Lawyer Frank Davies, one of the biggest beneficiaries of the perception that Ghana’s judiciary is partisan and bias in favour of the government, has taken on the National Security Minister, Albert Kan-Dapaah, for suggesting judges should balance their judgments in the interest of national security.
He has, however, been drowned by senior military officers, security experts, lawyers and a university don.
Mr Davies, who is the New Patriotic Party (NPP)’s Legal Committee Chairman, at High Courts, Court of Appeal and the Supreme Court, Frank Davies’ cases for the ruling party against the Assin North Member of Parliament (MP) Gyakye Quayson and the Bank of Ghana which he serves as external lawyer in cases against it over what is thought to be the wrongful liquidation of some commercial banks, have been victorious, sometimes to the surprise of many.
In recent times, the Supreme Court judges, have been unanimous in most high prolife decisions, including the 2020 Election Petition filed by John Dramani Mahama, Gyakye Quayson , Alhaji Seidu Agongo and Dr. Stephen Kwabena Opuni case.
At a meeting with members of the judiciary last week to discuss the role of the third arm of government in Ghana’s national security architecture, Mr Kan-Dapaah, mentioned the importance of a robust and fair judicial system in maintaining peace and stability in the country, arguing that a strong judiciary is a pillar of the peace process, because it will allow people to use the courts to seek justice, instead of taking the laws into their own hands.
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“If you are going to be able to address security challenges that we have, especially the domestic ones, we need to ensure that there is a judicial system that works. If you do not have a judicial system that works, many people will simply take the laws into their own hands and misbehave and do what they want,” he said.
He said that in managing the security situation in the country, it is important that the judiciary is not perceived to be supporting the ruling government.
“If the interpretation of the law is tilted in our favour all the time, people will start accusing the judiciary and will not have the confidence that they need,” he said, adding “injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice or biased justice is certainly a threat to national security.
“Indeed, when injustice abounds, particularly in situations where the bench, which is considered the final arbiter of disputes, is deemed biased, citizens tend to take the law into their own hands most times without recourse to the established systems of justice delivery.”
He added “Justice is the foundation upon which the rule of law, equality before the law and fairness of the law are established. The failure of the criminal justice system to ensure effective and expeditious trial of criminals adversely impacts the morale of law enforcement agencies, emboldens criminals to perpetrate more crime, and breeds lawlessness among the citizenry; developments which threaten the internal security of the State.”
“The need to safeguard our collective security as a State requires that we work assiduously to eliminate all forms of injustice. The ultimate responsibility in doing so lies squarely at the feet of members of Ghana’s judicial system who are entrusted by law with the power to ensure effective justice delivery,” he stated.
But Mr Davies is arguing that the Minister’s comments are misplaced because “saying that one political party is in power [so] the justices should be mindful of how they interpret the law is completely lopsided
He questioned “National security would be threatened in what way? So, what? The judges are supposed to balance the equation? They give five judgements in favour of the NPP and give another five in favour of the NDC?
“It’s not a sharing party. I really respect Kan-Dapaah a lot but I think maybe he got the context completely wrong,” he said in an interview with JoyNews, on Monday.
“Justices or judges of our courts do not dispense justice in tandem with whichever political party holds the reins of government.
“So this business tilting interpretation in favour of ‘us’…who determines who has tilted the interpretation of the law?
“I simply do not think that it was made with that intention but I think that it was just a misplaced statement because you cannot determine what you have until the justices have determined and no client goes to court with a predetermined conviction that I’m going to win a particular case.
“You consult a lawyer and the lawyer tells you [that] your case is 60, 40 50, 70, 30 so we will manage it. But the ultimate decision lies with the judge. If the justices interpret the law in a certain way, just because one political power is in power, you don’t equate that to say that it will create a national security threat.
“So what? The judges are supposed to balance the equation? They gave 5 judgements in favor of the NPP and give another 5 to the NDC…it is not a sharing party,” Frank Davies maintained
Mr Davies noted that “I think that statement was made completely out of context. You don’t dispense justice in tandem with whichever political party holding the reins of government.
“…who determines who has tilted the interpretation of the law? I think it was just a misplaced statement,” he added.
A former Attorney-General, Nii Ayikoi Otu, had also waded into the matter calling the bluff of the National Security Minister over his caution.
