Proposals for reform

Nearly all facets of the Judiciary necessitate reform. To kick off the conversation, I have identified several key areas that I believe warrant immediate attention and have made some proposals. This list is not exhaustive and aims primarily to initiate a dialogue regarding other sectors in need of urgent reform.

1. Political Appointments to the Supreme Court and Public Perception

Despite the Constitutional assurances regarding the independence of the Judiciary from the other branches of government and governmental agencies, the 1992 Constitution assigns the President, as the head of the Executive branch, the authority to appoint the Chief Justice in consultation with the Council of State, subject to Parliamentary approval.

All Superior Court Justices (including those on the Supreme Court, Court of Appeal, and High Court) are appointed by the President in consultation with the Council of State and/or upon the advice of the Judicial Council. Parliamentary approval is a necessary prerequisite for the appointment of Supreme Court Judges.

Former Chief Justice Sophia A.B. Akuffo has articulated the necessity for reforms in the appointment process for the role of Chief Justice and Justices of the Supreme Court. She advocates for a process that is independent, transparent, and grounded in a meritocratic system, as opposed to one based on patronage or favoritism.

A pertinent question arises regarding the rationale behind the framers of the Constitution involving both the Executive and Parliament in the appointment of the Chief Justice and Supreme Court Judges, while not bestowing a similar role upon the Judiciary in determining the President or the Speaker of Parliament.

The Judiciary's only involvement in the operations of these two branches is the ceremonial role of swearing in the Speaker of Parliament, as well as the President and Vice President. This role is consistent with the principle of separation of powers. However, the Executive's participation in the affairs of the Judiciary may raise concerns regarding the integrity of this principle.

In seeking answers, I aimed to trace the history of judicial appointments in Ghana. I discovered that during colonial times, following the promulgation of the Supreme Court Ordinance by the Parliament of the United Kingdom in March of 1876, judges of the then Supreme Court were appointed by and served at the pleasure of the British monarch.

Upon attaining independence, and specifically after Ghana became a Republic, the 1960 Constitution vested the power to appoint all Superior Court justices in the President. The President's power of appointment was absolute and did not require the approval or advice of any body or institution. He also held the authority to remove the Chief Justice.

The White Paper accompanying the draft Constitution justified these provisions by asserting that the President, as the head of government, required a Chief Justice who would be loyal to him and cooperate with him.

Subsequent constitutions appeared to have taken into account the historical abuse of such power by the Executive and sought to mitigate this provision by introducing checks and balances through the advice of the Council of State and/or the Judicial Council, as well as requiring parliamentary approval for the President’s power to nominate and appoint judges of the Court of Appeal and Supreme Courts.

One might have expected that the many historical instances of executive interference in judicial affairs would result in provisions that restricted, rather than diluted, the executive's power to make appointments within the judiciary.

Unfortunately, this is not the case. It appears that the legacy of the judicial system's origins in the Gold Coast, as an extension of the monarchy designed to safeguard the economic and political interests of colonial powers, persists, even after the attainment of independence.

It is safe to say that the foundations of Ghanaians' mistrust of the judiciary stem from the way in which the formal judicial system was introduced, the perception among the populace that it was alien and an imposition, and the manner in which the British utilized the judiciary as a tool against the local population to entrench their rule and protect their economic interests in the former Gold Coast.

Power Tends to Corrupt and Absolute Power Corrupts Absolutely

Like all powers, the authority vested in the President to appoint the Chief Justice and other Superior Court Judges, along with Parliament's role in approving these appointments, can be susceptible to misuse. Human tendencies such as nepotism, bias towards the ruling government, and favoritism rather than meritocracy can significantly influence the appointment process.

One of the concerns highlighted in the Mo Ibrahim Index report regarding the waning impartiality and independence of the judiciary is the method of judicial appointments. Prior to the issuance of this report, media outlets and statements from concerned citizens raised alarms about a particular political party's tendency to appoint individuals to the judiciary who were sympathetic to the government’s views and actions.

