In a recent article, I wrote on the theme “Judiciary is not above Criticism, CJ’s Petition to the General Legal Council has no legal basis”, I forcefully made the point as follows “His Lordship the Chief Justice must realize that his position is not a private one and he is equally subject to public accountability and criticism. Questioning the independence of the judiciary is an expression of an opinion which every Ghanaian retains the constitutional right so to do.”
I remarked further that “Justice emanates from the people and dispensed on their behalf by the Judiciary. Contrary to all assumptions that the Judiciary is infallible and beyond public constructive, academic and political criticism, it is rather apodictic that no human institution is inerrable. The constitutionally empowered citizens and not spectators have an indefeasible right to not only to question any judicial process but also how justice is dispensed.”
Fortified by the above convictions and given the sensitivity of the allegations of bribery against no mean a person than the Chief Justice, the 4th man in our governance structure, this surely must not be treated lightly. All lovers of Justice and anti-corruption crusaders and institutions such as the Office of Special Prosecutor (OSP), Commission on Human Rights and Administrative Justice (CHRAJ), Ghana Integrity Initiative (GII), Ghana Bar Association (GBA), the Parliament of Ghana and various Civil Society Organisations (CSOs) as well as the media must be bold to demand full investigation into this bribery allegation to ascertain its veracity.
My interest in this matter stems from the fact that the allegations rather goes to the root of the independence of the judiciary. Beyond the bribery scandal is the biggest question of whether or not the Supreme Court which is the highest Court of the land and indeed the entire judicial system is free from influences when deciding the rights of parties that appear before it.
Judicial Integrity and Independence Under International Law
The acceptable conduct of the judiciary and judicial officers is underpinned by not only local legislation but also international law. I have reviewed a few standards that should guide our approach in dealing with this matter.
International Standards on Judicial Conduct
At the international level, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights are key instruments in safeguarding rights. However, rights cannot be fully protected without the work of Judiciary functioning with integrity. The Universal Declaration of Human Rights identifies the principle that everyone is entitled in full equality to fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations of parties before it, as a fundamental one.
The International Covenant on Civil and Political Rights also guarantees that all persons shall be equal before the courts, and that in the determination of any rights and obligations in a suit at law, everyone shall be entitled, without undue delay, to fair and public hearing by a competent, independent and impartial tribunal established by law.
The Bangalore Principles of Judicial Conduct 2002
The Bangalore Draft Code of Judicial Conduct 2001 was adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague between 25th to 26th November 2002.
According to The Bangalore Principles of Judicial Conduct 2002, “Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects”.
In the application of the above Principle, it is provided as follows “A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.” This implies that a judge must not be influenced by any monetary consideration when determining the rights of parties. If that happens it must be a subject of investigation.
Basic Principles on the Independence of the Judiciary (1985)
These principles were made pursuant to the Charter of the United Nations and the Universal Declaration of Human Rights to establish circumstances under which justice can be achieved particularly for the protection and enforcement of human rights and fundamental freedoms. The ultimate goal was to find ways to guarantee the principles of equality before the law and fair hearing.
The 2nd Principle under Judicial independence provides as follows: “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.” Again this principle also reaffirms the position that a judge must not be influenced in anyway when performing his or her judicial function.
General Assembly Resolution on Integrity of the Judicial System
The Human Rights Council in its Twenty-fifth session Agenda on Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development, adopted the resolution by the Human Rights Council 25/4 on Integrity of the judicial system stressed that “the integrity of the judicial system, together with its independence and impartiality, is an essential prerequisite for the protection of human rights and fundamental freedoms, for upholding the rule of law and democracy and ensuring that there is no discrimination in the administration of justice.”
Judges Conduct Under the 1992 Constitution of Ghana
The Constitution provides in Article 125 that “Justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution”, and further provides that the citizens would participate in the administration of justice. In Article 125 (3) it is expressly provided that “the judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
It cannot be overemphasized that the Judiciary, being the 4th Organ of State plays a critical role in the governance of the state. The Constitution goes ahead to again provide in Article 125 (4) that “The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”
Code of Conduct for Judges and Magistrates
The Code of Conduct for Judges and Magistrates was adopted to “assist judges in carrying out their onerous responsibilities; support the independence, impartiality and unity of the judiciary, and establish and promote public trust and confidence towards the judiciary.”
