“I desire that after I have given the judgment of the Court, that judgment may not be talked about; I have given it upon my oath, and am answerable to my country for it. I have been, before, reminded that these things are not passing in a corner, but in the open face of the world; I hope I need not be admonished that I am to administer justice; if I have done amiss, let the wrath and indignation of Parliament be brought out against me; let me be impeached; I am ready to meet the storm whenever it comes, having at least one protection; the consciousness that I am right. In protecting the dignity of the Court, I do the best thing I can do for the public: for if my conduct here is extra-judicially arraigned, the administration of justice is arraigned and affronted, and that no man living shall do with impunity” – per Lord Kenyon (1783)
A story is told of two of the greatest figures in American legal history, Justice Holmes and Judge Learned Hand. The two learned Law Lords had lunch together and afterward, as Justice Holmes began to drive off in his carriage, Learned Hand ran over to him and shouted: “Do justice, Sir, do justice.” Justice Holmes stopped the carriage and replied Judge Hand saying: “That is not my job. It is my job to apply the law.”
The answer offered by Justice Holmes may possibly place legally unsophisticated minds into utter bewilderment. This seemingly confusing answer begs a lot of questions: what is justice? Is justice different from application of the law? When is a court said to have fairly dispensed justice? Is it when the court strictly applies the law relevant to the case at hand; or is it when the court gives a verdict that conforms to the cry of the masses; or is it when the judgment of the court reflects the personal idiosyncrasies and whims of the judges?
The on-going presidential election petition has brought to bear some strange notions of justice. While many people think that justice will be better done if the court’s verdict brings national peace, others think that justice will be done if the verdict favours their political party. Many people also think that the verdict must be in consonance with public opinion. What do you think?
Technicalities and Justice
In the art of judging, experience and learning has revealed that sometimes the strict application of the law results in a miscarriage of justice. This is specially so when the law is applied stricto senso with all its substantive and procedural technicalities. In Ghana, our courts are expected to avoid technicalities in their administration of justice. One of the many ways devised for realising this goal is the obvious substantial reliance on considerations of social justice rather than on strict adherence to the principles of law. The jurisprudence which informs our concept of justice is founded on the common notion that over reliance on technicalities is likely to defeat the ends of justice.
The court should carefully examine the case of the parties in order to do substantial justice, avoid mere and fanciful technicalities and bring out the real issues in controversy for resolution. unblinded by strict adherence to technicalities.
In The Republic v National House of Chiefs; Ex Parte Odeneho A. Krukoko II (Osagyefo Kwamena Enimil VI, Interested Party) (2005) the Supreme Court said, “A court, such as this Supreme Court, should not shy away from doing substantial justice even if it means abandoning old principles of law and decadent technicalities”. In Ghana Ports and Harbours Authority vrs Issoufou [1993-94] 1 GLR 24 S.C the Supreme Court held that: “…the Court had a duty to ensure that justice was done in cases before them and should not let the duty be circumvented by mere technicalities”.
The case before the court involves not only fundamental human rights of Ghanaians, it also concerns our national life and touches strongly on our democracy. The fundamental rights of the individual and the need to deepen our democracy must be esteemed above all claims, and, at its mention, all legal technicalities must bow. In Fijai Stool vrs Effia Stool (2002) the Supreme Court stated that: “The courts are always mindful of this fact that in the application of the law, human frailty and lapses can never be totally avoided, and that technicalities must not be permitted to eclipse their fundamental duty to do justice”. Justice demands that a suit be determined on the merit and not by technicalities.
Justice and the peace calls
The civil society and a section of the clergy have been making calls for peace to prevail after the verdict of the Supreme Court. While these peace calls are not entirely out of place, the point must be emphasized that in many cases, justice and peace are symmetrically opposed. The Supreme Court is not a Peace Council, although it cannot legitimately do anything to engender discord. Its constitutional mandate is not to broker peace per se. The duty of the Supreme Court is to administer justice and it is the duty of the executive, precisely the security agencies, to ensure peace after the verdict. The court will ultimately fail in its constitutional duty if it slips off track and gives incorrect verdict in order to assuage the fears of the public. It was the learned Justice Kpegah who said in THE REPUBLIC vrs NANA OSEI KWADJO II (2008) that: “As judges we are all aware of the following maxims; (i) “It is better to free nine guilty persons than to imprison one innocent man” and (ii) “Justice must be done even if the heavens fall”.
