THE Review proudly records and
congratulates the members of the
Bench and Bar who were in the
course of the year appointed and
elevated to the following high
judicial offices:
Justices of the Supreme Court
The Honourable Mr. Justice Sowah
The Honourable Mr. Justice Archer
The Honourable Mr. Justice Anin
The Honourable Mr. Justice Charles
Crabbe, C.V.
The Honourable Mr. Justice Adade
The Honourable Mr. Justice Taylor
Justices of the Court of Appeal
The Honourable Mr. Justice Mensa
Boison
The Honourable Mr. Justice Edward
Wiredu
The Honourable Mr. Justice Quashie-Sam
The Honourable Mr. Justice Coussey
Justices of the High Court
The Honourable Mr. Justice Wutoh
The Honourable Mr. Justice Gogo
The Honourable Mr. Justice Kwapong
The Honourable Mrs. Justice
Striggner-Scott
The Honourable Mr. Justice Twumasi
The Honourable Mr. Justice
Kaleo-Bioh
Speech Delivered by Chief Justice
On the occasion of the swearing-in
of the new judges on 24 October
1980, his lordship, the Chief
Justice, Mr. Justice F. K. Apaloo,
said:
"I wish, on behalf of myself, the
Bench and the Bar and of the
people of Ghana, to extend to the
Justices of the Superior Court of
Judicature just sworn-in, my
heartiest congratulations. Almost
all of you have been on the Bench
before and so are not altogether
new to this exacting office. There
is, therefore, very little that I
can say to you about the
requirements of the office which
you do not already know. In view
of your past performance, which
justifies your elevation, there is
no reason to think that you will
not live up to the higher
responsibilities of your new
office.
However, the occasion is such a
momentous occasion in your lives.
Firstly, because our country has
done you a great honour by
elevating you to the very high
position of Justice of the
Superior Court of Judicature. It
seems that after many years of
dedicated service at the Bar or on
the Bench, your countrymen
consider that you have proved
yourselves worthy of the honour.
Secondly, this is a momentous
occasion because, by accepting the
position of Justice of the High
Court, you have taken upon
yourselves the very heavy and
grave responsibilities that go
with it.
Let me remind the new High Court
Judges of some of their
responsibilities: You have now
qualified to try such high
offences as treason and murder and
you may have to pronounce
judgments that could lead to the
taking of the life of your fellow
citizens. That alone should make
you pause to ponder and to realise
that it is not a responsibility to
be undertaken lightly. To many of
the older generation of this
country, the symbol of the Justice
of the Superior Court of
Judicature, particularly of the
High Court, is the red robe; and
when you remember that, by a
strange and perhaps unfortunate
coincidence, the colour red is in
most parts of this country
associated with very grave
occasions—occasions of danger,
disaster, suffering, death—you
will appreciate why the High Court
Judge is regarded with such great
awe and apprehension. Those of us
who are a little older than you,
and have had a little more
experience on the Bench, can
remember the grave nods, the
sombre faces and apprehensive
silence with which the judge used
to be welcomed on the occasion
when he appeared in court in his
red robe.
It is true that the light of
knowledge and understanding has
largely dispelled that gloom. But
I daresay some of the awe and
apprehension is still there:
First, as I have said, because of
the high offences that the High
Court Judge has to try, and
secondly, because he wields very
great power both when trying his
own cases and when exercising
supervisory jurisdiction over the
inferior courts. The power given
to the inferior court judge or
magistrate is, in the High Court,
greatly enhanced: but so has the
duty to use it responsibly. The
ability to use power with
restraint is essential in arriving
at justice, and your countrymen
expect you to give them justice.
Now let us look at a subject of
great topical interest: I refer
here to the duties of the High
Court Judge under the chapter on
Fundamental Human Rights in our
Third Republican Constitution,
1979. Ghanaians are a
freedom-loving people and their
history is full of frequent
struggles to defend their freedom
and human rights. They have
rejected political philosophies
which would make them choose
between economic prosperity and
their human rights because they
believe that they are entitled,
under God's law, to both of them
at the same time and that the two
are not incompatible.
Indeed, so convinced do they
appear about this that, in the
present Constitution which was
drafted and adopted at a time of
perhaps the direst economic
hardship in their history (when
others in less severe
circumstances have surrendered
their fundamental human rights in
the hope of thereby improving
their livelihood) they have gone
to great lengths to re-emphasise
the importance they attach to
their freedoms. For in that
Constitution, they have spelt out
again in minute detail, as they
did in the Second Republican
Constitution, the fundamental
human rights of the individual.
And it is perhaps no accident that
that chapter on Human Rights is
the longest in the whole
Constitution.
Under this Constitution, a very
heavy responsibility devolves on
you as Justices of the High Court;
for to you is entrusted the duty
of ensuring that the citizen's
human rights are protected in the
first instance. Article 35, which
is headed "Protection of Rights by
the Courts," says that where a
person alleges that any of his
rights under that chapter has
been, is being or is likely to be
contravened, he may apply to the
High Court for redress. And there
is provision for appeal to the
Court of Appeal and to the Supreme
Court.
