By Dr. Michael J.K. Bokor
August 19, 2010
The hubbub caused by Dr. Kwabena Adjei’s pronouncements (which his critics see as threatening the Judiciary) raises an important issue that we seem not to have pondered so far in our politics. Of the three arms of government, our Judiciary is the weakest and the most vulnerable, which is unfortunate. And it is because its vulnerability that anybody at all can condemn (or threaten) it without fear of any repercussion. Dr. Adjei’s example is just one clear instance. That is the most important revelation that I have found in the ongoing exchanges. I will explain why this vulnerability of the Judiciary doesn’t only endanger itself but also our democracy and suggest how to reverse the trend for our own good.
If we want our democracy to gain roots, then, we have to work hard to put the Judiciary on its feet just as the Executive and the Legislative arms of government are. We can do so without necessarily taking entrenched positions as followers of rival political parties and butting heads for cheap political points. A strong and independent Judiciary should serve our purposes, regardless of where our political loyalty lies. Justice delivery shouldn’t be tied to political allegiance. Are we prepared to put aside our allegiance to the NDC, NPP, CPP, PNC, GCPP, or whatever to help the Judiciary stand on its feet? I wonder.
The swing of public reaction to the NDC Chairman’s utterances suggests that those reacting to the issue have already tainted their opinions with their political sentiments. Partisan political interests have already taken the better part of the situation. Those most vehement in condemning Dr. Adjei are in the opposition NPP; and they are registering their political interests so as to win goodwill from the electorate as the “Defenders of the Judiciary.” On its own, the NDC has rallied round its Chairman and is doing damage control. The government is in a tight corner, fencing off criticism and repositioning itself to affirm its support for the Judiciary. Institutions that claim to be “politically neutral” have also registered their protest. In sum, the stream of public reaction is itself heavily politicized. With this muddled stance on an important development concerning the Judiciary, I wonder how the problem can be solved dispassionately to strengthen the Judiciary for it to serve the society without fear or favour.
Unfortunately, this partisan political swing won’t solve the problem. Positions on the issue are already entrenched. At one level, I can understand the spirit behind the vehement protestation by the NPP heavyweights. After all, most of them are lawyers whose professional fate is tied to that of the Judiciary. They are justified in vigorously defending the bastion of their careers (source of income). An unstable Judiciary threatens their job security. Thus, it is commonsensical for them to do all they are doing now to protect the Judiciary against any encroachment. Any talk of protecting the Judiciary to administer justice impartially is questionable. Our Judiciary itself knows that it is not impartial. This is part of the problem because the NPP functionaries appear to be reacting this way only under an NDC government when they didn’t demonstrate the same spirit under Kufuor whose government also tampered with the Judiciary.
At the highest level, it is clear that as the most vulnerable and the weakest of the three arms of government, the Judiciary needs that much show of sympathy and support to save itself from going under. If it continues to be manipulated anyhow by the government of the day, it will deteriorate all the more.
Unlike the Judiciary, both the Executive and Legislative arms of government are strong enough to ward off any intimidation or threat (as is being inferred from Dr. Adjei’s utterances). Take the Legislature, for instance. With all the powers that the Constitution has conferred on it (which the MPs jealously guard against encroachment or erosion), we can confirm that it is the strongest arm of government. The only thing that can threaten its authority and stability may come from within (that is, if its own members resort to negative acts such as boycotts or chronic absenteeism to stall deliberations). Any thought of external factors such as a military coup d’état to dissolve Parliament is out-of-the-way. Ghanaians are determined to protect their constitutional democratic system of governance. In terms of funding and logistics, the executive dare not starve it. So, Parliament can be said to be secure. Its Privileges Committee performs its hatchet job against anybody whose criticism is deemed by MPs as inimical to their stature.
Although regarded as strong, the Executive arm of government is susceptible to intimidation, jolting, and destabilization, especially as we are seeing under the Atta Mills-led government, which is continuously being verbally attacked and threatened by both its opponents and aggrieved NDC supporters. But the enormous powers that the President wields make it difficult for him to be dislodged unless through a military putsch or an electoral defeat. Mere threats won’t turn his crank too.
On the contrary, our Judiciary is giddy. Numerous factors have conspired to sap its energy and place it at the beck and call of the Executive and the Legislature. It’s a sad reflection of the weaknesses that our Constitution hasn’t yet addressed. What is there to ensure the security of the Judiciary when it cannot but servilely look up to the Executive (for appointments/dismissals of high-ranking staff, funding, and logistic support) and Parliament (for goodwill to validate itself and legitimize its functions)? In this subservient state, how can the Judiciary insulate itself against encroachment? Its trump-card of “contempt of court” is a mere scarecrow that the big shots in the society don’t fear.
