Thinking Aloud About Judicial Corruption in Ghana: The Search for Remedy.

Dennis Adjei-Brenyah. Esq

Several months, ago I published an article designed to contribute to the
development of Alternative Dispute Resolution in Ghana. (See Reflections on
Ghana's Search for Alternative Dispute Resolution, Ghana Web, March 2010) Among
the several issues I discussed in that piece on ADR was the issue of judicial
corruption as a deleterious force in the overall development of a comprehensive
and productive ADR system.

In fact, I barely and only tangentially touched on the subject of judicial
corruption; as central and as important as it is in any meaningful discussion of
administration of justice. But, I did promise in that article that I would visit
that issue and engage myself in another “reflections" dedicated to that
multi-headed dragon that must be slain: judicial corruption. That opportunity
came when I read the Chief Justice's comments and views on the issue of judicial
corruption on the web (see Ghanaweb.com, News, Thursday December 9 2010)
Cleanliness in the Administration of Justice

We begin with the proposition that there is absolutely no greater need in the
administration of justice than a wholesome, clean, knowledgeable and politically
independent judiciary. The central tenet of our national political creed is
founded upon that expectation – the defining aspiration of our country – Freedom
and Justice. Our democracy and all the institutions that provide the
engine-thrust of its development and, indeed, our economic development, are all
driven and sustained by an honest and fearless judiciary.

It is against this background that our Chief Justice’s comments and views on the
subject matter of judicial corruption triggered the fulfillment of my promised
present engagement: to “reflect” on the weighty issue of judicial corruption.
The Chief Justice’s Direct and Frontal attack on Judicial Corruption.
The views and comments expressed by the Chief Justice constituted the first
really frontal attack on the subject matter of judicial corruption from within
the Judiciary-- and from the highest authority for that matter. For that, we
should all be very grateful. I submit, we are in good hands.
The Chief Justice was addressing a forum on “Accessing Justice: The citizen’s
participation in the Implementation of Justice.” And on that theme, the Chief
Justice is quoted to have stated the following;

“Each time a judge is bribed, an injustice is born, each time a judge renders a
decision tainted by corruption or other form of impropriety, the judiciary as
the most sacred secular institution of the land is undermined, each time a
citizen suffers an injustice the nation’s motto of ‘Freedom and Justice’ is
anguished and injured..."

Therein lies the critical and piercing recognition of the enormous and weighty
damage that corruption does and is doing to our country in general and to that
“sacred” institution in particular.

Having thus identified the apparent operational mechanics of corruption as she
sees it, the Chief Justice observed that:
“The Ghanaian judiciary remained determined to build in its strength and
success to broaden the scale of public confidence in the institution through
enhanced service delivery and corruption free administration of justice.”
The Chief's Views Subject to Review and Reconsideration: Healing Comes from
Within

According to the Chief Justice, “Citizens must refrain from the common practice
of using extra legal methods to influence judges to render decisions in their
favor. “ The Chief also stated that “some litigants undoubtedly attempt to
bribe judges and other judicial personnel to rule in their favor.” The Chief
Justice also stated that the “menace of corruption and the perception of its
widespread prevalence threatened the value of transparency, equal justice and
the perception of judicial equity.” The Chief Justice is further reported to
have described the situation as “ungodly”, “criminal” and “unethical.”
As much as I appreciate the sentiments expressed by the Chief Justice of the
Republic of Ghana in her rather frontal recognition of the problem of corruption
in the judiciary, I would humbly dissent from her fundamental characterization
of the problem and, by extension and definition, her recommended remedy to the
challenges we face in the fight to eradicate judicial corruption.

My dissenting opinion is anchored on the following “facts.” First, whilst
correctly recognizing the “menace of corruption” and the perception of its
"widespread prevalence” this “ungodly,” “criminal” and “unethical conduct” do
not emanate from the public or the citizens but, in fact from within the
judiciary. In other words, it is not the “perverse” litigant seeking “victory”
by hook or crook who must be seen as the source of the corruption, it is the
judge/magistrate with ‘agents’” contacting litigants and collecting funds for
that judge or magistrate.
Let me give you an analogy. The teams contesting in a football game all want to
win. (Assuming all nature is in its true and proper balance) Thus, no matter how
“rough” they play against the rules of the game, if the referee of the football
match is fair and “godly” and calls the game as he sees it, consistent with the
rules, the results of the game will be good and accepted, no matter how perverse
and rough the teams play. If, on the other hand, the referee is as "ungodly" as
they come, and corrupt, and skews the calling of the game, to suit and reflect
his prior commitments, no matter how well the players play, the result will
stink-- and be objectionable. The referee controls the game for good or ill.
Thus, while the Chief Justice directs her call to action to the
citizen-litigants not to bribe judges to rule for them, let it be known that the
moral, ethical and legal decrees command and demand that judges should not be
accepting any form of inducements to begin with; to pervert the cause and the
course of justice. The problem of corruption is within not without. Cleanliness
must come from within.

