Judicial Scandal “I put it to you, Conference, that the spirit of the nation is in despair.” Otumfuo

It is always a great pleasure to welcome the Bar to Kumasi. As Asantehene, it is a privilege to bid you a warm Akwaaba on behalf of Asanteman. Personally, I have deeply cherished the honor you bestowed on me years ago when you inducted me as an honorary member of the Association. I assure you that the feeling of being an honorary member of the Bar has been the driving force, enabling me to stand confidently before the bar of public opinion and to question the powers that be about the priorities of the nation. As I rise before this August Assembly of the Annual Conference of the Bar, today, I feel compelled to say: I put it to you, Conference, that the spirit of the nation is in despair.”

I do not think that anyone could have foreseen that this Conference would open under the cloud that has engulfed the judicial service and the entire system of justice in our nation. As you began preparations for this Conference, one felt there were many things to celebrate such as evidence of the increasing consolidation of the rule of law, and the continuing modernization of judicial service infrastructure. Yet here we are today, struck down by the tsunami of scandal that threatens to wash away the integrity of the entire judicial arm of government. I speak with the pain of a nation betrayed, and the anguish of a people ravaged, whose faith in their nation’s most cherished institutions now lie in crushed earth.

I cast my mind across the firmament and see the monuments of the great luminaries of Ghana’s legal history, Sir Arku Korsah, Sir Henley Coussey, Sir Leslie M’Carthy, Quarshie-Idun, Nii Amaa Ollennu, Edward Akuffo-Addo, Fred Apaloo and many more who, combining intellect and wisdom with over-arching integrity, built the formidable judicial system we so proudly inherited. How these great sons of Africa must be turning in their graves!

But our Lady Chief Justice, Your Excellency and Learned Ones, the King of a Warrior Kingdom does not submit to despair. So beyond all the pain and anguish, I come to you with faith and with hope. I come to you with faith in the ultimate goodness of our countrymen, faith in our capacity to rise from the ashes of despair. For a start, the world can be assured that the commitment of the nation to democracy is irreversible. That everyone is aware that the commitment however will be hollow without a robust, credible judicial arm.

So there is no way that this nation is going to allow the judiciary, the judicial arm of government or any of its institutions to wither away. Whatever it takes, however long it takes, all of us, chiefs and people, young and old, will rally together to salvage the integrity of the judiciary. We can neither afford any compromises nor risk throwing the baby with the bathwater. Even as the legal and administrative processes continue, the national interest requires us all to begin anew to clean the stables and rebuild the foundations for a stronger, indestructible transparent and morally upright judicial service.

I need to make clear at this point that the lesson of the moment is not for or about the judiciary or the system of justice delivery alone. Most importantly, it is a wakeup call for all and everyone in all the arms of government, in all public services and in the highest echelons of private business. Whether you are in the Executive, or the Legislature, in the police service, or the customs excise and preventive service, the warning bell is ringing aloud. Corruption is not a judicial disease. It is and has always been a national disease. So there must be in several areas of public life where several hearts are pounding and pondering: where next?

There is a beautiful passage in the Book of Samuel where the Prophet is asked what will be the sign of the coming of the end. He responded: “As it was in the days before Noah and the Ark, they were eating and drinking, marrying and giving in marriage and they knew not until the floods came and took them all away. So shall be sign of the coming of the end”.

I commend this passage to all in the depths of compromise within the arms of government, to all whose hearts are aflutter from fears of the next episode, and I do so with a message. REPENT!! REPENT, lest the floods come to sweep us all away.

This Conference should mark the beginning of the process of rebuilding and renewal. As I have already alluded to, if you set aside this sad episode, this generation of Ghanaians are right to take pride in our democratic progression over the past two decades. Beyond the electoral achievements, we have grown in confidence that no more shall any individual or groups of individuals impose himself or themselves upon our nation as leaders but that we shall, at all times afford ourselves the right to choose our leaders, good or bad, and live with the consequences.

We have demonstrated also that our democratic progression is anchored upon the firm foundations of the Rule of Law which guarantees that, in his daily life, the citizens wants will be protected from arbitrary arrest and the capricious exercise of power by persons in authority.

I was pleased only a few days ago, to observe the further consolidation of the rule of law in a case that may not have attracted the same degree of attention but which, in my view, had profound consequences for the rule of law in Ghana. I refer to the case of the Ghanaian citizen who reportedly walked into a church where the President is known to worship with a gun and reportedly confessed that he had come to shoot the President because he felt the President had usurped the position which he, should have inherited on the death of former President Mills. Now, the declared intent of the man was obviously horrendous and the consequences of his intended act, if he had carried it out would have been catastrophic for the nation. So when he was arraigned before a Circuit Court, the judge wasted no time in thrusting him to jail for 10 years.

