2012 Baseline Survey of the Justice Sector of Ghana
DRAFT FINAL REPORT
SUBMITTED BY
LAW AND DEVELOPMENT ASSOCIATES House NO. 43/26, Okponglo, East Legon, Near the Ecobank P. O. Box LG. 203 Accra, Ghana Telephone: +233-302-514261or +233-24-4675611 or +233-24-4624130 Fax: 233-302-514261 Email: [email protected] Website: www.ladagh.com
TO
MINISTRY OF JUSTICE AND ATTORNEY-GENERAL'S DEPARTMENT Ministries Accra
AND UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP) P. O. Box 1423, Accra, Ghana Close to the National Fire Service HQ Ring Road East Accra
December, 2012
CONTENTS LIST OF ABBREVIATIONS ...... 1.
INDEX OF TABLES AND CHARTS ...... 4
ACKNOWLEDGMENTS ...... 5
EXECUTIVE SUMMARY ...... 6
1.0 INTRODUCTION ...... 13
1.1 Purpose of the Baseline Survey...... 13 1.2 Background to the Baseline Survey ...... 13 1.3 Organization of this Report ...... 15 2.0 METHODOLOGY ...... 17
2.1 A Three-Part Methodology ...... 17 2.1.1 Validation Meetings and Interactions ...... 17 2.1.2 Literature Audit ...... 17 2.1.3 Survey Instruments ...... 17 2.2 Field Work...... 17 2.2.1 Training of Field Researchers ...... 18 2.2.2 Mapping out the Country ...... 18 2.2.3 Sampling Design ...... 18 2.2.4 On the Field ...... 19 2.2.5 Field Challenges and Remediation ...... 20 2.3 Data Coding and Analysis ...... 20 3.0 SURVEY FINDINGS ...... 22
3.1 Demographic Characteristics ...... 22 3.2 Findings on Public Knowledge on, Experiences with, and Attitudes to the Justice Sector .. 24 3.2.1 Findings on Public Knowledge and Experiences of the Formal Justice system ...... 24 3.2.2 Findings on Public Knowledge and Experiences of the Informal Justice System...... 28 3.3.3 Preferred Avenue for Redress of Grievances ...... 30 3.3.4 Findings on Public Attitudes to the Formal Justice System ...... 30 3.3.5 Findings on Public Attitudes to the Informal Justice System ...... 31 3.3 Findings on Public Levels of Knowledge on Human Rights ...... 32 3.4 Findings on Gender and Access to Justice ...... 34
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3.5 Findings on Judicial Independence ...... 35 3.6 Justice Sector Corruption ...... 35 3.7 Reform Proposals from Respondents ...... 36 3.7.1 Reform Proposals for Improving Access to the Formal Justice System ...... 36 3.7.2 Reform Proposals for Improving Quality of the Formal Justice System ...... 37 3.7.3 Reform Proposals for Improving Access to the Informal Justice System ...... 38 3.7.4 Reform Proposals for Improving the Quality of Justice Delivery in the Informal Justice System…...... 38 4.0 FINDINGS ON JUSTICE SECTOR INSTITUTIONS ...... 40
4.1 Trend Analysis of Institutional Challenges of Justice Sector Institutions ...... 40 4.2 Matrix of Institutional Challenges of Justice Sector Institutions ...... 40 5.0 RECOMMENDATIONS AND PLAN OF ACTION ...... 41
5.1 Recommendations for Justice Sector Reform ...... 41 5.1.1 Justice Sector Reform Must Deal with the Formal and Informal Justice Sector Duality and Legal Pluralism ...... 41 5.1.2 Justice Sector Reform Must Deal with Justice Sector Institutions Other than the Courts 41 5.1.3 Justice Sector Reform Must Include Building Citizenship on Justice Sector Issues...... 41 5.1.4 Generally Improving the Functioning of the Justice Sector ...... 42 5.1.5 The Focus of Reform Must Include ADR in Particular ...... 43 5.1.6 Institutional Communication, Collaboration, and Coordination ...... 43 5.1.7 Institutional Development ...... 43 5.2 Plan of Action for Justice Sector Reform ...... 43 5.3 CONCLUSION ...... 44 APPENDICES ...... 45
6.0 APPENDICES ...... Error! Bookmark not defined.
6.1 Institutional Matrix ...... Error! Bookmark not defined. 6.2 Literature Audit ...... Error! Bookmark not defined. 6.3 BIBLIOGRAPHY ...... Error! Bookmark not defined. 6.4 Survey Instrument ...... Error! Bookmark not defined. 6.5 Interview Guide ...... Error! Bookmark not defined. 6.6 List of Interviewees (Institutions) ...... Error! Bookmark not defined. 6.7 List of Regional Stakeholder Interviewees ...... Error! Bookmark not defined. 6.8 Research Team ...... Error! Bookmark not defined. Page 2 of 105
LIST OF ABBREVIATIONS
ACL Ascertainment of Customary Law Project
ADR Alternative Dispute Resolution
CHRAJ Commission on Human Rights and Administrative Justice
CLR Council for Law Reporting
CSOs Civil Society Organizations
DPs Development Partners
EOCO Economic and Organised Crime Office
JTI Judicial Training Institute
LAB Legal Aid Board
LAP Land Administration Project
LRC Law Reform Commission
MMDA Metropolitan, Municipal and District Assembly
MoE Ministry of Education
MoJ Ministry of Justice and Attorney General’s Department
NCCE National Commission on Civic Education
NHC National House of Chiefs
PASW Predictive Analytical Software
UNDP United Nations Development Programme
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INDEX OF TABLES AND CHARTS
Tables Table A: Age and Gender Profile of Respondents
Charts Fig A: Educational Background of Respondents Fig B: Occupation of Respondents Fig C: Regional Breakdown of Public Knowledge and Experience of the Formal Justice System Fig D: Public Understanding of the Processes and Proceedings in the Formal Justice System Fig E: Levels of Interaction with Formal Justice Institutions Fig F: Rating of the Formal Justice System Fig G: Regional Breakdown on Public Engagement of the Services of Lawyers Fig H: Regional Breakdown of Public Knowledge or Experience of the Informal Justice System Fig I: Rating of the Informal Justice System Fig J: First Choice Dispute Redress Avenues for the Public Fig K: Factors Influencing Respondents' use or Recommendation of the Formal Justice System Fig L: Factors Preventing “the use” OR “Recommended Use” the Informal Justice system Fig M: Public Levels of Knowledge on Human Rights Fig N: To Which Authority Did You Report the Human Rights Violation? Fig O: Reasons for not reporting Human Rights Violations Fig P: The Justice Sector and Gender Fig Q: Public perception of the Independence of the Justice Sector Fig R: Justice Sector Institutions to whom Unofficial Payments were made Fig S: Reform Proposals Aimed at Enhancing Access to the Formal Justice System Fig U: Reform Proposals Aimed at Enhancing the Quality of Justice Delivery in the Formal Justice System Fig V: Reform Proposals Aimed at Enhancing Access to the Informal Justice system Fig W: Reform proposals Aimed at Enhancing the Quality of the Delivery of Justice in the Informal Justice system
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ACKNOWLEDGMENTS The research team sincerely thanks the Minister of Justice and Attorney General, Dr. Benjamin Kunbour, and the Ag. Chief Director of the Ministry, Mr. Suleiman Ahmed, for their interest in the 2012 Baseline Survey and for offering invaluable support for the exercise. The field survey and in-depth interviews were largely successful due to letters of introduction to the team of researchers written by the Ministry of Justice.
We also wish to thank the Judicial Secretary, Mr. Justice Alex Poku-Acheampong, and his Deputy, Mr. John Bosco Nabarese, for facilitating the interviews with various critical respondents in the judicial service.
Similarly, we thank all the institutions and respondents listed in an appendix to this report for spending time in discussion with us over the matters contained in the interview guide.
Our greatest thanks goes to all the anonymous respondents who willingly took time off their schedules to respond to the long questionnaire we used to conduct the study. But for their participation and inputs this exercise would not have been successful.
We finally wish to thank the UNDP for providing both financial and technical support for the study, especially their Governance Specialist, Mrs. Jane Owiredu Yeboah, for coordinating the support effort.
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EXECUTIVE SUMMARY
Purpose of the Baseline Survey
The purpose of this baseline survey is to provide information on the current levels of knowledge, experience and attitudes of the public to the justice sector in Ghana. The survey also collates views of the public and of stakeholders on challenges in the sector and how these may be remediated. The hope is that the findings of the survey will form the basis for the creation of a single, coherent, cohesive and coordinated set of proposals for reforms in the justice sector of Ghana.
Background to the Baseline Survey
The Justice Sector in Ghana has been the subject of a plethora of reform efforts since independence in 1957. These reforms have varied in object and in scale, but their principal focus has been consistent: to remove the roadblocks and bottlenecks to real, impartial, accessible, cheap and timely justice; ensure that the justice sector facilitates the growth of the economy; and position justice sector institutions to support constitutional democratic governance and the rule of law in Ghana and in accordance with international best practice. Many and varied, these reform efforts have been largely uncoordinated. This has been a function of isolated reform initiatives by different institutions in the justice sector. It has also been a function of institutions seeking assistance from DPs for stand-alone reform efforts that are privileged by DPs own priorities and programming. The MoJ, with support from the UNDP, is therefore undertaking this baseline survey as the beginning of a sector-wide reform agenda, leading to the coordination and harmonization of reform initiatives in the justice sector.
Methodology
A three-part methodology was used to execute the baseline survey. These are: a Literature Audit, Field Surveys and Interviews, and Validation Meetings and Interactions.
The literature audit component of the methodology consisted of an analysis of pertinent literature on the justice sector in Ghana and in similar jurisdictions. The literature audit was conducted along four broad themes of: Democracy, Rule of Law Page 6 of 105
and the Justice Sector; Administration of Justice; Historical Reforms and Reform Proposals. The literature audit is an appendix to this report.
The survey instrument consisted of a mix of open and close-ended questions and was more quantitative in design. This enabled respondents to make a set of choices and provide reasons for the choices made. On the other hand, the interview guide was totally qualitative in design. This enabled the key stakeholders interview an unlimited breadth in answering the questions. Field researchers were recruited and trained to undertake the nationwide survey, whilst the Senior Researchers in the research team managed the in-depth interviews with key stakeholders. A sample size of one 1000 was deemed adequate for the survey. This ensured that there were sufficient sampling units available for meaningful analyses and inferences based on the national population figures, within a margin of error of plus or minus 3%, with a confidence interval of 95%. In the main, quantitative data analyses techniques were used in coding and interpreting the data gathered from the survey. On the other hand, qualitative techniques were used in analyzing the responses from the in-depth interviews with key stakeholders of the justice sector.
The methodology was proposed, discussed and improved at an inception validation meeting with stakeholders from the Justice Sector. Based on the input received from stakeholders at the meeting, and through email dialogue with some stakeholders, the methodology and the survey instruments were revised. Similarly, the findings, recommendations and action plan in this report will be discussed at a stakeholders' validation meeting before the report is finalized.
Survey Findings
Overall, nine hundred and forty six (946) respondents were fully interviewed for the survey. An additional Fifty Five (55) interviews were conducted using the in-depth interview guide.
From the data, 69.3% of the total number of respondents were within the age bracket of 18-35 years. Whereas 1.6% of the total number of respondents were 65 years and above. Some 68.4% of the total numbers of respondents were male whilst 31.6% were female.
Findings on Public Knowledge and Experiences of the Formal Justice system
Overall, 40% of the respondents unequivocally stated that they had some knowledge or experience of the formal justice system. However, 60% of the respondents said
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they had no concrete knowledge or experience of the formal justice system. Out of the 60% of the respondents who answered in the negative, 23% answered a definitive ‘No’, while the remaining 37% where unsure of their knowledge or experience of the formal justice system.
Respondents were asked a follow-up question on their understanding of the processes and proceedings in the formal justice system. Forty-one percent (41%) of the respondents answered ‘Yes’ while 59% answered ‘No’.
A very high number of the respondents (well over one-third) had interacted with the Police Service. Majority of the respondents stated that they have never interacted with Legal Aid officers, CHRAJ officers, ADR officials, and Prosecutors. Neither had they interacted with Prison officers and Court officials or judges.
Majority of the respondents rated the formal justice system as moderately fair, independent and professional in its processes and proceedings. However, the level of transparency and the speed of the processes and proceedings were rated very low by respondents. Also, majority of the respondents rated the formal justice system as highly corrupt.
Finally, 72% of the respondents who had knowledge or experience of the formal justice system, stated that they have had some challenges with the formal justice system. Highest on the list of challenges were the issues of delay and frequent adjournments of proceedings. This was followed closely by the issue of cost of initiating proceedings in the formal justice system, including the cost of procuring the services of lawyers.
Findings on Public Knowledge and Experiences of the Informal Justice System.
From the data, 38% of the respondents had knowledge or experience of the informal justice system. Also, 18% of overall respondents had no knowledge or experience of the informal justice system. Further, 44% of respondents were unsure of their knowledge or experience of the informal justice system.
