The Perils of Access to Justice in Ghana

Ghana’s Justice System Examined- A Comparative Study of the Requirements of A Good Legal System and Access to Justice in Australia, Ghana and the UK

The OmanbaPa Research Group

MEMO: A GOOD LEGAL SYSTEM (PART TWO)

Importance of Judicial System

Judicial system of a country ensures that its citizens are able to live safely and in a civilized manner. Every country has its own judiciary system but the crux remains the same. Judicial system brings the culprit to the punishment s/he deserves. The level of punishment is measured by the judicial system. Judicial system has been with humanity for decades and its preoccupations remain indeed fairness and efficiency. In the words of justicediary.com, earlier judicial system was run to aid few people who held high posts but modern system defines the status of every one to be the same who is appearing in the court. Thus a judicial system work in steps and the first step is the lower court or the state court. It is here that most cases are judged and if the accused is not satisfied with the judgment then he can appeal to the highest court of the land. But s/he should have ample evidence to support his/her innocence. In Australia [with some legal semblance to the Republic of Ghana], the last step after the federal court is Supreme Court which has the final say in the judicial system.

How judicial system help

Research has shown that a fair judicial system helps the people to live free and without fear as they know that if they have any legal issues then their pleas will be listened in the court without any partiality and the judgment will be a just one. Judicial system is also important to keep the crime rate in check by announcing harsh punishments to the hard core criminals. It also helps in settling a great number of issues that arise from time to time in our daily lives. In Australia as with the Ghanaian system, there are certain issues regarding divorce, inheritance of the property, child custody and as all these issues arise due to difference in human natures the judicial system tries to settle them out of the court so that the image of the contesting parties is not tarnished in the public. It has been acknowledged that the sensitivity shown by the judicial system in dealing with these issues is commendable. The judiciary consists of the Supreme Court or constitutional court and all the lower courts involved. The process of changing and amending laws is called a judicial review.

The judicial system will evaluate the law and assess its applicability of the law to facts and issues in comparison with the higher norms including primary legislation, the constitution and the international law. Therefore, if stated in the constitution, the judiciary has the power to intervene in the making of economic policies and also, encourage public interest lawsuit. The law making process is primarily governed by the legislative body and the judiciary and these two bodies, as the judiciary.com argues, must work hand-in-hand so that the laws that will be approved will be for the welfare of the country’s people. The law then is passed on to the executive body to reinforce it. When we talk of a legal system and here in the Ghanaian context, we are discussing a system, procedure or process of interpreting and enforcing the laws. For example, a procedure or process for obtaining bail – thus a legal system that allows an accused person- to be temporarily released from custody- usually on condition that a sum of money guarantees the Defendant’s appearance at trial.

The English Legal System

We cannot discuss the Ghanaian and indeed the Australian Legal systems without reference to the English system. Since 1189, English law has been described as a common law rather than a civil law system because there has been no major codification of the law, and judicial precedents are said to be binding as opposed to persuasive. This they argue may have been due to the Norman conquest of England, which introduced a number of legal concepts and institutions from Norman law into the English system. The historical background to this is that in the early centuries of English common law, the justices and judges were responsible for adapting the Writ system to meet everyday needs- applying what is described as a mixture of precedent and common sense to build up a body of internally consistent law, e.g. the Law Merchant began in the Pie-Powder Courts or "dusty feet", meaning- ad hoc marketplace courts. As Parliament strove in strength, legislation gradually overtook judicial law making so that, today, English judges, it is said, are only able to innovate in certain very narrowly defined areas. The starting-point of most judges in a case is precedent- discussed below:

Precedent

Findings: One of the major problems in the early centuries was to produce a system that was certain in its operation and predictable in its outcomes. Too many judges, it is said, were either partial or incompetent, acquiring their positions only by virtue of their rank in society. Thus, a standardised procedure slowly emerged, based on a system termed as “stare decisis”- meaning: “let the decision stand”. The crux of the doctrine of precedent requires that a similar case to be adjudicated in a like manner falls under the principle of stare decisis. Thus, the ratio decidendi of each case will bind future cases on the same generic set of facts both horizontally and vertically in the court structure.

