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Electronic Communications Tribunal chairman recuses self

BY: Emmanuel Ebo Hawkson
Justice Professor Samuel Date-Bah
Justice Professor Samuel Date-Bah

The Chairman of the Electronic Communications Tribunal (ECT), Justice Professor Samuel Date-Bah, a retired Justice of the Supreme Court, has recused himself from all proceedings of the tribunal.

In view of the recusal of Justice Prof. Date-Bah, the tribunal has adjourned indefinitely all cases that were up for hearing  last Tuesday.

A notice issued on June 18, 2019, by the Registrar of the tribunal said a new date would be fixed for the hearing of the cases.

“Please take notice and notice is hereby given that Justice Date-Bah has recused himself from any further proceedings of the Electronic Communications Tribunal. Accordingly, the sitting of the tribunal on June 24, 2019 has been adjourned indefinitely for the Registry to fix a date,” the notice said.

The tribunal was billed to hear cases challenging the closure of Radio Gold, Radio XYZ and other radio stations closed by the National Communications Authority (NCA) over allegations of breaching Act 775.

The ECT is the body mandated to hear disputes such as the closure of radio stations by the NCA and other issues related to the enforcement of the Electronic Communications Act, 2008 (Act 775).

Resignation

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Justice Prof. Date-Bah’s decision to recuse himself is against the backdrop of disagreement between the ECT and NCA, over budgetary allocation from the NCA to the tribunal.

Under the Electronic Communications Act, 2008 (Act 775), the NCA is supposed to pay for the expenses of the ECT, as well as the allowances of the members of the tribunal.

Section 89 (3) of Act 775 stipulates that “the expenses of the tribunal shall be paid out of income derived by the authority and shall be part of the annual budget of the authority.”

On May 31, 2019, Justice Prof. Date-Bah tendered his resignation to the Public Services Commission (PSC). He proposed to the PSC that his resignation should take effect from July 1, 2019, to give the Commission time to find his replacement.

In his resignation letter, Justice Prof. Date-Bah contended that the NCA had failed to release any of the approved budget for the tribunal.

He added that in spite of the financial constraints of the tribunal, as a result of the NCA’s failure to release the funds, members of the tribunal had continued to discharge their duties “out of a sense of duty.”

“However, the financial constraints are now going to constrain even our ability to hear cases. In a few cases, we have reached the stage where viva voce evidence (oral evidence) needs to be taken, but the logistics for this have not been funded,” he said.

NCA’s application

The NCA responded to the resignation by filing a process at the Accra High Court to prohibit Justice Prof. Date-Bah from being part of the panel that will adjudicate on cases pending before the tribunal on June 24, 2019.

In an application for judicial review in the nature of prohibition, it is the contention of the NCA that the content of Prof. Justice Date-Bah’s resignation letter raises “a strong likelihood of bias” and, therefore, he cannot continue to preside over the tribunal and hear cases pending before the tribunal even before he resigns.

The NCA rejected the assertions made by Justice Prof. Date-Bah in his resignation letter and said the authority was rather ensuring prudent use of funds.

It said the NCA was, carefully, guided on how to disburse public funds in accordance with the Public Financial Management Act.