To cap or not to cap?

Supreme-Court another

Because we are so special, aren’t we? How many Justices do we have on the Ghana Supreme Court now? I have even lost count! The last time I bothered to check, it was inching its way up toward the number 20. Kenya, a fellow common law country, with a population numbering over 50 million (Ghana: 31 million), a land area of 582,646 sq km (Ghana: 238,533 sq km), and an economy larger, more diversified and more sophisticated than Ghana’s, has a total of 7 Justices on its Supreme Court. And yes, the number is capped by law at 7. And the ‘Kenyasi’ Supreme Court, which often sits as a full bench, delivers decisions, including time-sensitive presidential election petitions, relatively more expeditiously than ours does.

We don’t like to have binding limits or restraints on anything, because we want to be left free to use power as we please. With the Supreme Court, having no limit means any President can keep putting as many people on the Court as he or she pleases, as long as Parliament keeps approving them. (Since the Supreme Court has held that the President need not heed the advice of the Judicial Council or Council of State in these matters, it’s essentially one person’s call).

The argument that the scope of the Supreme Court’s jurisdiction is “so broad” that limiting or capping the number of Justices would undermine the efficiency of the Court is simply unpersuasive. First of all, too many Justices on the Supreme Court is itself a source of inefficiency in the management and disposition of cases. There is no evidence to show that the Court has become more efficient as the number of Justices appointed unto it has grown. To the contrary, complaints about workload on the Court have grown louder as the size of the Court has grown. In a way, there is a sort of Parkinson’s Law at work here. Just as a person with a distant deadline will take as much time as they have on their hands to do the same work they could complete on a tight deadline, so, too, with the number of Justices on the Court. More judges on the Court will not necessarily make the Court more efficient. If the case for a court of unlimited size is predicated on the wide scope of the Court’s jurisdiction, then the better argument is to propose that the Court’s (original and appellate) jurisdiction be narrowed or restricted, not to insist that the size of the Court not be capped.

Are proponents of a no-cap Court trying to suggest that the size of the Court must continue to grow indefinitely? Have they weighed the presumed benefit of a no-cap Court against the risk to judicial independence and public confidence in the Court that comes from the perceived court-packing associated with a President appointing more and more Justices to the Court?

We must not lose sight of the fact that, when it comes to constitutionalism or constitutional democracy, efficiency is very often not the most important value or outcome we seek. In fact, in matters of constitutionalism, efficiency is frequently quite intentionally subordinated to other values that are deemed more important in a given context. For example, separation of powers and checks and balances slow decision-making in a constitutional democracy and, in that regard, may be said to be inefficient. But the greater deliberation, participation, reflection, oversight, and accountability in decision-making that a system of checks and balances promotes are values and outcomes so critical to constitutionalism that the relative inefficiency of separation of powers is considered an acceptable price to pay. Indeed the appropriate focus or consideration, when it comes to whether or not to cap the size of Supreme Court, is not whether or not it makes the judges’ job easier or workload lightier, it is whether or not it enhances or diminishes the people’s confidence in the independence and impartiality of the Court. “Justice,” after all, “emanates from the People,” and judges and the Courts exist to serve and vindicate that higher cause, not their own.

We cannot continue to tolerate or defend this business of no limit on the size of the Supreme Court, no limit on the size of the Executive, no limit on the number of constituencies (MPs), no limit on anything! And all these are Article 71 officeholders. This kind of constitutional looseness or permissiveness, within a political and establishmentarian culture of entitlement, patronage, excess, and abuse, is one of the sources of the profligacy and fiscal indiscipline in Ghanaian officialdom that has landed us where we are today. Why shouldn’t we have a cap on our Supreme Court! What makes us so exceptional?


Prof. H. Kwasi Prempeh is the Executive Director of the Ghana Center for Democratic Development (CDD-Ghana)


December 8, 2022



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