EMPANELMENT OF JUDGES IN GHANA’S SUPREME COURT: A TRAVESTY OF JUSTICE? By Frederick Agaaya Adongo

The beauty of the legal profession, that has been its source of admiration , lies partly in the constant engagement in very thought-provoking debates by members of the legal fraternity. Almost always, legal academicians engage in one or another form of fierce legal debate on very controversial subjects of law. It is truism that when legal principles are tested through debates, the pros and cons of these principles would be identified and anomalies discovered in the application of some of these principles will be rectified forthwith. One of the areas of our country’s constitutional dispensation that has engaged a number of legal professionals, engaging them in a never-ending legal battle aimed at unravelling the truth is the issue of empanelment of the Supreme Court to hear cases. In recent times, there have been controversies surrounding the power of the Chief Justice to empanel Justices of the Supreme Court to sit on matters that come before it. Similarly, controversies also abound regarding the number of Justices entitled to be empaneled in each class of cases. This academic exhortation, which is not purported to be a declaration ex cathedra, has as its purpose the brief examination of the propriety and legality or otherwise of the power of empanelment exercised by the Chief Justice.  Consideration will be given also to the number of Justices that ought to be empaneled for cases. It further argues whether or not in very crucial matters, especially constitutional matters, the Full Bench of the Supreme Court should be empaneled as of right to hear such matters that come before the court.

With this setting, it is of utmost importance at the onset to define what concept of empanelment is. Empanelment, like any other legal concept, does not lend itself to easy definition. This is because, on the one hand the call for brevity in definitions may sometimes lead to a failure to incorporate in a definition all that a particular definiendum entails. On the other side of the spectrum, it will be boring and monotonous, hence unprofessional to provide very long and winding definitions of concepts. Aside the aforementioned, the textual insufficiency of definiens used to define a particular concept poses quite an insurmountable challenge in an attempt to define a concept. In consequence thereof, it will be an exercise in futility to purport to provide a universally applicable definition of empanelment. Accordingly, a very sparing and perhaps jurisprudentially insufficient attempt will be made at defining the concept of empanelment as far as it relates to our present discourse.

Having said that, empanelment in this context is generally used in reference to the administrative practice whereby the Chief Justice constitutes a panel of the Supreme Court to hear certain matters that come before it. By means of this concept, the Chief Justice determines the number of Justices to sit on a case as well as the particular Justices to sit on a particular case before it. This may be done by perhaps giving priority to a particular judge’s expertise as may be necessary for the resolution of the particular legal issue in contention and some other factors known to him alone, since there are no concrete laws directing the Chief Justice as to how the empanelment ought to be done.

Moving on, our next point of enquiry is to ascertain whether the power of the Chief Justice to empanel is on all fours with the law. To determine this, our obvious first point of recourse is the constitution, which unarguably is the norma primaria of our legal system, or the Grundnorm if one were to consider it in kelsenite terms. Under the 1992 Constitution, there is no provision that expressly confers the power to empanel Justices of the Supreme Court to hear cases on the Chief Justice. Nonetheless, the practice of empaneling by the Chief Justice is one that far predates the Fourth Republic, and is hence arguably as old as Adam. The constitutional basis upon which the Chief Justice’s power to empanel is said to be firmly rooted is article 125(4) of the Constitution which provides thus:

“The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”

In support of this line of thinking, so much solace is often drawn from the famous formulation by Date-Bah JSC in the case of Frank Agyei Twum v. Attorney General and Another [2005-2006] SCGLR 732 as follows: “… I would like to highlight the basis for the Chief Justice’s constitutional authority to empanel this Court.  This is article 125(4) of the 1992 Constitution, which reads as follows: “The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.” Thus, for as long as the Chief Justice is in office, the right to constitute panels of the Supreme Court is exercisable by him as one of the administrative incidents of his office.  Indeed, his is not only a right, but also an obligation, to constitute such panels.”

