Flubbing One’s Lines: Revisiting #FixTheCountry’s Horrid Day at the Ghana Supreme Court!
What is this thing I read here?
This is a legal article. It may surprise some, who read it, but this is very much a legal article. I understand in part their consternation, because I too used to be like them. Because so often, we have created mystery out of the law and of legal jargons. We have deployed them to confuse rather than to elucidate. As such, we have made the law a monster that is not accessible to everyday folk.
In this piece, I am attempting to do something different. I am attempting to write a legal article that the average Ghanaian can understand. By this, I am imagining the everyday woman on the madina trotro (our clapham omnibus), who is returning from Agbogbloshie. Because they matter most, when we think of the place of the law and what the law means.
Yet, I start with that stark reminder that this is a legal article; not because I wanted the everyday Ghanaian to know this. No! I think lawyers need that reminder most. And, so that lawyers can know this, I chose a legal forum like www.GhanaLawHub.com to publish this. This is also because I want my legal audience to engage with this too, and contemplate the state of our democracy through the eyes of the legal system.
But I also want to remind lawyers of the purpose of law and who law serves. As lawyers, we have lost the art of simplicity, and beauty of the simple story. We forget that we are first and foremost story tellers. The old law didn’t use to be like this. Many years ago, when I was a lot “older” than I am now, because no one knows more law than a first-year law student, I stumbled on Lord Denning’s 1977 judgement in Miller v. Jackson. It begins…
“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last seventy years. They tend it well. The wicket area is well rolled and mown.
Yet now after these 70 years a judge of the high court has ordered that they must not play there … he has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built, or has had built for him, a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket. But now this adjoining field has been turned into a housing estate.”
I have never been able to re-create the sense of myth that his simple story evoked in me; no matter how hard I strived. Call it defeat, but slowly now, I have come to accept that simplicity is not capable of imitation; just as words like “summertime” and “cricket” will draw blank stares in my African village. If I wanted to capture legal imagination, I have to tell a Ghanaian story. And when I am done, I should expect that some of my fellow citizens will ask me: “nti ne kraa kraa ne s3n?” [To be literal, what is the head and tail of what you are saying” or to be figurative: can you just summarise this for me].
The Day of!
On the morning of June 8 2021, three of the several Convenors of FixTheCountry, Myself – Oliver Barker-Vormawor; Felicity Nelson and Samuel Alesu-Dordzi were given audience at the highest Court of the land.
Within hours, I would be tweeting and posting on Facebook:
What followed after my tweet and post was a media sensation of no small measure. People rejoiced on the streets, and on social media. Virtual talk rooms, live streams were held on several social media platforms: Instagram, Clubhouse, Twitter and on Facebook. Within minutes, people started re-donating to our fundraising platforms on GoFundMe and on Mobile money.
For those who had lost their sense of belief about what is institutionally possible in Ghana, this was a needed assurance of the justice of our cause. More importantly, it was an affirmation of their voices; a reminder that their dreams were valid and that maybe, Ghana could work, afterall.
Mainstream radio and television were quickly caught up in the frenzy. Ratings matter! From CitiFM, TV3, MultiMedia, to Obonu FM, everyone wanted in on the action. They wanted the same thing said on their own platforms. Do it with a shrill voice, tired voice, squeaky voice. It didn’t matter. As long as they could create an elaborate flyer announcing your appearance. As long as you could adjust your pocket square so that the pointy end faced camera number 2, they were good to go. But you know what will even be better? What if we rope in, at your blindside, the Press Officer of the Police, DSP Efia Tenge for a quick, “he said – she said situation”. Fireworks!
Them: So, Lawyer ‘Baker-Vornumor’ (they always got my name wrong for some reason), will you go out to the streets tomorrow?
Me: “You can call me Oliver, please; And, I don’t think “Lawyer” is a title”.
Them: Great! Oliver, so when is the date? Give us the date. The date! We want the date.
