As the country prepares for presidential elections in less than 18 months, it now seems certain that GEJ seeks a return to the partisan fray.
By CHIDI ODINKALU
Seven years ago, in 2018, my good friend and former Dean of Law at the University of Ghana at Legon, Professor Raymond Atuguba, undertook a path-breaking study which sought “to move away from the perception that Justices of the Supreme Court dispense justice impartially under a constitutional democracy and reflect on the influences on the justices as they are taking decisions.” The focus of the study was the influence of politics on judicial decision-making in the Supreme Court of Ghana.
For this purpose, Professor Atuguba examined 78 judgments by 39 Justices of the Supreme Court (including six Chief Justices) over the first twenty-five years of Ghana’s Fourth Republic from 1993 to 2018 in political cases, cross-matching the Justices who sat on the cases against the political party or regime which appointed them. As a functional matter, Professor Atuguba’s study defined a political case to be one in which “you have a political party or politician or politically exposed person as a party to a suit or where it revolves around issues that inure to the political, social, financial or other benefit of a political party or its operatives or known affiliates.”
The conclusions were revealing but hardly shocking. The study found an overwhelming correlation between justices and the regimes that appointed them. It showed that in a majority of cases, the politics explained how the judges decided. In presenting the conclusions of the study, Professor Atuguba argued for the need to “acknowledge political decision making by our Supreme Court….”
Courts are not instruments of revolutionary change. On the contrary, most judges across the world see their roles primarily as being there to afford cover to the regime which appointed them or the system under which they work and, as Alexander Hamilton wrote, are defined by “an unwillingness to hazard the displeasure” of these political benefactors. It is unusual for judges, especially in a developing country, to defect from the path of support for a ruler or party in power.
This should explain the chronically anomalous jurisprudence that has become the routine of judicial decision-making in Nigeria under civilian electoral governments. Rather perversely, this situation should present politicians with the necessary incentive to ensure that the country’s electoral system is credible, because once out of power, those who have enjoyed the benefits of weaponised or situational court decisions suddenly find themselves at the receiving end.
Former president, Goodluck Ebele Jonathan – also known as GEJ – now finds himself in this situation. As the country prepares for presidential elections in less than 18 months, it now seems certain that GEJ seeks a return to the partisan fray. The man himself has made moves which clearly indicate that he is giving this more than active consideration. If he were to choose to run for the presidency, his political brand is likely to be #GEJ2027.
Influential columnist, Chidi Amuta, has counselled GEJ to “flee” from the importuning of those who want to draft him into the 2027 contest. Should he choose to ignore that, however, the likelihood is that the judges will have the final say on his ambitions. It does not require a great deal of imagination to see why or how such a case would be decided under the present dispensation.