Kufuor Never “Packed” The Supreme Court Against Tsatsu

Editor-in-Chief of the Crusading Guide Newspaper, Kweku Baako Jr. says John Agyekum Kufuor, as President, never ‘packed’ the Supreme Court to overturn an unfavourable verdict against the State in the infamous Tsatsu Tsikata v Attorney General case.

The former Chief Executive Officer of the Ghana National Petroleum Corporation (GNPC) was accused of “willfully causing financial loss” of 2.15 billion old cedis to the State, due to alleged mismanagement of the facility.

The charge followed a discovery, through a forensic audit report, that Tsikata allegedly side-stepped laid-down corporate objectives of the Corporation by circumnavigating the board and unilaterally committing the GNPC to guarantee a loan.

He allegedly paid out the loan plus interest, which adversely affected the financial status of GNPC and caused a loss to the State.

Tsatsu first appeared before a Circuit Court where proceedings were terminated. He was then arraigned before a Fast Track Court (FTC) on a charge for ‘willfully causing Financial loss of ¢2.15 billion to the state.’

He then filed a motion at the Supreme Court on February 11, 2002 and sought constitutional interpretation in respect of the FTC, as, in his view, the “Constitution, in making provision for the administration of Justice did not establish any court known as FTC”.

Tsikata, who is a Lawyer, argued that since the FTC was not known to the Constitution, it could not try him.

The Supreme Court upheld his position by a majority of 5-4 votes.

The Attorney General and Justice Minister at the time, Nana Addo Dankwa Akufo-Addo, after the February 28, 2002 ruling in favour of Tsikata, held a press conference and announced the Government’s intention to seek a review.

There were only 10 Justices of the Supreme Court at the time and since the Bench always sat in odd numbers, there was the need for an additional Justice to be empanelled alongside the 10 others.

At least two extra judges, therefore, were needed to top-up the original panel of nine.

Then President John Agyekum Kufuor nominated Justice Dixon Kwame Afreh, subject to Parliamentary approval, as the eleventh Justice of the apex Court.

The Minority National Democratic Congress, at the time, led by Alban Bagbin, boycotted the approval of Justice Afreh in Parliament.

The eleven-member review panel eventually overturned the earlier 5-4 ruling.

Critics have persistently used the Tsatsu Tsikata case as a yard stick to accuse Kufuor and Akufo-Addo of warping the tenets of justice in Ghana.

Speaking on Joy FM’s news analysis programme ‘newsfile’ on Saturday August 17, 2013, Kweku Baako said contrary to the widely held misconception that Mr. Kufuor abused his executive powers to bend the Judiciary to his whims, the former President did no such thing.

“Everybody knew that by the dictates of this Constitution, if there’s an original litigation…and somebody wants to go for a review, under article – is it 133 (1) or is it (2) – to seek review, there is a top up”, Kweku Baako noted.

“They knew it, but they bastardised the operation of that constitutional provision and made it look like as if it was the Executive that was deliberately packing the Court and manipulating the Judiciary. So there was this level of mis-education. Up to today, there are still people who think that that thing was an unconstitutional act and a classic example of Executive manipulation of the Judiciary”.

Asked by the Hose Samson Lardi Ayenini about the propriety of the timing, Kweku Baako said as he is concerned, “there was absolutely nothing wrong” it.

He added that: “After all it was only one Judge that went on, the 10 were already there”.

Brief History / Background
The five justices who declared the Fast Track Court (FTC) unconstitutional on February 28, 2002 were: Mrs Justice Joyce Bamford-Addo, Mr Justice A. K. B. Ampiah, Mr Justice F. Y. Kpegah, Mr Justice E. D. K. Adjabeng and Mr Justice Theodore Adzoe.

They explained that in making provision for the administration of justice, the Constitution did not establish any court known, as the FTC neither had Parliament under Article 126 (i) (b) of the Constitution exercised its power to establish any such court.

They pointed out that Parliament in the exercise of its powers under the same article had established circuit and community tribunals under the Courts Act; Act 459 of 1993 sections 40 and 46 and granted them specific criminal jurisdiction.

“There has been no similar legislation creating any FTC”, they said. The Supreme Court by a majority of five to four gave judgment in favour of Mr Tsatsu Tsikata, former Chief Executive of the Ghana National Petroleum Corporation (GNPC) on February 20 and deferred the reasons.

Mr Tsikata had sought the following injunctions: “(1) “That there is no ‘Fast Track Court’ to try criminal cases established under the Constitution of the Republic of Ghana, and there is, therefore, no constitutional foundation for the Plaintiff to be prosecuted before such court. (2) That the oral demand by agents of the Defendant to Plaintiff to appear before a ‘Fast Track Court’ when no such court for trial is provided for in the Constitution of Republic of Ghana, is an infringement of Articles 125 and 126 of the Constitution establishing the Judiciary. (3) An injunction against the Defendant and their agents restraining them from seeking to proceed with a trial of the Plaintiff before the purported ‘Fast Track Court’.”

The four justices, who dissented, were: Chief Justice Edward Kwame Wiredu, Mr Justice George Acquah, Mr Justice William A. Atuguba and Ms Justice Sophia A. B. Akuffo.

They argued that the reasons adduced by the Majority were porous and legally untenable. They argued that all the courts were constitutionally established and that the FTC was only a division of the High Court and wondered why the plaintiff, Tsikata said the setting up of the FTC was unconstitutional.

The Minority explained that there are High Courts in all the regional capitals and some of the district capitals including Denu, Hohoe, Nkwakwa and Mampong and that they were established under the 1992 Constitution with the aim of bringing justice to the doorsteps of many Ghanaians.

“The FTC is ordinary High Court with innovations- new technology to facilitate the process of justice delivery” they said. They said the FTC was a division of the High Court at an experimental stage but when all the High Courts become automated the adjective ‘Fast Track’ would no longer apply.

They stressed that the Fast Track Court was essentially a division of the High Court with improved facilities but followed the normal procedure of the traditional High Courts. They contended that it was an official act that introduced the FTC and in dealing with matters of this nature, the sovereignty of the nation must be considered.

The Minority, therefore, declared that it found no substance in Tsikata’s claim in challenging the legality of the FTC. The Minority drew attention to the fact that the Court of Appeal had been mentioned in singular terms in the Constitution but in fact there were two Appeal Courts namely the Criminal and Civil courts and, therefore, contended that the High Court had equally been mentioned in singular terms, with the FTC inclusive.

They explained that the negative effect of the judgment was likely to affect every Ghanaian, because the Majority failed to consider the innovation being put up in the FTC.

The Minority stated further that lack of funds had thwarted several attempts to update and modernise the High Court System to become the best in West Africa and added that Ghanaians would continue to suffer due to the slow dispensation of justice, should FTC be abolished.

“Ghanaians are complaining at the slow pace at which justice is delivered at the High Court, it is, therefore, in order to establish the FTC to speed up the delivery of justice in our courts.”

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