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The applicant, Lydia Aklamanu,
was until 1st
September, 2011, a Magistrate at
the Family and Juvenile Court
‘C’ at the Ministries in Accra.
Following a petition made
against her by one Patience Okoe,
a three member committee of
Inquiry was appointed to
investigate the allegations made
against her.
The committee after its
deliberations, in which the
applicant fully participated;
and was ably aided by her lawyer
made certain unfavourable
findings in the nature of
impropriety against her. She has
a copy of the committee’s report
and it does appear to me that
she is not aversed to the
proceedings of the committee and
its conclusion.
The committee dutifully
submitted its report to Her
Ladyship the Chief Justice who
in utmost obedience to the 1992
Constitution referred the matter
to the Judicial Council for
consideration and action.
At its meeting on 30th
August 2011, the Judicial
Council after exhaustively and
passionately deliberating on the
committee’s report, accepted the
findings of the committee that
the applicant grossly
misconducted herself in the
performance of her official
duties. The judicial council
therefore passed a resolution to
dismiss the applicant from the
Judicial Service, thus relieving
her of her position as a
magistrate.
The decision of the Judicial
Council was communicated to her
by a letter dated 1st
September, 2011. The caption of
the said letter was the word
“dismissal” written in bold
letters.
In the said dismissal letter,
which was signed by no less a
person than the Honourable Lady
Chief Justice of the Republic of
Ghana, it did indicate for the
attention and information of the
applicant in paragraph 6 thereof
that:
“Upon a resolution supported by
votes of two-thirds of all
members of the Judicial Council,
it was decided that you should
be dismissed from the Judicial
Service for accepting bribe to
influence your conduct in a case
pending before you.”
In coming to this conclusion or
arriving at this decision, which
the applicant might have found
unpalatable, the Judicial
Council acted in absolute
compliance with Article 151(1)
of the 1992 Constitution. The
said Article provides:
“151. Removal
of judicial officers.
(1)
A person holding a judicial
office may be removed from
office by the Chief Justice on
grounds only of stated
misbehaviour, incompetence or
inability to perform his
functions arising from infirmity
of body or mind and upon a
resolution supported by the
votes of not less than
two-thirds of all the members of
the Judicial Council.”
(emphasis supplied).
Upon the receipt of the
dismissal letter, the applicant
caused her lawyer to apply,
through the Judicial Secretary,
to furnish her with the
proceedings of the Judicial
Council on its sitting on 30th
August, 2011. In fact, Counsel
for the applicant wrote three
letters on various dates, that
is 17th October,
2011, 1st November,
2011, and 14th
November, 2011, all in request
of the proceedings of the
Judicial Council. I wish to
clarify the point that,
proceedings in the context of
this case, means the minutes of
the Judicial Council.
The request made by counsel for
the applicant was responded to
by a letter dated October 27,
2011, and signed by the Judicial
Secretary. For the sake of
clarity, I shall reproduce the
full text of the letter. It is
as follows:
“My Ref No. SCR.
38
OFFICE OF THE
JUDICIAL SECRETARY
Your Ref
……….
P. O. Box 119
Tel. No. 665077,
663951 Ext 267
ACCRA, GHANA
October 27, 2011.
GORDON C. AKPADIE,
ESQ
LAWYER FOR LYDIA
AKLAMANU
P. O. Box GP 20009
ACCRA
RE: REQUEST
FOR PROCEEDINGS
I refer to your letter dated 17th
October, 2011 requesting for the
proceedings of the Judicial
Council in respect of Lydia
Aklamanu.
I am directed by the Hon. Lady
Chief Justice and Chairperson of
the Judicial Council to inform
you that your request cannot be
granted.
SGD.
JUSTICE ALEX B. POKU ACHEAMPONG
JUDICIAL SECRETARY.
Cc: The Honourable Lady
Chief Justice
First Deputy
Judicial Secretary
Second Deputy
Judicial Secretary.”
From the letter, I have just
read, it is perfectly clear that
the Judicial Secretary wrote the
letter by the direction of Her
Ladyship the Chief Justice who
is also the chairperson of the
Judicial Council. The Judicial
Secretary, it seems to me, has
no legal mandate to act for the
Judicial Council unless he is
authorized to do so by the
Council or the Chief Justice. In
this connection, I do not think
that the Judicial Secretary must
take the blame (if any) for
writing the letter on the
express orders and command of
his most superior boss, if the
applicant thinks that it
offended her sensibilities. I
also do not think that the
Judicial Secretary should become
the target of a legal suit for
an act done by him on behalf of
the Judicial Council. I shall
re-visit this point in due
course.
