How the Judiciary is retarding our development ...

Wed, 2 Aug 2006 Source: Asare, Kwaku S.

...and what we must do to change it

I will advance two propositions in this essay. The first is that we can never develop without an effective judiciary. This proposition is now universally accepted and warrants only passing remarks. The second proposition is that our judiciary is completely ineffective. The second proposition is more controversial but I hope to support it. I will also propose some ideas on how to make the judiciary more effective.

It is now widely acknowledged that an effective judiciary is a sine qua non for enforcing substantive law. Citizens rely on the judiciary to protect property rights, enforce contracts, resolve electoral and chieftaincy disputes, and to protect fundamental liberties, such as freedom speech. Similarly, the State and accused persons, for different reasons, rely on the judiciary in criminal proceedings.

To the extent that the judiciary is effective, efficient contracts will result, property rights will be respected, electoral and chieftaincy disputes will be resolved peaceably, robust and vigorous debates over public policy will ensue. To the extent that the judiciary is ineffective, inefficient contracts will result, there will be rampant encroachment on others’ property, electoral and chieftaincy disputes will be resolved on the streets, a culture of silence will prevail and most people will resort to self-help. The former state of affairs will stimulate productive activity, expand opportunities and induce economic growth. The latter state of affairs will promote inefficiency, emphasize spot transactions and redistributive activity, restrict opportunities and retard economic development. In the criminal arena, the best substantive law on corruption will come to naught unless there is timely judicial enforcement. And accused criminals rely on the judiciary to protect their rights to a fair and speedy trial.

Various world-bank sponsored projects amply demonstrate that effective judiciaries are associated with more developed credit markets, more rapid growth of firms, lower cost of capital, and higher investments. Specific cases that have led to seismic shift in a Country’s history are not hard to find. In the USA, it was the famous Brown v. Board of Education decision that ended race-based segregation in public schools. That decision overruled the so-called "separate but equal" doctrine announced by that same Court in Plessy v. Fergson (which allowed the races to be segregated as long as they are provided substantially equal facilities, even though these facilities were separate). In Minister of Health v. Treatment Action Campaign and Others, the South Africa Constitutional Court invalidated the State’s anti-HIV drug policy for failing to take into account the needs of particularly vulnerable groups. In so doing, the Court made the drugs available to needy mothers and children. That same Court, in the Grootboom case, held that State housing programs in the Cape Metropole was falling short of its obligation to provide "adequate housing" as stated in the Bill of Rights. Grootboom has had a predictable positive impact in housing development in South Africa. In Akoto, our post independence Supreme Court failed to recognize a bill of rights in article 13(1) of the 1957 constitution and thereby found the Preventive Detention Act constitutional, a decision that endorsed the wholesale incarceration of political opponents, led to the first exodus of the political elite, and ultimately led to the demise of the 1st Republic. I now turn to the second proposition. I will assess the performance of the judiciary in resolving election disputes, criminal disputes, and property right disputes. I will also discuss the judiciary’s performance in protecting fundamental rights, especially the freedom of speech. Election disputes are inevitable by-products of elections and are commonplace, even in the more matured democracies (e.g., the 2000 Bush vs. Gore dispute as to who won the State of Florida and, hence, the USA Presidency). Societies count on their respective judiciaries to resolve this heated and time-sensitive disputes in a Fair, Impartial and Timely (i.e., FIT) fashion. For instance, during the Bush-Gore dispute, which involved the State and the Federal judiciaries, the judges and the justices, keenly understanding of their role, burnt the midnight oil to resolve the dispute in a timely fashion. Conversely, the election disputes in 1992 Angola and 1996 Bosnia and Herzegovina degenerated into chaos and conflict.

The first real test for our judiciary in the area of election dispute resolution arose in 1997, immediately following the 1996 parliamentary elections. And our judiciary performed shamefully and miserably! George Amoo, the NPP candidate, had won more votes than Rebecca Adotey, the NDC candidate, but the latter had been prematurely and improperly declared winner and sworn in as the putative MP of Ayawaso-West Constituency. Amoo immediately petitioned the High Court to redress this glaring injustice. Even though the Electoral Commissioner (EC) subsequently corrected the tally and the High Court ruled that Amoo had won, the case got stuck in the appellate process and was not resolved by December 2000, when the 1996 parliament was dissolved. Thanks to the Judiciary, Rebecca Addo, who had indisputably lost the election, served a full term.