This, I perfectly agree with Date-Bah JSC unhesitatingly. The reason is simply that, it is a necessary inference from the nature of the duty of the Chief Justice that he is empowered to constitute such panels, in his capacity as the head of the judiciary. It falls squarely within his administrative duties. Article 128(2) provides that “the Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution.” Hence, if one subscribes to the view that the Chief Justice is not mandated by law to constitute such panels, how will this provision be enforced? Who will determine who sits on what case? Or should it be by casting lots by the tossing of a coin? Even if we elect to let it be by the tossing of a coin, who facilitates this process of tossing? Compellingly, I answer that it is the Chief Justice. Hence, no argument can now be properly maintained that the Chief Justice cannot constitute panels and even further that any such constitution is violative of the constitution. If today anyone holds such a view that the Chief Justice has no right to empanel the Supreme Court, then I can say with exact certainty, but not meaning in any way to undermine the person’s belief, that he has with obstinate self-assurance shut out all better knowledge and does not simply and loyally seek the truth as far as the Chief Justice’s function of empanelment is concerned.

This power of empanelment, whether or not it is on all fours with the constitution – and indeed it is, as I have already established above – is regarded by many as contrary to the dictates of justice. This is because, in the opinion of practitioners in this school of thought, it has the tendency of giving the Chief Justice the power to influence the outcomes of certain decisions. And the reason for this assertion is manifest. If the Chief Justice knows the jurisprudential, religious and political inclinations of some Justices of the Court, he can empanel the court in such fashion as to yield a certain desired result. By way of illustration, if the Chief Justice happens to be a liberal and the matter that is before it hinges on some issues that have their underpinnings in liberalism, knowing the Judges who subscribe to the liberal view, the Chief Justice can empanel the court with like-minded Justices who will impliedly do his bidding. Such a development is the cause of the fear that people vent about the Chief Justice and his empanelment duties. This contention was referred to by the indomitable judicial spirit of the Republic whose sheer mental power exaggeratingly is second to none, Dr. S.K Date-Bah JSC, in his book Reflections on the Supreme Court of Ghana in pages 128-129 as follows: “The Chief Justice’s power to empanel judges confers on him or her, arguably, the opportunity or potential to influence the outcome of particular cases. The Chief Justice’s knowledge of an individual judge’s track record on particular issues or his or her judicial inclinations on particular issues may give the Chief Justice this potential. This, rightly or wrongly, has attracted unfavourable comments from people in political circles, in relation to politically controversial decisions…”

Nonetheless, in absolute affirmation of the Chief Justice’s power of empanelment, Date-Bah JSC trenchantly noted in the Agyei Twum case (supra) as follows: “An explanation for the reluctance by this Court (and its -predecessors) to interfere with this function of the Chief Justice is probably to be found in the judicial oath of the judges.   Supreme Court judges are not malleable clay in the hands of the Chief Justice.  The judges of the Court are likely to believe that whichever of their number are empanelled will act independently.  Therefore not much hangs on the exercise of this ministerial, as contrasted with the judicial, power of the Chief Justice.”

In support of this position also, designedly or otherwise, the Supreme Court has consistently held that even the principles of natural justice, particularly the nemo judex in causa sua rule which bars one from acting as judge in his own cause, are not relevant to the administrative duty of the Chief Justice to empanel the Supreme Court as same cannot in the realest sense lead to a perversion of justice. Therefore, in different formulations in the cases of Akufo-Addo & Ors. V Quashie-Idun [1969] GLR 667; Kuenyehia & Ors. V Archer & Ors. [1993-4] 2GLR  525; Bilson v Apaloo [1981] GLR 24; Ghana Bar Association v Attorney-General and Anor. [1995-96] 1 GLR 598; Tsatsu Tsikata v Chief Justice and Attorney-General  [2001-2002] SCGLR 437 and much more recently Frank Agyei Twum v. Attorney Geneenral and Anor. [2005-2006] SCGLR 732, the court has always stated to the effect that where the statutory ministerial duties of the Chief Justice conflict with the common law rules of natural justice, the former shall be given priority. In the Agyei Twum case, Date-Bah JSC clearly indicated that “the principles of natural justice are not, in any case, applicable nor relevant to the empanelment decision, since that decision is neither judicial nor quasi-judicial, but merely ministerial. When the Chief Justice empanels a bench, he acts as an administrator and not as a judge.   Accordingly, a principle of natural justice tailored to the requirements of proceedings cannot be relevant to that exercise. Rather, what is relevant is the Chief Justice’s implied duty to be fair and candid in the exercise of his discretionary power, as laid down in Article 296 of the Constitution.”