But then there was the small matter of due process. It is not for nothing that the Rule of Law provides for a due process by which guilt and innocence, right or wrong are determined. It is that process which guarantees equality before the law, the narrow path, if you like, along which all must pass to go to law. Remove the due process and, I submit, the Rule of Law becomes the Ruin of Law.

In this case, the due process would have required a thorough investigation into the state of mind of the person having regard to the strange, even weird nature of his alleged confession. The process further would have demanded that he received adequate legal representation, to ensure that, however grotesque his alleged crime, he received a fair trial before the law. This essential, immutable process was not availed to the accused. You know, and I know, of periods in our history when this would have been the end of the road for the accused, when no one would have dared raise a finger on behalf of anyone who expresses an intent to commit a crime against a sitting Head of State.

Happily in this case, there was an outcry followed by an appeal to the Court of Human Rights which quashed the patently unfair imprisonment. Most significantly, even the state agreed with the central argument about the error of the trial judge and supported the demand for the sentence to be quashed, even if he differed on the appropriate superior court entitled to hear the appeal. The bottom line was that the rule of law and due process was affirmed, in contrast to what may have happened under earlier dispensations.

This is a monumental step forward in the consolidation of the Rule of Law and due process and I add my warm congratulations to the Bar especially the lawyers who took up the case, pro bono. Important as this result has been, the case should nonetheless remind us that the defense and protection of the Rule of Law demand eternal vigilance and perhaps this Conference could consider producing a Declaration committing the Association to intervene wherever and whenever they are threatened.

Mr. President, you who are The Learned Ones, tell us that in spite of all the awe in which we hold it, the law is an ass. I want however to contest this age-old assertion. My own take is that it is not the law which is an ass. It is rather the human actors within the legal system whose actions sometimes mimic the unfortunate mammal. As you begin the process of renewal, we should not forget the web of individual actors whose services impinge upon the legal process. You know how the sloppy investigator, and the over-exuberant law enforcement officer can so compromise the process that a patently guilty person may legitimately walk free from justice, just as an innocent person may find himself unjustly deprived of his freedom.

In all fields of human endeavour, we strive for improvements. In our closely knit global village, there are best practices to learn from, and heights of excellence to aim for. So there is really no excuse in today’s world, for a country to accept to be mired in mediocrity particularly in a field as crucial as the justice delivery system. Much of the lapses we live with are avoidable and should truly be unacceptable to us.

How is it possible for us to expect our police and security services to cope with the challenges of crime in this complex computer age with the methods and infrastructure fit for the 19th century? Our courts have made some progress in updating their infrastructure but there is still a lot to catch up on. We need to upgrade the training of our police and security services, in forensic sciences, and to equip them with the skills to deal with the challenges of cyber-crime and the many complex financial crimes resulting from the economic advances of our time.

You will permit me to address a matter of considerable concern to me about the provision of judicial service in your host city. You will recall that as part of the program for the decentralization of the Superior Courts, the Court of Appeal edifice in Kumasi was commissioned some eight years ago. Because of the immediate absence of residential accommodation, it was arranged for the appeals panel to sit in Kumasi for a full week every month.

Instead of moving towards a full residential panel, the panel still has to travel from Accra and now, the period of sitting has been scaled down to four days a week every other month. With respect, this is an area in which we are falling out of step with the expected rate of progress and I ask you to join me in a polite submission for progress to be made manifest here. It will be fair to take judicial notice of the fact that this is the nation’s second capital city in the region with the largest population density.

Inevitably, the caseload here is far greater than you would expect anywhere outside the national capital. The weight of attention it gets must be proportional to its size and the dimension of the problems it faces. Recognising the problem of resource allocation, I have had discussions with the Regional Administration on how we may work together to make available to the Judicial Service, residential accommodation suitable for Justices of the Top level of the Superior courts so we can progress to the stage of having a permanent Appeal Court panel based in Kumasi. In the meantime, I will strongly submit that the service be restored to the initial level.

Mr. President, for all the travails of the moment, you and the law remain the bulwarks of our democratic progression. The politicians may be the prime beneficiaries of this progression but the process belongs very much within the ambit of the law. For a start, although constitutions derive from the mix of social, philosophical and political thought, and the value systems of society, it lies within the bosom of the law how they are shaped and framed. How we interpret, guide and defend the constitution are matters for the law. We need not go too far back into our history to note the leading roles played by lawyers in our constitutional development– from His Lordship Justice Henley Coussey who gave us our first Constitution to our present 1992 constitution in which my own paramount chief of Asokore, Nana Susubiribi Krobea Asante, played a leading role.

