.... What Gabby Didn’t Really Say!

I read with shock and trepidation the piece written by Gabby Asare-Otchere Darko, a Lawyer and the Executive Director of the Danquah Institute which was published on myjoyonline.com on May 2, 2013 (Supreme Court shows its timidity in Mornah case). I was shocked to the marrow because such a piece, coming from a Lawyer who, to all intents and purposes, ought to know better will decide not only to write the way he wrote but also to unfairly criticize our revered Judiciary for doing their job. I read with trepidation because Gabby is gradually assuming a “notorious” posture in his writings in the sense that he feels he is the most knowledgeable person in Ghana.

What was the “crime” of the Supreme Court? A citizen of Ghana, Bernard Mornah who felt that a provision of the 1992 Constitution, and a Section of an Act of Parliament (the Holidays Act, Act 601) has been violated by a subsidiary or a subordinate legislation (a Constitutional Instrument C.I.74) proceeded to the Supreme Court for a declaration to that effect. According to Rule 71B of C.I.74 [The Supreme Court (Amendment) Rule, 2012], the decision of the Supreme Court in respect of a petition presented before it to challenge the election of a President cannot be reviewed. In other words, whatever the decision the nine Justices currently sitting on the election petition will come out with will be final. And this, according to Bernard Mornah is in conflict with Article 133(1) of the Constitution which provides that “The Supreme Court may review ANY (emphasis mine) decision made or given by it on such grounds and subject to such conditions as may be prescribed by rules of court.” Clearly, even from a layman’s perspective, there is a conflict between these two laws, and the 1992 Constitution in Article 1(2) provides that “This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.” The Supreme Court followed the law strictly and declared a portion of their own (notice that C.I.74 is a creation of the Judiciary) legislation to be void. How then will anybody turn to accuse the Supreme Court of timidity? …of who or what?

The second issue is that Rule 69C(5) of C.I.74, said “The Court shall sit from day to day, including public holidays.” This is also in clear violation of Act 601. For clarification sake please indulge me to state the entire Section 4 of Act 601:

‘Prohibition of Business on Public Holidays

(1) Subject to sections 1, 3 and 6 and subsection (2) of this section, a person shall not open a shop for the purposes of selling or trading or engage in a business on a public holiday.

(2) Subsection (1) does not apply to

(a) food or grocery shops;

(b) drug or pharmacy shops;

(c) licensed restaurants or hotels;

(d) local markets for sale of food or foodstuffs;

(e) premises licensed for sale of spirit, wine, and beer under the Liquor Licensing Act, 1970 (Act 331);

(f) the running of an essential public service specified in subsection (3) of this section.

(3) For the purposes of paragraph (f) of subsection (2), “essential public service” means any of the following

(a) water supply services;

(b) electricity supply services;

(c) health and hospital services;

(d) sanitary services;

(e) air traffic and civil aviation control services;

(f) meteorological services;

(g) fire services;

(h) air transport services;

(i) supply and distribution of fuel, petrol, power and light;

(j) telecommunications services;

(k) public transport services.’

Again, clearly the delivery of justice is not seen as an “essential public service” by our laws, and until we amend our laws to reflect that the status quo still remains! Constitutional Instrument 74 is subordinate to an Act of Parliament, and to the extent that it contradict a provision of an Act of Parliament shall be void. So for Gabby to say that the declaration by the Supreme Court “was to submit, without a fight, to a legislative invasion of its space, with the worst form of excuse that only the President can protect the courts from this kind of invasion” is most highly unfair and unfortunate. The Supreme Court, strictly speaking, does not make laws. Their responsibility is to interpret our laws, and like all of us to protect the Constitution of the land. This very declaration by the Supreme Court in the Mornah Case, to me, is unambiguous and straightforward. And one would have thought that even if the Supreme Court will show timidity it will certainly not be in a case like this.

Indeed what I think Gabby sought to do, rather than proffering his views on the declaration by the Supreme Court is to exert unnecessary pressure on the Supreme Court, and perhaps as a strategy to put the Supreme Court on its toes in the run up to giving its judgment in the Presidential election petition. Notice that Mr Gabby has a vested interest in the election petition case and he sees any outcome other than his expectations to be “an invasion” of the Supreme Court. This is what Gabby didn’t say in his piece, and this is what I think he really wanted to put across. His legal analysis in the piece is wrong. It is not what Gabby thinks is law should be the law. His partisan political analysis disguised as a legal analysis from a lawyer is most distasteful at best.

We must all respect the views coming from the Supreme Court of the land even if we disagree with those views. And of course we can criticize those views which we find to be inconsistent with our laws. But to criticize the Supreme Court and call them names just because of your parochial partisan political interest is highly unfortunate!

Mahmoud Jajah is a law student at the MountCrest University College in Accra. He can be reached at mails@mahmoudjajah.com and at www.mahmoudjajah.com