Judicial Reform in West Africa
By Sean Kelly
Canadian judges are working with their counterparts in Ghana to help improve a legal system that suffered decades of neglect - and worse - under military governments.
On the front lawn of the stately Supreme Court building in Accra, Ghana, under a biting African sun, stand three bronze busts of judges murdered for doing their jobs. Overhead, a sign proclaims them "Martyrs of the Rule of Law."
The attacks took place on June 30th, 1982, while Ghana was in the armed grip of military rule following yet another coup d'etat. Except for a two-year period in the early 1980s, military control was the main form of government directly from 1972 until 1992, and indirectly until 2000.
Madam Justice Koranteng-Addow had issued a writ for the release of a businessman who had been illegally imprisoned by the military. For her efforts to enforce the law, she was abducted, murdered, and her body set aflame.
Two more judges, Mr. Justice Frederick Poku Sarkodie and Mr Justice Kwadjo Agyei Agyapong, were also kidnapped and killed after they too ordered the release of people sentenced at kangaroo trials officially known as military 'special courts.'
The perpetrators were not petty criminals, but rather agents of the military leadership. As one might expect, these acts of violence led to the rapid resignation of many of the best minds that were then sitting on the bench. "To put it mildly," says Justice Jones Dotse, currently with the Appeal Court in Ghana, "the judiciary was cowed into subservience and silence."
There were also more benign attacks that nonetheless had far-reaching consequences. During the military years, the justice sector was notoriously under-resourced, under-staffed, and undermined. This legacy of neglect weakened the judiciary - and the public's trust in it. And a cornerstone of a stable society is a courts system that dispenses, and, just as importantly, is seen to dispense, fair and impartial justice.
But in recent years, Ghana (known as the Gold Coast during British colonial rule) has been held up as a model for the transition from military dictatorship to civilian rule. And there are no longer attacks - physical or psychological - on the operations and the independence of the judiciary. "Judges feel free to carry out their jobs without looking over their shoulders," says Justice Dotse.
The Judicial Service of Ghana has now embarked on an extensive reform of the judiciary. The ambitious plan has been spearheaded by Ghana's Lord Chief Justice George Kingsley Acquah. In the opening speech at a conference on judicial reform held last summer in Accra, Ghana's energetic capital, Chief Justice Acquah spoke of his dream to "create a judiciary which is at the cutting edge of legal thinking and legal innovation in West Africa."
He went on to say that for Ghana, which retrieved independence in 1957 - the first sub-Saharan African country to do so - "an effective justice system is critical for the economic and social benefit of our country, as political maturity and social progress are inextricably linked to a strong judiciary." The Chief Justice stressed the need for a system that is transparent, efficient, free of corruption, and which "smacks of complete integrity."
There are many challenges facing the judiciary in Ghana, including the morale of judges (they are poorly paid and have heavy caseloads), crumbling infrastructure, lack of training, and substantial case backlogs. There are only about 280 judges and magistrates (civil officers with the power to administer and enforce law) serving more than 20 million people.
A judge may see 40 or more cases piled up on his or her bench on any given day. There are even stories of suspected criminals being held for years and then released without receiving a trial.
Nevertheless, the Chief Justice is proud of what has been accomplished so far: increased computerization in a country where 90 percent of courts record evidence by long-hand; new buildings; a strengthened Judicial Training Institute; development of new codes of ethics and conduct; and the establishment of the Courts Inspectorate and Public Complaints Unit to root out corruption or improprieties - real or perceived.
There has also been a renewed emphasis on alternative dispute resolution methods that focus on mediation, not just litigation, which will hopefully speed up the gears of justice in Ghana.
Major hurdles remain, however, and Chief Justice Acquah is looking for partners in his quest. He needs more money to continue his modernization program, and to improve salaries and working conditions to attract new judges - lawyers can earn much more in private practice.
But Ghana is not a rich country. It is heavily-indebted, with a GDP per capita of $2,400 and a 20 percent unemployment rate. The country sits at 138th on the UN's Human Development Index. So the Judicial Service is looking beyond Ghana's borders for assistance, and is receiving support from a number of international agencies and Developed Countries, including Canada.
The Judicial Service of Ghana has teamed up with two Canadian non-governmental organizations - CUSO, an international development agency, and the Ottawa-based National Judicial Institute - to support policy development and training opportunities. The end goal is to help Ghana's Judicial Training Institute create a faculty of judges who can train their colleagues on an ongoing basis in areas such as case management, judgment writing, and ethics.
