A Court of Appeal Judge who is being considered by parliament for the position of a Justice of the Supreme Court has justified why the Supreme Court must retain its power to depart from its own previous decisions.
The Supreme Court nominee, Justice Sophia Rosetta Bernasko Essah, said the power granted to the apex court in Article 129 of the 1992 Constitution helped to, among others, cure injustice and ensure consistency.
“If it appears to the court that in a matter which has come before the court, it has created injustice, or it is creating injustice, or there was an error in the principle, or it was inconsistent with the Constitution, or it is not workable.
“Then, to that extent, the courts can depart from its previous decision, give compelling reasons why it is departing from it, and give its new position on the law,” she said in an answer to a question from James Agalga, the Member of Parliament for Builsa North, during her vetting before Parliament's Appointments Committee.
Context
The Supreme Court, per Article 129(1) of the 1992 Constitution, is the final court of appeal and its decisions are binding on all courts below it.
Clause three of the same Article states, “The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law”.
The Supreme Court has, in the past, departed from its previous decisions.
For instance, in the case of Osei-Boateng versus National Media Commission and Appenteng, the Supreme Court in 2012 held that its original jurisdiction under Article 2(1) and Article 130(1) of the 1992 Constitution could only be invoked if a constitutional provision was ambiguous and required interpretation.
This later became notoriously known as the Osei-Boateng Principle.
However, the Supreme Court in 2016, in the case of Emmanuel Noble Kor, departed from the Osei-Boateng Principle and held that its enforcement jurisdiction was distinct and independent from its interpretive jurisdiction.
Justice Bernasko Essah stressed that departure was not something the court did lightly or without accountability.
She said that when the court chose to depart from precedent, it must give compelling reasons for doing so and clearly articulate its new position on the law, a safeguard against arbitrary reversals that would undermine the very stability the doctrine of precedent is meant to protect.
Justice Bernasko Essah is not new to the Appointments Committee of Parliament.
This is because she was first nominated to the Supreme Court in 2024 by then President Nana Addo Dankwa Akufo-Addo and was vetted at the time, but the nomination did not culminate in her appointment.
As a result, she was only asked one question by the committee.
Justice Bernasko Essah was called to the Bar in 1990, having obtained her Bachelor of Laws from the University of Ghana in 1988 and her Professional Law Certificate from the Ghana School of Law in 1990.
She began her legal career in 1992 at the Civil Division of the Attorney-General's Department, rising from Assistant State Attorney to State Attorney.
She subsequently moved into the corporate sector, serving as Senior Legal Counsel at the Volta River Authority and later as Legal Services Manager and then Company Solicitor and Secretary to the Board at the Tema Oil Refinery.
She joined the Bench as a High Court judge in 2011, sitting in the General Jurisdiction and Commercial Court divisions, before her elevation to the Court of Appeal on December 17, 2019.
She holds an LLM from the University of Warwick, United Kingdom, obtained under a Chevening Scholarship, and an Executive Master's degree in Conflict, Peace and Security from the Kofi Annan International Peacekeeping Training Centre.
She chairs the Judicial Service's Gender Equity Committee and its User Committee on Gender-Based Violence and Juvenile Justice.