In any serious country, this shameful judicial performance would have been followed by blue-ribbon commissions to find out what went wrong. There would have been consequences and the country would resolve never to let it happen again. Not Ghana and not our judiciary.

In the November 2000 elections, Mr. George Nyimakan was elected as the MP of Wulensi West and was duly sworn in as MP in January 2001. Subsequent to his being sworn in, Mr. Fuseini Zakaria petitioned the Tamale High Court to disqualify Nyimakan on grounds that Nyimakan did not hail from the constituency nor had he resided there for the required constitutional period.

On July 6, 2001, Justice Aninakwa, presiding at the Tamale High Court, agreed with the petitioner and disqualified Nyimakan as the MP for Wulensi. Nyimakan appealed this decision to the Court of Appeal, which stayed the execution of Aninakwa's ruling. On April 12, 2002, the High Court's decision was affirmed by a 3-man appeal panel headed by Justice Georgina Woode (with Justice Stephen T. Farkye and Justice Omari-Sasu as members). However, the court granted an application for a stay of execution to allow Nyimakan to appeal the decision at the Supreme Court (SC). On January 16, 2003, the SC, by a 4-1 decision, ruled that, under article 99, it lacked the jurisdiction to entertain an appeal, after an appeal has been made to the Court of Appeal. Thus, after having served as the MP of Wulensi for 26 months, Mr. Nyimakan was finally disqualified. Six years after the untimely resolution of this dispute, I am yet to obtain, in spite of repeated efforts, the relevant Court’s rulings construing the “hail from” and “reside in” language. We know Mr. Nyimakan was disqualified either because he did not “hail from” or “reside in” Wulensi. But we cannot tell what those terms mean so as to apply them to a different set of facts. Knowing a Court decision without knowing the ratio decidendi is, of course, completely worthless.

Fortunately, the current Chief Justice (CJ) appears to have taken notice of these embarrassing delays in resolving time-sensitive election disputes. Speaking at a seminar for judges on the electoral laws of the country just before the 2004 elections, the CJ said "The case of Isaac Amoo . . . is a sad commentary on the performance of the Courts. We should not allow such situations to occur any more." He also said one of the factors “affecting speedy disposal of cases in the courts was unreasonable indulgence of some judges to requests for adjournments by lawyers and litigants and urged judges to proceed with cases once they are satisfied that the parties have been fully served with hearing notices.” He cited “the public concern about the frequent adjournments and delays in adjudication of justice and called on them to stem the trend.” (a href="http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=63176">http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=63176).

Alas, these words have not been matched with concrete actions and have predictably fallen on deaf ears. Eighteen months after the 2004 elections, the Courts have not resolved the Mion constituency election dispute. It is a familiar story. The 2004 election was won by the NDC candidate, Alhassan Ahmed Yakubu. His NPP opponent filed a petition at the High Court seeking to declare the elections a nullity on the grounds that at the close of voting by 5 p.m. on December 7, 2004, a number of people were in the queue who could not vote because of shortage of electoral materials. According to the petitioner, he would have won the election if those voters had cast their ballots. The Tamale High Court, in November 2005 (almost one year later), ruled in favor of the petitioner and the NDC candidate appealed. We await the resolution of this dispute, in spite of the August 2004 election dispute seminar for judges! I have become involved in an election dispute following Parliament’s decision to save the Nkoranza North parliamentary seat until he returns from his detention from USA. Eric Amoateng has been detained in USA since November 2005. I invoked the jurisdiction of the high court in February 2005 to declare the Nkoranza-North seat vacant under its powers under article 99(1)(a) or the Busia clause. That article was informed by history. In 1959, Dr. K.A Busia, then a minority MP for Wenchi-West, sought permission from the Speaker to give a lecture at Oxford. The then Speaker Akiwumi denied him permission without cause and for purely political reasons. When the young Busia defiantly left to give this lecture, the CPP majority in Parliament declared his seat vacant. The 1957 constitution did not leave Busia with any Judicial recourse.