Reading carefully through her
affidavits and after listening
to the submissions made by her
counsel, I find that the
response by the Lady Chief
Justice devastated the
applicant. Without mincing
words, she found it detestable
and unconstitutional. It is
against this background that the
instant application for mandamus
has been filed praying for an
order “to compel the Respondent
to perform his constitutionally
mandated duty.”
This takes me back to the issue
of the capacity of the Judicial
Secretary in this application.
As evidenced by the title of the
application and the nature of
the relief being sought by the
motion paper, that is, “to
compel the Respondent to perform
his constitutionally mandated
duty” it is quite evident that
the application has been brought
against the Judicial Secretary.
It behoves on a person or a
party who alleges that another
person or a respondent, in this
case, the Judicial Secretary has
a constitutional duty to
perform, to specify the nature
of the constitutional duty
he/she is alluding to; and refer
the court to the exact provision
in the constitution which
imposes the duty in question on
the respondent. It is
regrettable that counsel for
applicant failed to discharge
this obligation.
I took it upon myself to search
through the constitution to
locate the particular
constitutional provision, the
performance of which the
applicant and his counsel have
made the Judicial Secretary the
subject of their attack without
success. Interestingly, Article
153 of the 1992 Constitution,
which sets out the composition
of the Judicial Council
conspicuously, omits the office
of the Judicial Secretary form
the membership of the Judicial
Council. Technically, it may be
contended that pursuant to
Article 153 of the Constitution,
the Judicial Secretary is not a
member of the Judicial Council.
In practice, however, by the
nature of his work and his
proximity to the Chief Justice,
the Judicial Secretary could be
made the secretary to the
Judicial Council. The
Constitution is silent as to who
should be the secretary to the
Council. But should this be the
case, I do not think such an
arrangement will clothe the
Judicial Secretary with
jurisdiction or, in the words of
the applicant, “a constitutional
mandate” to perform the duties
of the Council. I am also of the
view that the Judicial Secretary
is also not an accredited agent
of the Council. His association
with the Council does not imply
any such legal relations.
Clearly, the office of the
Judicial Secretary is different
and separate from that of the
Judicial Council. A suit against
the Judicial Council cannot be
commenced in the name of the
Judicial Secretary, the
respondent herein. I hold the
view therefore that the Judicial
Secretary has no constitutional
duty to perform, for the benefit
of the applicant, for which
mandamus will issue to compel
its performance.
I shall not, in the interest of
justice, dismiss the application
for the reasons I have
expressed. All the legal
arguments have been made and the
issues raised are critical for
the advancement of our
jurisprudence. I shall,
therefore, proceed to deal with
the matter as though the proper
party, that is, the Judicial
Council is the respondent to the
application. After all, it is
obvious from the affidavits
filed in the proceedings and the
submissions made by the two
lawyers that the intended
respondent is the Judicial
Council. On this score, I shall
exercise my discretion under
Order 5 rule 2 and Order 16 rule
7 of C. I. 47 to amend the title
of the application by making the
Judicial Council as respondent
in place of the Judicial
Secretary. Accordingly, the name
of the Judicial Secretary is
hereby struck out. Pursuant to
Order 5 rule 2 and Order 16 rule
7 of C. I. 47, the title of the
application will now read as
Lydia Aklamanu vrs. The
Judicial Council.
I have chosen this path, as I
said, in the interest of
Justice. It is not in the best
interest of the parties; and the
administration of justice is not
advanced if cases are thrown out
of court on grounds of harmless
procedural defects. In the case
of WELL [1967] 2 ALL ER
1050, Lord Denning MR,
made a remarkable and
instructive statement. He said:
“I take the view to be that a
defect in procedure can be cured
and an irregularity can be
waived even by a public
authority so as to render valid
that which would otherwise be
invalid.”
It is worthwhile for the defect
in procedure to be cured in
order that all matters in
controversy will be effectively
and completely determined. I am
minded to do substantial justice
to the parties hence the need to
amend the title. I find the case
so important that I should
refrain from looking at the form
of the application but its
substance so that all the issues
in controversy would be resolved
and put to rest once and for
all.
