Is Mahama a danger to the Judiciary in Ghana?

Ex-president and NDC presidential candidate, John Dramani Mahama accused president Nana Akufo-Addo of appointing pro-NPP judges to the bench and called on pro-NDC lawyers to pursue vocations on the bench to achieve a balance (see, “Judiciary is currently packed with NPP- inclined judges – Mahama”, GhanaWeb, September 3 2023). Mahama was addressing the third annual conference of lawyers hosted by the NDC on September 2, 2023.

In other words, Mahama was suggesting that should he become president in 2025, he would appoint pro-NDC judges to the bench.

In response to Mahama’s accusation, President Nana Akufo-Addo also addressing the Ghana Bar Association’s annual conference in Cape Coast said among others and I quote. “Not only are concepts of NPP and NDC judges new in our political discourse, but they are also extremely dangerous, and represent the most brazen attack on the independence of the judiciary by any allegedly responsible politician of the 4th Republic” (see, “Akufo-Addo's address at 2023 Bar Conference”, GhanaWeb September 12, 2023.

The retired Chief Justice, Sofia Akuffo also criticised the tagging of judges by ex-president, Mahama. She said, “he has been through the process of appointing people before, so was it because they were NDC?” (see, “Did you also appoint NDC judges as president? – Ex-CJ Sophia Akuffo 'fires' Mahama”, GhanaWeb, September 15, 2023).

This brief article is an analysis of the accusation by ex-president Mahama, and the response by President Nana Akufo-Addo vis-à-vis the independence of the judiciary in Ghana.

As someone who is an avid supporter of judicial independence, I disagree with the accusation by ex-president Mahama for two reasons. First, as a former president, it’s inappropriate to make such an allegation and the former Chief Justice was spot on for asking if Mahama appointed judges onto the bench because they were pro-NDC.

The second is that it’s wrong to ask pro-NDC lawyers to prepare for judicial appointment in the future because judicial appointments should be on merit

and not political affiliation.

However, I disagree with president Nana Akufo-Addo that what ex-president Mahama said was dangerous or an attack on the independence of the judiciary. I disagree because Mahama said what many people suspect, and therefore ex-president Mahama is not the first to say so. Moreover, it’s a known fact, if not a truism that, no government will appoint someone to a position who is opposed to his ideological views.

Therefore, all governments across the world appoint people who are sympathetic to their programme and ideological persuasion. This is an open secret, and any political follower should know this, except that when it comes to judicial appointments, the terms often used are either conservative or liberal judges.

Is tagging judges pro-NPP or NDC judges by ex-president Mahama a threat to the independence of the judiciary in Ghana? My answer is emphatically, not. This is because judges are expected to administer justice in the courtroom without fear or favour on the facts of cases in the courtroom and by applying and interpreting the relevant statutes without any influence from outside.

Therefore, if judges can do what is expected of them in the administration of justice, then their political or religious views, economic or any other characteristics should not be a threat to their judicial independence.

Second, judges are not above criticisms and, because there are winners and losers in court cases, there is always a party that is not happy and will criticise the judgement or the judge. Again, judges are also human beings and do not always get it right, so people have the right to criticise them when the judgement is not right. That is why there are appellate courts.

Does the executive pose a threat to the independence of the judiciary in Ghana? I am tempted to say yes and, across the globe, it’s rather the executive, which threatens the independence of the judiciary. This is because the judiciary holds the executive to account and for that reason, the executive may want to avoid accountability by influencing the independence of the judiciary indirectly.

For example, in the UK, ministers are more likely to criticise judicial decisions and judges more than the opposition as was the case when the then Leader of the House of Commons, Jacob Rees-Mogg accused the UK Supreme Court of doing politics when it unanimously ruled that Boris Johnson’s decision to prologue parliament on 28 August 2019 was unlawful.

Therefore, Nana Akufo-Addo was wrong in claiming that Mahama’s accusation was a threat to the independence of the judiciary. On the contrary, the real threat to judicial independence in Ghana is his government (the executive) and not the opposition.

The other threat to the independence of the judiciary in Ghana is the judiciary itself. That is, not only how judges assert their independence in the courtroom but also how the administrators of the judiciary assert their independence from the executive. For me, this is an area that as an observer from afar, I can say that Ghana’s judiciary is not independent from the executive. To support this, I

will provide recent evidence of how the judiciary has pandered to the executive and failed to assert its independence.

