The tyranny of the judiciary

: WHO JUDGES THE JUDGES

Daniel Korang (aka Prof)

“... to consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps... their judicial power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.” Thomas Jefferson

Introduction

The question who judges the judges evokes serious philosophical concerns as does the question who determines the justness of God’s dealings with mankind. Judges are only legally trained, and not divinely ordained as infallible humans. They do not draw inspiration from some unseen super spirit in forming judicial decisions; their decisions represent their personal understanding of law and situations. Judges all belong to political parties. Yes, they have passions for party, for power and compliments from their fellow men. Indeed all the judges we have and know of exercise their franchise in general elections. They have political, moral, cultural and religious preferences. They have personal whims, caprices, proclivities, idiosyncrasies, quirks, eccentricity and suchlike tendencies. Their fallibilities, frailties, imperfections and weaknesses oftentimes animate their verdicts.

Whether or not inherited from Adam, the sin of judicial self-indulgence or self-celebration is a perpetual temptation. Judicial self-restraint is a perpetual challenge. And perfection is an unattainable goal. The primary constraint on the tendency toward that evil of those who sit in judgment on others is the moral constraint imposed by the professional community to which they belong. Whatever its source, the proclivity for bias and general evil is real and a universal problem for judges and those who judge judges.

The primary function of the judiciary is to manifest the virtue of disinterest to those required to accept a judicial decision. The disinterest of the judiciary has been made increasingly difficult in our time by the movement away from legal formalism to the legal realism that commissions judges to pay heed to the social consequences of their judgments. But the more heed judges are expected to pay to the social consequences of their decisions, the harder it is for them to lay aside their personal preferences or the interests of their friends and allies. This explains why the verdict of the courts in Ghana can, in some cases, be suitably and comfortably classified as a political memoir.
At best, Judges can only be presumed to be men who are squarely fit to administer justice and settle the differences and cases that roil our lives. This is a mere presumption. No human judge is perfect or infallible. Being manned by men who are essentially amenable to the common and ordinary frailties of humans, the judiciary cannot be seen as or claim to be beyond human checks and controls. The humans who fill the seemingly uncontrolled judiciary are the same as those who fill other state institutions which are carefully controlled, limited and checked against possible excesses and abuses.

The Judiciary: The God That Be?

The judiciary seems to be an organ of government that is exalted above every other organ of government. The authors of the constitution have made the judges independent, in the fullest sense of the word. There is no power above them, to control any of their decisions. There is no authority that can remove them; they alone determine when they must be removed for whatever reason(s) and they cannot be controlled by the laws of the legislature. Indeed the law is said to lie in their bosom. The world owes it to Justice Oliver W. Holmes that: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” This observation has received a well-nigh unanimous acceptation by legal scholars, and if it is correct, then the judiciary ought to be reasonably checked in order to ensure that the reason for its existence may not be prejudiced and jeopardized. Montesquieu put it most strongly: “Of the three powers above-mentioned, the judiciary is in some measure next to nothing.”
In short, the judiciary, in the exercise of its judicial functions, is independent of the people, of the legislature, the executive and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.
The overzealousness of the draftsmen of the 1992 Constitution to give absolute independence and lack of accountability to the judiciary under our current constitutional arrangement is perhaps a brainchild of careful reflection of the trajectories of our history as a people. In time past, under some military juntas, judges held their places at the will and pleasure of the juntas, on whom the judges depended not only for their offices, but also for their salaries; they were subject to every undue influence. If the junta wished to carry a favorite point, the accomplishment of which needed the aid of the courts of law, the pleasure of the junta would be signified to the judges. And it required the spirit of a martyr for the judges to determine a case contrary to the junta's will. They were absolutely dependent upon him both for their offices and livings. Do you remember the three judges who were murdered in cold blood for upholding the law? This is our history.

In our collective zeal to tidy up our minds, consign every memory of our gloomy past to the trash can and make it practically impossible for the resurgence of military rule with its attendant molestation of judges, we, under the 1992 Constitution have exalted the judiciary above every other organ of government with practically no or little accountability. The language of article 127 of the constitution makes the judiciary absolutely independent of any person(s), state institutions or authority in terms of both judicial and administrative functions, finances etc. The only limitation – a seemingly vague one, of course - is that the judiciary is subject to the constitution itself. This is no limitation, properly so-called, as the constitution itself has no meaning independent of the viewpoints of judges. Beyond this formless and amorphous limitation, one reads the entire constitution in vain in one’s voyage to discover practical constitutional controls and limits of the power of the judiciary.

The absolute lack of check(s) or controls of the judiciary under our present constitutional arrangement has the tendency of plunging the judiciary into the arena of judicial absolutism, tyranny and activism, a situation which is much abhorred even in the worst monarchical governments.

Limitless Tenure of Judges

One aspect of the judiciary is that judges have no fixed term of office. They hold office till they retire or die or are removed from office. This situation gives a lot of people goose pimples. An eloquent statement of the problem published in 1848 is that of Frederick Grimké, a Justice of the Ohio Supreme Court: “If it is not wise to confer a permanent tenure of office upon the executive and legislative,” he concluded, “it should not be conferred upon the judiciary; and the more so, because the legislative functions which the last perform is a fact entirely hidden from the great majority of the community.”
In 1823, the ageing Thomas Jefferson stated in his Letter to A. Coray, October 31, 1823 that:

“At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life if secured against all liability to account.”

On March 9, 1821, Thomas Jefferson also stated in a Letter to Judge Spencer Roane that: “The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them.”

The life tenure of judges has been criticised by many scolars and ordinary Ghanaians. But I have always asked myself, is there any better arrangement? Must judges have a fixed term of office? If yes, how long?

