STRENGTHENING THE RULE OF LAW: THE NEED FOR BOLD AND INCLUSIVE JUDICIAL REFORMS.

Bertha Aniagyei. [1]

In recognition of the time constraints faced by many readers, this article will be presented in four segments. The first segment examines public dissatisfaction with the current state of the judiciary, while the second segment explores the persistent challenges that the judiciary encounters, which continue to undermine public trust. It also advocates for the judiciary to lead judicial reforms. The third and fourth segments propose potential reforms that could be implemented by the judiciary to restore and/or enhance public confidence.

 

Introduction

Democracy is incomplete without the judiciary, and a robust component of a society governed by the rule of law requires a vibrant and trusted judiciary.[2] A judiciary can and should possess self-trust; however, without public trust, such self-reliance holds limited significance.[3]

As the final arbiter of disputes among the branches of government, governmental agencies, businesses, individuals, and between states as well as private citizens, the judiciary plays a vital role in ensuring peace and transformation.

Nevertheless, just as the populace requires the judiciary, the judiciary equally needs the trust of the public.[4] In the absence of trust, individuals are unlikely to defer their will to the judiciary for the resolution of disputes, and even when they do, they may lack respect for and adherence to the outcomes.[5] A mistrusted judiciary poses a threat not only to societal peace and harmony but also to the economic, social, cultural, and political development of a nation.

Evolving to Fulfill our Mandate: A Continuing Necessity

Justice emanates from the people and shall be administered in the name of the Republic by an independent Judiciary, which is to be subject only to this Constitution.[6]

The mandate of the Judiciary, therefore, arises from the people. In colloquial terms, the Judiciary is accountable to the citizenry, akin to an employee being answerable to their employer. Thus, the Judiciary of Ghana bears the responsibility of serving the public interest.

It is well understood that when an employer finds an employee’s performance unsatisfactory, the employee faces two options: to enhance performance or seek alternative employment. When an employer’s dissatisfaction reaches a critical juncture, it often results in termination.

The importance of an efficient, effective, and well-functioning judiciary in a democracy such as ours cannot be overstated.[7] As articulated by the former Minister of National Security during a security sensitization workshop for Superior Court judges in 2022, “Justice is the foundation upon which the rule of law, equality before the law and fairness of the law are established. Injustice arising from an ineffective justice delivery system, delayed resolution, or biased adjudication poses a significant threat to national security. When injustice prevails, particularly if the judiciary, regarded as the final arbiter of disputes, is perceived as biased, citizens may resort to self-help, often disregarding established judicial processes.”[8]

If a Tree Does not Know how to Dance, the Wind will Teach it. [9]

As a Judiciary, we must continually strive to ensure that our “employers” are satisfied with our work conducted on their behalf and in their name. The stakes are heightened by the fact that discontent among the populace could lead to the dissolution of our institution and the exploration of alternative forms of justice administration.

History has shown us that such alternatives often involve individuals taking the law into their own hands, leading to a societal order governed not by rule of law, equity, and fairness, but rather by chaos and the principle of might over right.

A review of our historical context reveals that this is an option we cannot permit to enter the collective consciousness of our society. As Ghanaians, past, present, and future, we cannot afford to embrace such a scenario.

Ghana has experienced four coups, the first occurring in 1966 and the last in 1981.[10] Each of these coups was characterized by the suspension of the rule of law and significant human rights abuses. Nevertheless, the final coup was marked by particularly egregious violations of human rights that seemed to shock even the military rulers; specifically, the kidnapping and cold-blooded murder of three High Court judges.[11]

The Daily Graphic report dated Monday, July 5, 1982, with the headline “Corpses of 3 Judges Found,” indicated that the leader, Flight Lieutenant Rawlings, expressed his horror, along with that of the government, viewing the killings as an act of terrorism.

The actions incited disgust among Ghanaians and the international community alike. This heinous act illustrates that when power is wielded in the absence of law, even those in positions of power may be astonished by the lengths to which their followers will go in the perpetuation of injustice and severe human rights abuses.

Although our departed colleague judges have been martyred for their unwavering dedication to and adherence to the rule of law, this incident must be unequivocally prevented from recurring in the history of this nation; once was more than enough.

This situation emphasizes the necessity for the Judiciary to consistently align its actions with the expectations of Ghanaians regarding the fulfillment of our mandate to administer justice and in so doing, protect and enshrine the rule of law.

Additionally, we must recognize that we operate as a Service—the Judicial Service of Ghana. The essence of our role is the administration of justice. As a service, we must remain attuned to the needs of our clients to sustain our operations.

Client satisfaction ought to be one of our primary cornerstones. Our clients encompass the good people of Ghana who approach us seeking the justice they have entrusted us to deliver on their behalf.

As a service, we are not authoritative figures over our clients. Although our titles are steeped in the colonial-era terminology of “My Lords and Ladies”, it is essential to recognize that one can only be a lord in the presence of subjects. Without Ghanaians seeking justice from us, I must respectfully assert that we will become “Lords and Ladies of Nothing.”

I do not seek by any means to be an alarmist. Not for a minute. Rather, I seek to encourage self-reflection within our approach to justice administration, with the ultimate goal of identifying methods to better meet the needs of our clients.

Public confidence in the judiciary is undeniably low, and as “My Lords and Ladies,” we cannot afford to resemble the proverbial emperor who parades through the streets naked, nor can we liken ourselves to the ostrich that buries its head in the sand, remaining perpetually oblivious to its surroundings. We must confront the reality from the perspective of the Ghanaian populace.

What is the public perception of the judiciary? Does the public have confidence in the judiciary, and if so, to what extent? As an institution, which of our actions in the recent past and present have inspired judicial confidence, and which have eroded public trust in our ability to fulfill our mandate?

Have we, through our own actions, compromised our independence and impartiality, allowing external forces to intrude upon and dominate our declared responsibilities? What percentage of public confidence is necessary to maintain our legitimacy? What measures are currently in place to promote public trust, and how might we enhance these efforts? How can we avoid actions that have contributed to, and continue to undermine, public trust in our institution?

The Trust Deficit: Waning Public Trust in the Execution of Our Mandate.

Terminologies such as “Unanimous FC and We know the Outcome” which references the apex court’s decisions over recent years, appear to have become firmly established. In preparing this article, I decided to conduct a Google search using the term “Unanimous FC.”

This search yielded numerous pages of results concerning comments, articles, and statements about the judiciary. I was, to say the least, surprised by the global recognition of this term; it has become widely acknowledged without necessitating a specific reference to the judiciary.

The term has come to signify a judiciary, particularly the apex court that lacks independence and is perceived as biased and subservient to the executive branch of government in the performance of its judicial functions.[12]

Public sentiment indicates that, instead of functioning as a distinct and independent branch of government exercising exclusive judicial authority within our democracy, we are viewed as an extension of the executive. This situation is concerning.

Should there be any uncertainty regarding Ghanaians’ expectations of the judiciary, a reference to Article 127(1) of the Constitution[13] will clarify this matter. This Article guarantees the independence of the judiciary in the execution of its functions and mandates that all state organs and agencies provide the courts with any reasonable assistance necessary to safeguard their independence, dignity, and effectiveness.

The Ghanaian people have, through the Constitution, demonstrated a commitment to protecting the independence, dignity, and effectiveness of the judiciary. The ongoing decline in public confidence in this institution largely stems from perceptions that its decisions reflect a surrender of its constitutionally guaranteed independence and an acquiescence to the Executive.

It can be argued that Ghana’s democracy has made significant strides since the 1981 coup that resulted in the assassination of three judges. Consequently, there is little apprehension regarding the possibility of a coup d’état that would infringe upon judges’ fundamental human rights. [14]

However, the fact that nearly all segments of society, including the general public, legal professionals, civil society, and the media are voicing their dissatisfaction with the judiciary’s performance is a cause for concern.[15]

As an institution, we appear to have made some, albeit minimal, efforts to clarify the nature of our work and its potential impact on public perception.[16] Unfortunately, our efforts have often been perceived as dismissive of public opinion. We seem to have disregarded this perception, attributing it to individuals who lack an understanding of our work and its associated legal complexities.

Our dismissive approach has not alleviated the perception; rather, it seems to have exacerbated its dissemination. Any explanations we have provided to the public have prompted murmurs of “the lady doth protest too much, methinks.”

We cannot continue to overlook the credible reports indicating a negative public perception of the judiciary and the ongoing erosion of public trust and confidence in our role as the exclusive purveyors of justice.

A Global Mirror: International Surveys and Rankings Highlight Growing Concern

Reputable institutions such as the Mo Ibrahim Foundation[17] and the Centre for Democratic Development’s Afrobarometer have for the past few years, reported negative public perceptions regarding the judiciary’s independence, fairness, and impartiality, which have collectively contributed to a decline in public confidence in our ability to execute our mandate.

