How the Busia govt and the judges dealt with bias

case in Sallah v A-G

Gabby Asare Otchere-Darko

Ghana’s Deputy Attorney-General recently introduced an element of footsoldierism to the courts by announcing on radio that the presiding judge in the murder case involving the 2002 killing of the King of Dagbon,
Ya-Naa Andani II, was bias. With that he has succeeded in getting the judge to excuse (or recuse) himself from the case. So with this background, what frame of mind is the next judge expected to be in?

In the words of the judge at the centre of it, “I have felt insulted, scandalised and indeed bastardised all in the name of the Attorney-General’s office attempt to play politics with the Bench in general and with me in particular.” Strong, damning words from the Bench to Government’s top legal officer.

Barton Oduro succeeded in letting the whole world-wide-web believe that the judge was actually recorded in a drinking bar ridiculing the prosecution case before him while he was under the influence of alcohol.

Justice Anthony Oppong said in stepping down from the case. “Barton Oduro Esq accused me of being a drunkard and being irresponsible enough to have gone to a drinking bar and under the influence of alcohol made prejudicial comments about the case. I vehemently deny thus. I have never been to a drinking bar and made any comment whatsoever on this Ya-Naa’s murder case. I challenge Barton Oduro Esq to substantiate this allegation or render an unqualified apology to me for running me that down.”

The Deputy A-G’s allegation triggered an avalanche of insults and threats against the judge, forcing him to withdraw from the case. Yet, when the Deputy A-G was asked to provide evidence he could only say that what he has captured on tape is the voice of an unnamed lady alleging that she heard or overheard the judge at a bar. In short, hearsay.

The Deputy A-G told a reporter of Justice Oppong, “If he thinks that he did not say it and he wants that matter to be gone into, I am ready. I am telling you, I have the evidence. When I interviewed the lady, I recorded it. It is on tape; I don’t do things just for the fun of it.”

Asked if the interview with the unnamned woman was a third party interview, the deputy A-G retorted: “What are you telling me?: The lady who was sitting on [sic] the table with him when he made the pronouncements. Let’s not go into that.”

Under such circumstances, the A-G (Mrs Betty Mould or her Deputy), who may already be worried about the
strength of his case, considering the pressurized political background that led to it, would have been in her rights to first assure herself of the credibility of the lady’s allegation and proceed quietly to file a
motion on notice asking that Justice Oppong be disqualified from hearing the case, particularly were the lady making the accusation prepared to testify in court to back it. For a country where people make a profitable
industry out of rumour-mongering and peddling false allegations responsible people should first satisfy themselves on the facts alleged before giving it currency.

A similar issue came up forty years ago in a similarly charged political atmosphere – that time between the UP people (under the ruling Progress Party) and those of Nkrumah’s CPP. The case was Attorney-General v
Sallah. Yet, in that case, when the rumours started making the rounds about the judicial bias the Attorney-General went directly but quietly to the Chief Justice to complain of possible judicial bias. Acting Chief
Justice Azu Crabbe informed the Attorney-General, NYB Adade, that if his informants were willing to come forward to substantiate their allegations of bias against two of the five Supreme Court judges sitting on the case,
the A-G could take up the matter in open court. And, that was how the matter was pursued – civilly.

In the Oduro Barton case, the judge was right in condemning the modes of objection chosen by the A-G and her deputy. The judge held, “Perhaps Baron Oduro Esq, forgetting that being Deputy Attorney-General he is the second leader of the Bar and in this regard a higher standard of legal practice is expected of him. Why would a person of that calibre go on radio and use me as a pawn to score cheap parochial political points, painting me as the worst judge in this country? He should be ashamed of himself. He must be told that that is not how we take objections to judges sitting on a case for whatever reasons.”

After the National Chairman of the governing NDC made that reckless statement that his party would cleanse the judiciary for the CJ using one of several ways to kill a cat to accomplish that task, his apologists were
quick to refer to the case of Salla v Attorney-General (in the Court of Appeal sitting as the Supreme Court, 20 April, 1970). As we are quick to do here in Ghana, they refer to Prime Minister Busia’s controversial ‘No
Court!’ statement to show that even the founding fathers of the NPP tradition disregarded judicial independence.

