RE: Can Judicial Inefficiency Lead to Mob Justice

Can Judicial Inefficiency Lead to Mob Justice, Vigilantism and Spiritual Justice?-REJOINDER

Professor S. Kwaku Asare’s article in the Friday, July 6, 2007 edition of The Chronicle and also on the Ghanaweb as well as in the Wednesday, July 11,2007 edition of The Statesman entitled “Can the Judicial Inefficiency lead to Mob Justice, Vigilantism and Spiritual Justice” can never pass without a dispassionate comment.

The learned Professor did not only choose a prejudiced topic, but also marred it with biased conclusion. What is worst is that, in his hasty generalization to pass “death sentence” on the judiciary, the learned Professor examined the effects of judicial inefficiency (in terms of unreasonable delay) without fairly commenting on some of the causes of the so-called excessive delays.

For the benefit of the readers who have not yet read the article and to be fair to the Professor, I will quote the relevant portions of the said article as my rejoinder unfolds.

From paragraph 4-9 of his article, Professor Asare commendably did a good penmanship by educating Ghanaians on the unpleasant effects of excessive delays in any judicial system stating that “First, many, if not all, claims have time dependant values. Second, judicial inefficiency emboldens potential law breakers…Thirdly, delay leads to force investment and choices…Fourth, unreasonable and excessive delays reduce the probability that the courts will get to a correct resolution…Fifth...delay undermines article 19(1) of the constitution…and finally, judicial inefficiency leads to a black market for justice..” However, it is unfortunate that the learned Professor failed to tell Ghanaians some of the possible causes of the excessive delays in his unfair piece.

To borrow some words from J.K. Agyemang, past President of Ghana Bar Association, in his article, “Delays in Our Courts” published in Ghana Bar Bulletin vol.1.no.1 1988 from page 20-23, “…within this period, this country has undergone rapid changes whether socially or politically, whether economically or culturally…The population of this country is no longer two or four or six million…Education and political awareness have taken root in our society, people have become increasingly aware of their legal rights and are more ready to assert or protect them by resort to court actions. These developments have also led to increased criminality. In the result, the Courts have become faced with increasing numbers of civil and criminal litigation. One cannot stop a citizen from going to court, even if he is mistaken….”

Mr. J.K. Agyemang also wisely stated that the judicial process implies that we must have individuals sitting as judges who are trained to be impartial and have the ability to sift facts from the gamut of evidence led before them, to give fair hearing to both sides and then to arrive at a conclusion based on the facts ascertained and the law applicable. The system also requires lawyers with a sound knowledge of the law. Parties to a case also have to be given a fair opportunity to prepare for the trial, and at the end of the day, the losing party should not be denied his right to appeal to a higher judicial body until he has exhausted all the opportunities made available to him by law. Thus, the moment one objectively focuses his attention on the above; it becomes obvious that there is bound to be some delays in the disposal of cases before the courts if all parties are to be given a fair and impartial chance to put forward their cases.

Additionally, in the exercise of this important and necessary function of administering justice between individuals and the state, both lawyers and judges have to observe rules of substantive law vis-à-vis the rules of procedure. We therefore have the Criminal Code, the Civil Procedure Code, the Evidence Decree and other similar statutes all of which are meant to ensure that the parties to the litigation can fairly present their case and that no party over-reaches another. It is must be emphasized that the rules of procedure whether civil or criminal are for the benefit of the litigants as well as the Courts, and they are expected to be complied with. We must therefore admit that adherence to these rules, whether civil or criminal can lead in some cases to some delays, which may be inevitable.

The learned Professor in his prejudiced article blindly failed to recognize the fact that sometimes, the Courts run short of books and other basic tools like record books, stationery with which to type out appeal records, writing pens, and even dockets with which to get new cases ready. Typewriters are breaking down continually because they are over twenty years old. The judiciary until recently has not been adequately funded over the years by the various governments. If the Courts are properly equipped, supplied with the necessary inputs and are even able to make use of shorthand recorders trained for that purpose; some of the delays we complain about could be avoided.

Professor Asare instead of humbly commending those judges who have been able to perform their functions in these atmospheres without recourse to extra income through corruption instead criticized some inevitable flaws just to incite unnecessary public acrimony against the judiciary.

“Are the delays by the judiciary excessive and unreasonable or necessary to safeguard the procedural rights of litigants? Four illustrative cases affirm to tell the story …. the appellate case of Abodakpi V Republic, addressing the simple but important question of whether Abodakpi can remain on bail pending the hearing of his substantive appeal, has been caught in the traffic jam on the justice highway……perhaps the most poignant example of judicial inefficiency is the ongoing case of Republic V Tsikata….This very simple case was initiated in 2002 and has been tried….”

Professor Asare posed an intelligent question but he unfortunately approached it using his opinionated prejudgments. For the cases involving Honorable Abodakpi and Tsikata, the least said about them the better, since they are still pending before Courts of competent jurisdiction. If the good Professor is really interested in why Tsikata’s case has travelled this far, he should humbly abreast himself with the relevant law reports about the case if he means “business”. It is rather unfortunate for this same Professor to suggest in paragraph 14 of his article that “judges must take charge of their court rooms and be loathe to granting adjournments, once the trial has commenced…the exception would include question of subject-matter jurisdiction of the trial Court, or constitutional questions of the gravest importance…” Yet he seems to be not fully aware of what has been dragging Tsikata’s case to date. The learned Professor asserted that both the Abodakpi and Tsikata’s cases are very simple cases. With all respect Mr. Professor, they are not straightforward issues, which could be decided in a month as you pointed out. These issues are much complex and novel.

