Akwaaba Chief Justice Georgina Wood: A brief note on challenges facing the Judiciary

I would like to add my congratulations to the many that have been sent to the new Chief Justice and to examine briefly some of the recognised or perceived problems facing the judiciary. I hope that under the leadership of the new Chief Justice and with the support of persons of goodwill and the Executive government in terms of resources, we will be able to see some progress in the resolution of the challenges facing the judiciary.

Over the last two decades, an unprecedented number of countries have undertaken significant judicial reforms. The late Chief Justice Acquah embarked upon a program of judicial reform. He sought to create a judiciary which in his words “is at the cutting edge of legal thinking and legal innovation in West Africa." He stressed the need for a system that is transparent, efficient and free of corruption. It is important that the reform process began by Justice Acquah be pursued with utmost vigour and without fear or favour. Despite the introduction of some reforms aimed at reducing corruption in the judiciary, there is still a widely held perception that the judiciary is corrupt. There are other challenges facing the judiciary. Firstly, “accountability” has become a significant issue in the context of the justice system. In many respects, accountability has always formed an important part of judicial independence. However, it appears a lot needs to be done in this context if we are to raise public confidence in the judiciary which appears to be at its lowest ebb. Attention should also be given to the morale of judges and attempts made at reducing the ever increasing workload and delays in the system. We need an effective and modern legal system which, in many respects, is inextricably linked to the economic and social development of the country. There is an arguable case that the cornerstone of a stable society is a judicial system that is seen to dispense, fair and impartial justice. We therefore need to approach reforms with an eye to improving access to justice for the poor and contributing to a stable and democratic society.

Judicial Independence

I have read commentaries on cases where the independence of the judiciary in Ghana has been questioned, the latest related to the imprisonment of a politician. It is inevitable that we might on occasions hear such statements especially when a person with allegiance to a party whether in Government or opposition is brought before the courts. In my opinion, such comments will cease to be credible if we have an effective, efficient judiciary worthy of public trust and confidence coupled with a legal profession that provides quality, ethical, accessible and cost-effective legal services to all Ghanaians and that is willing and able to answer the call to public service. At a very fundamental level, people need to know their individual rights will be upheld even against the most powerful in Ghanaian society. An independent judiciary with integrity can do this; apply the law fairly and dispassionately, without regard to the personalities or powers involved. A strong judiciary, with the power to review acts of Government, can protect the citizenry from unlawful acts of Government and hold government officials accountable for their graft, corruption, and abuse of power; and do so in a timely manner.

However, the fact that we want a judiciary that is independent does not mean that it is not accountable to anyone. In a democratic state, power lies with the people. The judiciary must concern itself with this fact. What is needed is a judiciary that upholds the law above everything else. The Judiciary must provide a good and consistent jurisprudence that enables Ghana to mould and develop its laws to the betterment of Ghanaian society.

Reducing corruption

Judicial corruption is not confined to judges but also involve corrupt lawyers, prosecutors and police who are all in a position to distort the course of justice.

In the judicial service itself, it occurs in the form of political interference in the judicial process by the legislative and executive branch of the state, bribery, interference from political or civil servants through nepotism, cronyism and illegal political decisions. Corrupt practices have adverse effect on trade and economic development and deny citizens impartial settlements of disputes with neighbours or authorities and every effort should be made to reduce it to zero.

Increase in public confidence

Public confidence in the judiciary is bolstered by the ethical conduct of Judges and their adherence to their oath or affirmation of office. This also relies on a community perception that in resolving disputes between parties, the judiciary reflect and act upon the basic and enduring values to which the community subscribe rather than the influence of some other agency, in particular, the policies of the Government of the day. Judicial credibility in the eyes of the public is enhanced when court processes and the decisions of the courts are transparent and fair. It is important that this is placed at the forefront of any reforms that are made.

Connection and communication with the community is a fundamental part of the process of judging in the context of the relevance of the decisions made by the courts. Communicating an understanding of the role and function of the courts to the community will assist in promoting public confidence in the judiciary and the justice system. This brings me to the issue of the media and judiciary as the media has a role in building public confidence in the judiciary. There is an increasing predilection among some sectors of the media to criticise judgments and individual judges, without fully understanding the role of the judiciary and what the judgments that are being criticised entail.