Me: This is a renewal of belief in the righteousness of our cause and in the predetermined path of justice. Hopefully, when tomorrow rises, Ghanaians will do so too with an affirmed belief that the wager of placing our faith in our democracy is capable of returning dividends.
Them: So tomorrow? DSP Efia Tenge, you heard him. What can you do? Is the Ghana Police prepared to respect the law?
DSP EFia Tenge: Have you read paragraph 3 of the Ghana Police Service press statement? We want to remind the public that “the Supreme Court refused to restrain the Ghana Police Service … from unlawfully interfering with the constitutional right of the convenors of the FixTheCountry protest from embarking on a public demonstration” So, they can come anytime, we will unlawfully be waiting for them.
Within minutes, the Fourth Estate wedged in. Because in Ghana now, even though the Fourth Estate is itself younger than FixTheCountry, they are already mainstream. And as such news isn’t news if the Fourth Estate hasn’t written about it. For the first time since FixTheCountry started, we received the endorsement we had been waiting for. The endorsement that enabled us to cross over from Fake News to just “News”. The Fourth Estate called it “#FixTheCountry protesters win theoretical victory but suffer practical defeat”.
“Ne kraa kraa” of their Story was summed up at the tail end of their article. “And so no court stands in the way of the #fixthecountry protest organisers. They can go ahead and demonstrate by notifying the police. In theory, the streets are there. In practice, the police are waiting.”
My Internal Conflict!
Just as throughout your reading of this piece, you have yet to realize that I have a secret; throughout the whole media frenzy that followed the Supreme Court ruling, and even before I put up the tweet and the Facebook post that sparked the frenzy, something deeply bothered me.
As an academic, I had ruffled a few feathers with my legal commentary during the recent Supreme Court decision in the 2020 election petition. In fact, I nearly caught myself a good beating from Frank Davies (A member of the President’s legal team), when I went on TV to say something along the lines of …
“There are several ways to reflect on the significance of the decision. But it seems to me that the constant refrain and more popular way in which people are processing the decision is to hurriedly, and perhaps without grounded nuance, say that the decision advances our democracy or that grounds it in some shape or form.
Now, I am always sceptical of the single narratives. Decisions by Courts do not advance democracies just because they were made. There has to be a more complex and nuanced metric by which we look at these decisions. Also, we need to be complex in the significance we attach not only to what was said but also was left unsaid.
For instance, it is easy to bring the decision down to who won the 2020 Presidential Elections. But it is about a lot more than that. And it is for this reason that the register of Winner and Loser; or the winner loser frame of analyzing this election is essentially unhelpful and very limiting. Yes, even as the Respondents do their victory lap; and the petitioner goes to bed with a sullen face, the sun will set on our democracy. And with the crack of the early morning dawn, we must wake up and also ponder over how the decision affects democratic governance in this Country.
To give you a few examples, of the types of issues that have been drowned out by the Vuvuzela of the Respondents: First and foremost, an election petition is almost always a referendum on the Elections Manager, in this case the Electoral Commission. And in times like this, we ought to determine whether the decision leaves us in a position to hold that Election manager to better account, for the constitutional duty entrusted to them. Or do we continue to shield that manager from scrutiny by clinging to legal aphorisms that make light of significant procedural irregularities.”
Here I was, barely 2 months after that appearance and not giving the cockerel the chance to crow three times, already sounding my own vuvuzela, and drowning out critical commentary on what the Supreme Court had done!
From the moment, I heard and read the Supreme Court’s ruling, I knew that I disagreed so profoundly with the Court’s reasoning. Worse, I was disappointed in the parsimony of their language and in the so much they had left unsaid. I knew that they had flubbed their lines and had failed to rigorously engage with the legal issues before them. As my intellectual mentor Roberto Unger used to say, I could tell that their decision read like they were members of “a priesthood that had lost their faith and [yet had somehow] kept their jobs”.