There, Kofi Badoo’s paper, the Spokesman, which served as the main voice of the left, put a spin on an otherwise uncontroversial but not politically advisable statement from Prime Minister Busia that even though
the Supreme Court had ruled in favour of a declaration sought by Mr Sallas over his dismissal as a public servant, by common law practice, “no court” could compel Government, or for that matter, any employer, to
employ a person it does not wish to work with.

In the Sallah case itself, 568 public servants received dismissal letters on 21 February 1970 from a presidential commission, acting in pursuance of a constitutional provision. Sallah, a former GNTC manager was one of the
affected workers, who took the matter to the Supreme Court for a declaration that upon proper interpretation his office fell outside of the offices contemplated by that constitutional provision.

The judges who sat on the case -- from March 16-18, 1970 -- were Apaloo, Siriboe, Sowah, Anin and Archer.

But, as the judges were deliberating to give their ruling, on March 24 the A-G filed a motion on notice asking that justices Apoloo and Sowah be disqualified from sitting and taking part in the hearing for fear of bias.
That trial within trial in the Sallah case gives us some education in what to do and what not to do when you suspect judicial bias.

Victor Owusu, External (Foreign) Affairs Minister at the time swore an affidavit to the effect that Justice Sowah had more than a judicial interest in the Sallah case because whiles on the golf course with Justice
Sowah, the judge told him that after the Presidential Commission ordered the dismissal of the so-called Apollo 568, the half-sister of Justice Sowah, a Mrs Jonas, approached the judge in tears and asked him to help her husband whose employment had been terminated to be reinstated. Mr Jonas was formerly of the Lands Secretariat.

The A-G argued that not only was Justice Sowah related to one of the 568 affected workers, but that by talking to a cabinet minister, Victor Owusu, about it he had indeed taken steps to implement the request of his sister,
whose husband was nevertheless still an Apollo 568 victim.

In the case of Justice Apaloo, several witnesses came to testify that he was a close personal friend to Sallah and that the relationship between them was so intimate that it would be difficult, if not impossible, for
him to decide the case impartially. The allegation as retold below had a cunning semblance to that against Justice Oppong today.

When the evidence of the witnesses was put to strict proof it was found to be an “infamous invention”. Two of the three witnesses were journalists and Moslems – Alhaji Yakubu and Fatayi Braimah. They said on February 7, 1970 they went to dine at the Hotel Continental (now Golden tulip) at about 10pm where they saw Justice Apaloo, Mr Sallah and two ladies dining together at one table. They said they went to eat there after seeing
pilgrims off at the airport to Mecca. They both said the flight departed at 1am.

The Duty Officer of Ghana Airways testified that on the night in question the Hajj flight to Mecca departed on schedule at 10pm. Another witness, the Restaurant Manager at the Hotel Continental told the court that there were only two dinners for four people that evening at his restaurant, one of which was paid for by a resident of the hotel and the second through a charge account by a name which was neither Apoloo nor Sallah. The other
order contained pork, which according to the court, “no Moslem, not to mention an Alhaji or one who had just seen off a pilgrimage to Mecca, would touch. The evidence of those two witnesses must therefore be
rejected as an infamous invention.”

It was not in dispute that Apaloo knew Sallah, even Victor Owusu also gave evidence to that effect. Defence lawyers, led by Joe Rheindorf, did not dispute the friendship but the level of intimacy argued by the A-G. The
court held, “there was the opinion volunteered by Mr Victor Owusu, a Minister of State, that from his knowledge of both Justice Apaloo and the respondent he would describe their relationship as that of very close and intimate friends. We are bound to give the most serious consideration and to pay respect to the opinion of a Minister, but we would have wished for some factual statement of the basis of his opinion to enable us evaluate
for ourselves the degree of friendship in order to determine if it would give rise to that likelihood of bias which the law should avoid… Unfortunately, we had no such facts from the Minister.”

It was held, “In objections like the instant one, evidence is not often required because the facts, which are often true, are uncontroverted. But where the facts are controverted as in the instant application, they must
be proved.”

Barton Oduro should read Justice Amissah’s reasoning and draw some caution from it before treating hearsay as sacrosanct: “Upon consideration we reject [the story of the two Moslems witnesses] as an infamous
invention. It is a matter of concern that on an issue as grave as this and in a case of such importance when the reputation of a judge of the superior courts of the land is, in the conditions of the country, bound to
suffer in some measure, whatever lawyers might say about the harmless nature of objections on the ground of bias, by a mere allegation however baseless it is, no prior attempt seems to have been made to check this
story before it was given currency. It is even more disquieting when it is realised that the allegation was made through one who has the whole investigating machinery at his disposal.”

