Whose responsibility is it to maintain the rule of law? (III)
JUDICIARY AND THE RULE OF LAW
The Ghana Constitution (1992) recognises the Judiciary as an institution that bears primary responsibility for defending the rule of law. This liberal-democratic constitution considers citizens right of access to justice as one of the most important rights all citizens are entitled to enjoy in Ghana’s democratic political system.
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Chapter five of the Ghana Constitution guarantees to citizens all the rights that any liberal democratic state confers to its citizens comprising first generation political and civil rights and socio-economic and cultural rights. The Judiciary has a sacred responsibility to ensure unrelenting respect for the rule of law and unflagging defence for human rights, equality of access to justice and treatment before the law for all people to promote social justice and facilitate the operation of a fair efficient and transparent legal system, as well as propagate a culture of due process and legality.
Numerous obstacles lie in the way of the Judiciary to discharge its responsibility for upholding the rule of law. A major obstacle is the citizens’ inability to access justice in Ghana. Many Ghanaians have no knowledge of the existence and operation of legal aid in Ghana. Ordinary citizens find it hard to believe that the government can provide legal aid to citizens in need in of legal services.
Indigent and vulnerable people find it difficult to access justice. Therefore most Ghanaians reside outside the protection of the law. This challenge derives from lack of effective legal representation, especially in so far as criminal justice is concerned because of the wide powers of the police, patent failures of the magisterial system and a poor and ineffective legal aid system.
Numerous barriers confront the Judiciary’s capacity to discharge its responsibility to maintain the rule of law. The main one are as follows;
a. Paucity of courts, uneven distribution across the country and poor budgetary allocation compromising their ability to deliver justice to everyone. These are exacerbated by high filing fees at the courts, delays in filing cases and state attorneys who abuse legal procedures in prosecution of cases.
b. State prosecutors who sometimes fail to attend court even when they have been duly served with notices
c. Lots of instances where dockets of suspects could not be traced denying suspects of fair and speedy trial
d. Limited or lack of knowledge about legal rights and entitlements
THE POLICE AND THE RULE OF LAW IN GHANA
The police in Ghana are a key institution for upholding the rule of law through offering protection to innocent citizens while doing all within the law to bring wrongdoers to face the full rigours of the law.
In fulfilling this all important obligation, the police should be guided by Article 14(2) of the Constitution according to which a person who is arrested should be informed in a language understandable to that person of the reasons occasioning the police arrest and on undeniable right to a lawyer of the person’s own choosing.
In many cases, these protections are more theoretical than practical. The police station which is at the frontline of the criminal justice system has also become the focal point where the rights of arrested persons, especially the indigent are systematically violated and abused.
THE COMMISSION OF HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (CHRAJ) AND THE RULE OF LAW
Ghana’s Commission of Human Rights and Administrative Justice (CHRAJ) bears special responsibility for upholding the rule of law. CHRAJ is a constitutional body which combines normal ombudsman function with anti-corruption responsibilities as well.
Created by Article 216 of Ghana’s Constitution, this body has been assigned the role of investigating, among others, complaints of violations of rights and liberties together with complaints about injustices by the state bureaucracy, as well as complaints arising from actions of private persons and institutions with a view to taking the necessary remedial actions. CHRAJ, in addition, has a duty to educate the Ghanaian public about the human rights and civil liberties. Since coming into operation in1993, CHRAJ has become the “poor man’s court” and has been inundated with complaints from a lot more people than it can handle. The result is CHRAJ cannot deal with the huge demand for justice from the citizenry.
Above all, it suffers from a severe constitutional limitation in that CHRAJ cannot enforce its decisions without resort to the regular courts. The impact is catastrophic for the poor and weak in society who use CHRAJ to access justice in the hope of escaping the long tortuous and expensive court procedures.
1. GUIDING PRINCIPLES FOR LEGAL AID IN THE 21ST CENTURY-GLOBAL STANDARDS TO ADOPT IN GHANA.
a. Use Paralegals
b. Office of the Public Defender
c. Set up as an Independent Constitutional body without Governmental interference such as NMC, CHRAJ, NCCE
2. ROLE OF GOVERNMENT IN LEGAL AID-WHICH OTHER INSTITUTIONS SHOULD SPONSOR LEGAL AID.
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a. Government should provide at least 75 per cent of the funding for the provision of professional services, the establishment of infrastructure and create the logistical and institutional environment for community ownership to ensure sustainability.
b. Parliament should approve a realistic budget for Legal Aid and hold Government accountable if funds approved are not being released to the fund.
c. Civil Society groups should help to raise awareness among the illiterate communities about Government’s responsibility to provide for the poor and devote a percentage of their funding to Legal Aid.
d. Court filing fees could be raised and a percentage of every filing fee set aside for Legal Aid.
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e. Bar Associations should offer a minimum number of hours per legal year for Legal Aid and help in funding by setting aside a percentage of the Practising Licence fees for Legal Aid.
3. WHO SHOULD REGULATE LEGAL AID IN THE PUBLIC INTEREST-GOVERNMENT, BAR ASSOCIATIONS, CIVIL SOCIETY OR DONOR AGENCIES?
a. Government first and foremost with the rest as supporters.
4. HOW DOES LEGAL AID RANK AS AN ELEMENT OF THE RULE OF LAW IN GHANA AND WHAT CAN WE DO TO RAISE AWARENESS OF ITS CRUCIAL IMPORTANCE?
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a. It is always secondary, not a priority and the Stepchild of the Rule of Law.
b. High Illiteracy rate in Ghana. So Human Rights education and legal literacy programmes in formal and non-formal sectors of society particularly for vulnerable groups.
c. Change public perception that limited funds should not be spent to defend criminals.
Legal Aid is not popular or politically glamorous. In the eyes of many ordinary citizens, providing funding for the defence of “criminals” is a waste of scarce public resources. The absence of requisite political will, legal aid provided by Government will continue to remain an illusory.
CONCLUSION
In the end, maintaining the rule of law in a democratic society is a collective responsibility of all but especially civil society organisations Experience teaches, however, that unless institutions constitutionally mandated to uphold the rule of law live up to their democratic responsibilities, the vigilance of civil society organisations cannot on its own guarantee citizens enjoyment of the benefits of the rule of law. What public institutions charged with maintaining the rule of law need to know is that the public eye is constantly watching. Therefore relevant public institutions must be actively working to maintain the rule of law.