Et tu, Mr. Tsikata: Where are the Partisan Justices?

Mr. Tsatsu Tsikata, lead counsel for the Third Respondent in the just concluded Presidential Election Petition case, has reportedly accused one of the nine Justices who sat on the matter, Mr. Justice Anin Yeboah, of allowing partisan motivations to color his judgment in the case.

Appearing as a guest on a TV3 program on Saturday, August 31, 2013, Mr. Tsikata was asked by host Mr. Kwesi Pratt, Jr., if he was surprised that three out of the nine Justices voted to uphold three of the six claims filed by the Petitioners in the case. In reply, Mr. Tsikata said: “I’ll tell you very frankly that it didn’t surprise me that Justice Anin Yeboah was consistently in that group.” Mr. Tsikata alleged that Justice Anin Yeboah had been against the NDC from the outset, opposing not only the NDC’s initial application to be joined as a party in the case but also “consistently taking positions against everything that was put forward from our side.” He added that Justice Anin-Yeboah’s stance did not surprise him, as he had been appointed as judge by President Kufuor and “probably still has a certain loyalty to the cause” of the former President’s party. Mr. Tsikata also referred to a case involving him as defendant, which had been heard on appeal by a panel of judges that included Justice Anin-Yeboah. Although the appellate panel in that case ruled against Mr. Tsikata, in his reported comments he singled out Justice Anin-Yeboah as having ruled against him out of partisan bias.

Mr. Tsikata is, of course, entitled to express disagreement with the decision or position of a judge in a case. Judges wield enormous power and responsibility in our system of government, and judicial power, like all power, is liable to abuse and error. Critical, even vehement, disagreement with a judge’s decision or position is therefore a necessary recourse for holding judges accountable to the law they are sworn to uphold. There is, however, a world of difference between attacking the decision or conduct of a judge on legal or other intellectually principled grounds and attacking a judge ad hominem or assigning illicit yet unprovable motives to the judge. Mr. Tsikata’s remarks in relation to Justice Anin-Yeboah fall in the latter category.

If rules of professional ethics had any purchase or bite in our jurisdiction, Mr. Tsikata’s public comments in relation to Justice Anin-Yeboah would merit and attract appropriate discipline from the statutory body in charge of regulating professionalism within the legal community. This is not the first time Mr. Tsikata, an officer of the court, has felt at liberty to attack, without proof, the integrity and person of a judge whose decision or judgment in a case he did not agree with. However, now, as before, there is little chance of Mr. Tsikata being called to order or sanctioned for his professionally inapt and insulting remarks. In this land of our birth, all are presumed equal before the law, but some, evidently, are more equal than others. Mr. Tsikata apparently belongs in the latter category.

Not only are Mr. Tsikata’s comments also arguably contemptuous of the Court–that is, if one is to apply the same standards of criminal contempt used by the Supreme Court in the Mensah-Bonsu case and in the litany of contempt “convictions” the court handed down in the course of the just-ended petition trial—, his comments are, above all, curious and unfathomable, in light of what we know about this case. First, at the time of Mr. Tsikata’s remarks the full judgments of the nine Justices had not even been delivered or released as to enable anyone intelligently and critically to analyze and find fault with the judgments, let alone single out a particular judge for attack. What knowledge, then, unknown to the rest of us, could have informed Mr. Tsikata’s unprovoked remarks? Second, Mr. Tsikata’s attribution of partisan bias to Justice Anin-Yeboah is all the more curious when one considers the pattern of voting of the nine Justices in relation to the six issues presented for determination in this case, as announced by the Presiding Judge in open court on August 29, 2013 (and later modified by a notification from the Supreme Court Registry).

Of the four Justices in this case who are perceived by some, rightly or wrongly, to be pro-NDC/Respondents (Atuguba, Adinyira, Akoto-Bamfo, and Gbadegbe), one (Adinyira), was, like Justice Anin-Yeboah, appointed by President Kufuor. What does that say about Mr. Tsikata’s theory of partisan bias, which tries to attribute partisan bias to Justice Anin-Yeboah on the basis of his appointment by President Kufuor. Or is there some other factor or consideration in Mr. Tsikata’s calculus that we must know of?

Of the five remaining Justices, who are also perceived by some, rightly or wrongly, to be pro-NPP/Petitioners, four (Ansah, Dotse, Owusu, and Anin-Yeboah) cast a mixed vote. These four voted for the Petitioners on two or three of their primary claims (primarily over voting, voting without biometric verification, and unsigned pink sheets) but rejected the remainder of the Petitioners’ claims, while the fifth allegedly pro-NPP judge (Baffoe-Bonnie) voted with the four allegedly pro-NDC justices (and thus for the Respondents) on all but one of the six issues in dispute.

In short, if we must follow Mr. Tsikata’s lead and logic and analyze the Justices’ votes strictly on the basis of their presumed partisan predispositions, what the pattern of voting reveals is that all four allegedly pro-NDC justices voted for the Respondents on all six issues, while the allegedly pro-NPP judges, including Justice Anin-Yeboah, voted for the Petitioners on only some, but not all or even a majority, of their claims. Significantly, had the fifth allegedly pro-NPP judge, voted according to the partisan logic and not “broken ranks,” so to speak, the result in this case would have swung 5-4 in favor of the Petitioners. As it turned out in the end, the Petitioners lost, and Mr. Tsikata’s side won, thanks to the votes of two Justices who owe their seats on the Supreme Court to the same President Kufuor who appointed Justice Anin-Yeboah.

What is one to make of all this, in light of Mr. Tsikata’s theory? Clearly, this case proves that it is nonsensical to draw inferences or conclusions about a judge’s partisan predisposition or motivation solely on the basis of which President appointed that judge. (Or might the more interesting lesson here be that, NPP Presidents somehow do not know how to pick partisan judges?) Moreover, even if we were certain of a judge’s partisan predisposition, we must allow room for the possibility that the judge might still have cogent, legally sufficient reasons (which we can discern from a written judgment) for his or her decision in a particular case. In the end, each judge’s own conscience is the best judge of whether partisanship or other nontransparent or illicit motive, if any, may have influenced or swayed their vote.

That Mr. Tsikata would choose to open this can of worms, especially at this time, is all very perplexing indeed. One is not sure whether to put this to hubris or what. But sometimes, Mr. Tsikata, silence is golden. This case is over (or is it?). Your client won; Ghana is at peace as a result. It would be best to let sleeping dogs lie.

It is one thing to be a sore loser; it is another thing altogether to be still a sore winner! There is little to be gained, beyond mischief, by casting more stones from glass houses. This country has suffered enough already from the long-running politics of divide-and-rule and the politicization of everything, grand or petty, including the judiciary; a politics that conscripts and maddens far too many poor souls for the benefit of an elite few. Enough is enough.