Recently, Her Ladyship, The Chief Justice has been in the news for all the reasons that Ghanaians can think of. While some are patting her for positively exercising responsibility for the administration and supervision of the Judiciary as per Article 125(4) of the 1992 Constitution and also showering praises on her for ascending to such a high office and being a source of inspiration to our girl children, others are bemoaning what they perceive as her off-the-camera dealings with certain political interests much against her mandate as an impartial arbiter; not forgetting her "not too impressive" MV Benjamin investigations which invariably, saw all suspected persons get off the hook. Indeed, what has come up very strongly against her has been the electoral case which Lawyer Ata Akyea, on behalf of the New Patriotic Party (NPP), sought to place an injunction on at a certain time on the process of the 2008 elections. In fact, if Ata Akyea had succeeded with that suit and the Electoral Commission was compelled to comply with the orders of the court, the otherwise peaceful electoral process which Ghanaians had in 2008/9 and for which reason we have all carved a special niche for ourselves, could have been different and Ghanaians might have told a different tale. From the various "accusations" levelled against the Chief Justice, it appears that there are no suggestions to cushion any opinions that suggest that the Chief Justice is incompetent or that she does not possess the wherewithal to effectively exercise her role as such. What is not clear is the issue of her misbehaviour or ground of the call on her to resign or be forced to resign. At least, the famous case of Lawyer Bright Akwetey, which also sought to see her removed as the Chief Justice, did not suggest that there was any ground of inability to perform the functions of her office arising from infirmity of body or mind. And so what is her real "crime"? As indicated earlier, one of her "bias" was that, she caused a court to sit on a holiday to adjudicate on an electoral petition during the 2008 elections. The arguments against her were that, the move was surreptitiously done with her connivance to scuttle the victory of the National Democratic Congress (NDC) which at the time was very imminent. This writer will not hold brief for the Chief Justice regarding what her real intentions were at the time that she caused the ˆcourt to sit, but the question is: Does the Chief Justice have the mandate to so constitute a court at that time? To answer this question, it will be better for this writer to reproduce verbatim Order 79 of CI 47, the instrument which the Chief Justice used to set up this special court regarding its sittings, office hours and vacations. Days and hours of sittings 1. (1) Subject to the Courts Act, 1993 (Act 459) as amended, the Chief Justice may appoint any day including vacations for the hearing of causes or matters as circumstances require. (2) The sittings of the Court shall be for such hours as the Chief Justice shall direct Order of business 2. Subject to special arrangements for any particular day, the business of the day shall be taken as nearly as circumstances permit in the following order (a) at the commencement of the sitting, judgements shall be delivered in matters standing over for the purpose; (b) motions shall be taken in the order in which they stand in the motion list; and (c) the causes or matters on the cause list shall then be called on in their order unless the Court sees fit to vary the order. Office hours 3. (1) The offices of the Court shall, subject to subrule (2), be open to the public on every day of the year for such hours as (a) the period commencing on the Tuesday immediately following- Easter Monday in each year and ending on the Friday immediately following; (b) the period commencing on August 1, in each year and ending on September 30, in the year; and (c) the period Commencing on December 23 in each year and ending on January 6 in the next year. This writer will dwell on the highlighted/underlined expressions of this Order to explain what he understands as per the rules and the purposive interpretations that can be given to them. First, is the fact that under Order 79 Rule 1(1) the Chief Justice may appoint any day including vacations for the hearing of causes or matters as circumstances require. The second is that under Order 79 Rule 3(1) the offices of the Court shall, be open to to public on every day of the year for such hours as the Chief Justice shall direct. The third point under Order 79 Rule 3(2) is that except as otherwise directed by the Chief Justice, the offices of the Court shall be closed on Saturdays, Sundays and public holidays. If one should dwell a bit on Order 79 Rule 3(2), the operative word over there is "except". The preposition "except" is used to introduce the only thing or a person that a statement does not apply to, or fact that prevents a statement from being completely true. What order 79 Rule 3(2) seeks to say is that If the Chief Justice does not direct that the offices of the Court shall not be closed on Saturdays, Sundays and public holidays, then they should remain closed on those days and occasions. However, if she directs that the court offices should be opened on those days, then they should be complied with and definitely