It turned out that 84% of the respondents that had knowledge or experience of the informal justice system had ample understanding of their processes and proceedings. Overall, only 16% of the respondents who had knowledge or experience of the informal justice system did not understand the processes and proceedings.
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Majority of the respondents rated the informal system as very fast and moderately fair and professional in their processes and proceedings. They also rated it as high to moderately independent and transparent.
Preferred Avenue for Redress of Grievances
Overall, 28% of the respondents would prefer going to court to have their disputes settled. The reasons given for the choice are varied. Majority of the respondents were of the view that the courts are the final arbiters of disputes.
Also, 25% of respondents preferred going to the police station for the redress of their disputes because the job of the police is to settle disputes and they are effective at doing it. Further, 23% of respondents preferred to seek redress at the chiefs' palaces. The rest of the respondents preferred other avenues for settling their disputes.
Finally, majority of the respondents stated that their preference of an avenue for redress will depend largely on the nature of the dispute.
Findings on Public Attitudes to the Formal Justice System
A high percentage of 86% out of a total of 350 respondents stated that their decision to use or recommend the use of the formal justice system will be greatly influenced by the factor of cost. Similarly, out of a total 325 of respondents, about 228 stated that the delays associated with proceedings in the formal justice system is a major barrier to the use or recommended use of the system. Other factors such as procedural technicalities of the processes and proceedings and availability of the formal justice structures were also mentioned as barriers to using or recommending the use of the system.
Findings on Public Attitudes to the Informal Justice System
On the issue of which factors would affect respondents' use or recommendation for use of the informal justice delivery system, a total of 116 respondents out of 201 stated that the availability of informal justice will be a key factor in their use or recommended use of the system. Similarly, 96 respondents out of a total of 157 stated that cost will be a factor that would affect their use or recommended use of the informal justice system. Interestingly, a total of 127 out 193 respondents stated that procedural technicalities would prevent them from using or recommending the use of the informal justice system.
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Findings on Public Levels of Knowledge on Human Rights
Overall, 92% of respondents were aware of their human rights. These respondents understood human rights as “rights accruing to them by virtue of their being human”. Only 8% of respondents had no knowledge of human rights.
Also, 85% of the overall respondents have not experienced any violation of their rights in the last two years. However, 15% of respondents stated that they have experienced some human rights violations in the past two years.
Further, out of the 15% respondents who have experienced some form of human rights violations, only 26% of the respondents reported the incident to some authority. Seventy four (74%) of the respondents chose not to report the violation to any authority.
Findings on Gender and Access to Justice On the question of gender as a barrier to accessing the justice system, 86% of respondents were of the view that gender is not a barrier. However, 14% believed that a person’s gender may be a barrier to accessing justice.
Findings on Judicial Independence Majority of 66% of respondents answered that the judiciary is independent. However, a significant minority of 34% were of the view that the judiciary is not independent.
Justice Sector Corruption
On the question of justice sector corruption, 90% of respondents who had knowledge or experience of the formal justice sector perceived the judiciary as corrupt. Out of the 90%, about 70% of the respondents had made unofficial payments (bribes) to officials in the justice sector for services rendered.
On the percentage spread of corruption among justice sector institutions, 32% of respondents with knowledge or experience of the formal justice sector stated that they had made unofficial payments to Police Officers. Similarly, 27% of respondents stated that they had made unofficial payments to Judicial officers. Further, 23% of respondents had made unofficial payments to Prosecutors. Finally, 15% of respondents stated that they had made unofficial payment to Prison Service officials.
Reform Proposals from Respondents
Reform proposals from survey respondents were all aimed at improving access to and quality of justice delivery in the formal and informal justice systems.
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With respect to the formal justice sector, respondents proposed the following to improve access: o Citizens should be educated on the formal justice system; o Steps should be taken to reduce the cost associated with litigation; o Measures must be put in place to improve the efficiency of the processes and proceedings of the formal justice system; and o Mechanisms aimed at reducing corruption and improving the level of transparency in their processes and proceedings must be implemented.
Respondents proposed the following reforms to improve the quality of justice delivery in the formal sector: o Mechanisms should be put in place to ensure that ethical and moral standards are upheld by officials in the formal justice systems; o Punish corrupt officials; o Measures to improve the duration of trials by reducing delay must be implemented; and o Improvement in the conditions of service of the officials in the formal justice sector.
Furthermore, in relation to improving access to the informal justice system, respondents proposed the following: o Education of citizens on the existence of the informal justice system, as well as the customs and traditions attendant to them; o Institutionalizing the informal justice system as a recognized part of the justice delivery machinery; and o Building of the capacities of chiefs to become fairer and more impartial arbiters and thereby introduce greater professionalism in the dispensation of justice in the informal justice system.
On the issue of improving the quality of justice delivery in the informal sector, a broad majority of respondents proposed reform measures that would reduce partiality in favour of the elderly, for example, associated with the dispensation of justice in the informal system.
Findings on Justice Sector Institutions
The institutional representatives who were interviewed listed a number of constrains they face. These include gaps in their mandate; problems with leadership; many outstanding activities; limited institutional, human, and financial resources; and limited coordination and duplication of roles by institutions in the sector.
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They also made some general reform proposals for the sector. These aimed at improving access to and quality of justice delivery in the formal and informal sectors. They include educating citizens on the formal and informal justice systems; and removing or reducing cost, delay and corruption associated with the justice delivery system.
Key Recommendations
The Key recommendations include the following: o Reforms must take into account the formal and informal justice sector duality and legal pluralism. o Reforms must tackle justice sector institutions other than the courts. o Reforms must build the capacity of citizens on justice sector Issues through: . Education on justice sector institutions, their functions, ways of accessing effective justice from them, and their Interplay; and . Education on gendered justice. o Reforms must generally improve the functioning of the justice sector by: . Ensuring transparency of justice institutions and their processes and proceedings (this implicates a level of knowledge of the institutions); . Reducing the cost of accessing justice (including eliminating corruption); . Improving the professionalism of the administrators of justice; and . Speeding up the delivery of justice. o Reform must include greater and more robust institutionalization of ADR in the administration of justice. o Reforms must address the issue of resource allocation to justice sector institutions relative to their mandates. o Reform efforts must include conscious, systematic, and productive communication, collaboration and coordination between all justice sector institutions. o All the reform efforts must be contained in an Action Plan that details out: . The specific challenges that are sought to be addressed; . The institutions that are implicated in the reform effort; . The way and manner the challenges will be addressed - reform activities; . Sequencing of the reforms; . Points of institutional interface and collaboration; . Indicators for measuring progress or regress in the reform effort; and . A monitoring and evaluation framework. o Finally, the reform effort must ensure the buy-in of all critical policy actors, including unofficial policy nerve centres, in a deliberate effort to ensure that "dis-coordination" does not recur.
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1.0 INTRODUCTION
1.1 Purpose of the Baseline Survey
The purpose of this baseline survey is to provide information on the current levels of knowledge, experience and attitudes of the public to the justice sector in Ghana. The survey also collated the views of respondents on challenges in the sector and how these may be remediated. As a complementary measure, in-depth interviews were conducted with key persons working in justice sector institutions on the adequacy of their various mandates, how well they are executing those mandates, where the shortfalls are, and where and how change needs to happen in those institutions, the better to serve the public. The hope is that the findings of the survey will form the basis for the creation of a single, coherent, cohesive, and coordinated set of proposals for reform in the justice sector of Ghana.
In more direct and specific terms, the baseline survey of the justice sector aims to:
i. Assess public knowledge and experience of the sector; ii. Assess public attitudes to the sector; iii. Assess public views on the challenges in the delivery of justice; iv. Assess public views on how the challenges in the delivery of justice may be addressed; v. Identify gaps in institutional mandates and institutional communication, coordination and cooperation in the sector; vi. Identify capacity deficits (institutional, human, financial) in the sector; vii. Make recommendations on how the challenges of the sector may be remediated; viii. Provide a basis for enhanced coherence in policy discussions, decision making, strategic planning and resource allocation in the sector; ix. Recommend indicators for measuring access to justice, particularly by the vulnerable, and including girls and women; and x. Recommend benchmarks for the monitoring and review of projects in the Justice Sector.
1.2 Background to the Baseline Survey
The Justice Sector in Ghana has been the subject of a plethora of reform efforts since independence in 1957. However, the most sustained wave of reforms have happened during the twenty-year operation of the 1992 Constitution. These reforms have varied in object and in scale, but their principal focus has been consistent; to remove the roadblocks and bottlenecks to real, impartial, accessible, cheap and timely justice; ensure that the justice
Page 13 of 105 sector is not a barrier to doing business in Ghana and generally facilitates the growth of the economy; and position justice sector institutions to support constitutional democratic governance and the rule of law in Ghana and in accordance with international best practice.
The key reform initiatives over the two decades have been the following:
i. Improvement of the physical infrastructure of the formal justice institutions, especially the courts of law; ii. Automation of courts; iii. Establishment of specialized courts such as the Commercial Court, the Land Court, the Industrial/Labour Court, the Human Rights Court and the Juvenile Court; iv. Review of the rules of court; v. Mainstreaming of Alternative Dispute Resolution (ADR) into formal adjudication processes; vi. A Justice for all Programme (involving holding court in detention centers to dispose of criminal cases quicker and cheaper); vii. A Private Process Servers Scheme to make the service of court processes on parties to suits in court quicker and more efficient and effective; viii. Establishment of a banking system for the collection of court fees and revenue; ix. Establishment of a Public Complaints and Courts Inspectorate Unit; and x. Establishment of a Judicial Reforms, Project Development and Implementation Unit.
As is clear from their tenor, the reforms have targeted specific issues in the formal justice sector, with the courts as a primary focus. The shortfalls are clear. Other critical justice sector institutions have almost been completely sidelined in the reform agenda. These include institutions in the informal sector and institutions in the formal sector whose work feeds into and could directly facilitate court reforms. These latter institutions include the Law Reform Commission (LRC), the Council for Law Reporting (CLR) and the Legal Aid Board (LAB). Thus, the very intense interrelationships and the interlocking character of the challenges in the justice sector, and their implications for ameliorative interventions, have not been central to the content of the reform effort.
Flowing from the above, institutional development initiatives and interventions have tended to be ad hoc and not part of a coordinated roll-out from a strategically determined framework of programmes and activities. Thus, reform programmes and interventions remain uncoordinated and incoherent and the vision of governments, Development Partners (DPs) and attendant policy initiatives for the justice sector have been quite inconsistent, if not erratic.
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The situation is further jaundiced by the fact that in sourcing support from DPs to undertake reforms, policy makers are faced with the challenge of formulating their reform proposals to either fit into those of DPs' support programmes or seek support for stand-alone assistance for reform projects that are not intelligently linked in anyway. Overall, there is general lack of synergy in the development and implementation of reform efforts in the justice sector. Such a tunneled approach to reforms in the sector is constricting the growth, development, effectiveness, and efficiency of the justice administration machinery.
It is not surprising, therefore, that the justice sector continues to grapple with structural challenges. These challenges are evidenced in limited access to justice; lowering quality of justice; increasing cost of justice; staggering delays in the dispensation of justice; unbridled non-implementation of approved activities; and a serial duplication of efforts leading to a grave under-utilization of man-hours and other resources. The reform approach that has been adopted over the years can be said to be grossly suboptimal.
The Ministry of Justice and Attorney General’s Department (MoJ), with support from the United Nations Development Programme (UNDP), is therefore undertaking this baseline survey as part of a broader process of a sector wide reform agenda, leading to the coordination and harmonization of reform initiatives in the justice sector. On the 13th of July 2012, the MoJ launched this 2012 Baseline Survey for the Justice Sector in Ghana at a stakeholders meeting.
1.3 Organization of this Report
This report is organized into six (6) parts. Each part is further broken down into a number of sections and sometimes sub-sections. Part one, which is the introductory part of this report contains the purpose of the baseline survey, the background to the survey and this section on how the report is organized.
Part two of the report explains the methodology employed in designing and executing the survey and in analyzing the data gathered.
Part three of the report presents the survey findings on public knowledge and experience and public attitudes to the justice sector. The analyses and interpretation of the findings are also captured in this section. The findings, which are grouped into findings on the formal justice sector and findings on the informal justice sector, include public views on the challenges of the sector and how these may be addressed.
In part four of the report the focus is on findings and reform proposals relating to specific justice sector institutions, gleaned mainly from the in-depth interviews with representatives of the institutions. This part also highlights the institutional inter-connectedness in the Page 15 of 105 sector and the levels of inter-agency communication, collaboration and cooperation in the justice sector.
Part five of the report contains ‘Recommendations" and an "Action Plan". This part is premised on a deeper analyses of the findings, illustrating the context in which they arise and noting their implications for reform proposals. The learning from the literature audit and the qualitative data is particularly applied to test the integrity of the findings and their assumptions in order to ensure that reform proposals, indicators, and benchmarks for measuring progress on reforms that flow from those findings are more resolute. Thus, the proposals for reformation and the resulting Action Plan take their ethos from the findings, but go beyond those findings to draw from a wider pool of knowledge resources on the sector.
