The Minister of Justice and Attorney General, Godfred Yeboah Dame, has explained that a request by the Chief Justice to appoint five additional justices of the Supreme Court is constitutional and timely
This was contained in a 19-page opinion to President Akufo-Addo in responds to a request by the President as regards his opinion on the request from the Chief Justice
The Office of the President, after receiving a 14-page analysis from the Chief Justice, sought the opinion of the Attorney General and Minister of Justice on 18 March 2024.
Responding to the president via letter, Godfred Dame, in a 19-page opinion dated 29 April 2024, said the request by the Chief Justice is not only constitutional but also necessary.
“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 15 (in addition to the Chief Justice) to 20 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 AG’s opinion 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 Court to stem the tide of the increasing backlog of cases.
“The enhancement of the membership of the Supreme Court to 20, 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 AG further said.
The Attorney General observed that the Supreme Courts of the UK, Canada, Kenya and most common law traditions exercise only an appellate jurisdiction as the final court of appeal in those countries, with the right to appeal to those courts circumscribed by various requirements of leave and a satisfaction of a threshold to appeal. Thus, only a few cases are actually dealt with by those courts in a year.
Ghana’s Supreme Court exercises seven jurisdictions, with, as the AG pointed out in his letter to the president, an appeal largely mandated by the constitution and the Courts Act to be as of right. The UK Supreme Court is a court of 12 but entertains appeals to it only in exceptional circumstances. The same holds in Canada, which has a Supreme Court of nine.
In South Africa, there is both a Constitutional Court and a Supreme Court of Appeal, which has 23 members. The Constitutional Court is composed of a Chief Justice, a deputy Chief Justice and nine other justices, and is the highest court of the land. However, it exercises jurisdiction in constitutional cases only.
The highest court for hearing appeals in South Africa is the Supreme Court of Appeal, which is composed of 23 judges.
Kenya’s Supreme Court exercises only an appellate jurisdiction, with the high court given original jurisdiction in constitutional cases.
“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,” the AG said. “Ultimately, a constitutional amendment circumscribing the jurisdiction of the Supreme Court of Ghana, in the long term, is necessary.
“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.
The analysis by the AG, Godfred Yeboah Dame, drew the president’s attention to the fiscal implications of the increase in view of the charge that the emoluments for the justices, when appointed, will impose on the Consolidated Fund.
In a similar request, the presidency also sought the view of the Ghana Bar Association (GBA) on 18 March 2024.
The GBA, in a letter under the hand of its national president, Yaw Acheampong Boafo, dated 8 May 2024, supported the request by the Chief Justice and 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.
“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 20, 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 response read.
“Requesting that the minimum number of justices of the Supreme Court should be 20 will require a constitutional amendment, which is not the intention of the brief from the Chief Justice,” Acheampong Boafo’s brief also said.