The interpretation here is that the highest appellate court in the UK is the Supreme Court of the United Kingdom and its decisions are binding on every other court in the hierarchy which are obliged to apply its rulings as the law of the land. For example, the Court of Appeal binds the lower courts. The same is true of the Republic of Ghana. Like many other Commonwealth nations such as Australia and Ghana, the U K exported the English legal system during its rule to these countries, and so many aspects of our system have persisted even decades after the British’s “ultimatum departure”.

Of course, subject, to statutory modification and judicial revision to match Ghana’s conditions- legally, we continue to recognize a link to English law- and decisions from the English law reports, continue to be cited from time to time as persuasive authority in present day judicial opinions. Our criminal and civil procedures are littered with English principles, legalese and authorities. Here, I consider in passing the English criminal law which derives its main principles from the common law- the main elements of a crime being the actus reus (doing something which is criminally prohibited) and a mens rea- having the requisite criminal state of mind, usually intention or being recklessness.

As in Ghana, to be convicted of a crime in the UK, a prosecutor must show that a person has caused the offensive conduct, or that the culprit had some pre-existing duty to take steps to avoid a criminal consequence. The types of different crimes range from those celebrated ones like manslaughter, murder, theft and robbery and not least, to a plethora of regulatory and statutory offences. It is estimated that in the UK, there are 3,500 classes of criminal offence. But certain defences may exist to crimes, which include self-defence, intention, necessity, duress, and in the case of a murder charge, under the Homicide Act 1957, diminished responsibility, provocation and, in very rare cases, survival of a suicide pact. It has often been suggested that England should codify its criminal law in an English Criminal Code, but there has been no overwhelming support for this in the past.

Access to Justice in Ghana

A scant mind-mapping around the courts in Accra and the countryside reveals that many Ghanaians do not know what is meant by legal aid. They cannot imagine how government could be supportive in this. In a speech to the Speech to the Law Society of BC Benchers- Mayland McKimm, Chair of the Legal Services Society reflects on the problems of access to justice as the low-income people in British Columbia see it. The central question of the speech is – what prevents poor [Ghanaians] people from getting access to justice? McKimm is quoted to have these easy answers – it’s not the lack of lawyers or court fees. Drawing on results of series of workshops with stakeholders he states:

“The number one barrier is actually a cluster of obstacles that includes poverty, transportation, and child care. For many people, particularly in remote communities, the biggest barrier to accessing justice is simply getting to the courthouse or even having the means of getting to the courthouse. Participants also noted that their clients do not know what legal services are available and that they fear lawyers and the legal process.”

Another lesson from the study is that from the perspective of the people access to justice has two components:

“…simply making the legal system more accessible or user friendly”

“…helping people understand how the legal system can help them”

McKimm offers two practical initiatives intended to improve access to justice which I think, is relevant to the Ghanaian. First, he advocates for integration of legal services with “existing, trusted social services.” An example is the training of a health worker about child protection law. Second, McKimm suggests to work towards reduction of the costs of large criminal cases. Read here the speech of Mayland McKimm http://ma2j.wordpress.com/2011/03/19/barriers-to-access-to-justice-what-the-people-want/. Access to justice has, thus, two dimensions: procedural access (having a fair hearing before a tribunal) and also substantive justice (to receive a fair and just remedy for a violation of one’s rights).

It also refers not only to the courts, but also to civil and administrative processes such as immigration review or state compensation funds. Further, protection of rights must continue through all stages of the legal process, from the time of reporting a crime to the police, to following the grant of a remedy by the court to make certain that it is enforced. (http://www.gaatw.org/atj/)

Legal aid and representation

Australian governments recognise that access to legal representation is an important element in ensuring justice for all. They provide some legal aid for people assessed as being least able to afford to cover the costs of a court appearance. The federal Attorney-General’s Department is responsible for administering funding for the provision of legal aid services for federal law matters through legal aid commissions, administering a Community Legal Services Program and managing legal aid services for Indigenous Australians. State and territory governments fund legal aid services for cases being tried under state and territory law. There are eight independent legal aid commissions, one in each of the states and territories, with a total budget of around $400 million. Funding is provided by the federal government and state and territory governments. Other revenue comes from interest earnings, contributions and fees.

Investigating complaints and reviewing administrative decisions

Specific agencies also exist to protect the legal and administrative rights of all people in Australia, including the Commonwealth Ombudsman, the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal and the Human Rights and Equal Opportunity Commission.

