Atuguba Upsets Supreme Court Justices

Gordon Offin-Amaniampong writes
When facts and figures did the talk at a gathering of justices of Ghana’s Supreme Court at the Ghana Institute of Management and Public Administration (GIMPA) on Thursday 15 February 2018 in Accra, the atmosphere appeared nervy.

When law Professor Raymond Atuguba of the University of Ghana Law School presented his new findings of a study that sought t to establish that the voting pattern of judges of the Supreme Court was influenced by the political party that appointed them, it felt like he’d released an explosive peppery substance in the atmosphere -- causing discomfort among the wigs/gown-robed bigwigs.

You know garlic barely ever draws a tear but onion (Atuguba) does even though both are related ‘allium’ plants. That appears to be the case for the Judiciary—the second arm of the government.

What happens when Supreme Court loses its way?
Basically, we’ve learnt that when Supreme Court loses its way judges cast their votes based on who gave them the political capital. According to the constitutional lawyer, he’d analysed 100 political cases in Ghana and found that the voting patterns of the justices favoured patties which appointed them.

“Judges were voting less according to who appointed them at the beginning of the Fourth Republic in 1993. A number of reasons accounted for that: First, we had new constitution and some of the cases were very clear. So a lot of them will give unanimous judgments, so whether you were appointed by the NDC government or NPP government you joined the unanimous decision in saying this provision of this law is contrary to the constitution. Then in the middle somehow the Supreme Court lost its way after the first years and the judgments started becoming clearly the lines of party appointments,” he gave the explanation.

He then backed his claim with facts and figures: “Overall, the data reveals that 14 out of 22 NDC appointees making 64 per cent of the party’s appointees to the Supreme Court have given judgments in favour of the NDC. The NPP was more successful with 13 of their 16 judges giving a majority judgment in their favour, so 81 per cent consistency.”

His presentation immediately drew the ire of the justices at the conference including the Chief Justice Sophia Akufo. Evidently, his explanation couldn’t convince or win the hearts and minds of the learned friends. They descended on him. The Chief Justice described the research as ‘alien to Ghana. While another judge, Justice Jones Dotse said the findings constitute a direct attack on the integrity of judges.

And this is what the Chief Justice said: “It’s an American type of research that you have done….that’s fine but please be careful what you are importing into our environment. They) Americans) are used to that, we are not. I don’t think there was a single judge who agreed with what you were saying.”

Justice Dotse on the other hand didn’t take Prof. Atuguba’s findings lightly at all, noting the entire research was an affront to the judges. “You’re entitled to your views, but I think it is an insult of the highest order,” snapped.

That sounds interesting isn’t it? I thought every domestic animal that desires to be fatty mimics the piggery. I know this for a fact most developing democracies aspire to be like the US or the UK because they’re advanced in this type of government. So what went wrong here? Was it too spicy? Was it too bitter to swallow? Or was it a combination of the two?

But another legal luminary has come to Prof. Atuguba’s rescue. A US-based legal practitioner Stephen Kwaku Asare praised his learned friend. On his Facebook page on Friday he wrote: “It’s unfortunate that the Chief Justice attacked the Professor for simply letting the data talk. I strongly and emphatically disagree with the CJ that doing research like what Atuguba has done is analogous to comparing foreign judicial systems to Ghana’s. We cannot talk about quality in legal education if we put restrictions on the research of legal academics. We must start getting used to research, if indeed the claim that we are not already used to its meritorious.”

Executive Director at Africa Center for International; Law and Accountability William Nyarko provoked discussion on the subject when he posed the following question on his Facebook page: ‘...Don’t we have a problem, if the justices and the judiciary think that such an accountability-enhancing research should have no place in Ghana?

Users quickly took the bait. Leonard Wryter a user wrote this: “Sounds like some people are bored…the election petition verdict is one of the cases the good professor is alluding to.. The CJ fears that people will start to analyse rulings on party lines, except that kind analysis is already in place... Like a wise man once said good lawyer knows the law. But a great lawyer knows the judge.”

“The fear of empirical evidence by a judge is troubling...” said David Togbe Nfodjo.

And Mustapha Mensa also made this submission: “But that’s factual with what the Prof. said. The judges have to own up to this. It will rather help in terms of how people approach the court.”

While veteran broadcaster Magnus Nii Ofei rhetorically asked: “Don’t they, the Supreme Court justices vote in national election.” And I couldn’t agree with him more. Yes, they do. They all have political inclinations and they all vote.

Meanwhile, Emile Short, Former Commissioner for the Commission on Human Rights and Administrative Justice (CHRAJ) has commended the law professor and additionally called on him to publish his research work. He’s of the view that the publication of the entire work will afford people the opportunity to submit constructive criticism of his academic work.

"Publish it...I would like to see it," the former CHRAJ Boss said… “Academic research is useful if we can critique the methodology. If the conclusions are valid, then there are lessons to be learned", he said. He added as long as positions like IGP and Chief Justice remain political, it will give rise to studies like this.

Will Prof. Atuguba make his new findings available for future study given the backlash he received from the Chief Justices and some justices?

That remains to be observed in the coming days or weeks. Nevertheless, let’s not forget the Chief Justice has given an impression that Atuguba’s research is okay. But she’s also objected the idea of its introduction in Ghana’s political or democratic environment. That raises the inevitable question: If the study is ‘fine’ why can’t we use it?

As if to say the price is right but keep your product we aren’t interested. And I’ve a strong feeling that some grave concerns might’ve dictated or triggered the CJ’s reaction or comment at that venue last Thursday. A question like the one below, I suppose would probably help us to get a fair idea why the CJ did so.

What would inform a buyer to ignore or reject a better product?

And I think a few or several reasons could influence such a decision. First, the buyer could reject the product if it’s found to be expired or unwholesome. Second, it could be the fear that the product may pose health problems not only to the buyer but also to the family (‘Koto bekum womma’). Ever hear the saying not all that glitters is gold? Obviously, a buyer armed with this maxim would not take the risk.