opinionBy Lawrence N-Yaaba
Conscious of the touchline rule, I will try not to stray beyond it so as to avoid being sanctioned to appear before the Supreme Court, and "sized up" by the Judges and probably thrown into jail if I am not lucky like Sammy Awuku, the NPP'sDeputy Communication Director who crossed the line and was spared withbanishment from witnessing the petition case within the premises of the Court. Crossing the touchline rule will impugn upon the policymaking role of the Court and hence the Judges who are mandated by the Constitution of the land to undertake all this important function for the motherland. It is this constitutional mandate and the respect for the supremacy of this important institution in the interest of security, peace and tranquility of the nation, which are hallmarksfor any human development that impelled the judges to throw the likes of Steven Atubiga and Ken Kuranchie into jail when they "consciously" disregarded the touchline rule.
Professor Gerald Rosenberg affirms in his book The Hallow Hope: Can the Courts Bring about Social Change?that the Courts can be effective producers of social change, and more so, they can be extra effective than other institutions in effecting social change because of the unique position they occupy in the national constitution of most countries. Ghana's election petition appears to be carving out a new phase of enforcing social change led by the Supreme Court, where other institutions have failed or lack the capacity to effect such changes. Though the Courts occupy unique places in the policy dynamics of most nations, Rosenberg makes it clear that the Courts are capable or incapable to effect public policy changes depending on whether they are dynamic or constrained courts. Courts are characterized as constrained when national constitutions define the limits within which they can function; for instance, courts all over the world do not have executive powers therefore cannot enforce most of their decisions. In our case, the famous "no court" purported to have been issued during the reign of Busia and repeated during the Rawlings reign comes to mind. In the United States, President Andrew Jackson reputedly remarked with a decision of the Court with which he did not agree: "John Marshall has made his decision, now let him enforce it." Constitutional limitation presumes that the Courts by themselves cannot effectively implement public policies without backing from the executive arm of government. The nomination and endorsement procedure of judges also adds to the constrained functions of judges and for that matter the Courts: nominated in most countries including Ghana by the president and endorsed by the legislature. The process infringes on judges' ability to act independently in judicial processes andrestricts them from parting away from policies of nominating governments and parties. A third limiting factor that hinders the Courts' ability to implement public policies is that they lack "the purse and the sword" to execute important public policies. Lack of resources and technical know-howdeter Courts from executing important public policies. Lastly, Courts can only function when they have the blessings and support of citizens, without which they cannot effectively function.
Dynamic courts are characterized as effective producers of social changes because of their independence from electoral processes compared to other branches of government that are elected into office. Thus, because judges are free from electoral connections, they can act freely in the face of public opposition, therefore are better off in the implementation of policies that are deemed not popular. Litigants entering the doorsteps of Courts, especially groups desiring social change that are at a disadvantage in electoral and legislative processes enjoy access that depends neither on connection nor position.
Now back to the election petition vis-à-vis the Courts in the policy undercurrents in the Ghanaian decision making processes as it relates to the dynamic and constrained courts."The presidency is at stake, that is why we are all gathered here," underscored the President of the panel of Judges adjudicating in the current election petition in one of its sitting. The statement signaled the role of the Court in policymaking processes of the land;and thus of all the institutions of Ghana, the Supreme Court became the only body to be involved in finding solutions to the problem on hand, which all things being equal will eventually come and "may be implemented" at the end of cross examinations by way of ruling on the issue in contention. This short introduction brings to the fore whether Judges of Courts, especially the Supreme Court,are supposed and required to be involved in policymaking processes that affects all citizens. One may also query, Judges are not politicians neither are they opinion leaders of the communities they reside in, what then makes them part of decision measures that affect the fabric of the nation, in this case as it relates to the election petition? Judges are also not technical men or women of social phenomena as such lack the technical background to adjudicate in cases entailing technical knowledge, so how do they become part of issues of say abortion or same sex marriage if these spring up one day before the Court? How do they go about adjudicating cases? Is it based on the content or text of a statute or the content of the national constitution? The lawyers will make us understand that cases are judged based on precedence and text or language of the constitution or applicablestatute. But beyond precedence and text or language, what other factors come into play when deciding caseswhich often affect citizens?
