“The question is not whether it happens or not but how to arrest it. It will be arrested if the appointment process is transparent and genuine, such that good and competent legal materials get onto the bench.”
Justice William Atuguba

These words from the former Chief Justice has resurfaced a fierce argument on judicial independence in the country.

Ensuring the independence of key institutions like the judiciary, police, and military is imperative for the proper functioning of any democratic society. In recent times, concerns have been raised about the extent of presidential powers in the appointment of leadership within these institutions, leading to potential compromises in their autonomy and efficacy. Particularly focusing on the judiciary, the process of appointing justices to the Supreme Court and other judicial bodies has come under scrutiny, with calls for a restructuring of the current system to prevent undue influence and ensure impartiality.

It is in that reasoning that the framers of the 1992 constitution sought to forestall the situation by the article 127, titled “INDEPENDENCE OF THE JUDICIARY.”

“(1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.
“(2) Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution.”
Article 127 of the 1992 Constitution

However, the existing provisions and structure within the 1992 constitution grant the President significant influence in the selection of the Chief Justice, Supreme Court Justices, as well as other judicial officers. Article 144 titled APPOINTMENT OF JUSTICES OF SUPERIOR COURTS AND CHAIRMEN AND OTHER MEMBERS OF REGIONAL TRIBUNALS states that the Chief Justice, the other Supreme Court Justices of the Court of Appeal and of the High Court and Chairmen of Regional Tribunals shall be appointed by the President.

While the involvement of the Council of State, Judicial Council and Parliament is meant to provide checks and balances, critics argue that the concentration of such power in the hands of the executive compromises the independence of the judiciary. To counter this, suggestions have been made to transfer these powers to a more neutral entity, such as the Judicial Council, which would better guarantee the judiciary’s autonomy.

The issue of independence is paramount, as it directly affects the ability of these institutions to operate with integrity and fairness. Analogously, just as an individual in a relationship or at a workplace needs independence to make sound judgments, these institutions require the same freedom from external influence to function effectively. The current situation has led to concerns that various public institutions, including the police and the military, may be constrained and unable to operate impartially due to their close ties to the appointing authority.

To rectify this, there is a growing consensus that appointments within these institutions should be based purely on merit and not influenced by political affiliations, personal relationships, or other inappropriate considerations. It is essential to establish stringent safeguards within the constitution that insulate these governance institutions from the sway of the presidency and other political pressures. This includes secure tenure for officeholders, attractive service conditions, and a clear separation of powers to limit the executive’s reach.

The New Patriotic Party (NPP) government has faced accusations of appointing individuals with personal or political connections to the judiciary, raising concerns about the erosion of public trust in the institution. Such actions, critics argue, undermine accountability and jeopardize the judiciary’s role in upholding justice. This perception has significantly impacted the public’s confidence in the judiciary, with many expressing disillusionment and skepticism about seeking legal recourse through the courts.

Proposals from the opposition particularly from the former President, John Dramani has been to neutralize the bench with ‘NDC’ judges which many have condemned for its potency of overly politicizing the bench. Others also believe the situation is only an offshoot of democracies as experienced in the UK and the US.

However, this erosion of trust poses a significant threat to the stability and peace of Ghana’s democracy, potentially leading to a breakdown in the rule of law and encouraging citizens to take matters into their own hands. Urgent measures are necessary to address these issues and restore the judiciary’s credibility in the eyes of the public. This entails a comprehensive re-evaluation of the appointment process, implementation of stricter regulations to ensure merit-based selection, and the fostering of a culture that respects the independence of these vital institutions.

Ultimately, safeguarding the independence of the judiciary and other governance institutions demands collective efforts from all sectors of society. A robust legal framework, transparent selection processes, financial autonomy, and a culture of accountability are crucial elements in preserving the integrity and effectiveness of these institutions. Only through a steadfast commitment to these principles can Ghana ensure the longevity of its democratic system and uphold the rights and liberties of its citizens.

According to Justice William Atuguba (JSC), by way of interim solution, members of the legal profession know themselves; they know the dishonest ones and they know the genuine ones. He hence charged the good ones block the bad ones when it is time for appointments.

He believes that by the sheer abundance of competent and respectable people on the bench, corruption will die by itself.

“After some time, people will get to know that you can buy justice, then you will be free”, he added.

By far, the question is not whether the independence of the judiciary has been compromised or not. Evidently, the comprise is; the question is how to arrest it.