Realizing the harm that could be done by allowing Parliament, hence politics, to decide whether a parliamentary seat has been vacated, the 1992 Constitution gave the power to declare a seat vacant to the Courts, which must do a de novo review on questions of whether a seat has been declared vacant. Inexplicably, inexcusably and impermissibly, Justice Ayebi, reading from his High Court bench reviewed for abuse of discretion and endorsed “Parliament’s wisdom.” I was astonished to learn that there was no written decision for me to inform my predictable appeal, in spite of the 21 day limit for filing notice of appeals and the problems caused by page 28 in the Mensa-Bonsu and Justice Abban dispute in the 1990s (see below). Upon inquiry I was told that the decision had to be submitted for typing!

The story is no different in the resolution of criminal disputes, where lengthy delays undermine defendants’ speedy trial rights. The right to a speedy trial protects the rights of both defendants and society. For an accused, it minimizes anxiety and reduces the cost of the defense. For the State, it reduces the chances of the accused jumping bail or committing other crimes, when a bail is granted. Where a bail is not granted, the right to a speedy trial reduces lengthy and expensive pre-trial detentions. For both parties, the right ensures the integrity of the process since delays may lead to the loss of witnesses and judges, through death or other reasons and the fading of memories of available witnesses. It was mainly because of this that most of us welcomed the Fast Track Courts, which were in essence an automation of the existing High Courts, although five members of the Supreme Court thought such automation, at the behest of then CJ, was unconstitutional. It is trite knowledge that the non fast Track Courts are characterized by delays. But how has the FTC performed? Tsatsu Tsikata v. The Republic is the test case. The case itself is a very mundane one. Tsikata is charged with three counts of willfully causing financial loss of about 2.3 billion cedis (about $5M based on the exchange rate at the time of the transaction) to the State through a loan he guaranteed for Valley Farms, a private concern, on behalf of the GNPC. The accused is also charged with misapplying public property. In effect, the State’s burden is to prove beyond reasonable doubt that a willful act by Tsatsu caused a financial loss to the State.

Nevertheless, the trial which commenced at the Circuit Court in January 2002 is yet to be resolved (the Judge has promised a judgment in October 2006). Over those 1200 days, the FTC has heard from 12 witnesses over 82 court sittings. The State, at various times, was represented by 4 Attorney Generals (Nana Akuffo Addo whose charge sheet read The President v. Tsatsu Tsikata; Paapa Owusu Ankomah; Ayikoi Otoo and Joe Ghartey). The defense was represented by E. V. O. Dankwa and Major R. S. Agbenator. The trial exposed everything that is wrong with our Judiciary – an elastic tolerance of adjournments; mindless tolerance of interlocutory appeals, and obsolete judicial vacations). Among the reasons for adjournments were absence of the prosecution from Court; dispensation to the prosecution to conduct further investigations; electrical power fluctuation (that one called for a 2 week adjournment); trial judge attendance at a workshop; judicial vacations; defense attorney out of the country without leave of court (that one was good for a 6 week adjournment). With respect to the interlocutory appeals, everyone is probably now familiar with the famous FTC decision by a review panel of the Supreme Court. In February 2002, a subset of the Supreme Court, by a 5-4 decision, declared the Fast Track Court unconstitutional and immediately put at substantial risk all the decisions that had been hitherto rendered by these FTCs. In spite of this risk, the full panel of the Supreme Court waited for 4 months before reviewing and setting aside this totally flawed decision.

In the most bizarre of these interlocutory appeals, Mr. Tsatsu Tsikata petitioned an Accra High Court to declare as null and void, a judgment given against him by the Supreme Court (the SC had ruled that the AG can represent the CJ). No disciplinary actions were taken against the lawyers who filed this frivolous petition.

Another interlocutory appeal challenged the propriety of Justice Brobbey signing on an opinion even though the Justice took part in the hearing before being seconded to Gambia. Other appellate issues include Mr. Tsikata challenging the trial court’s decision for him to open his defense; and seeking to compel IFC testimony, contrary to the trial court’s ruling that IFC has immunity.

