TIG Post

Tag: Supreme Court judge

  • It is discriminatory, unconstitutional for FDA to ban celebrities from advertising alcohol – Supreme Court judge

    It is discriminatory, unconstitutional for FDA to ban celebrities from advertising alcohol – Supreme Court judge

    A member of the Supreme Court, Justice Barbara Ackah-Yensu, has ruled that the Food and Drugs Authority’s (FDA) guideline prohibiting celebrities from promoting alcoholic beverages is discriminatory and should be invalidated.

    Justice Ackah-Yensu declared that the rule, which states “No well-known personality or professional shall be used in alcoholic beverage advertising,” is deemed “unconstitutional.”

    As one of the two judges who opposed the majority 5-2 decision supporting the FDA’s ban on celebrity endorsements of alcoholic drinks, Justice Ackah-Yensu labeled the directive as “unconstitutional.”

    In her dissenting opinion, outlined in a 75-page judgment delivered on June 19, 2024, and supported by Justice Prof. Henrietta Mensa-Bonsu, but made public on July 15, 2024, Justice Ackah-Yensu criticized the FDA guidelines as “discriminatory.”

    “In conclusion, I am convinced that the Plaintiff has made a compelling case that supports the conclusion that Guideline 3.2.10, which seeks to debar ‘well-known personalities and professionals’ from engaging in alcoholic beverages advertisement, is discriminatory and unconstitutional.

    “I therefore declare Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant (FDA) on February 1, 2016, is discriminatory, inconsistent with, and in contravention of Articles 17(1) and (2) of the 1992 Constitution, and thus unconstitutional.

    “Accordingly, I hereby order the striking down of Guideline 3.2.10 of the said Guidelines as being inconsistent with and in contravention of the letter and spirit of the 1992 Constitution.

    “Finally, the Defendants, their agents, servants, or assigns are perpetually restrained from acting under the said Guideline 3.2.10,” Justice Barbara Ackah-Yensu stated.

    Conclusion

    In summarizing Justice Ackah-Yensu’s viewpoint, she stated, “I concur with the Plaintiff that many individuals engage in these advertisements as a means of earning a living. Consequently, it is an unconstitutional effort to undermine their economic opportunities simply because they can capture public interest.”

    “I do not arrive at these conclusions oblivious of this Court being a policy court, and indeed empowered to direct the policy of the State,” she stated to buttress her point.

    “I must state without equivocation that I subscribe fully to the discourse against the infiltration of our society, and especially motivating our young ones and minors to engage in alcohol and drug abuse.

    “My subscription notwithstanding, I am guided by the constitutional tenets, its letter, and spirit.

    “As admonished by the Court in the famous Tufour v Attorney-General (1980) GLR 637, every conduct must conform to the due process of law.

    “The 1st Defendant must design a mechanism that is consistent with the Constitution to attain the mischief it seeks to cure with the publication of these guidelines, especially Guideline 3.2.10.

    “Presently, however, in my view, Guideline 3.2.10 is inconsistent with and in contravention of Articles 17(1) and (2) of the 1992 Constitution. As aforesaid, there are already in place restrictions provided by the Liquor License Act and Guidelines 3.2.1 to 3.2.9 to ensure the responsible use of alcohol for public safety and health.

    “And if Parliament finds it necessary to exclude any specific and defined group from advertising alcoholic beverages, it may so legislate.

    “But for now, the blanket prohibition of persons who are said to be ‘well-known within society’ to advertise alcoholic beverages is discriminatory, arbitrary, and in contravention of the 1992 Constitution and same ought to be declared a nullity.

    “In conclusion, I am convinced that the Plaintiff has made a compelling case that supports the conclusion that Guideline 3.2.10, which seeks to debar ‘well-known personalities and professionals’ from engaging in alcoholic beverages advertisement, is discriminatory and unconstitutional.

    “I therefore declare Guideline 3.2.10 of the Guidelines for the Advertisement of Foods published by the 1st Defendant on February 1, 2016, is discriminatory, inconsistent with, and in contravention of Articles 17(1) and (2) of the 1992 Constitution, and thus unconstitutional.

    “Accordingly, I hereby order the striking down of Guideline 3.2.10 of the said Guidelines as being inconsistent with and in contravention of the letter and spirit of the 1992 Constitution.

