Judicial Cleansing Yes! But On Whose Terms?

A Review of NDC Judicial Promises And The Forces of Injustices In Ghana

A Tribute to Chief Justice George Kingsley Acquah





***Asante Fordjour LLB(Hons), LLM International Law and Criminal Justice





ABSTRACT





In the 1960s, C.L.R James (1)- the Trinidadian socialist politician an writer, offered Osagyefo Dr Kwame Nkrumah advice in a dispatched letter that I paraphrase as follows: the worst political suicide that any elected peoples’ government will commit is to dismiss its Chief Justice, simply because the judiciary has ruled against the State in a matter in which the government has a vested interest. James nervously propounded series of soviet-styled theories that could have been available to a government wanting its Chief Justice dismissed: It could invite the Chief Justice to a state dinner where kill-me-slowly drug could be spiked into his/her drink; a road accident or cosmetic political elevation which will eventually lead to his/her judicial incapacitation could be staged. The list is not exhaustive. But I venture to add: can’t that regime use its majority in parliament to legislate to handcuff the powers of the Chief Justice and probably, the entire judiciary? In this review, I will attempt not to examine the judicial prudence of the recent judicial decision involving Dr Wereko-Brobbey and Mr Kwame Okyere Mpianim but rather the judicial expectations of the Ghanaian. I proceed with the unreliability of justice and the ancient political tribulations of the Ghanaian judge.





I. INTRODUCTION


It is said that in an ideal circumstance, the law always would both keep society’s members safe while dealing fairly and justly with those who infringe upon it. As socyberty.com (2) puts it, the law is used to enforce what is considered right and wrong according to society’s rules: From an enforcement perspective, it regulates the daily lives of the people within a society. “There are certain rules: laws– which, for the most part, society has deemed good for itself- the protection of lives, property and freedom within society’s constraints. When people break those laws, law enforcement officials, particularly police, arrest the perpetrator. If the infractions are minor, people can pay their fines and move on. If they are major, the court system comes into play and, following the law, judges and juries deal appropriate justice. This may include imprisonment, probation and even death.”

II. Establishing Judicial Error





For most citizens administrative law is the legal base for people aggrieved by public authorities to hold the state bodies to account. Thus one can apply for judicial review of actions or decisions by local councils, public services or government ministries including the judiciary to ensure that they comply with the law. According to Tamanaha (3), the first of such specialist administrative court was the Counseil D’état set up in 1799, as Napolean assumed power in France. In most democratic states the rule of fairness, illegality and proportionality has indeed become the benchmarks of most judicial decisions.





Thus, where the rules of the law have been found to be wrongly applied due to unfairness, defective reasoning or was premised on bias, there could always be legal provisions to address these. We all need justice not for its exhaustiveness but probably for the whirls of it because judges are human beings with passion for their individual beliefs and anxieties and therefore, could err in reasoning. Yet justice as Socyberty reports; is generally understood to mean what is right, fair, appropriate or deserved. “Justice is achieved when an unjust act is redressed and the victim feels whole again. Justice also means the offender is held accountable for his behaviour.” In its functional form, justice is said to mean that within the same value scope (moral, ethical) of the breach, those who commit a wrong in a value system are entitled to receive a similar or related amount of action within the same system/means, and that receipt is except from being considered wrong.





From these given assumptions, it might be save to suggest that justice as being a form of societal defense mechanism, allows a society to cleanse itself of the bad nuts that it does not want to chew. Accordingly, the NDC faithful who had been promised justice over the whispered injustices at the time her party was on the political side-lines, would have for example, expected that as in the cases of Kwame Pepras and others of the NDC, the Wereko-Brobbeys and the likes of the NPP, should have faced the full raft of the law of causing financial loss to Ghana. Yet most legal luminaries and commentators such as American law realist, Justice Oliver Wendell Holmes and Lord Justice Denning, accepted that despite the basic idea that we have of justice it is, true, different in different circumstances for different people.





Indeed, generally, justice as Socyberty argues, is meant more for the society as a whole than for the individual victims and in the present study, Ghana, because it is designed to prove repeatedly that people are safe within their society. “They can feel that if they ever are victims of crimes, the criminals will be caught, tried and punished. It gives the victim closure, but in a larger sense, it gives ((the Ghanaian) society closure of a particular chapter and allows the people within the society to move ahead in their lives feeling they are safe, that even if not all is well…” It might be pretentious and/or misleading the court if I were to be in that school of thought which thinks that Ghana does not need judicial cleansing.





