Judiciary On The Carpet?

“I ask you to judge me by the enemies I have made.” - Franklin Roosevelt

THE EASTER BREAK afforded us time enough to engage our minds on a wild goose chase for a perfect world. While at it, we were assailed by news and pictures of the senseless murders of Ukrainian civilians and children by Russia. And we found it difficult to disengage our minds from the warped logic of some Africans in their reaction, supporting Russia just to spite NATO and its allies because Russia had supported the freedom fighters of South Africa, while NATO had backed the Boers (Afrikaans) to uphold apartheid (apartness; aparthood; segregation). Some even went to the extent of recalling Europe's role in the Atlantic Slave Trade. So because of this, Russia does no wrong in bombarding Ukraine?

We came home from Nirvana (Buddhist transcendent state in which there is no suffering, no karma), and we remembered Professor Atta Mills' injunction on Ghana meddling in the Ivorian civil war: “Dzi wo fie asem.”

Then our “forty days' wandering” took us to the circular from the Chief Justice, headed: “Observing age-old tradition of the Bar in calling cases in court.” The circular read, in parts: “The legal profession, as we know, is steeped in traditions and ceremonies. One of the traditions observed is the practice of calling cases of persons…, in order of seniority of enrolment, notwithstanding the notion of equality at the Bar. This practice, among other benefits, affords the young lawyers the opportunity to learn from seniors… , enriching the whole legal training experience beyond what is taught in chambers and other places of work. Some trial court judges are not observing this practice in court. Whilst the right to call a case out of turn is not absolute, and is exercisable subject to the convenience of the court, for the reasons above, I would request all trial court judges to strictly adhere to this age-old tradition…” That is all, and we thought this innocuous in-house circular would be welcomed by all lawyers for the reasons given.

How do you expect J.K. Agyemang, Esq (1959) or Sam Okudzeto to be in a queue while a young lawyer, who passed out of the Ghana School of Law in 2021, calls his cases? Nkrabeah Effah-Dartey says: “In my very first year, senior lawyer J.K. Agyemang told me: 'young man, try to get genuine money so that when you are chopping you can sleep'!” He adds: “Never quarrel or show disrespect to a judge. The law is 40% statute and 60% discretionary.” In the first year after passing out of the law school in 1986, he had a case in which a lady asked him to assist her in court. He writes: “That night I did not sleep. What will I say in court?” You learn from seniors! Even how to bow; how to cross-examine cases; how to address the court or judge; 'much obliged'; 'my Lord'.

The Ghana Bar Association has lauded the Chief Justice's directive: “There is a lot to learn at the court. As a lawyer, reading alone doesn't bring you up. How do you even frame your cross-examination questions, the sequence of questions and when you should even end? You will not read it anywhere unless you listen to it in court.”

Ayikoi Otoo puts: “Just imagine in our days, Peter Ala Adjetey sitting down when an unknown Ayikoi Otoo being called, it doesn't sound right, after all, you will also become senior one day.

But Professor Stephen Kwaku Asare, a U.S. based Ghanaian Professor in law (?) has jettisoned this directive: “Parties must be treated equally in our courts. The practice of giving preferences to senior lawyers by calling their case first, can quickly degenerate into giving more weight to what they say, giving them more time, paying less attention to junior lawyers. Furthermore, it sends a signal to clients that if you want your case to move quickly in our courts, then you better hire a senior lawyer. I do not accept that junior lawyers should go to the court room to learn from senior lawyers. They go there to defend their clients, and judges are to presume that they know what they are doing once they have been called to the Bar.” Sure?

If it had been somebody like Nkrabeah Effah-Dartey commenting on the Chief Justice's directive, it would be warmly appreciated. Because he has passed through the mill, and listened to big legal brains like B.J. Da Rocha, Tortoe, Sam Okudzeto, Peter Ala Adjetey, E. D. Kom, Bentsi-Enchill, and Paul Adu-Gyamfi. Effah-Dartey has also rubbed shoulders with brilliant lawyers like Tsatsu Tsikata, Betty Mould Iddrisu, and Ace Ankomah.

Had it been the military or police, such a circular would not have come into the public domain – for good reason. The judicial system in Ghana is so open, and courts are open to the public (with the exception of matrimonial cases, divorce, and child molestation).

Then, an invitation was given to Kan Dapaah on a sensitisation workshop on the national security strategy for judges of the superior courts. It was a very well-delivered speech. He began: “Injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice or biased justice is certainly a threat to national security. Indeed, when injustice abounds, particularly in situations where the Bench, which is considered the final arbiter of disputes is deemed biased, citizens tend to take the law into their hands most times without recourse to the established systems of justice delivery.”

Then, unfortunately, he waded into uncharted water. In a word, we would say Kan has been “Semper fidelis” (always faithful) to NPP. He stated: “If the interpretation of the law is tilted in our favour all the time, people will start accusing the judiciary, and will not have the confidence they should have in it?” Siaka Stevens, the Sierra Leonean President (1971-1985), who died in May 1988 at 82 years, used to say that he believed in “timing.” We would quickly add: “office” and “occasion”. So, for the sake of ensuring national security, some judgments should be tilted in favour of some other parties. Is that what we call “balancing act?”

Frank Davies thinks Kan Dapaah's statement was made out of context: “You don't dispense justice in tandem with whatever political party holds the reins of government. Who determines who has tilted the interpretation of the law?” And Ayikoi Otoo says: “I don't think he sought legal advice.”

Abraham Amaliba of the Legal Directorate of the NDC thinks Kan Dapaah “was actually speaking about what most Ghanaians think about the judiciary, and being the National Security Officer, he would have gotten some information.”

Professor Gyampo in a teaser says: “It is either the few very professional (but political hawkish) people are being too partisan, or do not know what they are talking about in their critique of Kan Dapaah's candour.” Judicial oaths are not godly orders. They are not biblical or Koranic injunctions. They are sworn to, and can be broken by the very fallible mortals who staff the Bar and Bench. Some people are also losing confidence in the judiciary.

Some people have deliberately decided to put the judiciary on the carpet; others have on their part decided to put it on the red carpet.

[email protected]

From Africanus Owusu-Ansah.