The Courts as Political Agencies

Although we profess to be a democracy, our judges have, at times, expressed themselves in a manner that smacks of an abiding faithfulness to one political party or the other. In purely political cases, one easily sees that the difference between the majority view and the minority view is primarily actuated by the political affiliation of individual judges sitting on the case. It is interesting to note that every one judge in Ghana, like any ordinary Ghanaian, exercises a his or her franchise. Every judge votes, signifying that judges are not politically neutral persons as we presume them to be. We can, at best, hope that judges will value the public confidence reposed in them to do justice and uphold fidelity of law. It is sad and regrettable that judges make their political stance so plainly conspicuous that their choice of words in their judgment merely betrays them as the exalted alter egos of the government that appointed them.

Our system of government makes appointment of judges the prerogative of the president. This brings about a situation where party apparatchiks with legal background are appointed by the president as judges to fill the courts. When judges are appointed by the President, they, as people argue, feel obliged to use their office to champion the policies, political whims and caprices of the appointing president. Certain decisions in our law reports portray the ugly situation where a particular government used the court as a fiat to carry out political vengeance on some members of the opposition. In fact, the court has become a tool for effecting witch-hunting and punishing dissenting members of the polity. What accounts for this major problem in our national life? Is the problem the mode of appointment of judges? Is the problem merely one of personal failings of the judges? Are there better systems of government that fosters independence of the judiciary while making the courts as responsible and accountable as any other state organ? What do you suggest we do?
Objections to the court: How Made?
The judiciary of Ghana seems an institution of overwhelming monstrosity and mystery. Upon hearing of the court, the citizens are immediately put in a state of utter fright. When the courts sit, they appear very unfriendly and distant. The courts are free to pass any verdict at all without any fear of control or objection from anyone. Lawyers more frequently raise objections to their fellow lawyers to signify their dissensions. However, it is contemptuous for a lawyer to raise abjection to a proposition made by a judge, not even when such objection is prefaced by the soothing phrase, “with all due respect”. All that the law and practice permit a lawyer to do is to bow to the judge and say, “I am grateful, my Lord”, “As the Court pleases”, “Most grateful” and suchlike phrases.

Who can question the court for what it does - parliament, the executive, the citizenry or who? Is the Supreme Court of Ghana too supreme for a good? If it is, what ought we to do?

The courts have the power to validate the invalid and invalidate the valid. What can’t the Supreme Court of Ghana do under the sun? Perhaps, what the Supreme Court cannot do is to order that a man be changed into a woman. The Supreme Court has the power not only to enforce the law, but to legislate at will. In fact, the life of the ordinary Ghanaian depends on the intelligence of the judiciary. The judiciary encourages and discourages actions of the masses.
What is happening in Ghana today confirms the fears and foreboding of Thomas Jefferson expressed in his Letter to John Wayles Eppes, in 1807 when he said:
“The original error was in establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will.”
When a judgment of a court is unsatisfactory or considered bad, the law enjoins the dissatisfied party to appeal against the said verdict and perhaps go for a review. What happens when the final decision of the highest court is deemed palpably wrong and ill-motivated? What happens when the verdict of the court is deemed as politically motivated? Where else do we go? Who has the power or even right to hold the Supreme Court accountable? Is the Supreme Court always right?
We have instances where the Supreme Court has held that the Court of Appeal was wrong in its decisions. But is the Supreme Court itself always correct in its opinions.

In Korblah II Alias Tetteh And Another v. Odartei III [1980] GLR 932–945 the Court of Appeal in allowing an appeal from a High Court stated that “the learned judge clearly erred”. Republic v. Kumasi Traditional Council; Ex Parte Nana Kofi Dei [1973] 2 GLR 73 – 90 the Court of Appeal held that, “Consequently, the High Court had erred in holding otherwise”.

I hope it may not surprise anyone to hear that the Supreme Court also, even by majority, errs in its decisions. In the famous case of Tsatsu Tsikata v. Attorney-General [26/06/2002] CIVIL MOTION NO. 11/2002 the Supreme Court, in overturning an earlier majority decision in a review application held thus: “The majority judgment omitted to consider and examine relevant constitutional provisions to which I have made reference and consequently erred in law in the conclusions it reached.” It was also observed that, “The majority erred when they came to a contrary conclusion”. If the majority of the Supreme Court judges can err in their decisions, then how safe are we if the Supreme Court is subject to no control by any other organ of government or group of trained persons?
The decision of a court, no matter how manifestly erroneous, is final and binding unless it has been reviewed or appealed against. In Bisi v. Kwakye [1987-88] 2 GLR 295, Taylor, J.S.C. said: “In our system of adjudication the majority view of a plural bench of a court represents the binding judgment of the Court, even if it can subsequently be demonstrated to be vulnerable to attacks”.
In many cases before the courts, mere homespun wisdom is sufficient to reveal the errors, vacuities and mistakes in the judgment of even the highest court of the land. Many Ghanaians may well be dissatisfied with the verdict of the just ended election petition. But beyond review, who can legitimately question the verdict? This is the system we have adopted for ourselves. We must accept it or call for necessary reforms.

Who Judges the Judges: How to Remove a Judge

In Ghana, a judge can only be removed from office for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind. The question is who determines what constitutes incompetence or inability? The same judiciary does that. The process of removing a judge is also purely judicial in nature, undertaken by judges. We are back to square one – judges are judged by judges! No other organ of government has any overriding power to effect the removal of a judge.
To this end, it is necessary to say that the independence of the judiciary is a keystone of true democracy. However, the judiciary is not beyond human flaws. The courts err. It behoves us all as a people to change the status quo if we desire so or be temperate, gentle and humane in our comments and criticisms of judicial decisions.

BY DANIEL KORANG
ENSO NYAME YE CHAMBERS
P.O. BOX 2191
SUNYANI
0208759342