A constitutional law scholar Professor H. Kwasi Prempeh has described as “illogical”, reasons cited by the Supreme Court to reject an amicus curiae brief in the case against the compilation of a new voters’ register.
Some four civil society groups had gone to the apex court seeking to be granted audience in the case to volunteer relevant information to help in the determination of the case filed by the National Democratic Congress and one Mark Takyi-Benson.
Their request was dismissed by the Supreme Court Wednesday on grounds that the think-tank groups which have been opposing the move to re-register Ghanaians for the next election were not neutral on the issue and will not add any relevant information other than what is before them.
A member of the seven-member panel of justices, Baffoe Bonnie, is reported to have said the court was aware of what the CSOs had been up to and also taken judicial notice of their position on the matter.
The judge is said to have claimed that the groups were only coming to support a side, as he remarked “you are not neutral”.
But the court’s decision has shocked the law scholar who holds contrary view.
“This is the first time in my life as a constitutional law scholar and lawyer, trained in the Anglo-American legal tradition that I am learning that in order to be allowed permission to file an amicus curiae brief, one must be “neutral” or disinterested in the case in question,” he stated.
In a facebook post after the ruling, the man who is also the Executive Director of CDD-Ghana said the position of the court is opposite what is known in law.
“This is the exact opposite of everything I know about amicus briefs. Typically, one who is not otherwise a party to a case before an appellate or apex court must demonstrate a strong “interest” in the matter in order to be allowed the opportunity to submit an amicus brief,” he explained.
He wondered why a person who is “disinterested or neutral” will even bother to file an amicus brief in a case if the ruling of the Supreme Court is anything to go by.
In his view, the view taken by the Supreme Court on the instant matter turns Article 2 of Ghana’s 1992 constitution on its head.
“…in Ghana, where Article 2 of the Constitution entitles any citizen, natural or artificial, to bring a constitutional case before the Supreme Court, the idea that, once a certain party has already brought a matter, the outcome of which binds all citizens equally, no other person may file an amicus in the matter unless they are “neutral” (whatever that means) is simply illogical and, indeed, turns Article 2 on its head,” he stated.
He added: “That means, any person with a lawyer can just race to the Court to file an article 2 case, essentially for all of us (which is what a case with constitutional consequence means in effect), and simply by being first to file a case essentially prevent all other equally interested citizens from submitting an amicus brief in the same matter”.
‘Neutrality of amicus a myth’
A law activist, Stephen Kwaku Asare in agreeing with Prof. Prempeh said “neutrality of the amicus is at best a myth and should play no role in the decision to accept or reject his brief”.
He said he however agrees with the Chief Justice Mr Anin Yeboah who chaired the panel, on the view that an amicus must be aware of the issues being litigated by the parties to offer the Court useful advice.
“Amicus’s admission that it had not read the parties’ pleadings was fatal,” he held.