The 2024 Ibrahim Index of African Governance, Index Report[18] presents a concerning analysis of the judiciary. Notably, there has been a significant decline in both the independence and impartiality of the judiciary.

Specifically, the measure of judicial independence, defined as the judiciary’s capacity to interpret laws without interference from political actors and governmental institutions, experienced a substantial decrease of 50% over a seven-year period.

In 2014, the judiciary achieved a score of 100% with respect to its independence; however, by 2018, this score had dropped to 50%. This decline persisted, with the judiciary maintaining a constant score of 50% in subsequent years until 2023.

Regarding judicial impartiality, the index indicates a decline of approximately 30% between 2017 and 2018. In 2017, Ghana’s judicial impartiality was rated above 95%. Nevertheless, by 2018, this score began to decrease, eventually reaching 68.3% by 2023.

Further, the report revealed a decrease in public confidence in the judiciary, which declined from 67% in 2014 to 46% in 2023, particularly concerning the judiciary’s adherence to due process and fairness in criminal matters. Consequently, fewer than 50% of Ghanaians perceive the judiciary as a fair institution.

The report utilized various indices, including judicial appointments, court independence, and judge autonomy, to assess judicial impartiality and independence.

Among the 54 African countries assessed, Ghana recorded the most significant deterioration in the index of rule of law and justice over a five-year span. Given that the judiciary is fundamentally tasked with administering justice and fairness, these findings warrant urgent attention.

In light of these findings, the Commissioner of the Commission for Human Rights and Administrative Justice (CHRAJ) expressed serious concerns regarding the diminishing public confidence in the judiciary over the seven-year period.[19]

He noted that, according to the report, the perception of bias cannot simply be dismissed as a consequence of political gerrymandering. He articulated, “There is a major problem with our Judiciary. The implication is that we cannot run to the Judiciary anytime we have a problem with our government. Then where else do we go?”[20]

In addition to the Mo Ibrahim index, the 2020 Afrobarometer report[21] on public trust of the judiciary reveals that fewer than one in three individuals rate the judicial system favorably, with “high” or “very high” ratings across various dimensions, including independence (31%), professionalism (30%), fairness (21%), responsiveness (18%), and transparency (16%).

Furthermore, fewer than half of the respondents expressed a considerable level of trust in the courts, with only 16% indicating they trust the courts “a lot” and 32% expressing trust “somewhat.” The key findings of the report highlight that “the military, presidency, religious and traditional leaders, and the Electoral Commission are more trusted than the courts.”[22]

In 2024, the percentage of public trust experienced a significant decline compared to 2020. Only 13 percent of respondents expressed “a lot” of trust in the courts, while an additional 22 percent indicated that they “somewhat” trust them.

This represents a 3 percent decrease in the proportion of individuals reporting a significant level of trust in the courts since 2020, alongside a 10 percent decline in those who expressed moderate trust.

The report indicates that 62 percent of Ghanaians possess little or no trust in the judiciary, with approximately 97 percent perceiving judges and magistrates as corrupt. The judiciary is clearly losing the battle for public confidence, primarily due to two factors: lack of independence and perceptions of corruption.

Re- examining Our Journey: The Need to Pause and Reflect

Media coverage and public commentary surrounding such reports are sufficient to induce considerable concern for any judge who values public service and perception. What is even more troubling is that there was extensive media coverage of the concerns of ordinary Ghanaians about their waning confidence in the Judiciary before the publication of these reports and rankings. Notably, the designation “Unanimous FC” was attributed to the Judiciary by the media prior to the emergence of these reports.

Even if one were to dismiss these comments as originating from individuals lacking an understanding of the judiciary’s functioning, it remains imperative to acknowledge that the pervasive public mistrust and underlying frustration regarding the judiciary transcends all social classes.[23]

This concern is further highlighted by the acknowledgment from the former Minister of National Security, who recognized the growing mistrust of the judiciary among the populace and urged the judiciary to “work assiduously to eliminate all forms of injustice”[24] in order to preserve national security.

The Minister cautioned the judiciary against consistently ruling in favor of the government, as such actions contribute to a detrimental public perception of impartiality, thereby diminishing public confidence in the judiciary.[25]

The Waning Confidence of Legal Minds

Even more troubling is the sentiment expressed by prominent legal figures; individuals who possess a nuanced understanding of the judiciary’s operations and have garnered public respect for their legal expertise, who have lamented the apparent lack of independence within the judiciary in fulfilling its mandate, as well as its indifference to declining public confidence.

It is unnecessary to elaborate on the credentials of Mr. Tsatsu Tsikata and Justice (retired) William Atuguba in relation to their legal acumen and understanding of the Ghanaian judiciary. These distinguished legal figures, along with several others, have publicly articulated their dissatisfaction with the current state of the judiciary.

In an interview with GHOne news, widely disseminated across various online platforms,[26] Mr. Tsikata remarked, among other points, that “ordinary citizens jokingly refer to the judiciary as a ‘unanimous football club,’ deciding cases in favor of one side. This creates a dangerous precedent where individuals lose faith in the judicial process altogether.”

Justice William Atuguba (retd) recently delivered a speech at the University of Ghana,[27] wherein he profoundly traced the historical context of perceived judicial corruption and political bias, as well as interferences with the independence of the judiciary, spanning from the administration of Prime Minister Busia to that of President Kufuor.

In his remarks regarding the perceived lack of independence and political interference, he asserted, “I want to emphasize that there is a vast chasm between the independence of the judiciary in theory and its independence in practice.”[28]

On the current public perception of the judiciary, he remarked, “The current public image of the Judiciary in Ghana is reflected in social media.” He further referenced a statement by Dr. Lawrence Appiah, titled “Ghanaians are losing confidence in the Judiciary System”.[29]

In the words of the Dr., “The deteriorated image of the judiciary easily sparks laughter from the citizenry when one decides to go to court for justice,” and added that “it is one of the scariest existential threats to any democracy when citizens think their judiciary holds no value for them or is of no use to them.”

Whilst the totality of Dr. Appiah’s commentary may appear biased in favor of a particular political party, an examination of the various comments on social media about the judiciary suggest a general public sentiment.

Voices of Concern from Civil Society Groups

Civil society organizations have also participated in the ongoing criticism of the judiciary. The Center for Democratic Development has conducted approximately ten reports on public perceptions of corruption and public confidence in Ghana’s institutions between 1999 and 2024.

These reports have consistently indicated a decline in public confidence in the judiciary, which is frequently identified among the top five institutions in Ghana in terms of public distrust regarding corruption and the capacity to fulfill its mandate of administering justice.

This trend suggests that for 25 years and counting, the citizens of Ghana, in whose name justice is administered, have grown increasingly dissatisfied with judicial performance.

The Institute for Security Studies (ISS)[30] has emphasized that the continuous decline in public confidence is alarming and has called for the judiciary to take measures to restore public trust.

Citing Afrobarometer reports over the years, the Institute noted that in 2005, approximately 30% of Ghanaians expressed a lack of confidence in the judiciary, a figure that sharply increased to 62% in 2023/2024.

This indicates that the judiciary is failing to meet its mandate. While the judiciary may be providing some form of justice, many perceive that this does not align with what they expect from the system. It is imperative that we confront these concerns directly.

II

Perennial Challenges

In addition to the critical concern regarding the lack of judicial independence, numerous reports have consistently highlighted delays in trials, case backlogs, corruption, and victim alienation as significant obstacles faced by the judiciary which erode public trust in the institution.

I have thoroughly examined these issues in my paper presented to Harvard Law School as part of the fulfillment of the requirements for my LLM degree, titled “Re-establishing Confidence in the Administration of Criminal Justice in Ghana: Converging Historical Paradigms with Contemporary Perspectives on Restorative Justice.”[31] With permission, I will reference relevant sections of that paper.

• Long Delays in Trials

The adjudication of cases is frequently hindered by protracted delays attributable to the case backlog. It is not uncommon for a judge to preside over up to 50 cases in a single day.[32] With a population of approximately 35 million[33] dispersed across 16 regions, Ghana is characterized by a limited number of courts.

Save for very limited cases,[34] the courts of first instance which conduct trials are the High Courts and the lower courts. Overall, the number of trial courts in Ghana is inadequate for the timely and effective administration of criminal justice.[35]

Currently, the Greater Accra Region is served by fifty eight (58) lower courts and sixty one (61) High Courts, which together process the majority of cases within the region. In contrast, the Ashanti Region is equipped with sixty eight (68) lower courts and fourteen (14) High Courts, while the Eastern Region contains thirty nine (39) lower courts and eleven (11) High Courts. The Volta Region consists of twenty (28) lower courts and six  (6) High Courts.[36]

In the Oti Region, there are eleven (11) lower courts alongside  one (1) High Court. The Bono Region features thirteen (13) lower courts and eight (8) High Courts, while the Bono East Region is comprised of nine (9) lower courts. Additionally, the Ahafo Region contains eight (8) lower courts.

