GHANA'S JUDICIARY AT 50 YEARS

BEFORE the advent of colonial rule, the natives of Ghana, then the Gold Coast, adjudicated cases through customary law, with the chief's palace serving as the court. Peace thrived and the people lived in harmony, because the parties in a litigation went home almost always satisfied.
Whenever they were not satisfied with any judgement or settlement, they had another option to go to the most senior chief or paramount chief for appeal. Decisions arrived at on appeal were final and had to be heeded to.
Justice was thus ensured through the prescription of sentences either in the form of punishment and reward or in restitution. However, with the onset of British colonial rule, the Queen of England exercised judicial powers over the Gold Coast.
This article looks at the history of the judicial system in Ghana, the challenges and the way forward in the wake of Ghana's 50th independence anniversary celebration.
Historical records indicate that the Bond of March 6, 1844, signed at Cape Coast between Commander Hill and some local Fanti chiefs, was a document that acknowledged the power and jurisdiction which had been exercised in the territories adjacent to the British forts, as well as other settlements.
It was a declaration that the first object of the law was the protection of individuals and property and that human sacrifices, ‘panyarring’ (giving others as pawns for debts until such debts were paid back), and other barbaric customs were an abomination and contrary to the law.
The agreement was that serious crimes should be tried by the Queen's Judicial Officers, who should sit with the chiefs to mould the customs of the land to meet the general principles of British Law.
In 1853, the Supreme Court Ordinance was passed to establish the Supreme Court of Her Majesty’s forts and settlements on the Gold Coast, which had in 1850 been severed from Sierra Leone and given its own governor in the person of Commander Hill.
However, by a commission dated February 19, 1866, the Charter of 1850 was revoked and the Gold Coast, together with Sierra Leone, Nigeria and The Gambia were created under the governors of these four states.
The judiciary at the time had a chequered history of several revokes until 1876 when it was firmly established through the Supreme Court Ordinance (Ordinance No. 4 of 1876). The first Judicial Service Commission, consisting of the Chief Justice and two other judges, the Attorney General and the Chairman of the Public Service Commission, was set up on May 5, 1954.
That was when the greater part of the Gold Coast (Constitution) Order in Council came into operation.
In fact, as with all post-independence constitutions, Article 125 (3) of the 1992 Constitution vests in the Judiciary the powers of the Republic to administer the day-to-day activities of the courts.
Since 1876, Ghana has had 23 Chief Justices with the current Chief Justice, Mr Justice George Kingsley Acquah, being the 11th post-independence Chief Justice, having assumed office in 2003. Sir Arku Korsah was the first post-independence Chief Justice, having served from 1956 to 1963.
Of the 23 Chief Justices, the longest serving officer was Justice Philip Crampton Symly, from 1911 to 1928 while the shortest serving officer was Justice P.A. Smith, from 1878 to 1879.
The mission of the Judicial Service of Ghana is to promote the smooth and efficient administration of justice for the benefit of all manner of persons without fear or favour, affection or ill will and create an enabling environment for good governance.
Primarily, the courts interpret the law and adjudicate cases to bring about justice in society.
It is worthy of note that the country's court system is modelled along the lines of the British system and embodies both Common Law and Customary Law. A combination of the adversarial, inquisitorial and jury systems of trial is used.
In the adversarial system, the court’s actors serve as impartial referees between the accused and accuser to arrive at conclusions on the basis of the law.
In the jury system, however, people who are of the same background as the defendant, mostly in indictable crimes, are selected to listen to the court proceedings and get educated on the law by a judge after which they retire to sit in camera to arrive at a decision on whether one is guilty or not.
In the inquisitorial system, the judge asks questions in order to elicit the truth.
As the mission of the service clearly shows, embarking on such an exercise is not easy, especially when human beings are the major players. This notwithstanding, the service has come a long way to make Ghana a beacon of hope on the African continent.
The courts in Ghana are of two main categories: The superior courts and the lower courts, with the former comprising the Supreme Court, which is the highest court of the land, the Court of Appeal, the High Court and the Regional Tribunal.
The lower courts, on the other hand, are made up of the circuit court, district court, which, when differently constituted, serve as a juvenile court, and the family tribunal.
