by Samuel Sarpong, Ghana, 15 September 1997
THEME = JUSTICE
When a "political case" comes before the Supreme Court involving the State, then the outcome is frequently easy to determine in advance - more often than not, the government wins. "Even if the case is going badly for the government, you can be sure it will come out unscathed", says John Quartey, a political activist. He continues: "There's no way the State is going to lose a crucial case, because most of the judges in Ghana are sympathetic towards the government". Though it is very difficult to be absolutely certain, it cannot be denied that some decisions by the judiciary have born out this popular belief, especially as regards recently appointed judges.
And what happens to judges who are not prepared to toe the government line? An example will serve to illustrate the point - In 1995, a Supreme Court judge seen to be "hostile", was removed in an unconventional way, on the grounds that he was "over-age" for the job. At the same time, other judges way past that age, were kept in office!
A number of Ghanaians are also of the view that the Chief Justice, who is appointed by the government and assigns specific cases to the judges, selects judges sympathetic to the government to handle cases in which the government has an interest. Mr Quartey stresses: "All this is carried out in a subtle manner but we all know what's going on".
Mr.K.B.Asante is a career diplomat and former Ghana High Commissioner to the UK. He recently underscored the importance of public confidence in the country's judiciary. Asante, who is known for his objective approach to issues, says foreigners and investors will not want to invest in a country having courts of law which hand down, what can only be described as "bizarre judgements". He says: "It is not right for people to see the hand of authority in every legal pronouncement. When you can clearly predict the outcome of a case, then confidence in the judiciary is undermined".
According to Asante, an independent judiciary must be free from timidity and pressure from any quarter whatsoever. What does this mean?
Lately, there have been vitriolic attacks in the Media and murmurings from the public, over the performance of the judiciary. Also, there have been frequent bickering and mutual suspicion between the Bar and the Bench over some decisions handed down by the Bench.
Referring to relations between the judiciary and the executive, the present Chief Justice, Issac Kobina Abban, is of the opinion, that judicial independence should not imply constant confrontation between the judiciary and the executive. He maintains: "It is wrong for anybody to think that the Bench must flex its muscles whenever a case involving the executive is brought to court. On the other hand, the judiciary must stick to its role in spite of uncalled for threats, vicious attacks and a well-calculated on-going campaign of malicious and deliberate vilification of judges, by a few disgruntled and irresponsible members of society".
In 1994, the then Chief Justice, Philip Archer, was of the view that the constitutional guarantee of judicial independence would remain a mirage, if members of the judiciary fail to show regard and respect for it. "If we ourselves, through our actions and conduct, both inside and outside the courtroom, show no regard and respect for that independence, we cannot blame the general public or other organs of state if they attack us".
Indeed, Ghanaian judges to a very large extent, have not exhibited a great sense of independence and fairness, and have to a large measure, not helped to sustain democracy and the supremacy of the Constitution in the country. Indeed, since independence from Britain, the courts have sometimes been the appendages of the administration, to be used for suppressing the people instead of protecting them against abuse.
Why is this going on? A former Supreme Court Judge, Justice Etrew Amua-Sekyi explains that "some judges tend to lose their independence out of tribal and political solidarity". Competence in knowledge of the law, seems to take second place for them. He says that they are appointed to serve on the Bench in order to pursue the interest of the government of the day, and also to advance their careers. Thus, completely ignoring the fact that no matter one's political leanings, judges must learn to consider issues dispassionately, and apply the law regardless of the consequences.
Ghana is currently operating a two-tier legal system - Courts based on western legal procedure, and the Tribunal System.
The Tribunal System was ushered in during the heady days of the 1980s, when the current President, Jerry Rawlings, imbued with a revolutionary zeal, created the system to help expedite trials of alleged coup plotters and economic saboteurs. Those were the days when various attempts were made to wrestle power away from Rawlings, who felt the tribunal system was the surest and quickest way of ensuring justice.
The Tribunal System involves the use of ordinary citizens as panel members for dispensing justice. Panel members are deemed to be people of high moral character. Most of them are retired teachers or leaders in society, respected by the community in which they live. These assist the Chairmen of the Tribunals, (lawyers who have become judges) to arrive at a collective decision.
Before Ghana's present Constitution came into existence, the Tribunals were either "Regional" or "National" (with jurisdiction over subversion and serious economic crimes). When the 1992 Constitution was being drawn up, it was felt that the Tribunals in their present form, had achieved their aim, and should, therefore, be incorporated into Ghana's legal system.
Today, there are three levels of justice within the Tribunal System. 1) Community Tribunals which deal with minor local misdemeanours. 2) Circuit Tribunals which deal with more serious community issues. 3) Regional Tribunals which have jurisdiction over economic offenses, drugs-related cases and other serious crimes. Regional Tribunals are equivalent to a High Court and they have appellate jurisdiction over the other Tribunals.
Appeals can be made from the Tribunal System to the Court of Appeals and the Supreme Court.
The tenure of office for judges, has been clearly defined in the present Constitution, and they cannot be removed easily, unless they commit very grievous acts. This has been done to ensure their independence. Justice Amua-Sekyi opines that "judges have no reasons to look over their shoulders when dealing with cases in which the government is supposed to have an interest".
Why should judges be afraid? The question is important because of what has happened previously. On 30 June 1982, three High Court judges were abducted by an unidentified armed group and murdered. Rawlings condemned the killings, and said that such terrorism cannot be allowed to go unpunished. It was generally thought that the judges had been murdered for being critical of the regime and for acquitting a number of cases brought before the court by the authorities.
This of course took place in the heady days, when Jerry Rawlings had launched his come-back to the political scene under a revolutionary theme.
Now Ghana is under Constitutional rule, and therefore it is a bit absurd to realise that in spite of the security provided for them, there seem to be an inherent fear among judges, when handling cases in which the government has a vested interest.
Some judges believe that a pro-government posture, accelerates one's promotion and avoids any unnecessary confrontation with government. Almost invariably, one has to be in the "good books" of government before such senior appointments in the judiciary are made.
Working conditions are not much to write home about. Remuneration is poor thus preventing a number of very competent young lawyers from applying to join the Bench. The few who are sitting there, suffer from low morale.
Judges still take their notes by writing everything verbatim. They have no access to recording machines, and deliberations take a long time in the courts. This has brought in its wake, a lot of adjournments in a number of cases. Prisoners on remand, spend very long periods in prison before their cases are heard. The case of a suspect who spent six years on remand, attracted media attention lately.
In some instances, some of the sentences handed down to offenders by trial judges, do not commensurate with the offenses. "Suspended sentences" and "community service" in lieu of a prison sentence, are completely unknown in Ghana. Also, the probation system is not adequately and effectively used.
The Ghana Bar Association, which serves as the lawyers' mouthpiece, says it is doing its utmost to ensure that justice is dispensed in the country. Its president, Mr Sam Okudzeto, says: "We have a responsibility to defend and protect the Constitution and the rights and obligations enshrined in it".
In spite of this, more needs to be done to ensure a better image for Ghana's judiciary, which to all intents and purposes, lacks the needed bite.
END