By Lawyer Osman N. Alhassan
I think the reluctance of citizens and, now, a major political party of the country to seek redress in the Supreme Court must be understood in context. It is simply as a result of lack of, or too little confidence in the Supreme court.
Although the abundance of cases in which the Supreme Court consistently ruled against citizens of Ghana in favor of this government already lends credence to such a view, my personal experience in the above case as counsel makes me a more ardent subscriber to that view. The facts of the case and my personal experience in it are as follows:
As you may be aware, article 284 of our constitution prohibits public officers like the Finance Minister from placing themselves in a situation where their personal interests conflict or is likely to conflict with the interest of the state.
Most of you will remember that when Ken Ofori-Atta (the finance Minister) issued about 95% of the government of Ghana sovereign bonds to the American firm by name Templeton Investment Ltd, issues regarding conflict of interest arose and a complaint in that regard was made to the Commission on Human Rights and Administrative justice (CHRAJ).
CHRAJ after investigating the matter found that one of the directors of Templeton investment Ltd. by name Trevor Trafgarne had personal and business relations with the Finance Minister.
CHRAJ also found as a fact that, although the bonds transaction with Templeton investment Ltd was concluded on 31st March 2017, and were therefore part of 1st quarter transactions of the year, they were not published in the 1st quarter bond issuance calendar of Bank of Ghana. This meant that the bonds issued to Templeton investment Ltd (the company of the finance minister’s friend) were not offered to the general investor-public in the bond market before that issue. This undoubtedly had the effect of depriving the country of the advantage of competitive bidding or tender.
In an investigation of conflict of interest, it was a matter of course that CHRAJ should investigate the interests of the finance Minister to ascertain if those interests conflicted or were likely to conflict with that of the state within the context of the bond transaction.
As we may be aware, the Registrar-general keeps records of companies and corporate interests, whilst the Auditor-General by article 286 is to receive the asset declarations of public officers before, during and after the occupation of public office. It therefore became necessary for CHRAJ to call for records from the Registrar-General and the Auditor-General in its investigation of the complaint.
From the records, CHRAJ discovered that the Finance Minister had some shares in Databank financial services and Databank brokerage Ltd (private companies) which he did not declare to the Auditor-General before assuming his office as the finance Minister.
CHRAJ also found that whilst in the public office, the finance Minister was not only a shareholder in ventures and acquisition Ltd (another private company), but also a director in that company. This simply means that the Finance Minister was also occupying a private office of emolument contrary to article 78(3) of the constitution.
Article 78(3) of the constitution clearly prohibits any minister of state from occupying any private office of emolument without the permission of the Speaker of Parliament on grounds stated in that article.
my investigation in Parliament revealed that the Finance Minister did not have the permission of the Speaker of Parliament on any of the stated grounds under article 78(3) to be a director of a private company whilst being the Minister responsible for finance.
All the foregoing findings of CHRAJ notwithstanding, CHRAJ strangely came to the conclusion that the Finance Minister did not place himself in a conflict of interests situation because it could not find evidence that he benefited from the bond transaction. Now if one reads article 284 well, one would readily notice that the situation proscribed by the article is two pronged-actual conflict of interests and the likelihood of it.
Putting oneself in a likelihood of conflict of interest breaches article 284 the same way actual conflict of interest would. Again, one may put himself in a conflict of interest situation without necessarily getting the benefit of the conflict. All the same, article 284 would have been breached or contravened. CHRAJ’s conclusion therefore interpreted article 284 of the constitution in breach of article 130(1)(a), 130 (2) and gave article 284 a truncated meaning. That interpretation is also inconsistent with articles 287 and 229 of the constitution.
Now, why did we allege that CHRAJ breached article 130(1)(a) and 130(2) of the constitution? Article 130(1)(a) reserves matters of Constitutional interpretation exclusively for the Supreme Court. In other words, only the Supreme Court can interpret the constitution in Ghana. Article 130(2) enjoins other courts in which the need for constitutional interpretation arises, to stay their proceedings and refer the issue to the Supreme Court for interpretation.
Although CHRAJ is not a court, article 229 has brought it under the ambit of article 130(2). Article 229 permits CHRAJ to seek any remedy available in any court for the purpose of its functions. Accordingly, CHRAJ can stay its proceedings when it confronts an issue of Constitutional interpretation, and refer same to the Supreme Court for interpretation. In the above case, we are of the view that CHRAJ was duty bound to refer the interpretation of article 284 of the constitution to the Supreme Court and apply the interpretation of the Supreme Court in dealing with the complaint. Failure to do so clearly contravened article 130(2) also.
It is important to clarify that article 287 which gives CHRAJ power to deal with complaints under chapter 24 (Including article 284) of the constitution is only investigative. CHRAJ is mandated only to investigate complaints of breaches of chapter 24. That does not, by any stretch of the immagination, include a concurrent jurisdiction with the Supreme Court to interpret provisions of that chapter. It also does not grant CHRAJ exclusive jurisdiction or right to enforce chapter 24 of the constitution. The right of citizens to enforce the constitution in the Supreme Court under article 2 remains intact and that can be done using evidence found by CHRAJ in its investigation. The only exception the constitution provides in that regard is chapter 5 of the constitution whose enforcement is reserved for the High Court.
With the foregoing facts and alleged constitutional infractions therefore, I represented Dynamic Youth Movement in the Supreme Court to enforce the constitution by seeking declarations under article 2(1)(a) of the constitution. Article 2 of the constitution empowers every citizen who alleges breaches of the constitution against any person to seek declarations to that effect. The Supreme Court is also empowered to make orders after the declaration that will ensure that the declarations are put to effect.