This brings me to the discussion
of the mandamus application
itself. Flowing from the
response received by the
applicant to her request to be
furnished which the minutes of
the Judicial Council, she has
made certain statements and
allusions which essentially
questions the legitimacy of the
Judicial Council to keep its
minutes secret. In her affidavit
in support filed on 7th
December, 2011, the applicant
made these averments inter alia:
“4. That the Respondent has
refused to give to my lawyer the
certified true copy of the
proceedings aforesaid and has
stated clearly that my lawyer’s
request cannot be met.
5. That I am advised by counsel
and verily believe same to be
true that the Judicial Council
is a creature of Law and its
operations cannot be secret and
confidential.
6. That I am further advised by
counsel that it is my
constitutional right to be given
documents my lawyer request
especially as I have a direct
and substantial interest in the
aforesaid proceedings.
7. That the continued refusal of
the Respondent to comply with my
request is causing grave injury
to me and constitutes a flagrant
abuse of my fundamental rights
as a citizen of Ghana, per the
advice by counsel …”
Then on 29th
February, 2012, the applicant
filed a supplementary affidavit
and averred in paragraph 2, 3,
4, 5, 6 and 7 as follows:
“2. That my attention has been
drawn to Respondent’s affidavit
in opposition dated 13/02/12.
3. That in paragraph 6 thereof,
Respondent deposed that minutes
of the Judicial Council are not
meant for public scrutiny as
this will undermine the mandate
of the Judicial Council.
4. That I am advised and verily
believe same to be true that the
Judicial Council, being a
creature of the Constitution,
1992, was established to
function in the supreme interest
of the public of which I am a
member.
5. That the spirit and letter of
the Constitution is to protect
the inalienable rights and
freedoms of Ghanaians as
enshrined therein and did not
make the Council a secret
society neither its proceedings,
per the advise by counsel.
6. That I am further advised
that, on the contrary, good
governance practices dictate
that as a creature of law, the
Judicial Council must conduct
its business in strict
conformity with the very law
that created it and it is only
after scrutiny by interested
persons as me that it can boast
of crusading and protecting the
rights of the citizens of Ghana.
7. That by its deposition in
paragraph 6, Respondent seeks to
place the Judicial Council
meetings up and above the
Constitution of the Republic of
Ghana, 1992.”
It is imperative to know what
the respondent said in paragraph
6 of the affidavit in
opposition, which from all
indications did not find favour
with the applicant. The said
paragraph is as follows:
“6. The minutes of the Judicial
Council are not meant for public
scrutiny as this will undermine
the mandate of the Judicial
Council.”
The matters to which the
applicant deposed to in her
affidavits, some of which were
advice given to her by her
counsel, where augmented by
counsel in his submissions.
According to counsel the refusal
to furnish the applicant with
the proceedings is the worst
form of tyranny that a citizen
of this country could be
subjected to. Counsel said
“… the Constitution of Ghana
established the Judicial Council
and it was not intended to hold
its meetings in secret. It
cannot be just that it cannot
make its minutes available to
persons who are affected by its
decisions. … My Lord, we are
saying that the refusal as we
find in exhibit C, is the height
of tyranny and our Court shall
not allow it. … the Chief
Justice who sits at the Citadel
of Justice in this country must
be seen to be acting fairly
communicating to persons her
decision affects and she cannot
say that I will not. …”
Counsel went on with his
submissions and said:
“ My Lord, in our supplementary
affidavit we have said that the
Judicial Council cannot be a
secret society and therefore its
minutes will be held to its
chest.”
In her submissions, counsel for
the respondent argued that the
applicant has no legal right to
call for the minutes of the
Judicial Council. Counsel
further denied the notion that
the Judicial Council is a secret
society and affirmed the
position that the minutes of the
Judicial Council is not for
public scrutiny.
The issues emanating from this
application are:
(1)
Whether the minutes of the
Judicial Council are secret and
confidential;
(2)
Whether the applicant has a
legally recognizable right to
demand the said minutes; and
(3)
Whether the Judicial Council
owes the applicant a legal duty
to furnish her with its
proceedings.
The Judicial Council, as counsel
for the applicant rightly
contended, is a creature of
statute and therefore a public
body. Article 153 of the 1992
Constitution created the
Judicial Council and set out its
composition. Its functions are
well set out in Article 154 of
the Constitution. A further role
is assigned to the Judicial
Council by Article 151 of the
Constitution, where the subject
matter is about the removal of a
person holding a judicial
office.
The applicant was a person who
held a judicial office and for
that reason the Judicial Council
played its constitutional role
in her removal from office on
grounds of stated misbehaviour.