Apart from the direct involvement in the framing of the constitutions, learned men at the bar have always been active in spearheading reforms. Unfortunately, Mr. President, I detect a certain loss of focus, a lowering of ambition if you like, at the Bar for current constitutional and related matters. I would have thought that the Bar Association would lead the way in the debate on possible constitutional reforms but all I have heard is silence at the Bar.

Similarly, the Bar has been unusually silent over contentious issues concerning preparations for the next Presidential and general elections.

Mr. President, I suggest to you that the forthcoming elections could be the most challenging in our constitutional development. After the landmark legal tussle which followed the last elections, the world will expect that all the lessons have been learnt, all the loopholes have been identified and we should therefore have a reasonably error free, truly free and fair poll. For good measure, this will be the first election since the restoration of democracy to be conducted under a new Electoral Commissioner. I am sure everybody in the legal profession has felt honoured by the choice of a product of the profession as the new Electoral Commissioner. I believe you rejoice in the fact that the legal profession has set a new historical mark in Africa, probably in the world, by giving us three women of distinction to oversee the delivery of justice as well as the administration of the electoral system which guarantees the sustenance of our democratic process, the Chief Justice, the Attorney General and now the Electoral Commissioner.

Like the Chief Justice, the new Chair of the Electoral Commission needs all the support necessary in the difficult task she has inherited. That support must start with an objective, reasoned analysis of the lessons learnt from the past and how best to proceed, going forward. Already, pertinent issues are on the table. Politicians have taken their positions, undoubtedly each influenced by perceptions of party interest. In the face of the conflicting arguments, the nation looks to a body like the Bar Association to be able to offer counsel devoid of the consideration of party interests. Indeed I consider it an obligation on your part to pronounce on this from the perspective of professionals who have a stake in protecting the integrity of our electoral system and the survival of democracy.. I know that cost continues, as it always must be, to be a factor in our consideration of such matters but I dare suggest that this is so fundamental for the protection of our democracy, and ultimately the country’s peace of mind, that cost should not be a stumbling block in pursuing what is best and desirable. I know how concerned our friends in the international community are about the sustenance of democracy through elections that are credible and I have no doubt they will find it of greater value to help fund a credible process that delivers a fair and just result than to pay for the unpredictable consequences of flawed elections. So we should ask ourselves now: is our electoral register tainted? If it is, how best can we clean it to give the register credibility? If we are seeking the ultimate fairness, we must seek first the ultimate credibility. This Conference should kick-start the process and I have no doubt the national interest will be better served for it.

The big challenge before you is whether you can do this faithfully and truthfully without regard to any party considerations. This, Mr. President, is the challenge of our time, the challenge of conscience, and of professional integrity.

Mr. President, nobody pretends that lawyers can be divorced from politics. Law and politics are inseparable Siamese twins. In our history, the law has provided most leaders of social and political thought. Of our celebrated Big Six, no less than five were lawyers. So we do not conceive of any political dispensation without lawyers. But there is a line between the political good of the country and slavish attachment to political parties. That is the nub of the problem

afflicting the law today with the overweening and pervasive influence of political parties upon the citizenry. If you do not mind me saying so, we are going through a period in which political parties have been built up into machineries of incredible monstrosity, seeking to manipulate and control our minds as in an Orwellian society. There is no longer right and wrong. There is only the party interest. If there is any difference with the party line of the one party state, it is only that we have two party lines, each of which demands absolute obedience. This two-headed monster is not fit for the purpose of a thriving democracy and yet it has free reign because it seems too many of us, in the Bar and in other professions, have offered their professional integrity as hostage to fortune, to the lure of public office and the droppings from the table of powers that be. I cannot wait to see the end to this tragedy.

Good men and women at law should never feel the need to grovel at the feet of politicians for the favour of political appointments. They must be sought because the nation needs their expertise, their skills and their intellect. Much of the sloppy half-baked legal advice handed down to policy-makers are the products of self-interest, couched to please political masters than to conform to the requirements of the law. From this podium in the city of Kumasi, I urge you, members of the Bar, to consign all that to the past.

Every epoch in history throws up its challenges and brings forth its heroes. Let us begin a new epoch. The challenges are before you. Who will be the heroes who will step forward, stand up for the profession, uphold its integrity regardless of the consequences, and have the courage to say: We have truly served the national interest. The Register is open today. Next time we meet in Kumasi, I hope we will have a glorious list of new heroes of conscience to cheer and celebrate.

Thank you and may you have another Successful Conference.

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