The declarations we sought were as follows:
- That CHRAJ’s interpretation of article 284, actually limiting conflict of interests only to a situation where the culprit benefits, contravened article 130(1)(a) which exclusively preserves interpretation of the constitution for the Supreme Court,
- That by issuing the bonds to a company in which his personal and business relation is a director, the Finance Minister placed himself in a situation where his business and relational interest with the director of Templeton Ltd conflicted or was likely to conflict with the interest of the state and therefore contravened article 284 of the constitution;
- That by failing to declare his share holdings in Data Bank financial service Ltd and Data Bank brokerage Ltd before assuming office, the Finance Minister contravened Article 286(1)(a) of the constitution;
- That by holding a private office of emolument without the Speaker’s permission on any of the grounds stated under article 78(3), the Finance Minister contravened Article 78(3) of the constitution;
In seeking these declarations, we simply presented the facts established by CHRAJ as evidence, which were not contradicted by the Finance Minister before the Supreme Court.
On 5th May, 2020, the Supreme Court presided over by the Chief Justice declined jurisdiction to entertain the application on the following grounds:
a) That article 284 had already been interpreted by the Court in Okudjeto Ablakwa v. Obetsebi Lamptey and that it was that interpretation CHRAJ applied. However, as a matter of fact, the Supreme Court never interpreted article 284 of the constitution in that case.
b) That we alleged abuse of power and that there is a forum for alleging abuse of power and not in the Supreme Court. In actual fact, we never alledged abuse of power against any person in any part of our application.
c) That the constitutional provisions we referred to were clear and unambiguous and therefore needed no interpretation. In actual fact, we never ask for interpretation of any provision in our reliefs. We simply asked for enforcement of such provisions and the Supreme Court has in several cases confirmed the common sense that ambiguity is not required for constitutional enforcement as it is required for constitutional interpretation.
From the above reasons given by the supreme court, it is clear that the ordinary bench of the Supreme Court which first heard the case, made palpable errors of Law and fact, misunderstood the plaintiffs’ reliefs, or perhaps set its own questions and answered them. These errors did not only occasion grave miscarriage of justice to the people of Ghana and constitute a serious disincentive for constitutional enforcement by citizens, but also worsen the already low confidence that is now left in the minds of citizens for the judiciary.
Well, article 133 permits the Supreme Court to review its own decision when it thinks right to do so. Rule 54(a) stipulates that it is right for the Supreme Court to review its own decision when exceptional circumstances results in the miscarriage of justice.
In countless decisions of the Supreme Court some of which were sufficiently enumerated in Tamakloe v. The Republic, the Supreme Court itself held that errors of law, facts, and inadequate considerations of a case which yield a judgment that would have been different had the case been adequately considered, or had the errors not been committed, that would amount to exceptional circumstances that results in miscarriage of justice.
Aggrieved by the error laden judgment of the ordinary bench, and with the belief that the errors resulted from inadequate consideration of the plaintiffs’ case, we filed for a review of the judgment on 3rd June, 2020.
On the 21st day of December, 2020, the application for review came up for hearing before a nine-member panel presided over by the Chief Justice once again. For those who may not be familiar with review processes of the Supreme Court, the original panel is usually retained, whilst new other justices of the Supreme Court are added to constitute the review panel. In our case, two new justices were added to the seven-member panel which heard the case at first instance.
After a few exchanges about my practicing license number, the Chief Justice asked me to proceed to move the motion for review. Surprisingly, the CJ was more concerned about the bulk of the application than the grounds. Obviously, the report of CHRAJ and other relevant processes of the Court to which we made references for the benefit of the 2 additional members, were attached. That appeared to upset the Chief Justice to my utter surprise.
Whilst on my feet addressing the Court on only one of the 4 main grounds for the review, the Chief Justice instantaneously and unilaterally, started issuing a decision to dismiss the application. He actually dismissed the application without even retiring to chambers with the other justice to offer them an opportunity to proffer their respective independent opinions on the review.
It is important to note that per section 2 subsection 3 of the Courts Act, the determination of any issue before the Supreme Court as duly constituted is by majority of the panel that hears it. The normal thing that ought to have happened therefore, was for the Chief Justice to have fixed a different date for the ruling. This would have allowed the other justices to participate in the decision and give dissenting views if any.
In the absence of adjournment to a different date for a ruling, at least, principles of justice dictate that the CJ retires with the other justices to chambers to vote on the decision. That never happened. Worse scenario, we should have seen him conferring with the other justices of the court before arriving at the conclusion to dismiss the review application. Even that did not happen.
It is my opinion that, the CJ under the circumstances treated us unfairly, and abused his power as the chief Justice by instantaneously dismissing the application without conferring with the other justices. I don’t believe a decision (unanimous or otherwise) was arrived at based on the Affidavit and statement of case before the open court hearing. If it were so, the decision of the court to hear me on my feet would be meaningless.
In any event, I think it would be prejudicial for the Supreme Court to rule on the application in chambers before coming out to hear me in open court. If the Supreme Court elected to hear a lawyer on his feet, I think it behoves it to hear him fully. Any thing short of that amounts to a breach of the audi alterem partem rule of natural justice.
It is my humble opinion that, such an attitude from the Chief Justice, coupled with the predictable trend that judgments from the Court in cases involving the current government or its officials are taking, keeps eroding the little confidence that is left in Ghanaians for the judiciary. The chief Justice and other members of the judiciary must remember that one of the necessary outcomes of that attitude is for the citizens to take the law into their own hands and that may not be safe even for the judiciary.
I hope we still cherish fearless honesty. We hope for a better tomorrow.
29th December, 2020.