It does not appear to me that
even though the Judicial Council
is a public body, the
performance of its core
functions and its deliberations
and decisions ought to be
publicised neither must they be
done under the watchful eyes of
the public.
I have made these introductory
remarks to prepare the grounds
for the discussion of the scope
and effect of the Oath of
Secrecy that his contained in
the Second Schedule of the 1992
Constitution. As the issue
whether the proceedings of the
Judicial Council is secret or
confidential was turning over
and over in my mind, the
realization dawned on me that
before the members of the
Judicial Council assumed office,
they had to take the Oath of
Secrecy. To appreciate the
importance and the legal effect
of the oath of Secrecy, it is
important that I refer to it
verbatim. The full text of the
Oath of Secrecy is as follows:
“I ……………………………… holding the
office of …………………………. do (in the
name of the Almighty God
swear) (solemnly
affirm) that I will not directly
or indirectly communicate or
reveal to any person any matter
which shall be brought under my
consideration or shall come to
my knowledge in the discharge of
my official duties except as may
be required for the discharge of
my official duties or as may be
specially permitted by law.
(So help me God).”
The taking of the oath of
secrecy is thus a covenant
between the covenantee on the
one hand and God Almighty on the
other. It seems to me, however,
that God in this context is
represented by the State or the
Republic of Ghana, for sanctions
for breaches of the Oath will
not be administered by God but
by the State.
Subscribers of the oath are
enjoined by the very strict
restrictive words of the oath to
refrain from divulging matters
which have been considered by
them or may have come to their
knowledge in the discharge of
their official duties. It is
important to note that oaths are
not taken to be broken, and one
breaks an oath at his/her own
peril.
The oath of secrecy admits of
two exceptions. These are:
(1) When the revelation of the
information or communication is
necessary for the discharge of
their official duty; and
(2) When the revelation of the
information or communication is
specially permitted by law.
The importance of the Oaths of
Secrecy can not be down played
in all spheres of human
endeavour. Often times,
information that are classified
a very sensitive in nature; and
this information is protected
from being used to damage or
endanger the very reputation of
an organization or its
employees. Information is
classified to ensure privacy.
With respect to the Judicial
Service, the Judicial Council,
per its functions, does a whole
lot of things and takes various
and varied decisions and adopts
policies geared towards the
efficient running of the
Service. For example, when the
Judicial Council holds
consultations with the
Government in respect of payment
of remunerations, it needs not
to be put in the public domain
for obvious reasons. They may
have discussed matters affecting
certain personalities which
ought to be kept away from the
public. I agree that
transparency and accountability
are signs of good governance;
however, the Oath of Secrecy
does not contradict the
requirement of good governance
and transparency. It is not a
mark of good governance and
transparency to divulge
information to those who do not
need them neither is it a mark
of good governance to divulge
information which may have the
effect of brewing mistrust and
resentments.
In the light of the above, I
shall answer issue (1) in the
affirmative on the grounds that,
by virtue of the Oath of
Secrecy, the proceedings or
minutes of the Judicial Council
are secret and confidential.
They are secret and confidential
not because the Judicial Council
is a secret society but because
the Supreme Law of the land, the
1992 Constitution has made it to
assume that character.
Turning to issue (2), whether
the applicant has a legally
recognisable right to demand the
said minutes, I think the
applicant must come under one or
all of the exceptions provided
in the Oath of Secrecy. I shall
go over the exceptions again.
They are:
(1) When the revelation of the
information or communication is
necessary for the discharge of
their official duty; and
(2)When the revelation of the
information or communication is
specially permitted by law.
Learned Counsel argued
strenuously that the decision of
the Judicial Council to dismiss
the applicant is a decision that
affects the applicant.
Unquestionably, her right to
work and to earn a living was
affected by her dismissal. The
decision to dismiss her was
communicated to her per the
dismissal letter exhibited as
Exhibit A. What affected her
interest was what was
communicated to her. On this
score, the first exception in
the Oath of Secrecy was
satisfied. That is to say that,
in the discharge of their
official duties, the Judicial
Council was enjoined by law to
communicate the fact of her
dismissal to her.
To ask for the whole proceedings
for the day is to demand the
performance of a duty that is
impossible to perform. Apart
from the decision of her
dismissal, all other matters
discussed by the Judicial
Council did not concern her in
any way. What is her stake in
those proceedings? Absolutely,
nil. I think those proceedings
that did not affect her interest
are confidential as far as she
is concerned and they must be
kept away from her.
