It appears whiles freedom fighters like Aung San Suu Kyi are calling for the judiciary, as an institution, to be “strengthened and released from political interference”, our courts in Ghana find it ok to park the wheels of justice on the compounds of the legislature, expecting to be towed out off there at the pleasure of the executive.

If ever there was a farcical case that the Supreme Court was ever called upon to exercise its constitutional powers in order to assert the independence of the judiciary in line with the doctrine of the separation of powers, and stay off any undue reach of the hands of the other two arms of government to frustrate the administration of justice, then the Bernard Mornah case was it.

The General Secretary of the People’s National Convention, and known sympathizer of the National Democrat Congress, Bernard Anbataayela Mornah, challenged aspects of the Supreme Court rules on presidential election petitions, a move clearly motivated by the decision by the presidential candidate, vice presidential candidate and the chairman of the New Patriotic Party to challenge at the Supreme Court the validity of the results of the December 2012 presidential poll.

Rule 69C(5) of the Supreme Court (Amendment) Rules, 2012, (CI 74), which has been held unconstitutional, read: “The Court shall sit from day to day, including public holidays”, when hearing a presidential election petition. This provision was there to facilitate a vital element in the administration of legal challenges to a presidential election: expeditious disposal of the case. Indeed, I submit that this provision was in line with the Constitution and ought to have been so upheld.

Indeed, the people involved and the circumstances surrounding the writ which successfully challenged aspects of CI 74 should have even put the court on notice and made it more alert to its responsibilities of protecting its independence and upholding the doctrine of separation of powers.

First, the suit was filed two days after the election petition against John Mahama was filed. The lawyer who filed the writ on behalf of the plaintiff was Raymond Atuguba, who shortly afterwards was appointed the Executive Secretary to the man whose presidency was being challenged, handing over the brief to an NDC MP and later nominee for Deputy Minister of Interior.

Their case was that the courts should not open for business on a public holiday until the President issues an Executive Instrument (EI) permitting it. Adding to this litigation farce was the fact that the defendant in the case was the President’s legal adviser, the Attorney-General.

Knowing very well that, in effect, the President’s lawyer, the A-G, was being asked to defend a case brought by agents of the President, Godfred Yeboah Dame, a lawyer, who also happens to be one of the lawyers for the 3 petitioners challenging the validity of the 2012 presidential election, appeared in court in the Mornah case in the hope of acting as an amicus curia (a friend of the court), to make legal arguments supporting the position that the writ should fail. But he was not allowed to be heard.
Essentially, the Supreme Court has ruled that the Public Holidays Act, 2001 (Act 601), provides that the courts of law may not open for business unless the President issues an Executive Instrument permitting it. My question is, will President Mahama now grant such permission?

The writ also asked the court to declare as unconstitutional the provision in CI 74 that there shall be no review to the decision of the Supreme Court in a presidential election petition. Let me restrict my arguments here to the public holiday issue and the weight of a CI as against an Act of Parliament.

Article 11 of the 1992 Constitution states that the laws of Ghana shall comprise the Constitution; enactments made by or under the authority of the Parliament established by the Constitution [or legislation]; any Orders, Rules and Regulations made by any person or authority under a power conferred by this Constitution [or subsidiary or subordinate legislation]; the existing law or the written and unwritten laws of Ghana that existed immediately before the coming into force of the 1992 Constitution; and the common law.

The Constitution defines a Constitutional Instrument as “an instrument made under a power by this Constitution.” CIs are different from Statutory Instruments or Executive Instruments. Statutory Instruments must come from a parent law, which must be an Act of Parliament. Executive Instruments emanate from executive powers, which the Constitution has conferred on the President.

Constitutional Instruments, on the other hand, draw their powers directly and exclusively from the Constitution. In effect, they have only one check on them, that they must not contravene the Constitution and that they must be so expressly directed by the Constitution.

Parliament has a role in the passage of a CI since it only becomes law after it is laid before the legislature, which has the power to annul a CI by two-thirds of all its members within 21 days of it being laid. Where there is conflict between an Act of Parliament and a Constitutional Instrument, the court must never be in a haste to shoot down the CI. Their first duty is to see if any of the two conflicting laws contravenes the Constitution. But, where the CI in controversy is purposely for the administration of the third arm of government, the judiciary, and it is not unconstitutional, I submit that it is not the duty of the court to succumb to any seemingly contrasting Act of Parliament, especially when that seeming conflict poses no particular threat to the intention of the framers of the said Act.

