THE CONCEPT OF JUDICIAL INDEPENDENCE IN GHANA : A THEORETICAL CONJECTURE OR A PRACTICAL REALITY? By Frederick Agaaya Adongo and Patience Asabagna

 

One of the structural pillars of a truly democratic dispensation is the concept of judicial independence. Without it, we would be establishing the rule of flagrant abuse of human rights and the reign of wanton disregard for the rule of law under the guise of the administration of justice. If there is no proper guarantee of judicial independence, judges may resort to the dispensation of mischief with reckless abandon. They may resort to doing the bidding of politicians and their close associates, families and friends, in the judicial process. With an independent judiciary which necessarily includes the independence of individual judges, that which will be necessary for safeguarding human rights and the rule of law will be the order of the day.

A wide section of the general public, rather than a petulant few, who have no knowledge of the nature of the judicial process may very readily perceive that the decisions of courts are tainted with partisan motives, political or otherwise.[1] Owing to this, it is as necessary as it is relevant to put in place certain structural and institutional arrangements that will ensure that the judiciary is independent and actually be seen by the ordinary citizen to be so. As Hewart CJ popularly remarked in R v Sussex Justices, Ex Parte McCarthy [1924] 1 KB 256, “not only must justice be done; but it must also be seen to be done.” Although that remark was made in respect of the concept of natural justice and the need for judges to recuse themselves from matters in which they have personal interests, it can be adopted mutatis mutandis for our present purposes.

Moving on, the concept of judicial independence simply connotes freedom of the judiciary from control by the executive or legislative branches in the exercise of its decision making duties.[2] Thus, Judge William Cranch wrote that it is “the duty of the Judiciary calmly to poise the scales of justice, unmoved by the armed power, undisturbed by the clamor of the multitude.”[3] Without this, real justice may probably not be done. The ideals of judicial independence require of judges to be independent of the agencies of government even as they are of the parties appearing before them.[4] Inherent in this is a duty on the part of the judiciary to be partial to the law and impartial to the parties. By partiality to the law is meant that judges must be consistent in their application of the law. But impartiality to the parties can never truly be achieved if there is not guaranteed, constitutionally and otherwise, freedom from political pressure.[5]

Dr. Atudiwe Atupare proffers a very striking argument explaining the need for judicial independence. In the opinion of the erudite legal scholar, to which the present authors unhesitatingly subscribe, “strong and independent courts are protectors of constitutional entitlements, and true institutional bulwarks for the citizenry against serious invasions of fundamental rights and freedoms. Independence offers the courts the capacity to insert themselves in a meaningful but legally appropriate way between citizens and the government and to stand up against intimidations of all “outsiders”. In fact, independence is fundamental not only to do justice in a particular case, but also to individual and public confidence in the administration of justice. Without such confidence the system cannot command the public respect and acceptance that are essential to its effective operation. Judicial independence allows the courts to avoid the harmful prejudice and shortsightedness to which elected officials sometimes succumb. It emboldens judges to uphold rights where democratic majorities are paralysed by prejudice or other more compelling political considerations.[6] This profound recognition by the fine legal scholar compellingly leads one to agree entirely with him.

Again, in the Canadian case of R v. Lippe [1991] 2 S.C.R. 114, the court noted the essence of judicial independence in the following simple terms: “The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”.  If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary.  However, judicial independence is critical to the public’s perception of impartiality.  Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.

 

Having considered the rationale for judicial independence, the question then can be asked; how can judicial independence be promoted or ensured in a constitutional democracy such as ours?

Whereas several bulwarks account for a truly independent judiciary, prominent among them is the concept of separation of powers, by means of which each of the three main organs of government is independent of the other in the performance of its duties. We mean a system where judicial power is exercised by the judiciary, legislative power by the legislature, whatever its designation, and executive power by the executive organ of government. An independent judiciary cannot exist in an atmosphere where judicial functions are not separated from executive and/or legislative functions.[7] This was profoundly recognized by Lord Scarman in the popular case of Duport Steel Ltd. v. Sirs [1980] 1 All ER 529 at 551 where he remarked: “Great judges are in their different ways judicial activists. But the Constitution’s separation of powers, or more accurately, functions must be observed if judicial independence is not to be put at risk.” Accordingly, once the judiciary is a distinct organ from other organs of government, judicial independence can thrive. It is therefore a step in the right direction that the concept of separation of powers constitutes one of the structural pillars of our democratic dispensation, underscored by several different provisions of the Constitution, 1992. Notable among these are chapters eight, ten and eleven of the Constitution which confer executive, legislative and judicial functions on the executive, legislature and the judiciary respectively.