The remaining regions include the Western Region, which has twenty one (21) lower courts and six (6) High Courts; the Western North Region, with ten (10) lower courts and one (1) High Court; and the Central Region, which hosts thirty (33) lower courts and twelve (12) High Courts.[37]

Further, the Upper East Region is served by eleven (11) lower courts and two (2) High Courts, the Northern Region by eight (8) lower courts and four (4) High Courts, and the Savannah Region by four (4) lower courts and one (1) High Court.

The North East Region has seven (7) lower courts and one (1) High Court, while the North West Region also includes seven (7) lower courts and one (1) High Court. These four hundred and sixty four (464) courts, in addition to the Supreme Court and the Court of Appeal, were at the end of 2023 managing approximately one hundred and thirty thousand cases.[38]

This indicates that, on average, each court is overseeing over 270 cases. However, this figure is an inaccurate projection, as the statistics for case filings vary significantly between regions and districts. Consequently, it is not uncommon for certain courts to have more than 400 pending cases.

Given that new cases are filed on a daily basis, the caseload statistics for each court are likely to continue ascending. In the absence of effective case management tools, numerous court users may find themselves engaged in prolonged legal proceedings, often spanning years or even decades.

 

• Perception of Corruption

Prevailing perceptions of corruption[39] have engendered a profound mistrust in the judiciary’s capacity to execute its mandate in adjudicating matters.[40] The Afrobarometer report of 2020 underscored this concern, revealing that more than 80% of Ghanaians (85%) believe that at least “some” judges and magistrates are corrupt, with 40% claiming that “most” or “all” court officials are corrupt.

Among respondents who had contact with the judicial system in the past year, approximately half (52%) rated the level of corruption in the system as “high” or “very high.” Fewer than one in three respondents provided favorable assessments of the judicial system in terms of independence (31%), professionalism (30%), fairness (21%), responsiveness (18%), and transparency (16%).

A significant proportion of Ghanaians believe that individuals are “always” or “often” treated unequally under the law (58%) and that officials who commit crimes “always” or “often” evade punishment (61%). In 2023, a former Court of Appeal judge acknowledged that some judges in Ghana engage in corrupt practices and accept bribes.

• Limited Opportunities for Victim Participation

Research regarding victim participation in the criminal justice system presents a concerning picture.[41] Studies indicate that victims often lack a voice in the criminal justice process. Following a victim’s complaint, their level of engagement in the investigation and prosecution stages remain ambiguous.

The criminal justice system oftentimes leaves victims feeling powerless and isolated. They perceive a lack of inclusion in the process, with imposes punishments failing to satisfy their needs for compensation and restitution.[42]

When an offense is reported to the police, victims assist in the investigation but are positioned in a subordinate role. During the trial, they are treated as having no more rights than any other prosecution witness.

In the event of a conviction, victims have no influence over the sentencing, which is solely at the judge’s discretion.[43] In cases of acquittal, victims similarly lack control over the decision to appeal or the appeals process, as that responsibility lies exclusively with the prosecution.

Once a trial concludes, the state considers its obligations fulfilled and does not provide victims with any information regarding the convict, their conditions in confinement, or their release.

Judiciary at the Helm: Spearheading Critical Reforms

As an institution, it is in our own interest and in service to the people of Ghana that we rise to the challenge of reform. By acknowledging that we are not meeting public expectations and recognizing that we have allowed public mistrust of our institution to fester, we can embark on the challenging journey of self-introspection and reform. It is only then that other well-meaning Ghanaians, and if necessary, the international community, can join us in this endeavor to enhance our services and regain public trust.

The popular Akan adage may prove apt here: “When your mother is dead and you insist that she is sleeping, she will wake up for all to see.” We cannot pretend that our mother is merely asleep; we must acknowledge her demise.

It is only by doing so that we can begin the process of mourning and healing and, most importantly, secure the country’s support and empathy during this period.

As an institution, we stand to gain more in terms of public trust by initiating the reform process from within rather than having it imposed on us from external sources. Initiating reforms internally enables us to own the narrative, making the reforms easier to accept and, even if they are extreme, less painful. To inflict change upon ourselves is more bearable than to endure that change imposed by others.

Moreover, this proactive approach would instill hope in the Ghanaian people and ultimately initiate the process of regaining their confidence, as they would perceive the institution as one that is not only willing to listen to their criticisms and frustrations but also committed to addressing them.

In summary, we would be conveying to Ghanaians that they have the right to critique us and that, when they do, we are receptive to such criticism and ready to implement measures that not only address their concerns but also mitigate future criticisms. Such an attitude fosters trust and confidence.

A moment of reflection reveals that many Ghanaians applauded the decision to review[44] the 1992 Constitution, which, as of 2010 (when the Constitutional Review Committee was set up),[45] had been in existence for only two decades.

In light of this, the fact that the Judiciary has operated since independence in 1957, with only a few modifications,[46] indicates that the need for review and reform is long overdue. The span from 1957 until now is nearly seven decades. We, as an institution, require significant reforms in the processes and procedures by which we administer justice to the people of Ghana.

Laying the Foundation: Taking the Initial First Steps Forward

We must take the initial step of acknowledging the legitimate frustrations of the populace, offering apologies where necessary, and subsequently implementing measures to enhance our understanding and responsiveness to their concerns. Following this, we should undertake concrete actions aimed first at regaining the trust of our constituents, who are the citizens of Ghana, and subsequently solidifying and maintaining that trust.

I do not advocate for the notion that we must endeavor to satisfy every individual who seeks justice. In the realm of justice administration, the ultimate outcome is a judgment or ruling. Upon delivery of a judgment or ruling, one party may experience elation while another may endure distress.

However, when all parties, along with the public who observe the proceedings, can honestly affirm that each step leading to the final judgment was conducted with fairness, then we can consider our duties fulfilled. Presently, there exists a pervasive public mistrust regarding both the processes and the outcomes, whether they manifest as judgments or rulings.

Our legitimacy is rooted not only in the legal framework but also in the public’s trust.[47] This dual foundation underscores the necessity of conducting court proceedings in a public forum.[48] The presence of the public in the courtroom serves to ensure that the fairness of the judicial process is transparent, thereby fostering public trust and confidence in the judicial system.[49]

Currently, observations of our proceedings have led the public to express significant distrust in both our institution and the judicial process itself.[50] While we continue to maintain legal legitimacy, it is imperative that we strive to regain societal legitimacy and restore public trust in the solemn responsibilities entrusted to us by the citizens of Ghana.

III

PROPOSALS FOR REFORM

Nearly all facets of the Judiciary necessitate reform. To kick off the conversation, I have identified several key areas that I believe warrant immediate attention and have made some proposals. This list is not exhaustive and aims primarily to initiate a dialogue regarding other sectors in need of urgent reform.

1. Political Appointments to the Supreme Court and Public Perception

Despite the Constitutional assurances regarding the independence of the Judiciary from the other branches of government and governmental agencies, the 1992 Constitution[51] assigns the President, as the head of the Executive branch, the authority to appoint the Chief Justice in consultation with the Council of State, subject to Parliamentary approval.

All Superior Court Justices (including those on the Supreme Court, Court of Appeal, and High Court) are appointed by the President in consultation with the Council of State and/or upon the advice of the Judicial Council. Parliamentary approval is a necessary prerequisite for the appointment of Supreme Court Judges.[52]

Former Chief Justice Sophia A.B. Akuffo has articulated the necessity for reforms in the appointment process for the role of Chief Justice[53] and Justices of the Supreme Court. She advocates for a process that is independent, transparent, and grounded in a meritocratic system, as opposed to one based on patronage or favoritism.

A pertinent question arises regarding the rationale behind the framers of the Constitution involving both the Executive and Parliament in the appointment of the Chief Justice and Supreme Court Judges, while not bestowing a similar role upon the Judiciary in determining the President or the Speaker of Parliament.

The Judiciary’s only involvement in the operations of these two branches is the ceremonial role of swearing in the Speaker of Parliament, as well as the President and Vice President. This role is consistent with the principle of separation of powers. However, the Executive’s participation in the affairs of the Judiciary may raise concerns regarding the integrity of this principle.[54]

In seeking answers, I aimed to trace the history of judicial appointments in Ghana.[55] I discovered that during colonial times, following the promulgation of the Supreme Court Ordinance by the Parliament of the United Kingdom in March of 1876, judges of the then Supreme Court were appointed by and served at the pleasure of the British monarch.[56]

Upon attaining independence, and specifically after Ghana became a Republic, the 1960 Constitution vested the power to appoint all Superior Court justices in the President.[57] The President’s power of appointment was absolute and did not require the approval or advice of any body or institution. He also held the authority to remove the Chief Justice.