The Supreme Court is the final appellate body of the whole court system of the country and it has the original and exclusive jurisdiction in all matters relating to the enforcement or interpretation of the constitution and all matters arising as to whether an enactment was made in the excess of the powers conferred on Parliament or any other authority or person by law or under the constitution.
It has appellate jurisdiction to the exclusion of the Court of Appeal, to determine matters relating to the conviction of a person for high treason.
Appeals from the National House of Chiefs are also heard by the Supreme Court, which has supervisory jurisdiction over all courts in the country.
The 2005/06 Annual Report put the number of Supreme Court judges at 14 but some of them have since gone on retirement. The number of justices at the Supreme Court, according to this figure, is even but the number for each panel should always be an odd number so that there could not be a tie when taking decisions.
The Court of Appeal has no original jurisdiction and it serves as the appellate court for all the High Courts, Regional Tribunals and the circuit courts, unless otherwise provided by law.
Article 136 of the Constitution states that the Court of Appeal shall consist of the Chief Justice, not less than 10 other justices of the Court of Appeal and such other justices of the superior court as the Chief Justice may request to sit in the Court of Appeal. At any of its sittings, the court is constituted by three justices.
The same 2005/06 Annual Report gave the number of Appeal Court justices as 21. Again, this could be lower or higher, depending on new promotions and the number of them who have gone on retirement.
It is important to indicate that both the Supreme Court and the Court of Appeal only sit in Accra. However, there are plans by the current Chief Justice to move the Court of Appeal to Kumasi.
Similarly, there is only one High Court but with extensions in major towns, as well as the cities. The High Court is constituted by a single judge, who controls its activities. But in indictable trials the judge is required to sit with a jury or assessors. Unless specified by the Constitution, the High Court has original jurisdiction in all matters, whether civil or criminal, and it also has appellate jurisdiction as may be conferred on it by the Constitution or any other law.
Under the current dispensation, the High Court serves as the appellate body for appeals from criminal judgement of the circuit court and all appeals from the district court, the juvenile court and the family tribunal.
The 2005/06 Annual Report gave the number of High Court judges in the country as 62 and, again, as indicated already this number could be higher or lower, depending on the number of new promotions and retirements.
Accra and Tema combined have the highest number of High Court extensions and are followed by the Ashanti and Western regions, Eastern Region, Central, Brong Ahafo and Volta regions as well as the Northern Region, Upper East and Upper West regions in that order.
Two other divisions of the High Court, namely, the Fast Track High Court and Commercial Court, have been created and both operate under an electronic case flow management system. The establishment of the Fast Track division generated a lot of hullabaloo at the time.
The commercial courts were also set up following the general dissatisfaction with the resolution of commercial disputes and as per their mandate, they deal exclusively with matters of a commercial nature.
This is clearly spelt out under Order 58 of C.I. 47 (High Court Civil Procedure Rules). The difference between this court and the other high courts is with respect to its jurisdiction.
The court procedure is such that some justices of the Court of Appeal can sit with additional responsibility as High Court judges.
Article 142 of the Constitution mandates the Chief Justice to establish in each of the regions a Regional Tribunal with special criminal jurisdiction. The tribunals have the status of the High Court and have jurisdiction to try offences against the state and the public interest as Parliament may by law prescribe.
Previously, the tribunals were operating in Kumasi, Takoradi and Bolgatanga but these have been turned to High Courts except those in Accra and Tamale, which are currently in operation.
The tribunal is constituted by a panel consisting of a Chairman and not less than two other panel members.
The circuit court is at the apex of the lower courts and its jurisdiction includes civil actions arising under contract or tort or for recovery of all liquidated claims not exceeding ¢100 million, jurisdiction in all landlord and tenant cases, ownership, possession, occupation and title to land cases.
It also has jurisdiction in application for probate and letters of administration, where the value of property does not exceed ¢100 million and jurisdiction in matters involving children.
Appeals from the Circuit Court in civil matters go to the Court of Appeal while those of criminal cases go to the High Court and then to the Court of Appeal or the Supreme Court.
According to the report, there are 57 circuit court judges at post and this presupposes that there is an equal number of courts spread across the country, with the Ashanti Region having the largest share followed by Accra, Eastern and Volta, Brong Ahafo, Central and Western regions and others in that order.