RULE 1 of the CODE provides for Upholding the Integrity and Independence of the Judiciary. The provision is as follows “An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.”
RULE 2 provides for the Avoidance of Impropriety and the Appearance Of Impropriety in all of the Judge’s Activities. It provides that: “A judge shall respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” Rule 2 (B) provides that “ a judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge…”
RULE 7 further provides for Compliance With The Code Of Conduct and provides as follows “Anyone, whether or not a lawyer, who is an officer of the Judicial Service performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code” and “where a Judge commits a breach of any rule of this Code, he shall be sanctioned with reference to the gravity of the act or omission constituting the breach in accordance with the Judicial Service Regulations”
Anti-Corruption Action Plan for the Judiciary and Judicial Service (2017 – 2019)
In the introduction to the Anti-corruption plan of the Judiciary, it is remarked “Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life, and allows organized crime, terrorism, and other threats to human security to flourish. It hampers efforts to alleviate poverty, undermines political stability and economic growth and diminishes the country’s attractiveness for investment.’
Given this background, the Judiciary by itself has indicated that they do not treat allegations of corruption lightly.
The Anti-Corruption Action Plan of the Judiciary took into account the United Nations Convention Against Corruption, 2003, the African Union Convention on Preventing and Combating Corruption, 2003, and the ECOWAS Protocol on the Fight Against Corruption, adopted by Ghana in 2003 as a means of fashioning out ways of eliminating corruption from the Judicial Service.
One of the strategic objectives of the plan is to build public capacity to condemn and fight corruption and make its practice a high-risk, low-gain activity. Indeed to build public confidence means the need to take decisive steps to reassure the public that the Judiciary will do justice to all.
Analysis of Issues Raised by the Allegation
Issues emanating from the letter of Lawyer Kwasi Afrifa dated 8th July, 2021 in response to the 1st March 2021 Complaint of Ogyeadom Obranum Kwesi Atta VI to the Disciplinary Committee of the General Legal Council is as follows:
Brief Facts According to Lawyer Afrifa
In his letter dated 8th July, he stated “at the end of July 2020 the Petitioner informed me that friends of his who were highly and connected politically had taken him to see the Chief Justice who had agreed to help him win his case on condition that he drops my good self as the Lawyer handling the case for him and engage Akoto Ampaw (Esq) in my stead.
He further informed me that the Chief Justice had demanded a bribe of USD$5,000,000 for a successful outcome to his case and that he had already paid USD$500,000 to the Chief Justice. He further indicated that he was hard-pressed to raise the remainder of the USD$5,000,000 and so I should refund some of the GH¢300, 000 paid to me as fees because he had in line with the advice of the Chief Justice engaged Akoto Ampaw (Esq) as Solicitor to continue the case before the Supreme Court.”
The above narrative brings to the fore two main issues which are of serious public interest which if true would be one of the biggest judicial scandals in the history of the 4th Republic. These matters are:
1. That Lawyer Afrifa’s Client told him he was able to negotiate with the Chief Justice of the Republic of Ghana to accept a USD5,000,000 bribe in order for him to influence the outcome of the case at the apex court out of which he had already paid USD$500,000. This is very ridiculous and cannot be simply swept under the carpets.
2. That the Chief Justice contrary to the Code of Conduct of Judges counselled him to drop his lawyer Kwasi Afrifa and go for Akoto Ampaw (Esq) as condition for a successful outcome of his case.
It must be, however, placed on record that the said Ogyeadom Obranum Kwesi Atta VI on 11th July 2021 has issued a disclaimer in which he never met the Chief Justice nor ever bribed the Chief Justice.