If anyone had doubts that the Judiciary is in dire need of reform, I hope this odyssey of the Tsatsu trial put those doubts to rest. But I will like to mention another trial, which has disappeared from the headlines. It is the case against honorable Abodakpi, who is charged with embezzling $400,000 TIP funds. In a rather bizarre compromise on 12/2/2002, the Attorney General, honorable Dan Abodakpi, and Justice Steve Farkye, presiding at an Accra Fast Track Court, reached a compromise that required his case to be heard only on Mondays. I do not know what has happened to the case and the media has either forgotten or lost interest!

Property law concerns the various forms of ownership in real property (land) and in personal property. In Ghana, land was historically owned by the stool and over the years interest in land has been conveyed to individuals by alienation, devise and descent. In some cases, land has even been acquired by decree. Because Ghana is still an agrarian economy, our development potential is tied to the ease and certainty with which one can acquire interests in realty. Delay in resolving land disputes will scare away investors, shrink our development space and lead to the proliferation of land guards. The 16th century English judges created an elaborate system of property rights in furtherance of their agrarian revolution. The statute of frauds; the much dreaded rule against perpetuities; conveyance doctrines to protect a bona fide purchaser; the destruction of contingent remainders; etc. were the legacy that those judges left their country.

How has the judiciary performed in this area? I do not think anyone has made the case against the judiciary in this area as eloquently as Mr. Alexander Okyere-Buor. According to a newspaper report (Daily Graphic 3/17/2006), the 80-year old man “ignored the advice of his counsel and directly made a passionate appeal to the Presiding Judge that he did not want to die, before the court heard his age-long case.” He told the judge that “he was 67 years old when he filed the suit, and yet at his current age of 80, nothing serious was being done about the suit.” Mr. Okyere-Buor held the belief and announced in Court that “the undue delay in hearing the case” was deliberate and meant to “prolong the case for him to die, and for his opponent to seize the opportunity to own the house under dispute.”

Apparently, the dispute was about the legality of the auction of his house by the National Investment Bank, which held a purchase money mortgage security interest in the house. Mr. Okyere-Buor sought an order from the Court to nullify the purported sale of the property. The Graphic report also indicated that a Kumasi High Court had ordered that the house in dispute not be touched pending the final determination of the suit.

Mr. Okyere-Buor’s case is not unusual and highlights the problem facing those who seek to invest in real property, including mortgagees who seek to foreclose on any defaulted loans. The consequences are needlessly devastating for it creates a major impediment to mortgage banking.

In other situations, landowners (real and imaginary) have sold an interest in the same property to multiple buyers, gifted it to donees, or devised it to heirs, who converge to the Court house to determine who has acquired a legitimate interest. The consequence is the inefficient strategy of building any structure on the land to prevent others from coming to build on the land, even though they have no claim to the land. The need for careful investment in real property has been replaced by a race to place structures on land. And the Courts are to blame because of their failure to come out with doctrines to determine land ownership and because of their tardiness, if at all, in enforcing property rights!

Today most people are more likely to resort to self help to demolish any illegal structure that they find on their lands than to seek judicial relief from the Courts. In April of this year, Nene Otchie Aradatu III, Chief of Langma Ga West District noted that “land guard activities was rife in communities springing up around the nation's capital and other urban areas and said they had contributed to the proliferation of small arms and an upsurge in criminal activities especially involving the use of firearms.” He warned that “such activities could generate into communal violence, create social tension and insecurity in the country and could have a repercussion on the country's foreign exchange earnings since visitors and other investors in the sector would be deterred” (http://www.ghanaweb.com/GhanaHomePage/NewsArchive/artikel.php?ID=102358). Land clashes have also become commonplace. The Ankobea and Kokoben stools both claim ownership to Kokoben land, which has become the basis for many communal clashes in the area, forcing the Kumasi Traditional Council to place an injunction on the sale and development of the Kokoben land in July 2005. Other areas of the country have witnessed similar land clashes.

The proliferation of land guards, land clashes, and the use of self-help are unequivocal evidence that the people have lost faith in the Judiciary’s ability to resolve these land disputes!

