophia Adinyira and Justice Paul Baffoe Bonnie who were appointed by President Kufuor ruled against the Petitioner Nana Akuffo-Addo. This clearly affirms the fact our justices will dispense justice without any fear or favour.
Our laws allow for defining moments like this to test not only our resolve but also the integrity (confidence and trust) and soul of a nation that has been fought for since independence. Elections in Ghana, since the inception of the Fourth Republic, has always been contentious yet has remained the envy of some of our neighbours, far and near. This election petition is not a bump in the road again, it is merely another beautiful thing for Ghana in demonstrating our self-governance, respect for each other, and recognition of freedom and justice. Such maturity is what has enabled the free practice and independence of the Judiciary who must now ensure that every vote of every Ghanaian is accounted for in a free and fair manner.
Irrespective of the background of a Justice, no one can doubt the competencies of the current justices of the Supreme Court. We may disagree with their decisions but cannot contest their rich background of service and experience in the law. Whoever is empanelled to review and decide on the election petition must be reminded of their oath to the constitution and to the Republic of Ghana; that they will exercise their duty in accordance with the law and satisfy their judicial oath of dispensing justice without fear or favour.
It is fair to write that there may be several factors that may weigh on the mind of the Chief Justice beyond what has been espoused above. Ultimately, one can hope that the Chief Justice will use only the most important factor(s), which is competence, independence, and fidelity to the oath of secrecy.
In political cases such as this, rumours and propaganda can be damaging to the integrity of the process and can have long winded impacts on every fibre of governance and society. Fortunately, we have an experienced Chief Justice who has the men and women to dispense justice in accordance with the law. Most importantly, with such men and women, one will hope that the parties involved will avoid political theatre and present the facts and the law to ensure that that the empanelled members can examine and make conclusions. This should be the noble thing every Ghanaian wants: a credible, trustworthy, and fair outcome.