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Opinions of Saturday, 8 May 2010

Columnist: Bokor, Michael J. K.

Confronting Ghana's Main Problems: The Judiciary Part III

By Dr. Michael J.K. Bokor



E-mail: mjbokor@yahoo.com



May 4, 2010



The problems of the Judiciary also reflect the widespread national malaise that has been the cause of our woes over the years.



C. ENDEMIC BRIBERY AND CORRUPTION



Anybody who disagrees that the national canker of bribery and corruption has eaten deep into the Judiciary needs help from a psychiatrist. Just like the other state institutions, the Judiciary is a safe haven for those who give and take bribes. Various Chief Justices have complained about the corrupt practices by staff but the situation hasn’t improved for the better. No one should be surprised because by the very nature of how public officers conduct official business, they will create loopholes to exploit. It is disheartening for several reasons.



1. Credibility Problems Credibility problems make it difficult for those in authority in the Judiciary to do anything concrete beyond the ritualized issuing of threats against subordinates. They only make half-hearted attempts because their own credibility is on the line.



The current Chief Justice was the chair of the Cocaine Commission that didn’t do anything to bring back the missing 77 parcels of hardcore cocaine. Despite the cloud of failure hanging over that commission’s work, Kufuor uplifted her to become what she has been over the past three years. Professional qualifications notwithstanding, it is commonsensical to conclude that if such a person lacks integrity, she shouldn’t be where she is. The responsibility for presiding over the fate of human beings before the law is an honourable one that must be performed by honourable people—people without blemish.



Here is another clear instance of credibility problems for this current Chief Justice. At her appointment, we all heard complaints from an aggrieved woman who accused her (Georgina Wood) of being instrumental in her father’s forcible expropriation of land belonging to that woman’s family. The complainant went public, making loud allegations against Georgina Wood and urging the appointing authorities not to retain her as Chief Justice; but nobody in authority batted an eyelid.



Right from Day One, the Chief Justice herself had a big question mark hanging over her. Can society trust such a person to reform the judiciary and rid it of vices? She continues to fill this old wine bottle and is satisfied with the status quo and the stench exuding from it.



2. Failure of the Jury System Developed countries rely on their citizens to perform their constitutional responsibilities by serving as jurors to expedite the trial of cases. We in Ghana shrink from such constitutional obligations.



In our case, the Jury System has been touted but not fully institutionalized because those who are to ensure its “birth” and nurturing into a viable justice delivery mechanism know that there are fundamental problems in the country that will not make it easy to implement it. They may be more interested in other things for now. Then again, do we have the moral courage to operate such a system, knowing very well how corruption has eaten deep into our social fabric? Do we have the moral compunction to allow the jury system to function effectively in accordance with its own sound principles?



Take the case of a juror in the Koforidua area who was reported last year to have contacted the relatives of an accused person being tried by the jury he was part of to demand bribes so as to influence the outcome of the trial. This vice of bribery and corruption has eaten so deep into our lives that people can’t do otherwise but submit themselves to it. Justice cannot be properly served under such a deplorable system of moral decadence.



3. Lack of Clout The Courts lack enough clout to ensure that their decisions are implemented to the full. They do nothing when their decisions are flouted. Otherwise, has Abodakpi or Victor Selormey paid back the money to the state as ordered by the court that convicted them? Has Selormey’s property been confiscated to the state and sold to defray the cost as the court instructed at the time? There are many other instances.



The courts have been blamed for frustrating law enforcement agents, especially in cases involving criminals such as armed robbers and land guards who are arrested and sent to court only to be released to continue endangering life and property.



The law on drug-trafficking cannot be enforced because the Judiciary lacks the strong moral courage to do so; or because the politicians have taken over and disengaged the Judiciary from its purview. There is a heavy political dose in everything associated with law enforcement, which worsens the situation. Those convicted for narcotic offences and jailed or had their property confiscated under the Rawlings government breathed a huge sigh of relief when the Kufuor government reversed the decision and restored to them their property (Benjillo’s case comes to mind). The Judiciary looked on.



Again, the weaknesses in our justice delivery system have provided a safe haven for criminals. The 77 parcels of missing cocaine have still not been found but the courts have overturned their own decision that sent Alhaji Abbas and Tagor to jail in the matter. Kofi Boakye is back in service while all others associated with that case are breathing an air of relief that the legal system has worked to their advantage.



The problem has another root, which originates from the training grounds of our lawyers. The Ghana Law School itself is not without blemish. Take the case of theft of funds for the importation of textbooks that rocked it some four years ago. We are yet to know what action the Kufuor government took to punish the perpetrators or to retrieve the money into government chest. Allegations of bribery and corruption in the admission of candidates to the school have been rife for many years. How can such an institution be trusted to give us people who will administer justice with a clean conscience?



These instances of weakness in our judicial system have prevailed over the years. We know how the Attorney-General’s Department is manipulated by the powers-that-be; we also know about allegations in the past that some faceless people at the seat of government wrote decisions for trial judges to deliver in the trial of certain people seen as political enemies in the recent past.