Today, I have decided to pick up the pieces of my dishonesty. Because incorrect reasonings taint the soundness of every ruling, and make them open to ridicule. But also, the knowledge that I was celebrating a decision that gave us a pyrrhic victory but had set back our democracy, has become too burdensome for me to refuse to set down my thoughts on paper. This is after all a legal piece. And even though, you have read nothing but law to this point, the purists are waiting for citations and authorities; for Acts of Parliament; Cases, Orders, Rules and sub-rules. By God, you shall have it! But first, let me remind you of the law that was already before you, yet you so flagrantly missed.
You missed my discussion of the reasonable (wo)man’s standard. [See Hall v. Brooklands Auto-Racing Club [1933] 1 KB 205 or locally, Bannerman R. E.: Negligence—The Reasonable Man and the Application of the Objective Test in Anglo-American Jurisprudence (1969) 6 U.G.L.R.J. 69]. You missed the jurisprudential discussion around what makes law law and if it is, what is law’s purpose? [ See foundational legal works such Hart’s Concept of Law and maybe Lon Fuller’s Morality of Law]. You missed the conversation about what the lawyer’s role in a legal system is. [If you are minded, Glanville William’s Learning the Law is a useful resource]. You may have also missed the legal system’s role in a democracy and in consolidating it. I am tempted to recommend S.Y. Bimpong Buta’s Ph.D Thesis on “The Role of The Supreme Court in the Development of Constitutional Law in Ghana” but it is 664 pages. So, I will say, maybe you should start with my favourite case “New Patriotic Party (NPP) v Inspector-General of Police [1993-94] 2 GLR 459—509. That decision should also deal with the other legal issue you may have missed in DSP Efia Tenge’s press statement and the law-lessness- embedded in it.
But I promised you jargons, so now I must deliver.
The Way to the Supreme Court!
On 6th of May 2021, a High Court Judge, Justice Ruby Aryeetey gave the Ghana Police Service, through the Attorney-General, an injunction they had sought surreptitiously, which banned us the Convenors of #FixTheCountry from ever organizing a demonstration until the President felt content to allow it.
Even though, me and several esteemed lawyers were shocked by it, and even made fetish of how unreasonable and completely unconstitutional the order was, the truth is that it was no more repugnant than one the police had previously obtained ex parte in December 2020 under the hand of Justice Elfreda Amy Dankyi. On receipt of that order, the DSP Efia Tenge (fancy finding you here) signed one of her now famous press statements where she reminded the “general public especially sympathizers, followers and supporters of the NDC” that the Police had secured a restraining order banning “all NDC intended protests” from Sunday 20th December 2020 – 10th January 2021.
In fact, before Justice Aryeetey’s act, the practice of issuing ex parte injunctions under Section 1(6) of the Public Order Act to the Police has become so commonplace and routine that I am certain the judicial service has a template which is part of the training package of all judges. The Police themselves admitted as much to us. As they conceded to us after one of our several Court sessions, in a moment of levity: “we have never done it otherwise oo, we do not know how to do it otherwise; and this is the first time someone is pushing us to do things differently. In fact, everything is new to us”.
Nearly 30 years of a new Constitution, here we are! But this piece isn’t about the 1000 ways through which our Judiciary has failed to be awake in its role as guardians of our civil liberties. Actually, it is, who am I kidding? But Justice Aryeetey rules again on Friday 25 June 2021, on the preliminary objections we have raised in the new case the Attorney-General has brought against us, Convenors of FixTheCountry. Even I, know not to step on tempting tails when my hand is already committed in the viper’s jaws!
In any event, this piece is about what the Supreme Court did when it was called upon to query High Court’s “irregular” injunction. So, let’s focus on that.
The Issues before the Supreme Court
On 7th May 2021, my fellow Convenors and I knocked on the Supreme Court’s doors with a plaint about the ex parte injunction issued the day before by the High Court.
Our case was simply stated. We told the Supreme Court that the High Court Judge had relied on Section 1(6) of the Public Order Act to make a final order, without giving us hearing. We said that this breached the rules of natural justice. What did we mean by this? Think of it this way: if you go before your village chief to lodge a complaint against someone, your village chief, no matter how illiterate, will never banish you or fine you, without first giving you the chance to explain your side of the story. You can do so either in person, or through your elders. This right is so basic that in law, we have chosen to call it “natural”.
