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Written by Kwesi Baffoe Entsiful, Esq. Baffoe Entsiful, is a practising lawyer in Ghana.
The ongoing election legal tussle over the December 2012 general election between Nana Akuffo-Addo & 2 Others v. John Dramani Mahama and Electoral Commission have all the potentials of being the biggest constitutional law case in Ghana probably dethroning the celebrated cases of Re Akoto and Tufuour A-G.
The petition seeks to challenge the election of President John Mahama in the 2012 presidential elections where the Electoral Commission declared him as elected president. The petitioners have alleged among other irregularities and breaches of the various pieces of legislation. The Electoral Commission and the President as respondents have filed answers to the petition.
The political party, on whose ticket the president contested the election, the National Democratic Congress (NDC) has filed an application to join the suit claiming to have an interest or would be affected by the outcome of the case. The petitioners are vehemently opposed to the application.
The Motion for Joinder was scheduled to be moved by the NDC on the January 10, 2013. Media reports have it that the petitioners through their counsel sought to raise a preliminary objection against one of the judges on the panel, on the suitability of His Lordship Justice William Atuguba as we are told by the media. It is rumoured that he is the cousin of the newly appointed Executive Secretary of the President, Dr. Raymond Atuguba. This article does not discuss the merits of the petition, but instead is aimed at the explanation of the general issue of empanelling of Judges at the Supreme Court, how the law Lords arrive at their decisions, and what happens when there is objection against a member of a panel or a single judge sitting.
The issue of the panel system has been with us as a country for quite some time now, predating the 1992 Constitution. The panel system simply means that not all the judges at the Supreme Court get to sit on each and every case that comes before the court. The judges sit in groups, differently constituted at all time. The system is supported by the 1992 Constitution in its Article 128(2) which provides that “the Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution.” When this provision is read in tandem with clause 1 of Article 128 which also states that “the Supreme Court shall consist of the Chief justice and not less than nine other justices of the Supreme Court” it leads to the conclusion that the Constitution anticipate the panel system. The reason being that if the court is duly constituted for its work by not less than five justices of a court, which has at least nine justices, then the logical conclusion is that panels of at least five judges may be empanelled to handle a different case.
Therefore, Article 128 of the 1992 Constitution serves as the constitutional basis for the panel system in Ghana. This is because if the number of judges are at least ten and it is properly constituted for its work by not less than five justices, then obviously not all the justices may sit on every case.
The court always sits in odd numbers and by practice the court ordinarily sits in groups of five; and so by virtue of that, there is no situation of a tie when it comes to voting on decisions. In the past where there were not enough justices of the Supreme Court, other superior justices were adopted to sit with the panel in order to form a quorum.
There is however, an exception to the minimum of five justices duly constituting a panel for sitting as provided for under Article 128(2). Article 128(2) makes reference to Article 133, which deals with review of the court’s earlier decision. Clause 2 of 133 requires that the Supreme Court in reviewing it decisions should be constituted solely for that purpose by a panel of not less than seven justices. The figure seven is employed by the constitution based on the premise that the ordinary bench would have been constituted by the minimum constitutional number of five.
The idea behind the review is to add a new mind to the ordinary bench that decided the case at the first instance. That is why when the Constitution recommends that when the court is duly constituted for its work by not less than five justices, when the same case is on review the panel should be at least seven. This is to ensure that fresh minds are brought on board to take a second look at the case. This also means that if seven justices sit as an ordinary bench, then on review the court would be duly constituted for its review function by an enhanced or enlarged panel of judges; and, it is usually not less than nine justices.
Where the original panel was more than five justices the review panel ought to be more than seven.
One of the reasons that may be given for the panel system is that it leads to expeditious trial and disposal of cases. This is because unlike the US, in Ghana, except in very few limited cases, every case can be pursued up to the Supreme Court and so without this system the court would be inundated with cases, which has the potential of grinding the wheels of our judicial system to a hall.
Currently the Supreme Court is made up of fourteen justices including the Chief Justice. I provide below the list of the justices and the Presidents that appointed them.
Having established constitutional basis for the panel system, I now discuss how the court is empanelled. The empanelling of the Supreme Court, that is the selection of judges to sit on any particular case, is an administrative function of the Chief Justice. That is to say it discretionary power of the Chief Justice to select or empanel a court out of the total number of membership of the court at any particular point in time. It may be important to also state that the 1992 Constitution does not have an upper ceiling to the membership of the Supreme Court. It however, indicates the minimum number of justices which it not less than nine justices.
