UNIVERSITY OF PROFESSIONAL STUDIES, ACCRA (UPSA)

BACHELOR OF LAWS (LLB)

Constitutional Law 1 (BLAW217)

Question:

1. The Commission on Human Rights and Administrative Justice (CHRAJ) is

mandated to protect and promote administrative justice to ensure that the
government and its officers are accountable and transparent. CHRAJ has
chalked a number of successes but has been described as slow and
ineffective in securing the interest of complainants.
2. Article 125 of the Constitution 1992 provides that justice emanates from the
people and shall be administered in the name of the Republic by the Judiciary
which shall be independent and subject only to the Constitution. In the light
of the above Constitutional provision, discuss the concept of Judicial
Independence with the aid of decided cases

ID: 10282602
25th October, 2021.

LECTURER: Justice Abdullai

Question 1

Democracy, which is the very foundation of good governance in modern states. In the past,
especially in Sub Sahara Africa around the 19th century, persistent desire to establish one party
states by autocratic governments resulted in the violations of human rights and an increasing level
of corruption. Ghana is not an exception to this phenomenon. In February 1966, Ghana saw its
first coup d’etat that saw the overthrow of the government of Kwame Nkrumah who had
established the country as a one-party state. Several alleged reports of human rights abuse were
reported at the time and the Nkrumah government was accused of being corrupt. This, inter alia,
set the course for his overthrow and neither did military takeovers seize. Between 1966-1982,
Ghana saw multiple military governments coupled with consistent corrupt practices and violation
of human rights like the killing of the Supreme Courts Justices in 1982. Ghana was ushered into a
democratic governance in 1992 through the 1992 constitution and as a measure to protect the rights
of its subjects and whip public officers to account for their corruption related practices, the
Commission on Human Rights and Administrative Justice (CHRAJ) was created under Article 216
of the 1992 constitution and its functions and object set out in the CHRAJ Act, 1993 (Act 456). In
the exercise of their functions, the members of the Commission are not subject to the direction or
control of any person or authority. This paper will analyze the functions and objects of CHRAJ
and its effectiveness in the performance of these functions.

CHRAJ is considered as the custodian for protecting human rights and serve as an anti-corruption
agency as enshrined under Article 218 (a) of the 1992 constitution which states that, “the
commission shall have the duty to investigate complaints of violations of fundamental rights and
freedoms, injustice, corruption, abuse of power and unfair treatment of any person by a public
officer in the exercise of his official duties”. This function is also reiterated in the CHRAJ Act
1993 (Act 456). The commission is expected to perform this function as a contributing factor to
good governance which is defined as an approach to government that is committed to creating a
system founded in justice and peace that protects individual’s human rights and civil liberties.
According to the United Nations, good governance is measured by the eight factors of
participation, rule of law, transparency, responsiveness, consensus oriented, equity and
inclusiveness, effectiveness and efficiency, and accountability. The functions of CHRAJ concerns
itself with ensuring transparency and accountability from public officers.

CHRAJ has chopped some success which include the following;

Some of the modest achievements of the Commission are the following:

• The Commission remains the unique institution that provides leadership in tackling
corruption and strengthening human rights in Ghana;
• It has brought into focus the need to raise awareness of the connection between human
rights and corruption in Ghana as key to controlling corruption.
• It occupies centre stage in advocating the passage of transparency-enhancing legislation in
Ghana such as the whistleblower act, the witness protection law and the right to information
law;
• It provides protection to whistleblowers, as part of its unique functions under the
whistleblower act 2006;
• The Commission has successfully facilitated the introduction of Anti-Corruption in Human
Rights Education in Senior High Schools and plans to extend same to junior high schools,
and
• It coordinated the development of the National Anti-Corruption Action Plan, and continues
to coordinate its implementation.

Amongst the functions of CHRAJ as established under the constitution and Act 456 include,
investigating complaints on violations of human rights and freedoms, injustice, corruption, abuse
of power and unfair treatment of any person by a public officer in the exercise of his official duties.
As an anti-corruption agency, it has the responsibility to investigate and report cases of corruption
and corruption related practices of public officers, investigating complaints of violations of
fundamental human rights and freedoms, administrative injustice, instances of alleged or suspected
corruption, misappropriation of public moneys by officials, abuse of power and unfair treatment
of persons by public officers and breaches of the code of conduct for public officers. In addition,
the Commission investigates disclosures of impropriety and protects whistleblowers from
victimization. When it investigates allegations of victimization against whistleblowers or members
of their families, it makes orders, which have the same effect as a judgment or order of the High
Court and is enforceable in the same manner as a judgment or order of the High Court.

