- the prescription for building a strong judiciary
For the benefit of democracy, we have condensed this article with passion and brevity through the capacity of the Constitution, which is the fountainhead of the organs of government to express our views on how the judiciary ought to respond to constructive criticism in the 2023 legal year and beyond. We see this as within the prescription for building a stronger judiciary. We all need constructive criticism or advice that can help us improve in our work or attitude. In fact the holy book, the Bible, expressly states in James chapter 3 verse 2 that: “For we all stumble and sin in many ways …” Based on that reason, everyone needs constructive feedback.
Article 21 (1) (a) of the Constitution unequivocally states that “All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media”. This constitutional provision birthed the repeal of the criminal libel law, since it was inconsistent with the Constitution. As a result of that, every Ghanaian citizen has the right to express discontent about judicial decisions – especially when such decisions are inconsistent with the law and repugnant to good conscience.
Article 17 (1) which states that “All persons shall be equal before the law” did not exculpate any arms of government from the law. It is a trite fact that none of the three arms of government are above the law, including the Judiciary: hence, they are also subject to constructive criticism under the tenets of democracy.
Africa is still very young under democracy. To survive, the arms of government in African democracies must perform active checks on one another as well as accommodate criticism from the public. Public criticism is the most spontaneous feedback by which these arms of governments may reform. Though they may not automatically result in good decisions, criticism is a means by which democratic institutions measure the peoples’ confidence in their work.
Constructive criticism is a method of critique that offers actionable and effective feedback to enable targets implement improvement strategies. The point of constructive criticism is to diagnose and address weaknesses in systems and structures. It is neither a battle of insults nor a ploy to take down the other. The goal of this article is to assess constructive criticism and how the judiciary may take it going forward.
The judiciary is known as the fulcrum of justice and development. According to Article 125 of the 1992 Constitution, the judicial power of Ghana shall be vested in the judiciary. Accordingly, neither the president nor parliament nor any organ or agency of the president or parliament shall have or be given final judicial power.
Over the years, the judiciary has been touted to be the most reputable and trusted of the three arms of government. It was revered throughout the country for its mystery and almost perfect self-discipline. However, recent happenings in the country have got eyebrows up in a manner that has caused not only vested politicians but also senior practicing lawyers, lecturers, the clergy and ordinary citizens to raise concerns about the judiciary.
The judiciary remains the most credible arm of government in the Fourth Republic. Notwithstanding this, the judiciary is not without blemish. Despite the Constitutional guarantees for an independent judiciary, many believe the judiciary is not independent. A recent survey by Afro barometer shows that 46% of Ghanaians believe judges are corrupt. This is a blot on the judiciary, and people are gradually losing confidence in it – which is a serious cancer to our democratic system.
Lord Birgham of the British House of Lords stated that the law must be clear, intelligible and predictable; and should not be applied to occasion injustice. The above statement requires judges not to use their discretionary powers to diminish the supremacy of the law in cases where the law is clear, precise, intelligible and predictable.
Recently, Mr. Albert Kan Dapaah bemoaned the lack of public confidence in the judiciary; which generated further discourse on the issue.
He said: “Injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice delivery system or biased justice is certainly a threat to national security”. He further added that if interpretation of the law is tilted in favour of government all the time, people will start accusing the judiciary and they will not have the confidence that they need”.
There have always been concerns of judicial corruption; however, the level of rot was not known.
An investigative work by Anas Aremeyaw Anas showed judges asking for bribes and demanding sex to bend the arms of justice. This episode in the judiciary’s history is a blot on its reputation as far as public perception is concerned. Recent criticism of the judiciary by the opposition NDC and elements in civil society could end up worsening its public perception.
The Constitution posits that justice emanates from the people and is administered in the name of the Republic by the judiciary. Given that this is the case, the judiciary must be concerned about public perception and take steps to correct the negative perception by elements of the public – whether they are true or not.
The judiciary must also endeavour to refrain from its continuous defence of members of the executive.
AUTHORS
Angela Agyeiwaa Darkwah, Legal Research Assistant and Law student at KNUST
Email: [email protected]
Afi Morkporkpor, a Law student at Kings University College, Accra.
Email: [email protected]
