Chief Justice: To apologize would politicize the bench. To resign would surrender it

The call by the New Patriotic Party (NPP) for Chief Justice Paul Baffoe-Bonnie to retract his comments or resign is constitutionally dangerous, politically opportunistic, and institutionally wrong.

The demand follows a video in which the Chief Justice is heard saying: "Sometimes when we hear how well some state organisations are doing now, we wonder what we really have been doing in the past eight years". The NPP, in a statement signed by General Secretary Justin Kodua Frimpong on September 3, described this as partisan commentary inconsistent with the role of head of the Judiciary.

They went further to take issue with what they called his "declared vow that everything must be done to ensure that the agenda of the President succeeds", arguing that such a pledge compromises judicial independence, especially when the President's agenda includes Operation Recover All Loot (ORAL).

On those grounds they have asked him to apologize or resign. He must do neither, for four reasons.

The remarks do not breach judicial ethics.

Articles 125 and 127 of the 1992 Constitution guarantee judicial independence, and the judicial oath requires justice without fear, favour, affection or ill will. Nothing in the quoted remarks shows bias in a case, prejudgment of a matter before the courts, or instruction to judges to decide in a particular way.

An observation about the improved performance of state institutions is an administrative comment on public sector management - a matter the Chief Justice, as head of the Judicial Service and responsible for court administration, is entitled to notice. It is not an endorsement of the NDC.

Apology under political duress would destroy the office

The NPP itself argues that "The Judiciary belongs neither to the President, nor to the NDC, nor to the Chief Justice; it belongs to the people of Ghana". That is precisely why the Chief Justice cannot be made to answer to a political party press conference.

If a Chief Justice must apologize every time a political party interprets his public speech as favourable to its opponent, no Chief Justice will ever be able to speak at a public function, deliver a lecture, or attend a state event again. The party also accuses him of appearing at events with political appointees of the NDC administration - but the Chief Justice is required by protocol to attend state functions where the Executive is present. Absence would be more damaging than presence.

To force an apology is to concede that the Judiciary is accountable to partisan opinion. It is not.

Resignation would set a fatal precedent.

Ghana has just been through a bruising period under Article 146 with suspended Chief Justice Gertrude Torkornoo, who warned: "Behind me stands every judge in the country... If this process succeeds, it could be used against anyone".

Private legal practitioner Kwame Akuffo made the point that to resign under pressure is to concede guilt: "To resign is to concede that you will not fight the issue, and generations that would come after us would say that she knew that she couldn't fight the charges".

If Justice Baffoe-Bonnie resigns because an opposition party demands it over a speech, every future Chief Justice will serve at the pleasure of the loudest political party. That is the very definition of a captured judiciary.

The remedy for perceived bias is in the courtroom, not the press.

If the NPP believes a specific case before the courts has been affected by "extraordinary alacrity" or that a warrant was improperly issued, as they allege in the case of Chairman Wontumi, the Constitution provides remedies: appeal, judicial review, application for recusal. What it does not provide is removal of the Chief Justice by party communique, which accused him of presenting himself "not as the impartial head of an independent Judiciary but as a leading member of the National Democratic Congress in judicial robes".

That language is political rhetoric, not a constitutional ground under Article 146.

The Chief Justice owes his loyalty, as the NPP itself notes, "to the Constitution and not to the President, a political party or the agenda of any government". The best way to demonstrate that loyalty now is to stay, to keep his oath, and to let his judgments - not his forced apologies - speak for his impartiality. 90cd

To apologize would politicize the bench. To resign would surrender it