In memoriam: An open letter to our Judges

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I am doing these columns today in the form of an open letter. I know open letters often carry inquisitorial airs and may sound quarrelsome or querulous. Sometimes they could come across as pugnacious, hubristic, score-settling or just self-righteousness…

These following words could be (mis)interpreted in any number of ways, including the few listed above, but what to me matters most is the motive and in this case, I mean no harm to any judge personally. In fact, I remember when Anas Aremeyawo fingered some of them in his investigation on corruption in the judiciary, I disagreed with the way he presented it. I told some friends and family that in his desire to get errant judges out of the system, he was also doing damage to the institution. Judges, like other citizens in public service, are not sacrosanct and MUST be called to answer for their transgressions, but in doing so, the judiciary must at the same be protected as our estate of last resort. I still stand by that belief…

22 years ago
I am not writing these words in a vacuum or without social or historical context – at least from my very own personal experience. This open letter memorializes my very first real encounter with judges, almost twenty-two years to the day, this August, when I was driven off in handcuffs from the superior courts premises to the Nsawam Medium Security Prison to serve time for contempt charges. Contempt not against the judges who found me guilty nor their court which I had not scandalized but an accusation of contempt in a High Court, which was hearing a libel/defamation case against me. The charge was thrown out by the judge hearing the case in the High Court but the aggrieved party appealed and the Court of Appeal picked it up and said I was guilty. The two elderly judges of the three-member panel which presided, decided I must be “Pornished” to serve as a deterrent to the media. I was then a newspaper editor and “pornishment” was actually how the judge who passed sentence on me pronounced “punishment”!

I had earlier noted how shabby his presentation was: Loose hand-written sheets of paper, sometimes mixing pages up and having to ruffle through to get the correct sequence, fingers shaking, incoherent delivery, seeming unable to decipher his own handwriting, it was all so shambolic. All these twenty-plus years since, I have not been able to dispel the suspicion that what he was struggling to read was not written by him. Eventually passing his sentence, I left to start my 30 days in hard labour and he probably to his home to enjoy his lunch and play with his grandchildren.

By the time we arrived at Nsawam, my wrists were blistered from the friction of rubbing against the handcuffs. The substantive case, which is yet to end, was brought against me by a highly influential member of the establishment (1981-2001). A glaring political case, if there ever was one. Since the case was abandoned by the individual who brought it in the first place, now we can never know whether the libel/defamation would have held. The trial judge has died, so has the prosecuting lawyer and also the two judges at the Appeal Court who decided I should be “pornished” even though I had not offended them in any way.

It was widely rumoured that they were rewarded with nominations to the Supreme Court for their service to the powers that be. The youngest and third member of the panel, who disagreed with his elderly colleagues, I was to discover, was one of the very brilliant judges on the Ghanaian bench. After years on the Appeal Court, he was finally nominated on merit to the Supreme Court, serving his full term and retiring not too long ago.

The case attracted national and international attention and commentary. The local media had a field day wading in and out with many different angles but generally agreeing that it was a vindictive politically-motivated action endorsed by the Court of Appeal – the second highest court. Even an application for bail pending appeal was flatly denied. A newspaper headline of the period said, “Courts Influenced by Politics” and another, “Judiciary On Trial”.

22 years later

So what has changed?
Last week Thursday, the Supreme Court handed down its ruling on whether the Electoral Commission can disenfranchise Ghanaians in Election 2020 or not. Divested of all the legalese, that to me was all what the NDC v EC was about. The court ruled in favour of the EC and at the end of June, the EC would start rolling out a programme that many citizens believe would disenfranchise large swathes of the Ghanaian electorate.

Indeed, the suspicion and understanding by such citizens is that, the purpose of the so called new register is to give undue advantage to the governing political party, so that even before one single ballot has been cast, the grounds would have been fertilized for only one seed to germinate. Venerable institutions like the National House of Chiefs, Civil Society Organizations and even a petition from over a hundred academics, have sounded the warning about what they see as the dangers ahead for our country should the EC be allowed to get away with its rigging stratagem.

It makes no sense! I cannot understand what on earth would make the court side with the EC on its pathological aversion to our original voter ID cards, which many institutions like banks have accepted all these years as bona fide identification documents. I have had my birth certificate all these past 68 years and now I am told it cannot be used to identify me. And whatever happened to affidavits, etc., which we would normally swear as bona fide documents for legal transactions and identification? Have all such legal facilities now ceased being legal in Ghana? And all the other biometric IDs like driving licenses, SSNIT pension cards…For me, politics and the law must create conveniences to make life less stressful and complicated, not the other way round like the EC is going to put Ghanaians through in the next few days, weeks and months. There cannot be anything nobler than politics and the law taking stress out of living. The EC’s prescription for registration is going to stress out a whole country. Is this not quite obvious?

Purely on the basis of logic, if the birth certificate is not acceptable then my passport which was given me based on the birth certificate should not be admissible. If the existing voters cards are inadmissible as IDs to register to vote, then the current occupants of the Jubilee House and Parliament are there by virtue of a flawed voters register! They are therefore products of a flaw or fraud. I do not claim infallibility and so I leave it to history to judge…
As a citizen with only two years shy of the proverbial three score and ten, a media prison graduate and probably older than some of the members of the Supreme Court, I think I am entitled to agree or disagree with them publically. Their ruling, giving carte blanche to the EC’s wishes, to me, cannot be in the overall interest of Ghanaian voters, because many citizens would not be able to vote in this year’s elections.

Every vote counts
The electoral process is of paramount relevance to the integrity of our republic – indeed, it is the bedrock of our democracy. If a court must err, it must err on the side of our electoral system making it absolutely possible for every eligible citizen to vote. The “powers” of the agency charged with organizing elections must in no way be allowed to supersede the sacred right of the citizen to vote. It is because of the citizen that we have such an agency, enjoying massive appropriations from the public purse. In other words, the agency is subservient to the citizen’s right – some even say duty – to vote. The sayings that “every vote counts” and “one vote can make the difference” attest to that…

I know that better equipped legal minds, like Professor Kweku Asare are making more cogent legal and commonsensical arguments against the SC and EC, but do these lay words of mine constitute contempt deserving of “pornishment”? Well then, my wrists are outstretched for the handcuffs…

I have written this memoriam purely from my angle. I know there are many other players in the first part of this narration (22 years ago) who would no doubt tell their stories after their own fashion.


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