Read Also: Strengthening the rule of law: the need for bold and inclusive judicial reforms

While there may be nothing inherently problematic regarding these appointments in theory and on paper, public perception significantly undermines their legitimacy. The well-known adage, "Justice must not only be done but must also be seen to be done," is particularly relevant in this context.

When judges known or suspected to have political affiliations are appointed to the bench by a political party, a widespread belief arises that the courts will favor the government or its associated entities when adjudicating cases involving them.

When the courts indeed rule in favor of the government, particularly in circumstances where the the case is on a 50/50 basis, this perception becomes deeply entrenched in the consciousness of the general public.

In certain instances, this perception transcends mere opinion and enters the realm of factual evidence. In 2018, Professor Raymond Atuguba, the incumbent Dean of the University of Ghana School of Law, conducted research examining the decision-making patterns of Supreme Court justices in relation to the political affiliations of the governments or presidents that appointed them.

His research analyzed political cases adjudicated by the Supreme Court over a twenty-five-year period and found that in cases “where the law is not clear, the judges were divided along the political ideologies of the political parties that appointed them”.

The judiciary expressed dissatisfaction with Professor Atuguba's research, articulating significant reservations regarding his findings. Nevertheless, the public largely accepted these findings, and subsequent Supreme Court decisions appeared to corroborate both the research and prevailing public sentiment.

Professor Atuguba defended his findings, stating that “it is not a coincidence that this happened… and it would soon be discovered by the general populace, and it may be too late to gain public trust and respect for the court. The time to act is now”.

In retrospect, the judiciary might have benefited from a more thorough and critical evaluation of the research, despite its initial dissenting stance. This is particularly relevant considering that even prior to this research, the public had begun to express concerns regarding a perceived deficit in judicial independence.

This sentiment intensified in subsequent years following the research, as it appears that the public indeed came to the same realization and began to openly criticize the Supreme Court and, by extension, the judiciary, before, during, and after every decision involving the government and/or political actors.

This pressing issue appears scheduled for consideration by the Constitutional Review Committee. Given the comprehensive evaluations that have been conducted over the years concerning various aspects of the Constitution, I look forward to the forthcoming recommendations.

It is anticipated that the recommendations provided by various Ghanaian stakeholders during the consultation process will significantly mitigate or altogether resolve this persistent issue.

2. Charity Begins at Home

It is he who wears the shoes, who knows where it pinches. In addition to the concerns voiced by the citizens of Ghana, those employed within the Judiciary likely possess their own perspectives regarding the judiciary and the Judicial Service.

It is important that judges, who are responsible for administering justice, along with their supporting staff, are engaged in discussions regarding their viewpoints on perceived challenges within the Judiciary and potential reforms.

This engagement should be conducted through a bottom-up approach rather than a top-down methodology. Staff should be afforded opportunities to express their concerns without fear of intimidation or reprisal, enabling them to articulate the challenges that impede their optimal performance, as well as to propose suggestions for improvement.

Similarly, judges, beginning at the magistrate level, should also be granted the same opportunity for engagement. It may be most effective to facilitate this dialogue in a forum that encourages openness and guarantees confidentiality.

While certain judges and staff may prefer to articulate their concerns orally, others may choose to document their grievances and submit them either with their signature or anonymously. Consequently, multiple avenues must be established to accommodate these varying preferences.

Subsequently, measures should be implemented to ensure the establishment of a permanent office dedicated to addressing the grievances of judges and staff. This office should be designed in accordance with international best practices and should be integrated into the judiciary's framework.

Sociological research consistently demonstrates that content staff correlate with heightened productivity. In addition to enhancing conditions of service, it is considered best practice to cultivate a work environment in which individuals feel a sense of belonging.