The White Paper accompanying the draft Constitution justified these provisions by asserting that the President, as the head of government, needed a Chief Justice who would be loyal to him and cooperate with him.[58]

Subsequent constitutions appeared to have taken into account the historical abuse of such power by the Executive [59]and sought to mitigate this provision by introducing checks and balances through the advice of the Council of State and/or the Judicial Council, as well as requiring parliamentary approval for the President’s power to nominate and appoint judges of the Court of Appeal and Supreme Courts.

One might have expected that the many historical instances of executive interference in judicial affairs[60] would result in provisions that restricted, rather than diluted, the executive’s power to make appointments within the judiciary.

Unfortunately, this is not the case. It appears that the legacy of the judicial system’s origins in the Gold Coast: as an extension of the monarchy designed to safeguard the economic and political interests of colonial powers, persists, even after the attainment of independence.

It is safe to say that the foundations of Ghanaians’ mistrust of the judiciary stem from the way in which the formal judicial system was introduced, the perception among the populace that it was alien and an imposition, and the manner in which the British utilized the judiciary as a tool against the local population to entrench their rule and protect their economic interests[61] in the former Gold Coast.

Power Tends to Corrupt and Absolute Power Corrupts Absolutely[62]

Like all powers, the authority vested in the President to appoint the Chief Justice and other Superior Court Judges, along with Parliament’s role in approving these appointments, can be susceptible to misuse. Human tendencies such as nepotism, bias towards the ruling government, and favoritism rather than meritocracy can significantly influence the appointment process.

One of the concerns highlighted in the Mo Ibrahim Index report regarding the waning impartiality and independence of the judiciary is the method of judicial appointments. Prior to the issuance of this report, media outlets and statements from concerned citizens raised alarms about a particular political party’s tendency to appoint individuals to the judiciary who were sympathetic to the government’s views and actions.[63]

While there may be nothing inherently problematic regarding these appointments in theory and on paper, public perception significantly undermines their legitimacy. The well-known adage, “Justice must not only be done but must also be seen to be done,” is particularly relevant in this context.

When judges known or suspected to have political affiliations are appointed to the bench by a political party, a widespread belief arises that the courts will favor the government or its associated entities when adjudicating cases involving them.[64]

When the courts indeed rule in favor of the government, particularly in circumstances where the case is on a 50/50 basis, this perception becomes deeply entrenched in the consciousness of the general public.

In certain instances, this perception transcends mere opinion and enters the realm of factual evidence. In 2018, Professor Raymond Atuguba, the incumbent Dean of the University of Ghana School of Law, conducted research examining the decision-making patterns of Supreme Court justices in relation to the political affiliations of the governments or presidents that appointed them.

His research analyzed political cases adjudicated by the Supreme Court over a twenty-five-year period and found that in cases “where the law is not clear, the judges were divided along the political ideologies of the political parties that appointed them”.[65]

The judiciary expressed dissatisfaction with Professor Atuguba’s research, articulating significant reservations regarding his findings.[66] Nevertheless, the public largely accepted these findings, and subsequent Supreme Court decisions appeared to corroborate both the research and prevailing public sentiment.

Professor Atuguba defended his findings, stating that “it is not a coincidence that this happened… and it would soon be discovered by the general populace, and it may be too late to gain public trust and respect for the court. The time to act is now”.[67]

In retrospect, the judiciary might have benefited from a more thorough and critical evaluation of the research, despite its initial dissenting stance. This is particularly relevant considering that even prior to this research, the public had begun to express concerns regarding a perceived deficit in judicial independence.

This sentiment intensified in subsequent years following the research, as it appears that the public indeed came to the same realization and began to openly criticize the Supreme Court and, by extension, the judiciary, before, during, and after every decision involving the government and/or political actors.

This pressing issue appears scheduled for consideration by the Constitutional Review Committee. Given the comprehensive evaluations that have been conducted over the years concerning various aspects of the Constitution, I look forward to the forthcoming recommendations.

It is anticipated that the recommendations provided by various Ghanaian stakeholders during the consultation process will significantly mitigate or altogether resolve this persistent issue.

2. Charity Begins at Home

It is he who wears the shoes, who knows where it pinches. In addition to the concerns voiced by the citizens of Ghana, those employed within the Judiciary likely possess their own perspectives regarding the judiciary and the Judicial Service.

It is important that judges, who are responsible for administering justice, along with their supporting staff, are engaged in discussions regarding their viewpoints on perceived challenges within the Judiciary and potential reforms.

This engagement should be conducted through a bottom-up approach rather than a top-down methodology. Staff should be afforded opportunities to express their concerns without fear of intimidation or reprisal, enabling them to articulate the challenges that impede their optimal performance, as well as to propose suggestions for improvement.

Similarly, judges, beginning at the magistrate level, should also be granted the same opportunity for engagement. It may be most effective to facilitate this dialogue in a forum that encourages openness and guarantees confidentiality.

While certain judges and staff may prefer to articulate their concerns orally, others may choose to document their grievances and submit them either with their signature or anonymously. Consequently, multiple avenues must be established to accommodate these varying preferences.

Subsequently, measures should be implemented to ensure the establishment of a permanent office dedicated to addressing the grievances of judges and staff. This office should be designed in accordance with international best practices and should be integrated into the judiciary’s framework.

Sociological research consistently demonstrates that content staff correlate with heightened productivity.[68] In addition to enhancing conditions of service, it is considered best practice to cultivate a work environment in which individuals feel a sense of belonging.

One effective method to achieve this is by creating a space where their concerns and general perspectives on relevant issues are acknowledged. When employees perceive that their input is recognized and valued, it fosters workplace satisfaction, which, in turn, promotes increased productivity.

3. Extensive Education- A Man’s Mind, Stretched by New Ideas, May Never Return to Its Original Dimensions. [69]

Immediate actions should be initiated to develop and implement educational programs designed to inform Ghanaians about court procedures and their rights and responsibilities when interacting with the judiciary.

The judiciary has previously engaged in initiatives where select judges interacted with the media to elucidate the functions of the judiciary, thereby increasing public awareness of its role. An illustrative example of this is the appearance of Justice Dennis Adjei and Justice Kyei Baffour on the GTV Breakfast Show in 2016.

This is a commendable project that must be enhanced with regard to the number of judges and judicial staff on the committee and the frequency of engagements with the public. The avenues for communication with the public must also be improved.

It may be beneficial for the judiciary to broaden its outreach by designing a five-year public engagement programme that includes not only media engagements but extends even to pupils in basic schools.

One can envision how the image of the Chief Justice or a judge engaging with grade one pupils, discussing their work, and addressing any questions that these children may have, regardless of how trivial, would enhance the public perception of the judiciary.

4. Enhancing Avenues for Seeking Redress – A Snake That You Can See Does Not Bite. [70]

Currently, there exists a judicial service complaints unit as part of the administrative framework, which facilitates written complaints from the public regarding the conduct of judicial staff and judges. It is essential to raise public awareness about the existence of this unit, and it must also be decentralized to the various courts.

Subject to available funding, each court should ideally have its own complaints unit, or at the very least, a cluster of courts (such as the Adenta Courts) should be equipped with a complaint’s unit.

The term “complaint” typically signifies dissatisfaction; however, within the context of the judiciary and the broader public service in Ghana, it has developed the connotation of “putting someone in trouble.”

This should not be the case; therefore, it is advisable to reconsider and potentially revise the terminology employed. It may be prudent to rename it a “redress/compliance directorate” or a similar term.

Keeping in mind that not all court users possess literacy skills or are represented by legal counsel, it is imperative to encourage this unit to employ individuals who are proficient in local languages and capable of translating communications into English.

These individuals would receive oral complaints from court users, formally document them, and facilitate the signing of the document in compliance with the provisions of the Illiterates Protection Act. If feasible, the complainant should also articulate their desired resolution regarding the complaint.

A defined timeline for the investigation of such complaints is essential, and the complainant should be kept informed throughout each stage of the process. Regardless of the final determination of the complaint, the complainant must be notified not only of the outcome but also of the reasoning that led to it.

5. Avenue for Continuous Improvement – Even the Clever One is Advised. [71]

Many Ghanaians have encountered “suggestion boxes” in various institutions. These are typically medium-sized metallic containers affixed to a wall, prominently featuring the phrase “SUGGESTION BOX” displayed on an attached paper. They include a small opening at the top that allows individuals to submit one or two pieces of paper.

The primary objective of these suggestion boxes is to encourage clients to propose improvements to the institution’s services or products. However, the extent to which these boxes actually receive suggestions, as well as whether their contents are periodically emptied for review and action, remains uncertain.