so. This is a mandate that lies fully at the behest of the Chief Justice and she can so exercise. Therefore, as a matter of law, the Chief Justice can never be faulted in this regard. In fact, Order 79 Rule 1(1) is crystal clear when it says the Chief Justice may appoint "any day" including vacations for the hearing of causes or matters as circumstances require. Again the operative, phrase here is "any day" and this includes vacations, Saturdays, Sundays and of course a statutory public holiday. In fact, this writer is delighted that the issue of "public holidays" has been well settled in Order 130(1) of the District Court Rules, 2009 CI 59. We will, henceforth, not have much problems with the issue of the public holidays. It is, believed that this clearer addition was provided to ensure the avoidance of doubt regarding the public holidays. Of course, this was not hitherto very clear in Order 79 of CI 47. Gleaned from the laws, however, it can be said without any fear of contradiction that the Chief Justice had the law fully behind her when she took the decision to allow a court to sit on the “Ata Akyea” day in question. What has come up, however" is whether the law, even though appropriate in its use, was used to further a certain parochial interest. Was it that the Chief Justice and Ata Akyea took advantage of the law which they found to be safely on their side to possibly wreck havoc on the peace-loving Ghanaian? Proving this, at times, comes as a tall order, However, many are those who have, talked about the extended connubial relationship between the Chief Justice and Lawyer Ata Akyea, Lawyer Ata Akyea is said to be married to the younger sister, of the Chief Justice and so many could smell that there could be "something in the soup" common to the interests of the Chief Justice and Ata Akyea and that the two wanted, to ride behind the law to prosecute this agenda. Secret Recording There is also a supposed secret recording in which Lawyer Ata Akyea is said to have mentioned that he thought that the judge who was appointed by the Chief Justice and who sat on his election case was sympathetic to the NPP, but that the said thinking turned out to be wrong as the judge did not do the NPP's bidding. Why did Lawyer Ata Akyea think that way? What made Ata Akyea think that the Chief Justice will choose an NPP sympathiser of a judge and not that of NDC? Has the Chief Justice ever shown by any stretch of Ata Akyea's imagination that she is sympathetic to the NPP or at worst a member of the NPP and for which reason she will help the NPP by appointing a judge sympathetic to their course? Indeed, with the Chief Justice being his sister-in-law, such an utterance, if it was indeed made, was quite irresponsible, and puts the Chief Justice on the hot front burner of very scathing criticism and that indeed, could make her lose her job. To date, Ata Akyea has not undertaken any process to extricate himself from these horrid accusations. The Chief Justice has not adequately debunked this assertion of Ata Akyea either. And so Ata Akyea, by his association with the Chief Justice, and by whichever way, is painting The Chief Justice in a very terrible bad light. Again, that utterance, if true, casts a very huge slur on the Judiciary with the thinking that judges are chosen to preside on certain cases with some expected verdicts in mind. As said, if this averment of Ata Akyea is true, then there is the need to give this arm of government a non red fluid cat-cleansing with the Chief Justice given that task to so do and with utmost dispatch if she does not want to go into the mire with those "hoodlum justices". For those who think the Chief justice has done something untoward and for which reasons she must be removed, this writer does not believe that the crass incitements against her person and not going by the appropriate processes will help anyone. In fact, if we end up throwing so much "unjustified and untested" mud at the highest person of the Judiciary, we will end up sacrificing our own peaceful and tranquil lives for such careless talks and actions. If she is bad, she must go, "but if she is not, what is she being portrayed? We must all ensure that we put a stop to" this! It is said that a certain Reverend Minister has started a process to cause the removal of the Chief Justice. Let’s all wait and see how it pans out. As for the judicial service, it has been terribly disappointing in taking Ghanaians out of the present political maze against the judiciary. How do they expect anyone to give them any intelligent answer to the concerns it raised when it said as per their press release "Up to this present day, that ruling has not been appealed against, neither has the constitutionality or legality of the actions taken by the CJ, the judge or registrar been, challenged in any court of law." Who do they expect to challenge the constitutionality or legality of the actions taken by the CJ, the judge or registrar? That is a very moot point. The NDC, if had lost as a result of this court process, could have recoursed to this option, but invariably, this particular process did them no, harm. Indeed, the one who should press this further should be Ata Akyea. He has a process before a court which he thinks is well constituted and so he could still press on. Why has he abandoned it? So you see, this