The decision by the Chief Justice, Gertrude Sackey Torkornoo, to reconstitute a panel hearing interlocutory appeal by Dr Stephen Kwabena Opuni, former Chief Executive of COCOBOD, has generated public interest in the happenings in the third arm of government.

The decision of May 8, 2024, to replace three members of the original panel without reasons gave way to critics to question how the CJ is exercising her powers.

Social commenters, politicians, academia and civil society groups have all weighed into the conversation of what happened was right or wrong.

Prof. Stephen Kweku Asare also known as Kweku Aza was first to throw in a bombshell, posting several comments on his Facebook wall.

The following are his opinions shared on the matter:

A justice system that allows the CJ alone to constitute and reconstitute SC panels at will is not fit for purpose.Da Yie!

1. According to the A-G’s press release, the Court gave directions to the parties in January 2024.2. The parties complied and a hearing was listed for May 2024.3. In May, “the panel for the hearing of the appeal was reconstituted by the Honourable Chief Justice in exercise of her powers under the Constitution, 1992.”4. The A-G further alleges that “commentary on social media by some persons including, Prof Kweku [sic] Asare, are laden with falsehood and contain an imputation that the composition of the panel for the hearing of the appeal on 8th May, 2024 was unusual, questionable or in violation of the Constitution.”5. GOGO’s commentary has consistently questioned the power of the CJ to reconstitute panels without cause as she did in May.5. The A-G’s press release does not deny that there was a reshuffling in May. 6. Where then is the falsehood?7. The January panel comprised of Justice Mariama Owusu (presiding), Justice Yaw Darko Asare, Justice Yonny Kulendi, Justice George Koomson, and Justice Henry Kwofie.8. The May panel comprised of CJ Gertrude Sackey Torkornoo (presiding), Justice Mariama Owusu, Justice Henrietta Mensa-Bonsu, Justice Yaw Darko Asare, and Justice Ernest Gaewu.9. Why did the CJ reshuffle the January panel and remove Kulendi, Kwofie, and Koomson from the May panel? We want an answer!10. Why did the CJ reshuffle the January panel and put herself, Mensa-Bonsu, and Gaewu on the May panel? We want an answer!11. Why set a panel to direct the parties in January and then a new panel to hear the case in May?12. What specific law empowers the CJ to empanel and remove justices of the SC from panels without explanations to the parties? It is not enough for the A-G to indicate that she exercised her powers under the 1992 Constitution. He must indicate the provision of the Constitution that grants the CJ that specific power to reshuffle Court panels without cause.

13. What is the justification for this bifurcated empanelment process?

14. GOGO is not the least bit impressed by the argument that no hearing took place in January and therefore the CJ is free to reshuffle the panel. No law or rule of the SC supports this fanciful theory.

15. In fact, GOGO has treated that argument with contempt and has not addressed it because it is puerile.

16. The panel was duly constituted in January when it gave directions. The issue is why was that panel changed, not whether there was a hearing in January, however one will want to define hearing.

17. Being the head of the judiciary does not give the CJ any power to treat justices and parties capriciously. She can’t send parties for directions from one panel and redirect them to another panel for other processes.

18. She cannot reshuffle justices from cases as if she is a President reshuffling ministers from ministries.

19. On a 5-person panel, the majority is 3. So removing and replacing 3 members of the panel raises profound questions about fairness, justice, and abuse of power.

20. Justice emanates from the people, not from the bosom of the CJ. The people are entitled to explanations for actions that have no basis in law. And, for the avoidance of doubt, it is only the CJ who can and must explain why she chose to reshuffle a duly constituted Court panel that had previously provided directions to the parties.#SALL is the cardinal sin of the 8th ParliamentDa Yie!

1. The Supreme Court (SC) consists of the Chief Justice (CJ) and not less than 9 other Justices of the SC.

2. The Constitution stipulates that any 5 members of the SC can sit on a case. The minimum number of justices to review a case is 7.3. If there is no limit on the number of SC justices but any 5 of them can decide a case, then who or what determines the 5 that can sit on a particular case.