Commenting under the heading Judicial Corruption, the Catholic Standard (9 June 2007) quoted the Ghana Integrity Initiative (GII) report as saying that corruption in the judicial system occurs in many forms and under several guises: * Political interference in the judicial process by the Legislative or Executive branch, and bribery. * Interference from politicians or civil servants to buy “legal” cover for embezzlement, nepotism, cronyism and illegal political decisions. Although the report said that corruption is undermining judicial systems around the world, denying citizens access to justice and the basic human rights to a fair and impartial trial, in the context of the judiciary, corruption is said to be acts or omissions that constitute the use of public authority for the private benefit of court personnel, and results in improper and unfair delivery of judicial decisions.

It is said that such acts and omissions include bribery, extortion, intimidation, influence-peddling and the abuse of court procedures for personal gain. The 2004 report found that *inappropriate influence on the impartiality of judicial proceedings and judgments can extend to the bribing of judges for favourable decisions, or no judicial decision at all. From a broader perspective, the judicial corruption report, in the quoted words of the Standard, is not confined to the inside of court. “Corrupt lawyers, prosecutors, Police and Bailiffs are all in the position to distort the course of justice. They may collude by tampering with evidence, distorting the facts in a case, loosing files, deliberately ignoring credible lines of inquiry or in the worst case, extracting confessions under torture,” it said.





Admittedly the then Vice President, Alhaji Aliu Mahama stated that maximum results cannot be achieved in anti-corruption efforts which target only the government and the public sector and in our present inquiry, the judicial service. To this end the Vice-President said: “I do not believe that approach is practical over the long-term because either by commission or omission, the reality is that the private sector as well as civil society, also bears a significant responsibility for the incidence of corruption.” Whereas this could be true, the reality is that public officials ought to be seen as trustees rather than beneficiaries. The underlying rule of trusteeship is that trustees must act in the best interest of their beneficiaries- here, the state, rather than their personal gratification and comfort.





The Afro Barometer study conducted by the Ghana Centre for Democratic Development (July 2005) revealed that Ghanaians perceive varying levels of corruption in public agencies and among public officials. According to the study, the police and judges as well as tax officials top the list. “Over 8 in 10 respondents perceive some corruption among the police; over 7 in 10 hold the same view of judges and tax officials. Another survey by the GII in July 2005 on the other hand ranked the Judiciary fourth (4th) among ten institutions highly affected by corruption in Ghana,” the CDD has been told. As the Standard once observed, “these revelations should be worrying to all Ghanaians and ought to be redressed.” The Standard agrees with the Global Corruption Report that a corrupt judiciary erodes the international community’s ability to prosecute transnational crime and inhibits yes, access to justice and redress for human rights violations.





My considered observation is that these pious cries had long been made before the rather “(un)guided” remarks of the Chairman of the ruling NDC- Dr Kwabena Agyei, against the Judiciary Service of Ghana. According to the World Bank (2004) Governance Profile on Ghana, majority of respondents (40 percent) believed the judiciary to be ‘somewhat’ corrupt followed by 39 percent who believed it to be ‘largely or completely’ corrupt. Among 55 clerks and registrars interviewed by the GII in 2005 in Accra and Tema, 54.5% said there have been instances where persons have attempted to influence or interfere with their exercise of their official functions. Admittedly, 45.5% of that same number said that they honestly could not remember ever having been influenced or interfered and/or denied ever having to be influenced in the discharge of their official duties.





However, in the Kumasi Metropolis, out of 67 members of the judicial service interviewed, 56.7% stated that there have been instances where persons have attempted to influence or interfere with the exercise of their judicial function with 43.3% responding in the negative and could not recollect. In my judgement, if 50% plus one vote is the true and honest reflection of the Ghanaian’s endorsement for one to be a president or a parliamentarian in an electioneering contest in our republic, then we need to take these revelations very, very serious. As The Standard forcefully stated, judicial corruption allows criminals to go unpunished, destroys effective governance and democratic participation while the victims and accused are denied of the basic human rights to fair and impartial trial. The Standard believes that the issue of (judicial) corruption however, should not be confined to one ((NDC/NPP??)) segment alone, it should be all-embracing.





III. NDC And The Forces Of Injustices

By the dictates of Article 127(3) of the 1992 Constitution, a Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power. Sub-section (2) states that Neither the President nor any person acting under the authority of the President or Parliament or any other person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts…..





The NDC National Chairman Dr Kwabena Agyei stated at press conference that people in the judiciary can make a very good case look very bad. “If the judiciary is bias, if the judiciary has made its mind in one direction, not even Jesus Christ who appointed as the Attorney General can change things. We will clean it if they don’t take steps to clean it. We will clean it and let everybody everywhere blames us for interfering in the judiciary and we will take them on…. that one at the right time, you will see how we clean it. There are many ways to kill a cat," he added.





