*By: James Ofosu*
It has been exactly one month and 11 days since the Supreme Court began hearing into the substantive case of the presidential election petition brought by the petitioners who are challenging the results of the December 2012 elections as declared by the Electoral Commission.
Many Ghanaians have complained about what they see to be the blatant show of bias, in most cases, by the President of the panel of judges hearing this case. He appears to be mostly treating Tsatsu Tsikata, counsel for the NDC, with a massage cream, and hitting Philip Addison, lead counsel for the petitioners, with a sledgehammer at the least opportunity.
But, is he really alone in this enterprise? Many people don't think so. A woman with ambitions to be Chief Justice and the third in terms of seniority on the panel of 9 judges hearing the presidential petition, is also being seen as perhaps the chief manipulator on the bench. She is silver-haired Justice Sophia Adinyira, who sits at the left hand of the presiding judge.
Like most Ghanaians, I am deeply uncomfortable and worried about the over-reliance of the President of the panel adjudicating the presidential election petition currently ongoing at the Supreme Court on the views of Justice Sophia Adinyirah. The talk in many hairdressing salons and drinking bars in Accra, Tamale, Takoradi and Kumasi is that Justices Atuguba and Adinyirah have hijacked proceedings and the others have decided to keep mum and let the two have their way.
On every ruling the court has had to make, Justice Atuguba has persistently broken the traditions of the court by turning more to the person on his left than the person on his right, Justice Julius Ansah, who is the next in line and the one to consult most.
Indeed, the tradition of the court requires that on every matter that the bench has to rule on, the President has to rely more on the judge on his right because the judge seated to the immediate right of the President of the panel is senior to the remaining 7 judges of the panel.
In the Supreme Court’s hierarchy Justice Julius Ansah, who is seated on the right hand side of Justice Atuguba, is senior to Justice Adinyirah who is seated on his left.
There have been a few occasions where it appeared as if the apparent manipulation of the panel by the two justices have gone against the expressed wishes of some of the other judges. On one occasion last Wednesday, there was an objection raised by counsel for the petitioners during the examination-in-chief of Aseidu Nketia by Tsatsu Tsikata. That objection was over-ruled by a majority of 5:4. But, immediately Justice Atuguba mentioned the names of dissenting justices (Julius Ansah, Rose Owusu, Anim Yeboah and Suley Gbadegbe), who all sit on the right side of the president, Justice Jones Dotse could be seen protesting to Justice Adinyirah, who sits on his immediate right. It was as if his vote had been misrepresented. Indeed, before that vote was taken, Justice Atuguba could be seen asking Justice Adinyirah to ask the other three on her side (Justices Jones Dotse, Baffoe Bonnie and Vida Akoto-Bamfo) for their views, to which Justice Adinyirah could be seen visibly shrugging that suggestion off as if their views were not important. It was obvious to all the journalists that Justice Dotse was expressing unhappiness about his vote not counted or wrongly counted. It became a topic of discussion among the journalists that day. If that was what happened then it was a serious miscarriage of justice and the wronged judge should not be quiet on such a serious judicial breach.
Another similar incident happened last Thursday when Philip Addison got up to ask whether an objection that was overruled was unanimous. He asked because Justice Atuguba failed to mention whether it was a majority decision or not and it was quiet clear from the body language of the bench that views were not the same on that matter. Justice Atuguba cleverly failed to answer that question directly except to say that whenever he did not mention the names and number of dissenting judges then it should be taken that the decision was unanimous. This created the false impression that the decision was unanimous and Justice Baffoe Bonnie seemed unhappy about that.
Last Wednesday as well, a similar thing appeared to have happened when counsel for the petitioners chipped in a concession that they would be happy to add by the next morning the exhibit numbers of a list of recategorised exhibits which the court said petitioners could tender but the respondents had objected to them being tendered without the abandoned exhibit numbers. Some of the judges on the right side of Justice Atuguba, including Justice Ggadegbe and Anim Yeboah appeared to be saying "tomorrow morning" and nodding. But, Justice Atuguba, who had earlier lost in a 5:4 majority allowing the recategorisation, went into a high-tempered arguments with Philip Addison over the authority of the court, which included curtailing counsel's re-examination. The other judges quietly watched some in some discomfiture, as this argument over form went on between the president of the bench and counsel for the petitioners. The only other judge who was seen to be urging Justice Atuguba on was the lady on his left hand side.
It has been absolutely clear that Justice Sophia Adinyirah almost always has the first and final say in matters that have to be ruled on. This cannot be right.
The president of the panel cannot ignore such an important convention of the bench even if he has his own personal reasons for preferring the views of the judge on his left to the judge to his right. It is not healthy for justice. Also, the justices must be careful in exhibiting so much emotion on the panel. Justices Julius Ansah, Baffoe Bonnie and Vida Akoto-Bamfo are remarkably good in controlling their body language and expressions. Too much of emotional reactions can send a very negative signal of bias, whether true or false.
Indeed, when on Wednesday the panel of judges curtailed the re-examination of Dr Bawumia (second petitioner) by Philip Addison, the smile on the face of Justice Sophia Adinyirah when they court rose was so broad that even reporters could be heard talking about it.
I have had cause, at the beginning of proceedings, to tell a few friends of mine that Justice Adiinyirah always wore a smile when Tsatsu Tsikata was on his feet talking and once Philip Addison got up to address the court, Justice Adinyirah would frown throughout. They thought I was being paranoid, but it appears I have been cured.
If you want to know which way a ruling is likely to go, please do well to look at the facial expression of the well-kempt lady with the silver hair.
It is very obvious to the public that this panel of 9 is split in the middle. But, when such is the case, the manipulation of one or two may be fatal to justice if the others continue to allow it. The others must not be shy to air their opinions. The president of the panel has no power to impose his opinion on the others.
Understandably, the others are restraining themselves to maintain the sanctity and dignity of the highest court of the land. But, to sacrifice justice for that is to defeat the very sanctity and dignity you may wish to preserve.
This is not just an ordinary case, but one that goes to the heart of Ghana’s democracy. If Justice Atuguba and Adinyirah have a pact to ensure that the petitioners lose the petition despite the strength of their evidence, then they better revise their notes.
Ghanaians are discerning and are watching every move being made by Justices Atuguba and Adinyirah. Ghanaians want a fair ruling based on the facts of the case and not what two judges believe would want the facts to be.