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Professor Stephen Kwaku Asare (Kwaku Azar), a D&D Fellow in Public Law and Justice at CDD-Ghana, has called for the disqualification of Justice Clemence Honyenuga from continuing to hear the GHS217-million financial loss case involving former Ghana Cocoa Board (COCOBOD) CEO Stephen Kwabena Opuni and businessman Seidu Agongo.
The KPMG Professor in accounting at the Fisher School of Accounting, who is also a public intellectual and scholar-activist, whose contributions and activism, including as plaintiff in a number of precedent-setting cases before the Supreme Court of Ghana, are, according to CDD-Ghana, “helping to push the frontiers of governance and the rule of law, particularly in the area of constitutional law and practice”, some recent comments made by Justice Honyenuga while dismissing Dr Opuni’s second recusal application against the Supreme Court Justice who is sitting as an additional high court judge on the matter, on Thursday, 16 December 2021, creates an atmosphere that is not conducive for the delivery of justice.
Justice Honyenuga, in dismissing the recusal application, described it as “malicious” and calculated attempt by Dr Opuni to court public sympathy and also delay the hearing.
The court also said it was a blatant lie that Justice Honyenuga had been hostile toward Dr Opuni.
In Prof Asare’s view, “these are very serious allegations coming from the bench, and raise important questions about how the Judge has been able to determine that the defendant is seeking public sympathy, acting maliciously or stating blatant lies under oath”.
“If I am the defendant, these words will put me in fear that I will not receive a fair and impartial trial”, Prof Asare noted in a Facebook post.
On the flip side, he said: “If I am the judge, I will question whether I can be fair and impartial about a defendant that I believe has told malicious lies about me”.
Therefore, he asserted, “without prejudice to the parties, it is fair to conclude from these statements that an intolerable adversary atmosphere has developed between Justice Honyenuga and Opuni”.
Prof Asare then suggested: “Under these circumstances, it is my solemn opinion that Justice Honyenuga stepped over the line in his attempt to justify the denial of the recusal motion and should be disqualified from continuing with the case”.
Dr Opuni filed the affidavit in support of the recusal motion on Friday, 10 December 2021.
Dr Opuni said “based on the averments contained in the above, it is only fair and just that the trial judge recuses himself from further hearing of the suit.”
In his affidavit, he said: “I state further that this conduct of the learned judge in unilaterally imposing dates did not happen when the prosecution was presenting its case. During that time, the learned judge always agreed with the lawyers before adjourning the case. Unfortunately, the learned judge has refused to grant me the same conditions and facilities which were afforded to the prosecution.”
Dr Opuni also said Justice Honyenuga “has exhibited open hostility toward me since I opened my defence and this is evident where he (the learned judge), in open court, apart from not hearing my counsel with respect to adjourned dates, bangs his files on his table when giving dates and on his own, orders the court to rise while angrily screaming ‘court rise’. Indeed, at the last hearing on the 9th day of December 2021, the learned trial judge unilaterally adjourned the suit at a time my lawyer was on his feet and addressing him with respect to the proposed adjourned dates and walked away to his chambers.”
The conduct of the judge, Dr Opuni averred, breached his right to a fair hearing and also constitutes a breach of Rule 3 (5) of the code of conduct for judges and magistrates, which stipulates that: ‘A judge shall perform judicial duties without bias or prejudice, A Judge shall not, in the performance of Judicial duties, by words or conduct, manifest bias or prejudice including but not limited to bias or prejudice based upon race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status, and shall require Court personnel and others not to do so.’
Additionally, Dr Opuni argued that “the fact that the judge is biased toward me is evidence by his prejudicial comment, which he made in court on the 9th day of December 2021 where he stated in open court that the evidence of my witnesses cannot exonerate me save my own evidence”.
“This shows a clear case of bias and that the learned judge has already made his mind even though my first witness has not yet completed his evidence-in-chief. I add that this comment is further evidence that the learned trial judge would not consider the evidence of my witness even though he has not completed his evidence-in-chief.”
The affidavit continued: “That during the examination-in-chief of my first witness, when my lawyer sought to elicit a response from my witness on portions of the findings of fact made by the judge in his ruling dismissing our application for submission of no case, including the above, the learned trial judge stopped him and furiously informed him that he was not going to allow my lawyer to ask questions by referring to his ruling”.
This conduct, Dr Opuni noted, “is one of bias since the questions to be asked are based on the express finding made by the judge with respect to the submission of no case in which the judge made extensive references to the evidence of various prosecution witnesses affirming the basis of his ruling”.
“I state that unless the learned trial judge recuses himself from hearing this matter, I would be denied a fair trial since I would be prevented from conducting the case in a way which I am entitled to by making references in this instance to specific portions of the ruling”.
“I state further that the fact that the learned trial judge is biased is further evidenced from his conduct of the 2nd day of December 2021, where the learned trial judge, even though aware of the fact that I had the constitutional right of deciding the mode of calling witnesses, initially objected to DW1 giving evidence. This was most unfortunate in that at no point in time during the presentation of the case by the prosecution did he seek in any way whatsoever and or howsoever to instruct on the sequence of calling their witnesses”.
“I state further that the learned judge has repeated on numerous occasions since I opened my defence that his diary at the Supreme Court does not afford him enough time, hence his act of imposing these said dates. It is, thus, clear to me that I will not get a fair trial as my trial would be rushed through by his Lordship the trial judge”.