An attempt by five out of ten persons standing trial for their alleged involvement in a plot to overthrow the ruling New Patriotic Party (NPP) in a violent coup, to remove the three judges hearing the case has failed as the court has dismissed an application asking them to recuse themselves.
Victor Kojoga Adawudu, counsel for the accused persons had filed the application asking the three-member panel of Justices to recuse themselves from further hearing the case because they have all been promoted to the Court of Appeal and, therefore, have lost their right to preside over the matter as proscribed by the 1992 Constitution.
According to the applicants, the constitution demands that cases of treason or high treason ought to be tried at the High Court presided over by a panel of three High Court Justices, hence the elevation of the three Justices to the Court of Appeal disqualified them from further hearing the case.
The accused persons are before the court on charges of conspiracy to commit high treason, abetment of high treason, and a substantive charge of high treason.
Dr. Frederick Mac-Palm, Donya Kafui aka Ezor, Bright Allan Debrah Ofosu aka Bright Alan Yeboah or BB, Lance Corporal Ali Solomon, Lance Corporal Sylvester Akapewu, Lance Corporal Seidu Abubakar, WO II Esther Saan Dekuwine aka Mama Gee and Johannes Zikpi, a civilian employee with the Ghana Armed Forces, are facing two counts of conspiracy to commit high treason and high treason.
ACP Dr. Benjamin Agordzo and Col. Samuel Kojo Gameli on the other hand have been charged with two counts of abetment of high treason each.
A panel of three Justices made up of Justices Afia Serwah Asare-Botwe, Stephen Oppong and Hafisata Amaleboba, Justices of the High Court was empanelled to hear the case.
The three Justices were promoted to the Court of Appeal last year, but the Chief Justice pursuant to Article 139 of the Constitution authorised them to continue to sit as additional High Court Justices to deal with cases in their respective courts.
But the applicants averred that this authorisation blatantly violates the provisions of the constitution, as the three Justices do not have jurisdiction to preside over high treason cases.
“Articles 19(2)(i) and 139(2)(d) has provided a special remedy with jurisdiction attached to the particular Judges to preside over the cases of Treason and High Treason, and the Court is not duly constituted presently to preside over the matter as all the three Judges are Court of Appeal Judges who are sitting as Additional High Court Judges in blatant violation of the provisions as expressly provided in the 1992 Constitution,” their counsel argued while moving the motion.
Mr. Adawudu argued that the power conferred on the Chief Justice to request any Superior Court Judge to sit as an additional High Court Judge does not include cases of treason and high treason.
He also urged the court to refer the matter to the Supreme Court for interpretation as the High Court did not have jurisdiction to interpret the provisions of the 1992 Constitution.
The application was opposed by the Director of Public Prosecutions, Yvonne Atakora Obuobisa, who argued that Article 139 of the Constitution is so clear and carries no ambiguity that requires interpretation.
She said it is a fact that for the offence of high treason, three judges have been empanelled to hear the case, and the fact that the judges have been elevated as Court of Appeal Justices does not stop them from continuing to preside over the matter.
“Fortunately, counsel has attached warrant indicating that the Chief Justice has assigned my Lords to sit as additional High Court judges. This court is duly constituted and the fact that you have been elevated has not changed anything so far as you have been duly constituted,” Mrs. Obuobisa added.
The court, in its ruling, said the fact that counsel for the accused persons made mention of a constitutional provision does not mean that it ought to be referred to the Supreme Court for interpretation.
The court made references to a number of Court of Appeal and even Supreme Court Justices who are sitting as additional High Court judges.
The Justices described the application as having no merit and accordingly dismissed it.
BY Gibril Abdul Razak