‘Let justice be done though the heavens fall’ has been an old adage. But I think in the present case, the heavens will refuse to fall because the court’s decision will be just and the starry heavens will remain above to the glory of God, and for the salvation of mankind through the rule of law and natural justice.
The Supreme Court therefore needs to remind and rededicate itself to this all-important maxim. I think the heavens need not rumble, let alone fall as a result of this case. The court must not be moved by the peace calls. It should administer pure justice.
It is exceedingly desirable that justice should be administered by persons who could not be suspected of any ill-motive, even indirectly. It is an acceptable notion of law that where a real ground is laid, the Court should take care that justice is done to the defendant as well as to the plaintiff. The happiness and expectation of the entire Ghanaian society seems to be dependent on the verdict of the Supreme Court. The learned Justices must therefore rise to the occasion to do justice and refuse pretentious calls intended to poison the stream of justice under the guise of peace.
In 1789, George Washington in a letter to U.S. Attorney General Edmund Randolph wrote thus: “Impressed with a conviction that the due administration of justice is the firmest pillar of good Government, I have considered the first arrangement of the Judicial department as essential to the happiness of our Country, and to the stability of its political system; hence the selection of the fittest characters to expound the law, and dispense justice, has been an invariable object of my anxious concern.”
Chief Justice Kenyon once said in Booth v. Hodgson (1795), 6 T. R. 408 that: “It is the great duty of every Court of justice to administer justice as well as they can between the litigating parties; another, and not less material, duty is to satisfy those parties that the whole case has been examined and considered.”
In the case before the Supreme Court, the judges should endeavour to be honest and fair. This is necessary! Lord Kenyon, C.J. said in Cuming v. Sharland (1801), 1 East, 413, that: “The interest of the public is never better advanced than when we can inculcate by our rules the advantage of acting honestly.”
Administer justice without fear or intimidation
In politically charged cases like the present one, every human judge might possibly harbour some fear of intimidation if he does not rule in favour of “the powers that be”. It is an acceptable practice in all civilized nations that “No action will lie against a judge for anything done by him in the exercise of his judicial functions”. Article 127 (3) of the 1992 Constitution states that: “A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power”. This freedom from action or suit given to judges is intended to place them in a better position to administer pure justice without any fear of intimidation or harassment.
In 1827, Lord Tenterden, C.J. in Garnett v. Ferrand (1827), 6 B. & C. 624, 625 explained the rationale behind the practice. The learned Chief Justice said: “This freedom from action and question at the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions they may be free in thought and independent in judgment, as all who are to administer justice ought to be. And it is not to be supposed beforehand that those who are selected for the administration of justice will make an ill use of the authority vested in them. Even inferior justices, and those not of record, cannot be called in question for an error in judgment, so long as they act within the bounds of their jurisdiction. In the imperfection of human nature it is better, even, that an individual should occasionally suffer a wrong, than that the general course of justice should be impeded and fettered by constant and perpetual restraints and apprehensions on the part of those who are to administer it. Corruption is quite another matter; so, also, are neglect of duty and misconduct in it.”
The administration of justice should not only be chaste, but should not even be suspected. The Supreme Court should avoid any juridical or extra-juridical tendencies that are capable of misinforming their decision. Unlike Justice Holmes, our judges must accept the dual role of correctly applying the law and doing justice. Ghana is looking up to the court for a praiseworthy and just verdict. I propose that the judges draw some cue from the following words of wisdom from Lord Ellenborough, C.J. who stated in King v. Hunt (1820), 2 Chit. Bep. 134 that, “It is of the greatest importance that the administration of justice should not only be free from spot or blame, but that it should be, so far as human infirmity could allow it to become, as free from all suspicion.”
God bless our Homeland Ghana.