A retired justice of the Supreme Court, Justice Clemence Jackson Honyenuga, has admitted that he quoted the wrong Article in the 1992 Constitution to justify his continuous sitting on the case of former COCOBOD boss and two others.
“This was an error”, he said in court on Monday, noting that the lawyers should have drawn his attention to the blunder.
The development, has gotten the Member of Parliament (MP) for South Dayi, Rockson-Nelson Dafeamekpor, to question whether the Chief Justice, Justice Kwasi Anin-Yeboah, has the power to extend the contract of justices of the Supreme Court of Ghana.
Mr Dafeamekpor, a lawyer in a tweet he shared on November 15, insinuated that the move by the Chief Justice was wrong since the President of the Republic is the only appointing authority and he alone can extend the contract of his appointees.
He also questioned whether the vetting and approval of the president’s appointees are valid after their retirement age.
“In re the extension of time of Hoenyenuga JSC by the CJ: the Constitutional Question is: Can the CJ extend the life of a Supreme Court Judge beyond his statutory 70yr tenure?
“Remember, the Prez is the Appointing authority. Also, is the Parliamentary vetting valid beyond 70yrs?” the MP’s tweet read.
The retired judge has been hearing the trial of former COCOBOD Chief Executive, Dr Stephen Opuni and businessman Seidu Agongo, as well as Agricult Ghana Limited, who are facing 27 charges, including willfully causing financial loss to the state and contravention of the Public Procurement Act in the purchase of Lithovit liquid fertiliser between 2014 and 2016.
They have pleaded not guilty to the charges and are on a GH¢300,000.00 self-recognizance bail each.
Justice Clemence Honyenuga officially retired as a Supreme Court judge on September 4, 2022 when he attained the mandatory retirement age of 70 for superior court judges.
On July 28, before the court rose for the two-month legal vacation, Justice Honyenuga announced that he will return to the case, even on retirement.
“In pursuance to Article 144 (11) of the constitution, 1992, the Chief Justice has granted me a limited time to conclude this case. In the circumstances, this court shall in addition [to Monday, Wednesday and Thursday] sit on Tuesdays at 11 am for early disposal of this four-year-old case,” Justice Honyenuga said in July.
On Monday, November 14, counsel for Dr. Opuni, Samuel Codjoe moved a motion, heard by Justice Honyenuga himself, asking him to stay off the case because he is on retirement. The lawyer also pointed out that the Chief Justice acted unconstitutionally when he asked the retired judge to continue hearing the case.
The lawyer decided to rely on Article 144 (11), as stated by Justice Honyenuga, to make his case that what the Chief Justice did was unconstitutional.
“It is our position that since your order is binding, the Chief Justice’s order is unconstitutional. Since we came back from vacation, we have come to this court not less than three different occasions and this order given on 28th July has never been questioned or set aside by this court.”
Justice Honyenuga promptly drew the attention of the counsel for Dr. Opuni that the article he, the judge, quoted was in error.
“This was an error. You are also an officer of the court, you know it was an error,” the judge interjected.
Retired Justice Honyenuga then took the opportunity, for the first time, to read out the letter from the Chief Justice granting him extension. He therefore pointed out that the correct article he should have cited on July 28 was Article 139 (1c).
But lawyer Codjoe insisted, “my lord it is not an error, we are submitting that the Chief Justice engaged in an unconstitutional act when he purported to extend the tenure of your lordship under Article 144 (11).”
The lawyer also made reference to the Attorney General’s affidavit in opposition to his motion, which in paragraphs 3 and 4 stated that “your extension is under Article 144 (11)”.
Mr. Codjoe further argued, “My lord the second leg is that the power to extend the tenure of a Supreme Court judge is not exercised by the Chief Justice who is not the appointing authority. The fact that the Chief Justice is not the appointing authority of a Supreme Court judge, such as your lordship, is contained in 144(2) …
“My lord, the only person who can grant extension of your tenure as contained in Article 145 is the president and not the Chief Justice.”
He stressed, “it is only the person who has the power to appoint who can grant extension. The Chief Justice has no power to appoint a Supreme Court judge.”
Lawyer Codjoe, although conceded that the Chief Justice is the administrative head of the judiciary, “My lord under Article 297, it is clear that it’s only the person who has the power to appoint who can grant an extension as contained in 145 (4) … The CJ cannot grant an extension of the tenure of the judge who has attained a mandatory constitutional retirement age”.
He therefore stressed, “when therefore the CJ gave the warrant, even if it is not under Article 144 (11), he acted unconstitutionally, he usurped the powers of the president”.
Director of Public Prosecution Yvonne Attakora Obuobisa opposed the application, noting that it has no basis in law.
She argued that the Chief Justice has the power under the constitution to grant the extension to Justice Honyenuga to sit for a limited period of time
“My lord, the power of the Chief Justice to do so is found in Article 139 (1c).”
She also cited Article 145 (1, 2 and 4) and argued, “my lord in a very simple term, this means your lordship on
attaining the age of 70, you may continue in office for a period not exceeding six months…”
Yvonne Attakora Obuobisa stated, “There is no confusion about the fact that it is the president who appoints the chief justice, the Supreme Court, the Court of Appeal and high court judges. Article 144 deals with such appointments and 146 deals with their removal from office.
“In Articles 144 and 146 the drafters of the constitution clearly said it is the president who appoints and removes justices of the superior court. Nowhere in Article 139 or 145(4) is the president mentioned.”
She therefore urged the court to dismiss the application.
Justice Honyenuga subsequently dismissed the application. He stated that the Chief Justice as the administrative head of the judiciary has the power under the constitution to grant an extension to a retiring judge.
“The argument that it is the president who appoints and therefore it is the president who should grant the extension is neither here nor there,” the judge ruled.
The case has been adjourned to November 16 for continuation.