In the performance of these functions, the commission has the following powers in section 8 of
Act 456 to;
1. issue subpoenas requiring the attendance of any person before the Commission and the
production of any document or record relevant to any investigation by the Commission;
2. cause any person contemptuous of any such subpoena to be prosecuted before a competent
court;
3. question any person in respect of any subject matter under investigation before the
Commission;
4. require any person to disclose truthfully and frankly any information within his knowledge
relevant to any investigation by the Commissioner.

The independence of the Commission is guaranteed under the Constitution and its investigative
powers cover every public officer from the President to the ordinary person.

Nonetheless, in the performance of these functions coupled with the powers given it by the
constitution and the Act, it is faced with several challenges in the discharge of it these functions
and has been considered to be slow and ineffective in this regard. The following elaborated points
would look at how certain issues affects work of the commissions and suggest remedies to such
menace.

To begin with, the interference of politics in the work of CHRAJ has been a major issue influence
the discharge of their functions. Under section 2 (2) of Act 456, the President has the prerogative
right, in consultation with the Council of State, in appointing the commissioner and the deputy
commissioners. Many have criticized this arrangement as established. It is the believe that many
high-profile cases reported to the Commission did not receive the appropriate remedy is deserved.
A classic example can be cited in the case involving President Mahama and the Ford Expedition
gift. Allegations of conflict of interest and bribery were levelled against the President through three
separate petitions over a Ford Expedition gift donated by a Burkinabe contractor to the President
and subsequently won a contract from Ghana. These petitions were submitted to CHRAJ by the
Progressive People’s Party and the youth wing of the Convention People’s Party. The petition was
subjected to Article 284 of the 1992 constitution which states that, which states: “A public officer
shall not put himself in a position where his personal interest conflicts with or is likely to conflict
with the performance of the functions of his office”. In the investigative report of CHRAJ, the
commission exonerated the President by stating that the conduct of the president did not
contravene Article 284 of the 1992 constitution. The report received criticism from many quarters
including the New Patriotic Party who indicated that this was an attempt by CHRAJ to whitewash
the President in the view of the obvious facts related to the case. As such, there is the believe the
appointment of the Commissioner and his Deputies has made the commission a rubber stamp to
perform the bidding of the appointing party.

Again, there is a limitation on the functions and power of the commission in the ability to
prosecute. In the case of Republic v. High Court, Accra; Ex Parte CHRAJ (Addo, Interested Party)
[2003-2004] SCGLR 312, although the Commission had made enough findings in its
investigations to implicate the applicant, the Supreme Court quashed the findings of quashed the
findings of corruption and conflict of interest against the applicant for breaching the principle of
natural justice. Unlike the Auditor General that has the prosecutorial powers, CHRAJ only has the
power to issue subpoenas to requiring parties to appear before it but to prosecute any individual
lies in the bosom of a competent court. (Section 8(1)(b)). This has further decreased the faith
people have in the commission for not being able to see to an effective justice for the complainants
and the citizenry as a whole.

There is the issue of finance and logistics available for the performance of the functions of CHRAJ.
The commission is left handicapped in getting logistics to carryout their function. This was opined
by Mr. Whittal, who is a formal Commissioner of CHRAJ, by Article 227, the administrative
expenses of the Commission and anti-corruption bodies instituted by law such like the Auditor-
General (A-G) are a charge on the consolidated fund and should not go through appropriation and
subjected to cuts by the Ministry of Finance. The commission then continue to reel under extreme
difficulties due to funding gaps thereby undermining its core mandate to fight corruption. There is
then the need to adequality resource and retool the Commission enough not to render them as
toothless bulldogs.

Also, on the code of conduct for public officers, rules of evidence will be reviewed to shift the
burden of proof onto a person alleged to have been bribed. Where the person admits receipt of the
monetary item but denies that it was a bribe, the findings of the commission cannot be upheld since
the burden of proof does not lie with them. In Appiah Ampofo v CHRAJ [2005-2006] SCGLR
227 the Commission found that, the US96,500 that the respondent received was a bribe and not a
gift because of the source of the payment (from a company in the UK), the timing of the payments
(after facilitating a contract), continued denial by the respondent that no payments were received
and, lack of transparency in the payment of the money (secret lodgments into the account of the
respondent in the UK). Although, this corruption has been the indication of CHRAJ, it needed to
be proofed by the court for a proper prosecution of the appellant.