    “Finally, the Defendants, their agents, servants, or assigns are perpetually restrained from acting under the said Guideline 3.2.10.”

    On June 19, 2024, the Supreme Court, in a 5-2 majority ruling, affirmed the FDA’s directive prohibiting celebrities from promoting alcoholic beverages.

    The seven-judge panel, led by Chief Justice Gertrude Sackey Torkornoo, determined that the FDA guideline was neither overly restrictive nor in violation of the 1992 Constitution.

    “We find from the above that the Defendant has authority under the Public Health Act, 2012, Act 851, to issue guidelines in connection with food and drugs, including alcoholic beverages in order to regulate the production and consumption of these items with the aim of protecting and promoting the general well-being and health of all persons in Ghana.

    “We find that guideline 3.2.10 was issued by the 15 Defendant within the general
    powers conferred on the 1st Defendant by the Public Health Act, 2012, Act 851.

    “We hold that guideline 3.2.10 is not unreasonable or excessive and that it is in the interest of the public health of Ghana. Consequently, guideline 3.2.10 is not discriminatory and it is neither inconsistent with nor contravenes articles 17(1) and (2) of the 1992 Constitution.

    “The Plaintiff’s action therefore fails in its entirety and it is therefore dismissed,” the Majority stated.

    The majority opinion was delivered by Chief Justice Gertrude Sackey Torkornoo, along with Justices Paul Baffoe-Bonnie, Mariama Owusu, and George Kingsley Koomson.

    In 2015, the FDA introduced a directive prohibiting celebrities from endorsing alcoholic drinks.

    The directive aimed to safeguard minors and promote public health.

    Dissatisfied with this directive, Mark Darlington Osae, an artist manager, took the case to the Supreme Court, arguing that the FDA’s rules violated principles of equality and discriminated against the creative sector.

  • Justice Honyenuga: Opuni fails to remove retired judge from case

    The High Court in Accra has dismissed an application by former Chief Executive Officer of the Ghana Cocoa Board (COCOBOD), Dr Stephen Opuni, which sought to remove the retired judge from continuing to preside over his case.

    Dr Opuni, acting through his lawyers, had argued that the Chief Justice was not clothed with the power to extend retired Justice Clemence Honyenuga’s tenure by six months to continue hearing the case.

    Context

    Justice Honyenuga, a Supreme Court judge presiding over the case at the High Court judge, was due for retirement in September 2022.

    Prior to his statutory retirement at age 70 for Supreme Court Justices, the Chief Justice, Justice Kwasi Anin Yeboah, supposedly in accordance with Article 145 of the 1992 Constitution, gave the retired judge six more months to conclude the case, which has been before the court since 2018.

    Article 145(4) of the Constitution states: “Notwithstanding that he has attained the age at which he is required by this article to vacate his office, a person holding office as a Justice of a Superior Court or Chairman of a Regional Tribunal may continue in office for a period not exceeding six months after attaining that age, as may be necessary to enable him to deliver judgment or do any other thing in relation to proceedings that were commenced before him previous to his attaining that age”.

    According to the lawyers of Dr Opuni, the appointing authority, which is the President, was the only person clothed with the power to extend Justice Honyenuga’s tenure and not the Chief Justice.

    Ruling

    However, in a ruling last Monday, Justice Honyenuga dismissed the application on grounds that the Chief Justice exercised his administrative power as the head of the judiciary when he extended his (Honyenuga’s) tenure in accordance with Article 145 of the 1992 Constitution.

    Dr Opuni together with businessman, Seidu Agongo, are on trial for allegedly causing over GH¢217 million financial loss to the state in the supply and purchase of lithovit liquid fertiliser.

    The two are before an Accra High Court slapped with 27 charges, including causing financial loss to the state, defrauding by false pretences, conspiracy to commit crime, abetment of crime, money laundering, and corruption by public officer and contravention of the Public Procurement Authority Act.

    Application

    Moving the motion counsel for Dr Opuni, Samuel Codjoe submitted that the Chief Justice engaged in an “unconstitutional act” when he extended the tenure of Justice Honyenuga.

    Counsel added that the power to extend the tenure of a Supreme Court could not be exercised by the Chief Justice who was not the appointing authority.