Furthermore, security of tenure, financial security and institutional independence of judges are necessary prerequisites to the operationalization of judicial independence. This was clearly identified by the Canadian Supreme Court in the cases of R v. Lippe (supra) and Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 SCR 673. In the latter case, the court recognized further that “judicial independence involves both individual and institutional relationships: the individual independence of a judge, as reflected in such matters as security of tenure, and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government.”

Proceeding with this setting, credit ought to be given to the framers of the 1992 Constitution for their inclusion therein of very elaborate provisions that seek to promote the independence of judiciary. Article 125(1) sets the tone by providing that “justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” This provision, nevertheless, does not suggest by any stretch of the imagination that only the judiciary can exercise judicial power. Article 125(3) makes it clear that other agencies can exercise judicial power but final judicial power shall vest only in the judiciary. Thus, in cases where other agencies exercise judicial power, their decisions shall be subject to the judicial review powers of the courts, which alone have final judicial power.

More elaborate and specific provisions on judicial independence can be found in article 127 of the Constitution, 1992. Article 127(1) & (2) subject the performance of all the functions of the judiciary, be they judicial, financial or administrative in nature, only to the Constitution, and no person shall have control or influence over those processes. Also, Article 127(3) exempts judges from criminal and civil liabilities in respect of what they do and say in the course of the exercise of their judicial functions. Lastly, Article 127(5) ensures that the terms of service of judges in respect of salaries, allowances and otherwise shall not be varied to their disadvantage. All these constitutional provisions are intended to ensure that the judiciary is truly independent in the exercise of its duties.

The concept of judicial independence is not only constitutionally guaranteed. The courts have gone miles ahead to make very elaborate pronouncements which have as their effect the promotion of the independence of the judiciary. The fact that the courts hold in high esteem the concept of judicial independence can be gleaned from the dissenting opinion of Atuguba JSC in the case of Tsatsu Tsikata (No 1) v Attorney-General (No 1) [2001-2002] SCGLR 189 where he remarked that: “[t]he judiciary itself cannot waive its independence under articles 125 (1) and 127 (1) of the Constitution, 1992 by acquiescing in the administration of justice in the name of the  President or other authority or person, rather than the Republic.”

In the case of Agbevor v Attorney-General [2000] SCGLR 403, one of the landmark Ghanaian decisions on judicial independence, the Supreme Court of Ghana had a golden opportunity to make very profound pronouncements on the independence of the judiciary. In that case, the plaintiff, while in the employment of the Judicial Service as a deputy judicial secretary, received a letter from the office of the President, dated 20 March 2000, which informed him that the President had accepted the recommendation of the Judicial Council given in accordance with section 28 (2) of the Judicial Service Regulation, 1963(LI 319) and had therefore directed his immediate redeployment outside the Judicial Service for displaying a high degree of incompetence in the discharge of his duties.  Consequently the plaintiff filed a suit in the Supreme Court for, inter alia, a declaration that his removal from the Judicial Service as a judicial officer for the reasons stated in the letter dated 20 March 2000 was contrary to article 151(1) of the Constitution, 1992.

In delivering the unanimous decision of the Supreme Court, Kpegah JSC noted, inter alia, that “… the [Judicial] Council, in effect, recommended to the President to do an act which is in clear violation of article 127(1) of the 1992 Constitution, which guarantees, in very robust language, the independence of the Judiciary in its administrative matters…  The second point I find disturbing about the recommendation by the Judicial Council is that it has not only undermined its own authority under article 151(1) of the Constitution, but also that of the Chief Justice, the disciplinary authority for judicial officers.” This fearless remark by the fine legal brain is indicative of the high threshold of importance that the courts accord to the concept of judicial independence.

