Is our Judiciary beyond reproach? AG should learn lessons from former President.

An essential component of the rule of law in any country is an independent judicial system in which the judiciary, as the third arm of the government, adjudicate impartially and without the influence of the executive and legislative branches. Judicial independence is important because it guarantees that judges are free to rule honestly and impartially, in accordance with the law and the evidence, without concern or fear of interference, control, or undue influence from anyone. It is the fundamental guarantee of the supremacy of democracy and the rule of law, and a prerequisite for the enjoyment of civil, political, economic, social and cultural rights.

One school of thought asks how judicial independence can be promoted or guaranteed in a constitutional democracy such as ours? If the appointment of the Chief Justice and other senior judges is a presidential prerogative under Articles 91(1) and 144(1)-(4) of the 1992 Constitution of the Fourth Republic, then the judiciary is not independent. In fact, the way judges are appointed can promote tribalism and political affiliation, which tends to compromise judicial decisions. We have seen so many political and electoral cases, and we have seen it in the recent presidential petition proceedings.

Knowing that our 1992 Constitution does not regulate the number of Supreme Court justices, the current regime took advantage and appointed 11 Supreme Court justices (including the recently deceased Justice Marfu-Sai). He recently appointed 4 more justices who remain to be vetted, bringing the total number of justices he has appointed since taking office to 15 at SC. The President has also appointed numerous appeal and high court judges. However, these numerous appointments do nothing to speed up the judicial process in Ghana. However, the President has forgotten that the cost to the public purse of these numerous judicial appointments is worrisome. Recent ruling at the apex court has shown that the motive behind these appointments is nothing but reciprocity. For the past few cases, these judges have always ruled in favour of the President and his political party. Unfortunately, today, there is a strong view that the justice system does not work too well. The general perception is that even when it works in some cases, it benefits citizens on the basis of their link with incumbent government. And the recent Afrobarometer reports about corruption in state’s institutions has indicated that 46% of our judges and magistrates are corruption.

Our country has been facing corruption and nepotism in all of its institutions, and the judiciary is no exception.Judicial misconduct destroys what is necessary for a functioning justice system and Ghanaians started doubting when the SC ruled that a birth certificate was not an identity card. Most Ghanaians were bitter because this decision discouraged many from registering for voter ID. The second case occurred on January 19, 2021, when the Supreme Court unanimously dismissed an application by His Excellency John Mahama's lawyers seeking permission for the court to seek some answers from the Electoral Commission on issues related to the conduct of elections in the presidential petition process. On January 28, 2021, the court unanimously denied the petitioner's motion for reconsideration of the court's January 19, 2021 decision on his request for answers to questions. On February 3, 2021, the court unanimously denied the petitioner's request to inspect documents of the first respondent (EC) related to the results of the December 7, 2020 presidential election. On February 11, 2021, the court unanimously rejected the arguments of the petitioner's counsel to authorise the court to compel the Chairperson of EC, Ms. Jean Mensah, to testify after the first respondent decided not to produce evidence. On February 16, 2021, the Court unanimously denied a motion by Petitioner to reopen his case and subpoena the Chairperson of EC as a "rebuttal witness." On February 18, 2021, the Court unanimously denied a motion by Petitioner to reconsider the Court's February 11, 2021 decision not to compel the Chair of EC to testify. On February 22, 2021, the court unanimously affirmed its February 16, 2021, decision not to allow petitioner to reopen his case and compel the Chairperson of EC to testify after petitioner filed a motion for reconsideration. On March 4, 2021, the seven justices of the Supreme Court, led by Chief Justice Kwasi Anin Yeboah, in a unanimous decision, dismissed the petition filed by former President John Mahama, the flagbearer of the National Democratic Congress. This is the first time in the history of the judiciary that none of the judges expressed their own opinion on a case brought before them for adjudication. Everything was "unanimous" so Ghanaians nicknamed the Supreme Court the "Unanimous Football Club."

In the case of the parliamentary vote, the SC committed a miscarriage of justice by ruling unanimously that a MP, who is Deputy Speaker and presiding, can count himself as an MP and voting. In the case of Assin North MP, all the evidence pointed to the fact that MP James Gyakye Quayson had renounced his Canadian citizenship before filing his candidature for the parliamentary seat. And while the NPP government blames the economic woes in part on Covid-19, our SC did not take into account that Mr. Quayson's renunciation letter from Canada was delayed because of Covid-19. The court ruling in favour of the government was intended to help it gain a majority over the opposition party. On the other hand, the SC threw out the opposition's injunction over the E-Levy brought to them by some parliamentary members of NDC. And when the Minister of National Security warned the judges about their bias for the government, some people saw it as an attack on the judiciary. Kan Dapaah said, "If the interpretation of the law is constantly in our favour, people will start blaming the judiciary and they will not have the confidence they need.

There is no denying that the image of the Ghanaian judiciary under Chief Justice Anin Yeboah is tarnished. Some typical problems arise when the Chief Justice assigns himself important cases or only entrusts members of certain ideologies with politically salient cases, especially political cases. It is therefore not misplaced demanding a more practically sound and constitutionally excellent method of appointing judges. Therefore, I wonder why Mr. Godfred Yeboah Dame, the Attorney General and Minister of Justice, described His Excellency John Mahama's remarks about the poor image of the judiciary as regrettable. The former President said, "There is therefore an urgent need for the Ghanaian judiciary to work to gain the confidence of citizens and eliminate the widespread impression of hostility and political bias in court proceedings in the highest courts of the land. He further stated that "unfortunately, we have no hope that the current leadership of our judiciary can lead such a process of change. We can only hope that a new chief justice will initiate a process to repair the shattered image of our judiciary in recent years."

We are in Ghana where a lawyer collected unknown names to petition the newly elected President to impeach the Electoral Commissioner, Mrs. Charlotte Osei. Mrs. Charlotte Osei, who is a lawyer by profession, was repeatedly insulted, humiliated and disgraced upon her appointment. The Ghana Bar Association, the Attorney General and the judiciary remained inactive until the woman was removed from office.

We were in Ghana in April 2017 when a vigilante group of the NPP called Delta Force stormed a court in Kumasi to free their 13 colleagues who were imprisoned for unrest in the Ashanti Regional Coordinating Council. Was Godfred Dame not the Deputy AG when Attorney General filed Nolle Prosequi to drop the charges against the eight Delta Force members? Were we not in Ghana when eight people were treacherously murdered by the military that aided and abetted the incumbent President in rigging the 2020 general elections? What did the AG, the Bar Association and the Judiciary do about these innocent sons and daughters of our country? What did the AG, the Police and the Judiciary do about the murder of Kaaka and innocent civilians in Ejura? What did the Judiciary do when a lawyer alleged that the Chief Justice had collected a bribery to the tune of $5 million? In any civilised society, the Chief Justice should have resigned to initiate an investigation. Were we not in Ghana in 2015 when an Investigative Journalist Anas Aremeyaw Anas exposed more than 14 judges and numerous judicial officials of corruption?

Judges are not above criticism or public pressure. Judges should exhibit and promote high standards of judicial conduct to build public confidence, which is the cornerstone of judicial independence. Our courts are the bulwarks of our Constitution and laws, and they depend on the public to respect their rulings. It is the duty of the judiciary to support measures that put them in charge. While the majority of judges perform their duties honourably, ethical lapses should be corrected, and major breaches of trust should be acknowledged. The judiciary should be prepared to participate in the development of ethical standards and be an active part of any enforcement mechanism.

Written by,

Lewis Kwame Addo

Amsterdam