Retired Justice of the Supreme Court, William Atuguba, has strongly criticised the Apex Court he left a couple of years ago, describing its decision on Member of Parliament for Assin North, James Gyakye Quayson, as scandalous.
According to the legal luminary, the Supreme Court re-adjudicated Quayson’s case when the High Court had already done so, adding that what was left was the execution of the decision.
He said, “The James Gyakye Quayson’s decision by the Supreme Court is with all due respect scandalous, in that, the court, in the teeth of the settled maxim Res Judicata et non quieta movere, re-adjudicated the same matter that has been adjudicated upon by the High Court on the merits. All that was left was its execution, according to court processes.”
The lead judge in the 2013 presidential election petition, Justice Atuguba, was giving a public lecture on Tuesday, October 24, 2023 at the University of Ghana, on the theme: “Protecting our democracy: The Role of the Judiciary.”
Speaking on what recent pronouncements by the judiciary portend for the democracy of the country and the image of the judiciary, he mentioned Gyakye Quayson and the former Auditor-General, Danaiel Yao Domelevo cases, to make his point.
While spending time with the much-discussed case of Gyakye Quayson’s removal from parliament, Atuguba did not find fault with the accused, arguing that he did his part of the process by renouncing his citizenship, and that the court did not have to put the stress on the respondent.
“Again, the stress laid by the court on the statutory processes for acquisition and renunciation of citizenship shot itself in the foot,” Atuguba assertively stated.
CONSISTENCY
Justice Atuguba spoke about consistency in both the letter and spirit when applying statutes, judgments and documents, adding that these must always be construed holistically and as instruments of justice.
According to him, if the certificate of renunciation was mandatory and conclusive, it should have also been conclusive in effect to qualify Gyakye Quayson, because he received the letter on November 26, 2020 and the elections were held on December 7, 2020.
He made reference to his pronouncement in the 2013 presidential election petition (2013), SCGLR (Special Edition) 73 at 141 in Osman v. Tedam (1970) 2 G & G 1246 (2d) CA and Osman v. Kaleo (1970) 2 G&G 1380, and Justice Dery versus Tiger Eye PI and Others (2015-2016) 2 SCGLR 816 to buttress the point on the disqualification of Quayson.
Referencing the above cases, he held that if the substantial and more important provisions on the removal of a corrupt judge could not be diverted by the incidence of the unconstitutional publication of the impeachment petition, then the fore-participation of Gyakye Quayson in the parliamentary campaigns when he filed his nominations in October was more important than the certificate of renunciation, which he even obtained in November, before the elections in December.
He concluded that, “the Supreme Court does not stand in good light, with all due respect, in disqualifying Gyakye Quayson, despite his clear certificate of renunciation of his Canadian citizenship, as of November 26, 2020.”
ANALOGY
He also referred, by way of an analogy, to the case of CLOSSAG v. Attorney General and 2 Others (2017–2018) 1SCGLR 210, in which the Supreme Court unanimously held that a member of the Civil Service or Local Government Service could join a political party, but cannot actively participate in politics, hold office as a political party nominee, or remain in the Civil Service after election as a member of the District Assembly.
He explained that the operative evil to guard against is membership in the District Assembly, not the contest for the same.
According to Atuguba, that was the reason Gyakye Quayson’s renunciation of his Canadian citizenship certificate is the operative consideration.
He emphasized that his certificate of citizenship was tied to an oath of allegiance, arguing that the two moved in tandem, “the letter and the spirit.”
He continued that “it is difficult to think that Gyakye Quayson, who submitted his Renunciation of Citizenship Papers to Canada in 2019, could still be held in December 2020 as seriously owing allegiance, as a matter of hard realism as opposed to formalism, to Canada.”
REVIEW THROWN OUT
On May 17, this year, the Supreme Court affirmed that the election of James Gyakye Quayson in the 2020 parliamentary election, representing the Assin North constituency, was unconstitutional, null and void.
It further directed Parliament to expunge the name of the MP from the records of the House as though he had never been a legislator in the history of Parliament.
On July 25, 2023 Gyakye Quayson filed a motion asking the Supreme Court to review its May 17, 2023 decision, but it was thrown out.
The court insisted that Gyakye Quayson did not meet the constitutional requirement for contesting the seat of Parliament, as he owed allegiance to another country at the time of picking up his nomination form, which was contrary to Article 94(2)(a) of the 1992 Constitution.
IMPARTIALITY
At the same lecture yesterday, the retired justice of the apex court, William Atuguba, also raised some concerns over the judiciary and governance system of Ghana.
He bemoaned the powers the constitution has vested in the president on one hand to make some appointments, and on the other hand the same constitution preaches about independence of the various arms.
Atuguba was at a loss as to how Ghanaians would envision an impartial judiciary, but lose sight of the appointments to the judiciary by presidents. He argued that the executive powers of the president, as enshrined in the 1992 Constitution, must be curtailed.
“We want the judiciary to be free. Apart from the Attorney General, who is appointed as a political minister by the president, the president has four other nominees on the Judicial Council, to ensure what? Impartiality?” he quizzed.
RESTRUCTURING
Owing to the foregoing, it was the position of Justice Atuguba that what mattered most was the “realistic auditing and restructuring of the judiciary and indeed all governmental institutions.”
He remarked that political corruption has poisoned the governance institutions, but advocated that appointments to the judiciary or any other governance institution must be made by thoroughly independent bodies based on nothing, but merit and not on protocol, cronyism, ethnicity, or other improper considerations.”
His problem was whether protocol was a qualification, such that qualified individuals are sometimes sidelined for people he described as “mediocre.”
“There is an advertisement for employment into an institution. The criteria are set out. Now I understand there is something they call protocol. How does it fit into the scheme of criteria? Protocol, so is it also a qualification?” he asked.