On the objection against Justice Sowah, the court held that the testimony given by Victor Owusu “was not evidence but hearsay and that where the evidence was available there was no reason why in a matter of this
gravity, we should be treated on this as well as on other allegations to hearsay… On the fact of [Victor] Owusu’s deposition, the case cannot be put above a casual reference to Mr Jonas’ plight made by Justice Sowah in conversation in a sporting club with Mr Owusu. That the direct evidence on
the point falls so markedly short of the hearsay gloss put on it must serve as a warning of the danger in relying upon hearsay as a means of proof…”

With Justice Siriboe dissenting, Justices Amisaah, Jiagge, Anin and Archer threw out the objection motion on the bases that the evidence did not support allegations of bias sufficiently to disqualify the two judges and
that the standard of proof must be that applied in a civil case – on balance of probability.

They held, “We do not think that in that case there is any justification for lowering the standard of proof. If that is done the courts would be laying themselves open to the danger we spoke of before, namely, of giving
the party the right to choose his own judge. We do not think that the courts should be reduced to the position in which parties before them may assume the competence of judges to decide in their favour but their
incompetence to decide against them. And that is why the allegations of fact when challenged must be proved.“

Referring to an affidavit by State Attorney EE Mensah, the court held that the A-G seemed to suggest “that talk and gossip of the relationships described are ‘assuming scandalous proportions and appear to be
undermining public confidence in the independence and impartiality of the judiciary,’ we have already indicated our opinion that in a matter of this nature idle talk and gossip cannot be the measure of the dependence or
independence of the judiciary. But, further, in a society where it is generally recognised by all right-thinking people that rumour-mongering ought to be stamped out, and ought to be stamped out rigorously, the least
the judiciary can do is to refuse to be deflected from what they believe to be their duty by whatever goes by the description of ‘talk and gossip’…”

The wisdom in that judgment given more than 40 years ago should help us today as, like then, the country seems divided on partisan lines. Then in a move to purge the civil service of the serious politicisation it
experienced under the First Republic Section 9(1) of the Transitional Provisions, as restated in the First Schedule of the 1969 Constitution, which came into force on 22 August 1969, provided that “any person holding a public office under the National Liberation Council shall after the Constitution comes into force, continue to hold that office only for six months unless reappointed.”

568 persons lost their jobs. This was the hot issue at the time and the government at the time lost the case before the highest judges of the land. It was a matter of unfair dismissal which ordinarily leads to damages and not necessarily reinstatement.

Sallas’ writ of summons and statement of claim sought: “a declaration that on a true and proper interpretation of the provisions of section 9(1) of the First Schedule to the Constitution (Part IV) the Government of Ghana
was not entitled to terminate the plaintiff’s appointment as a manager in the Ghana National Trading Corporation.”

The defence argued that Section 9(1) dismissed all public servants or gave them notice to the effect that after six months from 22 August, 1969 their services would no longer be required. The plaintiff counter-argued that
such an interpretation would be inconsistent with Article 138 of the Constitution which protected public servants from dismissal or removal without just cause. Section 9(1) was clear that “save as otherwise
provided in this Constitution” and “as far as is consistent with the provisions of this Constitution.”

Justice Archer, articulating the majority view, held, “It sounds strange that the whole gallant army of soldiers and police who brought about the revolution should all be dismissed by the very Constitution which came
into force as a result of their prowess. It would mean that all doctors, nurses, locomotive drivers, firemen, teachers, sanitary workers and every employee in the public service were all dismissed.”

The court agreed with the argument of the plaintiff that the NLC introduced various committee and appointed various commission and established offices upon assuming power and it was only natural that the new government would wish to review and make the necessary adjustments to suit its own administration in conformity with the provisions of the new constitution.”

Today, some public servants of the previous government are winning cases in court and the ruling party and the A-G are accusing judges of political or judicial bias purely on hearsay. The facts and ruling of the Sallas
case, both the substantive case and the mini trial, suggest that we have lessons from the past but we don’t seem prepared to let the imperatives of learning from those lessons get in the way of our short term partisan considerations.

The author is the Executive Director of the Danquah Institute, a centre-right policy think tank. [email protected]