Reports available to The Herald indicate that the Chief Justice, Kwasi Anin Yeboah, has surprisingly selected two new judges to review the case in which Justice Clemence Jackson Honyenuga was recently declared bias by his Supreme Court peers in his handling of Dr. Stephen Opuni and Alhaji Seidu Agongo's criminal case.
The new judges, this paper has picked, are Nene Abayaateye Ofoe Amegatcher and Prof. Emmanuel Nii Ashie Kotey.
They are to join five colleagues to hear arguments from state prosecutors and the defense teams of Dr. Opuni and businessman Alhaji Agongo, to ascertain whether or not their brother, Justice Honyenuga, had indeed, been biased as declared in the 3:2 majority decision, some three months ago.
The date for the review has been set as October 12, 2021.
This case is beginning to look like the case of Tsatsu Tsikata versus the Republic of Ghana during the President John Agyekum Kufuor presidency, when now President Nana Akufo-Addo, was then the Attorney General and Minister of Justice.
The review, is at the behest of Attorney General and Minister of Justice, Godfred Yeboah Dame, following the July 28, 2021, decision by a five-member panel of the apex Court presided over by Justice Jones Mawulorm Dotse, which upheld the former Cocoa Board boss; Dr. Opuni's request for the removal of Justice Honyenuga, from presiding over the case at the High Court, because he had been biased toward him in the cause of the trial, insisting justice cannot be served.
Justices Gabriel Pwamang, Agnes Dordzie, Avril Lovelace-Johnson and Issifu Omoro Tanko Amadu were the other members of the panel.
Justice Dotse and Justice Lovelace-Johnson, dissented from the decision.
The three Supreme Court justices in their majority decision, had asked that the case be given to another trial judge to handle, but the Attorney General, Mr Yeboah Dame, has vehemently been out and about in what lawyers have argued putting the comfort of state prosecutors ahead of the human rights of Dr. Opuni and Alhaji Agongo - their rights to a free, fair and transparent trial.
The Attorney General, had insisted that replacing the trial judge; Justice Honyenuga at this time, would require a restart of the case, which would be costly and burdensome for the state.
Justice Ashie Kotey and Amegatcher like Justice Honyenuga, were appointed by President Akufo-Addo in 2018 to the Supreme Court.
Justice Kotey, had been active in academia lecturing at the University of Ghana's Faculty of Law- Legon after leaving the Forestry Commission as Chief Executive under President Kufuor from 2007 to 2009, when the John Evans Atta Mills administration took over the country.
Nene Abayaateye Ofoe Amegatcher, on the other hand, has been a private legal practitioner, although he has been teaching too as a senior lecturer at the Ghana School of Law since 1994.
Justice Amegatcher, from 2012 to 2015, served as president of the Ghana Bar Association.
Prior to his appointment to the Supreme Court, he was the managing partner of Sam Okudzeto and Associates, the law firm of a founding member of the New Patriotic Party (NPP); Sam Okudzeto, who is also a member of the Council of State, serving as an appointee of President Akufo-Addo.
The insistence of the Attorney General that Justice Honyenuga, must continue to hear the case, despite the Supreme Court ruling against him, has sparked controversy.
The opposition National Democratic Congress (NDC) recently held a press conference accusing the government of shopping for a particular judge to convict Dr. Opuni and Alhaji Agongo, hence its insistence on having Justice Honyenuga, sit on the case.
Addressing the media in Accra on August 30, 2021, Sammy Gyamfi, accused the Attorney General and Minister of Justice, of having a vested interest in the particular judge sitting on the case brought against ex-COCOBOD boss, Dr Stephen Opuni and businessman, Seidu Agongo.
The NDC National Communications Officer, said Mr Dame's appeal against the Supreme Court ruling barring Justice Honyenuga from sitting on the case amounted to "headhunting" for a judge.
This, Mr Gyamfi, said flies in the face of natural justice and would gravely undermine public confidence in the performance of Justice Honyenuga, who sat as additional High Court judge, if he returns to preside over the case involving Dr. Opuni and Alhaji Seidu.