The final part of the report, part six, contains a bibliography and a set of appendices. The appendices contain the institutional matrix, the literature audit, the Action Plan, copies of the survey instrument, the in-depth interview guide, the list of justice sector personnel interviewed, the names of the research team, amongst others.
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2.0 METHODOLOGY
2.1 A Three-Part Methodology
A three-part methodology was used to execute the baseline survey. These are: a Literature Audit, Field Surveys, and Validation Meetings and Interactions.
2.1.1 Validation Meetings and Interactions The methodology was proposed, discussed and improved at an inception validation meeting with stakeholders from the Justice Sector. Based on the input received from stakeholders at the meeting, and through email dialogue with some stakeholders, the methodology and the survey instruments were revised. Similarly, the findings, recommendations and action points in this report will be discussed at a stakeholder validation meeting before the report is finalized. The reports of the two validation meetings are appendixes to this report.
2.1.2 Literature Audit The literature audit component of the methodology consists of an analysis of pertinent literature on the justice sector in Ghana and in similar jurisdictions. The literature audit was conducted along four broad themes of: Democracy, Rule of Law and the Justice Sector; Administration of Justice; Historical Reforms and Reform Proposals. The literature audit is similarly an appendix to this report.
2.1.3 Survey Instruments The development of the survey instrument and interview guide was a critical part of the Baseline Survey. From the literature audit, we isolated the key issues in the justice sector. These issues were then used to develop the instruments. The survey instrument consisted of a mix of open and close ended questions and was more quantitative in design. This design of the survey instrument enabled respondents to both make a set of choices and provide reasons for the choices made. On the other hand, the interview guide was totally qualitative in design. This enabled the key stakeholders interviewed an unlimited breadth in answering the questions. The instruments are appendices to this report.
2.2 Field Work
The field work component of the survey was very carefully crafted and deployed in order to assure the integrity of the findings.
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2.2.1 Training of Field Researchers A team of six (6) field researchers were recruited and trained to undertake the nationwide survey and in-depth interviews. From the 20th-24th August 2012, the team received training on the purpose for the survey, interviewing skills, strategies in administering survey instruments on the field and specific training on understanding the survey instrument.
2.2.2 Mapping out the Country The country was roughly equally zoned into two – the northern and southern zones. This was to ensure the efficient maximization of the time, human and financial resources available. The field researchers were then divided into two teams of researchers. Each team was headed by a lawyer and the other team members were law students. The cultural and linguistic diversity of the country, and the related capacities of the research team, were taken into account in team composition.
2.2.3 Sampling Design
a. Stratification The stratification of the frame for the survey was based on two factors: i. Administrative regions; and ii. Locality of residence.
The broad ecological zones, (coastal, forest and savannah) are implicit in the stratification. The first level of stratification corresponded to the ten administrative regions. Each administrative region was further stratified into urban, peri-urban and rural localities of residence. The sampling was then conducted independently within each stratum. The stratification ensured that the sample was well spread out among the relevant sub-groups (e.g.; region, urban/rural/peri urban, ecological zone etc). Since sampling was carried out separately within each stratum, it ensured that there were sufficient sampling units in each sub-group to allow meaningful analyses. It also reduced the sampling error, since the sampling error depends on the variance within the strata.
b. Sample Size and Allocation The number and allocation of the sample for the survey depended not only on the type of estimates to be obtained and the corresponding precision required but also on budgetary and operational constraints.
In determining the sample size for the survey, there was the need to manage the sampling and non-sampling errors. An increase in the sample size had the desired effect of reducing the sampling errors. However, the non-sampling errors tend to rise with increases in the sample size. Thus, for purposes of quality control and assurance of the field operations, Page 18 of 105 coupled with the time limitations for the survey, there was the need to opt for a sample size that would be operationally manageable.
After careful consideration of options and also based on hindsight, time and resources available, a sample size of one thousand (1000) was deemed adequate for the survey. This ensured that there were sufficient sampling units available for meaningful analyses and inferences based on the national population figures, within a margin of error of plus or minus three (3) percent, with a confidence interval of 95 percent.
Proportional allocation based on each region’s share of the national population was used in the determination of the sampling rates in each stratum. However, the three northern regions were slightly over sampled.
Further, lots were drawn to pre-determine the urban, peri-urban and rural stratification of the settings for the survey. The Metropolitan, Municipal and District Assembly (MMDA) demarcations were used as a basis for drawing the lots. Metropolises in every region formed the base for the determining the urban setting. Similarly, Municipalities and Districts formed the base for the peri-urban and rural settings respectively. Where there were no Metropolises in a region, the Municipalities formed the base for the urban and peri-urban settings.
The field researchers were given the liberty to determine the particular towns to visit in the urban, peri-urban or rural localities. A list containing the research sites is appendixed to this report.
2.2.4 On the Field The teams were deployed in late August, September and early October. The field survey and the in-depth semi-structured interviews were conducted simultaneously. The team leaders and the other senior researcher, also a lawyer, were responsible for the in-depth interviews with justice sector personnel. The law students concentrated on the field survey. The in- depth interviews were conducted with personnel in Traditional Authority; the National House of Chiefs (NHC); the Ascertainment of Customary Law Project (ACL) of the NHC; the judiciary; the judicial service; the Police; the Prisons; the Attorney-General's Department; the Economic and Organized Crime Office (EOCO); the Commission on Human Rights and Administrative Justice (CHRAJ); the Legal Aid Board (LAB); the Law Reform Commission (LRC); the Council for Law Reporting (CLR); the Land Administration Project (LAP) of the Ministry of Lands and Natural Resources; the National Commission on Civic Education (NCCE); Civil Society Organizations (CSOs) working on the justice sector; and many others. The complete list of institutions interviewed is an appendix to this report.
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2.2.5 Field Challenges and Remediation
a. Survey areas Since the Metropolitan, Municipal and District Assemblies were used in drawing lots for research sites, the teams encountered the challenge of deciding on which particular town to visit. As a solution, the teams were directed to randomly choose the particular towns to visit. This was meant to ensure that the survey sites were not restricted to the Metropolitan, Municipal and District capitals.
b. Questionnaires The number of questions in the survey instrument, (Sixty Seven (67) questions), was also a major challenge. This accounted for the slight shortfall in the total number of questionnaires administered from the target of one thousand (1000). The strict timelines and limited resources of the project made it impracticable to extend the days for the field work in order to replace the questionnaires that were incomplete and therefore unusable. The teams were encouraged to strive to administer as close to 1000 questionnaires as possible and managed to fully administer 946.
c. Logistics Inter- and Intra-regional transportation were major challenges for the teams. The teams had to use public transportation as the main means of commuting and lost a lot of time in the process. The northern zone team in particular had to use innovative means of commuting between their main field research station and remote areas. In some cases they rented motorcycles for the purpose. In other cases they had to temporarily relocate to the remote area until they had completed the target number of questionnaires for the area.
2.3 Data Coding and Analysis
In the main, quantitative data analyses techniques were used in coding and interpreting the data gathered from the survey. On the other hand, qualitative techniques were used in analyzing the responses from the in-depth interviews.
The Predictive Analytical Software (PASW) was the platform used in capturing the quantitative data. After the complete data was captured, frequencies were run for the generation of descriptive statistics. For each question or variable in the survey instrument, the overall percentages, averages, modes and ranges (where applicable) are presented in tables and charts. An appendix to this report shows the complete list of categorized responses to the open-ended questions in the survey instrument.
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The qualitative responses, gathered from the in-depth interviews, were analyzed using the Nvivo 9 data software platform. Each response was grouped into a category with similar responses, counted, and the categories were prioritized based upon frequency of mention. The most often mentioned responses to open-ended questions are presented in a table format, similar to the close-ended type questions.
In general, open-ended questions elicited the strongest and most important responses of the survey. In comparison to the close-ended questions, the open-ended questions had a relatively wide range of detailed responses and gave the respondents an opportunity to express their opinions on important issues pertaining to the justice sector.
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3.0 SURVEY FINDINGS
3.1 Demographic Characteristics
Overall, nine hundred and forty six (946) respondents were fully interview for the survey. An additional Fifty Five (55) interviews were conducted using the in-depth interview guide.
The presentation of the demographic data in this report serves two key purposes. First, it describes the sample, indicating the main characteristics of the sample measured during the survey. Second, it highlights the common characteristics of the sample that will be employed in analyzing findings in the subsequent sections of this report.
The key demographics measured across the survey sample include, Age, Gender, Educational Background and Occupation of the respondents. Table “A” presents the age and gender profiles of the respondents. From the data, 69.3% of the total number of respondents were within the age bracket of 18-35 years. Whereas 1.6% of the total number of respondents were 65 years and above. Similarly, 68.4% of the total numbers of respondents were male whilst 31.6% of the total number of respondents were female.
Table A: Age and Gender Profile of Respondents Background Characteristics Number Percentage Age group (years) 18-25 324 34.2 26-35 332 35.1 36-45 124 13.1 46-55 63 6.7 56-65 37 3.9 Above 65 15 1.6
Gender Male 647 68.4 Female 299 31.6
Fig “A” below presents the educational background of the respondents. Overall, 48% of the respondents have had tertiary education. On the other hand, 23.46% of the respondents have had some form of basic education, with 18.6% of respondents having secondary education. About 8% of the respondents had no formal educational backgrounds.
Fig “B” also shows the breakdown of the occupation of the respondents. About 28% were civil servants, while 33% were self employed. The percentage of respondents who were students stood at 35%. Respondents who were farmers made up 4% of the overall sample size.
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Fig A: Educational Background of Respondents
Fig B: Occupation of Respondents
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3.2 Findings on Public Knowledge on, Experiences with, and Attitudes to the Justice Sector
One of the cardinal objectives of this baseline survey is to provide data on the current levels of knowledge and experience of Ghanaians on the justice sector. Some of the questions in the survey instrument also requested the respondents rate the services rendered by some formal and informal justice sector institutions.
By assessing respondents' preferred avenues for resolving disputes and the factors that inform their decision to use or not to use particular justice sector institutions, we drew inferences on the attitude of the public to the justice sector institutions.
Respondents were presented with five factors that are likely to prevent them from using or recommending the use of justice sector institutions. These were: availability; location (distance); cost; delay; and procedural technicalities.
3.3 Findings on Public Knowledge and Experiences of the Formal Justice system
Overall, 40% of the respondents unequivocally stated that they had some knowledge or experience of the formal justice system. However, 60% of the respondent had no knowledge or experience of the formal justice system or were unsure if they did. Out of the 60% of the respondents who answered in the negative, 23% answered a definitive ‘No’, while the remaining 37% where unsure of their knowledge or experience of the formal justice system.
Fig “C” below illustrates the regional breakdown of the responses on knowledge and experience of the formal justice system. Respondents from the Central and Western regions recorded the highest percentage values. This is followed by Eastern, Volta, Northern and Upper West and Brong Ahafo regions respectively. In the minority were Greater Accra, Upper East and Ashanti regions respectively. The low responses on knowledge and experience in the last listed four regions is due to the fact that respondents were not sure where to categorise their knowledge and experience, whether as relating to the formal or informal sectors, and therefore turned in a "Don't know" answer.
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Fig C: Regional Breakdown of Public Knowledge and Experience of the Formal Justice System
Based on the affirmative answers received for the question on knowledge or experience of the formal justice system, respondents were asked a follow-up question on their understanding of the processes and proceedings in the formal justice system. Forty-one percent (41%) of the respondents answered ‘Yes’ while 59% answered ‘No’.
A large number of the respondents who said that they did not understand the processes and proceedings in the formal justice sector said that “It is fumbled up (sic) with their technicalities and their Latin terms” and that the processes and proceedings are generally “cumbersome”.
The majority of respondents who said they understood the processes and proceedings of the formal justice system noted that their capacity stemmed from working in the justice sector or having relatives and friends who work in the sector. A lesser number gained their knowledge and experience by attending court as parties to a suit or just to observe proceedings.
Fig “D” below illustrates the overall percentage breakdown of the level of public understanding of the processes and proceedings of the formal justice system.
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Fig D: Public Understanding of the Processes and Proceedings in the Formal Justice System
Respondents who said they had knowledge and experience of the sector were also asked to identify specific formal justice institutions they had interacted with. A very high number of the respondents (well over one-third) had interacted with the Police Service. Majority of the respondents stated that they have never interacted with Legal Aid officers, CHRAJ officers, ADR officials, Prosecutors, Prison officers and Court officials or judges. This is illustrated in Fig “E” below.
Specifically, with the respect to the Legal Aid Scheme, 79% of all respondents had practically no knowledge of the existence and operation of the scheme. Also, 66% of all respondents were unaware of the various ADR processes in the formal justice system.
