Capping the number of Supreme Court judges

The number of judges on the Supreme Court has become a topical issue and one that always comes up during discussions on the review of the 1992 Constitution.

There are two schools of thought on the issue, with one calling for a cap or a limit on the number of judges that can be appointed to the country’s apex court and the other advocating that the status quo must remain.

Article 128(1) of the 1992 Constitution stipulates a minimum of nine judges, apart from the Chief Justice, who must be on the Supreme Court, but places no ceiling on the number the President can appoint.

Currently, there are 12 Justices of the apex court, including the Chief Justice, with four more approved by Parliament and set to be sworn into office soon.

At a seminar on constitutional review, organised by the Institute of Economic Affairs (IEA) in October last year, both the Majority Leader and former Minority Leader in Parliament, Osei Kyei-Mensah-Bonsu and Haruna Iddrisu, respectively, strongly advocated a cap on the number of Justices of the Supreme Court.

They respectively called for a cap of between 13 and 15 judges with the explanation that the current system was the bane of good and efficient governance.

On the other hand, proponents supporting the status quo include some legal luminaries and notable personalities such as the Chief Justice, Justice Kwasi Anin Yeboah; a former Chief Justice, Sophia Akuffo, and a former Speaker of Parliament, Prof. Aaron Mike Oquaye.

At a similar IEA event late last year, the Chief Justice and Justice Akuffo said limiting the number of judges could negatively affect the efficient administration of justice due to the scope of work of the Supreme Court under the 1992 Constitution.

They argued that the number of judges at the SC could only be capped if access to the court was limited.

Sharing similar sentiments, Prof. Oquaye said the capping of the judges must be followed by other amendments to the Constitution.

According to him, putting a limit on the number of justices of the Supreme Court, without amending the constitutional provision on the automatic right of appeal to the apex court, would be counter-productive. Such a situation, he said, would mean the Supreme Court would be inundated with so many cases without the manpower to adequately deal with those cases.

The conversation on the capping of Supreme Court judges is an important national discourse that could help improve the administration of justice and promote judicial independence.

Those against the capping have a strong case, especially regarding the manpower the court needs to deal with the myriad of cases that come before the court.

Under the 1992 Constitution, the Supreme Court has about 10 jurisdictions. It is the court solely vested with the power to interpret and enforce the Constitution.

This jurisdiction can be activated by any Ghanaian. It has supervisory jurisdiction to ensure that other courts act fairly and in consonance with procedure and it is the final court of appeal, which is as of right in criminal and civil cases.

The Supreme Court also has original jurisdiction over Presidential Election petitions, is the final appellate court in chieftaincy matters and determines the quantum of compensation that should be paid to an individual wrongfully incarcerated.

Obviously, the workload on the highest court of the land is enormous and any wholesome capping on the judges could be counterproductive.

However, we must be mindful of the fact that our democracy is still growing and there is a high propensity for abuse by the Executive arm of government due to the lack of ceiling and the packing of the court with its favourites.

We have a Constitution that has made the Executive President so powerful and almost a monarch with unchallenged powers as said by the Majority Leader at the IEA event. Checks and balances, although essential features of the Constitution, sometimes exist only in print and can be relegated to the background for a President to have his way. The Executive and the Legislature have basically become political institutions with partisan considerations taking premium over national interest.

The Judiciary is one institution that is supposed to be thoroughly independent to be able to stand up to protect the Constitution and ensure that rule of law prevails. Allowing a system that does not restrict the number of justices a President can lawfully appoint to the highest court of the land is not only inimical to our progress as a nation, but can eventually weaken the Judiciary, the custodian of our democracy.

The Daily Graphic therefore calls for a review of the 1992 Constitution to fill this gap in our Constitution.

The cap m­­­ust, however, be followed by other amendments that will either reduce the mandate of the Supreme Court or ensure that access to the court is somehow restricted in a manner that would not defeat the Constitution, the hopes and aspirations of the people.