The opposition party, has maintained that the case is a political witch-hunt by President Akufo-Addo and the NPP.
Justice Honyernuga, was promoted by the President from the Court of Appeal to the apex court, while presiding over the same case.
Ahead of his elevation, Justice Honyenuga, had stoked controversy in the run up to the 2020 general elections when at durbar of chiefs, he endorsed President Akufo-Addo for a second term citing development projects and good policies implemented by him.
At his vetting by the Appointment Committee of Parliament, it became clear that Justice Honyenuga's role as a traditional ruler had conflicted with his official position as a judicial officer expected to apolitical, when the comments he made at a durbar of chiefs while welcoming President Akufo-Addo, was brought up and took over the entire vetting process with veteran journalist, Kweku Baako of the New Crusading Guide newspaper calling for the withdrawal of his nomination as a Supreme Court judge.
Reading from a written speech, the then Court of Appeal judge, who doubles as the Paramount Chief of the Nyagbo Traditional Area commended the president and hoped he emerged victorious in the 2020 election.
"We wish to congratulate you for the excellent manner you are governing this dear country of ours, it is our hope that with your vision and the gains made in your first term, Ghanaians may consider giving you another four years" Justice Honyenuga whose stool name is TorgbuI Nyagasi V, told the president at the durbar in Nyagbo.
The president was on a three-day tour to the Volta/Oti regions in the month of February, last year, when the incident happened. As the opposition NDC took strong exception to this endorsement and vehemently protested his appointment to the Supreme Court, many, including legal luminaries, who felt the judge erred in this open declaration and showers of praise, took to social media to criticize his conduct.
The Supreme Court by 3: 2 majority decision, was later to hold that Justice Honyenuga while on the Opuni case, had demonstrated prejudice and bias against the defendants and therefore unsuitable to continue to hear the case having rejected many documents filed by the defendants.
The NDC's National communication officer, Sammy Gyamfi, told journalists at the press event that: "In fact, most of the cases of criminal prosecution against some officials of the former NDC regime [that] the NPP keeps bragging about … are beginning to crumble like a pack of cards right before their very eyes".
"What we are seeing is a desperate regime, which is not interested in upholding fair trial and the interest of justice but determined to do everything possible under the sun to convict former NDC government officials at all cost for cheap political goal-scoring", he alleged.
"Classical examples that highlight this fact", he noted, are the case against the former SSNIT boss Ernest Thompson, "which has been dismissed by the Supreme Court on grounds of defective charges and also the case against the former CEO of COCOBOD, Dr. Stephen Opuni and [businessman] Alhaji Seidu Agongo".
According to the lawyer, "in the case of the Opuni trial, even after the Supreme Court of the Republic has prohibited, barred the trial judge, Justice Honyenuga from presiding over the case on grounds of his manifest prejudice and bias against the accused persons, the attorney general and minister of justice, Godfred Yeboah Dame, who is supposed to advance the interest of justice in all cases, wants the judge reinstated on grounds that starting the case de novo – afresh – will be at great expense and cost to the state."
"This is the most unfortunate statement I've heard from an attorney general in my life and it is a slap in the face of fair trial and administration of justice," Mr. Gyamfi argued.
He wondered why the AG is so obsessed with having Justice Honyenuga on the case.
"There are about four high court Justices, four high court judges at the criminal division of the high court but, for some reasons, Justice Honyenuga, then-Justice of the court of appeal, was given a special warrant to preside over the prosecution of Dr. Stephen Opuni and Seidu Agongo".
"A few months after that, Justice Honyenuga was promoted to the Supreme Court by President Akufo-Addo", he observed.
In Mr Gyamfi's view, Justice Honyenuga has shown open bias against Dr. Opuni and Mr. Agongo, which makes him unfit to continue hearing the case.
"This is the Justice Honyenuga, a judge, who, during the 2020 election campaign, publicly endorsed and campaigned for a second term for President Akufo-Addo when he visited his palace".
"The judge, who has said in open court that the Opuni case is distracting him from his Supreme Court duties, hence he wants to conclude the case quickly so that he can focus on his Supreme Court duties".
