Reflections on the Supreme Court of Ghana
We are here blessed with the insight of an industrious individual who has had the opportunity to observe the workings of the Supreme Court from the perspective of a law teacher and subsequently as a member of the same court.
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The objective of the author is set out very crisply in the very first sentence of the book as that, “The primary purpose of this book is to throw light on Ghana’s Supreme Court as an important national governance institution and to make a contribution to comparative law.”
The philosophically inclined will find the book fascinating as it sets out to “promote a conception of the law as an instrument of social action and policy.” This is a concept that reminds us of the legal theories of great jurists such as Roscoe Pound.
Chapters
The book is divided into 12 Chapters; Chapter 1 explains the Supreme Court’s position within the structure of the court system in Ghana. The Chapter highlights the special jurisprudential competence of the Supreme Court when compared to the Supreme Court of other jurisdictions. It is said to possess a multiplicity of jurisdictions and access to it is virtually automatic in a majority of cases. It also has the power to depart from its previous decisions thus reserving for itself the leeway to “decide to develop new case law to respond to changing circumstances.” For the above reasons the author opines that “The Court has the opportunity to contribute to the development and maintenance of a system of good governance.”
Chapters 2, 3, 4, 5 and 6 each is devoted to some particular jurisdictional authority of the Court. Chapter 2 discusses the Court’s very important function as the constitutional court that is clothed with jurisdiction to interpret and enforce the constitution subject to the power of the High Court to enforce the fundamental human rights and freedoms in Chapter 5 of the Constitution. Chapter 7 discusses the unsettled question of whether the Supreme Court possesses what is described as a “residual unspecified jurisdiction” to do justice. This relates to the proposition that the Supreme Court should not under any circumstance allow injustice to prevail where the judicial system has failed to deliver justice. The author cites the case of Amidu v Attorney-General, Waterville Holdings (BVI) Ltd. & Woyome in which the Supreme Court in its review judgment seemed to have claimed for itself such residual jurisdiction. He calls for circumspection because the Supreme Court is a creature of the Constitution and it would, therefore, amount to “a defiance of the Constitution for the Supreme Court to arrogate unto itself an amorphous jurisdiction to apply substantial justice to all, although no such jurisdiction is provided for in the Constitution.” Such jurisdiction, in the words of the author “would be an unruly horse”. This debate obviously leaves open the need for further dilation on the matter by both the bench and academia.
Insider’s opportunity
Chapter 9 provides an insider’s opportunity for further analysis of the impact of some landmark decisions of the Supreme Court on national life in Ghana. The author discusses the classical case of JH Mensah v Attorney-General and concludes that in it the Supreme Court has settled categorically that the doctrine of political question does not apply in Ghana.
He reminisces over the decision in the case of Ex Parte Commission on Human Rights and Administrative Justice (Richard Anane Interested Party) in which the majority upheld the objection of Counsel for Dr. Anane that the CHRAJ could not investigate allegations of corruption without a formal complaint from an identified complainant. The author who wrote a minority decision reiterated his views that the consequences of the position taken by the majority was to “constrain severely the scope of the investigative authority of CHRAJ.” On the whole Chapter 9 provides additional analysis to some classic decisions of the Supreme Court.
Chapter 11 carries the caption that would interest the development lawyer and advocate who would want to query the developmental role of the Supreme Court.
The significance of the Supreme Court as the bastion of our democracy is highlighted and it is for this reason that the author strongly advocates that everything possible must be made to internalize the value of independence of the judiciary in the psyche of both serving judges, as well as the general public.
Conclusion
In conclusion, the author recommends to lawyers that in our interpretation and application of the, we should be mindful of its effect on society. He nevertheless recommends a selective application of the jurisdiction of the Supreme Court so as to reduce its workload and free space for it to concentrate on matters presenting substantial issues of law.
The 263 page book is deeper than its size depicts; it is a piece of work that throws open the Supreme Court. Irrespective of its rigour it is easy to read and comprehend without too much stress. It is unlike many other academic writings on similar topics that are so rigid as to force one to read a sentence more than once to make sense out of it.
It is indeed a great contribution to learning.