The recent call by the Panel of Eminent Persons of the African Peer-Review Mechanism (APRM) for the Ghanaian government to put a ceiling on the number of jurists appointable to the Supreme Court, is a quite intriguing recommendation.
And, indeed, we hold the preceding to be quite intriguing because the recommendation appears to presuppose that merely putting a numerical cap, or ceiling, on the composition of the Ghanaian Supreme Court would, in of itself, ensure the automatic enhancement in the quality of the administration of justice in the country. Nothing could be further from the truth or historical reality. And, perhaps, it bears reminding the major actors engaged in this discourse that the limitation of the membership of the United States Supreme Court to a body of nine jurists, including its Chief Justice, did practically nothing to ensure the abolition of African enslavement in the wake of America?s revolutionary assertion of her geopolitical sovereignty from Britain in 1776. And, what was more, it would take the United States nearly another century to abolish diasporic African enslavement. And during the course of some two centuries it was, indeed, the august United States Supreme Court that hermetically ensured that the human and civil rights of the African-descended American citizen would neither be recognized nor respected.
In 1896, the very year in which my maternal grandfather was born, for instance, in the infamous ruling known as Plessy versus Ferguson, the United States Supreme Court observed that it was absolutely incompatible with the concept of social justice for Blacks and Whites to be allowed access to the same public, or taxpayer-sponsored, facilities such as schools, hospitals, sporting arenas, restaurants, transportation and movie theaters. And in the limited situations in which African-Americans were allowed to use some of these facilities, it was with general ?mainstream? ? or White official ? understanding that Blacks were to be segregated. Thus, we had Black sections of movie theaters, sports stadia and buses. And for those Ghanaians who may not be aware, the celebrated U.S. Civil Rights revolution of the late 1950s and 1960s was a quite belated rejoinder to such patently benighted institutional arrangement. The Plessy v. Ferguson ruling, it is significant to observe, ushered in full force what became known as ?Separate and Equal? proclamation. The latter also engendered what came to be euphemistically known as ?Jim Crow? culture. In brief, the ?Separate and Equal? ruling by the United States Supreme Court maintained that creating different sociocultural facilities for Whites and Blacks was squarely in tune with the country?s Constitutional stipulation of racial equality. The reality of facts on the ground, as it were, was that creating different social and cultural facilities for America?s Black and White races was fundamentally incompatible with the ideological and moral concept of justice.
For starters, it was exclusively White legislators who passed the laws enforcing racial segregation; likewise, it was an exclusively White Supreme Court which interpreted these laws; and more often than not, both preceding two branches of government simply reinforced, or validated, the deeply entrenched institution of White supremacy. In sum, both the legislative and judicial arms of the American government played one and the same role of perpetuating the civic proscription of the proverbial African personality in the post-emancipation era. And, indeed, if one were to ask many an African-American intellectual or scholar, one would be promptly told that in terms of the general treatment of its non-European citizenry, the United States is ideologically not very far removed from the Sudanese government of General Omar Al-Bashir.
Furthermore, in the past, any problems that were perceived to be associated with the Ghanaian Supreme Court had more to do with the political climate of the country than the caliber of judicial appointees, although a plausible case, one can almost be certain, could be made of some judicial appointments. But even here, the onus would invariably appear to be more politically oriented than anything else. Indeed, since the country?s reassertion of its political sovereignty from Britain in 1957, almost every government has demonstrated abject contempt for the Ghanaian Supreme Court and its membership. Under the socialist tenure of the Nkrumah-led Convention People?s Party, judges were summarily dismissed or removed from the Court because they had handed down rulings which the leader of the government of the day considered to be patently anti-executive and, in effect, unpatriotic. And then during the short-lived tenure of the more constitutionally democratic Progress Party, led by the Oxbridge-educated Dr. K. A. Busia, judicial rulings that went against the government?s ideological stance were promptly denounced and cavalierly flouted. And, needless to say, under the pseudo-democratic junta of the (P)NDC, spearheaded by Flt.-Lt. Rawlings, judges deemed to be independent-minded were summarily executed, Mafia-style, to serve as a veritable deterrent to those who were apt to disagree with the government on the correct interpretation of the law.