Also speaking on Joy FM’s Super Morning Show on Monday, Ghana’s onetime Ambassador to Canada, said the Minister did not seek legal advice before making the statement.
“I’m sorry to say that I don’t think he sought legal advice on this matter. But, if he did, he wouldn’t be going around saying what he’s saying,” he said.
The Director of the National Democratic Congress (NDC)’s Legal Directorate, Abraham Amaliba, has said that the National Security Minister, spoke from a position of a national security person who has more information.
He called on the judges to heed the advice, “I totally disagree with Frank Davies. I think that the Minister of National Security was actually speaking about what most Ghanaians think about of the judiciary and being the National Security officer, he would have gotten some information.”
A security analyst, Prof. Kwesi Aning, has said that the admonishment by the National Security Minister, to the judiciary does not amount to an accusation against the institution.
He believes the Minister only cautioned that some rulings have national security threats, and urged the public to take the Minister’s caution seriously, and demanded that some prominent lawyers in the country to add their voices to the conversation.
He explained, “I think Mr. Kan-Dapaah’s cautionary note is not accusatory, and therein lies my usage of the word early warning, and I think he uses the word, tilt, in a particular sense, adding “So, can there be situations where decisions are made which are perceived to be fair and neutral but still create this sense of it being titled?
“I think these discussions must bring the heavyweights like Kweku Azar who has written extensively about the performance of the apex court, Prof. Raymond Atuguba who has said and stated very clearly about the tilts of the courts, depending on who appointed them and certainly, Mr. Kwesi Prempeh, precisely because what Mr. Kan-Dapaah has said is to say that the dispensation with which decisions are made can create insecurities, and it is that cautionary note that we need to take seriously?” Prof Aning noted.
Lieutenant Colonel (rtd) Larry Gbevlo-Lartey, took on Attorney General Ayikoi Otoo for expressing his discontentment with comments made by National Security Minister, saying the former Attorney–General would not have made such ‘zealous comments’ if he had also sought advice on the relationship between administration of justice and national security.
While admonishing Lawyer Ayikoi Otto, the retired military officer stressed that judges are fallible.
He observed that the unfair administration of justice has led to instability in other parts of the world.
He also tasked the lawyer to read the National Security Strategy (NSS) to better appreciate the perspective of the National Security Minister.
“If Ayikoi Otoo had just but sought advice on the linkage between the administration of justice and national stability, he would not have made such zealotry comments on what the Minister for National Security said during the sensitization of the Judiciary on the National Security Strategy of the country.
He should go and read the National Security Strategy (NSS) and stop professing that judges are divine and infallible. They are not; and unfair administration of justice perceived or real, has led to serious national instability in many parts of our sub-region.
“That is a lesson our National Security Minister appears to be well aware of better than Ayikoi. The Minister did not say judges should rule on party lines,” he emphasized in a Facebook post.
“The Minister did not say judges should rule on party lines. Where did Ayikoi get that from? Does Ayikoi understand what the NSS means by a whole of Government and whole of society approach to ensuring national stability? Has Ayikoi followed the observations of the CDD on the administration of justice in Ghana of late? Has he examined the complex concept of subjective (perceived) and objective (real) fear and that security on any scale remains a feeling?
“He should please leave the Minister alone to do his work, sensitize the general public including the judiciary on the thresholds of tolerance that ensure national stability.
Professor Ransford Yaw Gyampo of the University of Ghana, Legon, has also backed the National Security Minister, insisting those who have taken him on are either being too partisan or do not know what they are talking about.
In a write-up he made yesterday, Tuesday, April 12, the Political science lecturer charged “It is either the few very professional (but politically hawkish) people are being too partisan or completely do not know what they are talking about in their critique of Kan Dapaah’s candor.
“Judicial oaths are not godly orders. They are not Biblical or Koranic injunctions that are even flouted with impunity by religious adherents. They are sworn and can be broken by the very fallible mortals who staff the bar and the bench.
“It is a fact that there are some great independent minded judges in Ghana. But we cannot pretend or suddenly be afraid to point out quite frankly and without mincing words that, some people are also losing confidence in the judiciary and this is a major threat to national security.
“To my mind, anyone who can’t understand this, does not only lack analytical astuteness. Such a person is also a political infant, a nation wrecker and a great threat to the quest for strong institutions, national cohesion, consensual politics, peace, and political stability, without which there can be no development.
