Felix Nana Kofi Ofori, PhD., REACT Humanitarian Network, Oxford, UK.

Judicial independence is the fulcrum of Ghana’s democracy and the socio-economic well-being of the people.

The Independence of the judiciary underpins the rule of law and is fundamental to the sustenance of democratic dispensation among civilised nations, including Ghana.¹

Judicial independence is not a partisan or economic venture which can wholly be owned by a political party, public institution or private organization, but an essential requirement for enhancing the political, cultural and socio-economic wellbeing of citizens and a state.²

This article first examines the doctrine of “judicial Independence” in respect of Ghana’s democratic dispensation as well as public vilification against the judiciary.  Second, it explores the role of the judiciary in advancing the socio-economic prosperity of the people and human rights.

The doctrine of Judicial Independence and Ghana’s Democratic Dispensation

The perception that judicial independence is at risk has arisen before in our history. Seriously, from the days of the military overthrow of civilian governments till the revolutionary era where judges were abducted and murdered, ³ it may be that current efforts to curb it are no more severe than those faced by the recent past. Certainly, they are less serious than the threats the judiciary and judges in some countries faced in the early years of the nineteenth century.⁴

The doctrine of judicial Independence proposes that “individual judges and the judiciary as a whole should be impartial and independent of all external pressures and of each other so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law.^”5

However, the constant and persistent “unanimous” decisions being pronounced by the Ghanaian judiciary, especially the Supreme Court (SC), in highly-charged political and constitutional matters of the land, are eroding the public’s confidence and respect for the judiciary.⁶

No nation (Ghana included) can achieve its political and socio-economic aspirations without a fair and independent judiciary. This is because, over the years and centuries, disputes between the citizen and the state have increased, coupled with expansion in governmental functions; thus, it is critical that the judiciary assumes the duty to protect the citizen against unlawful, arbitrary and corrupt acts of the government.⁷

Although the judiciary is subject to external influences from the executive, legislature, public, powerful private organizations, friends, families and private interests, it has the sole duty to decide cases based on the facts and evidence presented in court so as to sustain public interest in the democratic dispensation of Ghana.

Furthermore, as observed by Alexander Hamilton, Ghana’s fledgling democracy will not thrive if the judiciary, by itself, attempts to impose its own orders or opinions on the people. Indeed, for judicial orders and opinions to have an impact, courts (especially the Supreme Court) must have the public, legislative and executive forces behind them.⁸ Contrary to that view, the reputation of the judiciary in Ghana is at an all-time low, contributing to the fading socio-economic prospects of the country.

The Judiciary in Socio-economic Spheres of Ghana

Beyond the redundant view that socio-economic issues fall outside the competency and jurisdiction of the judiciary, it is now an accepted fact that fairer and impartial decisions of the judiciary impact positively on the socio-economic spheres of most nations.

This is because foreign and indigenous investors, coupled with local business actors, would be motivated to operate creatively in the economic environments of a country where judicial decisions are recognized as fair and impartial.⁹

Again, unlike the legislature and executive, “courts are able to provide individualized remedies to aggrieved claimants, and offer a comparatively speedy solution in the face of legislative or executive tardiness. Courts are experts at interpretation and are thus ideally suited to lend content to social rights and the standards of compliance that they impose.”¹⁰

Furthermore, the United Nations World Conference on Human Rights held in Vienna, in June 1993, emphasized the fact that “[all] human rights are universal, indivisible and interdependent and interrelated.”¹¹ The implication of this statement is that all human rights should apply to all persons at all times without discrimination. Thus, the judiciary is key to promoting the socio-economic well-being of Ghanaians, which is incontestable.

In summary, the judiciary holds the key to the sustenance of Ghana’s democratic structure, including human dignity. However, the judiciary’s attempt to impose its opinion and ideas upon the people compromises its reputation, jeopardising public confidence in the rule of law.

References:

1. Commissioner for Human Rights, “The Independence of Judges and the Judiciary under Threat” Strasbourg: Council of Europe, September 3, (2019).
2. Boies, D. “Judicial Independence and the Role of Law” 22 Washington University Journal of Law and Policy, 057 (2006).
3. Rothchild, D. Appraisal of the Ghana Experience, 1972-78, Comparative Politics. 1980 Jul. 12(4):459-479.
4. Courts and Tribunal Judiciary, available at: https://www.judiciary.uk/about-the-judiciary-the-government-and-the-consitution/Jude-acc-independence#…=judicial%20.independence.
5. Burbank SB. The architecture of judicial independence. S. Cal. L. Rev.1998; 72: 315.
6. Huq AZ. Judicial Independence and the Rationing of Constitutional Remedies. Duke LJ. 2015; 65:1.
7. Pieterse M. Coming to terms with judicial enforcement of socio-economic rights. South African Journal on Human Rights. 2004 Jan 1; 20(3):383-417.
8. Alexander Hamilton’s Observation in the Federalist No. 78.
9. Ofori, F.N.K. The Marginalisation of the Right to Justice: The Case of Bribery Scandal in Ghana’s Judicial Service: Journal of Law, Policy and Globalization, ISSN (paper) 2018, 2224-3240, ISSN (Online) 2224-3259.
10. Pieterse M. Coming to terms with judicial enforcement of socio-economic rights. South African Journal on Human Rights. 2004 Jan 1; 20(3):383-417.
11. Vienna Declaration and Programme of Action’ (12 July 1993) UN Doc. A/CONF.157/23 art 5.