When a panel is duly constituted, it is presided over by the most senior justice on the panel. Where the Chief Justice is part of the panel, then he or she will preside over the Court. This is supported by Article 128(3) of the 1992 Constitution which provides that the Chief Justice presides over sittings of the court when he/she is on the panel and in his/her absence the most senior of the Justices of the Supreme Court presides. The seniority of justices of the Supreme Court is determined by his or her date of appointment to the Supreme Court and it is in that respect that His Lordship Justice W. A. Atuguba was the president of the court as constituted for the NDC joinder application. By this method, none of the Supreme Court justices gets to know whether or not he/she is going to be on a panel until informed by the chief Justice. The constitution of the panel changes for cases, and that there is no permanent panel. The size of a typical panel is five justices, with a review panel of seven.
When the Supreme Court is empanelled by the Chief Justice any of the justices may recuse himself on the basis that he know a party to the suit or has some form of interest in the case. This interest could be direct or indirect and does not have to be pecuniary interest. This situation is when the judge on his own volition, or as is usually called suo moto, excuse himself. The alternative to personal recusal is that a party appearing before such a panel has the right to object to a particular judge on the panel as was in the instant case. Again, the judge against whom the objection has been raised may decide to recuse himself/herself allows the party raising the objection to adduce evidence and or argument for the objection and for the court to decide whether the judge ought to be disqualified to sit on that case. The standard test for the objector to meet is what the Supreme Court has stated in many of the cases as the test of real likelihood of bias and which must be proved on preponderance of probability.
From the above, it could safely be said that the petitioners in the instant case had the right to object to any judge being a member of the panel selected by the Chief Justice to sit on the Joinder Application. Again such objection could be done in an open court or as is mostly the practice to approach the bench and request to raise the issue in camera, but whichever procedure to follow is at the discretion of the court or the presiding judge. And so the Supreme Court was right when it asked the petitioners to file a motion for the said application. The petitioners would then have carried the burden of proving whatever allegation they may have had against this particular judge and for the court to determine whether they have successfully satisfied the standard of real likelihood of bias on the part of Justice William Atuguba.
The Chief Justice empaneled the following justices to hear the Joinder Application:
It will be extremely difficult, if not virtually impossible, to speak with certainty about either political or legal philosophies or inclination of our Supreme Court justices. This I may blame the legislature in not doing well to let Ghanaians get to the political beliefs or philosophies or ideas of our judges during their vetting. Our best guess would be probably to take a cue from their appointment particularly the regime that appointed each one. We may hazard a guess by saying a regime or government would appoint one to the Supreme Court if it is satisfied that the appointee, shares the political ideals, or at least have some similar political inclinations. The appointive authority may have made wrong deductions or perceptions of the appointee. This may lead to disappointment on the part of the appointive authority; the reason being that once a judge is appointed to the Supreme Court he/she tends to be impartial, neutral and adhered strictly to judicial principles. Example can be given of Supreme Court in the early years of the majority’s public. The majority of the justices at the Supreme Court were appointed by President Jerry Rawlings or the P/NDC administration, yet most of their decisions involving high profile cases went against the regime that appointed them by being faithful to the judicial oath they had sworn to. This example is not to demonstrate how these nine justices sitting on the present joinder application are deciding the issues that would come before them.
Of the nine justices empanelled to sit on the Joinder Application, six of them were appointed by the NPP administration and three were appointed by NDC administration. I cannot conclude that these justices share political or philosophical beliefs with the regimes that appointed them. And even if they do, I cannot conclude as there is no shred of empirical evidence to show that they tend to be swayed in their judgments in favour of the Presidents that appointed them. A recent example is Chief Justice Roberts of the United States appointed by President George Bush, a republican President. When the Supreme Court was to decide on the faith of “Obamacare” which was vehemently opposed by the Republicans in the latter part of 2012, Chief Justice Roberts voted to save the law, thereby defeating the move by the Republicans to change the law through the law court. Probably, historians or legal scholars should divert their attention to the study of our Supreme Court justices in the past and the present and their political, philosophical and legal leanings.
It is significant to indicate that during decisions taken by a panel sitting on a case, all the judges have equal vote. Each justice on the panel votes to determine the outcome of a case during pre-judgment conference. At the pre-judgment conference the justices discuss the cases thoroughly and then vote. Where judges vote and they are unanimous in their decision, one amongst them is selected to write the judgment and circulate it among themselves for inputs from other justices before the final judgment is read in open court. Where the vote leads to majority/minority decision the same process is gone through with each side and some may change their mind to join the other after reading draft copy of what other side had written. Where the presiding judge is in the minority he or she usually chooses to write the minority opinion. There is cordiality, cooperation and coordination among the judges as such there is hardly surprises on each other as to what the other is going to say.
It must also be noted that each judge on a panel for any particular case may decide to write a separate opinion even when his or her views are in line with that of the majority or the minority. This usually happens when even though he or she may have voted to go with the majority or the minority, he or she disagrees with their reasoning and so may opt to write a separate opinion but conclude in joining the majority or the minority to uphold or dismiss a relief or case.
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