The position of Commonwealth Ombudsman was created in 1977 to consider and investigate complaints from people who believe they have been treated unfairly or unreasonably by a federal government department or agency. The ombudsman cannot override decisions made by agencies or issue directions to agency staff. Instead, the ombudsman resolves disputes through consultation and negotiation and, if necessary, by making formal recommendations to the most senior levels of government.

There is also an ombudsman in Western Australia (appointed in 1971), Victoria (1972), Queensland (1974) and New South Wales (1974). The Commonwealth Ombudsman acts as the ombudsman for the Australian Capital Territory. Two separate tribunals provide independent and final merits reviews of decisions made about visas to enter or stay in Australia. The Migration Review Tribunal reviews decisions made about general visas (including visitor, student, partner, family, business and skilled). The Refugee Review Tribunal deals with decisions regarding protection (refugee) visas.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal began operations in July 1976 and is part of the federal Attorney-General’s portfolio. It is an independent body that conducts merits reviews of a wide range of administrative decisions made by other tribunals and by federal government ministers, officials and authorities. The Administrative Appeals Tribunal has jurisdiction to review decisions made under more than 400 separate Acts and legislative instruments.

Human Rights and Equal Opportunity Commission

The Human Rights and Equal Opportunity Commission was established in 1986 as an independent statutory organisation reporting to the federal parliament through the Attorney-General. Its goals are to foster understanding about, and protection of, human rights in Australia and to address human rights concerns. Its functions include resolving complaints of discrimination or breaches of human rights under federal law and holding public inquiries into human rights issues of national importance.

Law enforcement and police

The police in Australia are responsible for keeping peace and order in the community and bringing before the court people they believe have broken the law. Although police officers may arrest people and give evidence in court, they do not decide whether or not people are guilty of crimes. This is the responsibility of the courts. Australia has a national police force- the Australian Federal Police- that investigates offences against federal laws, including drug trafficking, illegal immigration, crimes against national security and crimes against the environment. All states of Australia and the Northern Territory have their own police forces that deal with crimes under state or territory laws. Policing in the Australian Capital Territory is handled by the Australian Federal Police.

Australian Crime Commission

The Australian Crime Commission was established in January 2003 (replacing the National Crime Authority) as an independent statutory body to work nationally with federal, state and territory agencies, principally to counter serious and organised crime. It brings together all arms of Australian intelligence gathering and law enforcement to coordinate the fight against major crime. On International legal cooperation and treaties, Australia seeks to promote international cooperation in the legal sector. The federal government established the International Legal Services Advisory Council in 1990 to promote the globalisation of legal services. The council seeks among others, to promote understanding of different countries’ laws, legal systems and legal institutions, particularly in the areas of trade, business and international law. It also contributes to the development of legal institutions, education and training, and legal interchanges and contacts. Combating transnational crime and terrorism is also a high priority. International cooperation ensures that criminals cannot evade justice simply by crossing borders ( http://www.dfat.gov.au/facts/legal_system.html).

The Perils in Ghana

Apart from the legal aid or help dilemmas, the greatest perils of access to justice in Ghana are lack of coordination, timely communication among the interested parties to litigation. In majority of cases, people summoned for court hearing come from faraway to court centres only to be told at the last-hour that his/her case docket cannot be traced or the trial judge is bereaved or indisposed. Some lawyers, including clients, also fail to attend to court without reasonable excuse, thereby, prompting unnecessary adjournments. Others parade on the corridors of justice in search of their case venues. Although they have been told to appear, their names could not be found on the case list pasted on the notice board. A lawyer friend concedes that this legal traffic-jam could be resolved if there were to be co-ordination between the courts’ helpdesks and the practicing firms but how long will this be?

Yes- the Law Society UK’s Access to Justice Review report published in 2010 reveals that improving access to justice should not be the sole responsibility of the legal profession because it is the fundamental basis for the rule of law and civilised society. An area where Ghanaian policy makers could make an important contribution is, for example, through developing people’s legal literacy and capability through public legal education so that they understand their legal rights and responsibilities and are better equipped [through brochures and leaflets] to anticipate, and avoid, legal difficulties. The courts’ current filing system [piled folders], is the greatest challenge to justice.

Researched and Compiled By Asante Fordjour for The OmanbaPa Research Group

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