For the benefit of democracy, we have condensed this article with passion and brevity through the capacity of the Constitution, which is the fountainhead of the organs of government, to express our views on how the judiciary ought to respond to constructive criticisms in the 2023 legal year and beyond.
We see this as a panacea for building a stronger judiciary. We all need constructive criticism or advice that can help us improve in our work or attitude.
In fact, Bible has expressly stated in James chapter 3 versus 2 that “we all stumble and sin in many ways …”. Based on this, everyone needs constructive feedback.
Article 21 (1) (a) of the Constitution unequivocally states that “All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media.”
This constitutional provision birthed the repeal of the criminal libel law since it was inconsistent with the Constitution. As a result of that, every Ghanaian citizen has the right to express discontent about judicial decisions, especially when such decisions are inconsistent with the law and repugnant to good conscience.
Article 17 (1), which states that “All persons shall be equal before the law”, did not exculpate any arms of government above the law.
It is trite fact that none of the three arms of government are above the law, including the Judiciary, hence, they are also subject to constructive criticisms under the tenets of democracy.
Under democracy the arms of government must perform active checks on one another, as well as accommodate criticisms from the public.
Public criticisms are the most spontaneous feedback by which these arms of governments may reform. Though they may not automatically result in good decisions, criticisms are means by which democratic institutions measure the peoples’ confidence in their works.
Constructive criticism is a method of critique that offers actionable and effective feedback to enable targets implement improvement strategies. The point of constructive criticism is to diagnose and address weaknesses in systems and structures.
It is neither a battle of insults nor a ploy to take down the other. The goal of this article is to assess constructive criticism and how the judiciary may take them going forward.
The judiciary is known as the fulcrum of justice and development. According to Article 125 of the 1992 Constitution, the judicial power of Ghana shall be vested in the judiciary.
Accordingly, neither the president nor parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power.
Over the years, the judiciary has been touted to be one of the most reputable and trusted of the three arms of government. It was revered throughout the country for its mystery and almost imperfect self-discipline.
However, recent happenings in the country have got eyebrows up in a manner that not only vested politicians but also senior practising lawyers, lecturers, the clergy, and ordinary citizens are concerned about.
The judiciary remains the most credible arm of government in the Fourth Republic. Notwithstanding this, the judiciary is not without blemish. Despite the constitutional guarantees for an independent judiciary, many believe that the judiciary is not independent.
A recent survey by Afro barometer showed that 46 per cent of Ghanaians believe that judges are corrupt. This is a scathe on the judiciary and people are gradually losing confidence in it, which is a serious cancer to our democratic system.
Lord Birgham of the House of Lords stated that the law must be clear, intelligible and predictable, and should not be applied to occasion injustice. The above statement requires judges not to use their discretionary powers to diminish the supremacy of the law in cases where the law is clear, precise, intelligible and predictable.
Recently Minister of National Security Albert Kan Dapaah bemoaned the public confidence in the judiciary which generated further discourse on the issue. He said: “Injustice occasioned as a result of the absence of an effective justice delivery system or delayed justice delivery system or biased justice is certainly a threat to national security.”
He further added that “if the interpretation of the law is tilted in favour of the government all the time, people will start accusing the judiciary and they will not have the confidence that they need”.
There has always been concerns of judicial corruption. However, the level of rot was not known. An example is the investigative work by Anas Aremeyaw Anas, in which judges were seen asking for bribes and demanding for sex to bend the arms of justice.
This episode in the history of the judiciary is a blot on its reputation as far as public perception is concerned.
Recent criticisms of the judiciary by the opposition National Democratic Congress and some in civil society could end up worsening public perception of the judiciary.
The constitution posits that justice emanates from the people and it is administered in the name of the republic by the judiciary.
Given that this is the case, the judiciary must be concerned with public perception and must take steps to correct the negative perception through elements of the public, whether they are true or not.
The judiciary must also endeavour to wean itself off the continuous defence by members of the executive.
The writers are a Legal Research Assistant and Law Student at KNUST and a Law Student at Kings University College, Accra, respectively.