Accra, Nov. 26, GNA - Mr Tsatsu Tsikata has filed a motion at an Accra High Court saying that the Attorney - General could not represent the Chief Justice.
The motion is asking the Court to strike out the entry of appearance by the Attorney - General on behalf of the Chief Justice in a case in which he is challenging the composition of the Appeals Court that gave judgement against him.
He is also asking the court to strike out the statement of defence filed by the Attorney - General on behalf of the Chief Justice; and for an order that the Chief Justice files a statement of defence and such further consequential orders that the Court might find appropriate. The case scheduled for hearing on December 12 2005.
In a supporting affidavit, Mr Tsikata averred: "I am seeking a declaration that the purported judgement of the Supreme Court constituted by less than five Justices on November 8 2004 in Criminal Appeal No J/4/2004 is null and void and an injunction restraining the Defendants, their servants, agents and assigns from taking any steps based on the said purported judgement."
He said the Chief Justice is by virtue of Article of the 1992 constitution is Head of the Judiciary and under Article 125 (4) is responsible for empanelling the Supreme Court for its work and for the administration of the Judiciary generally.
Mr Tsikata said the Attorney - General on the other hand was a member of the Executive, the principal legal adviser to the Government under Article 88 of the 1992 Constitution and is responsible for initiating proceedings on behalf of the State, including criminal proceedings and did initiate the criminal proceeding against him in respect of which an interlocutory appeal went to the Supreme Court. He said the representation of the Chief Justice by the Attorney - General would mean that he was acting as the legal adviser to him, which he was not authorised to be.
Mr Tsikata said the 1992 Constitution provides for the independence of the Judiciary in Articles 125 and 127 and makes is abundantly clear that the Attorney - General could not be the legal adviser to Government and at the same time also be legal adviser to the Head of the independent Judiciary, adding that there was no ambiguity about the provisions of the 1992 Constitution, which must be applied by all. He said the suit he had filed was against the two in their separate and constitutionally independent roles.
He said in the case whereby the Attorney - General had initiated criminal proceedings against him and the Chief Justice was responsible for administration of the Judiciary before which the case was being tried infringes the constitutional provisions that sought to ensure that the Judiciary was independent and not acting at the behest of the Executive.
Mr Tsikata said such common representation would enable the coordination of the positions of the defendants in this case in a manner that was completely contrary to the letter and spirit of the 1992 Constitution.
"Even an appearance of collusion between the Executive and the Judiciary in respect, particularly, of criminal proceedings is, I am advised and verily believe, detrimental to the interest of justice. For there to be actual collusion through such common representation and the Second Defendant (Attorney - General) is doing here not only offends clear constitutional principles but also undermines the ends of justice," Mr Tsikata said.
He said; "the Judiciary being independent of the Executive is essential aspect of the democratic governance, which must not be compromised in the manner the Second Defendant (Attorney - General) is seeking to do."
Mr Tsikata said: "The handling of an appointment of a Justice to the Supreme Court by the Executive in 2002 in order to secure the overturning of a decision of the Supreme Court in my favour by a review has been widely criticized as an infringement on the constitutional protection of the Judiciary and was, I am informed and verily believe, one of the criticisms made of the Government by the Report of the African Peer Review Mechanism of the African union earlier this year." The case is consequential to a substantive case in which Tsikata is standing trial for causing financial loss to the State.
Sometime in 1991, Valley Farms contracted a loan from Caisse Francaise de Developpement, but defaulted in the payment, which compelled GNPC, the guarantor, to pay it back five years later. The Corporation's action, in the view of the Prosecution, resulted in financial loss to the State.
Tsatsu faces another charge of allegedly investing the sum of 20 million cedis in Valley Farms, thus leading to the misapplication of public property.
He has denied the charges and has been granted bail in his own cognisance to the tune of 700 million cedis by the Court presided over by Mrs Henrietta Abban, Appeal Court Judge, with an additional responsibility on the matter as a High Court Judge. 26 Nov. 05