The Accra High Court’s decision to free all 14 suspects who had been indicted for conspiracy to murder the late overlord of Dagbon, Ya Na Yakubu Andani, after His Lordship E. K. Ayebi ruled that the prosecution had failed to establish a prima facie case; has sparked off discontent among some sections of the public and to some extent incensed by politicians.
Just after the delivery of the verdict, some elite in our society, who should not matter, and without reading the full judgement came out with statements to the effect that the bench was partisan or politically biased and that genuine justice could never be expected from such a bench. The president also referred to the decision as a ‘temporary setback’. Before long, there was a demonstration by the Andani youth seeking justice and the Court could not sit because the judges feared for their security and life.
Ghana seems to be on trial for the future of its democracy. Where a judge in the lawful execution of his or her duty is lambasted by politicians for having made a wrong decision; where the judiciary sees itself as being threatened by a possible backlash for lawful execution of its mandate; where courts cease to operate, even if for a day, because the judges feel that their security and well-being is threatened- are clear indications of flouting the principle of independence of the judiciary, which is a key tenet of democracy and which is distinctly enshrined in the 1992 Constitution of Ghana particularly under Chapter 8 of the Constitution.
The judicial arm of government is the ultimate interpreter of the law and at some point enforcer of human rights. In fact the UN Basic Principles on the Independence of the Judiciary recognises the fact that judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens. In most cases, they will have to play the role of arbiter between the other arms of government, the legislature and the executive, in its role in interpreting the law and ensuring that justice is upheld.
Given the importance of the role played by the judiciary in any democracy, particularly in the peaceful resolution of conflicts, it is incumbent upon the State or Government to ensure that the independence of the judiciary is respected and observed by all.
Countries that lack independent judiciaries are least likely to be recognized as democracies. Where a judiciary is not independent, the course of justice is adversely affected, leading to a public lack of faith in the Courts- this will have great repercussions on the justice system of the country and the realization of human rights will be, but a myth.
The role of the judiciary is not to bow to the pressures of the public or the government of the day, but rather to dispense justice in an impartial manner, based on facts presented before them and in accordance with the law. In fact as part of the judicial oath, a judge swears to perform their functions without fear or favour, affection or ill-will. Where, then, either party feels that the judge failed in this regard, there are steps to be followed still within the judicial system to set what may have gone wrong right, if indeed the judge erred in some respect or the other. That is why we have such processes as appeals and reviews.
The matter is not up to ‘politicians’ or members of the public to usurp the powers of the court and try to hijack the judicial process as seen in the behaviour of some citizens on our judicial system.
There are a number of cases waiting to be heard and decided upon by the Courts, most of these cases do affect people’s rights and freedoms, and where Court does not sit even for a day, it is the innocent that suffer;- persons who also are waiting for justice to be done, some have waited for decades ; for some it is a matter of life and death; for some it is their entire future; and without timely dispensation of justice- an injustice is being done to them. What this will likely lead to is lack of faith in the judiciary- this leads to increase in instances as mob justice and a total break down of law and order in the long run. IS THIS THE FUTURE WE ARE SHAPING FOR GHANA?
Rather than blame a case gone bad on the judge, the State which is the prosecuting arm should focus on what went wrong in its processes. How was the matter investigated? Was there enough evidence for prosecution to prove his case? How were the exhibits handled? Was the chain of evidence properly laid before the Court?
If the investigators and prosecutors did a commendable job and the judge failed to properly assess the evidence, then the proper course is to appeal. Even an error by a single judge is no excuse to attack or blame the entire judiciary.
This is the time to pass our test as a country to safeguarding the independence of the judiciary, yes, it is paramount for our democracy but the current trends in Ghana are a big blight on the country’s image. Ghana, the yardstick of Africa over the respect for the rule of Law and the indecency of the judiciary cannot be allow to go back; we all own it a duty to protect this great shining goodwill, no matter ones political colour or affiliations.
Caroline Nalule
Regional Coordinator
Commonwealth Human Rights Initiative, Africa Office
This is an unedited version of the article “Safeguarding the Independence of the Judiciary in Ghana” written by Caroline Nalule and published in the Ghanaian newspaper, The Daily Guide (19th of April 2011, p.4.)
What do you think of Caroline's argument. Does Ghana need to worry about its judicial future?
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