A retired Supreme Court Judge, Justice William Atuguba has stated that independence of the judiciary cannot be achieved unless the power to appoint judges is taken away from the president.
He argued that the constitutional provision that vests the power to appoint judges in the president is problematic.
The retired judge noted that this mode of appointment enables the president to nominate his favourites and persons who think like him, as judges.
“The mode of appointment of judges suffers from the virus of hepatitis infection. It has even gone to cirrhosis. Why do you want to establish an independent judiciary, and the president is the appointing authority? Look at the appointments. He specifically has the power to nominate the Chief Justice who is the head. How can you have independence of the judiciary when the head is yours,” he asked.
Justice Atuguba made the statement when he contributed to discussions on TV3’s news and current affairs programme Key Points, on November 16.
The subject for discussion was the Supreme Court’s ruling on a declaration of 4 seats vacant by the Speaker of Parliament, Alban Bagbin.
It would be recalled that on Tuesday, November 12, the Supreme Court by a 5-2 majority decision upheld the suit filed by Alexander Afenyo-Markin to the effect that Speaker Alban Bagbin misinterpreted article 97 (1)(g)(h) of the 1992 Constitution by declaring four seats vacant. The two dissenting justices thought the apex court did not have jurisdiction over this matter.
The suit filed by Afenyo-Markin brought a stalemate in Parliament as the NDC members assumed the Majority position based on the Speaker’s ruling. This prompted the New Patriotic Party Members of Parliament to boycott proceedings of the House.
Touching on the issue of why the empaneled judges for this case were mostly the younger ones, Justice Atuguba said politics was the main consideration.
“What reason will you use to justify empaneling younger judges over seasoned ones for such a landmark case, if not politics,” he asserted.
The retired judge opined that the reasoning by 5 of the 7 Supreme Court judges in the vacant seats case was predictable.
He explained that the same five judges accepted jurisdiction over the case despite decided cases which state the contrary.
According to him, the Supreme Court should always take up cases in which it has “original or exclusive jurisdiction, not “referenced or concurrent jurisdiction.”
Therefore, it was virtually impossible for them to accept jurisdiction and turn round to come out with a ruling that will contradict their earlier stance.
“The same five judges accepted jurisdiction, so it was predictable. The political poisoning has gone to its peak. the constitutional virus must be cured. if it continues, we will have rule of politics instead of rule of law,” Justice Atuguba said on Key Points on November 16.
Justice Atuguba warned of dire consequences for the country if what he described as ‘politicisation of the judiciary’ does not cease.
Justice Atuguba believes that the reasoning of the 5 Supreme Court judges in the vacant seats was underpinned by political considerations.
According to him, but for political considerations, the judges would not have accepted jurisdiction for the case in the first place. Justice Atuguba bemoaned that politicisation of the judiciary started some time ago, but it has reached its peak.
“What is happening is mere politics. If we don’t arrest it, this vice will continue to fester and the constitution will be subverted,” he warned.
The retired judge further described the reasons adduced by the majority of the Supreme Court judges as “Superficial reasoning.”
He added that there is “massive constitutional deterioration” in the system and laid the blame at the doorstep of the mode of appointment of the Chief Justice.
The post How can you have independence of the judiciary when the head is yours? – Atuguba on mode of appoint of Chief Justice first appeared on 3News.
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