SOME SUGGESTIONS TO REVAMP THE JUDICIARY The Judiciary definitely needs revamping at several levels—institutional capacity building, drastic attitudinal change in its officials, and rebranding. Efforts to revamp the Judiciary must go beyond mere political rhetoric, vain promises, and wishful thinking. Making such efforts must begin from the top.



1. Constitutional Amendments The constitutional provision on appointments to the higher echelons of the Judiciary must be amended to limit the powers of the President. For instance, instead of the unlimited powers currently given the President to “appoint” the Chief Justice, we must have a provision that will allow the President to only NOMINATE such an office holder. Then, Parliament must dispassionately vet such a nominee in the open and decide his or her fate. Public input into the vetting procedures must be encouraged. After all, the people must know such a nominee and be able to provide input that will help in assessing the personality and professional stature of such a nominee.



The tenure of our Justices must be secure and insured. It must also be ensured against any political interference so that their removal from office will be occasioned by only what is professionally reprehensible, or by reasons of incapacitation due to ill-health, or by choice to leave office voluntarily. What we currently have is inadequate and full of loopholes that the Executive takes advantage of. Our judges must stop pandering to the political forces and administer justice as is expected. They should also stop parcelling out justice as if it’s a commodity to be allocated to the highest bidders.



2. Institutional capacity building Institutional capacity building is a good way to begin revamping the Judiciary. We have just been told that the Attorney-General’s Department is drafting a code of conduct for prosecutors to ensure greater transparency, accountability and efficiency in their work. It is welcome news but rather piecemeal. The problems facing the Attorney-General’s department as far as prosecution of cases and administration of justice are concerned, need a holistic approach.



Addressing the lapses in the justice delivery system should go beyond the doorsteps of prosecutors. Who will enforce these guidelines, anyway? Knowing Ghanaians for what they are, I have many doubts about the efficacy of these guidelines. They will be published with much futile fanfare only to be left on shelves in officialdom to gather dust.



The Attorney General, Betty Mould Iddrisu’s official visit to the United States of America may be part of the efforts to expose her to better legal systems elsewhere. One expects her to go beyond mere hot air blowing and declaration of grandiose agenda on intentions that will not materialize any soon. She should use her visit to do serious business that will equip her with innovative ideas and the zeal to introduce lasting reforms into Ghana’s legal administration system. The US’ legal system is not without fault but it is worth learning much from. Those in the US fear the law because theirs is no respecter of persons, contrary to what obtains in Ghana.



Perhaps, a bright side of her visit to the US is the holding of discussions with the Clinical Faculty of the Fordham Law School on their curriculum and possible introduction of reforms in legal education in Ghana. Revamping the curriculum is good but if the rot in the entire legal system is not weeded out, no amount of scholarship can save the situation from deteriorating further.



If members of the Bar should be excused because they are in private practice, we cannot do same for those employed by the state to function on the Bench. They have the onerous duty of securing justice for the citizenry. The sad fact, however, is that the Bench is saddled with problems. It is depleted of people who should function without let or hindrance. Because of political manipulations, those who choose to serve on the Bench instead of the Bar cannot be said to be free of manipulation by powerful forces (politicians, chiefs, opinion leaders, money-bags, etc.). I challenge them to prove me wrong.



It is obvious that the government (Executive wing) has the Judiciary locked up under its armpit and can manipulate its members at will to do its bidding if need be. The Judiciary is under-funded and cannot function as expected. Government knows why it doesn’t want to provide all the resources that will help the Judiciary become totally independent and perform satisfactorily. Being the one paying the piper, the government pulls strings and provides resources only when it wants to use them either as a bait or a means for arm-twisting for political advantage. This lopsided manner of dealing with the Judiciary cannot empower it to be independent and effective in performing its statutory functions.



For the Judiciary to be truly independent, it must have an adequate pool of resources (both fiscal and material) so that it doesn’t look up to the Executive for sustenance. The judiciary must not continue to be intimidated by the Executive. To decouple it from government (and to prevent interference from officialdom), it needs funds. That is why Parliament must ensure that it enacts laws to reserve a certain percentage of the annual budget to it. If the District Assemblies can have a Common Fund (a fifth of the national earnings?) and President Mills wants to carve off something for the MPs Common Fund, why can’t we serve the Judiciary too?



I will be the first person to support any move to make the Judiciary financially sound. After all, that will be money well spent insofar as it will empower the Judiciary to free itself from the claws of officialdom and function properly. We need a Judicial Service that will be strong enough to assert its independence and function to serve national interests, not parochial personal or political needs. Its legitimate purview must be jealously guarded.



The citizens must also play their part by using all peaceful means to exert pressure on the authorities for them to do the right thing. The current tendency to remain apathetic in this matter is disappointing.



When the people are convinced that the Judiciary will function effectively in determining cases in accordance with only the law and the merits of the cases themselves (not the bells and whistles of the political forces), they will rush to it and reinforce the Judiciary’s role in asserting its independence. They will help streamline affairs for the Judiciary and rely on it to enhance our country’s democracy. Otherwise, the Judiciary will continue to be ridiculed as part of the national crisis.