The Judiciary’s record in the area of protecting fundamental human right is abysmal. A whole chapter of the 1992 constitution is dedicated to protecting the freedom of the media, a direct result of the violence that Flight Lieutenant Jerry John Rawlings and his PNDC unleashed on the media from 1981 to 1992. His victims include Catholic Standard, Pioneer, Legon Observer, the then respectable Palaver, Apostle Barnabas, Tommy Thompson, Kofi Coomson, Kwaku Baako, Haruna Atta, etc. By 1992 that violence had created what became known as the culture of silence, a culture that shaped chapter 12 and that we hoped would inform any subsequent interpretation of that chapter.

The test came soon enough in the case of Republic v. Tommy Thompson. In that case, the defendants were charged with criminal libel for statements made about Mrs. Konadu Rawlings, wife of the flight lieutenant. The defendants asserted a constitutional privilege under articles 162(1) (freedom and independence of the media are hereby guaranteed) and 161(4) (editors and publishers of newspapers and other institutions of the mass media shall not be subject to control or interference by Government, nor shall they be penalized or harassed for their editorial opinions and views, or the content of their publications). The trial court certified the matter to the Supreme Court for interpretation.

True to form, the Supreme Court unanimously held that “although the offence of criminal libel was a limitation on freedom of the press and independence of the media, it was a law reasonably required for the purpose of protecting the reputations of other persons” (citing article 164). Current Chief Justice Acquah waxed eloquence in this right-shredding enterprise when he wrote “the 1992 constitution does not entitle anyone to unlawfully publish, either negligently or intentionally, a defamatory matter about any individual. And this is what the law of criminal libel seeks to prohibit.”

In Republic v. Tommy Thompson et al., defendants were put on trial for communicating false reports which were likely to injure the reputation of the government, contrary to the law against seditious libel (section 185 of the criminal code). The defendants asserted the same constitutional privileges and it got them exactly the same result! Justice Kpegah held that article 41(a) of the Constitution imposed a duty on all citizens to promote the “prestige and good name of Ghana” and Justice Adjabeng held that the” publication of a false report about Ghana harms the public interest.”

Any doubts as to where the SC stands on freedom of speech and the media were emphatically resolved in Republic v. Mensa-Bonsu; Ex Parte Attorney General. This case was an offshoot of the December 31st case. In the December 31st case, Justice Abban joined the Court’s minority to vote to keep celebrating the December 31 vandalism. Defendant claimed he heard Justice Abban “attribute” a quote to Dr. K. A. Busia while reading his judgment in Court. Upon further research, the defendant found that the quote was a Graphic editorial and not a statement made by Dr. K. A. Busia. The defendant requested a certified copy of Abban’s opinion. Unknown to Justice Abban, the defendant had also used lawful journalistic techniques to obtain a copy of the statement that he read in open Court. When the defendant got a certified copy of the opinion, page 28 of the certified opinion had been doctored and the quote was now correctly attributed to a Daily Graphic editorial. Defendant did his civic duty and relayed this matter of national interest to the Free Press, which properly published defendant’s letter and an opinion captioned “Justice Abban is a liar.”

The defendant and the Free press were arraigned before the Supreme Court who did the unthinkable. The Supreme Court sentenced the defendant to 30 days imprisonment for “scandalizing the Court.” The obviously agitated and angry court asserted that “truth is no defense for contempt” and that “free speech is subject to conditions and restrictions prescribed by law including committal for contempt when this offence is committed.” A dissenting and probably troubled Justice Adade concluded that “a case for contempt had not been made at all.”

Mercifully, on Friday 27 July 2001, Parliament unanimously repealed the Criminal Libel and Seditious Libel Laws to provide the necessary breathing space needed by the media to carry out its role. While this effectively ended the power of judges to imprison media men for their speech, the Judiciary has found civil libel as a new and equally potent way to suppress speech. In March 2005, a FTC awarded damages of 1.5 billion cedis ($166,667) against the Ghana Palaver newspaper for defaming Mr. Hackman Owusu-Agyeman, the MP for New Juaben. In the same year, the Free Press newspaper was ordered to pay 3 billion cedis damages to Samson Nuamah, the managing director of the state-owned reinsurance firm, Ghana Reinsurance. Most recently, Professor Mike Ocquaye, has sued the Ghana Palaver and Ghanaian Lens newspapers for libel and he is seeking aggravated and exemplary damages in the amount of 5billion cedis ($555,555). These excessive awards work, in effect, as prior restraints on speech, are repugnant to the chapter on the freedom of media and completely ignores or forgets the culture of silence. But where do we go for the enforcement of our speech rights?

