‘Opuni judge’ retires, given limited time to conclude case

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The Supreme Court Judge sitting on the Opuni-Agongo case has attained the Constitutional retirement age of 70 years for Justices of the Superior Courts of Ghana.

Born on 4 September, 1952, Justice Clemence Jackson Honyenuga clocked the anniversary milestone on Sunday, September 4, setting him up for compulsory retirement after years of a successful climb on ‘the bench.’

Article 145 of the Constitution of Ghana, which deals with the ‘Retirement and Resignation of Justices of the Superior Courts and Chairmen of Regional Tribunals’, stipulates: “1. A Justice of a Superior Court or a Chairman of a Regional Tribunal may retire at any time after attaining the age of sixty years”.

“2. A Justice of a Superior Court or a Chairman of a Regional Tribunal shall vacate his office: – (a) in the case of a Justice of the Supreme Court or the Court of Appeal, on attaining the age of seventy years; or (b) in the case of a Justice of the High Court or a Chairman of a Regional Tribunal, on attaining the age of sixty-five years; or (c) upon his removal from office in accordance with article 146 of this Constitution”.

The Supreme Court Judge is particularly popular for presiding over the Opuni-Agongo, right from the start in 2017 till now, given the twists and turns that the case has endured in and outside court.

It is understood that Justice Honyenuga has been granted “limited time” to ‘clear his desk’ and pronounce judgment on pending cases, including the Opuni-Agongo case in line with Clause 3 of Article 145 of the 1992 Constitution.

The clause says: “A Justice of the Superior Court of Judicature or a Chairman of a Regional Tribunal may resign his office by writing, signed by him and addressed to the President” while Clause 4 says: “Notwithstanding that he has attained the age at which he is required by this article to vacate his office, a person holding office as a Justice of a Superior Court or Chairman of a Regional Tribunal, may continue in office for a period not exceeding six months after attaining that age, as may be necessary, to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previous to his attaining that age”.

Just before his last adjournment of the GHS271-million case of causing financial loss against the ex-CEO of the Ghana Cocoa Board (Cocobod), Dr Stephen Opuni, and private businessman Alhaji Seidu Agongo, on Thursday, 28 July 2022, Justice Honyenuga told the court: “In pursuant to Article 112(2) of the Constitution, 1992, the Chief Justice has granted me a limited time to conclude this case”.

“In the circumstances, this court shall, in addition, sit on Tuesdays at 11 am for early disposal of this four-year-old case”, he announced, before adding: “In view of the pending vacation, the case is adjourned to October 3, 2022, at 10 am for continuation”.

During the period of hearing the case, Justice Honyenuga has come under public criticism for some comments he made both outside and inside the court.

Honyenuga Endorses Akufo-Addo for A Second Term

Justice Clemence Jackson Honyenuga, who is also the Paramount Chief of the Nyagbo Traditional Area in the Oti Region, in the lead-up to the 2020 general elections, endorsed the candidature of President Nana Akufo-Addo when he delivered his welcome address to the President at a durbar of chiefs and people of the Afajato South District.

“We wish to congratulate you for the excellent manner you are governing this dear country of ours, Ghana, and the significant gains made in the economy in your first term”, Torgbui Ashui Nyagasi V praised, adding: “It is true that you have won high admiration, not only in Africa but also in advanced democracies”.

“Your flagship programmes like the Free Senior High School, Planting for Food and Jobs – which has increased food production and has even led to exports; – One District-One Factory, among others, have increased food production and improved upon the standard of living of many Ghanaians”, the Court of Appeal Judge said in February 2020.

“Indeed”, he added: “For special mention is the Free SHS, which has broken boundaries and has greatly bridged the gap between the rich and the poor”, observing: “This programme has also broken the record, which was held by the first President of the Republic of Ghana, Dr Kwame Nkrumah, who gave free education to our brothers and sisters in the northern part of Ghana”.

The chief continued thus: “Your Free SHS programme is unprecedented in the history of Ghana, in a first term, as it covers the whole country”.

Justice Honyenuga then called on Ghanaians to give President Akufo-Addo another term of office to implement his vision for the country.