Because of this, we asked that the Supreme Court declare the High Court’s indefinite injunction null and void. And also, because of the rough tactics the Police through the Attorney-General had used (as they always do) to get that order, we asked the Court to firmly tell them that, those “buga buga” tactics are not sustainable in a democracy and especially to impede the exercise of constitutional rights.
Now, before I tell you what our current Supreme Court did, I think it is fair that I remind you that, many years ago, the NPP led by President Nana Akufo-Addo went to court against President Rawlings’ NDC on the very same constitutional right we are also now claiming. They wanted to protest, and the Police won’t let them, so they marched to the Supreme Court. You remember my favourite case, NPP v IGP? Yes! That one. Well, it was that case. And in that case, the then Supreme Court cited a decision of the US Supreme Court and agreed with the Americans that, to obtain “an ex parte order forbidding a rally was unconstitutional [if] the applicants could not demonstrate that it was impossible to notify the opposing party in order to afford it the opportunity of contesting the application.”
This is exactly what happened in our case! In fact, not only did the Police not notify us that they were in Court trying to get that injunction, they also used ruse and deception to keep us in a strangely arranged meeting while they went to Court behind our backs. When they were done, they came to serve us with the irregular injunction.
What is even more strange is that, not long ago, the Alliance for Accountable Governance (AFAG) of which the current Attorney-General, Godfred Dame was or still (is) a principal member, brought an application against an ex parte injunction obtained by the Police in the Circuit Court to stop the Let My Vote Count demonstration. That case was heard by Justice of the Court of Appeal, Justice Dennis Adjei sitting as an additional High Court judge. The judge held favourably for our Attorney-General and his friends that
Any application under the Public Order Act should be on notice as it is used to initiate an action”.. I further declare that any action which is initiated ex-parte under the Public Order Act is void as it is filed contrary to law and procedure and would constitute a breach of the rules of natural justice. It would be unfair to use an ex-parte to initiate an action whose outcome would affect the rights of other people and once it is granted, the action terminates. Such a crude approach should not be encouraged in a democratic society as the Police in their ex-parte application may depose to false information which may persuade the Courts to grant the application.
Fast forward to 2021! Godfred Dame is now Attorney-General, and his lawyer in that case, Nana Bediatuo Asante, is now the Executive Secretary to the President of the Republic of Ghana. The person in whose favour they were demonstrating for their votes to count? The current President: Nana Addo Danquah-Akufo Addo. The same Nana Addo Danquah-Akufo Addo of the NPP, in NPP v Attorney-General (remember my favourite case?). Well, this is the true measure of the decision in Re Akoto, and those who light vigils in its memory.
The depressing tragedy of our democracy is that yesterday’s heroes quick become today’s villains. That our liberators are also so often our oppressors. We need to do better as a people!
Anyway, be that as it may. What did this current Supreme Court do, in the case brought by #FixTheCountry?
The Ruling!
It was a one paragraph, two sentences ruling.
First, the Supreme Court quashed the perpetual injunction! This is what sparked the jubilation, in season 1 episode 1 above. Second, they however said that they won’t grant our request for the police act properly to avoid interfering with our constitutional rights. Classic split the baby move. Makes you look wise beyond your years, doesn’t it? For what worked for Solomon, must surely work for the Five Musketeers.
But why? Well, the Supreme Court gave no reason for the halved baby. But, for the first, we are about to find out. However, I can tell you that it has nothing to do with what the village chief would have done.
The Order 25 Rule 1 (9) Fallacy
First, the Supreme Court said that they were granting our application “in view of the indefinite nature of the order by the trial High Court”.
