Oppong Nkrumah challenges Chief Justice over ‘selective justice’

Ofoase-Ayirebi Member of Parliament Kojo Oppong Nkrumah has invoked the original jurisdiction of the Supreme Court to challenge the Chief Justice’s decision to direct selected judges to hear certain criminal cases during the legal vacation. According to a JoyNews report, the former Information Minister is asking the apex court to determine whether the arrangement, which gives priority to selected criminal cases while other matters remain pending, violates constitutional guarantees of equality before the law and the proper exercise of discretionary power. The case has been filed against the Chief Justice and the Attorney-General, with Mr Oppong Nkrumah relying on Articles 2(1) and 130(1) of the 1992 Constitution and Rule 45 of the Supreme Court Rules, 1996 (C.I. 16).

At the centre of the lawsuit is a challenge to directives issued by the Chief Justice requiring some judges to sit during the legal vacation to conduct trials in designated criminal cases. Mr Oppong Nkrumah contends that the selection and prioritisation of particular criminal cases for hearing during the vacation raises serious constitutional questions about equal treatment, access to justice and the exercise of administrative discretion. He is specifically asking the Supreme Court to determine whether the warrants issued by the Chief Justice directing particular judges to sit during the vacation are consistent with Articles 17(1) and (2), 23 and 296(a) and (b) of the Constitution. A central argument in the MP’s case is that giving priority to what are described as “special criminal cases” while leaving other criminal matters unattended could amount to unequal treatment.

He is therefore seeking a declaration that, if the practice has the effect alleged in his writ, it violates Article 17(1), which guarantees equality before the law. The challenge also places the Chief Justice’s discretionary powers under constitutional scrutiny. Article 296 requires discretionary power vested in public authorities to be exercised fairly, properly and without arbitrariness or bias. Mr Oppong Nkrumah wants the Supreme Court to determine whether the Chief Justice’s decision to select particular cases for vacation hearings satisfies those constitutional requirements. The MP has also raised concerns about the effect of vacation sittings on the health, safety and welfare of members of the Ghana Bar and the Judicial Service who are required to participate in the proceedings.

His argument is based on Articles 24(1) and (2) and 36(10) of the Constitution in asking the court to examine whether the directives are consistent with constitutional protections relating to satisfactory and safe working conditions and the welfare of workers. The case consequently extends beyond the question of whether courts are permitted to sit during the legal vacation. It seeks to establish whether the manner in which cases are selected for such sittings complies with constitutional standards. Mr Oppong Nkrumah is also challenging aspects of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

He wants the Supreme Court to declare Order 79 Rules 1(1) and 2, to the extent that they permit the Chief Justice to select cases for hearing during legal vacations in the same manner as ordinary court sittings, inconsistent with Articles 17(1), 17(2), 23, 24(1), 24(2), 36(10) and 296(a) and (b) of the Constitution. Should the Supreme Court uphold his interpretation, the affected provisions could be rendered unenforceable to the extent that they conflict with the Constitution. The MP is further asking the court to issue any additional orders or directions it considers necessary to give effect to its eventual declarations. Mr Oppong Nkrumah has brought the action in his capacities as a Ghanaian citizen, Member of Parliament and lawyer, underscoring the constitutional issues he says arise from the disputed directives.

The defendants have been directed to file their statements of case within 14 days after being served with the plaintiff’s case, inclusive of the day of service. The suit could have implications extending beyond the particular criminal cases currently affected by the vacation arrangements. A determination by the Supreme Court could clarify the scope of the Chief Justice’s administrative authority in organizing vacation sittings, particularly the extent to which particular cases may be Prioritized and the constitutional safeguards governing that discretion. It could also provide guidance on how the constitutional principle of equality before the law applies when the judiciary makes special arrangements to accelerate the hearing of selected criminal matters.

The legal vacation generally provides a period during which the regular activities of the superior courts are reduced, although existing rules allow for certain proceedings to be heard during the period. The MP’s challenge therefore does not principally seek to establish whether courts can sit during the vacation. Rather, it asks whether the criteria and manner used to select cases for such sittings comply with constitutional requirements of equality, fairness and lawful discretion. The claims contained in the writ remain the plaintiff’s arguments and have yet to be determined by the Supreme Court. The Chief Justice and the Attorney-General will have the opportunity to respond to the allegations and constitutional arguments in their respective statements of case.

By: Joyce Owusu