4. This is not a trivial problem because it can readily be seen that the resolution of a case turns on the justices who are selected to sit on a case.

5. Unfortunately the Constitution does not tell us how the panel of 5 is to be chosen. 6. Historically, the CJ has been responsible for choosing the panel. This practice may have evolved from NLCD 84 and Akuffo-Addo v. Quarshie-Idun [1968].

7. Of course, even though the CJ is assumed to have high integrity and is presumably thoroughly vetted by parliament, it is also the case that he is human and therefore subject to the well known human frailties.

8. Many have therefore raised questions about this practice and have pointed out that an opportunistic CJ could predetermine the outcome of a case by empaneling Justices of known views on the law.

9. These are not merely theoretical or conceptual problems. Justice Atuguba has publicly stated that he was frozen out of sitting in court cases for six months.

10. These questions have exercised the mind of some CJs, with CJ Wiredu addressing it with a practice directive that all but 2 of the justices will sit in constitutional cases. The 2 are set aside in case there is the need for a review.

11. The questions persist and it’s time for the Rules of Court Committee to address them. GOGO proposes that the creation and scheduling of the panels be assigned to the court’s registrar or registry. Further, the registry should be mandated to use a verifiable random system to choose court panels, using a court practice management software.

12. GOGO also suggests that a minimum of 9 justices sit on all constitutional cases. This will avoid the problem of panels reaching different decisions on the same constitutional issue as has happened in Osei Boateng (whether ambiguity is a precondition for enforcement) and other cases.

12. For the avoidance of doubt, the CJ or other justices should have no role in forming court panels. It must be understood that in his role as a judge, the CJ is primus inter pares. He has 1 vote on a panel. He has no power to freeze other members or to decide who should and should not hear a case.

13. Whatever questions exist or solutions that are offered for the empaneling problem, there must be no doubt that nobody can reshuffle a constituted panel, without cause, once it has been announced.

14. Any attempts to interfere with the composition of an announced panel without cause must be considered as an obstruction of justice or interference with the administration of justice.

15. Justices of the SC must also be assertive and refuse to be reshuffled without cause.

16. The recent reshuffling of justices in the Opuni and Agongo case raises profound questions about fairness, abuse of power, and justice.

17. GOGO calls for reinstating the status quo by reversing the reshuffle and returning the case to the original panel.

18. GOGO calls for a full explanation of the attempted reshuffle.

19. At a time that trust in the justice delivery system is at an all time low, GOGO calls for transparency, not arbitrariness.

20. Public confidence will further decline if the public believes that the court system has become a one-person show.#SALL is the cardinal sin of the 8th Parliament.Da Yie!

It will be interesting to hear the GBA’s position on the reshuffling of SC panels. Da Yie!

The CJ has reshuffled a Court panel and some say GOGO should be silent. No way, we demand answers!Da Yie!

GOGO questions abrupt replacement of 3 Opuni panel members. Kulendi, Koomson and Kwofie out.Da Yie!

Godwin Edudzi Tamakloe, the National Democratic Congress (NDC) Head of Legal Affairs, arranged events of Dr. Opuni’s trial in a chronological order:

MInteresting happenings in the Dr Stephen Kwabena Opuni criminal trial.1. The case commenced with Justice C. J. Honyenuga.

He then a Justice of the Court of Appeal but given a warrant to sit at the High Court.He couldn’t finish the case until he went on retirement. While handling the case, he was promoted to the Supreme Court.

2. The received learning is that, in a criminal trial, since the liberty of the accused is at stake, you start the case de novo.

3. So the case was assigned to a new High Court judge, Justice Anokye Gyimah. A very distinguished judge for that matter.This new judge reasoned that in view of the many issues around the case, he wants to start the case de novo so he can fairly decide on the guilt or innocence of the accused persons. This judge was subsequently transferred to Kumasi and new judge brought to the High Court from Winneba.3. The Attorney General, Godfred Yeboah Dame disagreed with this decision and immediately appealed to the Court of Appeal. The three judges of the Court of Appeal reversed the decision of the trial High Court judge and concluded that the new judge from Winneba should start from where Justice Honyenugah left off. Godfred has won. Clap for him.Kpaa kpaa kpaa

4. Dr Stephen Kwabena Opuni immediately also appealed the decision of the Court of Appeal to the Supreme Court.This is where it gets interesting

5. The Supreme Court had a five member panel with the celebrated Mariama Owusu presiding.With Justices Yoni Kulendi, George Koomson, Kwoffie and Yaw Asare Darko.This panel then directed the lawyers for the parties to file their respective written submissions and the case adjourned usually for judgment.