Professor Asare should rather appreciate that the judiciary has been diligently trying those cases. Even the fact that the Addotey and the Wulensi cases were decided should be worth his modest commendation to the judiciary. It must be clearly pointed out that there are thousands of cases pending before our law Courts to be decided in each day and that each case is as equally important as the other. Tsikata’s case is as important as Kwaku Manu’s case; hence the Courts cannot divert all efforts to a single case at the expense of others. The importance of a citizen’s legal right does not depend on the opinion of the Professor or even the Chief Justice. Under our Constitution, every citizen must have his day in the Court, whether the Professor deems the case a waste of time or not.

The learned Professor further stated “….the Court should abandon the practice of going on summer vacations. The justification for going on a vacation when there is a huge backlog of cases is not readily apparent…” Mr. Asare unfortunately failed to suggest any alternative means as to how our hardworking judges should have some reasonable (brief) rest after tediously deciding numerous cases within a particular legal year. Is the learned Professor asserting that because there are backlog of cases, our judges and magistrates should never have a rest? Professor Asare, what is the justification for having numerous public holidays while Ghana is still facing numerous challenges, which are to be addressed without delay? Even our president went on a leave sometime ago. Dear readers, we should note that our learned judges also use these periods of vacation not only to rest but to write their judgments as well.

We will finally examine the most untoward allegations made by Professor Asare.

“.. There is an immediate need for the judiciary to emplace an intelligent case management system that is sensitive to the life-expectancy of a disputed claim… The illustrative cases used here show that the judicial system is so completely, totally, and profoundly broken down that it is doubtful if it can fulfill the role and responsibilities assigned to it by constitution. Further, unless dramatic reforms are initiated as soon as possible, the nation should brace itself for the growing mob justice and vigilantism both which will retard growth and development…..The water level in the judicial dam is dropping precipitously. We can take steps and to address the problem or wait to be plunged into judicial darkness and a new form of ‘justice load shedding!’”.

Regrettably, Professor Kwaku Asare in making the above unfounded declarations may be so completely, totally and profoundly unaware of the various innovations and cogent developments taking place in the Ghanaian Justice System. I refer the learned Professor to the independent and credible report on the “Ghana: Justice Sector and the Rule of Law”, a discussion paper and a review by AfriMAP, The Open Society Initiative for West Africa and The Institute for Democratic Government published by The Open Society Initiative for West Africa in 2007.

For the benefit of Professor Asare and my dear readers, I move on to quote some relevant paragraphs of this believable report.

Introduction of the said report reads “ Ghana’s justice system has seen many encouraging developments since the restoration of Civilian rule 15 years ago, especially since the installation of the current administration in 2001…there have been many interesting and useful initiative to improve justice system performance, ranging from an increasing merit-based system for appointment of judges, to a rapid expansion of legal aid, and to procedures to reduce delays and promote out-of- court settlements in the higher courts…”.

Discussion Paper 9 (III: Management and reform of justice sector) per paragraph 3 also states that “Amongst the highest profile innovations have been the introduction of ‘fast-track’ automated courts and the creation of a new Commercial Division of the High Court, with redesigned procedures aimed at reducing delays in the administration of justice. These innovations have helped to expedite cases for litigants with the resources to use them. Particularly interesting is the introduction of pre-trial settlement conferencing in the Commercial courts……”

Discussion paper 17 (VII: Access to justice) per paragraph 4 crowns it all by stating that “A more recent initiative to increase access to justice has been the promotion of alternative dispute resolution (ADR) to divert cases from the courts. An Alternative Dispute Resolution Bill was published in 1998, new High Court Civil Procedure Rules were adopted in 2004, and in 2005 a new Commercial Division of the High Court was established, with Mandatory Mediation during the pre-trial phase of a case. The judiciary has also promoted ADR on their own account, attempting to resolves cases in out-of-court settlements at the beginning of each legal term. A legal framework to provide certainty and allow the expansion of the ADR to all Courts in Ghana”. In addition to the above, there has now been the establishment of the new Motor-Traffic Court which is fully operational in Accra. Plans are also far advanced to replicate this throughout the country. The Criminal Procedure Code, 1960 (Act 30) was recently revised as The Criminal and other Offences (Procedure) Act, 1960. I believe that by this simple lecture, the learned Professor ought now to accepted wholeheartedly that the Ghanaian judiciary has indeed being fulfilling the role and responsibilities assigned to it by the 1992 Constitution. The learned Professor has further been made aware that intelligent, dramatic and sensible reforms, as usual, are being initiated in the Ghanaian judiciary. Fellow Ghanaians, let us understand that the needed change and development that is being effected in the judiciary is a process not an event. The judiciary like any other human institution is not above criticism nor infallibleness but the above romantic criticisms by Professor Asare should be given the highest damnation that they deserve. Let us give the needed support to our new Chief Justice, Justice Georgina Wood to ensure and promote more institutional reforms in the judiciary as were initiated by her predecessor, the late Chief Justice George Kingsley Acquah. It must be strongly indicated that mob action, vigilantism and the so-called spiritual justice (by Professor Asare) can never be justified.