Media scrutiny of the justice system has the capacity to ensure that the judiciary retains its close links to the community. Freedom to communicate ideas and opinions is a fundamental right of every individual and I will urge the new Chief Justice to review the award huge damages against press houses and recommend legislative action by Parliament. Press houses must be punished if they are found guilty but the imposition of damages must not be used to silence constructive criticism. It is also important that the media is careful to only criticise judgments and not the person of the judge. Much of the criticism in the media is due to a misunderstanding or misconception of the sentencing processes and the comments of particular judges. The media houses in consultation with the judiciary can organise seminars and programs for education of their staff who report court cases. The courts should also establish their own media units that dispassionately explain the activities, processes and decisions of the courts to the public, as pertains in a number of developed countries.

Reducing delays and workload

The introduction of the fast track and commercial courts are commendable. Most Judicial reform programs are centred on the use of automated systems for case management and judicial research—which improve the efficiency and accountability of the judiciary, and contribute to the transparency of court operations. I hope it will be possible to carry out the automation to its logical conclusion. Automated systems cannot be implemented without appropriate automation equipment and this is where the Executive has to help by providing the resources. The recent announcement that the resources at the library of the Supreme Court of Ghana have been computerised is most welcome.

The conduct of judges and lawyers contribute to delay in delivering justice especially through the use of unnecessary adjournments. Adjournments are being granted on grounds which clearly defeat the purposes of the law and justice. Since justice delayed is justice denied, the Chief Justice must ensure that adjournments are not used as a tool for delaying justice by the courts or frustrating the activities of a party especially where the party has limited resources or is unrepresented.

The Supreme Court of Ghana consists of 13 judges. The US Supreme Court is made up of 9 judges. The High Court of Australia consists of 7 judges. In numerical terms, Ghana has more judges at its apex court than a number of western countries that have a more litigious culture and complex economies than Ghana. Of course, courts in the west are better resourced than Ghanaian courts – for instance, they have better research facilities and more support staff than courts in Ghana. Judges in the US and Australia have associates. These are often very bright and recently qualified lawyers who assist the judges with their research work in writing their judgments. This is a measure that could be adopted by the Supreme Court of Ghana, if not the Court of Appeal and the High Courts.

The Constitution does not, at present, set any limit on the number of Supreme Court judges that may be appointed by a government. Serious attention should be given to placing a cap on the number of Supreme Court judges by a constitutional amendment, otherwise governments would find the temptation to pack the Supreme Court with their cronies too strong to resist. A small developing country like Ghana does not need say 17 Supreme Court judges. The most important thing is to fully train and resource the judges that are at post and not to increase the number of judges each time the Government deems it to be expedient to do so.

In order to promote transparency in the appointment of judges to the courts, a number of countries have established independent judicial services commissions (made up of independent minded professionals) that screen proposed judicial appointments and then make appropriate recommendations to the Government, which invariably accepts the recommendations. This process ensures that only fit and proper and legally competent people are appointed as judges. This practice can be suitably adopted in Ghana. The Judicial Council in Ghana can play this role, if it is sufficiently independent of the Government, and provided that such a role is compatible with the present constitutional and any other legislative provisions on the Council.

Finally it is important to start thinking seriously about increasing the security of judges, court staff, and the litigants. Appropriately designed court spaces can result in more security at less cost. We also need to look at simple things like improving upon signage. This will make it easier for the public to find the right courtroom or clerical office. The Government should also give serious thought to making the laws of Ghana and the judgments of the superior courts freely accessible on the internet. Poor or small countries like Burkina Faso, Belize and Pacific Island countries like the Solomon Islands, Nauru and Vanuatu have all placed their laws and the judgments of their courts on the internet for the global community to access them free of charge (see, for example, http://www.paclii.org). Such measures would help increase the public's access to and understanding of the legal system and the laws of Ghana. The laws of Ghana and the judgments of the superior courts are at present largely inaccessible to most Ghanaians. A private entity, the Datacentre has endeavoured to fill the vacuum that exists by placing the laws and decisions of the courts on cdroms and on the internet, accessible only by subscription. Unfortunately, the subscription fees are quite high and well beyond the means of most Ghanaians.

These challenges can be more effectively met when there are Executive and operational guarantees of judicial independence; when sufficient financial resources are predictably and transparently provided to the judiciary; when competent judges are transparently appointed, when judgments can be rendered, enforced, and reviewed without danger to the person, family, or property of the judges; and when discipline within the bench itself is subject to the rules of due process.