I have brought up these issues to suggest that the Judiciary is the weakest link in this chain of governmental business, which exposes it to the kind of pressure that these politicians are putting on it in the performance of its functions. In one way or the other, our politicians have infiltrated the Judiciary and poisoned it with their political sentiments and interests. It is no secret that the Judiciary does the bidding of the political establishment. After all, who wields the power to appoint or dismiss the Chief Justice from office? Who determines how much funding should be given the Judiciary or the quantum of logistics that should be procured for it? We know the Executive has the power to do so.
In effect, although there is a tacit understanding that the Judiciary is (or should be) independent, it is not so in reality. What the Judiciary needs most to gain and exercise that independence is not available and has to be begged for from the Executive, which holds the purse strings. The Judiciary cannot decide for itself how to construct its identity and function as such without recourse to the Executive. Everything revolves around money and logistic support, which the Executive controls. Parliament may attempt changing the situation but it will turn out to be a Herculean task that the MPs fear to take on.
In all honesty, we can say that the Judiciary is hamstrung. For it to free itself and to function from a position of strength—as the Legislature and the Executive do—goes beyond the kind of rhetorical show-of-support that these critics of Dr. Adjei are demonstrating. Constitutional provisions have to be clearly defined and enforced to secure the Judiciary against intrigues and double-crossing. The Constitution must actually free the Judiciary from the jaws of the Executive and the Legislature. It is only then that it can insulate itself against wanton encroachment by politicians.
There are good reasons why the Executive won’t let go the Judiciary to function as it should. As we can tell from the cases that the current government has lost so far, it is undeniable that the workings of the Judiciary affect the political fortunes of the Executive. Thus, the Executive (and the political party on whose mandate it is in office) will feel threatened to give the Judiciary a free rein. In this panic situation, pronouncements of the sort that Dr. Adjei has made will definitely emerge to further worsen matters.
Solving the problems that hinder the Judiciary from being truly independent and potent must begin from the right place. Constitutional provisions should be made to strengthen it at all levels, particularly in terms of human and material resources. The Judiciary must have a reliable source of funding. As I said in one of my previous articles, setting aside a specific percentage of the GDP for that purpose should be a good step toward insulating the Judiciary against arm-twisting by a hostile Executive. I am convinced that if there is a constitutional provision safeguarding the funding of the Judiciary, it can begin to reassert itself in the web of government machinery. A well-resourced Judiciary will resist interference and not knuckle under. It will be able to defend itself against intrusion and provide its own infrastructure to survive.
Another measure should focus on the procedures for appointing or dismissing the Chief Justice from office. As is done in other countries (e.g., the United States), any nominee for the position must be taken through rigorous vetting by the institutions of state that our Constitution mandates. If it is Parliament that should do so, the MPs must put aside their partisan political interests and ensure that they provide the best candidate as Chief Justice for the country. The nominee must stand tall above the others in the pecking order to merit nomination, in the first place. Partisan political considerations must not be allowed to contaminate the process. People must be given the opportunity to protest against any nominee who falls far short of standards, and the appointing authorities must listen to the voice of such protesters.
Then, in the performance of his/her duties, the Chief Justice must be transparent enough to instill discipline and confidence in the staff. The Judiciary must clean itself to present the kind of public image that will motivate Ghanaians to fight on its behalf. It means that political neutrality must be instilled in personnel and ethical standards of professionalism imbued and touted as the hallmark. As the Judiciary currently is, it is difficult to say that it is politically neutral or that it is devoid of the canker of bribery and corruption. Public perception of the Judiciary is not good and must change as the Judiciary takes the initiative to clean itself. If it does so, it will garner public support and make it difficult for anybody (especially aggrieved politicians) to threaten it.
Finally, it behooves all Ghanaians to exercise their civic responsibilities by keeping the Judiciary and all the others on their mettle. Apathy toward the workings of these institutions is one of the major problems that cause dereliction. We must not allow our partisan political interests to jeopardize the functions of the Judiciary. The justice delivery system must be insulated against all manipulation so that anybody who appears before the Law will be treated on the merit of his or her case. What we have now falls far below expectation. If we allow the politicians in the Executive and the Legislature to hijack the Judiciary and manipulate it for their own purposes, we will be doomed.
Let’s not consider Dr. Adjei’s pronouncements as completely infuriating and howl war cries for his crucifixion. He has given us a bitter pill to swallow—something crucial to the growth of our democracy—which we must take. As we continue to look for opportunities to strengthen the Judiciary and empower it to claim its independence and use it for our benefit, anything that sheds light on the problem must be carefully assessed instead of being dismissed outright as a nuisance. Dr. Adjei’s problem is ours too.