To answer questions, I will attempt to limit myself to the ongoing election petition andthe Court's role in policymaking. As stated, I will do my best not to cross the touchline so as to escape Nsawamprison because it is "very scary," courtesy Steven Atubiga. I am not a lawyer but have from time-to-time run through the national Constitution just to refresh my memories of what is embellished in it as it relates to governmental institutions and their roles in initiating and implementing public policies. My layman understanding of the portion that deals with the Courts clarifies that they are supposed to settle disputes between contending parties, including political parties hence the election petition that is brought before the Supreme Court for adjudication. Accordingly, the Court through the Judges is mandated by the Constitution to resolve cases brought before it--satisfying the policymaking and dynamic court requirement as sanctioned through the national Constitution. At the end of the ongoing petition, the Court would have succeeded in generating a policy option for the nation: either maintain or annul the 2012 election results, an issue that will be difficult if not impossible for the other branches of government. Relying on precedence is a common practice in courts all over the world. The current election petition before the Supreme Court has never happened in Ghana's democratic development; therefore the panel of Judges for now may not have any precedence to depend on at least within the country except to draw clues from the Bush v. Gore and Bush v. Kerry cases in Florida, USA. The Court may also probably look at the Kenyan scenario and come out with a ruling, that is if itdecides to look beyond the boundaries of Ghana for precedence. In the absence of precedence as itrelates to presidential electionsin Ghana, the Court I guess may stick to language or text of the statute relating to elections to effect whatever changes that becomes necessary at the end of proceedings.
Following characterization of constrained courts, it is clear that the panel of Judges who sanctioned and eventually slapped the contemnors with some jail terms would not have been able to implement their decisions if not for the support of the executive arm of government acting through the police and prison services of Ghana. At least the executive did also exhibit "no court" tendencies neither did it say "*** has made his decision, now let him imprison them." The executive did not also invoke its Constitutional powers by granting the convicts presidential pardons.The cooperation of the executive acting through the security agencies made it possible for the Judges to prevent a few recalcitrant peoplewithin the Ghanaian populace who are bent on circumventing the entire judicial process. Another important factor in the current litigation is the making of resources available to the court to facilitate its decision making to the full glare of Ghanaians: live telecast of the entire proceeding so every citizen would know what is taking place in the Court room. This has emboldened the confidence the citizens of Ghana will have in the judiciary to ensure the smooth transition in whatever decision the Court will arrive at. Security is substantially provided with the presence of the police at the premises of the Court to maintain peace and order to facilitate a tranquil outcome in the current dispute.
Rosenberg is further of the view that beyond the legal model, that is the constitutional mandate of precedence, and text or language of statute and constitutions in adjudicating cases, Judges may alsoinvoke attitudinal models to bear on policymaking--ideological attitudes and personal policy preferences. Ideological attitudes have to do with individual judge's political background and philosophy, while personal policy preferences refers to a judge's individual intention or mindset toward a policy. For instance, in the United States, there are both liberal and conservative Judges serving on the Supreme Court; when it comes to matters of policy, the Judges most of the times vote based on their ideology. A few will often digress from ideology and vote based on their personal interest or mindset in a policy: the Obama Healthcare Policy (Obamacare) survived a recent Court action because Chief Justice John Robert broke away from his party'sideology to vote with the liberals based on his personal conviction about the policy. As stated earlier, in order not to breach the the touchline rule, I will attempt to stay within limits. We are all aware of the recent judgment in the contempt case against individuals who went beyond the touchline rule. The Court's action, as it were, was intendedto bring about sanity in its present discourse so as in the long run avoid mayhem as put forward by one of the contemnors if the ruling went a certain way. Based on legal versus attitudinal models as put forward, did the panel of judges invoke punishments on the contemnors based on either of the models? And by so doing, did the Court succeed in implementing a very important public policy considering the fact that one Sir John is alleged to have gone on air to criticize the Judges for their posture toward one of the parties in the conflict before the Court.For now my advice is let all stay put on whatever answer/s we may have, and revisit the issue of legal versus attitudinal models at the close of this important deliberation before the Court.
Lastly, as to whether the Court as such Judges in Ghana will be part of the public policymaking processes is dependent on a lot of factors beyond legal and attitudinal models of adjudication.Most important among other factorsis the entire citizens of Ghana having a high level of confidence in this important institution handed down to us through the national Constitution. Cooperation and respect from citizens for this august institution can enhance Judges' role as neutral policymakers devoid of politics and other unorthodox human machinations;thereby paving the way for the socio-economic development the country much desires for in an atmosphere of peace and tranquility. Finally, while we attempt to stay within the touchline rule as we discuss this important subject, be assured that I will be back to give a better analysis of the subject matter under review after the Supreme Court makes its final determination.