Some Circuit Court judges also sit as additional District Court magistrates in districts where magistrates have not been appointed.
The District Courts make up the largest number of courts in the country and statistically handle the largest number of cases as well.
This has been bolstered by the introduction of the career magistrate programme, the first batch of which passed out in October 2005. That increased the number of magistrates by about 58 per cent. As of 2006, there were 79 magistrates at post, although the annual report pegged the figure at 80, the additional one being a special assistant to the Chief Justice.
The civil jurisdiction of the District Court is just like that of the Circuit Court except that the value is far less (not exceeding ¢50 million). In criminal matters, these courts have jurisdiction to try summarily offences punishable by a fine not exceeding 500 penalty units (one penalty unit is ¢120,000), or imprisonment for a term not exceeding two years or both.
It also has jurisdiction to try attempts to commit suicide and abetment of crime or conspiracy to commit such offences.
The Juvenile Court is composed of a magistrate and two other persons, one of whom should be a social welfare officer with power to hear and determine any matter, civil or criminal, that involves a person under 18.
Regrettably, most of the magistrates’ courts are not sitting as Juvenile Courts because they have no magistrates. The District Court also serves as a family tribunal to hear and determine actions that arise under the Children’s Act 1998 (Act 560), that is, matters concerning parentage, custody, access to and maintenance of children, as well as jurisdiction in cases of children in need of special care and protection, in which case the tribunal can render care and supervision orders.
It is constituted by a panel of a Chairman and not less than two or more than five members, including a social welfare officer appointed by the Chief Justice on the recommendation of the Director of Social Welfare.
The effective administration of justice by no means enhances good governance and also promotes democracy.
That the judicial service plays a major role in the development of the country is no fluke and that is why any infractions or slurs on its part put in jeopardy the rule of law, transparency and the speedy administration of justice and upholding the fundamental human rights of the people.
Can the Judiciary be said to have passed the test to promote good governance in the overall development of the country? Life, it has been said, begins at 40 and if so, then 50 years (minus colonial encounters) in the life of the Judiciary is no mean achievement. For this reason, the Judiciary in Ghana is expected to have chalked up some successes, which, no doubt, has been the case.
However, one critical issue that faces the Judiciary is the public’s unfavourable perception of corruption, the reliance on outdated rules and procedures, inadequate equipment, the lack of exposure to good and current legal practices and unreasonable delays in the adjudication of cases, among others.
These are things to worry about especially when the current Chief Justice, Mr Justice Acquah, clearly admits that while the truth of some of these complaints may be due to individual frailties, the majority of them could be traced to the unsatisfactory infrastructural facilities and environment under which members of the Judiciary work.
Such a situation obviously gives room for low public confidence, especially in the business community. Sometimes the mere sight of our court buildings makes one wonder whether the Judiciary deserves its status as the third arm of government.
The numerous problems of the Judiciary notwithstanding, one can heave a sigh of great relief, considering efforts put in place to make it the envy of other countries on the continent.
It is in this area that the Chief Justice should be commended for embarking on a wide range of innovations including the review of some of the court rules and procedures, especially the High Court (Civil Procedure) Rules, 2004, C. I. 47, which allow the engagement of private persons or institutions to serve court processes, the development of a code of ethics, the establishment of the complaints unit, the Fast Track system and commercial court units, as well as the construction of a new Supreme Court administration block and the Court of Appeal complex to be built at Adum in Kumasi and also the resort to Alternative Dispute Resolution and the publication of an Annual Report to highlight the annual activities of the service.
In fact, since July 4, 2003, when the Chief Justice assumed office, he has also ensured that corruption in the service is minimised to enhance accountability. He has, therefore, introduced a new system of revenue collection and the HFC Bank has provided a collection point for all court fees and fines from litigants and other court users.
This project, which commenced in June 2006, is expected to be extended to the regional courts. Another plus for the service is the Chief Justice’s outreach programme, which has been instituted to actively engage all Ghanaians in discussing the challenges facing the administration of justice at the local and district levels.
It was no surprise, therefore, that in June 2006 the Chief Justice was awarded the highest honour of the land, the Order of the Star of Ghana, in recognition of his hard work, dynamic leadership, dedication to work and the many reforms that he had introduced to enhance the administration of justice in the country.