But that is not all. To ensure
that the citizen is really
protected, the Constitution-makers
have tried to plug all possible
avenues to oppression with a
residuary clause at the end of
article 35 which says:
“35. (5) The rights, duties,
declarations and guarantees
relating to the fundamental human
rights specifically mentioned in
this Chapter shall not be regarded
as excluding others not
specifically mentioned which are
considered to be inherent in
democracy and intended to secure
the freedom and dignity of man.”
These provisions help to underline
the importance that the country
attaches to the work of the High
Court Judge; but I believe that
these same clauses will give you
the opportunity to tone down the
harsh and severe image which the
red robe has created of the
superior court judges. For when
the people come to understand the
Constitution more fully, they will
begin to look on judges of the
Superior Court of Judicature as
their protectors to whom they can
turn when they fear that their
rights are being interfered with
or threatened in their dealings
with the government or with any
other organisation stronger than
themselves.
As you know already, public
service though in some respects
intellectually satisfying, is
often a thankless and unrewarding
job. In a country where freedom of
speech is constitutionally
guaranteed, and where the press
are unrestrained in their
criticism of public officers, you
may even sometimes find yourselves
unnerved by unfair press
criticism. I do not seek to
suggest that all press criticism
is unfair. Some clearly are fair.
Others exceed the bounds of fair
comment and savour of malice. But
in view of your constitutional
role, I would suggest one
course—that is, you should refuse
to be deflected from doing what
you conceive to be right and bear
what you regard as unjust press
harassment with as much fortitude
as you can command.
Events in many parts of Africa
show that often there are grave
problems in maintaining judicial
independence. Article 114 of our
Constitution provides for the
independence of the judiciary in
the clearest possible terms. But
experience shows that there are at
times considerable divergence
between theory and practice.
Whether the judges will see this
independence as real or imaginary,
depends on themselves. This is
particularly important in
constitutional adjudication
because a court can only function
properly as a constitutional
umpire if it is in an independent
position. If it is obliged to
uphold the policies of the
executive either on the basis of
constitutional prescription
regardless of the constitutional
text or because of the mental
disposition of the judges then the
court becomes simply a branch, a
specialised branch of the
executive and it will be unreal to
look upon it as an independent
tribunal. It would be a sad day
for Ghana if our judges were ever
to feel so disposed. Such mental
attitude in another jurisdiction,
is christened socialist legality.
As a legal concept such philosophy
was wholly rejected by the framers
of our Constitution.
I
now wish, if I may, to say a few
words about the use of judges in
chairing commissions of inquiry;
governments continue to request
the services of judges to sit as
chairmen of commissions of inquiry
on diverse subject-matters. I
quite understand that governments
realise that the community as a
whole, recognises the integrity of
the judiciary and that a citizen
is likely to feel confident of the
correctness and honesty of a
judge's conclusions. Thus the
appointment of a judge as chairman
of a commission of inquiry, is
politically attractive. In certain
respects, it is enjoined by
article 196 of our Constitution.
But many of the matters on which
the commissions are asked to
inquire, are completely divorced
from the law and all too
frequently, involve the formation
of opinions on matters which are
truly political in character. To
require a judge to express views
on such questions is, to my mind,
to do disservice to the judiciary
itself. It must be remembered and
perhaps it cannot be too strongly
stressed that the judge, in case
of press criticism is in no
position to defend himself or his
expressed views. He must sit quiet
whatever the misrepresentation or
distortion. Indeed my reading of
the history of this country,
satisfies me that on some
occasions, judges are victimised
for their conclusions although
entirely justified by the
available evidence.
There is also one aspect of the
matter that I must mention. The
judge carries into his office the
disciplines of his profession.
They are disciplines which if not
constantly employed, may quite
easily be lost, and only recovered
over a period of time and by a
concentrated and persistent
effort. Judges who have been
chairmen in a drawn-out inquiry,
and even more so if the
subject-matter is not of a legal
character must have experienced, I
feel sure, the loss of discipline
and perhaps may have even
developed an antipathy to its
resumption. There is thus a
distinct danger, so far as the
individual judge is concerned and
thus to the judicial system, in
this potential loss of the
necessary discipline of judicial
life.
I
do not advise that judges should
in all cases decline to sit on
commissions of inquiry. Sometimes,
the public interest clearly
requires that they should. Having
myself sat on no fewer than eight
commissions of inquiry, I have
acquired a modest experience of
the dangers which this duty
involves and which I conceive it
my duty to pass to you. But I
think judges must act warily in
accepting invitation to sit on
commissions which involve
non-legal matters, whatever the
temptation.
In concluding, his lordship said:
To a large extent, the success of
our present constitutional
experiment will depend on the
qualities that you bring to your
work. You will need courage and a
delicate balance of sensitivity
and detachment: sensitivity to
understand the individual's
problems, detachment to discern
where justice lies, and above all,
courage to pronounce your
opinion—according to your oaths
without fear or favour. |