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THE KENYA SUPREME COURT HAS SHOWN COMMENDABLE SPEED by CAMERON DUODUIT is amazing that coincidence sometimes succeeds brilliantly in placing into conjunction, two or more events that should, in the normal course of events, not be connected at all.
The coincidence that has currently caught my attention is this: both Kenya and Ghana have been gripped in recent days by a mania that might be called “Supreme Court Watch”. For in both countries, a crucial election has led to petitions being sent to the Supreme Court for the Court to determine whether the presidential candidate who was declared the winner by the country’s Electoral Commission, did in fact win the election by the fair means prescribed by law. That is not the only connection between the Ghana Supreme Court and the Kenya Supreme Court. Another coincidental connection is that they have both have had, as their head, the same man – a Ghanaian judge called Fred Kwasi Apaloo! Mr Justice Apaloo was Chief Justice of Ghana from 1977 until 1986. When he left the Ghana judicial service, he was appointed Chief Justice of Kenya.
Now, this was a great honour indeed, because before him, all the Chief Justices of Kenya but one had been of British extraction. In fact, when Apaloo left Kenya, he was replaced not with a Kenyan but ANOTHER judge of British extraction. Which means that the Kenyans trusted a Ghanaian’s abilities as much as they trusted those of the British judge. For the Kenyans, it was quite an important demnstration of faith.
(Of coarse, in Ghana, Apaloo’s standing was no new thing; indeed hos appointment as CJ was hardly a novelty of any sort, the first Ghanaian to be appointed Chief Justice having been given the post even before Ghana’s independence in 1957. That Ghanaian was Sir Arku Korsah, who was appointed in 1956 — twenty-one years ahead of Apaloo!)
That is not the end of the Ghana-Kenya judicial nexus. In September 2011, the Kenya National Assembly considered and approved the nomination of the current Chief Justice of Ghana, Mrs. Justice Georgina T. Wood, by President Mwai Kibaki as one of the three distinguished non-Kenyan Superior Court Judges in the Commonwealth, to be appointed members of the Judges and Magistrates Vetting Board of Kenya.
A press release announcing Mrs Wood’s appointment in Kenya noted that “the Hon. Lady Chief Justice’s nomination is a further recognition of the international esteem she has brought to her position since her appointment in 2007. The two other non- citizens on the nine-member Board are [the] UK’s Former Lord Justice of Appeal, Sir Stephen Sedley and [a] Retired Judge of Quebec Court, [in Canada] Lois Otis. The function of the Board is to vet judges and magistrates in accordance with the Values and Principles set out in… the Kenyan Constitution”.
So it is quite within the realms of probability that Mrs Georgina Wood had a hand in selecting the judges who currently constitute the Supreme Court of Kenya. If that is the case, I humbly suggest to our Chief Justice that the appointees she helped to place on the Supreme Court of Kenya will be disappointed to find that although Ghana held her presidential election on 7-8 December 2012, while Kenya only held its own on 4 March 2013, (that is: Ghana held its election three solid months before Kenya held its own) the judges she helped to place on the Kenya Supreme Court have managed to discharge their duty in relation to the election petition arising from the Kenya election, whereas Ghana’s Supreme Court is yet to even bite into the gravamen of the election petition submitted to it.
Of course, I appreciate that the Kenya Constitution expressly provides that a petition arising out of the presidential election must be disposed of within a stated number of days, whereas Ghana’s prescient Constitution is abysmally silent on that issue (although it somehow manages to specify the number of days within which the petition must be filed to the Supreme Court.)
But the fact that the Ghana Constitution does not prescribe a deadline does not mean that our judges must not take what they know as “judicial notice” of the inordinate public interest that the case has aroused, and which, if brushed aside by the Bench, can create a very harmful cynicism within the body-politic. For the public, which funds the Supreme Court to be the final arbiter of constitutional issues that seriously affect the public weal, has a right to ask: ‘What is the point of delaying the adjudication of an election petition for so long that when judgement is eventually given, it is merely of academic interest, inasmuch as the person(s) whose petition has succeeded in the court cannot fully enjoy the reliefs he sought from his action’?