Without doubt, wisdom borne of experience should teach us that it is not enough to have constitutional guarantees of the independence of the judiciary or to see judges make very profound and groundbreaking pronouncements on the concept. As a matter of fact, Mark Ramseyer noted that “judicial independence is not primarily a matter of constitutional text.”[8] Boldness and fearlessness on the part of judges are essential cogs in promoting judicial independence. Kpegah JSC emphasized this reality in his opinion in the case of Tsatsu Tsikata (No 1) v Attorney-General (No 1) [2001-2002] SCGLR 189 where he poignantly heralded: “The saying that justice must be done even if the Heavens fall will be meaningless unless it is linked up with an equally important saying that the Bench is not for timorous souls.

The circumstances surrounding the decision of the Supreme Court in the infamous case of In Re Akoto and 7 Others is perhaps expressive of the timorousness of the judges at the time. The court succeeded in sacrificing the ideals of judicial independence and the rule of law on the altar of political idiosyncrasies, perhaps out of fear of the executive of the day. This case is not the only instance of the occurrence of this constitutional sin. Our country’s jurisprudence is replete with several of such cases, but it is not intended here to rehash those events.

Once more, equally relevant in the practicalization of the concept of judicial independence is the requirement that judges must, in the performance of their judicial duties, demonstrate a sound knowledge of the law and put aside their personal idiosyncrasies in determining matters before them. It is when judges are inclined to do this that we can say they are independent indeed. They should not only be independent of the legislature, executive and other agencies, including the judiciary itself, but must also be independent of their personal idiosyncrasies and fear. As Justice Frankfurter trenchantly indicated in the United States Supreme Court case of Terminiello v. Chicago, 337 U.S. 1, 11 (1949), judges “do not sit like a kadi under a tree, dispensing justice according to considerations of individual expediency.” Benjamin Cardozo emphasized this reality in more elaborate terms when he affirmed in his article The Nature of the Judicial Process that “[t]he judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.”[9] In effect, judges must be guided by the law, and nothing else, in their dispensation of justice. But quite obviously, this cannot be done unless judges themselves are well versed in the law and the dynamics of justice delivery in our legal system.

Despite the overriding significance of the concept of judicial independence, there are several factors in the Ghanaian legal system which constantly pose significant threats to its survival. The major factors that undermine judicial independence revolve around one: the process of appointment of judges.

It is trite knowledge that the appointment of judges in Ghana is left to the discretion of politicians. The courts have divested themselves of the power to even question the appointment of judges, regarding it strictly as a political question. This was categorically stated by the Supreme Court of Ghana in the case of Ghana Bar Association v. Attorney General (Abban Case) [1995-6] GLR 598. In that case, the President had appointed one Justice Abban as Chief Justice, following articles 91(1) and 144(1) of the 1992 Constitution, whose appointment was approved by Parliament. The plaintiff invoked the original jurisdiction of the Supreme Court to challenge Abban’s appointment on the ground that Abban was not of “high moral character and proven integrity” to be a judge, as required by the Constitution. The Supreme Court of Ghana ruled that questions relating to the appointment of judges and whether such judges are of high moral character and proven integrity are purely political questions that are reserved for the executive and parliament, and the judiciary cannot call to question what those organs have done in respect of the appointment of judges.

This decision simply means that issues relating to the appointment of Justices, particularly of the Superior Courts of Judicature, are reserved for the President acting on the advice of or in consultation with the Council of State or the Judicial Council, with the approval of Parliament, as the case may be. The problem with this arrangement is largely in the fact that the advice given by the Council of State or the Judicial Council is by no means binding on the President. This was the position taken by the Supreme Court when it was called upon to interpret the phrase “acting on the advice of” or “in consultation with” either the Council of State or the Judicial Council which appear under articles 144(1), (2) and (3) of the 1992 Constitution in the cases of Emmanuel Noble Kor v. Attorney General Suit No. JI/16/2015 dated 10th March 2016 and Ghana Bar Association v. Attorney General and Judicial Council.