“We cannot offer partisan opposition or defense for everything. There must be an elite consensus on many issues that we must agree never to disagree on, else our drive towards the maturation of our democratization processes would be stampeded at all times.
Renowned lawyer, Markin Kpebu, also said that comments by the National Security Minister, on the need for a judiciary that is viewed to be impartial, is not wrong.
According to the lawyer, the minister was only making a hypothetical statement which has been interpreted to mean that he was rebuking the judiciary for always ruling in favour of the government.
“Listing to and watching Mr. Kan-Dapaah, I think instantly I’m seeing a different angle to this debate. That is an example he is giving but what I read in the media and what I’m hearing it was made to appear that he was saying what the judges have done.
“You see he was saying ‘if’, so it is conditional. I think what I hearing around it is as if he’s totally concluded that all the judgments that were given, were unjustified, sought of, so the justice should distribute,” he said in an interview on JoyNews.
Kpebu reiterated that the minister was only making a point saying that what the minister said: “is common knowledge that if such a thing (all ways ruling in favour of the government) happens certainly people will lose hope in the judiciary.”
On his part, US-based Ghanaian Professor, Kwaku Asare has said that Mr. Kan-Dapaah has echoed its long-held position that a judiciary that is perceived to be biased, inefficient, or ineffective is a threat to national security.
Prof Asare said like it or not, many people perceive the judiciary as biased and have no confidence in it.
Professor Asare in a Facebook post reacting to this development said “the National Security Advisor has echoed its long held position that a judiciary that is perceived to be biased, inefficient, or ineffective is a threat to national security. Like it or not, many people perceive the judiciary as biased and have no confidence in it.
“Alas, the numbers are growing not shrinking. However, it is not a lost cause and the storyline can change if the judiciary listens to and addresses constructive criticisms, such as GOGO highlighted in its New Year message. Academia and civil society too can help by prioritizing judicial reform. Timidity and false praises will not do!”
Security analyst Col. Festus Aboagye (rtd) on his part argued that recent judgements by the Supreme Court make it easy for some Ghanaians to have doubts over the fairness of their verdicts.
“Confidence in the judiciary will be lost if interpretation always favours government, and the judiciary perceived to be biased is a big threat to national security,” the National Security Minister told judges at a program in Accra last week.
He stressed: “Injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice or biased justice is certainly a threat to national security”, adding the security analyst said judges must take the caution of Mr. Kan Dapaah seriously.
“Personally, I’m concerned that from the election petition to the deputy speakers case and where there are two alternatives, the court always goes to the other alternative. The onesidedness of this for me is not sufficient. The citizens taking law into their hands is something I can resonate with. If we have 9 judges on the bench and all the time it’s 7-0; 9-0, it’s a bit artificial.
“My question is why the minister is saying it at this time and why is he not directing the statement to the general population? What is the minister purporting. What kind of message is he sending. Is it a caution to the judiciary or specific justices? If the justices have been right in their decisions they’ve made in the past, what is the minister worried about?,” he said.
Earlier, former President John Mahama says the NDC has problems with the judiciary and called on the Chief Justice to institute reforms within the courts.
“We do have problems with the Judiciary, I must say. I think that it is necessary for some internal reforms to take place there. It is necessary for the Chief Justice or whoever is responsible to make some reforms,” Mr Mahama told supporters of the NDC in the United States where he has been visiting.
He added “Most of the governance institutions have been politicised. I give the example of the Judiciary. It is only in Ghana that a Supreme Court will make a decision that a birth certificate is not proof of citizenship”.
Mr Mahama also referenced a research by his former executive secretary and lawyer Raymond Atuguba who argued that judges, in crucial political cases, rule based on their party lines.
“There are many such funny judgements that have been given. I remember at one time, our colleague Professor Raymond Atuguba said that from research he had done, judges turn to give their judgements in favour of the political party or leader that appointed them.
“He was subjected to such a whirlwind of indignation by the Judiciary, but if you bring it down to what is happening today, and you look at it and see who appointed who, you will find that there was some truth in the research.
“The thing is, our constitution gives the security of tenure to judges. Once you have been appointed, you cannot be removed. That is why we give security of tenure so that you will have the courage no matter who appointed you to give judgement according to your conscience. That is what our judges should do. They must rise to the occasion.”
