Subjecting Justice William Atuguba to public scorn and opprobrium for expressing his opinion on the Supreme Court [SC] of Ghana judges stooping very low, not only becoming a poodle but kowtowing to the whims and caprices of Akufo-Addo led New Patriotic Party government as evidenced by recent anachronistic judgments is not appropriate. I watched Benjamin Akakpo of Multimedia Ghana's fame interview with Kwaku Paintsil, a private attorney in Accra, about the erstwhile iconic Supreme Court judge William Atuguba’s opinion on the current state of the judicial arm of government in Ghana. After the afore-referenced interview, I began ruminating about two main thoughts. What are the social, intellectual, and, above all, epistemological inferences of how we are to understand ourselves through and beyond petty partisan inclinations and "ethnophaulism." Another thought I cogitated about was the fallacy of ad hominem [a type of fallacy that attempts to invalidate an opponent's position based on personal traits or facts about the opponent rather than through logic]. Paintsil's submission is a far cry from common sense.
Paintsil posited that Justice Atuguba, a retired judge of the SC, should have said something good about the apex court willy-nilly for his presentation to be a balanced one. Such an ignoble Faus pax purported to discredit Justice Atuguba is unacceptable. Here are my two cents: Atuguba once lived in Ukraine, so if Ukraine is now under destruction, Atuguba must, at all costs, say something to suggest Ukraine is not under siege. Paintsil also cited legal realism to validate his warped logic. What Justice Atuguba said supports legal realism in jurisprudence.
Legal realism is a theory predicated on believing that all laws emanate from prevailing social interests and legal considerations. Psychologist Alfred Adler coined social interest to promote prosocial behaviors versus antisocial behaviors. Legal realism implies a naturalistic approach to law in that jurisprudence should conflate the methods of scientific inquiry, and judgment must rely on empirical evidence and validated hypotheses that can withstand the reality of the world rather than relying on baseless assumptions and technicalities of the law.
Per the theory, judges must consider not only the formalistic legal technicalities but also social interest and public good in ethereal cases. Is it serving public good or social interest for the whole chief justices in a trustee position denied taxpayers the right of hearing and a fair trial, but only to give disgruntled citizens a hearing date after Jean Mensah and Bossman Asare had perpetrated illegality by disenfranchising eligible voters? Under the watch of the SC, Jean Mensah, and Bossman Asare are taking Ghana back to the days of Goggisberg when Gold Coast practiced limited franchise. Justice Atuguba understands legal realism.
Oliver Wendell Holmes Jr., one of the ardent towering figures in US jurisprudence, was the brain behind legal realism. Holmes predicted that courts could behave based on realistic, even moral, or bias. Thus, Holmes opined in common law that “the life of the law has not been logic. It has been an experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy avowed or unconscious, and even the prejudices that judges share with their fellow men have had a good deal more to do them the syllogism in determining the rules by which men should be governed.”
Holmes somewhat framed legal realism on Immanuel Kant's transcendental idealism. According to this doctrine, we must differentiate between appearances and things in themselves. Kant intimated that individuals are limited by culture, social background, tribe, political inclination, and religion. Objective facts must be allowed to speak for themselves. Justice Atuguba was very charitable, describing the SC ruling against James G. Quayson as scandalous. I think that ruling was nothing short of sociopathic serial murder of justice. Again, here are my two cents. Was it a fact that by the time Quayson was sworn in as a legislator, he had received his Canadian citizenship renunciation certificate? Is it a fact that a parliamentary election is a process but not a singular act? What the SC judges did is like invalidating someone's BSc—degree based on his primary school performance.
We must applaud Justice Atuguba rather than subjecting him to senseless public backlash. The judiciary is not above reproach. It is a branch of the government. Citizens can demonstrate against the judiciary just as they demonstrate against the president and a member of parliament. We are not expecting judges to be flawless. Nonetheless, a constant anachronistic verdict in favor of the Akufo-addo-led NPP raises suspicion. The thoroughgoing sinking judicial independence in Ghana must be a source of consternation to well-meaning Ghanaians. We must embrace Akufo-Addo's abuse of power and bad governance as a litmus test for constitutional amendments Shout-out to Justice William Atuguba!
By Nana Yaw Osei, PhD, Minnesota, USA
[email protected] .