Fig E: Levels of Interaction with Formal Justice Institutions
Furthermore, respondents who said they had knowledge or experience of the formal justice system were asked to rate institutions in the formal justice sector along the indices of fairness; speed; independence; professionalism; transparency and corruption.
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From Fig “F” below, majority of the respondents rated the justice system as moderately fair, independent and professional in its processes and proceedings. However, the level of transparency and the speed of the processes and proceedings were rated very low by respondents. On the issue of corruption, majority of the respondents rated the formal justice system as highly corrupt.
Fig F: Rating of the Formal Justice System
200 180 160 140 120 100
80 Valid response Valid 60 40 20 0 Fair Fast Independent Professional Transparent Corrupt Rate of formal Justice system
Very High High Moderate Low Very low
Finally, 72% of the respondents who had knowledge or experience of the formal justice system, stated that they have had some challenges with the formal justice system. Highest on the list of challenges were the issues of delay and frequent adjournments of proceedings. This was followed closely by the issue of cost of initiating proceedings in the formal justice system, including the cost of procuring the services of lawyers.
Specifically, on the issue of engaging the services of lawyers, only 7% of all respondents had ever procured the services of a lawyer. The cost factor was the major inhibiting factor here. Fig “G” below shows the regional breakdown of responses on the issue of engagement of lawyers. Corruption in the formal justice system was also listed as a major barrier to accessing the formal justice system.
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Fig G: Regional Breakdown on Public Engagement of the Services of Lawyers
3.3.0 Findings on Public Knowledge and Experiences of the Informal Justice System. The same parameters used in measuring the knowledge or experiences of the formal justice system were applied to the informal justice system. Overall, knowledge or experiences of Ghanaians on the operations of the informal justice system are not much different from that of the formal justice system.
From the data, 38% of the respondents had knowledge or experience of the informal justice system. Also, 18% of overall respondents had no knowledge or experience of the informal justice system. Further, 44% of respondents were unsure of their knowledge or experience of the informal justice system. Again, this is a function of challenges for respondents on what to classify as formal or informal justice. Fig “H” below illustrates the regional breakdown on the levels of knowledge or experience of the informal justice system.
Fig H: Regional Breakdown of Public Knowledge or Experience of the Informal Justice System
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In terms of the regional breakdown of knowledge or experience of the informal justice system, Central, Eastern, Western, Volta and Northern regions recorded the highest percentage values of knowledge or experience of informal justice. This is followed by the Upper West, Upper East and Brong Ahafo respectively. In the minority were Greater Accra and Ashanti regions.
Further quizzed on their understanding of the processes and proceedings of the informal justice system, it turned out that 84% of the respondents that had knowledge or experience of the informal justice system had ample understanding of their processes and proceedings. Overall, only 16% of the respondents who had knowledge or experience of the informal justice system did not understand the processes and proceedings.
On the question of how respondents rate the services rendered by institutions in the informal justice system, majority rated the informal system as very fast and moderately fair and professional in their processes and proceedings. They also rated it as high to moderately independent and transparent. The informal justice system is rated very low in terms of cost of using the system and corruption. Fig “I” below illustrates the ratings of the respondents.
Fig I: Rating of the Informal Justice System
140
120
100
80
60
Valid Response Valid 40
20
0 Fair Fast Independent Professional Transparent Corrupt Rating of the Informal Justice System
Page 29 of 105 Very High High Moderate Low Verl Low Finally, respondents provided some challenges they have faced in their interactions with the informal justice system. Majority of the respondents stated that the major challenge of the informal justice system is bias of the system towards the elderly. In the words of some respondents, “they settle in favor of the adult when the case is between the young and the old” and “cronyism is killing the [informal] system”.
3.3.1 Preferred Avenue for Redress of Grievances On the question of preferred avenues for redress, responses were split almost evenly between the courts, the police, the chiefs' palaces and other avenues. Fig “J” below shows that overall, 28% of the respondents would prefer going to court to have their disputes settled. The reasons given for the choice are varied. Majority of the respondents were of the view that the courts are the final arbiters of disputes.
Also, 25% of respondents preferred going to the police station for the redress of their disputes because the job of the police is to settle disputes and they are effective at doing it. Further, 23% of respondents preferred to seek redress at the chiefs' palaces. The reasons they give for the choice include relatively lower cost and proximity. Some respondents representing 24% also preferred to seek amicable settlements of their disputes without the intervention of the courts, the police, or chiefs.
Fig J: First Choice Dispute Redress Avenues for the Public
Finally, majority of the respondents stated that their preference of an avenue for redress will depend largely on the nature of the dispute.
3.3.2 Findings on Public Attitudes to the Formal Justice System A high percentage of 86% out of a total of 350 respondents stated that their decision to use or recommend the use of the formal justice system will be greatly influenced by the factor of cost. Similarly, out of a total 325 of respondents, about 228 stated that the delays associated Page 30 of 105 with proceedings in the formal justice system are a major barrier to the use or recommended use of the system. Other factors such as procedural technicalities of the processes and proceedings and availability of the formal justice structures were also mentioned as barriers.
Fig K: Factors Influencing Respondents' use or recommendation of the Formal Justice system
3.3.3 Findings on Public Attitudes to the Informal Justice System On the issue of which factors would affect respondents' use or recommendation for use of the informal justice delivery system, a total of 116 respondents out of 201 stated that availability of informal justice institutions will be a key factor in their use or recommended use of that system. Similarly, 96 respondents out of a total of 157 stated that cost will be a factor. Interestingly, a total of 127 out 193 respondents stated that procedural technicalities would prevent them from using or recommending the use of the informal justice system. Fig “L” below, illustrates the distribution of responses on factors that would affect respondents' use or recommendation of the informal justice delivery system.
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Fig L: Factors preventing “the use” OR “recommended use” the Informal Justice system
3.4 Findings on Public Levels of Knowledge on Human Rights
Overall, 92% of respondents were aware of their human rights. These respondents understood human rights as “rights accruing to them by virtue of their being human”. Only 8% of respondents had no knowledge of human rights.
Fig M: Public Levels of Knowledge on Human Rights
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Also, 85% of overall respondents have not experienced any violation of their rights in the last two years. However, 15% of respondents stated that they have experienced some human rights violations in the past two years. Further, out of the 15% respondents who have experienced some form of human rights violations, only 26% reported the incident to some authority. Seventy four (74%) of the respondents chose not to report the violation to any authority. Fig “N” below shows a breakdown of which authority respondents reported human rights violations to.
Fig N: To Which Authority Did You Report the Human Rights Violation?
The 74% of respondents who did not report their experiences of human rights violations to any authority gave reasons for their inaction. Majority of the respondents singled out the fear of victimization as the major hindrance to their reporting violations of human rights. Other main reasons were the cost of enforcing their human rights, the absence of confidence in the institutions for the redress of human rights violations or the unavailability of such institutions. Fig “O” below illustrates more of the reasons given for not reporting human rights violations.
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Fig O: Reasons for not reporting Human Rights Violations
3.5 Findings on Gender and Access to Justice
On the question of gender as a barrier to accessing the justice system, 86% of respondents were of the view that gender is not a barrier. However, 14% believed that a person’s gender may be a barrier to accessing justice.
Similarly, as illustrated by Fig “P” below, the generality of respondents, both male and female, were of the view that the processes and proceedings of the justice system are gender biased, but in favour of women. They opined that the justice sector favours women over men in its processes and proceedings, particularly when it comes to the area of family law.
Fig P: The Justice Sector and Gender Biased
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3.6 Findings on Judicial Independence
Majority of 66% of respondents answered that the judiciary is independent. However, a significant minority of 34% were of the view that the judiciary is not independent. Fig “Q” below shows the breakdown of the responses on judicial independence.
Fig Q: Public perception of the Independence of the Justice Sector
3.7 Justice Sector Corruption
On the question of justice sector corruption, 90% of respondents who had knowledge or experience of the formal justice sector perceived the judiciary as corrupt. Out of the 90%, about 70% of the respondents had made unofficial payments (bribes) to officials in the justice sector for services rendered.
On the percentage spread of corruption among justice sector institutions, 32% of respondents with knowledge or experience of the formal justice sector stated that they had made unofficial payments to Police Officers. Similarly, 27% of respondents stated that they had made unofficial payments to Judicial officers. Further, 23% of respondents had made unofficial payments to Prosecutors. Finally, 15% of respondents stated that they had made unofficial payment to Prison Service officials. This is illustrated in Fig “R” below.
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Fig R: Justice Sector Institutions to whom Unofficial Payments were made
3.8 Reform Proposals from Respondents
Respondents were asked to propose reforms for improving the functioning of both the formal and informal justice systems.
3.8.1 Reform Proposals for Improving Access to the Formal Justice System Fig “S” below shows the main reform proposals for improving access to the formal justice system. Majority of the respondents were of the view that citizens should be educated on the formal justice system. Others proposed that the cost associated with litigation should be reduced. Further, some of the respondents proposed that reforms geared towards improving the efficiency of the processes and proceedings of the formal justice system should be undertaken. Other reform responses called for steps to be taken to reduce corruption in the formal justice system and also improve the level of transparency in their processes and proceedings. The reform proposals with minority support related to improvement of infrastructure and improvement in the coverage of the legal aid scheme to the districts. This latter point may be a function of the limited knowledge of what the Scheme is and what it does.
A Relatively high number of respondents, almost one-third of the sample size, said that they had no comments by way of reform proposals. This is definitely a function of the high number of respondents who are not familiar with the workings of the formal justice sector institutions in the first place. Indeed, literally all the respondents called for education on the formal justice sector institutions and their processes.
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Fig S: Reform Proposals Aimed at Enhancing Access to the Formal Justice System
3.8.2 Reform Proposals for Improving Quality of the Formal Justice System With respect to improving the quality of justice delivery in the formal justice system, majority of respondents proposed that mechanisms be put in place to ensure that ethical and moral standards are upheld by officials, and for corrupt officials to be punished. Other respondents were of the view that if steps are taken to improve the duration of trials and reduce delay, the quality of justice delivery in the formal justice system will improve. Other reform proposals advocated for an improvement in the conditions of service of the officials in the formal justice system so that they can deliver quality output and eschew corruption. Fig “U” below illustrates the proposals on how to improve the quality of justice delivery in the formal justice system.
Fig U: Reform Proposals Aimed at Enhancing the Quality of Justice Delivery in the Formal Justice System
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3.8.3 Reform Proposals for Improving Access to the Informal Justice System With regards to improving access to the informal justice system, majority of respondents proposed the education of citizens on the existence of the informal justice systems, as well as the customs and traditions attendant to them, as a measure to increase access to the system. Others proposed that reforms should be targeted as institutionalizing the informal justice system and make it part of the formal justice system. They argued that such recognition will help improve patronage. Other proposals related to building of the capacities of chiefs to become fairer and more impartial arbiters and thereby introduce greater professionalism in the dispensation of justice in the informal justice system.
Fig “V” below illustrates the various reform proposals aimed at improving access to the informal justice system.
Fig V: Reform Proposals Aimed at Enhancing Access to the Informal Justice system
3.8.4 Reform Proposals for Improving the Quality of Justice Delivery in the Informal Justice System With regards to improving the quality of the delivery of justice in the informal justice system, a broad majority of respondents proposed as a key reform measure, reducing unfairness and inequality associated with the discharge of justice in the informal system. Fig “W” below illustrates the various reform proposals to enhance the quality of justice delivered by the informal justice system.
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Fig W: Reform proposals Aimed at Enhancing the Quality of the Delivery of Justice in the Informal Justice system
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4.0 FINDINGS ON JUSTICE SECTOR INSTITUTIONS
In this section, we present a trend analysis of the challenges of the justice sector institutions as narrated by them during the in-depth interviews. This will complement the survey findings above and set the stage for the generation of recommendations and a Plan of Action for reforming the sector.
4.1 Trend Analysis of Institutional Challenges of Justice Sector Institutions
1. Limited institutional communication, coordination, and cooperation in the formulation of policies, strategic plans, programmes, projects and initiatives (including reform initiatives). 2. Overlapping mandates of some of the justice sector institutions. 3. Limited or ad hoc institutional linkages in the implementation of policies, programmes, projects and initiatives. 4. Institutional challenges in the form of inadequate infrastructure, human resources, and finances relative to mandate.
4.2 Matrix of Institutional Challenges of Justice Sector Institutions
Attached as an appendix is a matrix detailing the essence of the interviews conducted with the various justice sector institutions. It covers the following heads: mandate; legislative framework; institutional framework; inter-agency collaboration; resources (institutional, human and financial); reform proposals; and any additional comments.
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5.0 RECOMMENDATIONS AND PLAN OF ACTION
5.1 RECOMMENDATIONS FOR JUSTICE SECTOR REFORM
5.1.1 Justice Sector Reform Must Deal with the Formal and Informal Justice Sector Duality and Legal Pluralism The reform of the justice sector must move beyond formal bias and incorporate reforms in the informal justice sector. The findings show that real penetration of the formal systems for the administration of justice still stands at only 40% and the majority of the population is dependent on informal systems for the administration of justice. Of the 40% who have knowledge and experience of the formal justice sector, majority additionally utilize informal justice systems, further underlining the duality of the sector and the pluralism of Ghana's legal and justice system.