In other words, allowing the Supreme Court to sit on Pubic Holidays in hearing an election petition causes no real injury to Act 601. What it rather does is to facilitate the administration of justice, particularly in a matter like a presidential election petition that affects the very foundation and expression of our nation’s democratic arrangement through the control and exercise of executive power; the very arrangement which supports the Constitution and, which in turn, comes from the Constitution.
Article 64 states, “The Rules of Court Committee shall, by constitutional instrument, make rules of court for the practice and procedure for petitions to the Supreme Court challenging the election of a President.”

The spirit and letter of CI 74 are about expeditious trial. That consideration far outweighs the exclusion, whether intended or otherwise, of the judiciary by the drafters of Act 601 in the category of “essential public services”.

We should ask ourselves this commonsensical question: does it make sense for the Supreme Court to restrict itself from undertaking its critical judicial role in election petitions because of Act 601, when that same Public Holidays Act says beer bars are free to operate on public holidays? Are we putting the right to daily consumption of apketeshie (hard liquor) before the expeditious hearing of a petition questioning the validity of the holder of the executive powers of the state?

Are we saying that in practice, the judiciary cannot operate on public holidays because Parliament says so? Should the doors of the court stay shut if they are needed to protect the rights of citizens against an arbitrary use of executive powers because we are celebrating Founder’s Day? So what happens where the liberty of a prisoner on remand custody is in question on such a day?

Is the Supreme Court saying that where the police have kept a crime suspect for 24 hours and needs a court order to extend the detention of the prisoner to allow the police to complete its investigation, the fundamental human rights of that citizen (enshrined in the Constitution) must be breached because the President says the judiciary cannot operate on that day? As against the express provision of Article 33 (Protection of Rights by the Courts), does this decision mean that the High Court cannot issue an order, for example, in the nature of habeas corpus to enforce or secure the enforcement of a prisoner’s fundamental human rights and freedoms?

What the highest court of the land did on Tuesday, 31st April, 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! Ironically, all the facts before the court ought to have made it obvious to the justices that the kind of judicial issue before them went to the heart of protecting itself against undue legislative or executive intervention.

US Supreme Court justice Sandra Day O’Conner noted that the framers of America’s Constitution “were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.” Ghana’s Supreme Court must stop being cautious to the point of timidity in protecting our democracy. A critical function of the doctrine of separation of powers is a prohibition against legislative or executive encroachment. In this case, the court simply opened its doors for both the executive and the legislature to piss-in. This decision amounts to a dangerous capitulation, which has compromised the institutional independence of the bastion of our liberty, the judiciary.

It must be remedied.

The views of H Kwasi Prempeh on this matter expose how quickly the Supreme Court was to capitulate to executive powers in this regard. He writes, “Merely because a Rule of the Court clashes with an Act of Parliament does not make the Rule of Court unconstitutional. Rule 69C(5) becomes unconstitutional ONLY IF the subject-matter it purports to regulate or determine (i.e., the days the Supreme Court may or may not sit) is constitutionally reserved exclusively for Parliament and/or the Executive–that is, only if the Public Holidays Act is constitutionally rooted and Rule 69(C)(5) is not. I do not think the Constitution should be read, in this case, to confer such power exclusively on Parliament or the Executive, insofar as it pertains to the Judiciary.”

This is a very worrying sign of a judiciary that appears to be not ready for a worthy fight to protect its constitutional space and when that happens, the foundation of our freedoms and democracy becomes shaky.

Sir Edward Coke, England’s Chief Justice under King James I in the Case of Commendams (1616), upheld the challenge of the king’s right to grant commendams to ecclesiastical officeholders. (Commendam is a royal decree that allows an ecclesiastical officeholder, like a Bishop, to be appointed to another ecclesiastical office). The king ordered the judges to cease the trial because his decision was legal and final. Sir Edward Coke, nevertheless, held firm, stating that his oath of office compelled him to continue the proceeding, and that he would do “that should be Fit for a Judge to do.”

As one commentator puts it, Chief Justice Coke stood in defiance of an extremely intrusive and belligerent executive, thereby establishing the framework for judicial independence in England. The stability and growth of our democracy and the welfare of the people will not be helped by a judiciary that operates in a decidedly subordinate character.

The author is a barrister and the executive director of the Danquah Institute, a policy think tank in Accra.