But the most contentious issue is not so much about the power to empanel as it is as regards the number of Justices that should be empaneled in a particular case. Under article 128(2) of the Constitution, 1992 as already referred to supra, the Supreme Court shall be properly constituted for its work by not less than five Justices, subject to Article 133 where the Supreme Court shall be constituted by not less than seven Justices when it is exercising its review jurisdiction thereunder.

Notwithstanding the immediately preceding constitutional provisions, some lawyers have argued that although the Chief Justice will not be violating the constitution if he empanels five judges to hear a constitutional matter, it is prudent that in constitutional matters, especially those that have serious political or religious magnitudes, the court be constituted by not less than nine Justices. In fact, Georgina Wood, when she was the Chief Justice noted that in order to restore public confidence and trust in the judicial systems, the court would be constituted by not less than nine Justices to hear constitutional cases. Following the prevailing situation at the time, the Constitutional Review Commission of 2011 in their report recommended in page 220 in the following terms: “The Commission recommends that the current administrative arrangement which allows the Supreme Court to empanel no less than 9 Justices for the determination of constitutional disputes be by convention institutionalised.”

In fact, an enquiry into the archives of history reveals that Georgina Wood’s direction was not the first of such directions to be made by a Chief Justice or someone acting in that capacity. Prior to what Wood CJ had directed, the Ag. Chief Justice Edward K. Wiredu in a letter dated 10 January 2001, addressed to the Judicial Secretary and the Registrar of the Supreme Court stated inter alia as follows: “In order to minimize the mounting criticisms and persistent public outcry against the Judiciary in our justice delivery and to restore public confidence, it is my desire that where practicable and especially in constitutional matters, all available Justices of the Supreme Court have a constitutional right to sit, or at least seven (7) justices of the court.”

Accordingly, one school of thought has argued that in constitutional cases, the Full Bench of the Supreme Court be made to sit on such cases, because there is no constitutional cap as regards the maximum number of Justices that can sit on a case. The constitution only stipulates a minimum as we have noted already from article 128(2).  Against this proposition, some people have argued that if the Full Bench of the court sits on a case, in the case of a review of that decision, there will be difficulties as the same constituted panel in the original case may have to sit on the review case.

To support the line of thinking with regard to the Full Bench acting in an original case and its review, one can argue convincingly that, despite the fact that the Supreme Court may review its own decisions, even if it is the same panel of the Court that sat in the original case, it would not necessarily occasion a miscarriage of justice in the review decision because the circumstances that call for a review of the decision of the court are limited, and the court rarely exercises this review jurisdiction. The court has held the view, with constant tenacity that this review power should not be abused in such fashion as to make it appear as though it is affording litigants the opportunity to appeal against decisions of the apex court of the land. This cardinal principle of law has been clearly enunciated in a number of cases, including Mechanical Lloyd Assembly Plant v. Nartey [1987-88] 2 GLR 598, SC, Internal Revenue Service v. Chapel Hill School Ltd. [2010] SCGLR 827, GIHOC Refrigeration & Household Properties Ltd. (No. 1) [2007-2008] 1 SCGLR 1, Opoku and Others (No. 3) v. Axex Co. Ltd (No. 3) [2013-2014] SCGLR 95 and Henry Korboe v. Francis Amosa. In the Axex case (supra), Akamba JSC noted that “the review jurisdiction avails an applicant where there are exceptional circumstances which if un-addressed would perpetuate a miscarriage of justice. It is not another avenue for re-arguing or repeating or refashioning previous arguments as in an appeal. Nor is it an opportunity for a party to revisit and come out with more ingenious arguments which he believes will find favour with the tribunal. Simply put a review is not an opportunity to have another bite at the cherry.” The exceptional circumstances that can properly give rise to the invocation of the Supreme Court’s review power have been set out in Rule 54 of the Supreme Court Rules (C.I 16) as follows:

The Court may review any decision made or given by it on the following grounds—

(a) exceptional circumstances which have resulted in miscarriage of justice;

(b) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the decision was given.”

