Yesterday, the Deputy Attorney-General granted a media interview after a Supreme Court hearing in the case involving Mr Alfred Woyome and the Attorney-General. In the interview, the Deputy Attorney-General told the world that the Supreme Court of Ghana had ruled that it does not recognise the African Court on Human and People’s Court (ACtHPR). He even went further to offer several grounds of justification for the alleged Supreme Court ruling.
As it turned out later, the Deputy Attorney-General’s claim appears to be inconsistent with what actually happened in the Supreme Court during the hearing. Contrary to his claim, the Supreme Court did not make such a ruling. In fact, we now know that the Supreme Court did not even consider the ACtHPR or its order, particularly, as the order was directed to the executive (not the Supreme Court).
First of all, I believe strongly that the views expressed by the Deputy Attorney-General on the subject does not represent the view of the government in which he serves. His view on the matter does not also reflect the long-standing position of Ghana in the comity of nations. As a matter of fact and law, the Supreme Court of Ghana could not possibly arrive at the decision attributed to it by the Deputy Attorney-General. Ordinarily, therefore, the Deputy Attorney-General could have been ignored entirely and the matter left to wither out naturally.
However, it would be harmful to ignore his pronouncement. This is why: Just as domestic law, international law, too, has its own sources of law. One of international law’s sources of law is treaty law – the agreement between states or international organisations. Another is ‘custom’. ‘Custom’ is constituted by those behaviours of States which, though not written formally as law, are considered as binding. One way of determining a State’s custom is to aggregate what some of that State’s public officials say (or do not say) publicly in their capacity as State officials. In other words, the Deputy Attorney-General’s public statement, yesterday, could be an index in determining Ghana’s position not just in respect of the ACtHPR, but also in respect of other international courts or tribunals.
Ghana often presents its citizens to serve in international organisations and tribunals. Of recent memory are Judge Akua Kuenyehia of the International Criminal Court (ICC), Justice Anthony Benin of the ECOWAS Court of Justice and Chief Justice, Sophia Akuffo, who has served a President of this very ACtHPR. Interestingly, we are currently presenting Prof Henrietta Mensah-Bonsu of University of Ghana to the ICC to be elected as Judge in a few weeks. From this, it is easy to guess, pretty accurately, the adverse effect that the Deputy Attorney-General’s statement stands to have on the calculation of Ghana’s customary law position on the recognition of these international tribunals and, consequently, on the acceptability of our future candidates (which, of course, may in the future even include the Deputy Attorney-General himself) for such positions.
The international law and relations field has become more competitive than ever; so much so that Britain has, for the first time in over 7 decades, lost its seat on the International Court of Justice to its former colony – India. While India’s efforts cannot be ignored, experts have named Britain’s inward-looking Brexit policy as a factor in the historic loss. International respect, reputation and recognition no longer come easily, if they ever did. Nations, in a bid to be relevant and competitive, are becoming increasingly open and integrated than ever. Openness also means a deliberate effort by State officials, big and small, to be outward-looking (rather than inward-looking). All this requires lawyers, judges and public officials of the local polity to have a broader (rather than narrower) view of their national constitution and its workings. Ghana, the first country South of the Sahara to join the international world; the lead proponent of an African continental central government; and a trending beacon of hope for Africa in the outer world, cannot afford to be inward-looking at a time when outward-looking matters most.
Because of the enormous advantages that come with outward-looking and the concomitant disadvantages that come with inward-looking, it would not be a great idea for our authorities to ignore the statement made by the Deputy Attorney-General on their behalf as if it never happened. They should denounce (if not condemn) it; and reinstate Ghana’s long-standing position on its relationship with international tribunals, particular the ACtHPR. Truly, it would be most appropriate for the Attorney-General, together with the Foreign Affairs Minister and, perhaps, the office of the President, to utilise the earliest opportunity available to unequivocally reinstating our position on the subject to the international community.
By Justice Srem-Sai, Lecturer, Faculty of Law, GIMPA.
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