Too many Justices on the Supreme Court disturbs efficiency in mgt of cases – H Prempeh

The Executive Director of the Ghana Centre for Democratic Development (CDD-Ghana) Professor H Kwasi Prempeh has expressed dissenting views on the position taken by the Former Chief Justice Sophia Akuffo and her successor Justice Kwasi Anin Yeboah on calls for the number of Justices of the Supreme Court (SC) to be capped. 

Ms Sophia Akuffo’s view on the call is that, capping the number “opens door to the SC leads to unnecessary case loads and it slows down the pace of cases, making it difficult to say cap the number of judges at the SC.

“I do not think capping is necessary because the scope of the jurisdiction of the SC is too broad and we need to take a look at it.

“I am not in a position to say the Constitution should now cap the number, but if you want to cap, then we need to also reduce access to the SC, and then we will have something that will be quality-based rather than quantity-based,” she said.

Chief Justice Anin Yeboah also explained his position on this matter saying, “They are thinking of cases like the rise of Guantanamo Bay precedence, not your personal injury resulting from an accident on the highway which can go through the hierarchy of the superior courts in Ghana, and the SC judge has no objection but hear it because he is bound by law.

“But there (US), where it all started, it is not like that at all; you cannot compel the SC there to hear those sorts of cases.

“However, in Ghana, what the Constitution says is that some of these cases which commence from the High Court must be heard on second appeal as of right. And who are you to say ‘no’?” he asked rhetorically.

“So when people start talking about capping the number of judges at the SC, with all apologies, some of them may not know the nature of the jurisdiction of the court, and it is a cause for worry. They must take their time to ask and they will be told,” Justice Anin Yeboah said.

They shared their views calls to cap the number of justices appointed to the highest court of the land at the Institute of Economic Affairs (IEA) stakeholder engagement on constitutional review in Accra last Tuesday.

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Reacting to this, Prof Kwasi Prempeh said in a write up on Facebook that “too many Justices on the Supreme Court is itself a source of inefficiency in the management and disposition of cases. There is no evidence to show that the Court has become more efficient as the number of Justices appointed unto it has grown. To the contrary, complaints about workload on the Court have grown louder as the size of the Court has grown.

“In a way, there is a sort of Parkinson’s Law at work here. Just as a person with a distant deadline will take as much time as they have on their hands to do the same work they could complete on a tight deadline, so, too, with the number of Justices on the Court. More judges on the Court will not necessarily make the Court more efficient. If the case for a court of unlimited size is predicated on the wide scope of the Court’s jurisdiction, then the better argument is to propose that the Court’s (original and appellate) jurisdiction be narrowed or restricted, not to insist that the size of the Court not be capped.

“Are proponents of a no-cap Court trying to suggest that the size of the Court must continue to grow indefinitely? Have they weighed the presumed benefit of a no-cap Court against the risk to judicial independence and public confidence in the Court that comes from the perceived court-packing associated with a President appointing more and more Justices to the Court?”

Below is his full write up…

H Kwasi Prempeh

Because we are so special, aren’t we? How many Justices do we have on the Ghana Supreme Court now? I have even lost count! The last time I bothered to check, it was inching its way up toward the number 20. Kenya, a fellow common law country, with a population numbering over 50 million (Ghana: 31 million), a land area of 582,646 sq km (Ghana: 238,533 sq km), and an economy larger, more diversified and more sophisticated than Ghana’s, has a total of 7 Justices on its Supreme Court. And yes, the number is capped by law at 7. And the Kenyasi Supreme Court, which often sits as a full bench, delivers decisions, including time-sensitive presidential election petitions, relatively more expeditiously than ours does.

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We don’t like to have binding limits or restraints on anything, because we want to be left free to use power as we please. With the Supreme Court, having no limit means any President can keep putting as many people on the Court as he or she pleases, as long as Parliament keeps approving them. (Since the Supreme Court has held that the President need not heed the advice of the Judicial Council or Council of State in these matters, it’s essentially one person’s call).

The argument that the scope of the Supreme Court’s jurisdiction is “so broad” that limiting or capping the number of Justices would undermine the efficiency of the Court is simply unpersuasive. First of all, too many Justices on the Supreme Court is itself a source of inefficiency in the management and disposition of cases. There is no evidence to show that the Court has become more efficient as the number of Justices appointed unto it has grown. To the contrary, complaints about workload on the Court have grown louder as the size of the Court has grown. In a way, there is a sort of Parkinson’s Law at work here. Just as a person with a distant deadline will take as much time as they have on their hands to do the same work they could complete on a tight deadline, so, too, with the number of Justices on the Court. More judges on the Court will not necessarily make the Court more efficient. If the case for a court of unlimited size is predicated on the wide scope of the Court’s jurisdiction, then the better argument is to propose that the Court’s (original and appellate) jurisdiction be narrowed or restricted, not to insist that the size of the Court not be capped.

Are proponents of a no-cap Court trying to suggest that the size of the Court must continue to grow indefinitely? Have they weighed the presumed benefit of a no-cap Court against the risk to judicial independence and public confidence in the Court that comes from the perceived court-packing associated with a President appointing more and more Justices to the Court?

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We must not lose sight of the fact that, when it comes to constitutionalism or constitutional democracy, efficiency is very often not the most important value or outcome we seek. In fact, in matters of constitutionalism, efficiency is frequently quite intentionally subordinated to other values that are deemed more important in a given context. For example, separation of powers and checks and balances slow decision-making in a constitutional democracy and, in that regard, may be said to be inefficient. But the greater deliberation, participation, reflection, oversight, and accountability in decision-making that a system of checks and balances promotes are values and outcomes so critical to constitutionalism that the relative inefficiency of separation of powers is considered an acceptable price to pay. Indeed the appropriate focus or consideration, when it comes to whether or not to cap the size of Supreme Court, is not whether or not it makes the judges’ job easier or workload lightier, it is whether or not it enhances or diminishes the people’s confidence in the independence and impartiality of the Court. “Justice,” after all, “emanates from the People,” and judges and the Courts exist to serve and vindicate that higher cause, not their own.

We cannot continue to tolerate or defend this business of no limit on the size of the Supreme Court, no limit on the size of the Executive, no limit on the number of constituencies (MPs), no limit on anything! And all these are Article 71 officeholders. This kind of constitutional looseness or permissiveness, within a political and establishmentarian culture of entitlement, patronage, excess, and abuse, is one of the sources of the profligacy and fiscal indiscipline in Ghanaian officialdom that has landed us where we are today. Why shouldn’t we have a cap on our Supreme Court! What makes us so exceptional?

By Laud Nartey|3news.com|Ghana