Is there hope for the judiciary? I remain pessimistic but will offer some suggestions, keenly aware that suggestions are not welcome unless they come from the World Bank, IMF, APRM or donor countries.

On election disputes, I will simply reiterate the advice that I have given following each election cycle. It involves setting firm deadlines for the Judiciary (an added benefit of such deadlines will be to avoid the transitional problems we faced in 2000). All dates below relate to an election year.

Last Friday in June: Deadline for filing nominations for candidates

Last Friday in July: Deadline for filing all pre-voting contests such as qualifications (e.g., article 94 issues).

Second Friday in September: Deadline for courts to settle all disputes, including appeals.

First Saturday in November: General Elections.

Tuesday 5PM after General Elections: All results and winners are declared.

Next Tuesday 5PM: Deadline for filing all contests (e.g., counting issues).

Second Tuesday in December: Deadline for courts to settle all disputes, including appeals.

First Saturday in December: Presidential and other runoffs if needed.

First Saturday in January: Inaugration.

The beauty of this calendar is that the Nyimakan type election dispute will never arise after the elections. A candidate’s qualification must be challenged before the election or it becomes “res judicata.” Morever, the Amoo and Alhassan type disputes will be resolved before inauguration. In consequence, no “alien” will ever be sworn in as an MP and once an MP is sworn in she can not be disqualified. The deadlines are tough, they will call for hard work by the judges, they are sensible and they are necessary. The Tsatsu trial shows that we need a variant of the Final Judgment rule. This rule will limit, with few exceptions, appealable issues to "final judgments." The exceptions would include questions of subject-matter jurisdiction of the trial court, or constitutional questions of the gravest importance. Any such appeals, to the extent that it is hindering the trial court from proceeding with the trial, must be resolved in less than a month. These exceptions are likely to be the norm and it is expected that most cases will have none or no more than 1 interlocutory appeal.

Once the trial is started, adjournments should be rarely granted; certainly adjournments because a party refuses to show up or to allow the Prosecution to investigate a case should not be tolerated. Prosecutors should charge defendants after they have investigated the case, not charge before investigating.

The registrar of the court must keep track of the age of all cases and initiate communications with any judge whose trial exceeds 6 months. This aged “Trial Balance” must be accessible online and available for media scrutiny. Disciplinary actions must be brought against judges who consistently delay their cases. The fear that such deadlines will rush judges to make hasty decisions is unwarranted because in this proposed regime all opinions will be published online and accessible for public scrutiny. Moreover, the normal appellate procedures, after the final judgment in a case, will be available and the usual sanctions of judges who are frequently overruled will be applied. The Court should abandon the colonial practice of going on summer vacations. This practice was emplaced in the days that our judges came from overseas to allow them to visit home in the summer. There is no reason to continue this practice when we have a huge backlog of cases. How can the Judiciary, with conscience, go on vacation when there are thousand of unresolved disputes, many of them dating as far back as the 1950s?

It is mind-boggling that after Mensa-Bonsu, judges are not mandated to issue written opinions contemporaneously with reading their verdicts. Although I have 21 days to appeal the Amoateng case, I am yet to get a written opinion. The potential for abuse is glaring; the failure to issue a written opinion does not serve the litigants, who are entitled to know the ratio decidendi of the Court. There is only one sure way of holding Judges accountable --- reading and evaluating their decisions --- and there can be no accountability if there is no written opinion. The Chief Justice must immediately order all Judges to issue written opinions and these opinions must be published on the Courts’ website instantly.

The media should go beyond announcing Court verdicts (Kofi won and Akosua lost) and get into analysis of Courts’ decisions. Our Courts get it wrong quite often. They got it wrong in Akoto, the 1st FTC decision, Mensa-Bonsu, Ekwam v. Pianim, Asare v. Attorney General (Speaker swearing in case), etc. Only a regime of regular media scrutiny will save the Courts from these mistakes. Along the same lines, the Universities must dedicate more journals to analysis of Judgments, law and the constitution. We have fallen behind many of the African countries in this area. In the appointment of Superior Court Justices, Parliament must perform its advice and consent role with more seriousness. It appears that Parliament confirms every Supreme Court nominee, unanimously, without ever questioning them on their jurisprudential leanings. For instance, recently the Chief Justice was confirmed without ever being asked of his decisions in Mensa-Bonsu and Ekwam. Engaging a nominee along these lines has, at least, 3 advantages. First, it is an occasion for the whole country to become better informed about our constitution and our laws. Second, it allows Parliament to assess the analytical strength of a nominee. Third, it creates a culture of thoughtful judicial decision making since judges know that they may one day be called upon to explain their decisions.

