Malicious Allegation Against The Chief Justice

“You can be the ripest, juiciest peach (orange) in the world and there’s still going to be someone who hates peaches (orange”).

-Dita Von Tesse

SHALOM, SALAAM – peace be unto you dear reader. We humbly pray your indulgence to harmlessly break your literary peace with a rehash of the topical issue on Chief Justice, Kwasi Annin-Yeboah. For the umpteenth time, we seek to discuss the story, and ferret out the issues for academic analysis.

The unfolding drama was given birth to in an answer to a petition by a Chief, Nana Ogyeedom Obrenu Kwesi Atta VI in which his lawyer, Kwasi Afrifa hinted that his client had told him the Chief Justice had demanded a bribe of US$ 5m to ensure that justice was tilted to the client.

On 13th July, 2021, the General Secretary of the NDC, Johnson Asiedu Nketia argued that “good governance dictates that the Chief Justice steps aside during the pendency of the investigations by the Judicial Service… The Chief Justice cannot be a judge in his own cause…”

We know that one of the principles of natural justice is “Nemo judex in causa sua” (no one should be a judge in their own cause). The other one is “Audi alteram partem” (hear the other party). But this would apply if there was substance in the allegation. Who will be surprised at the posturing of the NDC? Hushed: the 2020 Presidential Election Petition! Kwamena Duncan calls this “menam na metete”.

The Alliance for Social Equity and Public Accountability (ASEPA) in an undated letter signed by the Executive Director Mensah Thompson petitioned the President to invoke provisions of Article 146 of the 1992 Constitution to commence impeachment proceedings against the Chief Justice: Article 146 (10) states: “Where a petition has been referred to a committee under this article, the President may (a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him to suspend the Chief Justice”. ASEPA had sent a similar petition to the CHRAJ.

Various people had commented on the allegation. Gary Nimako wondered why ASEPA would seek the removal of the Chief Justice on a whimsical ground of hearsay. He added: “Mensah Thompson must be very careful. It is a shame that he is trying to disgrace the court. How does he expect the Chief Justice to be removed from office based on hearsay? Does he think we are joking in this country?” Charles Wereko Brobbey, Chief Policy Analyst and one time CEO of the Volta River Authority (VRA) noted: “Their (NDC) call for a commission of enquiry allegations against the CJ, is just politics and must be dismissed. If the chief had come out to say that the CJ demanded the said amount from him, then this matter would have demanded more merit but as it is, it is hearsay, and it should be dismissed.”

As stated before, Section 117 of the Evidence Act (NRCD 323) says “Hearsay evidence is not admissible, except as otherwise provided by this Act or any other enactment or by the agreement of the parties”.

Kofi Bentil, the Deputy Director of IMANI noted: “This matter is an issue simply because a very reckless lawyer has mentioned the name of the CJ…This is a very small matter of you and your client… and you invite a huge problem… Anybody who knows our present CJ will have no doubt that this is a mere fabrication.

The President, as a seasoned lawyer, could have dismissed the allegation as frivolous, but he chose the constitutional path. Article 146 (6) of the 1992 Constitution states: “Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers”. The chairman of the Council of State, Nana Otuo Siriboe informed the President: “Today we are here specifically Mr. President to give you our response to a letter that we received from the Presidency under your hand. Mr. President, dated 26th of July, 2021… In line with the demands of the Constitution as enshrined under Article 144 (2), 122 (3) and in line with the decisions of the Supreme Court, Mr. President, we are obligated to determine whether a prima facie case had been made…

The President received the response from the Council of State in camera, and would have suspended the Chief Justice under Article 146 (10) but he dismissed the petition for producing “third hand or fourth-hand” hearsay as the basis for seeking to trigger the “serious process for the removal of a Chief Justice…”

The statement from the President further stated: “The petitioner fails to meet the threshold of proffering sufficiently strong evidence in support of his allegation for the opposite side to be called to answer to it”.

We do not think the case has gone to sleep. We are waiting to hear from the CID. What investigations? Count 1: Criminal libel? Section 113 of the Criminal Offences Act, 1960 (Act 29) states: “A person is guilty of libel, who, by print, writing, painting, effigy or by any means otherwise than solely by gestures, spoken words or other grounds, unlawfully publishes any defamatory matter concerning another person, either negligently or with intent to defame that other person”. Section 114 states “Matter is defamatory which imputes to a person any crime or misconduct in any public office or which is likely to injure him in his occupation, calling or office or to expose him to general hatred, contempt or ridicule”. Count 2: Defrauding by false pretences? Section 132 of the Criminal offences Act, 1960 Act 29 states: “A person is guilty of defrauding by false pretences if, by means of any false pretence, or by personation he obtains the consent of another person to part with or transfer the ownership of anything”. The case will be referred to the Attorney General for his comments. The complainant and the accused will submit statements; so will the witness, then the trial will start. Kwasi Afrifa is facing the General Legal Council on 9 charges “misconduct in a professional respect contrary to Rule 2, 6, 9, 52, 61, 89 of the Legal Profession (Professional Conduct and Etiquette Rules 2020 LI 2423). Lawyer Afrifa has naturally resorted to the courts to have the investigation quashed for GLC relying on repealed law (LI 613). This case should be a big lesson for all lawyers, judges and those within the precincts of the judiciary: be careful not to tear “our” institution apart, and not to destroy one arm of the government – The three arms of government go to the root of our democracy. Thus, Democracy hinges on separation of powers, the “trias politica” (legislature, executive and judiciary). Montesquieu argues that each should only exercise its own powers – for checks and balances. People like Allotey Jacobs can plead for Lawyer Afrifa. The CJ may decide to forgive Afrifa – on the civil action (defamation/ libel) but he should not interfere with the Police. Police must be independent. Institutions should work; the CJ ought not to interfere with the Police. Barack Obama’s edict: “not strong men, but strong institutions” is still relevant.

By Africanus Owusu-Ansah