CLARIFICATION ON WHO HAS THE LEGAL AUTHORITY TO PERFORM THE FUNCTIONS OF THE CHIEF JUSTICE – LEGAL ADVISOR TO THE SRC
An important constitutional question has arisen as to who is presently authorized to perform the functions of the Chief Justice. There appears to be a conflict between articles 47(1),(2) and (3) of the SRC Constitution and article 47(5)a of the SRC Constitution.
Article 47(5)a of the SRC Constitution provides that:
“A member of the Judicial Board shall cease to hold office if he ceases to be the Chairperson of the Judicial Board of his JCR.”
However, 47(1),(2) and (3) of the SRC Constitution provides that:
(1) The chairperson and other members of the judicial board shall hold office for a period of one academic year.
(2) Without prejudice to clause (1) of this article, the term of office of the members of the judicial board shall expire 5 days after the first sitting of General Assembly and provided that the General Assembly approved the student nominated as the chairperson of the judicial board.
(3) Pursuant to clause 1 of this article, the outgoing members of the judicial board including the chairperson shall hand over to the new members of the judicial board within 5 days after the approval of the student nominated as the chairperson of the SRC judicial board.
Presently, Asiedu CJ who became a member of the Judicial Board because he was the Chief Justice of the Akuafo hall has ceased to be the Chief Justice of Akuafo Hall because his tenure has ended and a new Chief Justice has been appointed. The question that arises is whether he remains the Chief Justice of the SRC pursuant to article 47(1) till the end of the academic year in spite of the fact that he is no more the Chief Justice of Akuafo hall?
It is noteworthy that the Chief Justices for the various halls form the members of the Judicial Board. From those Justices, one shall be appointed by the Executive Officers as the Chairman of the Judicial Board. It is for this reason that where a person ceases to be a Chief Justice of his hall he should cease to be a member of the Judicial Board. In other words, every hall is entitled to have its Chief Justice as a member of the Judicial Board.
It may be argued that since Asiedu CJ is no more the Chief Justice of Akuafo Hall, he is no more the Chief Justice of the SRC. On the other hand, it may also be argued that the provision specifically dealing with the time for handing over would apply notwithstanding other provisions. Thus Asiedu CJ is still the Chief Justice of the SRC. This is supported by the cannon generalia specialibus non derogant (the general does not detract from the specific). I however do not accept both interpretations completely because they will have the effect of making the other provisions redundant. It is noteworthy that in determining the ordinary meaning of a statute effect must be given to all the words of the statute so that none will be void, superfluous, or redundant .”
When does the Chairperson of the Judicial board of a JCR cease to be the Chairperson within the context of article 47(5)a of the SRC Constitution ? The plain meaning rule dictates that statutes are to be interpreted using the ordinary meaning of the language of the statute .
The word cease means to come to an end or to bring to an end . A literal reading of article 47(5) therefore means that a person ceases to be a Chairperson of a JCR where his tenure comes to an end or his tenure is brought to an end. In the first case he finished his term, in the second case an act brings his term to an end. This may occur by resignation, dismissal, or expulsion. It is submitted that the word “cease” must be read in the second sense. This is because article 47(1) deals with cases where a Justices tenure naturally comes to an end. It provides for one academic year. The mischief rule requires that we determine the defect that Parliament sought to cure and permits moving beyond ordinary words to give effect to the intent of Parliament It is clear that article 47(5) exists to prevent the situation where a member of the judicial board, either because he has been removed or has resigned, remains a Justice of the SRC.
All the Halls appoint their Chief Justices at different time and thus the tenure of the Justices also end at different times. To accept a literal reading of article 47(5) will mean that the effort to create a smooth transition period will not succeed. One cannon of interpretation requires that if a statute is susceptible to more than one reasonable construction, courts should choose an interpretation that avoids raising constitutional problems . No less a jurist that Professor Date-Bah JSC stated in Ransford France v Electoral Commission that “Constitutional interpretation should never be mechanical, oblivious of the destructive results or implications of a particular interpretation, when an alternative interpretation is available that could avert the identified mischief. In short, as this Court has held many times, a purposive approach needs to be applied.”
There are deep-seated implications of a literal interpretation. It may result in a situation where there is at a particular time no Judicial Board. The term of Chief Justices may have ended in their halls and there has not been any new appointment. Or there has been an appointment of a new Chief Justice but he has not yet been sworn in as a member of the Judicial Board. I have been informed that presently only two halls have not appointed new Chief Justices. Thus, as it stands there would be no judicial board to hear important cases that may arise with respect to the transition. To take the literal approach will make articles 47(1), (2), and (3) redundant and must be avoided.
CLOSING REMARKS AND ADVICE TO LAW STUDENTS
This is probably the last legal opinion I shall issue as Legal Advisor to the SRC. I therefore wish to take the opportunity to advice law students that as they seek to educate the public they must not provide legal opinions that are not well reasoned, lacking in coherence, and bereft of precedent.Ordinarily, lawyers do not pontificate about the law on social media. However, as lawyers wield the power of the knowledge of the law they have a duty to educate the public on the law. This duty must be carried out with all seriousness. As the eminent jurist, Professor Dworkin writes in Law’s Empire, “We are subjects of law’s empire, liegemen to its methods and ideals, bound in spirit while we debate what we must therefore do.” On university campuses, law students perform the functions of lawyers, at least, within the student governance machinery. We are not lawyers, but in a sense we are quasi-lawyers or de facto lawyers. Thus in giving legal opinions, we must be held to the same standards lawyers hold themselves to.
A letter by Mr. Daniel Ohene Bekoe to the UG SRC President and the UG SRC President-elect has come to my attention. In that letter he sought to advice the above-mentioned parties on who presently has the constitutional authority to perform the functions of the Chief Justice. According to him, Asiedu CJ is no more the Chief Justice of the SRC because he is no more the Chief Justice of Akuafo Hall pursuant to article 47(5)a of the SRC Constitution. It is unfortunate that Mr Bekoe failed to cite any authority that guided him in interpreting the Constitution. He failed to provide the context within which article 47(5)a operates. He picked a provision and like a legal formalist logically deduced an interpretation. But this is not how interpretation of the constitution is to be carried out. His interpretation, with the greatest respect, is embryonic as he does not support it with legal authorities or any justification.
According to Sowah JSC in Tuffour v Atorney-General the legality of a person’s claim to be the Chief Justice is a matter of grave public importance. We must thus tread cautiously when casting doubts as to the legitimacy the Chief Justice. Legal disputes are not won on social media but in courts. It is thus surprising that a known litigant like Mr. Bekoe would rather use social media as a platform when he can challenge what he believes to be unconstitutional in the Judicial Board. It is possible that he has not done this because he thinks the Judicial Board cannot be properly constituted. But in my view, if this is the case, the flimsiness of his argument should have been even more evident to him.
I would finally like to thank the outgoing Executives, the Executive Committee, and the General Assembly of the SRC for giving me an opportunity to serve as Legal Advisor of the SRC.
Mawunyo Kofi Adjaho
(UG SRC Legal Advisor)