Setting an Upper Limit to the Supreme Court

The approval by Parliament of the three nominations by the President to the Supreme Court on Friday October 30, 2009 has resurrected the debate of whether or not there should be an upper limit to the number of Justices on the Supreme Court. This debate engaged the minds of most Ghanaians and sparked off heated political vituperation across the nation during the first term of the Kufuor administration in 2002.

The controversy had been sparked off by Mr.Tsatsu Tsikata's challenge of the constitutionality of the Fast Track High Court. Mr. Tsikata had been summoned before the Fast Track Division of the High Court to answer charges on causing financial loss to the state. Instead of replying to the summons he rather brought an action in the Supreme Court for a declaration that the said Fast Track Court was unconstitutional and therefore he could not be lawfully prosecuted before that court. On 28 February 2008, and by a majority decision of 5-4 Mr. Tsikata's declaration was granted with the Court reserving its reasons which was given on March 20, 2002.The Attorney-General applied for a review of the decision. But before the review was heard, the President nominated Justice Afreh, who in times past had sat on cases in the Fast Track Court, to the Supreme Court. With the NPP's majority in Parliament then, there was no difficulty in approving His Lordship Justice Afreh to the Supreme Court. He was empanelled together with Justice Lamptey bringing the review panel to eleven Justices, and by a majority decision of 6-5 overturned the earlier decision of the Court and restored the Fast Track Court back to business at full throttle.

This turn of event did not go down well with most observers as it was feared that absence of an upper limit to the Supreme Court could serve as a tool of political manipulation of the Court by politicians. Thus a President could appoint more justices to the court at any time so as to obtain favorable decisions if he felt he couldn't get that from those who are already on the court.

What brings an interesting twist to the debate this time is the position the NDC adopted on the issue in those early days of 2002 and particularly during the 2008 elections vis-a vis the present nomination to the Court. They have always been against having large numbers in the Supreme Court and indeed promised that they would take steps to put an upper limit on the number of judges in the Court. It is however interesting that having come to power now they don't seem to find anything wrong with appointing more Justices to the Court. So goes for the NPP who also suddenly appear now to be so much in love with setting an upper limit to Supreme Court. What engages my attention in this piece however, is not the cheap political gimmickry of NDC/NPP politics on the matter, but the legal solutions which are being proffered as the way forward in the quest to setting an upper limit to the numbers in the Court.

On the Friday 30 October edition of Joy FM's News Night I listened to Honorable Minority Leader, Osei Kyei-Mensah-Bonsu's suggestion as far as this matter is concerned. He argued that there should be some sort of a gentleman's agreement between Parliament and the Executive to come up with a suitable number to serve as the maximum number of the Supreme Court at any point in time. When asked what would be the situation if a particular president didn't respect the said agreement and went ahead to appoint more Justices to the Court, he answered that then Parliament should able to stick out its neck and for once say NO.

Ernest Kofi Abotsi, a Harvard Law graduate and Lecturer in Constitutional Law at the Faculty of Law, KNUST — a gentleman I have a lot of respect and admiration for, was called for his opinion on the same matter and particularly his reaction to the Minority Leader's suggestion. He argued that the powers of Parliament to vet and approve or disapprove of nominations to the Supreme Court can be exercised but only within the limits of certain constitutional prescriptions. That considering there is upper limit to the Supreme Court as constitututed now, Parliament cannot disapprove of a nomination to the Supreme Court solely on the grounds that there is already enough Judges on the Court based on their own judgment or in pursuance of a purported agreement between Parliament and the Executive. To do so would be disregarding the minimum constitutional qualifications for appointment to the Supreme Court resulting in the rejection of otherwise qualified nominees based on extra-constitutional grounds. I entirely agree with him as far as his analysis of the Minority Leader's suggestion is concerned.

But with all due respect to the learned Constitutional law Lecturer, Ernest Kofi Abotsi, I am unable to share in his own opinion on the constitutional processes which must be followed in order to set an upper limit to the Supreme Court. He seems to have joined the bandwagon of people who suggest that the only way forward is a “constitutional review.” The use of the expression constitutional review usually comes with a connotation that the provision sought to be changed is an entrenched one and must therefore go through a special amendment process including a referendum. With all due respect, the use of the expression 'constitutional review' especially in relation to setting an upper limit to the Supreme Court unnecessarily mystifies the process and creates an impression that it is a task of near impossibility. I am sure the Minority Leader may also have been misled by this impression into making the suggestion that he made and which I find to have totally missed the point.

Indeed article 128 which deals with the composition of the Supreme Court is not an entrenched one and therefore if we are serious about setting a limit to the Supreme Court, that could be done by Parliament through an ordinary amendment process. Again the issue here is not actually changing a particular clause or article of the constitution but making provision for something on which the Constitution is silent. On such issues on which the Constitution is silent the competent authority to make provision for them is Parliament. See article 298 of the Constitution, 1992. It provides: “Subject to the provisions of Chapter 25 of this Constitution, where on any matter, whether arising out of this Constitution or otherwise, there is no provision, express or by necessary implication of this Constitution which deals with the matter, that has arisen, Parliament shall, by an Act of Parliament, not being inconsistent with any provision of this Constitution, provide for that matter to be dealt with.”

With due respect, it appears that persons who are under the impression that only a 'constitutional review' (with it usual connotations of a cumbersome procedure including referendums) is the only way to go as far as setting a ceiling to the numbers in the Supreme Court is concerned have not averted their minds to article 298 of the Constitution. It could indeed be a very simple process than what these analysts have made it look like. The constitution is quite clear on this matter. A constitutional review with the usual setting up of committees, holding of consultations, referendum among others is definitely not within the contemplation of article 298. A simple Act of Parliament would do the job. As for Osei Kyei-Mensah-Bonsu's suggestion of setting the limit through a Parliamentary moratorium or some agreement with the Executive, I think it is too hollow and off the tangent.

Credit: Christopher Yaw Nyinevi
Faculty of Law, KNUST
[email protected]