As a prerequisite for reform, stakeholders must clearly identify the exact points of interface and manner of interaction between the two systems; leverage the aspects that work well and should be encouraged and improved; and identify the grey areas and challenges. This way, specific reformations would target the exact nerve centers that need working on.
5.1.2 Justice Sector Reform Must Deal with Justice Sector Institutions Other than the Courts A justice sector reform initiative that focuses only on the courts will fail. The evidence is that only a quarter of respondents would use the courts to settle disputes. The Traditional Authority, the Police, and various mechanisms for amicable settlement were chosen by the rest of the respondents in almost equal proportions. This is also consistent with the 22% of respondents who reported a human rights violation to the police (74% did nothing about it and 4% reported to a parent).
Thus, beyond the formal and informal divide, there is "a court and other mechanisms" divide that reformers must take into account. Reform measures that do not touch and concern institutions other than the courts will fail even before they have started.
5.1.3 Justice Sector Reform Must Include Building Citizenship on Justice Sector Issues Ghana urgently needs to build citizenship on justice sector issues. Over 90% of respondents are fully sensitized about their human rights, and are able to define what human rights are. The successful human rights campaigns now need to go a number of niveaux up, and aim at building productive and progressive citizenship around justice sector issues.
a. Education on Justice Sector Institutions and their Interplay Human Rights and Civic Education must now extend to cover in great detail, knowledge of the existence, character, mandate, functioning, interrelationships, and challenges of justice Page 41 of 105 sector institutions; the capacity of the citizens to use them to the ends of justice; and the role of the citizen in ensuring that these institutions serve the public interest.
Additionally, Citizens must be trained to know exactly how to use existing avenues for the redress of grievances and urged to utilize them. Three quarters of respondents who were victims of human rights abuses did nothing about it. It is actually more appropriate to say that they prayed about it; "left it to God"; or agonized about whether the existing institutions could give them real, effective, and cheap justice. In terms of other disputes, 25% of respondents prefer to settle their disputes without the intervention of a third party. The rest of the population is almost evenly distributed between the courts, the police, and the traditional authority in search of justice.
The educational campaign should be led by the Legal Aid Board, the CHRAJ and the NCCE, in collaboration with the other justice sector institutions and the media.
It appears that there is something about the informal justice system that makes its processes and proceedings understandable to 84% of respondents who have knowledge and experience of them. This contrasts with 60% who are able to understand the processes and proceedings of the formal justice system. The educational design needs to include this learning from the informal sector.
b. Education on Gendered Justice Public education must also focus on gendered justice: its nature and character; its causes, including structural causes; and reasons why gendered justice may not be visible. This is because 86% of respondents were of the view that gender is not a barrier to access to justice for women. They actually believe that the justice system is gender biased, but in favour of women. This, they say, happens especially in the area of family law. With two-thirds of the responds being men, and with the activities of DOVVSU, the recent Supreme Court decisions providing more access to marital property by women, and the push for the passage of the Spousal Property Rights and Intestate Succession (Amendment) Bills, it is not surprising that we got these responses.
It is important that those leading the justice sector education campaign design the campaign to touch on the deeper aspects of gendered justice relating to historical injustice, structural injustices, and affirmative action.
5.1.4 Generally Improving the Functioning of the Justice Sector The survey reveals that the key issues that need to be worked on, innovatively and creatively, in order to move the justice sector forward are: a. Transparency of institutions and their processes and proceedings (this implicates a level of knowledge of the institutions); Page 42 of 105
b. Reducing the cost of accessing justice (including eliminating corruption); c. Improving the professionalism of the administrators of justice; and d. Speeding up the delivery of justice.
Here again, the informal justice system is rated as fast, low cost, less corrupt, more independent, and more transparent than the formal justice sector. The formal justice system must learn these from the informal justice sector.
5.1.5 The Focus of Reform Must Include ADR in Particular With over 70% of the population invested in ADR mechanisms (including using ADR mechanisms deployed by Traditional Authority and the Police), it is critical that reforms focus on exactly how to improve the coverage, quality, coordination, and effectiveness of the numerous ADR mechanisms at play in the justice sector.
5.1.6 Institutional Communication, Collaboration, and Coordination All the justice sector institutions interface in some measure with other institutions. They admit, however, that this is ad hoc. For a coordinated approach to reform of the sector to happen, there must be conscious, systematic, and productive communication, collaboration and coordination between all justice sector institutions.
The interactions could take the form of quarterly review meetings for measuring progress or regress in the implementation of the Justice Sector Reform Action Plan.
5.1.7 Institutional Development Almost all institutions will require additional resources: infrastructural; human; and financial. Their current levels of funding, relative to their mandate, is minuscule.
5.2 PLAN OF ACTION FOR JUSTICE SECTOR REFORM
Appendix ‘A’ contains a Draft Action Plan for the reform of the entire justice sector. The Action Plan, which in a sense is a master strategic plan for the sector, must detail the following: a. The specific challenges that are sought to be addressed. b. The list of institutions that are implicated in the reform effort. c. The way and manner the challenges will be addressed-reform activities. d. The sequencing of the reforms. e. The points of institutional interface, and therefore, of collaboration. f. Indicators for measuring progress or regress in the reform effort. g. A monitoring and evaluation framework.
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This Draft Action Plan is a critical item on the agenda for the stakeholders' meeting to validate this report. The hope is that at the end of the workshop a more complete Action Plan will be produced for the reform of the justice sector.
Aside producing the Action Plan and proceeding to implement it, deliberate efforts must be made to ensure that policy coherence is achieved for the sector and "dis-coordination" does not recur in implementation, by securing the buy-in to the Action Plan by the following critical actors:
a. Policy Unit of the Office of the President; b. Monitoring and Evaluation Unit of the Office of the President; c. Delivery Unit/Mechanism of the Office of the President; d. Constitution Review Implementation Committee; e. Ministry of Justice/Attorney-General's Department; f. Cabinet; g. Parliament; h. Judicial Council; i. General Legal Council; j. Judicial Reforms, Project Development and Implementation Unit of the Judicial Service; k. ADR Unit of the Judicial Service; l. National House of Chiefs (including the Ascertainment of Customary Law Project of the House); and m. Development Partners.
Finally, the implementation of the Action Plan must be in conjunction with all the critical stakeholders listed above and those present at this workshop.
5.3 CONCLUSION
This is a draft report. It contains the key findings of the survey and an institutional matrix of the key institutions in the justice sector. It also contains broad recommendations for reforming the sector and a Draft Action Plan.
The purpose of the validation workshop is to interrogate the scientificity of the findings and the logical sequence between findings and recommendations. The workshop is also to secure concrete suggestions from participants on what detailed activities need to be included in the Action Plan in order to cover all reform proposal; how this may be done; how coordination may be achieved; and how success may be measured.
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APPENDICES
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6.0 APPENDICES
6.1 Institutional Matrix
Institution Adequacy of Adequacy of Adequacy of Inter-Agency Resource Allocation Reform Proposals Remarks Mandate and Legislative Institutional Collaboration Main Activities Framework Framework Institutional Human Financial
Ministry of No gap in Adequate Inadequate Effective but Inadequate Inadequate Inadequate Improve Institutional Justice and Mandate and ad hoc Structures Attorney Main Activity General's There are calls to There are Police Service Lack of Low Improve Conditions of Department split the functions of challenges with CHRAJ office space staffing Service for staff AG and Minister of the Legal Aid and modern levels and Justice management Judicial Service ICT relatively Improve inter-agency of numerous Prisons Service equipment unattractive collaboration agencies under conditions the MoJ/A-G of service
Judicial No gap in Adequate Inadequate Effective but Inadequate Inadequate Adequate Improve Conditions of Service Mandate and ad hoc Service for staff and Main Activity Judges Improve and Streamline Issues of Police Service Office space Low inter-agency collaboration administration A-G’s Dept for Courts motivation of the Judicial Prisons Service and storage of staff Decentralize Reforms Unit Service as a Legal Aid of judicial leading to of judicial service Public Service Ghana Bar records. high staff and the Association Lack of turnover Judiciary as an Traditional Modern ICT independent Authority equipment organ of Social Welfare government CSOs DPs
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CHRAJ Gaps in Inadequate Inadequate Effective but Inadequate Inadequate Inadequate Full implementation of the mandate and ad hoc recommendation of the Paris principles CRC on CHRAJ commitments
Differences Need to The Courts Offices space Filling of Budgetary between CHRAJ Act increase the Legal Aid for staff vacant allocation and Paris Principles number of Board positions is not enough commissioners Attorney- urgently Over General’s office needed reliance on Prison Service donors Police Service
Ghana Police No gaps in Adequate Inadequate Effective but Adequate Adequate No In-service training for Service mandate and ad hoc disclosure- personnel main activity national security issue Bureaucratic Prisons service Single spine Review organogram as it procedures The judiciary has relates to operations and A-G’s motivated intimidating Department staff organogram Immigration with blurred Fire Service reporting lines Military Local Food and Drugs Board NACOB
Ghana Prisons No gaps in Inadequate Adequate Effective but Inadequate Adequate Inadequate Introduce non-custodial Service mandate and ad hoc sentencing policy main activity
The Police No strategic Improved Increase Main stream the informal Titles of Heads of Service plan conditions financial justice system (into the Institutions not The Judicial of service resource formal justice system) reflecting Service allocation
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international Social Welfare for effective standards The media discharge of Traditional mandate Authorities Ghana Medical Association Ghana Bar Association Political Appointees GPRTU
Legal Aid No gaps in Inadequate Inadequate Effective but Inadequate Inadequate Inadequate Reforms to improve the Scheme mandate and ad hoc Independence of the Legal main activity Aid Board.
Power to Prosecute Relationship Judicial Service Lack of Low staff Improved Restructure the Legal Aid and Defend are both between Legal Attorney- office space strength allocation Board to have: executed and Aid and MoJ General’s and presence of financial Public Defender’s Office; supervised by the Department in all district Poor resources Citizens Advisory Bureau; MoJ, because Legal CHRAJ capitals conditions needed for and Aid is an agency of The Prison of service effective ADR Unit the MoJ. This is Service discharge of anomalous. The Police mandate Service Department of Social Welfare
Economic and Adequate Adequate Adequate Effective but Adequate Adequate Adequate Institutional re-orientation No major Organized ad hoc to ensure effective challenge Crime Unit implementation of in 2years mandate of operation
Alternative Adequate Adequate Inadequate Effective but Inadequate Inadequate Inadequate There should be reforms Dispute ad hoc regarding funding Resolution Payment of mediators is a Office of priority
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Judicial ADR structures should be Service part of the regular court system
Operating only The Ghana Bar Greater 95% of as a Unit in the Association Accra and funding Judicial Service Religious National comes from Bodies Coordinators DPs District share the Assemblies same office Traditional space Authority National Adequate Adequate Adequate Effective but Inadequate Inadequate Inadequate Capacity building for House of ad hoc Judicial Committees and Chiefs staff of Houses of Chiefs and Traditional Councils Same for Chiefs in ADR Provision of infrastructure Improve interaction with formal justice institutions Increase motivation and operational logistics for chiefs National Adequate Adequate Adequate Effective but Inadequate Inadequate Inadequate - Commission ad hoc on Civic Education
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6.2 Action Plan (List of Challenges/Issues extendable and reviewable)
CHALLENGE/ISSUE DIMENSIONS AND REFORM REFORM PRIMARY AND TIMEFRAME MEASURING EFFECTS STRATEGIES ACTIVITIES SECONDARY AND SUCCESS RESPONSIBILITIES SEQUENCING
1. Limited Knowledge about the existence, mandate, and processes and procedures of Justice Sector Institutions. 2. Lowering the cost of justice services so that everyone can access cheap and effective justice. 3. Reducing delay in the adjudication of disputes and the provision of effective remedies. 4. Making the procedures and processes of justice sector institutions more user-friendly. 5. Making justice sector institutions more responsive to the needs of Ghana and Ghanaians and Ghanaian residents. 6. Strengthening the independence of justice sector institutions. 7. Eliminating Corruption in the justice sector. 8. Institutional Capacity (physical, human resource, financial).
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6.3 Literature Audit
This literature audit is captured under the following four broad themes:
1. DEMOCRACY, RULE OF LAW AND THE JUSTICE SECTOR
2. ADMINISTRATION OF JUSTICE
3. HISTORICAL REFORMS
4. REFORM PROPOSALS
I. DEMOCRACY, RULE OF LAW AND THE JUSTICE SECTOR Ghana is ranked among the top 10 performing countries in Africa in terms of its record on rule of law. The Ibrahim Index of African, for instance, currently ranks Ghana as the 5th best country on its rule of law indicator.i In this regard, Ghana has consistently scored above 75% since 2006 - reflecting a progressive improvement in its record from 76.8% in 2006 to 84.7% in 2011. On the transparency indicator, with a raw score of 63.9%, Ghana is currently ranked the 8th best performing country on the continent.ii This score of 63.9% reflects a one percentage point improvement from the score of 62.9% recorded in 2006.