Chief Justice Must Resign his Position as CJ or step aside as Chairman of the General Legal Council for Justice to Prevail
An allegation of this nature though not a direct allegation deserves all the necessary attention. The President of the Republic would have to pay serious attention to the allegation. For the public to continue to hold the judiciary and the high office of the Chief Justice in high esteem there is the need for some firm actions. By the application of law, the Chief Justice is the Chairman of the General Legal Council. This definitely would create serious doubt if he remains in the position whilst investigations into the allegations are done.
Section 1 of the Legal Professions Act, 1960 (Act 32) provides for the establishment of the General Legal Council and section (2) provides for the constitution of the Council. As set out in the First Schedule to this Act, the Chief Justice is the Chairman of the General Legal Council. It is trite law that one cannot be a judge in his own course. Being the one whose name has popped up in these proceedings, the Chief Justice must do the needful.
Justice we say must not just be done but must be seen to be done. There is no way the Disciplinary Committee of the General Legal Council will be impartial in their work when the Chairman remains at post. In any event, it is the Chief Justice as Chairman of the General Legal Council that will chair to approve the final decision of the Disciplinary Committee. That being the case, justice and fairness can only be done if the Chief Justice Steps aside.
Even if the allegation is false there must be independent investigation to ascertain the falsity of the allegation. Given the laws cited above, we can only ensure integrity of the judiciary if such allegations are taken seriously and dealt with. We cannot maintain public confidence in the judiciary when such serious allegations are swept under the carpet and no decisive steps taken against them.
Issues of Lawyer / Client Privileges and Right to Privacy
It is very likely that people may begin to make references to Lawyer/Client privilege information and right to privacy. It is important to note that the right to privacy is not an absolute one. Which the disclosure of the said information is necessary for the public interest and for prevention of crime, one cannot hide under right to privacy or privileged information. Article 18(2) of the Constitution provides as follows: “No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of the rights or freedoms of others”
Conclusion & Recommendation
This matter is a serious public interest matter and how we deal with it as a people will set a new standard for dealing with judicial corruption. If it were any other arm or organ of state, whether Parliament or the Executive, the matter would not die merely because the one who was alleged to have made those statements came to deny them. What would we expect? The person who is alleged to have made the bribery allegation still has a pending case at the Supreme Court.
The least he can do is to put in a disclaimer as he has done. But for anti-corruption watchers, the media, CSOs, Ghana Bar Association and all who care about the future of our judiciary, this must rather stimulate our curiosity. The Security agencies with the requisite expertise must be interested in investigating this matter to its logical conclusion. We can only unravel the truth if we investigate the matter.
Article 17 (1) provides that “all persons shall be equal before the law and Article 17(2) provides that “a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.”
From the above, I respectfully recommend the following:
1. A resignation of the Chief Justice or stepping aside as the Chairman of the General Council.
2. A full-scale investigation by the Office of Special Prosecutor. There must be investigation into the accounts, recent assets acquired by the CJ (if any), and an investigation into all financial transactions by the said Ogyeadom Obranum Kwesi Atta VI and receivables by the Chief Justice in the last one year.
3. EOCO must take steps to investigate potential proceeds of crime that could have been acquired by the Chief Justice.
4. CHRAJ should institute anti-corruption investigation into the activities of the Chief Justice.
5. Judicial Committee of Parliament must open a full-scale public hearing into the matter to bring back public confidence into the judiciary.
6. Police Protection for Lawyer Kwasi Afrifa until the final determination of the matter. This is because, given the nature of the accusation, the witness needs to be protected given the current state of insecurity in the country.
In conclusion, as deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Parliament, I wish to call on the President of the Republic, Office of Special Prosecutor and Coalition of CSOs, to officially request the CJ to step aside for an unbiased investigation to be conducted.
The writer, Hon. Francis-Xavier Sosu is a private legal practitioner, human rights lawyer, Member of Parliament for Madina Constituency, Member of Appointments Committee and Deputy Ranking Member of the Constitutional, Legal and Parliamentary Affairs Committee of Parliament. The writer can be contacted via: email@example.com
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