Ever since the Ghana election was held, I have, through in this column, sought to reassure my fellow countrymen that the verdict they delivered on 7-8 December 2013 was going to be actualized and that they should not be perturbed by the complicated legal processes involved. I even said in this column that it was all right for the Chief Justice to swear in Mr John Dramani Mahama as President, because her job obliged her to wear two hats – one as the Chief Justice who was obliged by the Constitution to swear in the President, and another as the Chief Justice who who would needs preside over the Supreme Court to adjudicate over petitions pertaining to the presidential election. The implied anomaly, in my view, did not quite arise because any Chief Justice worthy of the position was supposed to be made of sterner staff than that which can be bowled over by extraneous matters over and above the law written in black and white before him or her.
Because I hold this view, I was baffled when the Chief Justice constituted a Bench of the Supreme Court to hear the election petition without selecting herself to preside over it. If I was baffled that she did not sit on the Court, I was mystified that she did not find it necessary to explain the reasons why she was not on the highest court of the land when it was considering the most important issue the nation was facing. Her silence only led to speculation, including one I heard, namely, that she attends the same church as President Mahama. If that were adequate grounds for recusal, then it would have to be extended to include all Christians — because, of course, a church is only a microcosm of the Cristian religion!
I suggest humbly to the Chief Justice that there are times when discreet “public relations” ought to be carried out on behalf of the judiciary, with respect to matters that affect the public deeply and in which the whole of the judicial service stands to gain or lose as a result of what the public perceives to be happening. I don’t want to be theoretical about this because it is of such great importance. So I shall give a concrete, experiential example of what I am talking about.
In 1970, I was editor of the Daily Graphic when the administration of Prime Minister K A Busia dismissed 568 persons it said it did not want in the service, In what came to be known as the “Apollo 568” case, one of those affected, Mr E K Sallah, went to the Supreme Court to argue that the Government did not have the power to dismiss a civil servant against whom it had laid no valid charges. The case degenerated into one in which the Attorney-General of the country – no less – made an allegation in court that Sallah’s ‘relationship’ by marriage to a member of the Bench, meant that a biased judgement might be given in his favour. The case subsequently became charged with tension and it looked as if the Government of the day and the judiciary were on a collision course.
I was in my office at the Daily Graphic one day when I received a message that the Acting Chief Justice, Mr Samuel Azu Crabbe, wanted to see me. What? It was a most unusual occurrence.
I went to see Mr Justice Azu Crabbe. He welcomed me warmly and proceeded to tell me that he wanted it conveyed to the public me that the impression that had been created that the judiciary was in “confrontation” with the Government, was erroneous. He said that the judiciary were just doing their normal business in the way they knew best. As for ‘relationships’, he explained, they were bound to exist in human society — some close, some remote. It was all a matter of proportion. If a judge was closely related to a party in a case, he would, of course, voluntarily recuse himself.
Mr Azu Crabbe then told me, “Come to that, what about the Attorney-General himself, who is complaining? He could equally be said to be related by marriage to Mr X, who is involved in the case!”
I published the interview in the Daily Graphic under the headline: “CJ: We’ve no tiff with the Government”! People laughed at the ‘witty’ manner in which Mr Azu Crabbe had lanced “the boil” of controversy. And the interview completely defused the tension between the Government and the judiciary, with the result that the political situation in Ghana became relatively calm again. I highly commend Azu Crabbe for his ingenuity. He palled off a public relations coup by deciding to talk to me. Sometimes, a nation’s fate hangs on such small things — if they are handled with finesse and a large dose of common sense. By the way, I recommend to the Chief Justice to have the Supreme Court hearings in the election petition televised and broadcast– live on both television and radio. This is because only the Accra Sports Stadium would, in reality, be capable of accommodating all the people who might wish to follow the proceedings, whereas holding court sessions there would be totally impracticable. (After all, the number of voters who exercised their franchise in December 2013 was in excess of 10,000,000 and each of them could, theoretically, decide to go and see what the Ghana Supreme Court would do with the vote he or she cast!)
The Kenya Supreme Court satisfied public demand by having its sittings televised and broadcast on the radio. Indeed — irony of ironies — the Kenya Attorney-General is reported to have made an almost disparaging remark while comparing the handling of the Kenya election petition with that of Ghana. http://elections.peacefmonline.com/politics/201304/160064.phpMay one suggest, most respectfully, that our CJ takes a quick trip to her old stamping grounds in Nairobi and come back with a few ideas on how to handle our election petition too to the greater satisfaction of the Ghanaian public?