This means that indirectly politicians, precisely the President and a weak Parliament, have the final say in the appointment of judges. To this extent, the President can even appoint judges contrary to the advice of the Council of State or the Judicial Council and the same will be legal. This is subject to abuse and can be used by a mischievous president to achieve a particular judicial result, since for instance there is no maximum number of judges that can be at the Supreme Court at every material time. The President’s power to appoint may lead to what Atupare describes as “court packing” because of the perennial problems of “tribalism, ethnicity, and political allegiance” in our part of the world, which have the tendency of compromising “ideals of legality and legitimacy.”[10] And as Atupare further observed, “less scrutinised appointments on account of these factors may affect an objective consideration of cases that that involve sensitive political questions.”[11]

This technique of “court packing” is not at all without successful precedent in Ghana. This may have been the situation as evidenced in the Tsatsu Tsiaka cases. In February 2002, Mr. Tsatsu Tsikata was charged with the offence of causing financial loss to the state, contrary to section 179A of  the Criminal and Other Offences Act, 1960 (Act 29)  in the Fast Track High Court. He made an application to the Supreme Court challenging the constitutionality of the Fast Track High Court, which was established by the Chief Justice.  This application resulted in Tsatsu Tsikata (No. 1) v. Attorney General (No. 1) [2001-2002] SCGLR 189. In this case, the panel of 9 judges ruled by a 5-4 majority in favour of the applicant, Mr. Tsikata, that the constitution does not recognize such a court with jurisdiction to try criminal cases.

The Attorney General, dissatisfied with this decision, made an application for a review of the decision. This review application resulted in Tsatsu Tsikata (No. 2) v. Attorney General (No. 2) [2001-2002] SCGLR 620. During the pendency of this review application, the President appointed a new Justice to the Supreme Court, whose appointment was approved by Parliament, which was constituted largely by members of the President’s party. More intriguing is the fact that Afreh JSC, the newly appointed judge was, just before his appointment, presiding over another Fast Track High Court trying some appointees of the previous government who were charged with the same offence of causing financial loss to the state. Now after Afreh JSC’s appointment to the Supreme Court, the decision in Tsikata (No. 1) was reversed by an 11-member panel of the court, including the newly appointed judge. The authors are not in any way questioning the propriety or otherwise of the decision of the court in this case. Whereas the reversal of the earlier decision may have been meritorious, it would appear to an objective minded person, considering the circumstances, that this decision was shrouded in plain mischief.

One would have thought that the mode of appointment of judges should not have had an influence on the judge in his judicial role. The simple reason is because of the constitutional protection of the judge. Once appointed, he cannot be arbitrarily removed from office. Therefore one must ask why judges may have the inclination to do the will of their appointing authorities. The authors find that the answer can be found in the “you do me, I do you” culture of Ghanaians – reciprocity. The fact that we may agree that the concept of judicial independence ensures that judges consider matters with objective lenses does not alter the nature and risk of judges seeking to act based on the whims and caprices of those who appointed them – politicians.

In the opinion of the authors, in so far as the current mode of appointment of judges remains a structural pillar in the architecture of our legal system, we should not expect a well-functioning and truly independent judiciary. It is about time we devised a more practically sound and constitutionally excellent way of appointing judges. The authors suggest that a politically neutral constitutional body can be set up to oversee all matters relating to the appointment and promotion of judges at all levels of the judiciary, so that politicians may not have a direct influence on the appointment of judges. Since the Judicial Council already has a similar constitutional mandate, the President can be divested of the power of appointing judges and the Council well equipped and restructured to discharge that responsibility. Until then, the authors hold that there is no true judicial independence at play in our legal system. At best, judicial independence in Ghana can be described as a theoretical conjecture struggling to be born in the practical realm.

 

[1] Stephen B. Burbank, “The Architecture of Judicial Independence” Southern California Law Review [Vol. 72:315] at 316.

[2] Stephen B. Burbank, “The Architecture of Judicial Independence”

[3] Irving R. Kaufman, “Chilling Judicial Independence” The Yale Law Journal Vol. 88: 681, 197, p. 684.

[4] A. W. Bradley and E. D. Ewing, “Constitutional and Administrative Law”, 14th Edition p. 389.

[5] Irving R. Kaufman, “Chilling Judicial Independence”, supra note 3.

[6] Atudiwe P. Atupare, “Constitutional Justice in Africa” (LexisNexis 2013) p. 113.

[7] Ibid, at p. 96.

[8] J. Mark Ramseyer, “The Puzzling (In)Dependence of Courts: A Comparative Approach” The Journal of Legal Studies Vol. 23, No. 2 (Jun., 1994), pp. 721-747.

[9] Benjamin Cardozo, “The Nature of the Judicial Process” 141 (1921).

[10] Atupare, supra note 6, at p. 107.

[11] Ibid.