The Supreme Court by a 3-2 majority decided to remove Supreme Court Justice Clemence Jackson Honyenuga as the trial judge in the alleged corruption case involving Dr Stephen Opuni, former Chief Executive of Ghana COCOBOD and Mr Seidu Agongo, a businessman for what is in no doubt, bias against the defendants. (see, “Supreme Court removes Justice Honyenuga from hearing Opuni, Agongo case”, Ghanweb, August 29, 2021). Media reports on this case indicate that this was not the first time the defendants have gone to the Supreme Court to seek his removal after the previous attempts failed.
In this article, I will analyse the work of JSC Honyenuga on the trial and why in my view, he may not be fit to be a judge for reasons of his inability to administer justice impartially.
It’s not good for a judge to be in the news for the wrong reasons. One judge that has been in the news for the wrong reasons is JSC Honyenuga. He first came to public attention as the trial judge in the alleged corruption case involving Dr Opuni and Mr Seidu Agongo as Justice of the Appeal Court. As I am interested in anti-corruption matters, I followed media reports on the case and some of his decisions raised some eyebrows.
The second time was in the second week of February 2020. He was reported to have praised president Nana Akufo-Addo for his excellent work and called on Ghanaians to give him a second term. He was speaking in his capacity as Torgbui Ashui Nyagasi V, the paramount chief of Nyagbo traditional area in the Oti region and did so on behalf his people. According to reports, he said among others, “… we wish to congratulate you for your excellent manner you are governing this dear nation 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.” (see, “President Akuffo-Addo deserves another term – Paramount Chief of Nyagbo”, Graphiconline, February 19, 2020).
Yes, at that time he was speaking as a chief and on behalf of his people. In fact, we were told he read a speech written for him. However, as a senior judge who was the trial judge in a case viewed by some, particularly the opposition NDC as political, did his judicial oath not remind him that it would be inappropriate and simply wrong to read a speech which was nothing but singing praises to the president in an election year? Did he not understand the saying that justice must not only be done but must also be seen to be done? That was a monumental error of judgement on his part as it impaired his ability to administer justice in cases involving the executive.
What was disappointing was that, shortly after his hallelujah chorus, the president nominated him as JSC in the first week of March 2020. There was public discourse as to whether he was being rewarded for praising the president. I personally questioned the judgement of the president in nominating him shortly after he sang his praises. Veteran journalist, Kweku Baako Jr speaking on the nomination on Metro Tv on March 8, 2020, had this to say. “Appeal Court judge, Justice Clemence Jackson Honyenuga, injured his own integrity when he publicly endorsed president Akufo-Addo for another term in office. What the judge did is nothing short of “unwarranted sycophancy. If I were to advise the president; if I had the opportunity I will say, Sir drop him”. I agreed with every word of Kweku Baako.
As the trial went on, further media reports indicated that JSC Honyenuga was being bias against the defendants. For example, matters that should not have been admitted in court were admitted. Applications by the defendants for copies of documentary evidence being used by the prosecution were rejected by him and they had to go to the Court of Appeal causing unnecessary delays, despite the fact that, access to evidence in advance by defendants is cardinal principle of fair trial in a democratic society. Some of the prosecution witnesses were contradicting themselves and in some cases, committing perjury but the judge appeared not minded by such behaviour in his court. It was clear from the reports that the judge had compromised his impartiality and was wanting only a predetermined outcome, guilty as charge.
Surprisingly, despite his ineffectiveness and poor performance in court on this trial and his breach of judicial oath by calling for a second term for the president, he was confirmed by parliament as a JSC after offering an apology. His confirmation against public expectation showed the ineffectiveness of Ghana’s parliamentary confirmation process as well as the partisan nature of business in the house.