One effective method to achieve this is by creating a space where their concerns and general perspectives on relevant issues are acknowledged. When employees perceive that their input is recognized and valued, it fosters workplace satisfaction, which, in turn, promotes increased productivity.

3. Extensive Education- “A Man’s Mind, Stretched by New Ideas, May Never Return to Its Original Dimensions”

Immediate actions should be initiated to develop and implement educational programs designed to inform Ghanaians about court procedures and their rights and responsibilities when interacting with the judiciary.

The judiciary has previously engaged in initiatives where select judges interacted with the media to elucidate the functions of the judiciary, thereby increasing public awareness of its role. An illustrative example of this is the appearance of Justice Dennis Adjei and Justice Kyei Baffour on the GTV Breakfast Show in 2016.

This is a commendable project that must be enhanced with regard to the number of judges and judicial staff on the committee and the frequency of engagements with the public. The avenues for communication with the public must also be improved.

It may be beneficial for the judiciary to broaden its outreach by designing a five-year public engagement programme that includes not only media engagements but also extends even to pupils in basic schools.

One can envision how the image of the Chief Justice or a judge engaging with grade one pupils, discussing their work, and addressing any questions that these children may have, regardless of how trivial, would enhance the public perception of the judiciary.

4. Enhancing Avenues for Seeking Redress – "A Snake That You Can See Does Not Bite"

Currently, there exists a judicial service complaints unit as part of the administrative framework, which facilitates written complaints from the public regarding the conduct of judicial staff and judges. It is essential to raise public awareness about the existence of this unit, and it must also be decentralized to the various courts.

Subject to available funding, each court should ideally have its own complaints unit, or at the very least, a cluster of courts (such as the Adenta Courts) should be equipped with a complaints unit.

The term "complaint" typically signifies dissatisfaction; however, within the context of the judiciary and the broader public service in Ghana, it has developed the connotation of "putting someone in trouble."

This should not be the case; therefore, it is advisable to reconsider and potentially revise the terminology employed. It may be prudent to rename it a "redress/compliance directorate" or a similar term.

Keeping in mind that not all court users possess literacy skills or are represented by legal counsel, it is imperative to encourage this unit to employ individuals who are proficient in local languages and capable of translating communications into English.

These individuals would receive oral complaints from court users, formally document them, and facilitate the signing of the document in compliance with the provisions of the Illiteracy Protection Act. If feasible, the complainant should also articulate their desired resolution regarding the complaint.

A defined timeline for the investigation of such complaints is essential, and the complainant should be kept informed throughout each stage of the process. Regardless of the final determination of the complaint, the complainant must be notified not only of the outcome but also of the reasoning that led to it.

5. Avenue for Continuous Improvement – “Even the Clever One is Advised”

Many Ghanaians have encountered "suggestion boxes" in various institutions. These are typically medium-sized metallic containers affixed to a wall, prominently featuring the phrase “SUGGESTION BOX” displayed on an attached paper. They include a small opening at the top that allows individuals to submit one or two pieces of paper.

The primary objective of these suggestion boxes is to encourage clients to propose improvements to the institution's services or products. However, the extent to which these boxes actually receive suggestions, as well as whether their contents are periodically emptied for review and action, remains uncertain.

In an era characterized by digital innovation culminating in E-Justice, reliance on physical suggestion boxes is no longer necessary for public input regarding improvement strategies. The Judiciary can capitalize on digital technologies to not only advance E-Justice initiatives but also to foster public confidence and engagement.

By establishing a digital platform that enables court users and non-court users be they academics, legal professionals, traditional and religious leaders, members of the business community, representatives of various professions, and ordinary Ghanaians, such as those commuting on the Madina Circle bound trotro to offer suggestions for improving the judicial process, the Judiciary would promote grassroots participation among Ghanaians.

The Judiciary must take active steps to promote public awareness of the existence of such a medium through policies such as “Speak Up for Justice” or similar initiatives aimed at inviting the public to share any concerns or suggestions they may have regarding the Judiciary.