In an era characterized by digital innovation culminating in E-Justice,[72] reliance on physical suggestion boxes is no longer necessary for public input regarding improvement strategies. The Judiciary can capitalize on digital technologies to not only advance E-Justice initiatives but also to foster public confidence and engagement.

By establishing a digital platform that enables court users and non-court users be they academics, legal professionals, traditional and religious leaders, members of the business community, representatives of various professions, and ordinary Ghanaians, such as those commuting on the Madina Circle bound trotro—to offer suggestions for improving the judicial process, the Judiciary would promote grassroots participation among Ghanaians.

The Judiciary must take active steps to promote public awareness of the existence of such a medium through policies such as “Speak Up for Justice” or similar initiatives aimed at inviting the public to share any concerns or suggestions they may have regarding the Judiciary.

It is imperative for the Judiciary to ensure that when the public makes suggestions or expresses concerns, there is a process of periodic review, with timely feedback provided to respondents.

When individuals perceive that their contributions and concerns are acknowledged and valued within a given process, they are more likely to cultivate trust in that system. Sustaining ongoing public participation is essential for restoring public confidence in the Judiciary.

6. Stakeholder Forums – If You Want to Go Fast, Go Alone, If You Want to Go Far, Go Together. [73]

The judiciary typically confines its activities within the boundaries of the courts and is recognized for not straying far beyond the corridors of court buildings. However, to ensure that reforms are both meaningful and effective, it is imperative that we extend our efforts beyond the courtroom and actively involve other stakeholders in the administration of justice in this endeavor.

Every Ghanaian is a stakeholder in the judiciary of Ghana, and their perspectives must be considered in the pursuit of judicial reform. However, given the impracticality of gathering all Ghanaians to solicit their views, the judiciary may consider convening a stakeholder conference comprising selected representatives to obtain their insights on fortifying the judiciary’s capacity to perform its functions effectively and to enhance public confidence.

Potential stakeholders may include academics, members of the business community, ordinary citizens, traditional leaders, legal professionals, opinion leaders, and representatives from various other professions.

The primary objective of such a conference would be to collaboratively devise strategies that improve access to justice while enhancing the efficiency and effectiveness of the judiciary, ultimately fostering and maintaining public confidence.

Contingent upon the availability of financial resources, these stakeholder conferences could be expanded to regional and district levels under the oversight of Supervising High Court Judges. This approach would ensure that a diverse cross-section of Ghanaians, regardless of their socio-economic status, can participate in the discourse and contribute to the formulation of essential reforms.

7. Recruitment of Competent Persons of Integrity –Gold Should Be Sold to The One Who Recognizes Its Intrinsic Value.[74]
8. Judges

Given that the judiciary serves as the ultimate arbiter of the populace’s pursuit of peace and harmony which are fundamental elements for all forms of development, it is essential to implement measures that attract and retain exceptional individuals to serve as judges.

To draw intelligent, competent, dedicated, and committed individuals of high integrity into the judiciary, it is vital to address the conditions of service. It is crucial to recognize that talent is often attracted by appropriate rewards.[75] What incentives are in place for those who aspire to become judges?

By “rewards,” I refer to both financial and non-financial aspects. Are the financial conditions of service adequate? If not, how might they be improved? Furthermore, what non-financial rewards are available? Does the workplace environment foster a sense of inclusiveness, accountability and transparency?

Is there a structured framework for promotions? Is the promotion system perceived as equitable? What are the policies governing transfers and postings? Are these policies clearly articulated, or do they rely on the discretion and potential arbitrariness of those in positions of administrative authority?

What opportunities exist for professional development and continuous education for judges? As a human institution, are there avenues for judges to communicate their grievances and seek redress? A critical examination of these issues is essential to effectively attract and retain the most talented individuals to the judiciary.

Aside from competence, it is essential to prioritize the recruitment of individuals possessing high moral character and demonstrated integrity. In this context, investigations into the backgrounds of candidates for judicial positions should be comprehensive, examining not only the educational qualifications of the applicants but also their established character within the community.

Such findings should be incorporated as a significant factor in the process of shortlisting candidates for interviews. It may prove advantageous for these background checks to be conducted prior to the shortlisting of applicants, rather than subsequent to that process.

1. Staff

Judges cannot operate in isolation; they require the support of staff to effectively perform their functions. Several reports[76] consistently highlight corruption among judicial service staff as a significant factor contributing to a trust deficit in the judiciary. To address concerns regarding perceived corruption, it is imperative that the judiciary implements a recruitment process that is both transparent and merit based.

It is widely acknowledged that some individuals in Ghana secure positions within public and security services through bribery and/or preferential treatment.[77] The courts are frequently inundated with cases involving fraudulent practices, where individuals deceive complainants into paying money under the pretense of facilitating their enlistment into public or security service roles.

When individuals part with money to obtain employment and are appointed based on connections rather than merit, their perception of and attitude toward their roles are compromised even before they commence their duties. Convincing someone who has engaged in financial transactions for an appointment to lead an ethical life free from corruption and bribery in their professional capacity would be an arduous task.

For this reason, the judiciary must ensure that staff recruitment is strictly merit-based. A rigorous, equitable, and transparent recruitment process will facilitate the judiciary’s ability to make appointments grounded in meritocracy. When individuals perceive that their employment is contingent upon their competencies, they are more likely to develop a positive attitude toward their work.

This positive outlook will also facilitate comprehensive orientation for staff, enabling them to understand and embrace the identity of the judiciary they serve. Furthermore, it is essential that such staff receive adequate compensation for their efforts. Continuous on-the-job training and opportunities for professional development must also be provided.

Issues related to promotion, staff satisfaction, and workplace safety must be prioritized.[78] For instance, even though staff must report to work by 8:00 AM and conclude their duties by 4:00 PM, many courts lack designated kitchen facilities where employees can comfortably consume their meals. These and similar concerns should be addressed, as they constitute fundamental rights of employees.

For existing staff, the Judicial Training Institute (JTI),[79] in collaboration with the Judicial Service Staff Association of Ghana (JUSAG),[80] should consider the establishment of a systematic program for periodic training, retraining, and retention.

Staff members ought to engage in ongoing training and retraining to enhance their understanding of their responsibilities and to comprehend how their performance influences the overall perception of judicial competence.

Following each training session, a brief assessment utilizing a mutually agreed-upon method between JTI and JUSAG should be administered to evaluate whether the staff has comprehended the training content and is effectively applying it in their roles. Based on the results of this assessment, certain staff members may require additional retraining.

Furthermore, it is essential to provide incentives for staff who exhibit exceptional promise, thereby fostering motivation among their peers.

Maintaining a cadre of competent, honest, and well-motivated staff to support judges of high moral character and proven integrity is a critical area that requires urgent reform if the judiciary is to restore public trust.

PART IV

8. ADDRESSING THE PERENNIAL CHALLENGES

Delays and Backlogs

• Existing Measures

The Judiciary has undoubtedly implemented measures to expedite case hearings and mitigate existing backlogs.

Over the past two decades, the judiciary has adopted Alternative Dispute Resolution (ADR)[81] and standardized its procedures, collectively referred to as Court Connected Alternative Dispute Resolution (CCADR). Despite its nomenclature, mediation is primarily practiced in both civil and criminal matters.

Initially, this initiative led to the prompt resolution of cases and satisfied parties involved.[82] However, complaints regarding the process and the conduct of mediators have undermined the otherwise successful narrative of CCADR.

Moreover, in the past decade, the judiciary has implemented the requirement for the submission of witness statements in civil cases, accompanied by penalties for non-compliance,[83] and has established practice directions regarding the filing of disclosures and witness statements in criminal matters.[84]

Additionally, a further practice direction on case completion strategies was promulgated in 2019. These initiatives were undertaken with the overarching objective of mitigating delays in trial proceedings and enhancing the efficiency and effectiveness of the administration of justice for court users.

It is my assertion that, with the cooperation of lawyers, court users, and prosecutors, a deliberate and systematic implementation of these rules and practice directions by the courts would significantly contribute to ensuring that cases are resolved in an efficient, effective, and timely manner, while minimizing costs to the parties involved.

Furthermore, the implementation of E-Justice and virtual hearings, alongside the designation of special courts within the high court division, such as commercial, labor, probate and administration, divorce and matrimonial, and land courts for civil matters, in addition to fast-track courts for criminal matters, serves to expedite trials and diminish case backlogs.

In April 2024, the current Chief Justice, Gertrude A.E.S. Torkornoo unveiled her vision for the Judiciary during her tenure, articulated through a strategic framework titled LEADing Justice. The acronym LEAD stands for Law, Ethics, Assets, Due Process, and Digitalization.

The emphasis on digitalization is significant, as it illustrates the judiciary’s intention to capitalize on the numerous advantages offered by digital technologies to enhance its functions. This initiative aims to increase productivity by ensuring that cases are addressed in real-time. Consequently, a considerable number of courts are being equipped with the requisite tools to facilitate operations both in-person and virtually.

In addition to these developments, the number of courts has significantly increased over the past three years, with the objective of enhancing access to justice and reducing delays in case. At the conclusion of the 2021/2022 legal year, there were 389 courts.[85]

At the end of the 2023/2024 legal year, this number exceeds 460 courts.[86] Many of these courts have also been automated, with the objective of achieving timely resolution of cases.

Furthermore, small claims debt recovery courts have been established in the Greater Accra and Ashanti Regions[87] to expedite the hearing of small claims. Similar to other District Courts, these courts possess summary jurisdiction and are anticipated to resolve cases expeditiously, typically within a single day.

• Some Measures to Consider

Nevertheless, the persistence of studies and reports highlighting public dissatisfaction with the duration of court cases, even after the introduction of these reforms, indicates that further action is necessary to reduce the backlog of cases and expedite court proceedings.

Numerous articles proposing reforms in the judicial sector to address the issue of backlogs have been authored.[88] Some scholars have suggested alternative forms of community justice that should coexist alongside the court system, rather than relying solely on the judiciary to resolve all disputes.[89]

It is essential that such issues be brought to stakeholder discussions to solicit the perspectives of Ghanaians on measures that could be adopted to alleviate the backlog of cases in court and ultimately reduce the time expended by court users.

The Judiciary may also consider exploring additional forms of ADR, such as early neutral evaluation, which utilizes the expertise of professionals, including retired judges, to provide parties with an informed perspective on the likely outcome of their case. This approach could facilitate settlements and the prompt resolution of cases, thereby enhancing existing ADR mechanisms.

Victim Alienation

• Existing Measures

In recent years, significant efforts have been undertaken to incorporate victims into the criminal justice system. In 2022, the Plea-Bargaining Act[90] was enacted as an amendment to the Criminal Offences Act of 1960.[91]

This Act permits an accused individual facing trial for non-exempted offences to negotiate with the Attorney General or an authorized representative at any point prior to judgment. Notably, under this Act, a prosecutor is prohibited from finalizing a plea-bargaining agreement with a defendant or their counsel without notifying the victim.[92]

The victim, or their representative, is recognized as an interested party who must be consulted throughout the plea bargain process, and the victim’s input must be duly considered prior to finalizing any agreement.

The victim must be afforded the opportunity to present their views regarding the content of the plea bargain agreement.[93] Moreover, a victim retains the right to object to the plea agreement by submitting a statement outlining the grounds for their objection, which must then be incorporated into the plea bargain agreement submitted for judicial consideration.[94]

Prior to the enactment of this Act, efforts to ensure that complainants felt included in the criminal justice system and to foster uniformity and consistency in sentencing culminated in the introduction of Sentencing Guidelines by the Judiciary in 2015. These Guidelines established a mechanism for incorporating the voice of the complainant into the sentencing process.

This inclusion is facilitated during the pre-sentencing phase, wherein the court solicits a victim impact statement from the victim.

A victim impact statement is articulated orally in court, providing the victim or complainant an opportunity to convey to the court the harm, damage, or adverse consequences they have experienced as a result of the crime committed against them. The court is mandated to contemplate this statement when determining an appropriate sentence.

Although the victim impact statement does not entirely mitigate the problem of victim alienation, evidenced by studies conducted by Ofori-Dua et al. four[95] and seven[96] years after the introduction of the sentencing guidelines, which revealed that victims still perceived their courtroom experiences as ‘unfavorable and unwelcoming”[97], one may argue that it represents a progressive move toward a more inclusive criminal justice system.

Even prior to the implementation of the sentencing guidelines, the reliance on Section 73 of the Court’s Act[98], which empowers the courts to foster reconciliation between parties in criminal cases that are neither felonies nor aggravated, enabled the courts to refer such matters to the Court Connected Alternative Dispute Resolution (CCADR).

This mechanism provided complainants and the accused with a participatory role in determining the outcome of a case. In instances where mediation proved successful, the court would recognize the settlement as a consent judgment. Frequently, complainants reported satisfaction with the resolution reached.[99]

• Some Measures to Consider

The concept of the complainant as a mere witness originates from the Western paradigm of crime and punishment, wherein the individual’s desire for retribution and restoration is overshadowed by the collective societal obligation to address crime as a shared detriment. This societal response is aimed at deterring potential offenders and maintaining social order.

Nevertheless, these divergent perspectives on crime are not necessarily incompatible. States possess the capacity to impose collective punishment on perpetrators while concurrently addressing the specific needs of individual victims. It is within this framework that numerous societies across the globe are increasingly incorporating restorative justice principles into their criminal justice systems.[100]

The principles of restorative justice conceptualize the commission of a crime as a breach of personal and interpersonal relationships. This perspective recognizes that such violations engender responsibilities and engage victims, offenders, and community members in collaborative efforts to rectify the resultant harm. The primary emphasis is placed on the needs of victims and the accountability of offenders to effect restitution.[101]

Restorative justice is not an unfamiliar concept in Ghana; various studies indicate that some form of restorative justice has been integral to all early civilizations worldwide.[102] It represents an alternative model of justice that mandates a thorough examination of the crime by the victim, the accused, and the community, with the aim of restoring what has been damaged.

This framework acknowledges that although crime primarily impacts the victim and the offender, it also has secondary effects on the community, necessitating the involvement of all stakeholders in pursuing a reconciliatory resolution.

It may be propitious for all stakeholders within the justice sector to engage in discussions regarding these alternative forms of justice, considering both traditional practices and exemplary models from various global contexts.

I contend that there is a pressing need to integrate restorative justice and analogous measures into the criminal administrative system, following comprehensive consultations, to better serve the interests of victims and the community while simultaneously alleviating the backlog of cases within the judicial system.

Corruption

The Judiciary must strive to at all times, convey a clear and unequivocal message that it does not condone corruption and will act swiftly when presented with evidence of such misconduct. This can be accomplished by taking decisive action against corrupt judicial officers and staff when necessary.

However, to achieve a long-lasting resolution to the issue of corruption within the judiciary, it is essential to address the complex relationship between society and the judiciary: Is Ghanaian society inherently corrupt,[103] which has subsequently led to the corruption of the judiciary, or is it the judiciary that is corrupt, thereby fostering corruption among court users?[104]

This inquiry is significant because, according to Afrobarometer reports spanning the past 25 years,[105] there has been a growing perception among Ghanaians that justice is contingent upon wealth and that the application of laws varies based on the financial capabilities of the individuals involved.

To this end, do Ghanaians believe that, when appearing before the courts, they must seek ways to access judges and pay for justice?[106] Conversely, do some judges require certain favors in order to administer justice to deserving parties? Addressing this question will be pivotal in determining how the challenge of corruption can be effectively confronted.

If the issue stems from societal expectations, then educational programmes aimed at fostering public trust in the judicial system and encouraging the presentation of relevant and cogent evidence to support cases would be a necessary starting point.

If, however, the judiciary itself is the source of corruption, it is imperative for the Judiciary to take concrete steps to eliminate corrupt judges and staff to preserve its integrity. This can be achieved through education and monitoring, as well as through the imposition and publication of sanctions against corrupt judicial officers and staff, thereby deterring similar behavior among others.

Moreover, in our attempt to combat perceived judicial corruption, it may be necessary to reevaluate the conditions of service for judges and staff [107]to enhance their compensation, thereby mitigating the temptation to engage in corrupt practices and other offenses that undermine the integrity of the Judiciary.

In this context, it is essential for stakeholders to engage in a dialogue concerning the expectations placed on judges and staff, as well as to ascertain what constitutes reasonable remuneration that allows them to fulfill their responsibilities without financial concerns that could potentially lead to the temptation of engaging in corrupt practices.

For instance, recent media reports have highlighted the salaries of CEOs of state-owned enterprises.[108] If these figures are accurate, it appears that nearly all of these CEOs earn more than double the salary of the Chief Justice.[109] Given that the Chief Justice is the highest earner within the Judiciary, one can only speculate about the salaries of other judges, magistrates, and judicial staff.

While it may not be feasible to expect judges to receive salaries comparable to those of private practice lawyers, their compensation must be adequate[110] to meet their financial responsibilities to their families and themselves, allowing them to maintain a reasonably comfortable standard of living.

Once this objective is achieved, evidence of judges and staff engaged in corrupt activities should be addressed promptly and to the fullest extent of the law, thereby establishing a precedent for other judges and society at large. Such actions must be widely publicized to inspire public trust and serve as a deterrent to sitting judges.

Another way of mitigating corruption, according to Professor. Atuguba would be for the government to allocate additional financial resources to the Legal Aid Commission, enabling it to operate at optimal capacity.[111]

This is a proposition I endorse, as equipping the Legal Aid Commission with the necessary resources to assist individuals seeking justice in the courts, particularly those with limited knowledge of court processes, would mitigate the exploitation of such individuals by unscrupulous actors, both within and outside the courts. Consequently, this would reduce opportunities for corruption within the judiciary.

Conclusion –We Cannot Solve Our Problems With the Same Kind of Thinking We Used When We Created Them. [112]

A Judiciary can only function effectively and maintain its dignity when it upholds the trust of the public in executing its mandate. The people of Ghana have emphatically expressed, through constitutional provisions and public discourse, that one of the pillars of an effective Judiciary is its independence. Additional factors such as corruption, delays in case resolution due to excessive backlogs, and victim alienation from the judicial process have all contributed to the significant decline in judicial confidence.

 

Nonetheless, the primary reason for the erosion of public confidence in the Judiciary remains its perceived lack of independence. It is imperative for the Judiciary to take decisive steps to restore dwindling public confidence in its mandate, with a critical starting point being the reaffirmation of its independence from political interference and political actors.

 

Although this may present challenges, the most effective strategy for regaining public confidence is for the Judiciary to take ownership of the reform narrative and actively engage the public in a collaborative journey toward rebuilding an independent, dignified, and effective Judiciary that resonates with the aspirations of the Ghanaian populace. A journey of a thousand miles begins with a single step; it is hoped that the Judiciary will take that first step toward meaningful reform.

 

END.

I am grateful for the privilege of sharing my thoughts with you and engaging in the journey of judicial reforms. If you found this article enjoyable, please look out for my forthcoming brief article on procedures that could be implemented in court to safeguard the constitutionally guaranteed presumption of innocence for an accused person.

 

 

[1] The writer is a judge and an alumna of Harvard Law School.

[2] Barak, Aharon. “A Judge on Judging: the Role of a Supreme Court in a Democracy.” Harv. L. Rev. 116 (2002): 19.

[3] Bühlmann, Marc, and Ruth Kunz. “Confidence in the judiciary: Comparing the independence and legitimacy of judicial systems.” West European Politics 34.2 (2011): 317-345.

[4] Crook, Richard, Kojo Asante, and Victor Brobbey. “Popular concepts of justice and fairness in Ghana: Testing the legitimacy of new or hybrid forms of state justice.” Available at SSRN 2353309 (2010).

[5] Pikramenos, Michail N. “Public Confidence and the Judiciary in a Democratic Society.” Democracy in Times of Crises: Challenges, Problems and Policy Proposals. Cham: Springer International Publishing, 2022. 213-223.

[6] Article 125 (1) of the Constitution, 1992

[7] Bühlmann, Marc, and Ruth Kunz. “Confidence in the judiciary: Comparing the independence and legitimacy of judicial systems.” West European Politics 34.2 (2011): 317-345.

[8] https://www.myjoyonline.com/judiciary-perceived-to-be-biased-a-big-threat-to-national-security-kan-dapaah/. Website last visited on 24^th January, 2025 at 8:25pm

[8] Ibid

[9] This is an African Proverb that means in life, individuals must be open to learning and be adaptable to change.

[10] Teye, Victor B. “Coups d’etat and African tourism: A study of Ghana.” Annals of Tourism research 15.3 (1988): 329-356.

[11] Agyeman-Duah, Baffour. “Ghana, 1982–6: The politics of the PNDC.” The Journal of modern African studies 25.4 (1987): 613-642.

[12] https://www.modernghana.com/news/1356255/public-perception-of-judiciary-as-pro-npp-in-unan.html.wesbite last visited on 5th February, 2025 at 12:32pm

[13] Constitution, 1992

[14] Boafo-Arthur, Kwame. Democracy and stability in West Africa: the Ghanaian experience. Nordiska Afrikainstitutet; Department of Peace and Conflict Research, Uppsala University, 2008.

[15] Acheampong, Joseph Ofori, and Damon M. Cann. “Assessing Public Trust in Ghana’s Courts.” Journal of Law and Courts (2025): 1-11.

[16] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Chief-Justice-nominee-explains-what-unanimous-decision-means-in-court-1775624. Website last visited on 26^th January, 2025 at 12:25am

[17] https://mo.ibrahim.foundation/. Website last visited on 23^rd November, 2025 at 10:15pm.

[18] The report can be downloaded from https://mo.ibrahim.foundation/sites/default/files/2024-10/2024-index-report.pdf.

[19] https://chraj.gov.gh/news/if-the-independence-of-the-judiciary-can-decline-between-2017-and-2024-then-we-have-a-problem-joseph-whittal/. Website last visited on 25^th January, 2025 at 11:02pm.

[20] Ibid

[21] CDD-Ghana Afrobarometer Dispatch No. 347 | 28 February 2020

[22] Ibid

[23] https://www.graphic.com.gh/news/politics/ghana-news-deteriorating-assessments-of-ghanas-judiciary.html. Website last visited on 26^th January, 2025 at 12:29am.

[24] Idem “n” 3

[25] https://kasapafmonline.com/?p=245423. Website last visited on 26^th January, 2025 at 1:02 am

[26] https://citinewsroom.com/2024/11/tsatsu-tsikata-public-perception-of-judiciary-favouring-npp-threatens-democracy/ website last visited on 24^th January, 2025 at 2:22pm

[27] https://thefourthestategh.com/2023/10/full-text-justice-william-atugubas-speech-on-protecting-our-democracy-the-role-of-the-judiciary/. Full speech published by the news portal. Website last visited on the 24^th of January, 2025 at 7:58pm.

[28] Idem “n” 27

[29] https://ghananewsonline.com.gh/ghanaians-are-losing-confidence-in-the-judiciary-system-dr-lawrence/. Website last visited on the 24^th of January, 2025 at 8:18pm.

[30] https://issafrica.org/iss-today/ghana-s-judiciary-must-act-fast-to-regain-public-trust. Website last visited on 26^th January, 2025 at 12:15am

[31] In storage at Harvard law School Library

[32] https://africacenter.org/publication/alternative-dispute-resolution-in-africa-preventing-conflict-and-enhancing-stability/. Website last visited on 10/1/2023 at 12:03am

[33] https://www.worldometers.info/world-population/ghana-population/. Website last visited on 8^th February, 2025 at 2:23PM

[34] Presidential Election petitions and appeals from the House of Chiefs are some of the matters within the exclusive preserve of the Supreme Court

[35] Ehwi, Richmond Juvenile, and Divine Asafo Mawuli. “‘Landguardism’in Ghana: Examining public perceptions about the driving factors.” Land use policy 109 (2021): 105630.

[36] Judicial Service, Ghana, Diary, 2025

[37] Ibid

[38] https://judicial.gov.gh› jsfiles › brief_caselo…. website last visited on 8th February 2025 at 3:03 PM

[39] Adu-Poku, Akosua A. “Perceptions of the Police and Courts in Ghana.” Crime, Mental Health and the Criminal Justice System in Africa: A Psycho-Criminological Perspective (2021): 365-395.

[40] US Department of State 2021 Annual Country Report on Human Practices, Transparency International Index on Corruption of the Judiciary.

[41] Ofori-Dua, Kwadwo, Nachinaab John Onzaberigu, and Richard Kofi Nimako. “Victims, the Forgotten Party in the Criminal Justices System: The Perception and Experiences of Crime Victims in Kumasi Metropolis in Ghana.” Journal of Victimology and Victim Justice 2.2 (2019): 109-128.

[42] Ibid.

[42] Ofori-Dua, Kwadwo, et al. “Addressing the needs of victims: the standpoint of crime victims within the Obuasi municipality.” Journal of Victimology and Victim Justice 5.1 (2022): 32-53.

[43] Section 294 of the Criminal and Other Offences Procedure Act, 1960 (Act 30)

[44] Van Gyampo, Ransford E., and Emmanuel Debrah. “Government Response to Public Opinion in Ghana’s Constitutional Review Process.” The African Review: A Journal of African Politics, Development and International Affairs (2014): 85-107.

[45] Constitutional Instrument, 2010. C.I. 64

[46] Rathbone, Richard. “Native courts, local courts, chieftaincy and the CPP in Ghana in the 1950s.” Journal of African Cultural Studies 13.1 (2000): 125-139.

[47] Mack, Kathy, Sharyn Roach Anleu, and Jordan Tutton. “The judiciary and the public: Judicial perceptions.” Adelaide Law Review, The 39.1 (2018): 1-35.

[48] Courts Act, 1993 (Act 459)

[49] Ainuson, Kweku. “Role Of The Public And The Media In Civil Court Proceedings In Ghana.” KAS African Law Study Library 5.1 (2018): 54-67.