The most bizarre decision of JSC Honyenuga was when he gave conflicting judgement by accepting documentary evidence tendered in court earlier by the prosecution but rejected the same documentary evidence when the defendants sought to rely on them as proof of their innocence. How on earth the same evidence be accepted as proof of guilty but cannot be relied on as proof of innocence is anyone‘s guess? JSC Honyenuga defended his decision which was nothing but irrational. He later admitted that, he made a mistake when the court admitted into evidence several documents that exonerated the former COCOBOD boss and the businessman (see, “I've the right to reject evidence exonerating Opuni and Agongo — Justice Honyenuga”, Modernghana.com, May 19, 2021 and Opuni-Agongo trial: Lawyers punch holes in Judge’s conflicting ruling”, Ghanweb, May 27, 2021). How can documentary evidence admitted in court that exonerated the accused be rejected? Is that not judicial absurdity of the highest order?
Despite these bizarre decisions by JSC Honyenuga that were obvious to any objective and rational observer that he had compromised his impartiality, the defendants’ complaints at the SC that the judge was bias and must recuse himself was rejected until Wednesday July 28.
The question is, how did he get away with such biased judicial decisions in open court until the SC majority decision and what convinced the majority three Justices of the Supreme Court to recuse him from the trial, which will result in a new judge being selected and a possible retrial at a huge cost to both the state and the defendants? Does such behaviour by the judiciary not frustrate the fight against corruption in public office (if there is one)? Do the leadership of the judiciary see bias by their colleagues or themselves in court or they see but refuse to admit them as a way of protecting themselves?
From the above, it was without doubt that JSC Honyenuga should either have recused himself from the case earlier or been removed by the Chief Justice to avoid miscarriage of justice or a potential retrial to avoid waste of judicial time and money. By the majority decision of the SC on Wednesday August 28, 2009, his peers have confirmed that he is unfit to continue as a judge on the case because he has been bias and lost his ability to administer justice.
It’s therefore, my considered view that, JSC Honyenuga has shown beyond reasonable doubt that he failed to exhibit the qualities of an impartial judge in his court and not fit to be a judge but could be an excellent paramount chief able to sign praises to presidents present and yet to come. That is what most chiefs do but not judges.
In fact, the very day the then Appeal Court Judge, Justice Honyenuga publicly sang the praises of the president, he should have been asked to resign or be sacked because he compromised his impartiality in the eyes of the public. Unfortunately, in Ghana, that is how some or most judges get promoted by singing praises or doing the bidding of politicians. He probably knew that nothing would happen to him. Lo and behold, the president rewarded him by elevating him to the Supreme Court.
It is sad that a senior judge can openly display his bias in court without any sanctions. I do not blame him because that is the system in Ghana, the rich and powerful are not sanctioned for doing the wrong thing. A system of appointment that the appointee believes that s/he must do the bidding of the appointing authority. In other jurisdictions, once a person is appointed into an independent position, s/he could even be related to the appointing authority but will assert his or her independence and hold the appointing authority and all others accountable. In situations where they experience interference in the performance of their duties by the appointing authority, they will resign but that is not the case in Ghana. In fact, in Ghana, should the appointee assert his or her independence against the appointing authority but in the interest of the state, clandestine efforts would be made to remove him or her from office. Again, should the appointee resign from office because s/he disagrees with the appointing authority, s/he will be become an outcast and may be unable to find suitable employment again and may even have to leave the country to find work or seek international appointment.
Despite the ineffective system, I see no reason why Justices of the Supreme Court have to do the bidding of the appointing authority because they are at the pinnacle of their profession, their positions are secured and as Article 71 officers, they retire on their salary. This is the best time to assert their independence and truly adjudicate cases impartially and fairly. Even if a JSC has ambitions to be Chief Justice, s/he must not pander to the appointing authority but respect his or her judicial oath to be fair and impartial. Sadly, JSC Honyenuga has failed in this test by his actions and omissions at the high court on this case and must either resign or be impeached because he has lost credibility to administer justice and let justice be seen to be done.
Kofi Ata, Cambridge.