ANALYSIS: Ghana’s judiciary must act fast to regain public trust

Ghana’s Supreme Court has been accused of doing the government’s bidding, leading to critics labelling it the ‘Unanimous FC’. With general elections fast approaching, the lack of trust in the judiciary could undermine the rule of law and democracy, especially if the results of the 7 December polls are contested.

The latest controversy started on 17 October when Speaker of Parliament Alban Bagbin declared four seats vacant – three from the governing New Patriotic Party (NPP) and one from the main opposition National Democratic Congress (NDC). Using a 2020 precedent set by his predecessor, Mr Bagbin said the four Members of Parliament (MPs) had violated Article 97(1) of Ghana’s 1992 Constitution.

This decision meant the majority NPP became the minority in Parliament, while the opposition NDC became the majority. Dissatisfied, the NPP’s Parliamentary leader applied for and – on the same day – was granted an ex-parte injunction at the Supreme Court ordering Mr Bagbin to stay his decision.

Many Ghanaians and the NDC accused the Supreme Court of bias and interfering in Parliament’s work. This has created a stalemate in Parliament, leading to rising political tensions ahead of the December polls and the indefinite adjournment of Parliament.

The NDC has alleged the government is packing the courts with its loyalists. A study by a Ghanaian law professor showed that judges voted in favour of the political parties that appointed them – and almost all the current justices are appointed by the president. Public confidence in the judiciary is thus at an all-time low.

According to the 2021/23 Afrobarometer survey, 62 per cent of Ghanaians have little or no trust in courts, more than twice the 30 per cent recorded in 2005/6. Even more worrying is that an overwhelming 97 per cent of Ghanaians perceive judges and magistrates as corrupt.

The biggest reason for declining confidence in the courts is their handling of political cases, which appears to favour the executive branch of government. The inconsistency in these rulings and applications, especially by the Supreme Court, deepens mistrust and drives the perception that courts are doing the executive’s bidding.

In 2020, civil society organisations challenged the president’s removal of then Auditor-General Daniel Yao Domelevo in the Supreme Court. The court took three years to rule the president’s action unconstitutional, at which point Mr Domelevo had retired.

Likewise, during COVID-19, a court challenge to the Imposition of Restrictions Act of 2020 lasted three years. By the time it was found to be unconstitutional in June 2023, the pandemic had ended, and the law no longer applied.

By comparison, the Supreme Court swiftly affirmed a case filed in 2022 challenging the NPP’s lack of a quorum in parliament to approve the budget vote. The decision allowed the deputy speaker to count himself as part of the quorum and vote to approve the budget.

Shortly after, NDC MPs filed a similar case against the passage of the electronic transaction levy, arguing that parliament lacked a quorum. More than two years later, the matter is still pending.

Another instance is the controversy earlier this year surrounding the 2021 Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill. After the bill was passed, the presidency refused to sign it, citing a pending injunction application at the Supreme Court. Although the injunction has been heard, the Supreme Court deferred its ruling until the final judgment of the substantive case.

Yet, when an NDC MP filed an injunction to stop parliament from approving the president’s ministerial nominees, the Supreme Court quickly dismissed the application – even though it was filed after the injunction of the Promotion of Proper Human Sexual Rights and Ghanaian Family Values Bill.

These are just some examples that fuel the perception that the Supreme Court favours the government. As a result, National Security Minister Albert Kan-Dapaah warned that if the interpretation of the law persistently favoured the government, people would lose confidence in the judiciary and take the law into their own hands. A former chief justice has also said that the current Supreme Court has become too predictable.

The lack of trust in the judiciary could lead to a breakdown of the rule of law and undermine the democratic process. Already, the presidential candidate for the NDC has said his party won’t seek redress in the Supreme Court because it won’t get justice. Instead, the party aims to police the polls to ensure victory.

This is not healthy for Ghana’s democracy, especially as disaffection with democracy rises along with tolerance for military intervention in the country.

With barely a month to elections, the judiciary must work fast to win back public confidence in the administration of justice. Plans could be announced for reforms in the following areas.

First, the appointment of the chief justice should be more transparent. The Judicial Council can shortlist senior judges, who will be publicly interviewed for the job. The best candidate can then be identified for appointment by the president, subject to parliamentary approval. This will convince citizens that the chief justice is selected on merit – not political considerations. Appointing Supreme Court judges can follow a similar procedure.

Second, the number of judges appointed to the higher courts, especially the Supreme Court, should be capped – showing citizens that courts aren’t unnecessarily packed with ruling party sympathisers.

Third, there should be a more transparent process for empanelling judges and regulating the speed at which cases are adjudicated, particularly politically sensitive ones. Public confidence is eroded when some cases are swiftly determined while others seem to be delayed due to the nature of the case or the parties involved.

Finally, to assuage concerns that unanimous decisions reflect bias, Supreme Court justices should write and submit their individual opinions, especially on sensitive political cases which attract extensive public interest.

These measures may just begin to tip the scales back in favour of public trust in Ghana’s judicial system.

Enoch Randy Aikins, Researcher, African Futures and Innovation, Institute for Security Studies (ISS) Pretoria

(This article was first published by ISS Today, a Premium Times syndication partner. We have their permission to republish).