Similarly, the World Justice Project Rule of Law Index ranks Ghana 1st, out of the 18 African countries assessed, for the fundamental human rights indicator; 2nd for the limited government powers and civil justice indicators; 3rd for the open government indicator; 5th for the absence of corruption indicator; order and security; and regulatory enforcement indicators; and 8th for the criminal justice indicator.iii The country has strong protections for fundamental rights, a functioning system of checks and balances and an open government, according to this Index. Administrative efficiency and corruption continue to be key challenges, although Ghana outperforms most of its regional peers in both dimensions.
In the Global Competitiveness Index 2011–2012 rankings, Ghana is ranked 114th, the same as last year, although it gained one position in a constant sample. According to this Index, the country continued to display strong public institutions and governance indicators with relatively high government efficiency, particularly in regional comparison. Ghana has made some other significant gains in other areas of rule of law, notably, the promotion and protection of human rights. The Ibrahim Index of African Governance, for instance, consistently ranked Ghana the 5th and 6th best African country under its Participation and Human Rights Category. Ghana's scores under this category steadily improved from 67.4% in 2008, peaking at 69.3% in 2011, and dropping slightly in 2012 to 69.2.iv The Ibrahim Index of African Governance also provide similar evidence of steady progression in the three sub-
Page 51 of 105 categories under participation and human rights namely participation,v rightsvi and gendervii similarly disclosing some steady improvements in terms of Ghana's rankings and actual scores from 2008.viii Out of 16 countries in West Africa; Ghana ranked 2nd after Cape Verde for the states Index. The Index notes that Ghana scored higher than the continental average which is 51; receiving its highest score in the Safety and Rule of Law category (72); and its lowest score in the Sustainable Economic Opportunity category (54).
Also, Transparency International, the leading civil society organization fighting corruption worldwide, has released its 18th annual Corruption Perceptions Index (CPI) for 2012 which has ranked Ghana 64 out of 176 countries by their perceived levels of public sector corruption. In 2011, Ghana’s CPI score was 3.9 based on the old methodology. If this 2011 score is re-calculated using the new methodology, Ghana’s score for 2011 would have been 46. This means that Ghana’s position on the CPI has dropped implying that Ghana is still not winning the fight against corruption. However, the score and rank of Ghana showed that the country also performed much better than several other African countries with Eretria, Guinea Bissau and Guinea at the very bottom with a score of 25, 25 and 24, respectively. It must also be noted that six African countries performed better than Ghana with Botswana leading with a score of 65 and ranking 30 globally.
The role of the justice sector, in particular, the judiciary in entrenching democracy and rule of law in Ghana cannot be overemphasized. Of critical importance here is the constitutional power of the court to exercise judicial review over laws passed by Parliament and over administrative and executive conduct. There is clearly a “growing willingness by the Ghanaian courts to relate the rights and duties of players in the administrative state to the human rights provisions in the constitution. This has chiefly resulted from the reaction of the courts to systems and processes of the administrative state that take their ethos and orientation from previous undemocratic environments and the desire of the courts to subsume that orientation to the democratic and liberal principles of the 1992 Constitution.”ix In this regard, the judiciary has churned out many cases relating to the establishment, legality, powers, capacities and limitations of executive and administrative institutions of State that are critical to the daily lives of the citizenry. Ghanaian courts have not been hesitant in: 1) interpreting and enforcing the Constitution to strike down laws and executive actions that are deemed unconstitutional;x 2) enforcing and protecting constitutional and human rights;xi and 3) applying administrative justice principles of articles 23 and 296 of the Constitution to the executive, including the President and the administrative institutions that are set-up by or pursuant to a power expressed in the 1992 Constitution as well as the very many statutory bodies that exist.xii
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In this regard, the Constitution guarantees the independence of the judiciary and ensures that it is not subject to the control or direction of any person or authority in the exercise of judicial power in terms of judicial function, administrative responsibilities and financial administration. The Constitution adopts different mechanism to ensure this judicial independence, including financial autonomy of the judiciary through preparation of its own proposed annual budget and security of tenure of judges. It is quite obvious that in formal terms the judiciary has been constitutionally well insulated from executive interference.
Many more efforts at entrenching democracy and the Rule of Law in Ghana have been taken in the recent past. The key ones are detailed below.
1) The rule of law is the key to improving public health, safeguarding participation, ensuring security and fighting poverty. According to the World Justice Project/Rule of Law Index 2012; Ghana is the strongest performer among low-income countries in most dimensions with respect to the rule of law. The country has strong protections for fundamental rights (ranking twenty-ninth overall and first in the region), a functioning system of checks and balances (ranking twenty-third overall and second in the region) and an open government (ranking thirtieth overall and third in the region). More broadly, the government has shown, for the most part, an increasing respect for the rule of law, complying with difficult decisions handed down by the courts and appointing and respecting the findings of commissions of inquiry that have found government officials at fault. Successive governments have also led anti- corruption campaign that has touched its own members as well as those of the previous administration. 2) Prisoners and detainees had reasonable access to visitors and were permitted religious observance. Authorities permitted prisoners and detainees to submit complaints to judicial authorities without censorship and to request investigation of credible allegations of inhumane conditions and treatment. The government permitted independent monitoring of prison conditions by the Commission on Human Rights and Administrative Justice (CHRAJ), which served as the official ombudsman, and the Welfare Unit of the Prisons Service. During the year the CHRAJ monitored 28 of the total 42 prisons and prison camps in the country. The CHRAJ and other NGOs worked on behalf of prisoners and detainees to help alleviate inhumane overcrowding; to address the status and circumstances of confinement of juvenile offenders; and to improve pretrial detention, bail, and recordkeeping procedures to ensure prisoners did not serve beyond the maximum sentence for charged offenses (Kumasi survey). The government also permitted independent monitoring of prison conditions by international human rights groups, including the International Committee of the Red Cross. Page 53 of 105
3) The introduction of ‘fast-track’ automated courts and the pre-trial settlement conferencing in the commercial courts. 4) The government permitting independent monitoring of prison conditions by CHRAJ, on behalf of prisoners and detainees to help alleviate inhumane overcrowding; to address the status and circumstances of confinement of juvenile offenders; and to improve pretrial detention, bail, and recordkeeping procedures to ensure prisoners did not serve beyond the maximum sentence for charged offenses. 5) Human rights campaigns done periodically to educate citizenry on their rights and responsibilities. These are usually conducted by two constitutionally- mandated institutions, CHRAJ and the NCCE, and complemented by some NGO'. Notwithstanding these efforts made, Ghana is still bedeviled with challenges: Thus even though Ghana has upheld the rule of law in various situations there are still cases in which executive interference in prosecutions has been alleged, and some court rulings have not been fully respected; or attempts have been made to over-turn them other than through the normal avenues of appeal. Moreover, weaknesses in the constitutional and legislative framework providing for the appointment of judges still provide the president with too great a discretion. Continued vigilance, as well as legal reform, is needed to ensure and promote respect for the proper separation of powers and independence of the courts. Administrative efficiency and corruption are a challenge. The civil justice system is relatively independent, but slow and inaccessible to most people. Security from crime, vigilante justice, and deficiencies in the criminal investigation and adjudication systems, are areas that require attention. Other important areas, including the laws governing the police and prisons, do not even have proposed new legislation on the table to update rules established 30 years ago. Despite the existence of the two bodies, the Law Reform Commission and the Statute Law Revision Commissioner, law reform has generally been piece-meal and uncoordinated, dependent on the help of the donor community, and undertaken without a systematic effort to build a modern and democratic justice system. In practice, the most effective law reform proposals have been driven by civil society, often working with the Commission on Human Rights and Administrative Justice (CHRAJ): civil society organizations were the leading spirits behind two important recent statutes, the Disability Act of 2006 and the Domestic Violence Act of 2007. Long-outstanding proposals for new laws include the Right to Information Bill as well as the Property Rights of Spouses Bill. Moreover, where laws have been adopted, the government has also been criticized for neglecting to put in place effective mechanisms for their implementation An important brake on law reform in Ghana is the restriction on Parliament’s powers set out in Article 108 of the Constitution, which provides that Parliament may not Page 54 of 105
debate laws that impose taxes or make a charge on public funds unless the bill is introduced on behalf of the president. Since virtually any law will have financial implications, this prevents the introduction of any law reform initiative that does not have the backing of the executive. Private members bills, a source of law reform in many countries with a parliamentary system, are thus almost unknown. Amendment of Article 108 is needed to ensure that Parliament can play a fuller role as a law- making institution. The inclusion in the 1992 Constitution of transitional provisions granting an absolute and permanent immunity from prosecution to members of former military regimes for acts com- mitted by these regimes has also been controversial. Other commissions of inquiry established for more routine investigations have played important roles in monitoring the legality of government actions, unearthing the cause of the problems and recommending solutions to prevent their recurrence. Though in general, the government has accepted their findings, however the government has exercised its discretion to implement only those recommendations that it finds acceptable amongst other things, thus the government should have to publish a report promptly, and provide reasons if it does not implement the recommendations. It is becoming obvious that the ‘fast-track’ courts are being clogged by the same bottlenecks affecting the regular courts: a coordinated approach that addresses the problems of the whole system will be needed, especially to increase access to effective justice for those at the poorest end of society as well as the richest. Surveys indicate that police abuse of suspects is still a problem, and corruption among police officers is widely reported. The legal framework governing sentencing and prison management is, like the police law, out of date. The Prisons Service Decree dates from a period of military government in 1972. Although piecemeal amendments have been made to the Criminal Code on sentencing, lawyers complain that sentences handed down in court focus too much on imprisonment, without providing for alternative non-custodial options. On the other hand, women’s and children’s rights groups have urged higher and more consistent sentencing in cases of rape or defilement (sexual intercourse with a child). Although the death penalty remains on the books, the last execution was in 1993. The cost of legal advice is an important impediment to accessing justice, every country in world. Its failure to put together a complete list of Ghana’s international treaty obligations, and an up-to-date compilation of all international and African treaties that Ghana has signed or ratified. Failure of Ghana to incorporate some important provisions and treaties such as the Protocol to the African Charter on Human and Peoples’ Rights (ACHPR) on the Rights of
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Women in Africa that allow for individual complaints to be heard by the treaty-monitoring bodies. Given the above challenges, Ghana is making efforts at addressing her Good Governance and Rule of Law deficits.
1) Constitution Reform Ghana conducted an all-inclusive, nation-wide, and consultative constitution review process which resulted in wide ranging recommendations affecting Good Governance, the Rule of Law and human rights. These include recommendations for the promulgation of an affirmative action law to address gender inequality; the abolition of the death penalty; improved access to qualitative justice; expansion of the rights expressly provided for by the Constitution to include consumer rights, right to housing, right to food, and environmental rights; justiciability of economic, social, cultural and development rights; and reform of institutions dealing with human rights and related matters including the Courts, the Commission on Human Rights and Administrative Justice (CHRAJ), the Electoral Commission; the National Media Commission; the National Commission on Civic Education and the Police, the Prisons and other security services. The Commission also recommended wide-ranging in the governance of Ghana's natural resources to benefit the people of Ghana and deeper decentralization in order to move power and resources to the people.
2) National Human Rights Action Plan (NAHRAP) for Ghana A National Human Rights Action Plan is currently being drafted to address human rights concerns in a comprehensive and holistic manner. When completed, it will cover five key priority areas, namely: economic, social and cultural rights; civil and political rights; vulnerable groups/minorities; international and national legal frameworks; and human rights education and ensure that Ghana addresses human rights issues in a more systemic and sustainable manner.xiii
3) Promotion of Women's Rights and rights of the other vulnerable groups New women's rights-friendly legislation including the Property Rights of Spouses Bill have been finally laid before Parliament in accordance with article 22 of the Constitution, almost 20 years after that law was due to be passed. Other important legislation include the Intestate Succession Bill.
There has been evidence of government's commitment to the principle of equal participation of men and women in governance by adopting an Affirmative Action Policy that requires 40 per cent representation of women on all government boards, commissions, committees and other political officesxiv.