However, to do this, the Supreme Court made its first jump in logic. They said that “Order 25 Rule 1(9) [of the High Court Civil Procedure Rules] is explicit that an application made ex-parte under sub rule 3 of the order shall not remain in force for more than ten days. For the trial judge to order that the applicants and their assigns be prohibited from embarking on a demonstration on the 9th of May, 2021 or any other date until the Restriction on Public Gathering is lifted by the appropriate authority [read the President], the trial Court clearly exceeded its jurisdiction”.
Now, are you following closely? Well, if you are, you should be asking yourself, where from Order 25 Rule 1(9) of the High Court Civil Procedure Rules? So far, I have only spoken of Section 1(6) of the Public Order Act. In fact, the Police, as henchmen of the Republic, went to Court and told the Court that they were seeking to rely on Section 1(6) of the Public Order Act. The Judge gave her ruling based on Section 1(6) of the Public Order Act. So, not us, the Police nor the judge made reference to Order 25 Rule 1 (9) of the High Court Civil Procedure Rules. No one was under any illusion that the application had not been made under Order 25 of the High Court Civil Procedure Rules.
So where did the Court derive that from? I cannot hold an inquest into their minds, for they failed to tell us how they came by it.
I argue however that this sleight of hand was the real injury to our case. [Mind you it was not the only one, and I will get to the others.] Because by choosing to substitute Order 25 Rule 1 (9) of the High Court Civil Procedure Rules for Section 1(6) of the Public Order Act, what the Supreme Court was doing was that it was actually transforming the nature of the Court’s order to something of its own creation. First of all, this magic act mollified the effect of the Judge’s order and disarmed the real injury caused to the Constitution and to our constitutional rights, by the injunction. Further, it allowed the Supreme Court to play ostrich and refuse to engage with the critical question of whether any judge is competent to grant an order under Section 1(6) of the Public Order Act, without first giving the responding party an audience. In other words, can the Section 1(6) village chief ban us, without first hearing us.? In addition, what the Supreme Court did, allowed it to avoid answering the most important question, whether the reasons adduced and adopted by the Judge to grant the injunction, in this case, the COVID-19 restrictions, justified indefinite or any other ban of demonstrations.
If you have followed me so far, I should clarify that that orders obtained under Section 1(6) of the Public Order Act are not the same as orders obtained under Order 25 of the High Court Civil Procedure Rules. How so? Well, a judge has no authority to give an ex parte order under Section 1(6) of the Public Order Act. Also, orders, such as injunctions, obtained under that Section 1(6) must of necessity be final orders and not interim ones. It is only possible to obtain such an interim order under Order 25 of the High Court Civil Procedure Rules. Even in that case, it can only be under extreme circumstances of urgency.
This statement is so basic that it is hardly contestable. In fact, in the same Let My Vote Count decision, Justice Dennis Adjei also made it clear that
any application under the Public Order Act should be on notice as it is used to initiate an action and [where] the Police is of the opinion that there is the need to apply for an interim injunction which is fixed, they may subsequently, file it under Order 25 rule 7 of C.I. 47, [which] provides that in case of urgency, a party may make the application ex parte supported by an affidavit to pray for an “interim” injunction which if granted shall remain in force, for not more than 10 days unless the Court otherwise decides.
But this is not what the Police did!
Well, 2 sentences and 1 paragraph later, we are now less certain of the state of our laws and of what esteem the Supreme Court today holds of the Constitution. The disappointing brevity of that ruling is even more accentuated by the fact that 5 Justices of the Supreme Court appended their signature to it. Not a single one of them dissented or showed themselves capable (as they sure are) of reasoning differently. It is a poverty to our democracy that more and more, our judges are little minded to write their own opinions, or to distinguish themselves by their judicial individuality.
Judges are appointed and empanelled individually and not as a collegiate. Collegial decisions, which must of themselves be rare, should only be deployed when the authority of the entire Court is being thrown behind a question so fundamental to our way of life, that the Supreme Court must speak with one voice. And even in those cases, such as this, 2 sentences and 1 paragraph does not cut it! In Ghana, unfortunately the reverse is often true. It is possible for judges on our Supreme Court to go for a full year without ever writing their individual opinions. They are always concurring with someone else. The sentence, “I have read the decision of my brother/sister so so and so, and I have nothing useful to add” has become a nifty shortcut for judicial indolence.