“We wish to congratulate you for the excellent manner you are governing this dear country of ours; it is our hope that with your vision and the gains made in your first term, Ghanaians may consider giving you another four years,” he stated.

Justice Honyenuga was widely condemned for the endorsement taking into consideration his position as a Court of Appeal Judge who is barred from making such political endorsement per the code of their conduct.

‘Honyenuga Was Caught Pants Down’ – Mahama aide

Speaking on Metro TV’s Good Morning Ghana programme on Monday, 14 February 2020, Former President John Mahama’s aide, Joyce Bawah Mogtari, said Justice Honyenuga was “caught pants down”. She told host Randy Abbey: “… I would want to put it in proper perspective that I’m sure that if Justice Honyenuga watches this clip of himself, reading that statement and if you watch even the faces of the persons who were sitting around him, it leaves watchers in no doubt that even they were smarting from it, they were a touch uncomfortable”.

“Randy, the second thing I would want to put out there is that: we ought to, no matter what we do, try as much as possible, to think about some very important judicial principles that in every situation that we find ourselves in, it is not just about justice being done but it must be manifestly seen to be done. It is also not the first time that you’ll see a judge sitting as a traditional ruler, but in this case, we not only have a judge, but we also have a judge who is currently sitting on cases involving some very senior political persons, specifically, politicians from the erstwhile NDC administration, who are currently standing trial for all sorts of charges, and we have this particular judge sitting on this matter.

“Randy, even to the uninitiated, to the unaided eyes, when you watch and listen to a judge of this stature speak in such partisan terms and in such political lines, and then you are told that the same judge is also sitting on this high-profile political trials, this is a case of a judge being caught flagrante delicto – basically pants down; acting in a manner unbecoming [of a judge]”.

“When you are caught there – ajar, you leave no logical or reasonable conclusion in the mind of anybody watching”, the former Deputy Minister of Transport in the Mahama government said.

“It is not even an objective welcome address; it is not a considered statement, it is not even a case for you to say that: ‘Maybe, whoever wrote the speech did not realise that the person who was going to come and read it, was not only a judge sitting on such a high-profile political case; I don’t think anybody was in any cahoots about what was going on”, the former Deputy Minister of Transport argued.

She continued: “There is a good reason why whenever applications are put in for people to serve as judges – and I’m sure you listened to the new judge who is in charge of the judiciary complaint unit who spoke at length about the fact that judges must be manifestly seen to be persons who have a high level of integrity, who have an equally modest approach to their pronouncements, especially their public utterances.

“There is also a certain expectation that the ethics of the judicial oath, will, in many ways, place on you a certain burden that disallows a judge from making comments, that will appear, first and foremost, not only sub judice – outside your remit, outside your mandate – but that seek or purport to put you or cast you in a certain light.

“We do know that judges certainly have a right to vote, and they do vote; they would certainly have their inner proclivities about whom and how or which political party they wish or intend to cast their vote for, but Randy, we have, in recent times, realised that there is a certain constitutional prohibition of chiefs, in particular, making such political statements or taking such political views, judging by the number of times that these matters have come up. The House of Chiefs itself, has, in recent times, come up for serious criticism. If you recall, there was a matter involving Togbe Afede issuing a certain statement, the pros and cons of that conversation regarding the position taken in respect of the referendum …

“I have heard about chiefs requesting, for example, for development projects, for calling on leaders to ensure peace and stability, especially it being an election year, I have also heard about chiefs even admonishing for some perceived wrongs or allegations of wrongdoing within society. I know chiefs who have campaigned actively against deforestation, and, of course, against galamsey and its ramifications on the environment; these are social causes that anybody within any societal remit is allowed to speak to, but when you hear a judge of the Superior Court advocate a second term for a sitting President, this was not done privately, it was not done in a tête-à-tête conversation with the said individual, the ramifications are dire”, Mogtari insisted.

She added: “And I’m sure if you listen to the President when he delivered the State of the Nation Address, he made reference to about 40 persons who are currently standing trial for all manner of charges, per se, then you have the same President visiting a community and having a judge, who happens to be sitting currently on one of these very politically-influenced cases [make those comments]”.

Mrs Bawa Mogtari said had the same thing happened under the Mahama administration, the narrative would have been different.