The Judiciary must ensure that when the public makes suggestions or expresses concerns, there is a process of periodic review, with timely feedback provided to respondents.

When individuals perceive that their contributions and concerns are acknowledged and valued within a given process, they are more likely to cultivate trust in that system. Sustaining ongoing public participation is essential for restoring public confidence in the Judiciary.

6. Stakeholder Forums – “If You Want to Go Fast, Go Alone, If You Want to Go Far, Go Together.”

The judiciary typically confines its activities within the boundaries of the courts and is recognized for not straying far beyond the corridors of court buildings. However, to ensure that reforms are both meaningful and effective, it is imperative that we extend our efforts beyond the courtroom and actively involve other stakeholders in the administration of justice in this endeavor.

Every Ghanaian is a stakeholder in the judiciary of Ghana, and their perspectives must be considered in the pursuit of judicial reform. However, given the impracticality of gathering all Ghanaians to solicit their views, the judiciary may consider convening a stakeholder conference comprising selected representatives to obtain their insights on fortifying the judiciary's capacity to perform its functions effectively and to enhance public confidence.

Potential stakeholders may include academics, members of the business community, ordinary citizens, traditional leaders, legal professionals, opinion leaders, and representatives from various other professions.

The primary objective of such a conference would be to collaboratively devise strategies that improve access to justice while enhancing the efficiency and effectiveness of the judiciary, ultimately fostering and maintaining public confidence.

Contingent upon the availability of financial resources, these stakeholder conferences could be expanded to regional and district levels under the oversight of Supervising High Court Judges. This approach would ensure that a diverse cross-section of Ghanaians, regardless of their socio-economic status, can participate in the discourse and contribute to the formulation of essential reforms.

Conclusion -‘We Cannot Solve Our Problems With The Same Kind of Thinking We Used When We Created Them

A Judiciary can only function effectively and maintain its dignity when it upholds the trust of the public in executing its mandate. The people of Ghana have emphatically expressed, through constitutional provisions and public discourse, that one of the pillars of an effective Judiciary is its independence. Additional factors such as corruption, delays in case resolution due to excessive backlogs, and victim alienation from the judicial process have all contributed to the significant decline in judicial confidence.

Nonetheless, the primary reason for the erosion of public confidence in the Judiciary remains its perceived lack of independence. The Judiciary must take decisive steps to restore dwindling public confidence in its mandate, with a critical starting point being the reaffirmation of its independence from political interference and political actors.

Although this may present challenges, the most effective strategy for regaining public confidence is for the Judiciary to take ownership of the reform narrative and actively engage the public in a collaborative journey toward rebuilding an independent, dignified, and effective Judiciary that resonates with the aspirations of the Ghanaian populace. A journey of a thousand miles begins with a single step; it is hoped that the Judiciary will take that first step toward meaningful reform.

REFERENCES

• This document constitutes a concise summary of a more extensive article.
• The writer is a judge and an alumna of Harvard Law School. aniagyeiakua@gmail.com

• Article 144 (1)

• Article 144 (2) of the Constitution, 1992

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• Lord Acton

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• Supra

• Ostroff, Cheri. "The relationship between satisfaction, attitudes, and performance: An organizational level analysis." Journal of Applied Psychology 77.6 (1992): 963.

• This quote is attributed to Oliver Wendell Holmes Jr.

• A Mozambican Proverb, which means that once an individual becomes aware of a problem, they are empowered to implement strategies to address it.

• African Proverb, which means that no individual possesses complete knowledge and one can benefit from the insight of other.

• Ashong Elliot, Maud Adjeley, John Effah, and Richard Boateng. "Institutional Influence on e-Justice System Usage: The Case of Ghana’s Judicial Sector." (2024).

• African Proverb, which signifies that one can achieve more with the assistance of others.

• This quote is generally attributed to Albert Einstein.