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JUSTICE
The «Fast-Track Courts» are intended to administer the speedy administration of justice. But not everyone is in agreement as to their existence
28 February 2002
On 28 February 2002, the Supreme Court (in a 5-4 verdict) ruled that the Fast-Track Courts, set up last year to expedite cases, were unconstitutional. A legal crisis now seemed to be looming. Although the nine judges who sat on the case had yet to state the reasons for their judgement, which took a number of Ghanaians by surprise, its ramifications were set to go deep.
What remained uncertain at this stage, was how the ruling might affect decisions already taken by the FTCs. If the courts were illegally constituted, as the Supreme Court had upheld, it follows that any decision made by the FTCs, could also be declared null and void.
If this were to happen, a number of very high-profile judgements, such as the trial of the ex-minister for sports, Mallam Yusuf Issa, convicted for causing the loss of $46,000 to the State, and that of Victor Selormey, the former deputy finance minister, jailed for eight years in connection with the fraudulent payment of $1.29 million for a court computerisation programme, would have to be reviewed. Others such as the on-going trial of some former ministers under Jerry Rawlings’ National Democratic Congress (NDC) government, would have to be scrapped altogether.
Challenges and counter-challengers
The Supreme Court’s decision on 28 February, was in response to a writ filed by Tsatsu Tsikata, former chief executive of the Ghana National Petroleum Corporation (GNPC), which challenged the legality of the FTCs. Tsikata sought an interpretation of the FTC‘s jurisdiction, and subsequently filed a motion to restrain the FTC from prosecuting him.
He took this action because of a charge made against him, for allegedly causing a financial loss to the State. The case, which initially started at an Accra Circuit Tribunal, was withdrawn from the Tribunal and transferred to the FTC by the Attorney-General’s office.
The former GNPC boss, who was a close aide to Rawlings, took exception to the move, insisting that the Constitution made no provision for the establishment of the FTCs, an assertion contested by the Attorney-General. At the core of the Attorney-General’s case was whether the Chief Justice has powers to create courts or not. According to the Attorney-General, if the Chief Justice had designated a High Court as a Fast-Track High Court, the said Court had jurisdiction and was perfectly constitutional.
But Professor Emmanuel Dankwa, Counsel for Tsikata, challenged this, arguing that the FTC was unknown in the Constitution. Counsel argued that under Article 126 (1) of the 1992 constitution, the judiciary consists of the superior courts of judicature, comprising the Supreme Court, the Court of Appeal and the High Courts/Regional Tribunals.
In addition, there should be lower courts or tribunals as Parliament may by law establish. According to Dankwa, «Nowhere is there provision for a Fast-Track Court, neither has Parliament under Article 126 (1) (b) exercised its power to establish any Fast-Track Court.» Based on this argument, Dankwa reasoned that the FTC had no jurisdiction to try his client.
Replying, Nana Akufo-Addo, Attorney-General and Minister of Justice, stated that Section 69 of the Courts Act gives the Chief Justice the power to create courts and to determine the manner in which those courts should conduct their proceedings. The FTCs, he said, were no exception, because it was the Chief Justice who had instituted it to facilitate the speedy dispensation of justice as enshrined in the Constitution. He said the Chief Justice had established the FTCs with authorised officials, and there was no constitutional issue before the court. The name «Fast-Track» is just a way of describing the court.
The Ministry of Justice said he intended to seek a review of the 28 February 2002 ruling. He felt the matter pertained to the administration of justice and not the process of legislation. Akufo-Addo, although flabbergasted after the Supreme Court judgement, also announced that the lawsuit against Tsikata would be filed immediately at the traditional High Court.
The FTCs
Usually, the FTCs handled cases involving investors and investments, banks, specified commercial and industrial disputes, election petitions, human rights, prerogative writs and national revenue (of substantial value, and brought by or against the Customs, Excise and Preventive Service, Inland Revenue and other government departments or agencies).
Judicial service sources indicated that the FTC concept had generated much interest among litigants, who were now clamouring for their cases to be listed at the FTCs. A number of people were said to have requested that their cases be transferred to the FTCs to ensure an expeditious trial.
The uniqueness of the FTCs stemmed from the fact that they were established to arrest the long-standing issue of delays in the administration of justice. In so doing, these courts applied modern case management practices, and sought to introduce administrative mechanisms that facilitated faster processing and trial of cases principally through the introduction of recording and transcription equipment, that disposed of the need for judges to record court proceedings by hand.
Indeed, the inception of the FTC provided a welcome respite. Anyone who has had the opportunity to space the corridors of Ghana’s courts, will attest to the delays inherent in the system, as well as the numerous adjournments that bedevil the courts.
On 20 March, the nine judges gave the reasons for their ruling. Ghanaians were extremely interested in what they had to say. The central theme that ran through their reasons for declaring the FTCs unconstitutional was the fact that they operated on different rules other than the ones that operate at the normal High Courts.
26 June 2002
There have been interesting developments to the FTC saga. The twist and turns finally ended with the government, on 26 June, winning its case in the Supreme Court after it sought a review of the earlier decision.
Remember — the earlier decision was taken by nine judges. At that time, there were ten judges on the Supreme Court. Incidentally only odd numbers sit on a particular case. Therefore before the case came up for review, the government appointed another judge to swell the number to eleven. Eventually the 6-5 outcome turned out to be the result the government wanted — a majority decision restoring the FTCs.
The Opposition cried «foul» saying the Supreme Court’s new decision restoring the FTCs is a classic evidence of manipulation of the Judiciary to serve political ends. It said this portends endless danger to the country’s evolving democracy.
As usual, divergent views emerged as to whether the government did the proper thing. The debate still rages on. But now the FTCs are back in operation and cases that were suspended have bounced back. The looming danger has been averted and since July, this year the FTCs have been sitting.
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