Earlier this week in Ghana, we were once again presented with the story of a seemingly unwilling saviour of a minority community. Justice Amadou Tanko (herein referred to as Justice), a Supreme Court nominee with an enviable record of practice on the bench and at the bar appeared before the parliamentary vetting committee for the prior approval of this arm of government. His nomination had been greeted with some amount of excitement in Ghanaian Muslim circles. Here was a man on his way to being the first-ever Muslim on the bench of the highest court of the land. For the purpose of context, Ghana has had a Supreme Court in different shapes and forms since 1876. While the Supreme Court is not the most powerful arm of government and neither is it the most visible in the lives of people, those with an appreciable level of understanding of the workings of government do recognize its value. Yes, this nomination was not going to be greeted with the same excitement as that of the election of a president but it nonetheless was a significant milestone. With this excitement came expectations. What is he going to do for us was a silent question which was being phrased in different ways in the minds of Ghanaian Muslims.
Expectations have always been a source of frustration for most people. Especially when that expectation is uninformed. No Supreme Court justice ever goes on the bench as a representative of a community or identity. The first two female Chief Justices of this country did not find their way on to the bench because they were women. Justice Atuguba did not end up on the bench because he is a Northerner. Neither was Justice Amadou Tanko appointed because he is a Muslim. They were all appointed because they, first of all, met the constitutional requirements and distinguished themselves in their line of legal practice. While identity may influence nomination decisions because Representation Matters, it is of marginal significance. Like it or not, on the bench, Judge Tanko is, first of all, a judge before he is a Muslim. His oath of office requires a fidelity to the constitution and not the Qur’an. That, however, should not amount in a derogation in a person’s faith. Finding that balance in a secular world of work life continues to be a challenge most Muslim professionals deal with.
Striking The Balance: The Hijab and Inheritance comments
Two responses from Justice Tanko generated the controversy over his vetting. The first had to do with his statements on the Hijab. The second, inheritance of a person who dies intestate. While most people took issues with the response he gave to both questions, mine has to do with the answer he gave regarding the permission of the use of the hijab as an addition to existing dress codes in institutions. Before proceeding, it is imperative to clarify the following: Islamic Law is not a part of Ghanaian law. This was expressly stated in a decided case which had to do with inheritance of the estate of a Muslim who died intestate (without a will). The sources of law in Ghana are stated clearly in Article 11 of the 1992 Constitution and Shar’iah is not one of them. As such, it will be unfair to demand of a nominee to the court which acts as a vanguard of the constitution to canvass a different position.
Despite the above stated, a response to a question as to how to devolve the property of an intestate Muslim should not merit an answer which simply states that Islamic inheritance law is discriminatory against women without an elucidation of why that is the case. Yes, men in most instances do get more than women do when the estate of a Muslim is being administrated according to Islamic law. But as a colleague said the woman gets 1 to keep and the man gets two to share. What this implies is that the unequal sharing is informed by the responsibility of “male guardians” towards a woman (her brothers, fathers, husbands, male children and uncles). So when looked at simpliciter, the words of Judge Tanko are actually not incorrect. It will seem to be the case that, he merely should have explained the reasoning behind this arrangement and not left it at that. Nonetheless, if you as a Muslim, want your estate to be administrated according to Islamic laws, all you have to do is to write a will indicating this desire, something Islam requires of all its adherents.
Where I found the comments of Justice Tanko to be more problematic had to do with his response to the question on the wearing of Hijab in state run institutions. As a potential member of the body charged with the duty of interpreting the 1992 Constitution, it was very curious to hear the learned Justice agree with administrators who are against allowing students and to some extent workers, wear the Hijab in spaces they run. More curious was the fact that the reasoning behind this position was that Muslim students have the choice to attend schools which are permissive of their religious beliefs and that a student not wearing the hijab does not affect her relationship with her creator/the entity she worships, Allah.
As Hon. Ayariga sought to make the learned Justice appreciate, choice in such matters is a function of economic means. If every Muslim could afford to attend a private institution such as Al Rayan International School, then there will be few folks hustling for space in already overcrowded public senior high schools. Alas, that is not the case. But beyond the cost function, it is in the interest of national cohesion to continue to have Christians, Muslims and people of other religions share the same space in educational institutions where they appreciate the humanity of one another. There has probably not been any quantifiable measuring of the utility of this arrangement but the homely nature of the interaction between persons of all religions in Ghana compared to how it is in other sub-regional countries with the same demographics as ours can be attributed to this arrangement. Uniforms, as we have them today, are a relic of the colonial administration. Even in the country we inherited it from, the UK, accommodation is made for the inclusion of religious beliefs.
Further, justifying this derogation of the right of Muslim ladies to manifest their religion based on the continued purity of their relationship with their creator is not a judicial function. Article 12(2) which provides the metric for derogation of enshrined human rights does not include this. It makes these rights subject to respect for the rights and freedoms of others and for the public interest. As stated by a Ghanaian legal jurist, Article 12(2) does not allow parliament to derogate from the fundamental human rights of Chapter 5 by mere legislation when the constitution itself does not state that that right in question can be derogated from. How much more the actions of a mere administrator? On this matter, the learned Justice’s position is wrong both in Islamic theology (the wearing of the Hijab is a command of Allah surah 24:31) and in the secular law of Ghana.
Throwing the Baby Out with the Bath Water?
As a community, we can point out the questionable opinions of the learned Justice Amadou Tanko and still be happy about his nomination as a Supreme Court Justice. Representation matters and for people with names like that of the learned justice, his ascension to the highest court of the land imbues some level of hope. This is someone they can identify with who has risen all the way to the highest court of the land. What we, however, ought to do is to tamper our excitement with a dose of reality. Justice Tanko is only one out of 15 Supreme Court justices on the bench. With each sitting on a substantive matter having not more than 5 justices at a time (number varies depending on the jurisdiction of the court being invoked) and the CJ having control over who gets to sit on what case, even the Mufti of Saudi Arabia as a Judge in Ghana will not be able to institute the kind of changes Muslims will want to see happen. It is even the case, in the opinion of the writer that these changes on hijab are well within the purview of both the executive and legislative branches of government. These are matters of ensuring specific legislation and subsequent implementation of those legislations.
Throwing the baby out with the bathwater, as some zealous commentators have done is problematic. Some trigger ready Takfiris have already declared the learned Justice a non-Muslim with others praying that he does not make it through the nomination process. Such expressions account for the increasing disassociation of Muslim professionals from the Muslim collective in Ghana. This situation should have occasioned an impassioned discussion not the zealotry being witnessed.
©FULAN IBN FULAN
 For a better appreciation of Islamic inheritance law, head to this website: https://yaqeeninstitute.org/nazir-khan/women-in-islamic-law-examining-five-prevalent-myths/
 THE CONSTITUTIONAL RIGHT TO FREEDOM OF ASSEMBLY AND PROCESSION IN GHANA IN THE LIGHT OF THE DECISION IN THE PUBLIC ORDER CASE AND THE PUBLIC ORDER ACT, UGLJ 1—25. Quashigah E. K.