I am just returning from the Ghana Bar Association’s annual national conference in Sunyani. In their speeches, the President, Nana Akufo-Addo, and Attorney-General Gloria Akuffo, in particular, invited the inputs of lawyers for the Office of Special Prosecutor, and courted support for the fight against corruption.
On the first day, members, without any hesitation, variously and in different ways, expressed readiness to give government every backing to win the fight against corruption and damage to the environment. Some obviously had legitimate concerns about aspects of the OSP Bill, but it was clear at the plenary session after a lecture on the theme by Justice Jones Dotse that members will not only make inputs into the bill but live up to the theme requiring them to play various roles in fighting corruption and damage to the environment.
But the thunderous applause that greeted Dr Raymond Atuguba’s presentation on the second day was a clear and strong indication of a yearning collective desire for radical reforms in the justice delivery system.
I found his 11 recommendations for change in civil litigation as essential in not only curbing the corruption the rather slow system breeds, but a judicial revolution that will bring great relief to citizens, trust in the system and propel Ghana faster into the best examples of democracies of the rule of law and prosperity. His proposal to get rid of the writ system and keep to a frontloading motions approach to commencing litigation will see cases dispensed with within three to six months.
But there is no doubt such a change with the application of technology will revolutionise justice delivery in Ghana and save it from the lack of trust resulting, among others, from the rather slow system. Nobody goes to court to resolve family, property, constitutional or human rights abuse, business or whatever problems and expect their case to travel a year, two, three or, as happened in one case, 40 years. Chief Justice Georgina Wood rightly described that family property case as “a parody of justice” when it got to the Supreme Court and was eventually concluded in 2014.
A system that accommodates so many other rather unnecessary intervening processes, and adjournments that can delay the determination of a case for five, 10 or more years and in the most absurd situation of 40-long years certainly needs an overhaul before people give up and find justification in “jungle justice”. Dr Atuguba revealed, and I am not sure if anybody was shocked, that a World Bank research showed that “[t]he year 2000 only saw 1,777 of the 28,665 cases filed disposed of. That accounts to a measly 6.2% of the total cases filed", and that "[t]he highest disposal rate recorded by the researchers was from 2004/05 year when the court managed to dispose of 34.3% of the cases filed.
Year after year, 66 to 94% of the cases that go to the court are left hanging in the air." The Supreme Court in 2013 used eight months to conclude the historic election petition case. The court could dispose off that case within weeks if it had kept to its orders for the case to be dealt with by affidavit evidence. It took that long because it decided to add to the affidavit evidence approach oral testimonies requiring examination in chief and cross-examination.
This approach should be the exception, depending on the circumstances of particular cases when the recommendation for the motions approach is adopted. In the lead-up to the 2016 elections, the Chief Justice dedicated courts to deal with election matters and cases were largely done via the motions approach and dispensed with very swiftly to the admiration of all.
In fact, I conducted one case with now Deputy Attorney-General Godfred Dame (with now Speaker Prof Mike Ocquaye on his team) and it took us two weeks, all because the judge fixed timelines and insisted on them.
This and the resort to technology for filing and serving court processes aren’t new as Dr Atuguba acknowledges.
The advocacy is for the approach, including allowing service of processes by email, WhatsApp, Facebook messenger and the like to be legislated to become the rule or norm, rather the exception. Remember some judges have exercised their discretion to allow service of court processes on evasive defendants through such social media platforms. Recently, I got one such order and served processes on an MP and got a case partially concluded rather quickly.
I am fully aware that Chief Justice Sophia Akuffo is not only a lover of technology but preaches its use for speedy justice delivery.
She is set to have her name etched in gold in the history of Ghana’s judiciary if she will commit to and pursue the recommendations for change that avoid the many bottlenecks that also breed corruption. The results of the paperless clearance system introduced at the country’s major sea ports this month is evidence of what can be avoided and what can be gained if cases can be filed electronically, etc, with little human interface in the process. It is very embarrassing in this day and time for lawyers and clients to travel from one region to the other for court only to be told a judge isn’t sitting when such information could easily be communicated in advance via technology.
I cannot conclude this My Take without noting with joy the news that the code of discipline for lawyers is set to see changes that accord with the times. This announcement was also made at the conference after the Honourable Justice Anin Yeboah spent time educating lawyers on the need to be ethical in their practice to avoid sanctions. I remain hopeful the revision will see a reasonable allowance for Ghanaian lawyers to actively use technology, including resort to social media, for decent advertising. Water, they say, will always find its level. Good and ethical lawyers will always be in good business.
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