Opinion: Judicial infidelity – Holding our unelected lawmakers to account

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“Whoever sows injustice will reap calamity, and the rod of his fury will fail” – (Proverbs 22:8, ESV)

Give me plural (or multi-party) democratic governance with strict enforcement of presidential term limits of four years per single term and eight years maximum culminative term limit of two terms, and a democracy where free and fair general elections are held regularly; every four years to either renew the mandate of an incumbent president or reject an underperforming corrupt president and a ruling political, to elect a new president and a new political party, and any day I will prefer and choose this form of political governance as the lesser of two evils over any other form of political governance prescribed for Africa.

Frankly speaking any other form of political governance which seeks to perpetuate the governance of an individual president under any circumstances and a political party indefinitely beyond their stay of welcome is unconscionable and must not be entertained under any circumstances. Such governance is unreasonable and cannot ensure or guarantee good governance, healthy democratic credentials, protection of fundamental human freedoms and liberties for all citizenry, social justice, social equity and fairness, equality before the law, and the “rule of law”.

Governance experts who every now and then advocate for a single five year or seven-year term presidential limit are either not serious or are out of their minds and at best should be sent on a one-year permanent residency to the DPRK (Democratic People’s Republic of Korea) to experience their governance system and living conditions to which ordinary citizens of DPRK are subjected to on a daily basis as a sine-qua-non to help them reevaluate the state of their mental health and thereafter learn to speak sensibly on democracy and matters of democratic governance. Otherwise I kindly urge them to shut-up and learn to make intelligent public pronouncements and sensible contributions to public discourse. They also have the option to bury their heads in sand like ostriches and pretend that all is well with their mental faculties. The same goes for those who seem to suggest that democracy is a misnomer in the African context of political governance, as if Africa were a homogenous ethnic territory and cultural milieu where a “political monarchy” is a preferred traditional form of governance that should be practised.

“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph” – (Haile Selassie, former Emperor of Ethiopia)

The preamble to the 1992 Constitution of the Republic of Ghana states inter alia “that all powers of Government spring from the Sovereign Will of the People”. Article 1 (1) further articulates the meaning of Sovereignty under “Supremacy of the Constitution” when it asserts that “the Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised and within limits laid down in the Constitution”.

Articles 17(1) and 17(2) under “Equality and Freedom from Discrimination” affirms that “all persons (both citizens and non-citizens of Ghana) residing and domiciled within the defined Sovereign geographical territory of Ghana and jurisprudence of Ghana, are all equal before the law. Furthermore, all persons shall not be discriminated against on the grounds of their gender, race, ethnic origin (tribe), religion, creed or social or economic status”.

The 1992 Constitution is therefore unambiguous or unequivocal when it states that no person can be discriminated against on account of the person being a “he”, “she” or “intersex” (“s/he”), or whether the person believes or does not believe in the existence of a God, or whether the person is a Christian, Muslim, African Traditional Ancestral worshipper, or whether the person comes from Akyem Kyebi, Ketu, Ho, Jacobu, Binduri, Paga etc. nor whether the person is permanently resident at Pantang Mental Hospital or East Legon.

All these persons including members of the Great Consolidated Peoples Party (GCPP), Peoples National Congress (PNC), New Patriotic Party (NPP), Convention People’s Party (CPP), National Democratic Congress (NDC) et al, the Chief Justice and Justices of the Supreme Court of Ghana (SC), Chairperson and Commissioners of the Electoral Commission (EC), members of Christian Council, members of the Catholic Bishop Conference etc. are all equal before the laws, enactments, judicial precedents and common law precedents to which Ghana subscribes to. Indeed, every person residing in Ghana is equal before the law!

“A man dies when he refuses to stand up for what is right. A man dies when he refuses to stand-up for justice. A man dies when he refuses to take a stand for what is true” – (Dr. Martin Luther King (American Civil Rights Activist)

The 1992 Constitution in Articles 125(1), 125(2), 125(3), 125(4) and 125(5) under “The Judicial Power of Ghana” states inter alia that “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution”. This declaration confirms that the Judiciary currently headed by the Chief Justice and the Justices of the SC are subject only to the Constitution of the Republic of Ghana and not to the President who appointed them to the SC nor their preferred political party. This means that Justices of the SC and Superior Courts show fidelity to the Sovereign People of Ghana; the ordinary citizens of Ghana, and to the 1992 Constitution; when they abide by the tenets of the Judicial Oaths they swore and uphold the Constitution and the laws of Ghana, and do not pander to the whims and caprices of any President or political party.

Justices of the Superior Courts of Ghana comprised of the Supreme Court, the Appeals Court and the High Court, take the Judicial Oath when they are appointed and swears before God, the President and the People (Citizens of Ghana) that they will “individually uphold the sovereignty and the integrity of the Republic of Ghana; and that they will truly and faithfully perform the functions of the office of Judge (Justice) without fear, favor, affection or ill-will; and that they will at all times uphold, preserve, protect and defend the Constitution and laws of the Republic of Ghana (So help me God)”.

“For there is no partiality with God” – (Romans 2:11, NASB)

In the year 2016 the Montie-3 where found guilty of Contempt by the Supreme Court of Ghana under charges of scandalizing the SC and were swiftly sentenced to four months imprisonment. On 2 September 2020 a prominent member of the NPP and sitting Member of Parliament of Assin North Constituency committed a similar crime as that of the Montie-3 if not worse, by scandalizing a High Court Judge and by implication a Justice of a Superior Court of Ghana, but Ghanaians as at 4 October 2020 are yet to witness the alacrity and swift dispensation of justice as administered in the Montie-3 Contempt case. Is this therefore a question of “different strokes for different folks” or some persons are more equal than others before the law?

Are Judges subject to the same laws of Ghana that ordinary persons (citizens and non-citizens) are subjected to?

If fidelity to the Judicial Oath means judicial fidelity to the 1992 Constitution and Judges are subject only to the dictates of the 1992 Constitution and nothing else, then do the actions and judicial decisions of “partisan activist Judges” who do the bidding of political parties that they are beholden not amount to scandalizing judicial discretion and judicial fidelity that constitutes judicial infidelity and infidelity to the Judicial Oath?

It is trite knowledge that judicial decisions and verdicts by the SC become law and in essence are construed as laws made by unaccountable and unelected lawmakers. A case in point is the recent SC decision which effectively annulled the significance of a “Birth Certificate” as a statutory document used among others as a prerequisite in establishing an individual’s personal identity and path to proof of citizenship of a person.

I am hereby appealing to Civil Society Organisations (CSOs) the likes CDD and other credible opinion polling organizations to conduct a simple opinion poll as indicated in the question below and publicly publish the results as constructive feedback to Chief Justice Anin-Yeboah and the Judiciary of Ghana.

Please tick Yes or No as your response to the question below:

Do Justices of the Supreme Court of Ghana uphold the 1992 Constitution more that than they uphold the interests of the President and Political Party that appointed them to the Supreme Court?

“Justice in a fallen world is not equality of outcomes but equal treatment under a fair law” – (Kevin DeYoung, American Theologian)

Opanin Archimedes Owusu-Ababio

C/o Cocoa Shed: Suro-nipa Nkwanta

Eastern Region

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