This is the first time in my life as a constitutional law scholar and lawyer, trained in the Anglo-American legal tradition, that I am learning that in order to be allowed permission to file an amicus curiae brief, one must be “neutral” or disinterested in the case in question.
This is the exact opposite of everything I know about amicus briefs. Typically, one who is not otherwise a party to a case before an appellate or apex court must demonstrate a strong “interest” in the matter in order to be allowed the opportunity to submit an amicus brief. Why would a person who is disinterested or neutral even bother to file an amicus brief?
Especially in Ghana, where Article 2 of the Constitution entitles any citizen, natural or artificial, to bring a constitutional case before the Supreme Court without having to show personal grievance or special interest, the idea that, once a certain party has already brought a matter, the outcome of which binds all citizens equally, no other person may file an amicus in the matter unless they are “neutral” (whatever that means) is simply illogical and, indeed, turns Article 2 on its head.
That means, any person with a lawyer can just race to the Court to file an article 2 case, essentially binding all of us (which is what a case with constitutional consequence means in effect), and, simply by being first to file that case, essentially prevent all other equally interested (and affected) citizens from submitting an amicus brief in the same matter.
“Another member of the panel Justice Baffoe Bonnie said the court was well aware of what the CSOs had been up to and is quite aware of their position on the matter.
He said the processes filed shows they are not coming to assist the court with any new information useful to concluding the matter but rather coming to support a side.
He remarked, “you are not neutral”, adding that they would have better served their interests if they had joined the party in the case they were actually supporting.”
The writer, Prof. H Kwesi Prempeh is a Legal Practitioner and Executive Director of the Centre for Democratic Development, Ghana (CDD–Ghana)