In sum, what one would have liked to have heard from the Panel of Eminent Persons of the African Peer-Review Mechanism was the general performance of the Ghanaian judiciary over the course of the last quarter-century. Instead, what we learn from its latest report is the APRM?s patently sophomoric play with what might aptly be termed as a judicial numbers game. And the preceding is not helped by the unwelcome addition of the voice of the former Speaker of the Ghanaian Parliament, Justice D. F. Annan, the man who studiously and obsequiously served under the extortionate and pseudo-democratic (P)NDC regime. In the wake of the latest APRM report, Mr. Annan was reported to have called for ?an intense debate on the ceiling to the appointment of judges to the Supreme Court as recommended by the Panel of Eminent Persons of the African Peer-Review Mechanism? (Ghanaweb.com 6/24/05). One wonders why it took Justice Annan so long to recognize that, indeed, there was something remiss with the current Constitutional stipulation regarding the numerical composition of the country?s Supreme Court. And then the next most logical question becomes: Just where was Justice Annan when the 1992 Fourth Ghanaian Republican Constitution was being drafted?
In essence, it appears that the former Speaker, having been decisively put out to pasture for some time now, as it were, merely wanted his voice to be heard, rather than having any meaningful contribution to make towards the APRM judicial recommendation. And like most jaded members of the opposition National Democratic Congress, Mr. Annan appears to envisage another opportunity to make a proverbial mountain out of a molehill.
And it also goes without saying that we vehemently disagree with the former Speaker?s rather flippant observation that: ?Democracy is [an] expensive [political venture and that] once we have chosen to go that way, we should be prepared to bear the full cost of it?(Ghanaweb.com 6/24/05). Needless to say, no statement, or remark, could be more cynical and vacuous. It is almost as if the former Rawlings lackey is wistfully exhorting his countrymen and women to go back to the pathological days of ?cultural silence,? the kind of terror-charged political culture over which he presided for most of the last decade and half. To be certain, what is expensive is the kind of protean and aimless ideological course charted by the (P)NDC for most of the last two decades; and it is such profligate use of political capital that finds Ghanaians in the kind of mess we currently have had to confront.
Indeed, emplacing a cap, or ceiling, on the numerical composition of the Ghanaian Supreme Court would create the unsavory situation, prevalent here in the United States, whereby senile and terminally ill judges, placed on the Court to further the political agenda of one of the two major parties, adamantly refuse to quit or step down, until they literally drop dead. As of this writing (July 1, 2005), the Chief Justice of the U.S. Supreme Court, Mr. Rehnquist, a hard-nosed conservative Republican, is engaged in this kind of anal-retentive game of judicial strangulation. Needless to say, an open-ended composition of the U.S. Supreme Court would have promptly ensured that Mr. Rehnquist would recognize his numerical ineffectuality, and thus his urgent need to get out of the way of the collective national, judicial agenda.
The APRM report also appears to neglect the fact that merely putting a cap, or ceiling, on the numerical composition of the Ghanaian Supreme Court, at this material moment, may not necessarily be in the interest of either the ruling New Patriotic Party or Ghanaians at large. Indeed, such a cap may be clearly seen to unduly favor the opposition (Provisional) National Democratic Congress (P/NDC), which held sway for most of the last twenty-five years, during which period most of the members of the Ghanaian Supreme Court were appointed. Thus, those critics who seek to validate their arguments by citing the (Tsatsu) Tsikata case in which an earlier favorable, but clearly wrongheaded, Supreme Court decision was justifiably and constructively reversed by the same Court, after the hitherto (P)NDC-stacked Court?s membership was increased, have no cognitive crutches upon which to predicate their tendentious dissent. Needless to say, the Tsikata case is veritably about abject abuse of public trust and corruption, the unconscionable milking of Ghana by a person who either directly or obliquely participated in the persecution and proscription of hard-working Ghanaian entrepreneurs fatuously accused of unproven capitalist exploitation. In sum, the Tsikata case is the case of an avowed pseudo-socialist former Chief Executive of the Ghana(ian) National Petroleum Corporation (GNPC) who illegally put his two kleptocratic hands in the proverbial cookie jar. And we would be arrant fools of the century, if Ghanaians allow such a reprobate to get away with his high crimes and misdemeanors.
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