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HOME               REVIEW OF GHANA LAW 1980

 

MISCELLANY-AT-LAW: NEW JUDICIAL APPOINTMENTS [1980] VOL. XII RGL 11—15

 

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.

 
 

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