6. The parties appeared before the Supreme Court only to see that the initial panel has been changed or reconstituted with the CJ replacing Mariama Owusu JSC. Effectively the majority of the panel members also changed.The initial panel members had to return the docket that was given to them as the practice is.Justice must be done even if the heavens will fall.Would the heavens fall?

The thing with good or bad judicial precedent is that it is always in front of you.The Akans say that the stick that was used on Baah, it will be used on Takyi.They came for the Jews, you said you are not a Jew.They came for the Catholics, you said you are not a Catholic.So they came for the Moslems, you said Walahi, I am not a Muslim.

My Tongu ancestors say that a man cannot see tomorrow even if he climbs the tallest tree. Tomorrow is pregnant.

All these two are lawyers but not the only ones who has something to say on an issue which is purely legal.

POLITICIZATION OF JUSTICE. The unfortunate politicization of our justice just took a giant step forward. Without explanation, at the 11th hour, the Chief Justice, Gertrude Torkonoo, replaced 3 of the justices she had empanelled to hear the appeal in “The Republic vs Dr. Stephen Opuni & 2 others”. While the CJ, like a monarch, didn’t offer any explanation, the AG, who is, on behalf the government, an interested party, has leapt to her defense, accusing those raising questions of peddling falsehoods.

According to the AG, standing on article 157(3), the CJ has the right to change the composition of any SC panel, as long as the case has not been heard. Now, just in case you are wondering, I know nothing about the law but I know a bit of history and have more than a bit of common sense.

The common sense question is not whether the CJ has the right to do what she did but whether she has good sensible public interest reasons for what she did. Nobody believes that decision was made in a vaccuum.

Did she have reason to believe the judges who were replaced could not be neutral? In effect, without explanation, the removal the 3 justices has put them under a cloud.

It is said that ” a judge is lawyer who knows the President” so I know that the Supreme Court is political. Yet, speaking in Peru in 2007, former US associate S.C. Justice Antonin Scalia said” So those are my 3 ideal qualities for a judge– adherence to the law, scholarship, and an even-handered demeanor.”

Elaborating, he said, “The judge must conduct himself and his court in a way that INSPIRES PUBLIC CONFIDENCE IN THE PROCESS BY WHICH THE DECISION WAS REACHED. ”

This decision coupled with other decisions made under this government has deep, lasting destructive damage to our Judiciary and its reputation. Didn’t those who made this decision think of Kan Dapaah’s warning about one side winning most of the time? Didn’t they think of President Mahama’s warning that “We won’t go to the Supreme court again because we know we won’t get Justice”.?

How do well-meaning Ghanains counter Mr. Mahama’s assertions? To complete the cynicism, the CJ told an audience of women lawyers that, NADAA’s “belief in the rule of law has been evident during his tenure as President”. Really, Madam? I never thought I would say this but President NADAA’s government has been more damaging to our Judiciary than the government of President Rawlings.

Good men in good times, Mayor La Guadia best friend said, should not set bad examples for bad men. These arbitrary distortions we are witnessing today, would set the bad standards of tomorrow.

Ghana deserves better. Pending constitutional reforms, Parliament must enact a law clarifying the appellate process, speeding up the administration of Justice, making the selection of panels independent of personal whims and capping the number of Supreme Court justices.

These are trying times when good men and women of all parties must step forward and save our Republic. We are the men we have been waiting for. May God bless Ghana and all of you. Arthur Kobina Kennedy ( 14th May, 2024).

The government own advisor, Godfred Yeboah Dame was far from being cool with the turn of events.

The Attorney-General (A-G) and Minister for Justice believes that the critics got it all wrong with the decision of the court to reconstitute the panel.

