A Sick Judiciary In A Dying Democracy

Referencing to my previous article on “Separation of Powers”, Baron de Montesquieu, Charles-Louis de Secondat was emphatic in his literal work—SL “Le Siec du Humaire, 1748”“The Spirit of the Laws” [S.L. 4.5 and 8.2] about how various Arms of Government should exercise its Constitutional mandate in the “Spirit of the Laws” cogent to natural justice and Rule of Law. So, Baron propounded the three [3] Arms of Government; The Executive, The Legislature and The Judiciary to administer governance on the rocks of Rule of Law and respect to and civil rights and liberties that defines Democracy as government of the People, by the People and with the People. The various Arms of Government ought to exercise its autonomous powers rooted and grounded on the Doctrine of Separation of Powers subservient to the Constitution. Therefore, Baron’s expositions in the “Spirit of the Laws” connote that Democracy stands with the People and not the Sovereign Power for which reason the 1992 Constitution asserts with absolute authority and without any ambiguity that, Sovereignty emanates and resides in the will of the people for which reason again it is exercised in trust of the people.

That is why the Legislature [Parliament] in the exercise of its constitutional mandate, encompasses a representation of people’s power to make Laws on the tangent of the Spirit of the laws Doctrine. It therefore means that, all Constitutions that uphold the practice of the 3 Arms of Government must do so in the Spirit of the laws doctrine. Anything else means an abuse of Constitutional powers by a Sovereign State with the Executive as Head to suppress and undermine the powers of other Arm of Government. To this chief end, and to avert any act of abuse of Constitutional powers by any Sovereign State, Montesquieu constructed a naturalistic account of the various forms of government, and of the causes that made them what they were and that advanced or constrained their development. He used this account to explain how governments might be preserved from corruption. He saw despotism, in particular, as a standing danger for any government not already despotic, and argued that it could best be prevented by a system in which different bodies exercised legislative, executive, and judicial power, and in which all those bodies were bound by the rule of law and natural.

Montesquieu argued that each power should only exercise its own functions that; when Legislative and Executive powers are united in same person or in the same body of Magistrate [as in the case of Parliament of Ghana vrs. The Judiciary], there can be no liberty because apprehension may arise, lest the same monarch or senate should enact tyranny laws to execute them tyrannically. So, in the exercise of Judiciary powers by the Supreme Court of Ghana, it is clear in juxtapose to Baron’s argument that the ruling of the Apex Court against Parliament decision to declare 4 seats vacant is inconsistent with the Spirit of the Law Doctrine. It depicts an enactment of tyrannical laws by the Judiciary and exercising it as such against the Spirit of the Laws. Again, Montesquieu argues that there is no liberty if the Judiciary is not separated from the Legislature and the Executive. So, he placed emphasis on the Independence of the Judiciary neither to be influenced by the Executive or the Legislature. Because the judiciary ought to be independent and unchecked, Montesquieu then resolved that the independence of the judiciary ought to be real and not apparent.

So, in this scenario, the ruling of the Apex Court has usurped the Constitutional mandate of Parliament and amounts to oppressive and violence conduct of the Judiciary as described by Montesquieu in the Spirit of the Laws. This is because the Supreme Court interpretation of Article 97 clause 1 g and h upon which the Speaker of Parliament declared the 4 seats vacant is inconsistent with the Standing Orders of Parliament and the Constitution that is explicit on the interpretation of Article 97 clause g and h to mean once a Member of Parliament declares his intention to run as independent candidate whiles he is a member of a political party, he ceases immediately to be Member of Parliament not in the future Parliament which is yet to be constituted as ruled by the Apex Court. So, as the Judiciary ought to be real and not apparent in its rulings, it has chosen the path of oppressive ruling which is apparent to mean that, the Judiciary with the support of the Executive has overthrown the 1992 Constitution which it sort to protect and exercise in the will of the people and in the Spirit of the Laws of the 1992 Constitution. Thus, when such circumstance of usurping the constitutional mandate of the Legislature [Parliament] by the Executive [government] and the Judiciary [Supreme Court] then there is a collusion to give arbitrary powers to the Executive to control Parliament which contravenes the S.L. 8.2 which then says “Eventually the government will cease to function, the last remnants of virtue will disappear, and democracy will be replaced by despotism”. So, it is a clear collusion by the Executive and the Judiciary to suppress the will of the people for which reason, they have overthrown the Constitution. Despotism has replaced democracy and the last remnant of virtue entrusted in the Judiciary has disappeared for which reason again, government will cease to function because Parliament may not be able to form a quorum to take decisions on government business brought before it in defiance to the ruling of the Supreme Court and more so, their busy schedules as the MPs are campaigning in their various constituencies for the December 7 general elections.

Baron argues that Democracies can be corrupted in two ways: by what Montesquieu calls "the spirit of inequality" and "the spirit of extreme equality" (SL 8.2). The spirit of inequality arises when citizens no longer identify their interests with the interests of their country [When few citizens takes decision for the Country against the Larger interest of the Country] and therefore seek both to advance their own private interests at the expense of their fellow citizens, and to acquire political power over them [Oppression]. The spirit of extreme equality arises when the people are no longer content to be equal as citizens, but want to be equal in every respect [When the Executive denies the people Social Contract]. So, Baron reiterates that in a functioning democracy, the people choose magistrates to exercise executive power, and they respect and obey the magistrates they have chosen. So, in the Spirit of the Laws Doctrine, Montesquieu proposes that it is ideal that, the appointments of Magistrates [Judges] should not be vested in the Executive power but in the people’s power. This means that the appointment of Justices to the Bench by the President corrupts the Judiciary since their judgments could not reflect the dictates of the S.L Doctrine in order to appease the Executive Power that appoints Magistrates to the bench especially the Supreme Court. He also argues that if the appointment of Judges is vested in the people’s power, those magistrates forfeit their respect.

