Supreme Court justices – Guardians of 1992 constitution, defenders of rule of law

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“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws” – Plato (Greek Philosopher)

The preamble to the 1992 Constitution of the Republic of Ghana (hereafter variously referred to as the “1992 Constitution” or the “Constitution”) invokes the divine eternal universal jurisdiction of the Omnipresent, Omnipotent, Alpha and Omega, Eternal God Almighty (“Onyamekopon” in Akan Twi) to declare that:

WE THE SOVEREIGN PEOPLE OF GHANA;

IN EXERCISE of our natural inalienable right to establish an overarching framework of Government (and “Good” Governance), to secure for ourselves and for posterity the blessings of Liberty, Equality of Opportunity and Prosperity;

IN A SPIRIT of friendship and peace with all peoples of the world,

AND IN SOLEMN declaration and affirmation of our commitment to Freedom, Justice, Probity and Accountability; solemnly subscribe to the following Doctrines and Principles:

The Doctrine that “All powers of Government springs forth and emanates from the Sovereign Will of the People (i.e. Citizens of Ghana);

The Principle of “Universal Adult Suffrage” adopted from Article 21(3) of the United Nations Universal Declaration of Human Rights (10th December 1948, UN General Assembly Resolution 217A) which affirmed citizens right to vote in free, fair, transparent public elections;

The Principle of the “Rule of Law” that requires all persons to be law abiding citizens of Ghana who must at all times engage in lawful conduct, and who must respect and uphold, all laws, statutes, and judicial precedents; judicial verdicts and judicial rulings of competent Courts operating in the jurisprudence of Ghana, and also Common law judicial precedents to which Ghana subscribes to.

The Supremacy of the 1992 Constitution as the Supreme Law of Ghana, and the Sovereignty of Ghana is defined and given meaning in Article 1(1) and Article 1(2) of the Constitution which unequivocally stipulates that: “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of Government are exercised in the manner and within the limits laid down in the Constitution”.

The functions and the role of the Supreme Court of Ghana (SC) as de facto Guardian, Custodian and Gamekeepers of the 1992 Constitution, and also the SC’s duties and statutory responsibility as the “Defender and Enforcer” of the Constitution is affirmed by Articles 2(1)(a), 2(1)(b), 2(2), 2(3), 2(4) and 2(5) of the Constitution.

The Judicial Power and Judicial Authority of Ghana is defined and declared to emanate (originate and flow) from the “Sovereign” people (i.e. Citizens of Ghana) on whose behalf the Judiciary exercises it Judicial powers of adjudication and to impartially dispense Justice and enforce “the rule of Law.” This assertion is captured in Articles 125(1). 125(2), 125(3), 125(4) and 125(5) of the Constitution.

Protection of Fundamental Human Rights, Freedoms and Liberties of Ghanaians (i.e. citizens) is captured in Article 12(1) and 12(2) of the Constitution. The “right to vote” in public elections and referenda is a fundamental human right accorded to “every citizen of Ghana of eighteen years of age or above and of sound mind” (Article 42 of the Constitution).

The Constitution unequivocally defines “Citizenship of Ghana” and answers the Question: “Who is a Ghanaian citizen” in Article 6(1), 6(2), 6(3) and 6(4)

Can we expect the Supreme Court to remain impartial and rigorously uphold the tenets of the “Rule of Law” in the light of unprecedented nominations and appointments to the Supreme Court by President Nana Akufo Addo and NPP Presidents during the Fourth Republic?

To date out of a total number of 23 Justices appointed to the Supreme Court of Ghana during the tenure of the Fourth Republic, 17 of the Justices appointed representing 74% of the total Fourth Republic SC appointments were made by a sitting NPP President. The incumbent President Nana Addo alone has appointed 11 Justices to the SC representing 48% of total appointments to the SC in the Fourth Republic.

Question? On legal matters of political nature do we expect and can we trust our “Gamekeepers” and “Defenders of the Rule of Law” to be neutral and impartial, and strictly interpret and adhere to the provisions of the Constitution without succumbing to any undue external influences and pressures, especially from the Executive Branch of Government and Parliament?

Besides the “National Pledge” which is essentially the “Citizens Oath of allegiance to Ghana,” all Justices of the Superior Courts of Ghana including Justices of the Supreme Court, the Court of Appeal and High Court upon assumption of office, are required to swear and take the “Judicial Oath” that is administered before God, the President and invited dignitaries to the searing ceremony.”

The Judicial Oath expressly requires Judges to “uphold the Sovereignty and Integrity of the Republic of Ghana, and to truly and faithfully perform their duties and functions of dispensing justice (emphasis mine) without fear or favor, affection or ill-will to all manner of persons (i.e. citizens); and are required at all times to uphold, preserve and defend the 1992 Constitution.

“Judges who breach, violate and break the Constitution and Law; are not fair to society and even to themselves. They just put the mask on their faces as the Judge. However history and posterity is their judge and that does not ignore reality” – Ehsan Sehgal (Dutch-Pakistani Poet, Author and Journalist).

Joyce Bamford Addo JSC put it more succinctly in the case of NPP V IGP [1993-94] GLR 459 at 482 when she opined that “fundamental human rights are inalienable and can neither be derogated from nor taken away by anyone or authority whatsoever. This court (SC) is therefore not permitted to give an interpretation which seeks to tamper in any way with the fundamental human rights but is obliged (emphasis mine) to see that they are respected and enforced.”

Smith J opined in Balogun v Edusei (1957) that “The Courts of Justice exist to fulfill, not to destroy, the law, and it would not make sense for me to record an order which is incapable of being carried out.”

The following excerpts from the Abu Ramadan and Evans Nimako vs Electoral Commission case J1/14/2016 (dated 5th May 2016) highlights the position of the Supreme Court (SC) on the Electoral Commission (EG)”

1. In answer to the question on the independence of the Electoral Commission, Nasiru Sulemana Gbadegbe JSC (Justice of the Supreme Court) affirmed the SC’s position that “the independent status of the Electoral Commission does not make the EC immune or insulated the EC from Court action (emphasis mine) for the purpose of declaring that it (EC) has exceeded its authority or acted in a manner that having regard to its UNREASONABLENESS, IRRATIONALITY or UNFAIRNESs cannot be accorded the sanction of legality by the SC (emphasis mine) in view of articles 23 and 296 of the constitution.”
2. Georgina Theodora Wood (Mrs.) Chief Justice succinctly expressed that: “If the right to vote is important in participatory democracy, the right to register to vote (emphasis mine) is even more fundamental and critical. It is the golden key that opens the door to exercising the right to vote.”
3. Gbadegbe JSC concluded that the 1992 Constitution grants the SC power and authority to intervene in acts by the Electoral Commission to ensure that the Electoral Commission itself operates within the boundaries of the law to give effect to provisions of the 1992 Constitution. The SC ruling that upon a true and proper interpretation of article 45 (a) of the Constitution, “the mandate of the Electoral Commission to compile the register of voters (electoral register) implies a duty to compile a reasonably accurate and credible register.”

I end my layperson’s submission with the following quotes:

“Truth never damages a cause that is just” – Mahatma Gandhi (Indian Lawyer and Nationalist)

“Historically the Judiciary has often been the sole protector of the rights of minority groups against the will of the popular majority” – Diane Watson (former US Representative of Congress)

“The only victories which leave no regret are those which are gained over ignorance.” ― Napoléon Bonaparte (French Statesman and Military Leader)

By Archimedes Owusu-Ababio, Citizen of Ghana

In politics and in life ignorance is not a virtue – Barrack Hussein Obama (Former President of USA)