Since 1992 when Ghana embraced democracy there has not been such heightened and sustained attack on the judiciary as we see today, when we expect to enjoy the dividends of our seemingly maturing democracy. Whenever I read that portion of the Holy Scriptures which says “And there was war in Heaven”, I realize immediately that there is dissension and opposition even in heaven; we must endeavour to be temperate and self-controlled in how we criticise purely human institutions in the execution of their functions. Lack of political opposition is not a virtue of democracy; it is rather a major democratic defect. We must carefully manage our differences in order that they may not develop into hideous and ugly tumours on the face our democracy. Political opposition must not be dragged to lengths of decrial.
The judiciary and judges are not God-ordained entities that function outside the realm and exigencies of an evolving society, or, I need here say that the judiciary is not a heavenly organ filled by infallible gems who are not amenable to common frailties of mankind. When we establish human institutions and fill them with humans of our own corruptible nature, then we have the responsibility to be temperate in our criticism and comments on their performances. It is unfortunate that professionals whose training ought to have instilled in them some sense of responsibility are indulged in attitudes that are inimical to the growth of our democracy. It is still a brainteaser when one engages oneself to know whether it is the system that has failed to shape the attitude of those people or they are simply incorrigible.
Political backlash against judges is gaining momentum following the 2012 general elections. The increasing political attacks on the judiciary by both major political parties and members of the legal fraternity are diminishing the independence of the judiciary and, equally important, the public’s confidence in it. No one knows when the seeds of the ongoing political assault on the judiciary were sown. Political attacks on judges imperil judicial independence and undermine judicial authority.
The public confidence in the judiciary is rapidly diminishing and very soon, the judiciary may be seen as nothing more than another blatantly partisan advocacy group that dispenses mischief according to the whims of politicians. There must be an end to the current wave of intemperate and ill-considered attacks on the judiciary, and all of us must be deeply concerned by the failure of national leaders to condemn such attacks. The rambling attacks on judges must stop!
Difference between fair criticism and irresponsible demagoguery
It is important to differentiate between what constitutes fair criticism and what constitutes irresponsible demagoguery that threatens the independence of the judiciary. The most obvious example of irresponsible criticism and demagoguery is a distortion of a judge’s record or decision in a case. Most common is the suggestion that a judge’s decision was actuated or motivated by partisan considerations. To suggest that a particular judge belongs to a particular political party because he was appointed during the reign of that political party suggests a misunderstanding of our system of government. Judges do not have fixed terms of office.
They do not exist with governments. Governments come and governments go but the judiciary never passes away. The judiciary has a feature of permanence and perpetuity. Judges appointed by military governments are even in office administering justice. Thus pre-democracy judges are still on the bench because they are not to be seen as political agents or cohorts of the presidents who appointed them. It is therefore disgusting and unprofessional for anyone to give political complexion to individual judges in the performance of their functions.
There is no question that fair criticism plays a critical role in improving the quality of the courts. Fair comment of judicial decisions is limited to the decisions of the court and not extended to personalities of individual judges. Fair comments must be free from imputation of improper motives to judges. Every appeal or review, every petition for rehearing, every dissent is a criticism of a judicial decision. Our legal system has elaborate procedures for the exercise of appellate and review jurisdictions, thereby making provisions for the accommodation of dissention. It is therefore not untoward or unheard of for a party to lose a case and be dissatisfied with a court verdict. It is equally clear that everyone in the Ghana has the constitutional right to comment on or criticise any decision of any court in Ghana. But irresponsible criticism and ill-assorted comments which have the overall effect of eroding public confidence in the judiciary are incompatible with judicial independence and the rule of law.
It is irresponsible for critics of the courts to argue that only results matter, without regard to the legal principles that govern judicial decision-making. It is irresponsible to attack a judge as a way of venting personal spleen against a judge. And it is equally irresponsible to attack a judge for the purpose of bullying those who remain on the bench into submitting to a particular course of action.
Those who criticize irresponsibly often focus only on the result of a single decision without considering the underlying facts and the legal principles which govern the judge’s ruling in the case. They do not take into account the overall performance of the judge while in office. Increasingly, attacks include even outright misrepresentations of a judge’s decision. We must come to appreciate the judicial process and refrain from comments that do not augur well for free administration of justice.
Legislators or executives may base their decisions on focus groups or public opinion polls, but judges may not. Judges are expected to enforce the law. As it may be rightly put, the judiciary is to serve as safe asylum during times of crisis. Judges are expected not to gauge public opinion in making their decisions, but rather to decide the legal issues before them undisturbed by the clamor of the multitude.
There has been at least a grudging acceptance of the notion that continuous and deliberate disparagement of the court is detrimental to the health and fortunes of our democracy and nation. If the increasingly scathing attacks on the judiciary does not cease, then I shudder to say that in the not-too-distant future, judges would be looking over their shoulder when making decisions about whether they are going to be thrown out of office or publicly lambasted. Ghanaians must be responsible in our comments on court verdicts if we desire to create a good government for ourselves.
Fallen standards in professional ethics
It is, I think, generally acceptable that no association of lawyers deserves its name unless its members understand their professional roles in society and imbibe the common truism that engaging judges in personal brawls is inimical to the rule of law and democracy itself. The most grievous damage inflicted on our legal system is the growing political contamination of the legal profession. The judiciary is bound to fail if some members of the legal fraternity continue to engage judges in endless and baseless personal altercations.
