ON THE EROSION OF CONFIDENCE IN OUR JUDICIARY: A Critical Approach. PART 2: Diagnosis and Possible Solutions.
So how did we get here where a vast section of Ghanaians justifiably have zero confidence in the independence of our Justice system? One singular incident stands out, which set in motion a chain of events that brought us here.
Traditionally we have always had nine justices on the Supreme Court, akin to the American system. However, in 2002, after the Supreme Court, in a 5-4 verdict ruled in favour of Tsatsu Tsikata, to declare Fast Track Courts as unconstitutional, President Kufour, then on a foreign travel expressed disappointment from afar and promised to take action.
He promptly did, appointing two additional judges to the Court and then called for a review. In that review, the two newly appointed judges helped overturn the verdict from a 5-4 to 6-5 in favour of Kufour.
This is perhaps one of the most flagrant examples of “packing the court”. Appointing justices to the court itself doesn’t amount to packing the court as death and retirement always demand replacement of judges. Packing the court is where the court is deliberately inflated with perceived loyalists of one party, through expansion. That singular event changed the outlook of the court.
First, the changing numbers of the court according to the whims and caprices of the executive arm, creates images of court tampering and erodes the image of stability and independence of the court. Second, the large number of judges, created the possibility that, not all judges could sit on a case, as had always been the case in the past.
This brought the concept of “empaneling” the court, giving the Chief Justice enormous power to determine who sits on cases. Apart from the fact that they can carefully select judges according their own interests to sit on cases, other judges who naturally would want the chance to sit on cases (after all, is that not what they’re there for?) must appear in the good books of the CJ.
This theoretically has the potential of transforming the once proud court of nine independent justices into a crowd of vassals for one CJ. Whoever controls the CJ can then control the courts. A government that succeeds in getting one stone-faced footsoldier Chief Justice, can effectively erect a constitutional tyranny.
But as President Kufuor found out in Chief Justice Acquah, in practice this wasn’t going to be case. Independent minded justices aren’t bound to follow the dictates of the appointing entities. In response President Kufour made an even more brazen assault on the independence of the Judiciary.
He set up a committee to attempt to remove Chief Justice Acquah, whom he felt out with, from office. But again, the Supreme Court stood firm, rebuffing Kufuor’s attempts as an unconstitutional assault of the executive arm on the concept of separation of powers and rule of law.
But then suddenly, Justice Acquah died, permitting Kufour to appoint Justice Georgina Wood in his place. We know that it was under her that the first serious agitations against judicial tyranny began, culminating in full throated outburst from Dr Kwabena Adjei, then Chairman of the NDC citing a litany of miscarriages of justice against his party. I’m not in a position to pronounce a verdict on who was right between them.
What is apparent to me however is that, were Dr Kwabena Adjei alive today, he might probably pray for a reverse of time to the era of Her Ladyship. After all, it was under her auspices that the NDC won the electoral petition. That petition hearing also, perhaps rather unfortunately revealed a certain long and dark shadow that now threatens to smother our democracy.
In summation, the erosion of confidence in the courts is a product of not only deliberate assaults on the Courts by the executive arm. It is also a result of a slope of depreciation in the quality of leaders in both arms of government.
- Constitutional reform to place a cap of nine justices on the Supreme Court. This effectively ends packing of the court.
2. End empaneling of the court allowing all nine justices to sit on all cases. This effectively removes the court from the bowels of the CJ and restores independence.
3. Give the justices at the court a lifetime tenure and remove the faintest possibility of chopping and changing of what is supposed to be a sacred institution of justice. No parties would then make plans based on their ability to influence the courts.
By Prosper Senyo (AfricanDigest Contributor)