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4) Domestic Violence A Domestic Violence (DV) Secretariat under the Ministry of Women and Children's Affairs (MOWAC) was established in 2008, with a mandate to provide effective coordination to facilitate the smooth implementation of the Domestic Violence Act by all stakeholders.xv The Victims of Domestic Violence Support Fund was launched in the last quarter of 2011, although it is yet to attract much needed support.xvi
5) Rights of Persons living with HIV and AIDS The Ghana AIDS Commission continued with its efforts to fight against discrimination against, and stigmatisation of people living with HIV/AIDS in Ghanaian society. Efforts by the AIDS Commission have resulted in the reduction of the median HIV prevalence among pregnant women attending ante natal care from 2.9 in 2009 to 2.1 in 2011, while the national adult prevalence rate recorded a reduction from 1.7% in 2009 to 1.5% in 2011.xvii
6) Free and Fair Elections Ghana showed leadership in African democracy by conducting a successful and largely peaceful presidential and parliamentary elections in 2008. The 2008 presidential election was the most keenly contested election in Ghana; with the outcome being decided by a "third round" in only one constituency.xviii
7) Cooperation with International Human Rights Mechanisms Since 2008, Ghana subjected herself twice to the Universal Periodic Review (UPR) by the United Nations Human Rights Council; first at the Eighth Session of the Council in May, 2008 and subsequently at the Fourteenth Session of the Council from October to November, 2012. During her first review, Ghana accepted 22 recommendations by the Human Rights Council including the under listed,xix the majority of which had been fully implemented or were at different stages of implementation by the second review. a) promotion of the rights of women and vulnerable groups; b) implementation of the Domestic Violence Act; c) combating harmful cultural practices; d) protecting children’s rights; e) implementation of measures contained in the ICCPR and CAT; f) improving the literacy rate and bridging gender gap between boys and girls in education; g) HIV/AIDS prevention; h) ratification of the Convention on the Protection of Persons with Disabilities; i) ratification of the Optional Protocol on the Convention Against Torture; j) improving economic, social and cultural rights; k) combating corruption; Page 57 of 105
l) measures to combat and sanction police brutalities; m) strengthening the capacity of the CHRAJ; n) right to housing; o) decriminalisation of sexual activity between consenting adults; p) abolition of corporal punishment; q) enactment of the Freedom of Information Law; and r) abolition of the death penalty.
8. Following the adoption of a damning parliamentary committee report on corruption in the judiciary in 2003, systems for action against judicial misconduct have been strengthened, through the establishment of a Public Complaints and Court Inspectorate Unit in 2005 and the adoption of a new code of conduct for the judiciary. 9. Historically, judges in Ghana received no additional training on appointment to the bench, a trend the creation of a Directorate of Continuing Judicial Education in 1988 sought to reverse. In 2002, the directorate became the Institute of Continuing Judicial Education of Ghana, now known as the Judicial Training Institute (JTI), whose primary objective is to improve the quality of delivery of justice by developing the human resource needs of the Judicial Service of Ghana, including judges and other court staff. The JTI has been instrumental in a reform and modernization programme being undertaken by the Judicial Service. During 2004/05, the institute organized 20 training programmes, covering alternative dispute resolution, land administration, rules and practice in the commercial courts, the new High Court Civil Procedure Rules, and other matters.10. The right to fair trial as provided for in the Constitution is generally respected by the courts. Accused persons are presumed innocent until the contrary is proved, trials are public, and defendants have a right to be present, to be represented by an attorney (at public expense if necessary), and to cross-examine witnesses. In practice, authorities generally respect these safeguards. The habeas corpus procedure has been successfully enforced, although it is limited in its use. Important new legislation on juvenile justice has improved protections for young persons who come in contact with the criminal justice system, though implementation in patchy.
Apart from those listed above, other prominent human rights positives relating, but not limited to, the implementation of the UPR recommendations include:xx a) the enactment of the Anti Money Laundering Act, 2008 (Act 749); the Economic and Organised Crime Office Act 2010, (Act 804) and the Mental Health Act, 2012 (Act 846); and different human rights sensitisation and training programmes by the government, the CHRAJ and several civil society organisations
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In spite of the strides made, human rights violation remain quite endemic in Ghana, preventing individuals from enjoying their rights. Prominent among these are: a) use of excessive force by police and police impunity; b) harsh and life-threatening prison conditions; c) prolonged pre-trial detention; d) arbitrary arrest of journalists; e) corruption in all branches of government; f) violence against women and children, including female genital mutilation (FGM); g) societal discrimination against women, persons with disabilities, gays and lesbians, and persons with HIV/AIDS; h) trafficking in women and children; i) ethnic discrimination and politically motivated violence; j) child labour, including forced child labour; k) the apparent lack of political will to expedite the passage of various legislation including the Right to Information Bill (minus all of its inimical exemption clauses), the Property Rights of Spouses Bill and the Intestate Succession Bill and l) infrequent submission of reports to international and national treaty bodies.xxi
II. ADMINISTRATION OF JUSTICE; Ghana’s justice sector may be described as a maze of public institution including the Ministry of Justice and Attorney General’s Department, the Ghana Police Service, the Ghana Prisons Service, the Economic and Organized Crime Office, the Legal Aid Board, the Law Reform Commission, the Council for Law Reporting, and institutions of legal studies such as the law faculties and the Ghana School of Law; all interacting at different levels and to different degrees with the judiciary and the Judicial Service of Ghana, and with the Ministry of Justice serving as the coordinating Ministry.
With the use of judge-made-laws in addition to statute law and customary law - the ethnic norms and rules that govern various communities in Ghana - Ghana's justice sector is characterized by legal pluralism for the settlement of disputes.xxii Ghana's justice sector is also characterized by institutional pluralism in the sense that Ghana has moved beyond the stage where ensuring justice is solely the responsibility of the judiciary. Many other forms of dispute resolution have pride of place in Ghana. The three-prong human rights, ombudsman and anti-corruption mandate of the Commission on Human Rights and Administrative Justice (CHRAJ) is very relevant here.xxiii Beyond the CHRAJ, there are a number of administrative tribunals and quasi-judicial bodies for the resolution of disputes in Ghana including the National Labour Commission, the Judicial Committees of the National House of Chiefs and the various state institutions which regularlly use Alternative Dispute Resolution mechanisms, including the Legal Aid Scheme. Page 59 of 105
It is critical that any reform effort appreciates the multifaceated and quite complicated character of the justice terrain in Ghana. Without such an appreciation, reform efforts would fail even before they have started. This has been the bane of many of the isolated reform efforts that Ghana's justice sector has experienced in the past.
In practice, however, the judiciary and the justice sector as a whole are confronted with a number of challenges in spite of the gains made under constitutional rule. The issues that must be addressed by any reform effort, according to the literature are varied. Shawbell Consulting (2009) found that there were multiple barriers exerting varying levels of impact on the choice of the preferred avenues of dispute settlement, depending on the category to which the poor and vulnerable person belonged. They also found that there were marked differences in the degree of impact exerted on that choice by the barriers identified, depending on which Part of the country the respondent resided. Factors that exert the strongest barriers include cost of accessing justice; physical and resource impediments to accessing justice at the Magistrate’s Courts; length of time and complexity of the judicial process; involvement of customary authorities in dispute settlement, as well as the strong cultural influence; and ignorance of the various organs of resort, a lack of understanding and knowledge of the options available to them, as well as mistrust and fear of the unknown.
In more precise terms, the issues relate to: 1) multiple-barriers against accessing justicexxiv including high cost of initiating or defending suits; limited and under-resourced justice institutions; the complexity of judicial processes; limited knowledge of the public about the justice sector; disempowerment, and exclusion; 2) delay in the disposition of cases occasioned by frequent adjournments; missing case dockets; slow processing of documentation and processes, resulting from a high and daunting caseload;xxv 3) high perception of corruption leading to minimal trust by the public in the Ghanaian courts;xxvi 4) high perception of executive and political interference in the work of the judiciary, through the appointment and promotion of judges for example;xxvii 5) lack of effective collaboration and networking among key institutions of the justice sector leading, for example, to over population of Ghanaian prisons by remand prisoners with expired warrants; 6) detention without trial and long pre-trial detention by security agencies; and 7) Insecurity from crime vigilante justice, and deficiencies in the criminal investigation and adjudication systems, are areas that require attention. 8) Inadequate funding and permanent staff of the Law Reform Commission; Page 60 of 105
9) UNICEF also noted that the juvenile justice administration system has been weakened by the inadequate logistical and human resource capacity of the Department of Social Welfare. The absence of separate police cells and lack of coordination between the police and the Department of Social Welfare have led to an increase in the presence of juveniles in adult police cells at specific points in time, from 289 in 2000 to 382 by mid-2003. 10) There is no annual or other systematic reporting process in which data on criminality collected by the police is published, though crime data are made available to the public upon request, and are reported intermittently in speeches by the minister of the interior or police officers. These improved data collection has not yet led to the development of a comprehensive national crime-prevention strategy. Although the Inspector General of Police (IGP) and the director-general in charge of the Criminal Investigations Department (CID) meet regularly to discuss the crime situation and plan operations, the police approach has in the main been reactive and based on the adoption of ad hoc measures. 11) Legislative reform in relation to the police lags behind other administrative, policy and officer enhancement programmes. The primary law governing the police service, the Police Act, is a 30-year-old law that has not been amended to conform to modern policing in a democratic state. Article 200 of the1992 Constitution also provides that the police ‘shall be equipped and maintained to perform its traditional role of maintaining law and order’, rather than providing a framework aimed at protection of citizens. Recommendations – and subsequent government white papers – from the many commissions of inquiry that have reported on issues relating to policing have not resulted in legislative reform. A comprehensive legislative framework should implement proposals for the police to be subject to greater civilian oversight and more attuned to protection of citizens with full respect for the human rights guaranteed in a democracy.
12) The cost of legal advice is an important impediment to accessing justice, in Ghana as all over the world. A highly formalized court system, with strict rules of procedure for submitting a complaint of violation of constitutional rights, has exacerbated the problem. Article 294(1) of the Constitution provides for legal aid for the indigent and Ghana Legal Aid Board (GLAB), set up almost 20 years ago, plays an important role in providing representation to the poor. GLAB has recently increased its nationwide coverage, but it is still not present in many districts. This is not only a question of money, but also of the lack of lawyers to provide representation in the more rural areas, and the absence of a formal requirement for lawyers to do pro bono work.
13) Development partners have played a significant role in pushing the agenda for judicial, legal and justice reforms in Ghana. The funds have helped greatly in the Page 61 of 105
modernization of the justice system to deal with delays, corruption and other weaknesses. However, coordination of these funds is generally weak and some of the reform measures are criticized as being driven by the donor community to meet its own particular agendas. In some cases, there is duplication of donor-funded projects and activities. These problems of coordination must be addressed by establishing a joint ministerial committee to consider the needs of the justice sector in a holistic manner, make proposals for financial assistance and coordinate project design by the government. The donor community is advised to do the same as it is important that the independence of the various training institutes be protected and not compromised by their relationships with the donor community. Donor funding should be made more flexible, so that government, the judiciary or civil society organizations would have the freedom to apply the funds in areas that they believe critically need help, rather than being required to use them for pre-set priorities chosen by development partners.
14) There is the concern of the lack of legislation to comprehensively address domestic violence and the insufficient support for victims of violence, and the insufficient measures aimed at preventing violence against women. Also, the fact that victims of violence have to bear the costs of medical examination when giving reports to the police. There is also the concern about the prevalence of a patriarchal ideology with firmly entrenched stereotypes and the persistence of deep-rooted cultural norms, customs and traditions, including widowhood rites, female genital mutilation, and “trokosi” (ritual servitude of girls including sexual abuse and forced labor) which constitute serious obstacles to women’s enjoyment of their human rights. Also, the fact remains that women accused of being witches are subjected to violence and are confined in witches’ camps. Without delay, Ghana is urged to introduce, and in conformity with the Convention, concrete measures to modify and eliminate customs and cultural and harmful traditional practices that discriminate against women.
15) Constitutional guarantees are routinely violated by long delays in bringing cases to trial: the police, magistrates, and A-G’s Department each assert that the others are to blame for this situation. Although the Ghana Legal Aid Board (GLAB) provides legal aid to criminal defend- ants, many charged with criminal offences do not have legal representation in court. Witness protection is of particular concern. Some victims of armed robbery have reportedly expressed fear of reprisals by the suspects or their agents. Although the police and courts have taken some measures to respond to these problems, such as by conducting in-camera hearings and providing police protection, these are inadequate to address the need. As a result, witness intimidation has led to cases being dropped.
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16) In 2006, CRC was concerned about cases of ill-treatment and abuse, including sexual abuse, and about the fact that there are no mandatory reporting requirements for professionals with regard to child abuse. It recommended that Ghana take the necessary measures to prevent child abuse and neglect; investigate cases of domestic violence and sexual abuse through a child-sensitive judicial procedure, and ensure that sanctions be applied to perpetrators; and raise awareness among the public of the problem of domestic violence, with a view to changing public attitudes and traditions that inhibit victims, particularly women and girls, from reporting it. CRC was also concerned about the information that sexual exploitation, particularly sex tourism, is growing in the country and that many girls and boys at a very young age are engaged in commercial sexual exploitation. It recommended that Ghana effectively implement the Human Trafficking Act and provide adequate programmes of prevention, assistance, recovery and reintegration for trafficked children.