"We are talking about the judge, who, in his ruling on a submission of no case, decided to exclude from the evidence on record, as many as 18 exhibits that vindicate the case of Dr. Opuni and the other accused persons and which were tendered through prosecution witnesses without any objection whatsoever, from the prosecution," Mr Gyamfi listed.
He said: "The insistence by the Attorney General to have Justice Honyenuga continue with this case suggests that the attorney general is desirous of having his own preferred judge preside over a case that he is prosecuting". "This singular conduct", Mr Gyamfi warned, "has the tendency to completely erode public confidence in the judiciary as an independent arm of government".
"The simple questions [that the] government and Godfred Dame must answer are: Why must Justice Honyenuga preside over the Opuni trial at all cost despite the clear prejudice and bias he has exhibited against the accused persons? Is he the only judge in Ghana who can preside over that case? And more importantly, why must fair trial and justice, truth is sacrificed on the altar of cost? Can Godfred Dame sell his liberty for money?"
"So, when people's liberties are at stake, a fair trial is at stake, justice is at stake, you are telling us that [even though] the Supreme Court says: 'This judge has shown bias; we are barring him even though he is our colleague, he cannot preside over the case', you are telling us that: 'Oh, my Lords, if you do that, we have to start afresh; it will cost us money, so, let him come and [sit on the case]'."
"I mean, where in the world did you hear this from somebody who is not just an attorney general; that is: he's not just a lawyer for the government but he's also a minister of justice and, therefore, must be interested in justice for all citizens?" Mr Gyamfi wondered.
"Clearly", he noted, "Godfred Dame is engaging in head-hunting for his preferred judge in the Opuni trial for an outcome that should be obvious to any objective mind", adding: "Most of the criminal cases against former NDC appointees that the NPP will have us believe are evidence of their commitment to the fight against corruption, are cases of persecution and not prosecution".
"As such, these cannot and should not be believed as evidence of any genuine commitment to the fight against corruption", Mr Gyamfi said.
He said it would also conscientise the public that the justice system was capable of holding its own to account whenever they erred.
He added that the decision will go a long way to help promote public confidence in the country's justice delivery system.
"This ruling tells you that even the Supreme Court has no problem prohibiting one of their own, and this is a strong message to all Ghanaians and the business community as well," he said.
Meanwhile, a private legal practitioner, Martin Kpebu, has seen the positive side of the Supreme Court decision, describing it as "sound and useful".
Mr Kpebu said the "landmark decision" by the Supreme Court against Justice Honyenuga, a Justice of the Supreme Court, with additional responsibility as a High Court Judge, was very rare, but positive for public confidence in the judiciary system.
The legal practitioner, said the three-two majority decision, which is now being challenged by the Attorney General and Minister of Justice, demonstrated that even the Supreme Court, which is the highest court of the land, was allowed to hold the scales of justice evenly balanced between the state and an accused person.
"In this particular case, the Supreme Court has had to prohibit one of its own and for me, to the extent that the Judge is one of their own and still being prohibited, tells you that the Supreme Court is really up to the task," he said.
The legal practitioner made the remark in an interview with the media on the court's ruling barring Justice Honyenuga from continuing to preside over the case on grounds of bias.
Mr Kpebu, who described the ruling as "a big shot in the arm" for the country's justice delivery system, said it would dispel public perceptions that justice delivery was not fair in the country.
On the application for review, Mr. Kpebu said the decision meant that the case would have had to begin from scratch, with the accused persons taking their plea after the state had filed its processes afresh.
Dr. Opuni and Alhaji Agongo, the CEO of Agricult Ghana Limited, an agrochemicals company, are on trial on the accusation of causing financial loss of more than GH¢271 million to the state.
Agongo has been accused of using fraudulent means to sell substandard fertilizer to the COCOBOD for onward distribution to cocoa farmers, while Dr Opuni is accused of facilitating the act by not allowing Agongo's products to be tested and certified as required by law.
The two have denied any wrongdoing and pleaded not guilty to all the charges.
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