Parliament will have to put caps on liability for civil libel. It is hard for me to justify a reputation damage of $500,000 to a public officer whose official income is $500 a month. To be sure, I am incensed as the next person when a media outlet knowingly and purposefully publishes false information about a public officer. But I do believe, as former USA Justice Brandeis teaches that “more true speech” is the most effective antidote to such “false speech.” If a plaintiff public official must prevail in a civil libel suit, he must show by clear and convincing evidence (not preponderance of doubt) that the defendant published the false information knowingly and purposefully (not negligently or recklessly). Finally, the plaintiffs who prevail in such suits should be entitled to no more than 2 years of their known and official income. We must provide on-going continuing state of the art legal education for our judges. We must also be ready to inject new, different and younger blood into our Judiciary and University Faculty where future judges and lawyers are trained. I have maintained for the last 5 years that my classmate and learned friend Kwasi Prempeh should be appointed to the Supreme Court, perhaps as the Chief Justice. The affable Yale graduate is extraordinarily talented in principles of constitutionalism and the linkage between law and development. I know this is unorthodox thinking in a system where promotion to the Supreme Court is based on longevity. But we have tried the orthodox methods for half a century with predictable failure. We must be willing to experiment. In Mr. Bright Akwetey’s “impeachment” petition against the CJ, he made several specific complaints:

The President set up a committee to investigate the charges, consistent with articles 146(6) of the constitution. Subsequently, the Supreme Court dismissed the committee on grounds that a prima facie case was required to be established against the CJ prior to the setting up of a committee to investigate him. The SC Justices also ruled that the duty of determining a prima facie case should rest in the Council of State, which, it was recommended should establish a convention of engaging “an independent and reputable lawyer” to advice them on the evidence (Statesman, July 13, 2006). Although it is unclear to me where the SC is reading these requirements from (they are certainly not in the constitution), I have no interest in analyzing that decision as I have not had the benefit of reading the full opinion, which again is not publicly available. I bring up Akwetey’s petition solely to demonstrate that the CJ's administrative powers are overbroad and can be abused by a malevolent CJ. Raising the issue is completely without prejudice to whether the CJ has done anything illegal or unethical. The petition suggests many avenues for reform, two of which I list here:

(1) The CJ should not have the power to transfer a live case from one high court to another. That should be resolved by the case facts (e.g., venue of the crime, residence of the parties, subject matter of the case, etc.). The clerk of the High Court should oversee such administrative matters.

(2) The CJ should not have the power to empanel justices on the Superior or Inferior court. There should be a rational case management schedule, which is not subject to the whims of any person (e.g., by lottery, current caseload, etc). Again, it is the Clerk who should oversee these matters.

I end this section with a commentary on the practice of allowing the Chief Justice to empanel a subsection of the SC justices for various cases. This is unconstitutional. The constitution establishes one Supreme Court and that Court must hear all cases. Although the constitution allows a minimum of 5 Justices to hear the case, this does not mean 5 justices should hear a case even when all the Justices of the Supreme Court are available. It certainly does not mean the CJ should handpick 5 Justices to hear a case. It is trite that opinions of Justices can be predicted. Thus, allowing the CJ to handpick 5 Justices empowers him to decide most cases by cherry picking. Finally, a cap must be placed on the number of Justices on the Supreme Court.

In the introduction, I noted that this was going to be a controversial analysis. I am also fully aware that some, perhaps many, people will disagree with many of my suggestions for change. Nevertheless, my objectives would have been accomplished, if I convinced you that the Judiciary is in disrepair and in need of urgent reform!

Views expressed by the author(s) do not necessarily reflect those of GhanaHomePage.

Columnist: Asare, Kwaku S.