The first is the control of the courtroom and how cases are managed. There is evidence to suggest that in Ghana, it’s the prosecutor (often the Attorney General) who decides when cases should be heard and how often. Judges will allow the Attorney General’s Department to take as long as it wishes to prosecute cases without any sanction.

Examples include the murder trial of the late Adams Mahama, the Upper East Regional NPP Chairman as well as that of the late NPP MP, Joseph Boakye Danquah-Adu. The last is the trial of Menzgold Chief Executive, Nana Appiah Mensah. The case was adjourned thirty-six times without any sanction against the prosecuting

authority for wasting judicial time.

No reasonable judge in an independent judiciary will accept such adjournments without cost or dismissing the case for want of prosecution. This happened because the judge must have been scared of sanctions if s/he went after the state prosecutor for fear of not being promoted or even being transferred.

Judges who assert their independence to the displeasure of the executive may incur the wrought of the executive. A typical example was the recent case of the COCOB trial judge who decided to start the case afresh instead of relying on the previous judge’s proceedings, Justice Kwasi Anokye Gyimah was not only removed from the case but also transferred from Accra to Kumasi, though his decision was legally sound was not what the Attorney General wanted.

No one can convince me that the Chief Justice alone decided to take Justice Gyimah from the case and also transfer him to Kumasi without the influence of the executive. This was no mean judge but an Appeal Court Judge. The last example of Ghanaian judges not in control of the courtroom is the case of the NDC MP, Gyakye-Quayson who is being tried for standing as MP in the 2020 elections when he was a dual citizen. The state prosecutor demanded a daily trial.

I have had the opportunity to relate to the judiciary in the UK and have not come across the Crown Prosecution Service determining the dates of trial. That is entirely the prerogative of the court service and depends on when a courtroom is available as well as when a judge is available. They do so in consultation with all parties to the case (both prosecution and defendant). I was once in court for a case management hearing when a solicitor representing one of the parties told the judge that she was on holiday during the week that the case

was being scheduled for a hearing.

The response of the judge was, “The court decides when the case should be heard based on the availability of a courtroom and judges. If you are on holiday, your law firm should send someone in your place”.

This is not the case in Ghana. Now let me give examples of important and urgent constitutional matters and how the judiciary or Supreme Court has handled them as evidence of a threat to the independence of the judiciary.

The president sacked the Auditor General, Mr Daniel Yoa Domlevo in March 2021 and most people were of the view that the president’s decision was unconstitutional. Therefore, they challenged the decision at the Supreme Court. In any democratic country with an independent judiciary, this case would have been heard under a certificate of urgency because of its constitutional importance and time factor should the application be successful. But Ghana’s Supreme Court treated the case as normal.

The judgement only came out on 31 May 2023, that the president’s action was

unconstitutional, two years late to the extent that it was a pyrrhic victory.

Again, five political parties have challenged the decision of the Electoral Commission to restrict the ongoing registration of those who have attained voting age to only its district offices at the Supreme Court. Because this is another important constitutional matter on the right to vote and timing is

important, one would have expected the Supreme Court to hear the case on the certificate of urgency.

But not in Ghana and this Supreme Court. The date scheduled for the hearing is after the limited registration is over. This makes the case a non-starter and a waste of time, though the decision may be for the future.

For me, the above examples make me conclude that the judiciary in Ghana is not independent because judges do not have control over what happens in the courtroom, and are not free to make independent decisions without fear of sanction by way of transfer also the Supreme Court’s lack of urgency on important and time-limited constitutional matters create the impression that the

judiciary is not only failing to hold the executive accountable but also appears to be working to protect the executive. That is the public perception and it’s important.

The above behaviours by the judiciary itself are the greatest threat to its independence and not the political affiliation of judges if judges deal with cases without fear or favour and are also seen to be free and fair in the administration of justice, no political affiliation will threaten the independence of the judiciary.

A judge must administer justice and that must not only be done but also be seen to be done, and if that is the case, then, no one should be worried about whether a judge is conservative or liberal. At the moment, that may not be the case with Ghana’s judiciary unless we are playing ostrich.