What is Judicial Independence?

An issue which has gained prominence in recent times and is currently trending in the media (both regular and social) is the concept of Judicial Independence.

The debate has been intense, partisan and acrimonious to say the least, exacerbating the already polarised political space.

Matters have come to a head, with the former President, John Dramani Mahama, in a closing speech at the just-ended Third Annual Lawyers Conference of the National Democratic Congress (NDC) last Saturday, September 2, accusing President Nana Akuffo Addo and his government of “packing” the judiciary with judges sympathetic to the New Patriotic Party (NPP).

This article attempts to explain the basic tenets of the concept of Judicial Independence.

Term

The term Judicial Independence does not lend itself to an exact definition as it differs from jurisdiction to jurisdiction.

There is, however, a central theme which threads its way through the various definitions in vogue. 

Broadly speaking, it means that in the determination of any judicial matter by a judge, he/she shall perform that function fairly and impartially in an objective legal manner without any promptings or interference (overt or covert) from other judges, regardless of their authority, or the other arms of government or, indeed, from any persons.

The concept was adopted by the United Nations (UN) in 1985 when it became an Instrument: 
“...that judges shall decide matters before them impartially, based on facts and per law, without any restrictions, improper influences, inducements, pressure, threats or interference, direct or indirect, from any quarter for any reason.”

For the concept of judicial independence to work effectively, there are certain necessary and requisite guarantees which need to be in place: (i) selection of judges based on merit and integrity; (ii) protection from undue decisions for their advancement, appointments and transfers within the judicial system; and (iii) protection from abusive removal, while subjecting them to appropriate inspection and discipline.

As long as these parameters are strictly and religiously adhered to in any democracy, it is sure to pass the grade and it can be confidently posited that the democratic experiment in that country befits the accolade that the judiciary is truly independent.

Origins

The origin of the concept dates back to the passing of the Act of Settlement in 1701 by the English Parliament.

This Act of Parliament was the final nail in the coffin of monarchical hegemony, as it delivered the ‘coup de grace’ to the untrammelled use of the powers of the Monarch. 

The Act granted judges explicit protection from unilateral removal by the monarchy within the context of a larger shift of power from the monarchy to the courts and the legislature.

The concept of Judicial Independence is in sync with the term ‘Separation of Powers’, which was coined by the French Philosopher Montesquieu in his seminal work “The Spirit of the Laws”, to set up a model of government dividing governmental power and influence into separate watertight compartments, with each organ of government having distinct, separate and independent powers. 

No branch must have, or be seen to have, any power and influence over the other.

Typically, under this system of government, the making of laws is the supreme and bona fide duty of the legislature (Parliament). 

The Executive (that is the President and his Cabinet) is responsible for policy direction and implementation whilst the Judiciary adjudicates in disputes between private persons or between individuals/entities and the government.

Currently, the concept has come under attack in Hungary, America and Israel, where street protests continue to rage against any attempt to undermine the independence of the judiciary. 

As to whether the Judiciary is truly independent in Ghana, one has to scrutinise ‘controversial’ cases which come before it, in which the government in power has a stake. 

One such case is ‘Tuffour vs Attorney General’.

Incidentally, in that case, the current President, Nana Akuffo Addo, and Tsatsu Tsikata were lawyers for the Plaintiff, Dr Amoako Tuffour. 

Food for thought!

The writer is a lawyer.
E-mail:georgebshaw1@gmail.com