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24/08/2010Page 1 of 1



Letter from Afar:   CAMERON DUODU


DISPUTES between the executive and the judiciary are nothing new. But they should be mediated within the confines of orderly, rational discourse and not be allowed to descend into emotional name-calling, threats or ignorant boasts to show where power lies.

When the Chairman of the NDC boasted that his party would deal with the judiciary because a judge had given a judgment with which he disagreed, had he read the parts of the Constitution that relate to the appointment and removal of judges?

Does the NDC command the sort of majority in Parliament that could empower it to remove a judge?

When NDC followers poured abuse on their own Attorney-General because she had lost a case, did they really understand what the Attorney-General’s position is, within the Government?

The Attorney-General presides over a department that advises the Cabinet on legal matters – advice that might be accepted or rejected. When the department takes a matter to court, it always knows that it might win or lose. Because the law is a matter for interpretation, and people can naturally interpret words – which in reality, what law are-differently, without malice.

Indeed, Mrs Betty Mould–Idrissu is being accused by NDC members in precisely the same manner that Nana Akufo Addo was pilloried by NPP supporters, when he was Attorney-General. But when he was transferred to the Foreign Office, did the NPP stop losing cases? Even if it did, it was probably because lesions had been leant about what to take to court, and how.

In my day, I have seen other Attorney-Generals suffer at the hands of their own supporters. Bashiru Kwaw Swanzy, Kwamena Nkrumah’s brilliant Cambridge-educated A-G, was harried after he had lot the treason case against Tawiah Adamafio and others. So legislation was passed in Parliament enabling the President to set aside a judgment of the superior court of judicature! Kwaw Swanzy’s name will always be associated with Dr Nkrumah’s dismissal of he higher t judges of the land of the time.

I also remember that Mr N.Y.B. Adade, Attorney General for the Progress Party Government, was vilified a great deal by his own side during the emotive litigations over the Apollo 568 dismissals. He was largely blamed for Prime Minister Busia’s “No court” speech, in which he claimed that “No court” could force his Government to employ people it did not want to employ in the public services.

A can of worms was opened by that case when Adade accused the Acting Chief Justice Mr Justice Azu Crabbe, of showing bias on behalf of a litigant, because he was somehow related to the litigant. Azu Crabbe, in turn pointed out that Mr Adade was also related to someone concerned in the case.

What all this shows is that it is pointless to set the judiciary against the executive. We have all agreed to live under a system called the rule of law. The supreme law is the Constitution. And the Constitution delineates the powers and functions of both executive and the judiciary in quite a precise manner. No-one can change that delineation without a referendum.

And I don’t think the NDC, which came to power with a wafer-the majority, is about to call a referendum to redefine the functions of the judiciary vis-à-vis the executive, is it?

So let us all learn to live within the confines of our own Constitution.

When I see how emotional people get over court cases, I have to restrain myself form laughing. For we had deliberately thrown out all our own traditional conflict resolution processes, and adopting both the party-political system of government, which is adversarial, as well as a judicial system, which is also adversarial.

In an adversarial system, someone always wins and someone always loses. You go to court hoping your opponent will lose. And if he does lose, you are happy. But when you lose, then you get ma. Is that a fair state of affairs?

Maybe to stop being so frustrated, we should revisit some principles that underlay our traditional system of justice.

I remember that when the Queen Mother of our town sat done to settle cases brought before her, she would be surrounded by all the elders of the town. The complainant would then be called to state his or her case. That was done by the complainant in person – not by some lawyer – so the elders could watch the person’s demeanour all the time.

If he or she stumbled over an aspect of the case, the elders made a mental note of it. If he or she got emotional or even broke down, they would comfort him or her with soothing words.

They would then ask the complainant whether eh or she had any witnesses to support her case. And they would ask the witness questions. Most of the questions would be meant to tease out the real truth and expose the well-rehearsed presentation plead before them.

Then they would go through the whole process again with the person complained against. They would then retire to “consult the old woman”.

And they would come back with a verdict that was almost always accepted by both parties. The parties would accept it because the experience of standing before elders they respected, and being allowed to tell everything like it was, had a therapeutic effect on them and relieved such much of the pain that made them go to court.

Interestingly, the party found “guilty was not punished as such but asked to pay something to “conciliate” the person wronged. This “conciliation”, known as mpata, was not the same as “compensation” or “find” It was much more sub than that – it addressed the litigants’ emotional needs by actually making them fear reconcile to the other.

Indeed, when the mpata was proposed, whoever was to receive it (the mpata) was asked whether he or she would accept it. Once it was accepted, the two people were meant to live together, henceforth, in harmony in the same village.

The litigant could refuse the mpata and appeal to the Chief of the town. But that would almost always be a wasted effort, for the Queen Mother and her most important elders would also sit in with the Chief, and unless a really strong new case was presented, the same verdict would prevail as in the Queen Mother’s court.

Of course, magistrates’ courts and superior courts of judicature were brought in by the British, either to totally negate our traditional system, or to lessen their importance. So now we have this adversarial system of “you win, I lose; you lose, I win”.

No reconciliation is possible in this current system, for by time the loser has paid the winner’s “costs,” his or her anger would have been redoubled.

So we now live in continually adversarial mode: we fight each other at elections; we fight each other over legislation in Parliament; and we fight each other over legal and constitutional issues in the courts.

Can our frail society, in which so many people go to bed hungry every day; sick people are unable to receive adequate medical treatment; people whose homes are destroyed by floods receive very little assistance; while stupid “people of influence” do not scruple to flaunt their conspicuous wealth before all and sundry, survive so much adversarial bickering?

I remember the shock with which I saw the pictures of Elizabeth Ohene’s brother, who had been brutally assaulted at a polling station in the Volta Region, during the election in 2008. And only last Sunday, a young friend of mine recalled the fear that engulfed him as he ran away from his office, in the last hours before the 2008 election result was declared, on hearing that office after office was closing for the day? This was after some irresponsible FM stations had incited people to converge on the Electoral Commission office, armed with cutlasses and cudgels.

We are definitely sitting on a time-bomb. If we don’t find ingenious ways to defuse it, but instead continue to prime it with unnecessary ranting about legal matters which only few of us really understand, it will explode beneath us.

The Kenyans sat down unconcerned until their time bomb exploded, even though they know of what had happened in Rwanda. In both cases, loud-mouthed semi-literates stoked the fires. In Ghana, our history is full of useful lessons. Let us then revisit that history – and learn form it. Otherwise we shall relive the worst parts of that history.


The Ghanaian Times          page: 8           Tuesday, August 24, 2010

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