On the basis of the foregoing, it can be argued that if the requirements for review as outlined supra are met, the court in its review will decide on the basis of those circumstances, and the individual Justices would not necessarily be impounded to follow rigidly the position they had taken in the original case. This is because, whereas the names of the parties remain the same in both cases, the facts are materially different on the basis of the new circumstances requiring review. As such, there is nothing wrong if the Full Bench of the court that sat on the original case is the same panel that is hearing the review. Again, it may be argued further that in a typical review case as we have it presently, if one thinks that Justices would necessarily follow their previous positions, there would not be any prospects in making a review application, since in a review two Justices are usually added to the original panel. Thus, where the decision was arrived at by a vast majority, the addition of the two to the number may practically have no significance. It may be significant only in cases where the Supreme Court decided by a narrow majority.

A superficial consideration of the above position may appear unimpeachable. However, the danger in so doing without a constitutional amendment is that, it runs contrary to the clear intention of the framers of the constitution. Fairly, as can be deciphered from a careful scrutiny of the provisions of the constitution, particularly articles 128(2) and 133(2), it was the intention of the framers of the constitution that a higher number of Justices, however negligible the additional number of judges may be, sit on cases where the Supreme Court exercises its review jurisdiction. For purposes of clarity, permit me to reproduce in extenso below the relevant provisions.

Article 128(2) provides: “The Supreme Court shall be duly constituted for its work by not less than five Supreme Court Justices except as otherwise provided in article 133 of this Constitution.

Article 133(2) also provides: “The Supreme Court, when reviewing its decisions under this article, shall be constituted by not less than seven Justices of the Supreme Court.

So, from the provisions above, it follows that if a matter is decided by all available Justices of the Supreme Court, a review of such a decision will not practically be in consonance with the provisions of the constitution. This is because, practically, either the same number of judges that sat on the original case, or even a lesser number (where at least one of the Judges is not available for some reason) will sit on the review panel, whereas the contrary was intended by the framers of the constitution in their collective wisdom. Such a development obviously will not be in tandem with what may be metaphorically referred to as constitutional consciencism, because it will amount to a replacement of the collective sagacity of the framers of the constitution with what we think is proper, which may not be so in any real sense.  Therefore, without mincing words, I dare state categorically that I find the argument that it does not matter if the same number of judges sit in an original matter and its review hearing ethically unacceptable and jurisprudentially leaking, hence it should not even be considered for application in our administration of justice system.

Considering all the above schools of thought, the most plausible view that I subscribe to would be that in constitutional matters, at least two-thirds of the number of Justices of the Supreme Court for the time being should be empaneled to hear such constitutional cases. There is a reason for this fractional representation that is suggested here. It is not proper to fix a rigid number, in our situation where there is no cap as to the number of Justices of the Supreme Court at all material times. Thus, if we are to fix a certain number, say nine Justices, and subsequently the number of Justices of the Court increases exponentially, then the same absurd situation we are condemning today will repeat itself. It is then that we will appreciate the impropriety of advocating for rigid numbers in certain cases.  For example, may it probably never happen, but should it happen that any President appoints hundred Justices to the Supreme Court, and we have already stipulated that nine of their number should sit on constitutional matters, what better impact will that make than what we are facing today. In fact, it will produce far worse and absurd constitutional results.

Therefore, in conclusion, considering the peculiarities of our own circumstances, and considering also that we cannot say with the exactitude of a Jewish prophet that the staus quo will remain, whereby the Supreme Court will always be made of a reasonable number of Justices, we need to anticipate any future increase in numbers of the court and make suitable provisions therefor. Accordingly, if there is need for any constitutional amendment to be effected, I urge the relevant authorities to perhaps think along this line to forestall any possible challenges that may confront generations yet unborn. We owe posterity a duty to spare them unnecessary tension arising out of our choice of words in our constitution and other laws.