“I shudder to think of what would have happened if, under the NDC administration led by President Mahama, that a judge sitting on any matter involving any member of the then-opposition had come out so openly to make such very fluid remarks, committing his entire community; in fact, he [the judge] campaigned even more than the President on that particular occasion.

“… So, I ask: what will make a judge make those pronouncements? And you know, this is a very experienced judge, and I wonder what his own colleagues may have said to him in the aftermath; I even wonder what the Judicial Service [may have said to him].

“I believe the Judicial Service must openly rebuke such conduct … Immediately after that story broke, I even actually called on our own party’s committee that we must petition the Chief Justice, directly; first for some sanctions, second for renewed guidelines – maybe they need to spell them out once more and spell them out clearly, and thirdly; this particular judge should not be allowed to go on in this matter; that one I insist on it; it is totally unfair to the persons being prosecuted, it is a biased perspective, it actually shows a judge caught in making a biased statement of a political kind who appeared very passionately partisan in his delivery and, so, … nobody would expect that such a judge would fairly dispense justice …”, she added.

She also wondered why civil society organisations were not speaking on the matter. “… I am also surprised about the quietude, first; of moral society, of the Ghana Bar Association, National Media Commission, the Ghana Institute of Journalism, National Media Foundation, of our CSOs, Christian Council; suddenly the moral voices have gone mute.

“I am also surprised about the quiet voices led by very distinguished individuals like OccupyGhana, individuals, who, hitherto, had interesting words of caution and advice for many individuals on even welcome addresses that were given initially, in years past, by some individuals were heavily criticised and subjected to rigorous debate about whether or not they had crossed the line and ethics of their work …

“There is an even greater responsibility on a judge or any individual who is serving currently as a judge; we’re not talking about a retired judge, about a former judge, no. You know what happened to Justice Kpegah when he made comments that people found to be against the pronouncements of a judge. We know, recently, what has happened to Justice Date-Baah, who was nominated as a distinct individual to serve on the Telecoms Tribunal … So, when you hear a judge sitting on such a matter, come out so openly, Randy, in broad daylight, in the full glare of the general public, and speak to such matters, I think first and foremost, Dr Opuni and the others I know are currently before his court, should immediately, petition the Chief Justice for him to recuse himself. Because I believe that these comments are very disparaging, they generate some disrepute, they do not augur well for the outcome of the case.

“I would also expect that the Ghana Bar Association would come out strongly to criticise, in whatever fashion, and to serve a caution to other judges who may be falling foul of the high standards required of judges”, she added.

Honyenuga’s Akufo-Addo Endorsement Regrettable, Unacceptable – Volta NDC

The Volta Regional Secretariat of the main opposition National Democratic Congress (NDC) also described as “regrettable” and “unacceptable”, the endorsement of President Nana Akufo-Addo by Justice Honyenuga.

The NDC Secretariat, in a statement signed by the Regional Chairman, Henry Kwadzo Ametefe, said the chief’s endorsement violates the Judicial Code of Conduct.

“While taking due cognisance of the fact that Justice Honyenuga may have made those comments in his capacity as a traditional ruler, it is reprehensible and regrettable, especially for a man, who is supposed to know our laws better than any ordinary man and to uphold and respect same,” the statement said.

“Not only is this conduct by the Court of Appeal Judge a blatant violation of the Judicial Code of Conduct but it very well sins against the very sanctity of the institution of the judiciary as we know it,” it added.

The Secretariat called on the Judicial Council and the General Legal Council to take judicial notice of such “transgressions and take appropriate action.”

It’s A Violation of Judicial Code of Conduct – Prof Kwaku Asare

Also, US-based lawyer and professor of accounting, Stephen Kwaku Asare (Kwaku Azar), expressed shock that a judge of the superior court could publicly endorsed a candidate for political office in violation of the judicial code of conduct.

Reacting in a Facebook post, Prof Asare noted: “Of course, we do not take our laws and codes seriously but judges should do a little better.”

His full post read: “I was utterly surprised to read that a Judge of the Superior court has publicly endorsed a candidate for political office in clear violation of the judicial code of conduct. Of course, we do not take our laws and codes seriously but judges should do a little better. 128/1820 is a bona fide scam and sham. Da Yie!”