Example is a bias and scandalous judgements of public interest by the Supreme Court such as the case of Dual Citizenship case against Gyakye Quaison, NDC MP for Assin North, the LGBTQIA+++, the Ambulance case against NDC Leader of Parliament, Ato Forson, the 2020 Election Petition Case etc, the people have the right to replace the Judges in a functioning democracy. When the spirit of extreme equality takes root, however, the citizens neither respect nor obey any magistrate. They "want to manage everything themselves, to debate for the senate, to execute for the magistrate, and to decide for the judges" (Spirit of the Laws, SL 8.2). Eventually the government will cease to function, the last remnants of virtue will disappear, and democracy will be replaced by despotism. This predicament that the SOP ceased to occur is what has arisen in the dispute between Parliament of Ghana and the Supreme Court which in the Spirit of the Laws have misapplied and overthrown the Constitution of Ghana with the intent of granting arbitrary control of Parliament by the Executive. The Executive in collusion with the Judiciary have suppressed and usurped the Constitutional mandate of the Legislature which contravenes the dictates of the “Spirit of the Laws” Doctrine routed in the SOP Theory. The independence of the Legislature [Parliament] has been abused which the SL theory describes as violence and oppressive which will breed conflict within the SOP as in the 3 Arms of government which have co-equal powers in the exercise of their mandates and this is why government business will cease to function until the next Parliament is constituted. The Apex Court has exercised arbitrary powers over the Legislature stampeding on civil rights and liberties of Parliament of Ghana which amounts oppression and violence to the conscience of natural justice and rule of Law and to the detriment of the soul and fabric Ghana’s democracy.

In the light of the above narrative, Montesquieu argues that in a democracy, the people are sovereign. The principle of democracy is political virtue, by which Montesquieu means "the love of the laws and of our country" (SL 4.5), including its democratic constitution which the Supreme Court has overthrown. The form of a democratic government makes the laws governing suffrage and voting fundamental that enables the people to choose their own leaders and make laws for the good of society so the need to protect the principles and the sanctity of democratic institutions. On Montesquieu view, the virtue required by a functioning democracy is not natural. It requires "a constant preference of public to private interest" (SL 4.5); it "limits ambition to the sole desire, to the sole happiness, of doing greater services to our country than the rest of our fellow citizens" (SL 5.3); and it "is a self-renunciation, so “the whole power of education is required" (SL 4.5). A democracy must educate its citizens to identify their interests with the interests of their country, and should have censors to preserve its morals and principles. It should seek to establish frugality by law, so as to prevent its citizens from being tempted to advance their own private interests at the expense of the public good.

To conclude, I reiterate that Ghana’s democracy is at a cross road. The Judiciary under the watch of a Human Right Lawyer President Nana Akuffo Addo and Dr. Bawumia has failed to live its purpose of dispensing judgments cogent with the principles of natural justice and rule of law. The Judiciary has demonstrated within these periods that, it is not ready to uphold the tenets of natural justice and rule of law and that, they have been packed at the Magistrates by the President to do the bidding of the NPP government under Nana A. Addo and Dr. Bawumia as perceived as results of some scandalous rulings by the Apex Court in recent past. The dissenting views of the 2 Supreme Court Justices on the matter of constitutionality of the Supreme Court to hear the case of the 4 vacant seats declared by Parliament is a victory for proponents of rule of law and natural justice safeguarding the sanctity and integrity of the 1992 Constitution. It tells that under the watch of Nana Akuffo Addo and Dr. Bawumia the Judiciary is sick and needs attention to be purged to regain its former glory through constitutional review and reforms. It also tells that Ghana’s democracy which has been the epitome of democratic development in the sub-Saharan Africa is dying gradually. Despotism has replaced democracy. Tyranny has replaced rule of law, whiles impunity has replaced virtue which is the last remnant of our democracy has disappeared in the body politic Ghana’s democratic development and justice delivery regime. It is in the light of this abuse of Executive Powers by the NPP government that, the 1992 Constitution of Ghana needs a review to address the constitutional crisis authored by the Executive and the Judiciary to suppress the authority of Parliament. A more reviewed and refined Constitution that will explicitly and constructively define the powers of the Arms of Government to avert the abuse of powers by each Arm of Government against the other to safeguard the sanctity of our democratic institutions.

To this end, the need for a change in the direction Ghana is going is non negotiable and inevitable. Several reports and surveys conducted by reputable organizations locally and internationally exposes that millions of Ghanaians do not like the direction the country is going and the only means to change this narrative is through the ballot on the December 7. Ghanaians must vote for change to protect our democracy and the sanctity of state institutions to deliver their mandates in the Spirit of the Laws. Without this, Ghana’s Democracy will continue to be in a wheelchair. It is a passing torch and Ghanaians have to fix this mess to save our dying democracy. To Him that overcomes have the right to eat the fruits from the tree of life—REV. 2:7. Our democracy needs a RESET.

Email: smartabbeymichael2404@gmail.com

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