In my piece on ADR, I adverted to the prevalent recognition of judicial
corruption as an impediment to a successful transition to an ADR methodology.
The Chief Justice has now identified corruption as prevalent among the
citizens. The cryptic statement: “Aha dea, wa sem ede a yeto; enye de soa
yeto,” contains in itself the seed of a helpful meaning and message. In order
to “buy,” somebody must sell. You cannot buy what is not for sale. You cannot
corrupt what is incorruptible. Period. If a litigant, however “wholesome”
learns, perhaps from her lawyer, that Judge "X" can be bought and therefore the
decision can be bought,(and he/she has the means to buy the decision) several
layers of perversity have been straddled already. Judge “X”, through the agency
of lawyer “Y” has already spread the stink of corruption. Law has been
undermined. Justice betrayed. Judge X perversely enriched. Judicial
administration impoverished and harmed. Such are the glaring experiences that
litigants are exposed to. To meaningfully combat this evil, it is manifestly not
enough to call on the citizens not to seek “good” rulings and decisions from
judges by way of “extra-legal” inducements.
The second reason I dissent from the views expressed by the Chief Justice is
that on a critical evaluation, (of those views) she in fact, unfairly indicts
the wrong persons – the public (the citizens) with being the source- and cause-
of the corruption in the judiciary. I have argued the reverse and I submit with
all humility that the laudable position taken by the Chief that “the Ghanaian
Judiciary remained determined to build on its strength and success to broaden
the scale of public confidence in the institution…” is not helped at all by
“accusing” or indicting the citizens of this country of corruption in the
judiciary.
Building on the Strength and Success of the Judiciary
Clearly, there is some measure of demonstrable strength in our judiciary. There
is also measurable success within the institution. We can be justifiably proud
of that. In fact, the Chief Justice’s frontal sword swinging attack on the
issue of corruption is itself an affirmative indication of the self-confident
strength that attaches to our judiciary. But recognition of some measurable
internal strength and success would not absolve the institution from the
cancerous attack of corruption that saps that strength. Yes, it may be difficult
to “catch” them at it, but any stench poisons all of the air around the
institution. That is where we must direct any antiseptic weapons we may have.
The Remedy: A long way to go
Once we identify the strength and success of this sacred institution, we can
certainly reconstruct and renew our direction and for our greater good. There
are no simple answers. I suggest the following seven approaches:
1, I have already advocated that there must be a renewal and
strengthening of the core subjects of study at Ghana Law School which must
included Ethics and Legal Responsibility or some of the basic formulation of
that necessary teaching: strong ethical component in the teaching and practice
of law.
2 A strengthening of the values of ethics and judicial responsibility at
the judicial College or wherever Judges learn to reinforce their valued
attachment for law and justice and ethics.
3. As part of that allegiance to judicial ethics, judges and magistrates
shall effective immediately cease to entertain any communication of any
description with any litigant or their lawyers unless the opposing party and
their counsel are present. This must be an inflexible rule.
4. Judges/Magistrates must enforce their Practice Rules to reflect the
procedures in place – be it Criminal or Civil.
5. Judges must be disciplined by the governing body to reflect the degree of
proven misconduct. And let the public know.

6. Continue to expand the reach of ADR; Alternative Dispute Resolution in all
areas of conflict to minimize the judicial overload.
7. Police Corruption. A concerted and determined national policy and
practical effort directed towards the eradication of police corruption; a
phenomenon far more widespread and perhaps more inimical than the subject under
discussion. Police corruption is in some measure, associated or linked with
judicial corruption. And yet, it is a separate and independent source of harm
to the very essence of our national security. I submit that a successful attack
on police corruption will have direct productive echoes in judicial
administration.

Concluding Thoughts
The central thrust of my thesis here is this: Our people in general have respect
for the judiciary as an institution. They do respect judges. But the public
also know and can identify easily those they perceive to be "not good"; those
whose "ungodly" "criminal" and "unethical" conduct subject us all to shame. But
the respect of the Institution itself is well grounded. We can build on that. We
can draw the sword as demonstrated by the Chief Justice but we must face the
"enemy" in the right direction. We can repel and put to flight any ill-advised
and unnecessary intrusions from whatever source. We strengthen the institution
by this internal recognition and cleaning.
Our Constitution defines the power streams of our governance and sculptures the
reach and interplay of those powers. Judicial power resides in the judiciary.
It is as classic and as fundamental as that. What sustains and propels that
defined power is the engine-thrust emanating from the people -- the quiet but
fierce force of principled democracy. It is founded on the Rule of Law. That is
the true balm of healing for the sores we find: the internally corroding
elements that would destroy the independence of the judiciary. We can overcome
that. The task is within. The challenge is our call.



* Dennis Adjei-Brenyah Esq is an attorney in New York. He has taught Law in
Nigeria and has practiced in Ghana. He is a product of University of Ghana,
Legon and Ghana Law School