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Opinions of Thursday, 16 February 2012

Columnist: Amoah, Anthony Kwaku

When The Judiciary Is Defective

By Anthony Kwaku Amoah

"The only thing necessary for evil to triumph is for good men to do nothing" - Edmund Burke.

The Judiciary, also referred to as the third arm of government, is tasked to interpret the law. Every nation has its own laws. Peace and security would have eluded us completely if our country had lived without laws. We are therefore expected to perform our daily activities within the confines of the law. Article 125, Clause (1) of the 1992 Constitution empowers the Judiciary to administer justice through an independent court system with the Constitution as the guide. The structure and jurisdiction of the courts were defined by the Courts Act of 1971, which established the Supreme Court of Ghana, the Court of Appeal (Appellate Court) with two divisions--ordinary bench and full bench, and the High Court of Justice, a court with both appellate and original jurisdiction. The act also established the so-called inferior and traditional courts, which, along with the above courts, constituted the judiciary of Ghana according to the 1960, 1979, and 1992 constitutions.

The constitution identifies the Chief Justice as the head of the Judiciary, whose mandate is to administer and supervise judicial matters brought to his attention. This again implies that the Judiciary has jurisdiction in all matters civil and criminal, including matters relating to the Constitution, and such other jurisdiction as Parliament may, by law, confer on it. This however does not offer the Executive, the Legislature or any other body/agency the power to stampede the operations of the Judiciary. It has to develop strong immunity to any sort of external interference.

Meanwhile, immunity to external prying is not to say the Judiciary should also operate in secrecy and shun constructive criticisms. Except as otherwise provided in our Constitution or ordered by a court in the interest of public morality, public safety or public order, the proceedings of every court shall be held in public. Members of the general public have the right to enter any court and follow proceedings.

The constitution grants that a justice or any person exercising judicial power in a Superior Court shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power.

Though have no purpose to give the nitty-gritty of who qualifies for appointment as a judge or justice, I can still say much is involved. Article 128, Clause 4 indicates that a person shall qualify for appointment as a Justice (to say, the Supreme Court) unless he is of high moral character and proven integrity. He/she might have served on the bench for not less than fifteen years.

The Supreme Court, the highest point on the judicial ladder in the country, consists of the Chief Justice and not less than nine other senior and competent justices. The understanding is that by the time a matter moves from the lower court to this level, justice should be obvious. Unfortunately, for one reason or the other, people still doubt some verdicts of these superior courts. In his online article headlined, “Confronting Ghana's Main Problems: The Judiciary Part II”, Dr. Michael J.K Bokor has this to say: “The main problems of the Judiciary can be categorized as: the heavy politicization of the Judiciary, the systemic weaknesses of the judiciary itself, and the wider national crisis of endemic bribery and corruption, which is an affront to our democracy”.

It is a fact that Ghana has experienced undue politicization of some criminal and civil matters standing trials before our courts. This is clearly evident in cases involving astute politicians. I again side with Dr. Michael Bokor when he said, “Partisan political considerations have bedeviled the functions of the Judiciary over the years—whether in the era of the military junta or civilian administrations—and derailed the work of the Judiciary”. During the Rawlings regime, for example, the activities of the Ghana Bar Association were seen with some political lenses. Some judges then were branded sympathizers of then opposition NPP. Under the Kufuor-led NPP administration, prosecutions of some past NDC government officials were read as political vendetta. Consider the case of Mr. Tsatsu Tsikata, who was incarcerated for allegedly causing financial loss to the state at the time he was the Ghana National Petroleum Company boss. Some pressure groups led by strong politicians thronged the streets demanding his release from jail.

For me, I do not support the way and manner criminal and civil matters before court are sometimes given political twists. Should this continue unchecked, the mission of the Judiciary would be defeated. Government should not coerce the judiciary to truncate constitutional and legal procedures just to enable it jail political opponents. The Chief Justice with his/her team should do their work in an atmosphere of peace and security. The ongoing Woyome saga and cocaine-turn-soda case need to be tackled in an atmosphere of peace and security. How can the Judiciary be truly independent when the President still has the power to appoint the Chief Justice? Listen to Dr. Bokor again, “It appears that the position of Chief Justice is constructed to be locked under the armpit of the President. The President appoints the Chief Justice and the Executive determines how much funding the Judiciary deserves” and queries “In this sense, which appointee will be unwise to bite the finger that feeds him/her?” If there should be any beef of government at all, it should rather be with how to resource the Judiciary to be more responsive to the people. The judge, who is the hinge around which any justice delivery system revolves, needs to be well equipped, given more refresher education and motivated to be able to give off his/her best.

Another perception that many people hold against our justice delivery system is its susceptibility to bribery and corruption. I have not yet forgotten how NDC National Chairman, Dr Kwabena Adjei once launched a vituperative attack on the integrity of the Judiciary. His infamous “There are many ways to kill a cat" mantra is still fresh in my memory.

Also the late Chairman of the National Commission on Civic Education (NCCE), Mr Laary Farhan Bimi, Dr. Raymond Atuguba, Mr. Abraham Amaliba, Mr. David Annan and Mr. Chris Ackumey are on record to have accused the Judiciary of some gigantic corrupt practices.

The Ghana Bar Association and Chief Justice Theodora Georgina Wood also bemoaned the increasing rate of corruption within the Judiciary. Read the lips of Madam Wood: “Corruption poses a huge threat to our legitimacy and limits rather severely our capacity to effectively fulfill our constitutional mandate. When we remind ourselves of the ills that corruption has wrecked on our continent, we would commend, and not condemn all those who have dedicated themselves to fighting this evil canker.”

As a step to purify the Judiciary and make it more vibrant, Madam Wood with the support of the Judicial Council, recently dismissed some two magistrate court judges for their alleged involvements in one form of corruption or the other-KUDOS!

Having been able to identify this as a canker, there is the need for immediate war against it. Stringent measures must quickly be rolled out to wholly weed out all corrupt elements that are denting the image of the service. For how long should we continue to doubt our justice delivery system?

The media should also be very professional in their reportage and commentaries on cases before the court to avoid prejudgment and contempt.

Evidence to be tended before the court must be substantial so that unnecessary duration will not be spent on cases looking for fair judgments. As the saying goes, “Justice delayed is justice denied”. We are now tired of prolonged prosecution processes that arise out of time buying to enable scout for enough evidence to merit prosecution. E-mail: