Appointments To The Bench: Merit, Seniority or Gender

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In the past few months many aspects of the justice system in Ghana, including corruption in the judicial service, disciplining of lawyers and appointment of judges to the superior courts, have become the subject of many discussions and media coverage.

In relation to the appointment to the superior courts, “Mr. Justice George Lamptey, a former Supreme Court Judge, has declared that, the appointment of people outside the bench as Supreme Court judges is wrong.” According to him, “the practice is a serious disincentive to judges on the bench since their expectation of appointments are mostly shattered with the appointment of lecturers and lawyers from especially, the Attorney-General’s Department to the Supreme Court” (Ghanaweb June 20, 2003). I will address this issue later.

In recent days, however, the focus has shifted to the appointment of Justice Acquah as Chief Justice. (See Ghanaweb 21, and 23 June 2003). All judicial offices are important ones. However, the professional and community interest in an appointment is heightened when it is to a superior court. It is therefore not surprising that the appointment of a Chief Justice, as in previous years, has come in for more detailed and critical scrutiny. It is important that there be such an interest in the judiciary in recent times because of the issue of corruption and the fact that the community entrusts the ultimate responsibility of resolving cases to the judiciary. They are a central plank in our democratic system and have to administer the law without fear or favour.

Critics of the appointment of Justice Acquah point to the relative seniority of other Justices of the Supreme Court and the fact that a woman was by-passed in favour of a man. The criticism has been reinforced by some much-publicised comment by the Opposition and the Federation of Women Lawyers suggesting a lack of understanding of gender and other issues. The NDC General Secretary, Josiah Aryeh, has described it “as a setback to the empowerment of Ghanaian women. This is because a more senior female judge, Justice Joyce Bamford Addo who was the obvious choice was by-passed”. Others have pointed out that Mrs Bamford Addo was not picked “because of her perceived political inclination and her being among the majority that ruled against the Constitutionality of the Fast Track Court in the case of Mr Tsatsu Tsikata and the State”.

I understand that the Government has responded by pointing to previous appointments including the appointment of Justice I. K. Abban by the NDC as Chief Justice, over more senior and possibly more capable Justices of the Supreme Court. The Government has also talked about how appointments should be made strictly on merit, rather than by reference to some characteristic such as gender, political persuasion or ethnic balance.

I am sure no one will have any problem with the principle of appointment of judges on merit if only it will always be adhered to and also seen to be the basis of appointments to boards of corporations and positions in the higher echelons of the civil service and government business enterprises and not brought out when issues of gender, political persuasion and ethnicity are raised in relation to such appointments.

The Constitution lays down important rules for the appointment of Judges of the Superior Courts and the Chief Justice. Subsection 128 (4) provides that a person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than fifteen years' standing as a lawyer. Subsection 144 (1) states that the Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament. It seems to me therefore that any person who has fifteen years standing as a lawyer and is a “fit and proper person” qualifies to be appointed Chief Justice.

There are no other criteria outlined for appointment of the Chief Justice. The President has to consult with the Council of State. In my experience it is rare for a Council of State, though made up of eminent men and women, to refuse to accept a President’s nominee unless they have evidence that indicates that the nominee is not a person of integrity.

It is my view that judges are there to do justice to all manner of people and not to be representatives of particular groups or gender. In this respect, it would be wrong to concentrate on seniority, gender and ethnic representation to the detriment of seeking candidates with a high order of professional skill. Such an approach would compromise both the pursuit of efficiency and quality and further erode the public confidence in the courts, which I believe is at a very low ebb. This is not to say that all things being equal we should not strive to have a judiciary that fairly reflects society in the general sense of having gender sensitivity, and an understanding of the community's values and customary norms.

In my opinion the debate on the appointment of the Chief Justice should be broadened to include the appointment of judges and other members of the judiciary with a view to setting out some selection criteria eg skills and abilities, legal knowledge and experience, communication skills and personal qualities. I am not sure whether Parliament in conducting its vetting exercises has some such criteria. In my view this will help develop objective criteria and introduce some element of transparency into the appointment of judicial officers. This will also help restore some confidence in the judicial system.

In relation to the call not to appoint Supreme Court Justices from outside the bench, I will like to submit that the appointment of judges from the Bar must continue as governments are limited in the pool of people from which appointments are made. If we follow the argument by Justice Lamptey we are in effect limiting the pool from which Justices of the Supreme Court could be appointed and not seeking to appoint the very best legal minds and those who have clearly demonstrated that they have the intellectual capacity to assume such positions in the judiciary. In many countries including the United States, Australia and Canada, many of the finest judges have been appointed from the senior ranks of the Bar and academia.

Appointments from outside the Bench could also play some role in maintaining the independence of the judiciary itself and infusing the judiciary with fresh ideas and intellects. Having said this people who have distinguished themselves on the bench should not be by passed in preference to lawyers in private practice or in academia who are suffering from burnout nor should such appointments be a reward for political affiliation or be used to enable people to enjoy some generous pensions at the taxpayers expense.