The continuous attack on the judiciary by some members of the legal fraternity is detrimental to the proper functioning, integrity and credibility of our judicial system. Ghana is teetering on the edge of a constitutional crisis if lawyers, who must know better, subconsciously and arrogantly, spew insulting and disparaging comments on judges of the highest court of the land. The legal fraternity must react with outrage to the latest allegations being firmly peddled by some senior members of the Bar that Justice Annin Yeboah’s verdict was motivated by partisan considerations and that the court’s verdict was corrupt. It must be feared that by giving political complexion to the individual judges of the Supreme Court our national march towards a glorious democratic victory would be rendered illusory and stillborn.
Acts of violence and retaliation against judges by professional lawyers have increased at an alarming rate across the country as individual lawyers have resorted to arrogance to take the law into their own hands and to lambast judges personally for their judicial verdicts. These attacks signify a great threat to the establishment of the rule of law, and disrupt any progress being made to revitalize the country’s judicial system. It is the role of the legal community to uphold the rule of law.
Any attack on members of the bench, is an attack on the fundamental principles of the rule of law and the right to access to justice. It could have the potential to silence victims, in particular vulnerable victims of human rights abuses, and could discourage lawyers and judges from taking controversial cases. This ultimately sends the message that violence is above the rule of law. If we are to overcome these attacks, and build trust in our judicial system, the perpetrators of these violent attacks must be held accountable.
Lawyers cannot fail our society. No lawyer deserves his scholarship if he openly disparages judges for their judicial opinions. Lawyers must remember that the dignity of the legal profession is not a function of the wealth of individual members of the Bar; rather, the dignity and honour of the legal profession is determined by the exactitude of how lawyers uphold the rule of law, due process, respect for the judiciary and personal commitment of members of the Bar to eschew whatever is uncouth.
The costs of irresponsible criticism of the judiciary
The incessant bashing of judges undermines the independence, integrity, and impartiality of the judiciary. In the current political climate, judges undoubtedly realize that by taking particular decisions in controversial cases they may be signing their own political death warrants.
It must be understood the damage to the integrity, effectiveness, and credibility of the courts caused by irresponsible attacks on judges and the courts. Uncontrolled public attacks on judges threaten the foundation of the rule of law and weaken the judiciary in the performance of its duties.
In addition, unfair criticisms and distortions of court verdicts discourage those who would most want to be judges from seeking or taking the bench. Why would any conscientious lawyer want to accept a seat as a judge, knowing that his opinion may be used to misrepresent everything he may do as a judge and be subjected to a morass of scorn? The credibility of the courts suffers when judges are perceived as giving in to political pressures.
Most fundamentally, if the citizenry should continue to subject the courts to indignity and publicity of contumacious treatment are simply unable to perform one of their most important constitutional roles, described by Justice Black as serving as “havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are… victims of prejudice and public excitement.”
Today, as politicians in Ghana compete to see who can be the toughest and roughest to snatch political power, there is a particularly urgent need for independent courts which will rely on the Constitution alone to decide whether politically popular measures pass constitutional muster.
Ensuring independent courts in the current political climate requires positive action. Given the realities of our legal system and the structure of our judiciary, such positive action must come primarily from political officeholders, members of the Bar, and members of the civil society -persons whose voices can be heard and who are in a position to effect the changes that must be made.
There is little that judges can do when they are attacked personally. Political attacks on judges tend to weaken and threaten the constitutional and judicial structure of this nation. Responsible public officials and members of the Bar must step forward and respond to irresponsible attacks on judges by politicians and lawyers. There has been a regrettable dearth of leadership in this area. Someone needs to step forward and remind everyone that the procedural guarantees of human rights are fundamental principles that distinguish the rule of law from the rule of the lynch mob.
Why is there not a strike force, a rapid response team, to deal with the recent outpouring of judicial attacks – not so much to defend individual judges, but to put things in proper perspective and to point out the importance of the independence of the judiciary?
Several steps should be taken to insulate judges from political pressures. Those who have the respect of those in politics, journalism, and the Bar should express disapproval of unfair attacks and efforts at intimidation of judges. Those who have the ear of lawyers should caution some of them that they have gone too far, that their actions are gradually assuming the character of irresponsible statesmanship. Whenever a politician launches an irresponsible attack on a judge’s decision or personally attacks a judge, all of us have a duty to write that official a ‘letter’ expressing our unanimous disapproval and aversion. We must stop fabricating false justification for unjustifiable vilification of the judiciary. It would not help.
The Ghana Bar Association and the media should accept the responsibility to educate the public about the role of the courts and the importance of the independence of the courts. Law schools must instill in their students respect for the judiciary and the rule of law.
Within individual cases, judges must disqualify themselves in cases in which they cannot be fair and impartial due to political pressures. And litigants must move for the disqualification of judges who come under such pressures or have engaged in conduct which raise questions about their impartiality. If we desire to create a better Ghana for ourselves and posterity then every state organ and component of civil society must endeavour to defend the independence of the judiciary and condemn any tendency that seeks to undermine judicial authority.
To this end, it is hoped that lawyers and journalists, being honourable, intelligent and responsible citizens, having respect for the Constitution and the law of the land, will curb the excessive zeal of their members and make sure that they work within the framework of the law.
BY DANIEL KORANG
ENSO NYAME YE CHAMBERS
P.O. BOX 2191