In conclusion, the Commission on Human Rights and Administrative Justice as established by the
constitution has been effective in handling some cases in the republic. However, they are faced
with other limitations like finance and logistics, political interference, non-availability of
prosecutorial powers and the burden of proof has limited their work.

Question 2

For democracy of a country to be held strong, the dispensation of justice must be done without
fear or favor by and independent judiciary. In the absence of these human rights and freedoms, as
established under chapter 5 of 1992 constitution, would be disregarded and the concept of rule of
law would be under disguise. There is then the need to have a judiciary that is independent and
dispense justice that is not done under mischief and recklessly. Judges may resort to the bidding
of governments and politicians and their close associates and families and friends in the judicial
process in the absence of a well-defined procedure for ensuring the independence of the judiciary.
Owing to this, it is then necessary to put in place certain structural and institutional arrangements
that will ensure that the judiciary is independent and actually be seen by the ordinary citizen to be
so. As Hewart CJ popularly remarked in R v Sussex Justices, Ex Parte McCarthy [1924] 1 KB
256, “not only must justice be done; but it must also be seen to be done.” This paper will then
discuss the concept of judicial independence in the case of Ghana.

To begin with Article 125(1) of the 1992 constitution indicates that justice emanates from the
people and shall be administered in the name of the Republic by the Judiciary which shall be
independent and subject only to the Constitution. The concept of judicial independence, by
extension, would mean the freedom of the judiciary from control by the executive or legislative
branches in the exercise of its decision-making duties. Without this, real justice may probably not
be done. Judicial independence also expects from judges to be independent of the agencies of
government, although, the parties seeking justice from their quarters are representative of such.
This requires judges to remain impartial to the law and administer justice not in the favor of a part
for subjective reasons but by law. But there would be no guarantee under a system with high
political pressure on the judiciary.

Considering the rational for judicial independence, the independence of the judiciary has travelled
through time and space to present. Thus, in a time where there was not an absolute independence
of the judiciary and the present with a seemingly absolute judicial independence.

To begin with, the concept of separation of powers, which requires each of the three main organs
of government to be independent of the other in the performance of its duties. An independent
judiciary cannot exist in an atmosphere where judicial functions are not separated from executive
and/or legislative functions. This was profoundly recognized by Lord Scarman in the popular case
of Duport Steel Ltd. v. Sirs [1980] 1 All ER 529 at 551 where he remarked: “Great judges are in
their different ways judicial activists. But the Constitution’s separation of powers, or more
accurately, functions must be observed if judicial independence is not to be put at
risk.” Accordingly, once the judiciary is a distinct organ from other organs of government, judicial
independence can thrive. It is therefore a step in the right direction that the concept of separation
of powers constitutes one of the structural pillars of our democratic dispensation, underscored by
several different provisions of the Constitution, 1992. Notable among these are chapters eight, ten
and eleven of the Constitution which confer executive, legislative, and judicial functions on the
executive, legislature and the judiciary respectively.
It is the law that the appointment of Justices to the Supreme Court and the High Court in Ghana is
left in the hands of the government (Article 144 of 1992 constitution). The courts have had course
to show concern of this arrangement. In the case of Ghana Bar Association v. Attorney General,
the President had appointed one Justice Abban as Chief Justice, following articles 91(1) and 144(1)
of the 1992 Constitution, whose appointment was approved by Parliament. The plaintiff invoked
the original jurisdiction of the Supreme Court to challenge Abban’s appointment on the ground
that Abban was not of “high moral character and proven integrity” to be a judge, as required by
the Constitution. The Supreme Court of Ghana ruled that questions relating to the appointment of
judges and whether such judges are of high moral character and proven integrity are purely
political questions that are reserved for the executive and parliament, and the judiciary cannot call
to question what those organs have done in respect of the appointment of judges. There is an
indication that the advice given by the Council of State does not stand to be binding on the
President who is the appointing body. Thus, the independence of the Judiciary is not absolute since
the appointment of its leading personnel including the Chief Justice is done through the other two
arms of government, that is, the executive and the legislature.