What The Code of Conduct For Judges Says

Rule 6 of the Code of Conduct for Judges and Magistrates, titled ‘Political and quasi-political activity’, states: “A judge should refrain from political activity inappropriate to his judicial office”.

Section A of Rule 6, which is in reference to the political conduct of judges, in general, says: “1. Notwithstanding Article 55(2) of the 1992 Constitution of Ghana, a judge or a candidate for appointment to judicial office should not: (a) Act as a leader or hold an office in a political organisation; (b) Publicly endorse or publicly oppose another candidate for political office; (c) Make speeches on behalf of a political organisation; (d) Attend political gatherings; or (e) Solicit funds for a political organisation or candidate, or purchase tickets for political party dinners or other functions”.

Section C of Rule 6 of the Code of Conduct for Judges and Magistrates, which deals with ‘Permissible Political Activity for Incumbent Judges’, state that: “A judge shall not engage in any political activity except (1) on behalf of measures to improve the law, the legal system, or the administration of justice; or (2) as expressly authorised by law”.

Also, Ghana’s 1992 Constitution bars chiefs from taking part in partisan politics.

As far as the chiefs are concerned, Section (1) of Article 276 states: “A chief shall not take part in active party politics, and any chief wishing to do so and seeking election to Parliament shall abdicate his stool or skin.”

Section (2) of the same article, however, says: “Notwithstanding clause (1) of this article and paragraph (c) of clause (3) of Article 94 of this Constitution, a chief may be appointed to any public office for which he is otherwise qualified.”

It’s unwarranted sycophancy: Drop Honyenuga’s SC nomination – Kwaku Baako to Akufo-Addo

Despite the public outrage, President Akufo-Addo, in March 2020, nominated Justice Honyenuga to the Supreme Court.

This prompted the Editor-in-Chief of the New Crusading Guide, Abdul-Malik Kwaku Baako, to demand the withdrawal of the nomination, describing the Court of Appeal Justice’s endorsement of the President as “completely needless”, “wrong”, and amounting to “unwarranted sycophancy”.

Speaking on Metro TV’s Good Morning Ghana programme on Thursday, 5 March 2020, Mr Baako the chief/judge’s utterances went against both the codes of conduct for chiefs and judges.

“Honestly, I had a serious issue with the way the judge/chief went about it. It’s stated there: what he did is against the code of conduct for judges and magistrates. Totally against it. And even also, the constitutional injunction relative to chiefs and what they do in politics. He was completely wrong. It was needless, indiscrete, and I’m being charitable – choosing my words carefully.

“As a chief, what you do: Look, you can praise an administration or a president or a minister or any district chief executive for development projects that have been brought to your community for the benefit of your people. And Justice Brobbey, a former Supreme Court Justice has written a book on chieftaincy and the law and all that. Brilliant exposition. He’s taken his time to show all the fine lines of distinction are, so, there is absolutely nothing wrong with a chief at a durbar or any event praising an administration for delivering goods and services to his community and asking for more.

“But the very moment you go beyond that framework and endorse a candidate or a sitting president or a former president or a parliamentary candidate, you’re wrong; completely wrong. And some chiefs did this thing during the 2016 campaign, I took them on and I was attacked left right centre. They did it – both for Candidate Akufo-Addo then and President Mahama at that period. They were wrong”, Mr Baako insisted.

According to him, “In spite of the word ‘may’” used by the chief/judge in reference to canvassing support for the President’s second term bid, “I still think it’s wrong”.

“It was needless, completely needless. It amounts to sycophancy, unwarranted sycophancy. Unsolicited endorsement. I cannot stand it. I have to be honest with you. So, let’s be clear in our minds that on both levels, the hybrid, the chief/judge erred completely and, indeed, when I sent the text to you, I indicated that I anticipate he might have some challenges at the Appointments Committee; not that it could lead to his disqualification, no; but I would be surprised if members of the Appointments Committee do not drill him on this faux pas. … Obviously, he provided ammunition for members of the Appointments Committee who are so minded to ask him: Look, as a judge, are you aware of the code of conduct for magistrates and judges; and your utterances on so and so occasion, how do you reconcile it with the principles and provisions of the code of conduct? He must be asked to answer that”, Mr Baako stressed.

