Who judges the judges as democracy rots slowly?

“Democracy rots slowly. Sometimes its decay is perfectly legal, helped along by legislatures and embraced by the courts. It happens when elected officials deliberately tilt the game to their own advantage.”

The human being is one heck of a judging machine. The eyes, the nose, the skin, the tongue and their master organ, the brain, are in constant judging, 24/7, from birth to death. We judge to stay alive, but that is nature’s or evolution’s package to help our survival.

And when we have survived, we come up with our own rules to judge us along. Democracy, over the millennia, has come to be accepted by many as the most acceptable yardstick, with its in-built control mechanisms of the executive, legislature and judiciary. Whereas the executive and legislature subject themselves to time-limited tenures through elections, members of the judiciary, to be precise, judges, enjoy protected tenures till retirement of the individual judge as established by law. Society lavishes judges with all manner of goodies, privileges, security and more, which the those not so privileged can only drool at. It is not because they are any more intelligent than the rest of us, but it is so that they will not stray from the straight and narrow in the discharge of their duties. “My lord”, “your honour”, “your lordship” are exalted titles reserved only for judges. And why not? After all, they are expected to dispense justice – one of the most sacred attributes of the human race…

The second part of my heading and first paragraph of this commentary, are borrowed from an article in the Guardian, and captures the kind of angst I have been going through since January 7 2017. Another writer, obviously having had Donald Trump, the outgoing US president up to his neck, without mincing words, describes the US president as a buffoon. Quite a strong one there! I share in the writer’s frustration, because it reminds me of my own Ghanaian context: The 4 years of Nana Addo-Dankwa Akufo-Addo.

I wonder: What artistic license can I also employ to best describe my attitude to Nana Addo-Dankwa Akufo-Addo in his role in my country’s democracy? A buffoon, he definitely is not! What comes to mind immediately is a three-letter word: A Con? It kind of, catches the idea of a decaying entity, democracy in this case. You know, the proverb that talks about the decay of a fish starting from the head. The tenure of Mr. Akufo-Addo in the executive office has seen a collusion between the executive and judiciary that makes nonsense of the principle of the separation of powers, with the legislature (majority) thrown in for good measure. This is the kind of collusion the writer has flagged as helping the rot and decay of democracy to advance.

With the con that our democracy has become, the judiciary seems to have allowed itself to be taken along down the road of infamy. I have had my own personal run in with this particular institution and so I know what I am talking about. By the way, I went in for contempt not criminal libel as often perceived. I was not pardoned by any president and definitely not by President Kufuor as some mischief makers have been bandying about. It was one case, in my judgement that did not end in justice – or because I am not a judge, I am not entitled to pass judgement? I have since moved on, and actually now able to laugh at the two elderly judges who pressed for my “pornishment”. As I was to discover later, they had been promised seats on the supreme court. They have since died and the man under whose tenure they felt I should be “pornished” also died late last year, and still waiting to be interred…

As you can imagine therefore, judges are of much interest to me. Recently, a judge gave a relation of mine what I and many others thought was a very excessive sentence exercising his political power and not judicial discretion. You see, judges can do that, because we have given them the authourity to judge and sentence. Not only that, we have also given them wide privileges and rights to insulate and protect themselves in the discharge of their duties. All of that because, we want them to rise above the rest of us and resist the temptation of personal greed, political pressure and business conflicts of interests – in other words eschew corruption. And so it came to pass that today judges are among the most derided, the most distrusted and most untrustworthy arbiters, because some of them have stumbled from the straight and narrow. They will not recuse themselves from cases that are clearly conflicts of interest, they allow partisan politics to colour and sway their decisions, etc.

The words “These judges” I keep hearing a lot of the time as the heartbreaking laments by people to express regret about a noble institution that finds pandering to partisan politics more noble than fairness and (natural) justice. They will inspire fear, but respect, I am not sure.

We all need judging as and when necessary but who judges the judges? A class of people that are more in need of judgement than the rest of us lesser mortals especially when it comes to sustaining our democracy. “Democracy rots slowly. Sometimes its decay is perfectly legal, helped along by legislatures and embraced by the courts.” Ghana has not been immune from this rot and decay as events have been unfolding in this our 4th Republic! It’s now so glaring that people are able to predict accurately the outcomes of certain particular cases that are placed before our courts. I must confess, I was one of the people who had argued against sending a petition on Election 2020 to the SC, but after a while, I said, what the hell, it’s our democracy after all, let us rally to its defence, and where else but in court?! Very depressing for my pessimism and the same time very enervating for rallying to the side of our democracy.

All is not lost, though. Looking down south out of the ECOWAS sub-region to Malawi, judges of the constitutional court of this very poor country, did the needful and are now the toast of the civilised world. To those five judges of Malawi’s constitutional court, it is with pride and respect that I join Chatham House in saying Bravo, Me Lords!