    “The only person who can grant an extension to the tenure of your lordship as contained in Article 145(4) is the President and not the Chief Justice,” he said.

    Counsel added that although the Chief Justice was the administrative head of the judiciary, he could not grant an extension to the tenure of a judge who had attained the mandatory constitutional retirement age, hence the Chief Justice usurped the powers of the President.

    Opposition

    The Director of Public Prosecutions, Yvonne Atakora Obuobisa, opposed the application.

    “The appointment and removal from office of a justice of the superior court is different from an extension to a judge previously hearing a case to continue with the matter for a limited period of time, and the Constitution handles them differently,” she said.

    She added that in Articles 144 and 146 of the 1992 Constitution, the drafters of the Constitution said it was the President who appointed and removed Justices of the superior court.

    “Nowhere in Article 139 or 145(4) is the President mentioned, and if the drafters intended for the President to give an extension, they would have stated so,” she added.

    The presiding judge in dismissing the application indicated that the Chief Justice as the administrative head of the Judiciary had the power under the Constitution to extend the service of a retiring judge for the six-month period.

    The case has been adjourned to November 16, 2022, for the trial to continue.

  • Brazilian politician throws grenades towards police in Rio de Janeiro state

    A Brazilian politician has been arrested after he threw grenades at police officers who arrived at his home in the state of Rio de Janeiro to arrest him.

    Before surrendering on Sunday, Roberto Jefferson, an ally of far-right President Jair Bolsonaro, wounded two officers.

    Previously, a Supreme Court judge ordered his incarceration for disrespecting Chief Justice Cármen Luca. He had already been placed under house arrest for threatening her.

    Mr Bolsonaro reacted by saying those who fired at police should be arrested.

    The two officers were wounded by shrapnel from a grenade during the attack in Comendador Levy Gasparian, north of the state capital Rio de Janeiro. They were taken to the hospital and later discharged.

    Mr Jefferson, the 69-year-old former leader of the PTB political party, also fired a number of shots from a rifle, shattering the windshield of a police car.

    Supreme Court Judge Alexandre de Moraes had ordered the politician to be detained on the grounds that he violated the conditions of house arrest.

    Political tensions are high in Brazil ahead of Sunday’s presidential election run-off between Mr Bolsonaro and left-winger Luiz Inácio Lula da Silva.

    Lula – who is still seen as the front-runner – fell short of the 50% of valid votes needed to prevent a run-off in the first round earlier this month.

     

  • Some, not all Ghanaians have lost trust in the judiciary – Supreme Court Judge nominee

    Supreme Court judge nominee, Justice Barbara Frances Ackah-Yensu, has acknowledged that some Ghanaians have lost trust in the country’s justice delivery system.

    Speaking during her vetting at Parliament on Tuesday, October 18, Justice Ackah-Yensu, who is currently an Appeals Court judge, however, noted that, the situation is not as bad as some persons are asserting.

    The Supreme Court judge nominee made these remarks while answering a question on ex-President John Dramani Mahama’s view that Ghanaians have lost trust in the judiciary.

    Ex-President Mahama, at a forum held for lawyers of the National Democratic Congress on August 28, lamented that the judiciary has a ‘broken image under the leadership of the current Chief Justice.

    He said that Ghanaians have lost trust in the judiciary, owing to some of its unanimous decisions, a situation he explains as dangerous to the country’s democracy.

    He stated that it would only take a new Chief Justice to chart a path to regaining public trust in the judiciary.

    “There is therefore an urgent need for the Ghanaian judiciary to work to win the trust and confidence of the citizenry and erase the widely held perception of hostility and political bias in legal proceedings at the highest courts of the land.

    “Unfortunately, we have no hope that the current leadership of our judiciary can lead such a process of change. We can only hope that a new Chief Justice will lead a process to repair the broken image that our judiciary has acquired over the last few years,” Mahama said.

    But, Justice Barbara Frances Ackah-Yensu intimates that the former president’s view is wrong.

    “I am aware of some loss in trust and confidence but from where I am sitting as a judicial officer, I can confidently say that it is not true, with all due respect, that generally, the populace is losing trust,” she said.

    Source: ghanaweb.com