“If I were to advise the President, if I had the opportunity, I would say: ‘Sir, drop him’. I would have said that”, Mr Baako asserted, adding: “He hasn’t done justice to his own integrity as a judge and as a chief”.

I’m Sorry – Honyenuga Apologises

During his vetting by the Appointments Committee of Parliament, Justice Honyenuga apologise for his endorsement of the President when he was confronted by the members of the committee with the issue.

Appearing before Parliament’s Appointments Committee on Monday, 11 May 2020, Justice Honyenuga said: “In reading that statement, we didn’t intend endorsing the president. Our understanding was that we were wishing him well…If out of political dissatisfaction some people are unhappy with whatever I am supposed to have said then I am sorry”.

Controversial In-Court Comments

Apart from his out-of-court political comments that got him into trouble, Justice Honyenuga, who sailed through his vetting to become a Justice of the Supreme Court, also courted a lot of public criticism with certain in-court statements he made at different times in the Opuni-Agongo trial.

Opuni Might’ve Been Hallucinating – Honyenuga Claps Back At ‘Bias’, ‘Hostile’, ‘Prejudice’ Flak

While responding to and dismissing one of Dr Opuni’s many applications for his (Justice Honynuga) recusal from the case over “bias” and “hostile” in-court comments, the Supreme Court Justice wondered if Dr Opuni “might have been hallucinating” in court during his rulings, thus, such applications.

Justice Honyenuga stated: “I vehemently deny all that the applicant sought to portray in his affidavit in support because they never truthfully reflect events in the court room.”

He also denied discriminating against the accused persons in breach of article 19(2)(g) of the 1992 Constitution.

“I have not discriminated in the hearing of this case because all the facilities necessary for the applicant to conduct his case were provided. PW1 to PW7 gave evidence and each was cross-examined by counsel for the applicant, sometimes in weeks and in other cases months, without let or hindrance. DWI had already testified for three sitting days and still counting,” he stated.

Threat To Expunge Evidence Favourable To Accused Persons

In May 2022, Justice Honyenuga warned that the court he is presiding over, has the power to expunge the evidence of Dr Stephen Opuni’s second defence witness, Mr Samuel Torbi, who gave a favourable testimony to the effectiveness of Lithovit Liquid Fertiliser in court.

When the case was called on Monday, 23 May 2022 for the prosecution to cross-examine Mr Torbi, Mr Sam Codjoe, the counsel for Dr Opuni, told the court that the doctors at the Greater Accra Regional Hospital had given the witness a week’s excuse duty to recuperate even though he has been discharged from the facility.

Justice Honuenuga said instead of waiting for the second witness, Dr Opuni should call his next witness on the next adjourned date, which was Wednesday, 25 May 2022.

“It is my candid opinion that to enable this court to effectively deal with this case and to avoid further delay, I will order that the first accused produces his next witness at the next adjourned date”, the judge said.

“The DW2 can be allowed to recover and at any time that he recovers, he could be recalled for further cross-examination”, he said, adding: “But there is proviso that this court has power to expunge the evidence of DW2 at the appropriate time.”

He Had Made Up His Mind – Opuni’s Counsel Makes Case Against Honyenuga Reinstatement On Case After Prohibition

One of the landmark moments during the case was the removal of Justice Opuni from the case and his subsequent reinstatement by the same Supreme Court.

While arguing against the Attorney General’s review application against the Supreme Court Justice’s removal, Dr Opuni’s counsel, Mr Sam Cudjoe, told the apex court: “He [Justice Honyenuga] had made his mind and was going through the rituals while waiting to pronounce sentence”.

In a 3-2 decision in July 2021, the Supreme Court restrained Justice Clemence Honyenuga from hearing the case following an application to that effect by Dr Opuni’s lawyers, whose client accused the judge of bias, hostility and prejudice.

Dr Opuni alleged that his right to be heard fairly had been breached by the Judge, aside from a demonstration of bias.

The allegations flowed from Justice Honyenuga’s ruling on a submission of no case application. Dr Opuni’s lawyers contended that the judge committed an error of law when he rejected some documents submitted as evidence.

