Author (s) :
AfriMAP (Africa Governance Monitoring and Advocacy Project) and The Open Society Initiative for West Africa and The Institute for Democratic Governance
Introduction:
Ghana’s justice system has seen many encouraging developments since the restoration of civilian rule 15 years ago, especially since the installation of the current administration in 2001. The usual problems threaten its effectiveness: among others are poor coordination among the different actors in the sector; long delays in hearing cases; a lack of legal aid to help the poor to access justice; overcrowded prisons; and critical allegations of corruption among the police, as well as court staff, including judges and magistrates.
However, there have been many interesting and useful initiatives to improve justice system performance, ranging from an increasingly merit- based system for appointment of judges, to a rapid expansion of legal aid, and to procedures to reduce delays and promote out-of-court settlements in the higher courts. Both civil society organisations and constitutionally mandated oversight institutions have played an important role in promoting these reforms. More broadly, the government has shown, for the most part, an increasing respect for the rule of law, complying with difficult decisions handed down by the courts and appointing and respecting the findings of commissions of inquiry that have found government officials at fault.
The current administration has also led an anti-corruption campaign that has touched its own members as well as those of the past government. However, there have still been cases in which executive interference in prosecutions has been alleged, and some court rulings have not been fully respected; or attempts have been made to overturn them other than through the normal avenues of appeal. Moreover, weaknesses in the constitutional and legislative framework providing for the appointment of judges still provide the president with too great a discretion. Continued vigilance, as well as legal reform, is needed to ensure and promote respect for the proper separation of powers and independence of the courts.
A common feature of many of the encouraging innovations is that they have not been enacted into law. Repeatedly, a legal framework is missing, even where better practices have been introduced on the ground. Law reform has mostly been slow and piecemeal. Two recent laws, the Disability Act and the Domestic Violence Act, took years to be passed by Parliament, while other important proposed reforms remain stalled, including bills on the property rights of spouses, on alternative dispute resolution and on a right to information. Other important areas, including the laws governing the police and prisons, do not even have proposed new legislation on the table to update rules established 30 years ago. Further work will be needed across the board to shape the justice system in the interests of Ghana’s new democratic dispensation. Ghana is a leader in the West Africa region, and many of its justice sector reforms underline this fact: but it is too soon for it to rest on its laurels yet. This discussion paper highlights areas in which further effort is needed, proposing concrete steps for reform and action.
International law, the Constitution and law reform
Ghana has ratified many of the major international treaties relating to the promotion of human rights and the rule of law, and its record in this regard has improved since the return of democracy in 1993. However, Ghana has yet to sign up for some important provisions – including several that allow for individual complaints to be heard by the treaty-monitoring bodies. A number of African treaties also remain outstanding, including the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR) on the Rights of Women in Africa. In 2003, Ghana signed a Bilateral Non-Surrender Agreement with the United States, agreeing not to hand over any US personnel to the International Criminal Court (ICC), thus undermining its own commitments under the Rome Treaty establishing the ICC.
It is surprisingly difficult to put together a complete list of Ghana’s international treaty obligations, and it does not appear that any government ministry has the responsibility to maintain an up-to-date compilation of all international and African treaties that Ghana has signed or ratified. Either the Ministry of Justice or the Ministry of Foreign Affairs should be given this task and the duty to inform other departments of their obligations.
Government respect for the rule of law and separation of powers
Separation of powers between the three arms of government is emphasised in the 1992 Constitution. Executive powers are subject to checks by Parliament, the judiciary, and to a limited extent the Council of State, an advisory body, as well as by constitutional oversight institutions such as CHRAJ.
Disobedience of a decision of the Supreme Court on the constitutionality of any act is a crime, and a ground for removing the president or vice-president from office. As is the case in many common-law countries, the constitutional separation of powers is compromised by the fact that the A-G is both the head of the prosecution service and also a minister and the chief legal adviser to the government. Moreover, since independence, the A-G and the Minister of Justice have been the same person. This places an obvious strain on the independence of prosecutorial decisions in high-profile cases. Indeed, the National Democratic
Congress (NDC) opposition party has alleged that prosecutions of former ministers from the NDC administration in office up to 2000 were politically motivated. Calls for a separation of the two positions in order to strengthen the independence of the prosecution system should be implemented.
Nevertheless, the government generally obeys the laws of the land and abides by court decisions and rulings of quasi-judicial bodies. In several cases since the re-establishment of civilian rule the government has been forced under difficult circumstances to pay compensation to persons who were wrongfully dismissed, or has complied with politically contentious judgments against it.
These include the NPP v. IGP case already mentioned, as well as decisions relating to the provision of equal access to state media for opposition political parties (NPP v. GBC); the approval of government-nominated district chief executives ahead of district assembly elections (NPP v. Electoral Commission); and the authority to appoint the chairperson and other members of the governing bodies of public corporations managing the state-owned media (NMC v. A-G).
In 2001, a minister of sports appointed by the New Patriotic Party (NPP) administration that came into office in 2000 was prosecuted and convicted for fraud.
However, there are other cases involving politicians where investigations have been characterised by undue delays that have created the perception of interference by the executive. Since the conviction of the former minister of sports, there have been no prosecutions of government officials, in spite of serious allegations in Parliament and elsewhere of mismanagement and misappropriation of funds. In some cases the implementation of decisions against the govern-ment has been resisted.
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