Judicial review powers lie with the Supreme court, and this somehow recognizes the independence
of the judiciary. Law making powers resides in the legislature and other bodies as the constitution
through the authority of Parliament may decide (Article 11(b), 106). However, the judiciary
through the Supreme Court has the original jurisdiction to review laws and rules made by the
legislature and other bodies. Thus, the Supreme Court in the performance of its function of
interpreting the constitution consequently determines whether an Act, law or conduct of the
Legislature or the Executive is within the constitutionally set limits. In the case of Marbury v
Madison where the concept of judicial review was first recognized, the Supreme Court held that
the appointment of the plaintiff was irrevocable. Also, in Sallah v Attorney General, the Supreme
court of Ghana held that, the dismissal of the public servants including Sallah was not
constitutional. The dictum of Kpegah JSC in the case of Amidu v President Kuffuor (SCGLR
2001–2002) was to the effect that, the function of the Judiciary is ‘the maintenance of the culture
of constitutionalism. Nonetheless, the executive head did not adhere to the directive of the court
and held that “if any others who were not reappointed in the recent implementation of the
transitional provisions of the constitution wish to sue the government, they are at liberty to do so.
The government will not stop them. But if they hope thereby to coerce the government to employ
them, then they will be wasting their time and money. My government will exercise the right to
employ only those whom it wishes to employ.” In recent times, any performance that is contrary
to the directive of the court is held as a contempt of the court. Ramdan v Electoral Commission
and Another saw the respondent adhering to the directive of the court to register Ghanaian citizens
living outside the country.

The concept of judicial independence is constitutionally guaranteed. The courts have gone miles
ahead to make very elaborate pronouncements which have as their effect the promotion of the
independence of the judiciary. The fact that the courts hold in high esteem the concept of judicial
independence can be gleaned from the dissenting opinion of Atuguba JSC in the case of Tsatsu
Tsikata (No 1) v Attorney-General (No 1) [2001-2002] SCGLR 189 where he remarked
that: “[t]he judiciary itself cannot waive its independence under articles 125 (1) and 127 (1) of the
Constitution, 1992 by acquiescing in the administration of justice in the name of the President or
other authority or person, rather than the Republic.”

The remuneration and the term of office of the judiciary is intended to ensure that the judiciary is
independent to dispense their duties. Under this heading the Judiciary is strictly in charge of its
own affairs, in both financial and administrative matters. Article 127(1) of the 1992 Constitution
pursuant to this provides that, ‘In the exercise of the judicial power of Ghana, the Judiciary in both
its judicial and administrative functions, including financial administration, is subject only to this
constitution and shall not be subject to the control or direction of any person or authority’. It further
guarantees institutional independence of the Judiciary by adding that ‘The judicial power of Ghana
shall be vested in the Judiciary; accordingly, neither the President nor parliament nor any organ or
agency of the President or parliament shall have or be given final judicial power’. This provision
encapsulates the often quoted dictum of Justice Marshall in the celebrated case of Marbury v
Madison to the effect that, ‘It is emphatically the province and duty of the judicial department to
say what the law is. Those who apply the rule to particular cases, must expound and interpret that
rule’. This has ensured some level of security in financial terms for the judges to eliminate bribery
and corrupt practices in the administration of justice in the courts.
As a remedy to some of the hindrances to the concept of judicial independence, as a measure keep
the hands of the executive off from appointing the judges and justices to the courts, there should
be an independent judicial body to take charge of this. Same must apply to the dismissal of the
Chief Justice upon breaching a provision set out in his mandate and the constitution.

In the opinion of the authors, in so far as the current mode of appointment of judges remains a
structural pillar in the architecture of our legal system, we should not expect a well-functioning
and truly independent judiciary. It is about time we devised a more practically sound and
constitutionally excellent way of appointing judges. The authors suggest that a politically neutral
constitutional body can be set up to oversee all matters relating to the appointment and promotion
of judges at all levels of the judiciary, so that politicians may not have a direct influence on the
appointment of judges. Since the Judicial Council already has a similar constitutional mandate, the
President can be divested of the power of appointing judges and the Council well equipped and
restructured to discharge that responsibility. Until then, the authors hold that there is no true
judicial independence at play in our legal system. At best, judicial independence in Ghana can be
described as a theoretical conjecture struggling to be born in the practical realm.
References

1992 Constitution of Ghana

Court Act 1993 (Act 456)

Chraj Vrs Attorney General and Others (J1 3 of 2010) [2011] GHASC 19 (06 April 2011);

Republic v. High Court, Accra; Ex Parte CHRAJ (Addo, Interested Party) [2003-2004] SCGLR
312

Appiah Ampofo v CHRAJ [2005-2006] SCGLR 227

Marbury v. Madison - 5 U.S. 137, 2 L. Ed. 60, 1803 U.S. LEXIS 352, 1 Cranch 137
Irving R. Kaufman, “Chilling Judicial Independence” The Yale Law Journal Vol. 88: 681, 197, p.
684.

Atudiwe P. Atupare, “Constitutional Justice in Africa” (LexisNexis 2013) p. 113.

https://www.worldbank.org/en/topic/governance/overview#1