….Says her attitude in Opuni’s appeal is beyond impunity; Shocked at GBA & Kulendi
Private legal practitioner, Francisca Serwaa Boateng, has accused Chief Justice, Justice Gertrude Torkornoo of engaging in an “unlawful” practice, as she severely condemned her for reconstituting, without reason, a five-member Supreme Court panel hearing the appeal of former COCOBOD Chief Executive, Dr Stephen Opuni.
“Such attitude is beyond impunity. It is unconstitutional. It is unlawful. It is an affront to constitutional democracy,” she said without mincing words unenthused by the deafening silence of the Ghana Bar Association on the issue.
The outspoken lawyer is worried about what she calls an “unmistakable” and “unhealthy” concentration of power in the hands of the Chief Justice.
Dr Opuni on July 7, 2023, filed a suit at the Supreme Court asking the apex court to reverse a decision by the Appeal’s Court made on July 3, in favour of the Attorney General, that quashed a ruling by a High Court judge, Justice Kwasi Anokye Gyimah.
The judge, upon assuming the case, decided to start the trial of the former COCOBOD boss and two others afresh, citing the numerous controversies including bias claims against now-retired Justice Clemence Honyenuga, Supreme Court judge who had additional responsibility as a High Court judge.
Over seven months later, parties received their first notice to appear before a Supreme Court panel presided over by Justice Mariama Owusu on January 17, 2024.
The panel ordered the appellant and the attorney general who opposed the suit to file their statements of case within 21 days intervals, to which they both complied.
The parties were notified to appear in court on May 8, 2024, for judgment only to meet a new panel now chaired by the Chief Justice, Justice Gertrude Torkornoo with as many as three members including Justice Emmanuel Yonny Kulendi, Justice George Kingsley Koomson and Justice Henry A Kwofie on the previous panel removed.
The new panel had Justice Mariama Owusu, Justice Henrietta Mensah-Bonsu, Justice Yaw Darko Asare and Justice Ernest Gaewu.
Objection by Counsel for Dr Opuni, lawyer Samuel Codjoe, on the reconstituted panel, based on Article 157 (3) of the 1992 Constitution of Ghana, was overruled by the Chief Justice who claimed the case was not ripe for hearing at the time the previous panel gave their order for the filing of written statements.
She then ordered the parties to reappear before the new panel she chairs for judgment on the appeal filed by Dr. Stephen Opuni on June 17.
The case, meanwhile continues at the High Court before Justice Aboagye Tandoh, who took over after the Chief Justice, strangely transferred Justice Kwasi Anokye Gyimah from Accra to Kumasi, even before the Court of Appeal ruling on his decision to start the hearing afresh.
This decision by the Chief Justice to change the Supreme Court panel and even sit on the case has attracted round condemnation from a cross-section of Ghanaians including civil society organisations such as Lawyers In Search Of Democracy (LINSOD) and ASEPA as well as legal luminaries like the Executive Director of Ghana Center for Democratic Development (CDD-Ghana) Prof. H. Kwasi Prempeh and a D&D Fellow in Public Law Prof. Stephen Kwaku Asare (Kwaku Azar).
For the Founder and Managing Counsel of FSB Law Consult, based in Accra, Francisca Serwaa Boateng, the claim by the Chief Justice that the case was not ripe for hearing was untenable.
She argued that “In the Opuni case, once the notice of the criminal appeal or the notice of an application for leave to appeal with the order of the Court of Appeal granting leave to appeal, as well as the original exhibits were forwarded to the Supreme Court, the appeal was ripe for hearing.”
“That explains why the Mariama Owusu, JSC panel held court in January 2024, ordered the parties to file their statements of case within certain fixed time periods and gave 8th May, 2024 as the date for judgment.
“In the light of these basic legal principles, legal ingenuity will be sorely taxed to propound a theory to support the Chief Justice’s assertion that the appeal was not ripe for hearing when the Mariama Owusu, JSC panel ordered the parties to file their statements of case.
“One wonders what form of ‘hearing’ was expected to be undertaken in a simple interlocutory criminal appeal such as the Opuni case,” lawyer Francisca Boateng said in a post on her official website – https://fsboateng.com/2024/05/16/beyond-impunity/.
She noted that in criminal appeals at the Supreme Court, though there is no requirement for filing a statement of case, the Supreme Court can request statements of case in lieu of oral arguments.
“It is trite knowledge that the point at which the Supreme Court takes statements of case is where it considers that the hearing is over. Thus, the parties’ submission of their statements of case in the Opuni case signified the close of their legal arguments. What was left was the judgment to be rendered and the Mariama Owusu, JSC panel had fixed it for 8th May, 2024.”
Francisca Boateng elucidated that “By the clear provisions in article 157 (3) of the Constitution, 1992, after the parties filed their statements of case and the only outstanding matter was the judgment to be given, the Chief Justice could not have withdrawn the three (3) Justices from the case. She had no power under the Constitution nor any other law to withdraw the Justices from the case that was ripe for judgment.
“The withdrawal was against the express constitutional position in article 157 (3). The Chief Justice also had no power to shove off the presiding Justice and install herself as President of the panel when she took no part in the proceedings leading up to the judgment. Such an attitude is beyond impunity. It is unconstitutional. It is unlawful. It is an affront to constitutional democracy.”
The private legal practitioner was not enthused by the deafening silence of the Ghana Bar Association on the issue.
“Whether by design or by fatigue, the perennial protectors of judicial officers and the Judiciary – Ghana Bar Association – has gone into hiding,” she asserted, adding, “His Lordship, Mr. Justice Kulendi who, in normal times, would have stepped up to the plate to entreat citizens to mind their language is himself caught in the eye of the storm. He is part of the ‘triple K’ squad who have been jettisoned from the case.”
Though the Attorney General issued a statement in defence of the Chief Justice’s decision, his reasoning, Francisca Boateng said, is “misconceived in law”
“At any rate, is the Attorney-General’s own position as an interested party in the appeal congruent with his role as the ‘public relations officer’ of the Chief Justice, the president of the panel? Your guess is as good as mine.”
“It is most strange that the Attorney-General who has reportedly filed a statement of case in the appeal as ordered by the Mariama Owusu, JSC panel now contends that ‘there had been neither oral nor written arguments in the matter heard on 17th January 2024, and therefore, Article 157(3) was not triggered.’ Some public relations tasks must be daunting, indeed.”
Meanwhile, lawyer Francisca Serwaa Boateng has called for the independence of the corporate judiciary instead of the independence of judges.
“As the provisions stand now, if we were so unfortunate as to get for our Chief Justice a cynical, mischievous and obstinate individual who also had the ear of the President, at least, a sizeable section of the judiciary could be subjected to mayhem, with a not too remote consequence of bedlam,” she explained.
