Mr Justice Hayfron Benjamin, a former Supreme Court Justice, is noted to have remarked that when judges sit on any case and come out with different decisions, that underlines the independence of the judiciary.
Lord Denning, an eminent British jurists, has also noted that because judges cannot come out into the open to explain and defend their rulings, as to why and how they come to decisions, they must be just in their judgements, so that their rulings will be their own vindication to maintain public trust and faith in the administration of justice and all judicial processes.
These references are intended to lead us to the current politically charged deliberations about the warrants issued by the Chief Justice to certain judges to continue serious criminal cases during the legal vacation period, which some have described as an aberration to the practice from colonial times to the present, where legal vacation periods are used solely for resolving emergency or interlocutory matters.
One group, mainly officials, activists and supporters of the National Democratic Congress(NDC) have fallen for Shakespeare, believing and maintaining that the gods are just and deal with people in consonance with their own crimes to maintain the rule of law and due process.
The other group, on the other side of Shakespeare of the view that the gods are not fair and capriciously abuse human dignity, are accusing and claiming that the Chief Justice is abusing a discretion and undermining the rule of law.
They are mostly officials, activists and members of the New Patriotic Party (NPP).
The question is whether the issue is about politics or justice.What is important, however, is that both agree that the Chief Justice has the power to issue such warrants, that the courts determine how trials must proceed and that Article 19 (2) (f) provides that persons who are tried for criminal offences have the right to defend themselves or choose counsel to represent them in court.
What has not been firmed is whether the practice claimed to have prevailed before independence and throughout our 70 years of independence allows for all manner of cases to be tried or limited to emergencies and interlocutories.
Supporters of the NDC, justifying the action of the gods,argue that no mistep or mishap has occurred because of the sitting of the courts in the vacation period, and that the NPP members are shouting wolf wolf without any foundation.
They maintain that what the Chief Justice has done is in the interest of efficient judicial administration, and that he has not directed any judge on the nature of serious criminal matters that must be handled in the courts.
In short, they see no wrong in what is happening as against the existing practice.
On their part, the NPP supporters buoy their position on the argument that until the current incident, the courts did not handle normal or routine criminal matters in the vacation period beyond emergencies and interlocutories, except in rare situations where the courts and counsel agree on such proceedings, although the courts have the final authority as to the process.
They thus accuse the Chief Justice of political motivation in selective justice.
They further argue that the Chief Justice knows the cases before each of the judges he has assigned to sit during the legal vacation, and that without that a judge would not have stated that it was only the Chief Justice who could stop him from proceeding with the cases.
Arguments
The arguments should, therefore, not be focused on the law but what is required of public officials who have been granted authority to exercise discretion under the law to do so with fairness under Article 296 to the effect that “Where in this Constitution or in any other law discretionary power is vested in any person or authority (a) that discretionary power shall be deemed to simply imply a duty to be fair and candid (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law”.
This piece is not intended as a legal brief before a court of competent jurisdiction, more so as a suit is pending before the Supreme Court for a determination.
The intention or intendment is to raise issues that beg for answers to enable the average Ghanaian to have an understanding of what is happening, the implications on the administration of justice as a judicial precedent and to enable us to appreciate the way forward outside fanatical and infantile political partisanship.
We need to move forward as a people and nation, but that must be underlined by integrity, honesty, justice and equality.
As Dr Martin Luther King has noted, “an injustice anywhere is a threat to justice everywhere”.
What needs to be explained to Ghanaians is whether under the rules of court and practices, in a matter where counsel has commenced cross-examination of a witness, the accused can do away with the services of counsel and bring in a new counsel without prior information to the court.
Conversely, can counsel unilaterally abandon the client and court without prior information of the court?
Put another way, if the accused engages a new counsel, can the trial proceed seamlessly or start afresh? Concomitantly, what is the objective of the legal vacation in the judicial process?
Alternatively, can a court, on its own, terminate a contract between a client and counsel because there is legal provision for the accused to defend themselves?
What does it mean in the pursuit of true and meaningful justice, for a judge, who has full knowledge about the absence of counsel, to tell an accused, that at the next sitting on the case, if counsel is absent the accused would be directed to defend himself by cross-examining the witnesses otherwise witnesses will be discharged? Cross-examination is an art that requires expertise.
Meaningful
That is why we do not need the babble and ignorant, puerile and sterile political demagoguery but meaningful submissions that at the end of the day will help us move together and grow those elements of democratic constitutionalism that empower our people to meaningfully hold governments accountable, not necessarily because we belong or oppose those in government.
That is how all the respected democracies have triumphed, not by sycophantic support nor condemnation of every action of state institutions merely because our party is in government or in the minority.
These are some of the matters that Nana Susubribi Krobea Asante, Omanhene of Asante Asokore, warned us against when he presented the 72nd Annual GBC Lectures in 2007, stating “the intellectual content of the discussions, the poor professional and technical performance of the presenters and producers of these programmes, the total lack of virility in discourse, the pervasive attempt of a panellist or presenter to out-shout the other actors, the level of abusive or profane language used are all a travesty of the solemn democratic values implicit in freedom and independence of the media.
In short, they debase democracy and constitutionalism”.
Nana states further thus, “some radio and television discussions have not been particularly illuminating. Little effort is made to involve recognized experts in discussing subjects which require considerable expertise. Some panellists pontificate with little restraint or qualification in areas where even experts would tread warily”.
For now, it is imperative that the Supreme Court makes a functional determination of the matter so that it becomes settled, not in the manner of what happened with the LGBTQI+ which nearly tore the nation into seams and threatened national unity, only to be abandoned by those who pushed for it at all cost.