The attention of the Office of the Attorney-General and Ministry of Justice has been drawn to deliberate misrepresentations in the media (traditional and social) about the composition of a panel to hear an appeal in the Supreme Court in a case entitled “Republic vrs. Dr Stephen Opuni & 2 Others”.

Publications in various newspapers, particularly the Herald, and commentary on social media by some persons including, Prof Kweku Asare, are laden with falsehood and contain an imputation that the composition of the panel for the hearing of the appeal on 8th May, 2024 was unusual, questionable or in violation of the Constitution.

The Attorney-General and Minister for Justice (A-G), a party to the case in question and owing a constitutional duty to protect the administration of justice from abuse, hereby sets the record.

Arguments in the appeal filed at the Supreme Court by Dr Stephen Opuni against an order of the Court of Appeal dated 3rd July, 2023, for adoption of evidence led in the case mentioned above, were heard by the Supreme Court on 8th May, 2024, and not on any date before.

The appeal was originally listed for hearing at the Supreme Court on 17th January, 2024. By that day, no written submissions had been filed in the matter.

A bare notice of appeal was the only process that had been filed in the proceedings.

The Supreme Court also did not invite any of the parties to make oral submissions, either in support of, or in opposition to any of the grounds of appeal filed by the appellant. It is thus undisputable that no arguments were heard by the Supreme Court on 17th January, 2024.

The Court rather gave directions for the future hearing of the matter by, ordering the appellant, Dr Opuni, to file his written submissions within 21 days, and the respondent, the Republic, to file her written submissions within 21 days of being served with the appellant’s submissions.

The appellant was given a further opportunity to file a reply within seven days of being served with the respondent’s submissions.

The parties duly complied with the directions of the Court and the appeal was subsequently listed for hearing on 8th May, 2024. On that date, the panel for the hearing of the appeal was reconstituted by the Honourable Chief Justice in exercise of her powers under the Constitution, 1992. Counsel for the appellant, Dr Opuni, citing article 157(3) of the Constitution, raised a grotesque and wild objection to the reconstitution of the panel, and in effect, insisted on the previous panel hearing his appeal.

The A-G prayed the Court to dismiss the objection as misconceived by alluding to the matters set out above, and noted that the operative words in article 157(3) of the Constitution are “… no person sitting in a Superior Court shall, having heard the arguments of the parties to that cause or matter and before judgment is delivered, withdraw as a member of the court …, until judgment is delivered”.

There had been neither oral nor written arguments in the matter heard on 17th January, 2024, and therefore article 157(3) was not triggered.

The Court, after considering the submissions of both counsel, overruled the objection.The A-G notes the persistent attempts by some media houses aligned to Dr Opuni to distort the effect of court proceedings relating to the prosecution of the former Chief Executive Officer of Ghana Cocoa Board.

These publications, many a time, are a gross misrepresentation of the evidence led at the trial, intended to ridicule the case of the prosecution and create false impressions about the soundness of the defence put up by Dr Opuni at his trial.

The A-G observes that most of the publications on the “Opuni case”, orchestrated by the accused persons themselves, transgress the limits of permissible speech as they are calculated at perverting the course of justice and/or prejudicing the fair hearing of that case. Nonetheless, the Republic remains focused on adducing cogent evidence in substantiation of the charges against all the accused persons in the case mentioned above and will not be overawed in that process.

For the purpose of educating the public, the A-G states that no party to proceedings in court, has a right to insist on a particular court or panel of a court to hear his or her case. In accordance with the Constitution and the Courts Act, 1993 (Act 459), the Chief Justice determines the composition of every court for the hearing of any matter.

The Chief Justice is a member of every court in the country and, has the power to request in writing a Justice of any of the Superior Courts of Judicature to sit on either the Court of Appeal or the High Court at any time.

Further, consistent with article 128(3) of the Constitution, the Chief Justice presides at sittings of the Supreme Court, and in his absence, the most senior of the Justices of the Supreme Court, as constituted, shall preside.

A deliberate disregard of these basic principles is inimical to the sound adjudication of cases and portends danger for the entire society. END!!!