[50] https://scientect.org/2022/05/19/opinion-the-reputation-of-ghanas-judiciary-is-at-an-all-time-low/. Website last visited on 5^th February, 2025 at 12:15pm

[51] Article 144 (1)

[52] Article 144 (2) of the Constitution, 1992

[53] https://www.myjoyonline.com/merit-over-patronage-sophia-akuffo-calls-for-overhaul-of-chief-justice-selection-process/. Website last visited on the 23^rd of February, 2025 at 4:38pm

[54] Joshua, Hope Opoku Prince. “The Separation of Powers in Ghana a Mirage? Examining the Excess Power of the Executive Arms of Government of Ghana.” International Journal of Research and Innovation in Social Science 8.12 (2024): 3071-3091.

[55] Asante, Samuel KB. “Over a hundred years of a national legal system in Ghana.” Journal of African Law 31.1-2 (1987): 70-92.

[56] Amankwah, Harrison A. “Ghanaian Law: Its Evolution and Interaction with English Law.” Cornell Int’l LJ 4 (1970): 37.

[57] Amissah, A. N. E. “The Role of the Judiciary in the Governmental Process: Ghana’s Experience.” The Journal of Legal Pluralism and Unofficial Law 8.13 (1976): 4-30.

[58] Harvey, William B., “The Judiciary in Ghana” (1966). Articles by Maurer Faculty. 2487. https://www.repository.law.indiana.edu/facpub/2487

[59] Frimpong, Kwame, and Kwaku Agyeman-Budu. “The rule of law and democracy in Ghana since independence: Uneasy bedfellows?.” African Human Rights Law Journal 18.1 (2018): 244-265.

[60] Quashigah, Kofi. “Defying assumptions about the nature of power relations between the executive and judiciary.” Separation of powers in African constitutionalism (2016): 226-238.

[61] Goldman, Neal M. Fallible justice: The dilemma of the British in the Gold Coast, 1874-1944. City University of New York, 2016.

[62] Lord Acton

[63] https://www.theafricareport.com/318185/ghana-is-president-akufo-addo-padding-supreme-court-to-influence-2024-polls/. Website last visited on 5^th February, 2025 at 11:50am.

[64] Manga Fombad, Charles. “A comparative overview of recent trends in judicial appointments: selected cases from Africa.” Canadian Journal of African Studies/Revue canadienne des études africaines 55.1 (2021): 161-182.

[65] https://www.ghanaweb.com/GhanaHomePage/NewsArchive/Judges-fire-Atuguba-over-bogus-report-627408. Website last visited on 28^th January, 2025 at 7:05pm

[66] https://starrfm.com.gh/2018/02/atuguba-justifies-research-work-political-judgments/. Website last visited on the 28^th of January, 2025 at 7:18pm

[67] Supra

[68] Ostroff, Cheri. “The relationship between satisfaction, attitudes, and performance: An organizational level analysis.” Journal of applied psychology 77.6 (1992): 963.

[69] This quote is attributed to Oliver Wendell Holmes Jr.

[70] A Mozambican Proverb which means that once an individual becomes aware of a problem, they are empowered to implement strategies to address it.

[71] African Proverb which means that no individual possesses complete knowledge and one can benefit from the insight of other.

[72] Ashong Elliot, Maud Adjeley, John Effah, and Richard Boateng. “Institutional Influence on e-Justice System Usage: The Case of Ghana’s Judicial Sector.” (2024).

[73] African Proverb which signifies that one can achieve more with the assistance of others.

[74] African Proverb meaning that valuable things should only be entrusted to those who can manage them.

[75] Earle, Heather A. “Building a workplace of choice: Using the work environment to attract and retain top talent.” Journal of facilities management 2.3 (2003): 244-257.

[76] Amagnya, Moses Agaawena. “Patterns and prevalence of corruption in Ghana’s criminal justice system: views from within.” Policing and the rule of law in Sub-Saharan Africa. Routledge, 2022. 9-30.

[77] Brierley, Sarah. “Unprincipled principals: Co‐opted bureaucrats and corruption in Ghana.” American Journal of Political Science 64.2 (2020): 209-222.

[78] Thibault Landry, Anaïs, Allan Schweyer, and Ashley Whillans. “Winning the war for talent: Modern motivational methods for attracting and retaining employees.” Compensation & Benefits Review 49.4 (2017): 230-246.

[79] https://www.jtighana.org/. Website last visited on 5^th February, 2025 at 1:38PM.

[80] https://jusag.org/. Website last visited on 8^th February, 2025 at 1:42PM.

[81] Crook, Richard. “Alternative dispute resolution and the Magistrate’s Courts in Ghana: A case of practical hybridity.” (2012).

[82] Nolan-Haley, Jacqueline. “Mediation and access to justice in Africa: Perspectives from Ghana.” Harv. Negot. L. Rev. 21 (2015):59.

[83] High Court Civil Procedure (Amendment) Rules, 2014, (C.I. 87)

[84] Practice Direction on Disclosures and Case Management. Issued by Chief Justice (Retd) Sophia A.B. Akuffo on October 30, 2018.

[85] Republic of Ghana Medium Term Expenditure Framework (MTEF) for 2023-2026, Judicial Service . Report Available for download at https://mofep.gov.gh/sites/default/files/pbb-estimates/2023/2023-PBB-JS.pdf. Website last visited on 13^th February, 2025 at 18:15pm

[86] Idem “n” 36

 

[87] https://judicial.gov.gh/index.php/publications/news-publications/js-latest-news/item/495-2024-10-14-17-25-38

[88] https://theconversation.com/ghanas-justice-system-needs-a-major-overhaul-heres-what-should-be-done-88724. Website last visited on 13^th February, 2025.

[89] Idem “n”  31.

[90] 2022, Act 1079.

[91] Act 29.

[92] Section 162.

[93] Ibid.

[94] The signatories to a plea agreement are the prosecutor, the defendant and counsel for the accused. Whereas a copy of the concluded plea agreement must be filed in court and served on the accused person or his counsel, the victim is to be served with a copy only where applicable. Also, whereas a court is enjoined by the use of the word ‘’shall’’ (prior to considering a plea agreement) to ensure that the accused person’s rights were made known to him before he entered into the agreement[94], with regard to the victim, the Court ‘’may’’ enquire from her if she has any objection.

 

[95] Ofori-Dua, Kwadwo, Nachinaab John Onzaberigu, and Richard Kofi Nimako. “Victims, the Forgotten Party in the Criminal Justices System: The Perception and Experiences of Crime Victims in Kumasi Metropolis in Ghana.” Journal of Victimology and Victim Justice 2.2 (2019): 109-128.

[96] Ofori-Dua, Kwadwo, et al. “Addressing the needs of victims: the standpoint of crime victims within the Obuasi municipality.” Journal of Victimology and Victim Justice 5.1 (2022): 32-53.

[97] Supra

[98] 1993. Act 459.

[99] Idem “n” 84.

[100] Achilles, Mary, and Howard Zehr. “Restorative justice for crime victims: The promise and the challenge.” Restorative community justice: Repairing harm and transforming communities (2001): 87-99.

[101] Zehr, Howard. The little book of restorative justice: Revised and updated. Simon and Schuster, 2015.

[102] Ikpa, Tina S. “Balancing restorative justice principles and due process rights in order to reform the criminal justice system.” Wash. UJL & Pol’y 24 (2007): 301.

[103] Asomah, Joseph Yaw. “Does democracy fuel corruption in developing countries? Understanding Ghanaians’ perspectives.” Democratization 30.4 (2023): 654-672.

[104] Amankwah, Adwoa S., Ginn Assibey Bonsu, and Peter White. “Media exposé of judicial corruption in Ghana: Ethical and theological perspectives.” Legon Journal of the Humanities 28.1 (2017): 1-9.

[105] The reports span from 1999 to 2024.

[106] Amagnya, Moses Agaawena. “The unintended consequences of anti-corruption measures: Regulating judicial conduct in Ghana.” Crime, Law and Social Change 79.2 (2023): 153-174.

[107] Amagnya, Moses Agaawena. “Patterns and prevalence of corruption in Ghana’s criminal justice system: views from within.” Policing and the rule of law in Sub-Saharan Africa. Routledge, 2022. 9-30.

[108] https://www.ghanaweb.com/GhanaHomePage/business/FLASHBACK-Here-s-a-breakdown-of-allowances-benefits-for-top-management-of-SOEs-in-Ghana-1970578. Website last visited on 14^th February, 2025 at 1:30PM

[109] https://www.graphic.com.gh/news/politics/why-are-ceos-of-loss-making-soes-earning-salaries-3-times-higher-than-that-of-president-tuc.html. Website last visited on 14^th February, 2025 at 12:27pm.

[110] Abdulai, Abdul‐Gafaru. “Political will in combating corruption in developing and transition economies: A comparative study of Singapore, Hong Kong and Ghana.” Journal of Financial Crime 16.4 (2009): 387-417.

[111] Idem “n” 88

[112] This quote is generally attributed to Albert Einstein.