Ghana’s Chief Justice Gertrude Araba Sackey Torkornoo before requesting an additional five justices of the Supreme Court (SC), engaged all relevant stakeholders and made a strong case for the number of judges at the highest court of the land to be increased to 20 from the current figure of 15.
Correspondents between the office of the Chief Justice and stakeholders such as the Office of the President, Office of the Attorney General, and the Ghana Bar Association (GBA) made available to Asaase News reveal that the request for additional justices of the Supreme Court is backed by empirical data and analysis as well as on comprehensive engagements with all relevant stakeholders in the justice delivery value chain.
The office of the Chief Justice in a 14-page analysis attached to a cover letter to President Akufo-Addo dated 7 February 2024, disclosed the need for the apex court of the land to have additional hands to deal with the increasing workload of the court and to help serve the people of Ghana effectively and timeously.
Initial breakdown
In the 14-page analysis, the Chief Justice’s office first observed that “at the end of the 2019/20 legal year, the Supreme Court of Ghana (SCOG) had 18 judges. At the end of the 2020/21 legal year, the SCOG had 16 judges. At the end of the 2021/22 legal year, the SCOG had 14 judges. At the end of the 2022/23 legal year, the SCOG had 12 judges. This number has currently (2023/24 legal year) been increased to 15 Justices.
“The SCOG is duly constituted for its work by not less than 5 Supreme Court Justices in the discharge of its appellate jurisdictions, and its supervisory jurisdiction. In its original jurisdiction over constitutional interpretation, it is duly constituted for its work by 7 judges.
“It is also duly constituted for its review jurisdiction by 7 judges. An application for review of a constitutional matter requires 9 Justices to preside over it. This means that in any given week when the SCOG sits to consider cases under its original jurisdictions, supervisory, and review jurisdictions, the court may require any number of Judges from 5 to 9 per panel for each case,” the Chief Justice’s justification paper pointed out.
“Currently, the SCOG sits three days a week in alternating weeks to keep up with its volume of week. Two days are used for panel sitting, and one day for the sitting of a single Judge. The SCOG therefore sits twelve times a month. On any given day of sitting, the court deals with a minimum of 15 cases and so works on not fewer than forty-five matters in a week, or approximately one hundred and eighty matters in a month. These numbers may increase when judgments and rulings are included.
“With the current limited number of 15 Justices including the Chief Justice, and with recusals_ necessitated by the oft-occurring situation where Judges of the Supreme Court either sat on a matter on appeal in the Court of Appeal or presided over the trial of a case on appeal, it is almost impossible to create two stand-alone panels in any given week. Invariably, panels have to be reconstituted to enable Judges to leave a panel and allow new Judges to replace them,” the paper further read.
Caseload analysis
As part of the analysis, the office of the Chief Justice reviewed its caseload for the last five years, from the 2018/2019 legal year to the 2023/2024 legal year.
The pattern shows that the Supreme Court in the five legal years, has had 202 (2018/2019), 216 (2019/2020), 221 (2020/2021), 414 (2021/2022), and 595 (2022/2023) pending cases which it has not been able to conclude. The analysis also shows that in the same period under review, the court had 14, 18, 16, 14, and 12 justices in the legal years as identified above.
“It is posited that with the total number of 595 cases pending as of the end of July 2023 legal year, and 12 Judges from whom only 2 sets of panels may be derived, each panel would have had to work to dispose of and render decisions in approximately 263 cases in the year (more than twenty cases each month), even excluding the pending cases from the previous legal year which was 414 cases – leaving an inordinately doubled pattern of backlog of cases.
“It is submitted that if the numbers of Judges of the SCOG are not increased, the untenable situation will be created where Justices of the Supreme Court have to sit every week, sit on multiple panels and on three times the numbers of hearings, just to end the year with the same number of backlog of cases as had become the situation by July 2021. As bad as these circumstances are in terms of delayed justice for those whose cases fall within the backlog, the worse effect is on the quality of work Judges of the highest court can produce with this sort of pressure,” the Chief Justice’s analysis indicated.
US compared to Ghana
In justifying the need for an increase in the number of justices of the Supreme Court of Ghana, the analysis took a look at the state of affairs in the Supreme Court of the United States (SCOTUS) and compared same to that of the Supreme Court of Ghana.
Since the United States operates a federal system of government, each federal state has a Supreme Court bringing the number to at least 51.
The main Supreme Court of the United States (SCOTUS) therefore has a limited scope of work because it is complimented by the work of the state-level Supreme Courts.
