INTRODUCTION
We live in very uncertain and precarious times. If one would heed the advice of the prophet Amos (in Amos 5:13), silence, outright silence will become our lot.
Yet, we are invited into CITIZENSHIP by the Constitution, 1992 in Articles 2, 3, and 41 to be brief. So, carefully and cautiously, we shall proceed to execute our Republican responsibility without fail. Indeed, I have the privilege to be a true REPUBLIC DAY BORN. May God be our Help as in ages past.
MY ARGUMENT
The 1992 Constitution is unambiguous about who the Chief Justice is and what s/he does. It gives him only TWO functions.
One: Article 125(4) — “The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”
Two: Article 128(1) and 128(3) — He is a Justice of the Superior Courts, and presides at sittings of the Supreme Court.
That is all. Administrative head of the Judiciary. Presiding judge of the final court. Nothing more.
The Constitution deliberately walls the CJ off from the Executive and Legislature. Article 125(3) is emphatic: “…neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.”
By parity of reasoning, neither shall the Judiciary be given or allowed Executive or Legislative powers. That is simple separation of powers.
So what is the Chief Justice doing electing to visit State Owned Enterprises to assess their performance? On what constitutional peg does he hang that tour?
Is an SOE a court? Is GRIDCo a division of the Judicial Service? Is COCOBOD under the supervision of the Chief Justice under Article 125(4)? Is TOR, ECG, Ghana Water Company Limited part of the Judiciary to be administered?
NO!
SOEs are creatures of statute under Article 190 and the executive arm. Their supervision belongs to the President through SIGA and sector Ministries, to Parliament through oversight, and to the Auditor-General. Not to the Chief Justice.
Therefore, the visits are untenable, unwarranted, and unconstitutional for three reasons:
1. It is Ultra Vires: It exceeds the administrative mandate of Article 125(4). Administration and supervision of the Judiciary cannot be stretched to mean inspection of executive commercial entities. That is constitutional officiousness. Nhwehwɛanimu in Twi.
2. It destroys Appearance of Independence: Article 127(1) says in the exercise of judicial power, the Judiciary shall be subject only to the Constitution and shall not be subject to control or direction of any person or authority.
When the CJ begins to tour entities which are frequent litigants before his courts, ECG sued every week, COCOBOD, GNPC in constant litigation, how does he later preside over their cases without bias? He has become an interested party. He has moved from umpire to player.
3. It is Political Work: The comments attributed to him about the past eight years and making Mahama succeed already poisoned the well. Now to follow it with tours of SOEs to lecture on their performance is to act as a Minister of State.
The Chief Justice is not a visiting efficiency consultant. The robe is not a political jersey. It gets worse when these comments are unresearched to say the least.
And this is why any further comment to defend the officiousness only adds insult to injury. It compounds the error.
Silence and retreat would be wiser than the noise making justifications, rationalisation, and equalisation. There is NO such record to equalise. Period! Let’s stop him from any further decay.
OBITER DICTA – WHERE JUDGES ARE PERMITTED TO SPEAK FREELY
Yes, judges are at liberty to make general remarks about happenings in the country. But the Constitution permits that strictly within the judicial function — in judgments, in obiter dictum.
An obiter is a remark made by the way, in passing, while deciding a live case before the court. It is not a press conference.
It is not a courtesy call. It is a permissible free expression of the judge on day to day happenings as a member of society affected by it.
Classical examples:
- Justice Jones Dotse in Woyome v. Attorney-General (2014) — “create, loot and share.” That devastating indictment of public sector rot was made inside a judgment concerning the unconstitutional payment of GH¢51m to Alfred Woyome.
- It was judicial commentary anchored to a case.
- Justice Date-Bah in Tetteh v. Mensah — on the cancer of litigation and family property.
- Justice Sowah in Tuffour v. Attorney-General (1980) — the famous dictum that a Constitution is a living organism.
- Justice Atuguba in the 2013 Election Petition — warning that “electoral fraud is not in our law.”
That is permitted. That is courage within jurisdiction. A judge sees rot exposed by evidence before him and comments in his judgment to deepen our democracy.
What is NOT permitted is for the Chief Justice to leave the courtroom, enter an SOE boardroom with cameras, and give running commentary on the economy. That is not obiter. That is obiter outside the court — officious political commentary.
If CJ Baffoe-Bonnie has views on SOEs, let him wait until an SOE matter appears before the Supreme Court, and then, in a proper ratio or obiter, tell us whether the law was obeyed.
Until then, he should stay in his constitutional lane.
The Chief Justice is Head of the Judiciary. Not Head of SOE Inspection under SIGA or its parent ministry.
Ghana shall live and NOT die in the hands of those who seek her death.