Lets play the mad man’s game!
You remember the old story about when you are bathing, and a mad person snatches your towel? Do you run after them? And if you do – likely butt naked- does that make you a mad person too?
Let’s get our towel back!
Now at this point, I should be ending this piece. But, I want to be fair to the Supreme Court. I want to run after it; and engage them on the merits of their own logic and reasoning.
According to the Supreme Court, an ex parte injunction obtained under Order 25 of the High Court Civil Procedure Rules necessarily expires after 10 days. In their contention, it is because the High Court judge purported to make an order in excess of the “statutory” 10 days, that her order was defective. They used a fancy way to describe it. They said, she “clearly exceeded [her] jurisdiction”. As lawyers know, this is language you use when the judge acted completely contrary to the law.
Is this true? One of the basic rules of legal interpretation that our Supreme Court always hammers on, to the point of it becoming annoying, is that laws and every document in general must be read as a whole and not piecemeal or in a disjointed fashion. As they always say, the interpretation of a law must engage the sum of all its parts, and “should involve the interplay of forces that produce a melody and not the highlighting of the several notes”. Simply, you cannot hold a choir, if only the bass notes are being sung.
So, did the Doctor eat her own apple?
Well, if the Court had been minded to sing aloud Order 25 Rule 1 (10), as it did with Rule 1 (9), it would have quickly disabused itself of the idea that the judge had no jurisdiction to grant an order which was longer than 10 days, if she had acted under Order 25. Order 25 Rule 1 (10) says that the Court can decide that an ex parte injunction should go further than 10 days. Remember that order the Police obtained against the NDC, I mentioned above? It was for 20 days.
In fact, if you refer to Justice Dennis Adjei’s decision I earlier mentioned, you would note that he said, after initiating an action under Section 1(6) of the Public Order Act, the Police may
“file another application under Order 25 rule 7 of C.I. 47, [which] provides that in case of urgency, a party may make the application ex parte supported by an affidavit to pray for an “interim” injunction which if granted shall remain in force, for not more than 10 days unless the Court otherwise decides.”
“UNLESS THE COURT OTHERWISE DECIDES” are the operative words in Order 25 Rule 1 (10). In this case, if we were to even accept the Supreme Court’s logic, then we will be arguing against ourselves, to contend that the judge lacked jurisdiction to make the order she did. She very clearly had such jurisdiction, under Order 25. In fact, the only way to impeach the judge’s indefinite order, if we were to accept the Order 25 fallacy, would have been to demonstrate, for instance that the set of facts before her, did not entitle her to make an order she so “CLEARLY” had jurisdiction to make. In this case specifically, it would have been that that the COVID-19 restrictions she relied on, could not sustain an indefinite order.
Further, Order 25 on which the Supreme Court relied, requires explicitly in Rule 1 (8), that an application made ex-parte under subrule (3) shall not be granted unless the applicant gives sufficient reasons for making it ex-parte and specifies some irreparable damage or mischief which will be caused to the plaintiff if the plaintiff proceeds in the ordinary way. Did the Supreme Court satisfy itself that the affidavit the Police supplied in support of their application, contained “sufficient reasons for making it ex-parte and specified some irreparable damage or mischief which will be caused to the Police”?
Anyway, I could go on, but I think I should end here: where the applause is becoming weaker, the eyes drearier and the jargon thicker.
So, as we all wait, for that sure to come letter from the Judicial Secretary, which will tell us, if judging by the Chancellor’s foot, this article is contemptuous or must entail professional disciplinary consequences before the General Legal Council, please be encouraged that Illegitimi non carborundum!
Mawuse Oliver Barker-Vormawor was a researcher to the Constitution Review Commission and Law Clerk to the President of the International Court of Justice. His research interests are in International Law, Legal and Political Philosophy and Constitutional Law.