“In the face of as many as 6,442 cases filed for consideration of the SCOTUS in 2018/19, the court considered 73 and wrote opinions in 69. In 2022/23 legal year, it considered and wrote opinions in 60 cases. The SCOG on the other hand has no authority to apply any selective criteria to pick out cases that ought to be heard. It is saddled with hearing all matters filed to give a decision, however incompetent, vexatious, or frivolous the application or appeal may be.
“The SCOG is given extremely limited discretion under article 132 of the 1992 Constitution to grant special leave for appeals against certain decisions of the Court of Appeal, that have been extensively considered by lower courts. This limited discretion only applies when applications are made for special leave to appeal, and not in any other matter,” the Chief Justice’s review paper read.
“If an appeal is filed without the application for special leave, the SCOG still has to hear the appeal and produce a decision to show why the appeal ought to be dismissed for want of special leave. The national discourse that compares the numbers of the SCOG and SCOTUS is therefore not at all well-grounded,” it further read.
AG’s position
The presidency after receiving this analysis from the Chief Justice, sought the opinion of the Office of the Attorney General and Minister of Justice on 18 Match 2024. In its response in a letter addressed to the President, the Attorney General (AG), Godfred Yeboah Dame on 29 April 2024, in his 19-page opinion, indicated that the request of the Chief Justice is constitutional.
“Having regard to the relevant provisions of the Constitution, the determination of the number of Justices of the Supreme Court at any point in time would be a function of the administration of justice and the needs of the Court.
“Given the breadth of the multiplicity of jurisdictions of the Supreme Court and the influx of cases at the Supreme Court, the request for the increase in the number of Justices serving on the Supreme Court from the conventional fifteen (in addition to the Chief Justice) to twenty, is not only constitutional but would ensure speedy and effective justice, minimise delays and unnecessary expense and conduce to the general efficient administration of the Supreme Court.
“The performance of the functions of the Supreme Court would, in accordance with the Constitution, require differently constituted panels of the Supreme Court sitting at the same time. Understandably, the permutations in the constitution of the panels, almost simultaneously, could be daunting for effective and efficient work in the face of the limited number of Justices at the Supreme Court, as the Court is incessantly inundated with cases, the opinion of the AG read.
“The exponential increase in the backlog of 414 and 595 cases in 2021/2022 and 2022/2023 legal years in which there was the fewest number of Justices of the Supreme Court for the five years under review, provided scientific justification for the necessity to expand the number of Justices at the Supreme to stem the tide of the increasing backlog of cases.
“The enhancement of the membership of the Supreme Court to twenty, as requested in the brief by Her Ladyship the Chief Justice, is appropriate. However, attention needs to be drawn to the fiscal implication on the public purse of any additional appointment of Justices to the Supreme Court. This is in view of the charge of emoluments payable to Justices of the Supreme Court on the Consolidated Fund.
The jurisdictions exercised by other Supreme Courts in notable countries in the Common Law tradition are relatively much narrower, in comparison to the width of the multiple jurisdictions conferred on the Supreme Court of Ghana.
Ultimately, a constitutional amendment circumscribing the jurisdiction of the Supreme Court of Ghana, in the long term, is necessary, as stated above.
“Therefore, unlike in Canada, the United Kingdom, Kenya, and South Africa, where the number of justices of the Supreme Court is capped, the highest number of Justices of the Supreme Court of Ghana is not capped in the Constitution or in the Courts Act, 1993 (Act 459). This gives discretion to the appointing authority to increase the appointment of Justices to the Supreme Court subject to the demands of the needs of justice,” the Attorney General concluded in his brief.
GBA view
In a similar request, the presidency also sought the view of the Ghana Bar Association (GBA) on 18 March 2024.
The Bar Association in a letter under the hand of its national president, Yaw Acheampong Boafo, dated 8 May 2024, supported the request of the Chief Justice and subsequently, made other recommendations such as resourcing the secretariat of justices of the Supreme Court adequately and automating the operations of the Supreme Court to encourage real-time recording of the proceedings of the court among others.
“We have reviewed the attached brief from the Chief Justice on the subject matter under reference, and comment and suggest as follows: That we agree with the request of the Chief Justice in principle.
“That we are, however, of the humble and considered view that the Chief Justice’s request should have been in respect of the need to increase the conventional number of Justices of the Supreme Court at present to twenty, as the Constitution, 1992, per Article 128(1) prescribes the minimum Justices of the Supreme Court to consist of the Chief Justice and a minimum of nine other Justices, the Bar Association respond read.
“Requesting that the minimum number of Justices of the Supreme Court should be twenty will require a constitutional amendment, which is not the intention of the brief from the Chief Justice,” Yaw Acheampong Boafo’s brief further read.
