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Critical Perspectives No. 1 [ The Ghanaian Judiciary and the 1992 Constitution: A Problem of Asymmet
Critical Perspectives No. 1 [ The Ghanaian Judiciary and the 1992 Constitution: A Problem of Asymmet
01 January, 1999

Critical Perspectives No. 1 [ The Ghanaian Judiciary and the 1992 Constitution: A Problem of Asymmetrical Jurisprudence]

The Ghanaian Judiciary and the 1992 Constitution: A Problem of Asymmetrical Jurisprudence

By H. Kwasi Prempeh

The Ghanaian judiciary has come under much adverse criticism recently from sections of the Ghanaian public and the media, on account of certain judicial rulings widely perceived to be inconsistent with the letter and spirit of the 1992 Constitution. Some Ghanaians have suggested that the substance and tenor of these court decisions are indicative of executive branch control or interference with the independence of the judiciary. Others see in the recent rulings of the courts, particularly in cases concerning the press, a partisan bias on the part of the judiciary, as well as opportunism and cowardice on the part of certain individual judges. These perceptions have created a "crisis of confidence" of sorts for the Ghanaian judiciary, as large sections of the Ghanaian public regard the courts as cowardly, biased and corrupt. In this maiden issue of Critical Perspectives, H. Kwasi Prempeh invites us to explore another explanation for the seeming inability or reluctance of our courts to emerge into the new liberal-democratic era. This time, we are asked not to focus on the party affiliations or other personal characteristics of individual judges but on the legal philosophy and methods of interpretation employed by our judges. In short, Prempeh urges us to turn our attention to the "jurisprudence" of the Ghanaian judiciary. Prempeh distinguishes three strands of jurisprudence at play here: the jurisprudence of common law, which our legal system inherited generally from British colonialism and which continues to dominate the Ghanaian legal mind through legal education; the jurisprudence of executive supremacy, to which our judges have become accustomed from the many years of operating under an authoritarian political culture dominated by the military; and finally, the jurisprudence of constitutionalism, with which our judges, according to Prempeh, are least familiar. Prempeh argues that, although the liberal-democratic1992 Constitution calls for a jurisprudence of constitutionalism, which is more protective of rights and less deferential to the State, our judges continue to follow and apply the jurisprudence of common law and executive supremacy, both of which leave rights insecure and allow excessive power in the hands of the State. Thus, Prempeh contends that we are faced with an asymmetrical jurisprudence, with our Constitution proclaiming a rights-friendly legal philosophy while our judges remain glued to the jurisprudence of Ghana's authoritarian past. Prempeh blames this persistence of an "old" jurisprudence on judicial habit and institutional inertia. Prempeh believes that, for the ideals of the 1992 Constitution to be realized in practice, the Ghanaian judiciary must make a transition from the jurisprudence of common law and executive supremacy to the jurisprudence of constitutionalism. The burden of making such a transition does not, however, rest solely with our judges. Prempeh believes that civil society, the bar and academia are as much a part of the solution (and, indeed, of the problem) as the judiciary. Thus, he proposes some specific ways in which the various players can help make such a transition a reality. The Center for Democracy and Development is grateful to the United States Information Service whose assistance has made the printing of this publication possible3 The Ghanaian judiciary has come under much adverse criticism recently from sections of the Ghanaian public and the media, on account of certain judicial rulings widely perceived to be inconsistent with the letter and spirit of the 1992 Constitution. Some Ghanaians have suggested that the substance and tenor of these court decisions are indicative of executive branch control or interference with the independence of the judiciary. Others see in the recent rulings of the courts, particularly in cases concerning the press, a partisan bias on the part of the judiciary, as well as opportunism and cowardice on the part of certain individual judges. These perceptions have created a "crisis of confidence" of sorts for the Ghanaian judiciary, as large sections of the Ghanaian public regard the courts as cowardly, biased and corrupt. In this maiden issue of Critical Perspectives, H. Kwasi Prempeh invites us to explore another explanation for the seeming inability or reluctance of our courts to emerge into the new liberal-democratic era. This time, we are asked not to focus on the party affiliations or other personal characteristics of individual judges but on the legal philosophy and methods of interpretation employed by our judges. In short, Prempeh urges us to turn our attention to the "jurisprudence" of the Ghanaian judiciary. Prempeh distinguishes three strands of jurisprudence at play here: the jurisprudence of common law, which our legal system inherited generally from British colonialism and which continues to dominate the Ghanaian legal mind through legal education; the jurisprudence of executive supremacy, to which our judges have become accustomed from the many years of operating under an authoritarian political culture dominated by the military; and finally, the jurisprudence of constitutionalism, with which our judges, according to Prempeh, are least familiar. Prempeh argues that, although the liberal-democratic 1992 Constitution calls for a jurisprudence of constitutionalism, which is more protective of rights and less deferential to the State, our judges continue to follow and apply the jurisprudence of common law and executive supremacy, both of which leave rights insecure and allow excessive power in the hands of the State. Thus, Prempeh contends that we are faced with an asymmetrical jurisprudence, with our Constitution proclaiming a rights-friendly legal philosophy while our judges remain glued to the jurisprudence of Ghana's authoritarian past. Prempeh blames this persistence of an "old" jurisprudence on judicial habit and institutional inertia. Prempeh believes that, for the ideals of the 1992 Constitution to be realized in practice, the Ghanaian judiciary must make a transition from the jurisprudence of common law and executive supremacy to the jurisprudence of constitutionalism. The burden of making such a transition does not, however, rest solely with our judges. Prempeh believes that civil society, the bar and academia are as much a part of the solution (and, indeed, of the problem) as the judiciary. Thus, he proposes some specific ways in which the various players can help make such a transition a reality.

Cost GHs 5.00