Will
the real MPs stand out and be counted?
By
Stephen Asare, Florida, USA
Florida
(USA) 23 Sept 2003 - Parliament's Appointments Committee will commence hearings
on September 24, 2002 to consider the President's nominations of justices of
the Supreme Court (SC). The nominees are Mr. Justice Stephen Allan Brobbey, Mr
Justice Glenn Baddoo and Mrs Justice Georgina T. Wood, all justices of the
Court of Appeal. The rest are Prof Samuel K. Date-Bah, Special Advisor (Legal)
of the Commonwealth Secretariat and Dr Seth Twum, a private legal practitioner.
These
appointments were appropriately made in accordance with article 144 (1) and (2)
of the constitution, which indicates that SC justices shall be appointed by the
President acting on the advice of the Judicial Council, in consultation with
the Council of State and with the APPROVAL of Parliament.
Approving
a nominee of the SC is probably one of the most important decisions that any MP
can make during his or her tenure. In addition to their broad powers to
interpret the constitution and act as final arbiters on all judicial disputes,
SC justices have "tenure" in that they can be fired from their
positions only with significant difficulty.
Even
more important, because article 128 (1) does not impose a ceiling on the number
of SC justices, the country must rely on Parliament as the only potential CHECK
on any President seeking to pack the court and to potentially hijack the minor
democratic gains that we have made under Constitutional Rule. Article 128 (1)
states that, "The Supreme court shall consist of the Chief Justice and not
less than nine other Justices of the Supreme Court." This means the court
can have anywhere from 10 to an infinite number of justices, an opportunity
that can be exploited by a President acting in accordance with 144 (1). Only
Parliament, by virtue of its APPROVAL function, can act as an effective check
on such a President.
It
is because of this problem with article 128 (1) that those of us from the
liberal tradition had hoped that one of the first actions of President
Kuffuor's government will be to seek to amend this article. However, that has
not proven to be the case. On the contrary and to our disappointment, Mr.
Kuffuor appears bent on exploiting this constitutional loophole.
The
hearings on Tuesday, therefore, present a unique opportunity for Ghanaians to
see their MPs in action. It will be a test of Patriotism versus Partisanship. I
know many of the nominees and all of them are exceptionally well qualified. But
the issue before our MPs should not be mere qualifications.
The
issue should be the fundamental one of how many SC justices can a country like
Ghana afford. I expect MPs to have a vigorous debate on the marginal cost of a
SC justice. This includes the salary, housing allowance, car allowance, car
driver, other perks, pensions, etc. Then, they should also explore the marginal
benefit of a SC justice.
What
will one more justices add to the court? If 11 justices cannot get it right,
why do we expect 17 to get it right? On the other hand, if 11 can get it right,
why will adding 6 more be an improvement? Further, without prejudice to the
marginal analysis, the MPs should discuss the funding of these positions, given
our precarious budget situation! Will the country not be better of f by
diverting these additional costs to the primary schools, providing Water,
Electricity and Toilet (WET) or even creating Fast Track Courts in the rest of
the country?
For
almost a decade, we have been operating a supreme court of 11 justices. This,
to my knowledge, has never been a problem. In fact, article 128 (2) allows 5
justices to hear a case, although I believe this article creates the same abusive
opportunities for the SC chief justice.
USA,
a highly litigious country of 250M people has only 9 SC justices. Florida, a
highly litigious state has only 7. There is no reason why Ghana should have 17
justices. This hearing, and the subsequent vote by parliament, will be a
particular trying time for the NPP MPs. After all, these are Kuffuor's
nominees. But the nation will listen very carefully to their every word! It
would be especially interesting to hear the views of the minister of Justice, Nana
Akuffo Addo and Alhaji Malik Alhassan, the learned MP from Yendi.
Not
only must these nominees be rejected on grounds that the nation cannot afford
them, it is now time for parliament to amend the constitution to place a
ceiling on the number of SC justices of the SC. I suggest 7.
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