Having pondered over these constitutional provisions as against Dr Kwabena Agyei’s “many ways to kill a cat", I am tempted to imply President Mills’ faith in the independence of the judiciary as an exercise of laudable constitutional obligation rather than political rhetoric and gestures. As Lord Denning once observed, judges though appointed by politicians, once there and are ‘fit in body and mind’, they cannot be manipulated at their whims. So, neither an appointed Attorney-General nor a foot-soldier has the power to prescribe how justice should be dispensed in Ghana. Denning linked the Independence of the Judiciary with the appointment of judges and the removal of judges from office. He observed:





“I have endeavoured to show the important role of the Judges and the lawyers. It may bring them into conflict with those in authority in the state. That is why it is of the highest importance that the Judges should be independent and impartial. They stand between the individual and the state, protecting individual from any interference with his freedom which is not justified by law. In order to be independent and impartial, they must be secure in their office. They must be paid salaries which are adequate to their responsibilities and are such as to remove them from temptation to bribery and corruption. Whilst carrying out faithfully their duties according to law, they must not be subject to any penalty, threat, inducement or promise by those in power so as to influence their decisions. All this is fundamental to the rule of law. I trust that it is contained in every Constitution, in express words or by implication. I trust that all peoples everywhere will uphold it.” So judicial independence is linked with competences?





IV. Judicial Cleansing Yes! But on Whose Terms?





Yes. Chief Justice Acquah observed in November 2005 that the main duty of a judge was to deliver a reasoned opinion on cases and applications brought before him/her, stating that "if from such an exercise it becomes clear that an applicant has not got the quality of expression and reasoning expected of a judge of the grade the applicant (judge) seeks, then there is no point in appointing or promoting the applicant to that grade". These remarks were made in the context that some judges do not write their own judgements and as a result, judgements presented by judges would no longer form the basis for their promotion. On the criticisms of judges, the Chief Justice warned that criticisms which distorted the context of judicial decisions had the tendency to damage the image and integrity of the judiciary."Personal attacks, criticisms laden with political threat, criticisms that misrepresent and distort the nature and context of judicial decisions and assigning of blame to judges for the ills of society damage the integrity of the judiciary and threaten the doctrine of judicial independence," Justice Acquah said.

It is against this backdrop that then main opposition party- NDC, probably turned itself not only into what appeared to be intelligence and evidence gathering outfit but also, judicial institution by default, promising its followers and sympathizers, economic and social justice that it has ((had)) unfortunately, little or no power to influence or dispense? Yes, Justice Acquah urges judges not only to be daunted by criticisms but rather be emboldened to correct their own mistakes, observing that corruption in Ghana is a major national problem and that the TI rating of Ghana should not be brushed aside as merely speculative. Yet, the fundamental constitutional principle as inspired by John Locke (4) assumes that the individual and in our present case- ruling NDC can do anything but that which is forbidden by law, and the State may indeed do nothing but that which is authorized by law?





True. After decades of quasi military-cum-civilian dictatorships, the Kufuor-led NPP administration assumed office on 07 January 2000 with high expectations, goodwill and massive solidarity from vast majority of the Ghanaian, who dreamt that a speedy and cautious constitutional turn-round would be his undisputed legacy. Many the Ghanaian had probably, expected the NPP to decongest case dockets, improve and consolidate case-law information, enhance quality justice delivery that is timely and efficient to erode the rather unfortunate perception of the judiciary. But like Rawlings-led NDC before it, persistent institutional shortcomings and procedural delays, became the order of the era. The deaths of Ya Na, Mobila and the missing of a docket involving a case totalling millions of cedis in an Attorney-General’s office, not forgetting perceived mal-organisation of Ghana’s 50th birthday anniversary, raised many eye-brows against the judiciary.





Besides these were some of the following Transparency International’s (TI) footprints by which The Catholic Standard endorses to strengthen judicial independence and fight judicial corruption in Ghana:* an independent judicial appointments body to ensure objective and transparent appointments of Judges.* Judicial appointments based on merit, competence and integrity. If this is yes, then logically, one might rightly ask: how long can Ghana wait for these long overdue problems, to be resolved? While this must be relevant consideration of any government, legally, I am at pains in allowing the ruling NDC be to be a judge in its own cause, at least, not in these State matters. Yet, in a country where judges and case dockets could mysteriously go missing, it might be unfair to history and probably, justice, to believe that Ghana does not need a judiciary or legal profession that radiates high standards of integrity and professionalism.





CONCLUSION





Having said, I dare say that if I were President Mills’ legal or policy adviser, I would have suggested the following: build more law schools, courts, intensify non-partisan civic education on the rule of law and how the courts might develop their reasoning in a contested case, educate party foot-soldiers on how to engage internal legal debate to decide the merits of a case before bringing it to law courts. In this way, the “different ways of killing a cat”, misconstrued with emotions and passions, might have been positively, achieved.





Credit JusticeGhana.com