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Once again, our judges are in the news for the wrong reasons.
Speaking at a sensitization workshop on National Security strategy for judges, Hon. Kan Dapaah echoed concerns about public confidence in the judiciary. He said, “Injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice or biased justice is certainly a threat to national security. Indeed when Injustice occurs, particularly in situations where the bench which is considered the final arbiter of justice is deemed biased, citizens tend to take the law into their own hands most of the time without recourse to established systems of justice delivery. If the interpretation of the law is tilted in our favour all the time, people will start accusing the judiciary and will not have the confidence that they need.”
Following these commonsense remarks, Mr. Dapaah has faced a barrage of criticisms, mostly from the governing NPP. The most detailed of these criticisms was from former Attorney General Ayikoi Otoo. The former Attorney General said, “I am sorry to say that I don’t think he sought legal advice ( before commenting) because judges have taken an oath to do justice to all manner of persons without fear or favour, ill-will or affection. He was saying that if someone brings a bad case, the Supreme Court must give a decision to favour that person because a ruling for you will make people feel there is something wrong.”
Now before commenting on these matters, let me confess my ignorance of the “I-put-it-to-you” procedures. I am NOT one of Ayikoi Otoo’s learned friends and I have not sought legal advice. But it shouldn’t matter. Our constitution recognizes the interest of laypeople in the law by making it possible for us to petition the Supreme.
Our President implored us, admiringly, “to be citizens, not spectators” and a National Security Minister who has been in charge of both Defense and Interior is not just a citizen–he is a leader. And if my memory serves me right in the contempt case involving then NPP General Secretary, “Sir John”, one Ayikoi Otoo, steeped the law, invoked a defense rooted in commonsense and culture. He told the Supreme Court that Sir John had committed “contempt of court” because of “Gbesi”! Now, I am ignorant of the law but I am sure a defense based on “Gbesi”, until Ayikoi invoked it, was not a legal principle!
To return to Kan Dapaah, he wasn’t warning against theoretical dangers. We are already seeing the effects of waning public and political confidence in our courts. Former President Mahama has served notice that the next elections will be settled, not at the Supreme Court but “at the polling stations” and that they would be a “do or die” affair.
And it does not help the public’s confidence in the courts that the NPP has become its reflexive defender– a practice of defending independent state agencies that is unfortunately bipartisan and in evidence when the NDC is also in power.
Now, unanimous opinions have their place–as was demonstrated to positive effect in Brown vs Board of Education in 1954 and the case and the case of the Nixon tapes in 1974 in the US. But they are uncommon for a good reason. Courts must reflect honestly the differences in a society to earn the public’s confidence. That is why, according to ABC News analysis, the US Supreme Court ruled unanimously only 48% in the last decade and Canada’s Supreme Court did so only 40% in 2019. And knowledge of the law is no insurance against wrong and even bad Court decisions. That is why courts reverse themselves. The Dredd Scott and Plessy vs Ferguson decisions in the US, as well as re:Akoto decision in Ghana were delivered by learned judges. And as Atuguba warned about politics and Anas demonstrated with goats and cash, our courts can be influenced by more than the law.
Kan Dapaah was right and we must heed his wise and patriotic counsel.
Courts that are seen as biased cease to ensure justice and become, as he said, a threat to national security.
Long live Ghana.
Arthur Kobina Kennedy (April 12th, 2022)
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