An Accra High Court Judge’s decision to overturn a prior decision of the appeals court which upheld decision of the first instant high court to grant Gregory Afoko bail has ‘surprised’ legal watchers and judicial experts who have described this action as an ‘unjustified undermining’ of the solemn doctrine of ‘judicial precedence’ and a ‘shop for justice.’
The doctrine of judicial precedent is fundamental to the operation of common law. In practice it means that a judge deciding a particular case will look for a ‘precedent’ – a decision in an earlier similar case – to help them reach their decision in the case before them. One of the most important justifications for following precedents is related to the idea of doing justice.
Consistency is seen as an essential element in doing justice, in the sense that similar cases coming before the courts for determination should be treated in a similar way but that is not the case here in Ghana under the Presidency of Nana Akufo-Addo, an acclaimed human rights lawyer.
Lord Simonds in the case of Midland Silicone Ltd v Scruttons Ltd [1962] AC 446, “Nor will I easily be led by an undiscerning zeal for some abstract kind of justice to ignore our first duty which is to administer justice according to law, the law which is established for us by an Act of Parliament or the binding authority of precedent.”
What appears to suggest of today’s decision as ‘demonstrably wrong’ is its inexcusable and ‘regrettable’ disregard for the ‘circumstance of the Afoko case’ which is a key ingredient judges take into account in reaching its decision.
This legal position, the venerable Lady Hale of Richmond summarizes in the case of Campbell v Mirror Group Newspaper as “The weight to be attached to these various considerations is a matter of fact and degree.” Today goes down in the history as one the most ‘catastrophic’ moment to the observations of judicial independence and rule of law.
The facts are that, after four years of what Justice Pwamang of Ghana’s supreme court describes as an ‘arduos trial’ , coupled with the spending of fortune on lawyers and surrendering of right and freedom, suspect Gregory Afoko is to be tried again following the filing of an unjustified and unaccountable use of a prerogative power- Nolle Prosequie.
The degree of this case is that appeals court of Ghana which is higher up in the hierachy upheld a decision of a high court to grant suspect Gregory Afoko bail. This bail conditions has been met by the Afoko family and same certified by the court’s registry. However, the executive arm in complicit with the Police, CID have intentionally refused to give legal effect to this firm bail order and instead subjected Gregory to inhumane and malicious treatments in an unlawful sub human BNI cells.
Subsequently, the Police and CID Augustine Nkrumah had to forcibly inject and taken blood samples of Gregory Afoko against his consent and when he has not complained sick . This malicious interference with Gregory’s personal autonomy led to reports of Gregory vomiting bouts of blood after which he was sneaked to the Police hospital without knowledge of his family and lawyer.
The Executive arm in its determined effort to ‘slaughter’ Gregory Afoko suddenly and literally went ‘shopping’ for justice at the high courts which is lower in hierachy to the appeals court which upheld decision of Bail. In disregard to the circumstances of this case, this ‘Political’ judge has surprisingly granted the desperate wishes of the executive arm in ‘rubber stamp’ of the executive’s disrespect for court orders. Why will this Political Judge at the lower high court fail to accept loyally decisions of the high court which is higher up in the courts hierarchy?
Another practical justification for following precedent is that if judges follow the reasoning and decisions of their judicial colleagues, the common law becomes certain and predictable.
Indeed, in civil law jurisdictions there is a principle of non-binding precedent, sometimes referred to as the doctrine of judicial consistency, according to which it would be thought erratic if the courts significantly varied their approach to similar legal questions.
Source: Thepressradio.com/ Elizabeth Ama Ofori
