Supreme Court building

Will our partisan attitudes hurt the courts?

Dr John Osae-Kwapong Opinion Aug - 03 - 2024 , 09:41 5 minutes read

Our partisan edges are getting sharper and political polarisation is deepening. Nothing is spared these days, not even our courts and the judgements they render.

It is quite instructive to observe the partisan commentary after every court decision, the most recent being – The Republic vs. Ato Forson & Others. Victory or defeat or whether the court got it right or wrong soon degenerates into a partisan and polarising debate.

This comes at a worst time in the history of our courts where public confidence in the institution is low. As per findings from nine rounds of the Afrobarometer survey, here is how Ghanaians are currently feeling about the courts – a) those who say they trust the courts “a lot” has declined by 15 percentage points between Round 1 (1999) and Round 9 (2022); b) the percentage willing to give the courts what I call a clean bill of health on corruption ( those who say none of our judges and magistrates are involved in corruption), has declined from an already low point of 11 per cent (Round 1, 1999) to three per cent (Round 9, 2022); c) the percentage who say people are never treated equally before the law has declined from 39 per cent (Round 1, 1999) to 13 per cent (Round 9, 2022); and d) the percentage who say officials who commit crimes often/always go unpunished has increased significantly from 44 per cent (Round 4, 2008) to 77 per cent (Round 9, 2022).

I understand, to an extent, the political temperaments being exhibited by the divisions in the case of The Republic vs. Ato Forson & Others. But it is difficult to excuse it. Moreover, I find it a very worrying trend if we do not curb the extent to which our partisan feelings shape the way we view institutions, and in this case our courts. If we continue down this path, we will end up hurting the courts and its legitimacy with implications for the delivery of justice.

The trust underpinnings

At the heart of this is partisan nature of trust in the courts. Ghana has conducted nine rounds of the Afrobarometer survey (1999, 2002, 2005, 2008, 2012, 2014, 2017, 2019, and 2022). This means there has been at least one round of the survey conducted during the tenure of presidents we have had during our Fourth Republic. With that in mind, here is how trust in the courts among the divides change when there is political turnover.

During the Rawlings era (1999), Ghanaians who described themselves as NDC partisans trusted the courts by 10 percentage points more than self-described NPP partisans. With political turnover, self-described NPP partisans trusted the courts more by eight percentage points on average (2005, 2008) than their NDC counterparts during Kufuor’s tenure.

Another political turnover resulted in NDC partisans trusting the courts more than NPP partisans by 10 percentage points (2012) during Mills’ tenure and by 16 percentage points (2014) under John Mahama. The Akufo-Addo era (2017, 2019, and 2022) has been no different albeit by a smaller margin (Three percentage points) on average where NPP partisans now trust the courts slightly more than their NDC counterparts.

I often ask, why do partisans appear to trust institutions better when their preferred political party is in power than when it is in opposition? Perhaps the answer to this question can help the country find a lasting solution to this partisan nature of trust.

Legitimacy of the courts

Amidst the partisan rancour, the overall decline in trust, and the high perceptions of corruption, the courts’ legitimacy in the eyes of Ghanaians remains very strong. Over five rounds of the Afrobarometer survey (2005, 2008, 2012, 2014, 2017), when Ghanaians were asked the extent to which they agreed or otherwise with the notion that “the courts have the right to make decisions that people always have to abide by” the percentage who agreed/strongly agreed ranged between 74 per cent and 82 per cent.

Even more comforting is the legitimacy among partisans where among the NPP it ranged between 71 per cent and 80 per cent whiles among the NDC it ranged between 74 per cent and 85 per cent.

This strong acceptance of the legitimacy of courts is its current saving grace. But with the increasing partisan and polarised debates over court decisions, how long will this legitimacy remain? How long can the courts survive In my opinion, this barrage of partisan assault? It will be in our best interest to curb our partisan temperaments for the sake of the long-term legitimacy of the courts.

This does not absolve the courts of their contribution to the eroding trust in the institution expressed by Ghanaians in general.

Institutions grow and strengthen not in moments of our agreements with them but in those difficult moments of disagreements with the judgements they rendered. This is how we must try to treat the courts and all other institutions.