Indeed, an independent Judiciary is the crown jewel of a constitutional republic. We proudly associate ourselves with this truism by Justice Brett Kavanaugh of the USA. This statement is also correct in Ghana, given the fact that our Judiciary occupies a pre-eminent position in our democratic affairs.
It is thus a monumental achievement to be nominated to the high office of Chief Justice as Head of the Judiciary. On this score, we deem it appropriate to congratulate Her Ladyship, Justice Gertrude Araba Esaaba Torkornoo, for her nomination for appointment as the Chief Justice of Ghana. If she is approved by parliament, Her Ladyship will become the 8th Chief Justice to be appointed under Ghana’s 4th Republican era – and become the fourth highest-ranking personality in Ghana by virtue of Article 57(2) of the 1992 Constitution.
While congratulating Her Ladyship on her nomination, we deem it needful to interrogate the current appointment regime for appointing the Chief Justice. This article attempts to probe the issue.
Constitutional role of the Chief Justice
The Chief Justice is Head of the Judiciary, and the office-holder is responsible for administration and supervision of the Judiciary. Article 125(4) of the 1992 Constitution states that “The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary”. Additionally, the Chief Justice has the administrative duty to empanel Justices of the Supreme Court and other Courts in the country. This important role was upheld by the Supreme Court in the case of Agyei Twum v. Attorney-General and Another [2005-2006] SCGLR 732.
Qualification and Appointment of the Chief Justice
To be eligible for appointment as the Chief Justice of Ghana, the person must be qualified to be appointed as a Justice of the Supreme Court. That is to say the person must be of high moral character and proven integrity, and must have been a lawyer for at least fifteen years (Article 128(4) of the 1992 Constitution).
Per Article 144(1) of the 1992 Constitution, authority to appoint the Chief Justice is vested in the President of Ghana. The President exercises this authority on advice from the Council of State and with the prior approval of Parliament. Article 144(1) of the 1992 Constitution states that “The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament”.
Practices in the USA and UK
Per Article II, Section 2, Clause 2 of the U.S. Constitution in the United States of America (USA), the Chief Justice of the Supreme Court is appointed by the President and confirmed by the Senate (not the House of Commons, which is more politically sensitive). In the UK, the Chief Justice is appointed by the monarch (not politically sensitive) in consultation with the Prime Minister following consultation with the Lord Chancellor and an independent selection commission.
Critiques
Based on the above, we submit the following critiques of the current system for election of the Chief Justice of Ghana.
Firstly, the current system constitutes a deviation from the norms of separation of powers and its associated principles of checks and balances. In a more practical sense, the current system for appointing the Chief Justice can be faulted on the grounds that the president – who is head of the Executive branch, appoints the Chief Justice as Head of an independent Judiciary with the approval of a partisan Parliament. Such a system undermines the independence of the Supreme Court to deliver its constitutional mandate.
Secondly, the current appointment system runs contrary to what pertains in Parliament. The Speaker of Parliament, as head of Parliament, is elected exclusively by Hon. Members of Parliament. This is anchored in Article 95(1) of the 1992 Constitution, which stipulates that “There shall be a Speaker of Parliament, who shall be elected by the Members of Parliament from among persons who are members of Parliament or who are qualified to be elected as members of Parliament”. Such an internal election forms an important bedrock for building an independent Legislature.
Thirdly, the power of the President to initiate the appointment process of Justices of the Supreme Court and the Chief Justice adds to the enormity of powers conferred on the President. There has been a clarion call for an amendment to the 1992 Constitution to prune down some of the powers of the President. Except for elected public officers, almost all other public officers in Ghana are appointed by the President (Article 170 of the 1992 Constitution).
Fourthly, the current appointment regime fuels the perception of the President’s influence on the Judiciary for favourable judgments. This view has been shared by prominent Ghanaian researchers, with some going to the extent of stating that ‘Judges at Supreme Court rule on political cases based on their political leanings’ (Atuguba, 2018).
Lastly, it is true that the current appointment regime reflects the case in other developed countries like the USA and UK. However, the appointment procedure in those developed countries contain strong mechanisms to deliver an appointee who is generally acceptable to people. For instance, in the USA, the Chief Justice of the Supreme Court is appointed by the President and confirmed by the Senate (and not the House of Commons which is more politically sensitive). In the UK, the Chief Justice is appointed by the monarch (not politically sensitive) in consultation with the Prime Minister following consultation with the Lord Chancellor and an independent selection commission.
Recommendation
There is a widespread perception of the Executive influence of the Supreme Court through the appointment of Justices of the Supreme Court and the Chief Justice. The Chief Justice is perceived to influence judgments in favour of the appointed President.
In view of this, there must be a search for an appointments regime that takes away the presence of the President in the equation. For this reason, the writers take the view that the appointment of Justices of the Supreme Court should come from the Judiciary itself through the Judicial Council. Accordingly, we suggest that Article 144 of the 1992 Constitution and all related provisions be selected among the possible candidates for amendment of the 1992 Constitution.
Conclusion
The President plays a central role in the appointment of Justices of the Supreme Court through a partisan Parliament. This appointment regime fuels the perception of Presidential influence over the Judiciary and the increasing lowering of the impartiality and trust of the Judiciary. Many have described the decisions of the Supreme Court as political decisions and other cognate terms.
In considering alternatives to strengthen our constitutional democracy, the writers suggest an appointments regime that takes away the presence of the President in the equation through a constitutional amendment. For this reason, the writers take the view that the appointment of Justices of the Supreme Court should come from the Judiciary itself through the Judicial Council.
>>>Benjamin Tachie Antiedu, Legal Practitioner & Author. Email: [email protected]. Goodnuff Appiah Larbi, Legal Researcher. Email: [email protected]
Bibliography
- 1992 Constitution of Ghana
- The Constitution of the United States of America.
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- Agyei Twum v. Attorney General and Another [2005-2006]
- Antiedu B. T, Reading the Law (Pentecost Press 2019).
- Atuguba, R. A (2022). “The New Constitutional Law and Administrative Law of Ghana: From the Garden of Eden to 2022”.
- Bimpong-Buta S Y, The Role of the Supreme Court of Ghana in the Development of Constitutional Law in Ghana (Advanced Legal Publications 2007).
- Kumado, K. (2021). A handbook of the Constitutional Law of Ghana and its History. Hybid H. Ltd.
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- https://prorhetoric.com/an-independent-judiciary-is-the-crown-jewel-of-our-constitutional-republic/
