Judiciary needs financial autonomy
No Constitution can be satisfactory unless it contains safeguards that protect the judges against influence, pressure and inducement.
The 1992 Constitution of Ghana should not be an exception.
In fact, for the rule of law to thrive, the independence of the Judiciary must be guaranteed.
Therefore Article 127 (1) of the Constitution categorically insulates all activities of the Judiciary, including its financial administration, from external control to protect its independence due to the sensitivity of its functions.
The issue came to the fore last week at the 2023 annual general meeting (AGM) of the Association of Magistrates and Judges Ghana where the Chief Justice, Justice Gertrude Sackey Torkornoo, said although the 1992 Constitution protected the independence of the judiciary, the service had no control over its financial administration.
“How can we be an independent arm of government if we do not have control over our finances?
Is the constitutionally guaranteed institutional independence of the judiciary only a mirage?
“Can the institutional independence of the judiciary be asserted when we need clearance to engage staff, clearance to access money generated from court services, and clearance to procure any asset to do our work?” she queried.
She referenced the recent GBA conference in Cape Coast where President Nana Addo Dankwa Akufo-Addo mentioned an increase in the financial support for anti-graft institutions to tackle corruption, but said such monumental increment had unfortunately not been extended to the Judiciary.
To add insult to injury, Justice Torkornoo noted that “while funding for certain institutions had been increased in hundreds of percentages, the percentage increase for the judiciary was noted to be a little over three per cent.
The level of financial support for our work ought to increase exponentially not only in quantum, but also in scope.”
It is well-known that the extent and ambit of the independence of the judiciary whether in its operation as a service to the citizens or as to the control of all affairs incidental to its fundamental duty of determination of rights and obligations is a matter of concern for policymakers and action groups across the common law heritage, and Ghana is no exception.
Unfortunately, the term “administration of justice” lends itself to several nuances that cannot be ignored.
Whether it is to administer the word and spirit of justice, the court service or the entire value chain related to the delivery of justice in any form, it differs from usage and jurisdiction.
However, the notion of independence weaves through the entire concept of justice.
The very existence of judicial independence “cannot be separated from adequate and proper judicial administration”, because the latter requires that both policymaking and policy administration are controlled by the judiciary.
For this purpose, the Commonwealth Handbook 2017, known as “The Latimer House Principles, ” states: “An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice.
The function of the judiciary is to interpret and apply national constitutions and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each Commonwealth country’’.
The Daily Graphic believes that judicial independence stands guaranteed under the constitution; the financial and administrative aspects of the judiciary in reality is controlled by the Executive.
The temptation here is that the institutions that control the purse and the administrative aspects of the judiciary in reality continue to be controlled by the Executive.
These institutions that control the financial administration of the judiciary can also directly or indirectly control the extent and efficiency in the execution of the role.
It is a case of who pays the piper calling the tune.
The necessary judicial independence can be undermined if its finances are determined and dictated by the Executive and the Legislature over whom the courts should exercise judicial control.
We support the Chief Justice’s commitment to ensure that the financial independence of the Judiciary is achieved as part of her overall vision to build a modernised Judiciary to better serve the people of the country.