The two-year project, which goes until 2008, is budgeted at about $800,000, and has the financial backing of the Canadian government through CIDA - the Canadian International Development Agency.
Over the two years, teams from Canada and Ghana will help create a cadre of skilled trainers to develop curriculum, design courses, and deliver this training to judges and magistrates. The Canadian group will be made up of a small team of judicial experts, pairing seasoned mentors with judges new to international work.
A first exchange visit took place earlier this spring, as a delegation of Ghanaian judges and administrators ventured to Canada. They spent two weeks exchanging best practices and judicial education methods with the National Judicial Institute. The delegation included the Director of the Judicial Training Institute in Accra, and Justices of the Appeal Court, the High Court, the Commercial Court, and the Circuit Court.
This fall, the first contingent of Canadian jurists will journey to Accra to further the collaboration. The Canadians will offer training to judges who want to be judicial educators, focusing on the principles of effective education design and delivery. They will also work with the Judicial Training Institute to help develop its strategic planning and curriculum development.
While Ghana and Canada have two different histories, they share a common legal system that stems from the same roots in the Commonwealth; the judicial reasoning process and basic legal concepts are similar in both countries. Professor Brettel Dawson, the Academic Director at the National Judicial Institute, believes the Canadian and Ghanaian judges can learn much from each other. "There is a special bond between judges that allows them to understand one another and the issues they face despite different contexts. When judges talk to one another, there is often an immediate sense of shared learning."
Canada has a good reputation as a country that offers expertise and training in issues of good governance. "We hope that some of what we have learned will be useful to our Ghanaian counterparts as they undertake their own journey," says Professor Dawson.
"I think we now live in a small global village and people have to learn from one another," says Lawrence Amesu, the CUSO country representative based in Accra. "I think that the Canadian courts have things which our judges can learn from. But at the same time judges in Canada can also learn from Ghana. I think they will be amazed at how much our judges can do on limited resources, and maybe even inspired."
But why would CUSO - an organization committed to sustainable development and poverty alleviation - get involved in judicial reform? What do judges have to do with community development?
"CUSO has identified three main areas to work on in Africa," says Amesu, "poverty reduction, HIV/AIDS, and good governance. The latter includes judicial reform, which is important because we cannot say we are reducing poverty if people have fear that somebody can come and take everything they've worked for. People have to know that the court systems will protect them, that judges are fair and impartial, that they will punish a wrongdoer."
Justice Samuel Marful-Sau, the President of the Commercial Court and one of the participants on the first working tour to Canada, also talks about workers' rights. "An effective judiciary is important because if your employer dismisses you unjustly, you must have a forum to see redress."
"The court," Justice Marful-Sau adds, "is a civilized way of settling disputes. Otherwise, people take the law into one's own hands, and this can be disastrous for Ghana. If the courts are not well organized, if the judiciary is not well equipped, this could lead to a type of legal anarchy. If I had a case and it is taking 15 years to get through court, next time if somebody does wrong to me, instead of going to courts, I will take a gun and shoot."
Justice Samuel Marful-Sau also points out the importance of the judiciary in establishing a good business climate. "The judiciary is a very important organ of state that can promote good governance, investment, and business. With establishment of the commercial court last year, we have seen that the business community is Ghana is happy. This leads to more investment, which leads to more jobs."
Justice Kobena Adoe Acquaye of the High Court, also a participant in the recent trip to Ottawa, extends this necessity of trust to foreign businesses. "It is very important that people interested in coming to Ghana believe there is some protection for their investment. One of the best ways of guaranteeing that is to have a judiciary which is in a position to fairly adjudicate matters between foreigners and Ghanaians in such a manner that both parties have confidence in the process."
A study by the World Bank in the late nineties bears this out. In a survey of 3,600 companies active in 69 countries in the Developing World, over 70 percent of the respondents said that an unpredictable judiciary was a major problem in their business operations. The study also found that the overall level of confidence in the institutions of government, including the judicial system, correlated with the level of investment they made in the country.
It's not an easy road ahead, but the judges involved in this project are committed to the reforms, and to what they mean for Ghana. "We may not be paid the best, and it can be very difficult," says Justice Acquaye, "but we get the reward of satisfaction that we are resolving disputes for people in a fair and impartial manner, and contributing to the development of our country."
And so, at an annual memorial ceremony on June 30th, on the lawn of the Supreme Court and in the presence of the spirits of three Ghanaians murdered for doing their jobs, Chief Justice Acquah will once again urge the colleagues and successors of those departed judges to continue the work they began.
Written June, 2006