The documents were witness statements said to have been obtained by the state during investigations. One is a statement by the Head of the Cocoa Research Institute, denying that he had been coerced to do his work.

A procurement officer is also said to have given a statement that Dr Opuni said exonerates him from any breaches of the procurement law.

Another statement is said to have indicated that the fertiliser at the centre of the controversy effectively increased the yield of cocoa farms.

Dr Opuni’s lawyers said these statements were withheld by state prosecutors and only made available when they applied for them. These statements were, however, rejected by Justice Honyenuga with the following justification:

“However, counsel tendered exhibits 71,72, and 73 being statements of Genevieve Baah Mante (Mrs), Fiona Gyamfi and Paula Adjei Gyang, which confirm that there was another test conducted on the Lithovit supplied to GSA for further testing. It is trite that a witness should not talk about something of which he had no person al knowledge but rely upon his own observations and recall of the matters in dispute, and this is the rule against hearsay provided under section 117 of NRCD 323. See Ekow Russel [2017-2020] SCGLR 469 Holding (4)”.

“It is also trite that a court could admit documents into evidence and reject same during Judgment. In view of the decision in Ekow Russel v The Republic, a Supreme Court decision, this court was wrong in admitting Exhibits 71,72 and 75 since they offend against the hearsay rule in section 117 of NRCD 323. In the circumstances, this court rejects exhibits 71, 72 and 75 as hearsay since the authors were not under section 117 of NRCD 323 available to answer questions and in the denial of PW7 about another scientific test, these exhibits are hereby rejected as marked as ‘rejected’”.

Further at page 88 of his ruling, he said this: “Moreover, by the decision of the Supreme Court in Ekow Russel v the Republic (supra) I would reject exhibits 58,59.60,61,62,63,64,65,66,67,68,69,70,71,72,73,74 and 75 as they offend the hearsay rule in Section 117 of NRCD 323 as a court has power to reject evidence during judgment stage. The exhibits were all tendered through witnesses who were not authors and could not answer questions based on them. Meanwhile, the witnesses are available”.

The lawyers contended that this position taken by the judge was contrary to law. However, the Supreme Court, in its judgment, took the view that these statements were admissible.

The court said these statements were crucial to Dr Opuni, and he should, therefore, have been given a hearing before the judge decided to expunge it.

On the allegation of bias against the judge, the lawyers explained that Justice Honyenuga made some prejudicial comments in his submission of no case ruling.

“All these were perpetuated to facilitate the 2nd and 3rd accused’s business and defraud COCOBOD. Indeed, these acts were all perpetuated to facilitate and intentionally, voluntarily to aid the 2nd and 3rd accused to perpetuate fraud on COCOBOD by supplying a different product from what was tested and approved.”

Page 54, again: “…However, the 1st accused, although he knew the correct state of affairs and knowingly facilitated and aided the 2nd and 3rd accused to defraud COCOBOD.”

The case was heard by Justices Jones Dotse, A.M Dordzie, Amadu Tanko, and Lovelace Johnson and Gabriel Pwamang.

Justice Gabriel Pwamang, who wrote the lead judgment, concluded as follows: “The test is an objective one based on the principle that not only must justice be done, but it must be seen to be done. As the authorities say, bias is so insidious that the judge himself may not even be aware that he has a bias in the matter under consideration”.

“It is for the reasons explained above that I hereby grant the prayer for prohibition in order that justice will be seen to be done in this case. Therefore, in conclusion, the application succeeds on both counts and is accordingly granted as prayed.”

He was backed by his colleagues, Justices A.M Dordzie and Tanko Amadu. Justices Jones Dotse and Lovelace Johnson disagreed.

The review application, however, overturned the apex court’s own earlier prohibition.

It was heard by an enhanced panel with Justices Gertrude Torkonoo and Prof Ashie Kotey, as additional Justices to the original panel.

What Happens Next

Justice Honyenuga, as announced by himself in court before adjournment for the long vacation, is expected to continue hearing the Opuni-Agongo case within the “limited time” given him by the Chief Justice to “conclude” the four-year-old case.

Source: Daily Mail GH