I can not conjecture the matters
considered by the Judicial
Council on 30th
August, 2011, but assuming that
certain negative remarks were
made against certain
personalities, assuming that
some suggestions were made to
reprimand certain personalities,
assuming that certain
intimations to withhold the
salaries of certain persons were
made, is the applicant saying
that she has interest in all
these matters, simply because
her case came up for
consideration that day? I think
not.
It is iniquitous to divulge
confidential information about
persons or to divulge
confidential information about a
major policy decision yet to be
implemented within an
organization to those who do not
need them.
The argument that the disclosure
of classified information will
enure to the benefit of society
is quiet irrelevant. It does not
matter if its disclosure will
benefit some one or some body of
persons or some persons may
profit from their disclosure or
acquire some useful information
thereby.
I shall turn to the second limb
of the exception, that is, when
the revelation of the
information or communication is
specially permitted by law. The
emphasis is on the phrase
“specially permitted by law.”
The question then is: Is there a
law which specially permits the
applicant to access the
proceedings of the Judicial
Council? Learned Counsel did not
put a finger on any legislation.
I am also not aware of any law
passed in this regard.
The true legal position is that
in Ghana, there is no
legislation that trumps the oath
of Secrecy. The expectations of
Ghanaians are that the Right to
Information Bill would be passed
into law to enable certain vital
information to be accessed from
public institutions and bodies.
Unfortunately, that law has
not been passed, so I can not
fathom its contents, its scope
and the extent of its
application. I am however
optimistic that such a law will
not supersede the Oath of
Secrecy. Even where some
information has to be divulged,
I think, the law will have some
in-built legal restrictions to
protect public morals, the
security of the State and the
protection of the rights and
freedoms of others.
The answer to the third issue,
from the analysis of issues 1
and 2, is obvious. It is evident
that the applicant has no right
recognizable at law to ask for
the proceedings of the Judicial
Council. In applications of this
nature, it is imperative that
the applicant must show that
he/she has a legal right to
demand the performance of the
official duty and thus seek the
assistance of the court to
compel its performance. See the
case of the Republic vrs.
The National House of Chiefs and
others; Ex-parte Fabile III and
others (1984-86) 2 GLR 731.
Naturally, the absence of a
legal right, as has been shown
in this case, is fatal to the
case of the applicant. Except
permitted by law, the Judicial
Council shall not furnish the
applicant with its proceedings,
save the decision taken against
her. I so hold.
Mandamus being a discretionary
remedy will not be granted if
the effect of its grant would
undermine a Constitutional
provision or a Statute. In other
words, mandamus will not issue
if it will result in an
illegality. Similarly, mandamus
will not issue if it will
adversely affect the rights and
freedoms of others. Certainly,
it will be an exercise in
futility to give an order that
cannot be performed because of
some legal impediment. In the
instant case, the applicant
would have to surmount the Oath
of Secrecy before she could
secure the grant of the
application.
I am not aware of the matters
discussed by the Judicial
Council on 30th
August, 2011, nonetheless, I
will not discount the
possibility that the discussions
and deliberations did not affect
the interest of other judicial
officers. It is also possible to
presume that some very sensitive
decisions were taken. Obviously,
all these are not meant for the
consumption of the applicant and
all those who are not supposed
to be fed by those information.
To order the Council to furnish
the applicant might spill the
beans. This may in turn engender
some unpleasant consequences.
Those against whom certain
things were said would then
begin to advise themselves. The
members of the Judicial Council
would be exposed to hatred,
anger and all sort of negative
reactions. The Judicial Service
itself will suffer from
insecurity.
The members of the Judicial
Council are honourable people of
society who have distinguished
themselves in various fields.
They are people of integrity and
it is my duty to preserve their
dignity. I would be shepherding
the members to violate the
Constitution by breaching the
Oath of Secrecy they swore and
thereby perjure themselves,
should I accede to the request
of the applicant. Surely, the
grant of the application will
lead to infractions of the
Constitution and would result in
anomalies of unimagined
proportions. For this and the
other reasons previously
expressed, I shall decline the
invitation being extended to me
by the applicant to order the
Judicial Council to furnish her
with its proceedings on its
sitting on 30th
August, 2011. On this note, the
application is refused.
COUNSEL:
1. Gordon C. Akpadie for the
Applicant.
2. Helena French for the
Respondent.
(SGD.) KOFI ESSEL MENSAH
JUSTICE OF THE HIGH COURT.
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