Supreme Court nominee explains why he opposes the idea of separate Bail Act

A nominee to the Supreme Court, Justice Edward Amoako Asante, has rejected calls for the enactment of a separate Bail Act, arguing that Ghana’s existing laws and judicial precedents provide sufficient guidance on the granting of bail.

Justice Asante said the legal framework already clearly sets out the principles governing bail, making additional legislation unnecessary.

Appearing before Parliament’s Appointments Committee for his vetting, following his nomination by President John Dramani Mahama, he cited the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), as well as established court decisions, including the case of Martin Kpebu v Attorney-General.

“I do not think that is necessary in our circumstances.

“Act 30 is a clear Act. It is there. Then, to reinforce, there is Martin Kpebu and Attorney General.

“That said, all the matters are available. Therefore, it is there. It is people who are lawyers who have not sued those who have detained their people beyond their time on behalf of their clients,” he said.

He identified the unlawful detention of suspects beyond the constitutionally prescribed 48-hour period as a more pressing concern, urging lawyers to take legal action whenever the rights of suspects are violated.

According to him, successful lawsuits and the award of compensation against institutions or individuals responsible for unlawful detention could serve as an effective deterrent.

On judicial independence, Justice Asante said judges must demonstrate “independence of mind” and determine cases based solely on the facts and applicable law, irrespective of who appointed them.

He also advised judges to recuse themselves from cases where personal relationships or other circumstances could affect their impartiality or conscience.

Spousal property rights
Addressing spousal property rights, the nominee outlined the evolution of Ghana’s legal position from the earlier requirement for spouses to demonstrate substantial contribution towards property acquisition to the current emphasis on equitable distribution.

He attributed the development of the law in this area largely to judicial activism, saying the courts had stepped in to develop principles in the absence of specific legislation from Parliament.

AI in judiciary
Justice Asante described artificial intelligence (AI) as an important tool for the future of the judiciary, saying its adoption could enhance legal research and speed up the processing of cases.

He, however, stressed that Ghana’s judiciary would require systems specifically designed for its needs and backed by adequate funding.

He dismissed suggestions that AI could eventually replace lawyers and judges, arguing that human reasoning and judgment remain indispensable.

While AI could assist with legal research and other routine tasks, he said legal practitioners and judges would still have to verify information generated by such systems and apply their own professional judgment.

Justice Asante also opposed proposals to separate the judicial and administrative responsibilities of the Chief Justice, arguing that both functions are integral to the office.

He maintained that the Chief Justice should continue to exercise administrative responsibilities, including the empanelling of judges, rather than having such decisions delegated to automated systems.

Fundamental rights
The Supreme Court nominee further distinguished between the fundamental human rights protected under Chapter Five of the 1992 Constitution and the Directive Principles of State Policy contained in Chapter Six.

He explained that Chapter Five primarily protects individual rights and is generally enforceable, while Chapter Six sets out broader social and economic objectives to guide governance.

Justice Asante noted, however, that some principles under Chapter Six could become enforceable where they are incorporated into other constitutional provisions, while maintaining that the two chapters serve distinct purposes within Ghana’s constitutional order.

Minority stages walkout
Before the vetting commenced, the Minority Leader, Alexander Afenyo-Markin, objected to the process involving Justice Asante and the other two Supreme Court nominees.

The Minority argued that the nominations were made when there was no vacancy at the Supreme Court and alleged that certain constitutional procedures had not been followed.

However, the Chairman of the Appointments Committee, Bernard Ahiafor, rejected the objection and ruled that the parliamentary recall covered the nominees and that the committee had the authority to proceed with the vetting.

“I, therefore, consider all grounds of the Minority Leader as flimsy and hollow.

“I consider his objection to be frivolous, vexacious and unmeritorious, baseless on the facts, the rules and the law.

“Therefore, I will accordingly dismiss the objection by the Minority Leader,” the chairman said.

The Minority subsequently staged a walkout and declined to participate in the vetting.