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The Justice of Intimidation
Professor S. Kwaku Asare
Justice William Atuguba, the Presiding Judge of the 2012
presidential election case, is not only clearly biased but he is
also openly hostile to the petitioners. That is the opinion I
walked away with after observing the court proceedings of June
11 and June 12.
I was particularly shocked and angered by Justice Atuguba’s open
court tirade directed at Phillip Addison, lead counsel for the
petitioners, after the latter appropriately rejected the Court’s
apparent suggestion that the electoral commissioner (EC) be
allowed to maintain overnight custody of a copy of Addison’s
voters’ register, for purposes of crosschecking.
I saw nothing wrong with Addison’s rejection of the “deal,” and
I thought the Court’s suggestion was unreasonable and traversed
contemporary (and even ancient) litigation practice. I also
thought it was entirely appropriate for Addison to state the
obvious that he could not trust his exhibit to an EC, whose
integrity, independence, competence and candor were on trial. In
my opinion, it was the Court’s unusual and unfortunate request
that triggered Addison’s candid response.
I further found nothing unethical or improper about Addison, in
response to a statement by Justice Baffoe Bonnie, pointing out
that his adversaries had imputed criminality to his side without
any retort from the Court and he, therefore, found it puzzling
that his statement about mistrust should attract heightened
scrutiny.
It was this ordinary exchange between Addison and Justice Baffoe
Bonnie that provided the opening that Justice Atuguba had
probably been waiting for to launch a needless, long-winded,
partisan and public attack on Addison, culminating in his
warning that “the court would not hesitate in applying sanctions
to Addison in accordance with the ethics of the court if he
continued casting insinuations at the judges.”
First, no insinuations were cast at the Justices at all. Addison
stated a fact, as he should have. He is entitled, as a lawyer,
to state that he cannot trust his exhibits with his adversary.
No reasonable court or competent lawyer will find anything wrong
with that statement. No reasonable court should ask a lawyer to
entrust his exhibits to his adversary. And no reasonable Justice
should find anything wrong with a lawyer’s declaration that he
will not provide his exhibit to his adversary for overnight
crosschecking. A lawyer who allows that is inept!
Second, the Court’s records will clearly show that criminality
has been imputed to Addison’s side, with no reaction from the
court. He is entitled to remind the Court of that imputation
where his, otherwise harmless, remark about not trusting his
exhibits to the EC seems to trigger concerns about court room
camaraderie. Put succinctly, the Court cannot allow Addison’s
adversaries “to fight freestyle, while requiring him to follow
Marquess of Queensberry rules.”
Third, I made several disturbing observations in the two days
that I visited the court. In particular, I was astonished by the
extent to which the court allowed the EC to evade simple
questions, delay proceedings by providing long-winded
non-responses and to provide palpably contradictory testimony.
Is there a reason why the Presiding Judge has failed to remind
the EC that perjury is a crime? Does the Court’s sanctioning
powers reach dishonest witnesses?
Another frightening observation that I made was the tendency for
Justice Atuguba to pronounce that the EC has answered a
question, when no neutral observer (or an observer who
understands the question) will reach that conclusion. Why has
the Presiding Judge failed to direct the EC, who after all
represents a taxpayer-funded entity charged with running
elections, to provide direct and candid response to very simple
questions? Why has the Presiding Judge not insisted that the EC
provides any and all public election record that can help the
Court arrive at the truth, instead of the piecemeal overnight
crosschecking of voters’ register in the possession of the
Commission?
Perhaps, this is all part of Justice Atuguba’s announced
doctrine of “protecting the witness.” It remains unclear to me
why the supposedly independent EC, who claims to have organized
free and fair elections, will require any protection in the
witness box. Why does the Presiding Judge countenance the flurry
of trivial objections from the EC’s counsel aimed at masking the
truth? Perhaps, the Presiding Judge needs to be reminded that
the EC is not an ordinary witness. He organized the contested
election. The EC does not need protection from Justice Atuguba,
contrary to the Justice’s open court declaration. He needs to
answer very simple questions about why the elections were
characterized by massive irregularities, malpractices, omissions
and statutory violations. And he needs to answer the questions
seriously, truthfully and thoroughly.
A Presiding Judge of the Supreme Court must not only be fair to
the parties, he must also be seen to be fair to all parties. In
two days, I have, in my opinion, seen a Presiding Judge who is
not only unfair but seems to be openly hostile to one party in
the dispute.
The danger of this development is not that the honorable Justice
can seek me out and cite me for contempt, although he might try.
The real danger is that the Presiding Judge runs the risk of
bringing his court to disrepute and losing his fellow Justices,
if that has not already happened!
Prof. S. Kweku Asare
June 13, 2013
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