stance of the Judicial Service is not in the least helpful. It was thought that they will come out clearer as regards the Chief Justice having nothing to do with Ata Akyea's averment instead of being unduly and legally confrontational. Regarding the removal or otherwise of the Chief Justice by the President, there has been many opinions expressed with some people saying that under the concept of the separation of power, the President cannot do so. Respectfully, if we could all advert our minds to article 146 of the 1992 Constitution, and after reading it, that argument would be settled once and for all. The said article is hereby reproduced verbatim. (1) A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind. (2) A Justice of the Superior Court Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article. (3) If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case. (4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State. (5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President. (6) 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. (7) The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office. (8) All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice. (9) The President shall, in each case, act in accordance with the recommendations of the committee. (10) 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, suspend the Chief Justice; (b) in the case of any other Justice of a Superior court or of Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council suspend that Justice or that Chairman of a Regional Tribunal. (11) The President may, at any time, revoke a suspension under this article. Paragraphs 6 to 11 lay bare the process for such removal if required. In an earlier such petition, there was a much talked about issue of prima facie being made against the Chief Justice before the President can undertake any process of having her removed or otherwise. Some lawyers have said the Chief Justice is first and foremost a judge and so the other provisions in article 146 affect her. Respectfully, this viewpoint is very flawed. In the case of the Chief Justice there is no such provision. Indeed paragraph 2 of Article 146 says unequivocally that "Justice of the Superior Court of Judicature (and it is conceded that the Chief Justice is one of them) or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article. And what is the procedure specified for the Chief Justice? This is succinctly provided, firstly, in paragraph 6 of Article 146. Then follow the other provisions as to how the, case of the Chief Justice should be handled. In fact for those who argue that the Chief Justice is a judge and so must be treated like, all other judges the absurdity of those arguments is manifested in paragraphs 3 and 4 of Article 146. Indeed the coup de grace is in paragraph 3 of Article 146 which says, inter alia “If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice ..... (Emphasis mine). The processes therein therefore exclude the Chief Justice who is a primus inter pares and the process involving here is distinctively different from the other judges. The President can therefore suspend or remove the Chieef Justice to the extent that the provisions of Article 146 are followed. Judicial Processes This writer is becoming increasingly worried about how our judiciary is being maligned and how some people expect certain judicial processes to be followed. The recent kill the cat comment was very unfortunate but so were the undue politicisation which some politicians wanted to make of it including the now famous "a lawyer is as good as his brief” These comments are not in the least helpful and they add more oil to the already ravaging fires. Many are those who are coming up with lots of ignorant representations and saying them with all the confidence that they could muster. For instance, in the case of the Ata Akyea petition, the impression has been created that what took place was a very heinous process and that it even bordered on criminality. Respectfully, if folks are not aware that there are such provisions in our laws, anytime they become aware of them, they should be humble and add them to their stock of knowledge instead of criminalising such moves or activities. Lawyers should also refrain from making political arguments on radio masquerading as legal viewpoints. They are disgustingly shameful. Let us take the case of an absconding warrant; one could go to the residence of a judge or magistrate and request for same. It will be of utmost unreasonableness for one to wait till the doors of the courts are open before he could proceed to do such a thing; that will be too late and the ends of justice can never be met. For now, we are, unnecessarily heating up the political climate by jeopardising and belittling the judiciary which in the normal scheme of things could serve as a damper to such situations. Indeed we go to court in both good and bad times and it will do all of us a lot of good if we help it to be as sacrosanct as we all want it to be. You, the reader, are the first to help make this a reality. There is no need for us to increase the panic in our minds as we can become easy victims. Let us stop the political stereotyping and academic profiling and discuss this taboo subject dispassionately. Written by Paul Kumi Source: Daily Graphic