III. HISTORICAL REFORMS Ghana justice sector has been the subject of a plethora of reform initiatives since independence in 1957. However, the most sustained wave of reforms has happened during the almost twenty-year operation of the 1992 Constitution. These reforms have varied in object and in scale, but their principal focus has been consistent; to remove all barriers to real, impartial, accessible, cheap and timely justice, in order to make the administration of justice speedier, effective and efficient and to restore public confidence in the justice system. The reforms have also sought to position justice sector institutions to support constitutional democratic governance and the rule of law in Ghana, and in accordance with international best practice.xxviii
The key reform initiativesxxix have included: 1) automation of the courts; 2) the creation of a second Court of Appeal to service the northern sector of the country; 3) the creations of more divisions of the High Court - the Fast Track Division of the High Court and other specialized divisions of the High Court such as the Commercial Court, the Land Court, the Financial and Economic Crimes Court, the Industrial Court and the Human Rights Court; 4) electronic allotment of cases to courts; 5) the engagement of more personnel for the courts; 6) the introduction of the private bailiffs system to enhance the service of court processes; 7) the establishment of a banking system for the collection of court fees and revenue;
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8) the production of informative annual judicial reports, newsletters and magazines; 9) the creation of the Judicial Training Institute for the training of new and sitting judges and other court personnel; 10) the creation of more District Courts; 11) reforms in legal education; 12) the opening of a new Faculty of Law, the second in a public university, the opening of two more campuses of the Ghana School of Law at the University of Ghana and the Kwame Nkrumah University of Science and Technology, (plus the involvement of the private sector (private universities) in providing basic training for lawyers); 13) the creation of the Court Inspectorate and Public Complaints Unit of the judicial service to receive and resolve complaints about the administration of justice; 14) the creation of a website for the Judicial Service that is regularly updated to indicate the list of cases to be heard in the courts on weekly basis; 15) the review of court rules and the passage and coming into force of the High Court (Civil Procedure) Rules, 2004 (CI 47) in 2005 and the passage of the District Court Rules, 2009 16) the mainstreaming of Alternative Dispute Resolution into the work of many courts in Ghana; 17) more regular high level meetings of the heads of justice sector institutions; 18) the Access to Justice Programme: which offers legal advice to men and women, and also provides legal training to community leaders throughout the country with the aim of helping them protect their rights enshrined in the Ghanaian Constitution and international human rights instruments to which Ghana is signatory. 19) the Justice for All Programme to decongest Ghana's prisons and 20) the setting up of a Court Reforms Directorate to take charge of coordinating and monitoring all judicial reforms.
Assessments of these reforms reveal that while there have been significant gains made, there remain some issues to be resolved. In a World bank study in 2009 and 2010, for instance, it was observed that "calculating litigants are being stampeded away from the regular unautomated courts into the automated (Fast Track) and specialized courts"xxx because delays in the unautomated courts make them more expensive in the long-run. In the result, the automated courts are slowly getting clogged with cases and in the absence of proactive and effective counter-measures, these automated courts are slowly becoming like the unautomated courts.xxxi Earlier studies similarly show that numerous adjournments and consequential delays, missing case dockets and slow processing of documentation and processes are gradually becoming the norm in the automated and specialized courts.xxxii An assessment of the Inspectorate and Public Complaints Unit also revealed that while in the first year of its establishment the unit showed much promise; with the lack of information
Page 64 of 105 and data on complaints lodged with the Unit in the succeeding years, it was to be wondered if the admirable performance of the unit in its first year of establishment was not a nine-day- wonder.xxxiii A monitoring of the justice sector reform efforts has, accordingly, been recommended "in order to prevent a rollback on gains made so far."xxxiv
IV REFORM PROPOSALS
The fair and speedy trial and related human rights provisions of the Constitution should be elaborated on in Acts of Parliament. The Rules of Court should be innovatively reviewed by auditing them for their capacity or otherwise to enhance fair and speedy trial : such as by, limiting interlocutory appeals to Court of Appeal, setting timelines for the delivery of judgements, and eliminating inordinate adjournments. Guidelines should be introduced urgently to incorporate Alternative Dispute Resolution mechanisms in criminal and civil trials. The upgrading and refurbishing of court structures, equipping registries; court automation; and the institution of proper and effective case documentation and record-keeping processes. The current penal legislative framework should be reviewed and streamlined to incorporate well studied and defined sentencing guidelines and procedures so as to ensure uniformity in sentencing, as well as to favour the progressive prescription of non-custodial sentences, especially for minor offences. Furthermore, the membership of the Supreme Court be capped at fifteen in a non- entrenched provision of the Constitution and for refining the manner in which the review jurisdiction of the Supreme Court is exercised. Also, there should be a reduction on the maximum time a person may be detained before being brought to Court from 48 hours to 24 hours; and informally abolish the death penalty. The Law Reform Commission should be strengthened through the appointment of additional permanent staff and the allocation of adequate funding. The Attorney General’s (A-G) discretionary power to act on or ignore recommendations by the commission should be limited. Human rights law should become a compulsory course in the various faculties of law where Ghana’s lawyers receive their education. The Judicial Training Institute (JTI) curriculum should also include training in human rights law, including the application of international precedents in Ghana’s courts. Social context training would also enable the justice community to better understand and deal with gender-, child- and
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disability-sensitive issues, including domestic violence. Human rights education and awareness-creation should also be under taken among the general population by the National Commission on Civic Education (NCCE). Calls that has been made for the separation of the positions of the Attorney General and the Minister of Justice needs to be implemented in order to strengthen the independence of the prosecution system. The structural independence of Ghana’s judges is undermined by weaknesses in the appointments process. Of particular concern is lack of guaranteed independent input into the choice of judges. Unlike several other African countries, including South Africa, Malawi and Nigeria, Ghana does not have a judicial service commission or equivalent body that has a strong role in judicial appointments. The consultative nature of the Judicial Council established under Article 153 of the Constitution gives the president almost complete discretion as the appointing authority for the Chief Justice (CJ) and other superior court judges. Magistrates and circuit court judges are appointed by the CJ. Although the practice in recent years has been for a more regularized and merit-based process, with examinations and interviews by the Judicial Council, this is not guaranteed by any legally binding instrument. The Constitution and legislation should be amended to ensure that the system for appointment of the Chief Justice (and other superior court judges) meets the minimum threshold requirements set by the International Bar Association for the involvement of the Judicial Council. The mechanisms put in place for the removal of the CJ should also be strengthened, along the lines set for other justices, such as the establishment of a prima facie case of misconduct before the process can be initiated. Approval by Parliament of judges of the superior courts should be by a super, as opposed to a simple, majority. A comprehensive national survey on crime should be undertaken to chart the course for concrete national strategies to deal with the issue. Such a strategy should include not only increasing the number of police (which is low) and improving police performance, but also on addressing crime in the broader context of poverty and social inequality. UNICEF noted that the juvenile justice administration system has been weakened by the inadequate logistical and human resource capacity of the Department of Social Welfare. The absence of separate police cells and lack of coordination between the police and the Department of Social Welfare have led to an increase in the presence of juveniles in adult police cells at specific points in time, from 289 in 2000 to 382 by mid-2003. In addition to improved training, judicial performance could also be substantially improved by ensuring much more consistent access to up-to-date legislation and jurisprudence. The slow pace of publication of law reports has affected the ability of Page 66 of 105
judges – and other lawyers – to access interesting and precedent-setting judgments and to write expert comments and analysis on such cases and apply them in their own work. This situation has the tendency to stifle the progressive development of law in the country. The new Ghana Monthly Law Reports, so far covering only the Supreme Court and Court of Appeal, should be extended progressively to the High Court and other courts and made available in all court buildings and online. There is no annual or other systematic reporting process in which data on criminality collected by the police is published, though crime data are made available to the public upon request, and are reported intermittently in speeches by the minister of the interior or police officers. These improved data collection has not yet led to the development of a comprehensive national crime-prevention strategy. Although the Inspector General of Police (IGP) and the director-general in charge of the Criminal Investigations Department (CID) meet regularly to discuss the crime situation and plan operations, the police approach has in the main been reactive and based on the adoption of ad hoc measures. Legislative reform in relation to the police lags behind other administrative, policy and officer enhancement programmes. The primary law governing the police service, the Police Act, is a 30-year-old law that has not been amended to conform to modern policing in a democratic state. Article 200 of the1992 Constitution also provides that the police ‘shall be equipped and maintained to perform its traditional role of maintaining law and order’, rather than providing a framework aimed at protection of citizens. Recommendations – and subsequent government white papers – from the many commissions of inquiry that have reported on issues relating to policing have not resulted in legislative reform. A comprehensive legislative framework should implement proposals for the police to be subject to greater civilian oversight and more attuned to protection of citizens with full respect for the human rights guaranteed in a democracy. Although the Constitution does not recognize any traditional court institutions (with the exception of the role of the regional and national houses of chiefs in adjudicating chieftaincy disputes), chiefs’ traditional councils have nevertheless extended their jurisdiction beyond strictly chieftaincy-related matters to family and property disputes, including divorce, child custody, and land. Recognizing such important de facto jurisdiction, individual institutions such as the World Bank have supported provision of training to traditional chiefs in basic law and ADR mechanisms. There is a need for greater consultation on the role of justice mechanisms under the authority of the chiefs, in order to consider measures to capitalize on the accessibility of these mechanisms, while ensuring that they are respectful of human rights, especially in relation to gender equality.
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As per the country review report prepared by the African Peer Review Mechanism (APRM), it was recommended that Ghana should publish a time-frame for its accession to outstanding international and African treaties; as well as taking steps to improve its poor reporting record to the treaty- monitoring bodies. Future reform of the justice sector should be undertaken by adopting a holistic, system-wide approach that lays emphasis on greater integration and coordination of the roles, functions and activities of the various components of the criminal justice system, such as the Ministry of Justice and Attorney General’s Department, the Ghana Police Service, the Ghana Prisons Service, the Social Welfare Department, and the Judicial Service (judges and other court staff). The APRM country review report and programme of action for Ghana made recommendations for the extension of legal aid services, which should be implemented as a matter of urgency. Other avenues should also be explored, such as the establishment of legal aid clinics at all university law faculties and amendments to the rules governing lawyers.
V. CONCLUSION Further work will be needed across board to shape the justice system in the interests of Ghana’s new democratic dispensation. Ghana is a leader in the West Africa region, and many of its justice sector reforms underline this fact: but it is too soon for it to rest on its laurels. This audit of literature highlights areas in which further effort is needed, proposing concrete steps for reform and further action.
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6.4 BIBLIOGRAPHY
Reports
Agrast M. D. et al (2012); WORLD JUSTICE PROJECT: Rule of Law Index CDD; Afrobarometer Survey for 2005 and 2008 CHRAJ ; The State of Human Rights in Ghana Human Rights Council Working Group on the Universal Periodic Review; Draft Report of the Working Group on the Universal Periodic Review – Ghana; Fourteenth Session, Geneva, 22 October to 5 November, Human Rights Council; Report of the Working Group on the Universal Periodic Review - Ghana, 29th May, 2008; Eighth Session Mo Ibrahim Report (2012); Ibrahim Index of African Governance Shawbell Consulting(2009); Report on Research Into Identified Barriers to Access to Justice for the Poor And Vulnerable US Department of State; 2011 Country Reports on Human Rights Practices US State Of Human Right: Ghana USAID (2011); Ghana Democracy and Governance Assessment World Economic Forum; The Global Competitiveness Report (2011–2012)
Papers
E. Gyimah-Boadi, Victor Brobbey, Kojo Asante, Achieving Successful Governance In Africa: The Case of Ghana’s Commission on Human Rights and Administrative Justice, Sept. 2011 Ghana Integrity Initiative (2011); THE “VOICE OF THE PEOPLE” SURVEY: A National Survey of Corruption in Ghana Ghana Integrity Initiative, The "Voice of the People" Survey": A National Survey of Corruption in Ghana, November, 2011 Institute for Democratic Governance (IDEG, 2007); GHANA JUSTICE SECTOR AND THE RULE OF LAW: A review by AfriMAP and The Open Society Initiative for West Africa and The Institute for Democratic Governance Raymond A. Atuguba, “Administrative Law: The New Law of the Century” (Unpublished paper). Page 69 of 105
Swiss Agency for Development and Cooperation (SDC, 2008); CONCEPT PAPER: Rule of Law, Justice Sector Reforms and Development Cooperation United Nation Development Programme (UNDP); JUSTICE SECTOR FINDING: Pre- Trial in Ghana, "The Kumasi Survey"
Case Laws
Ahumah-Ocansey v Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v Attorney-General and Electoral Commission (Consolidated) [2010] SCGLR 575 and NPP v. Attorney-General (31st December case) [1993-94] GLR 35. Albert Anthony Ampong and Anim Adoom v. Attorney-General, Suit No. HRCM 63/10, 8th November, 2010 (Unreported).
Websites
http://www.state.gov/j/drl/rls/hrrpt/2010/af/154349.htm http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx,
http://www.moibrahimfoundation.org/downloads/SRL-indicators.pdf, http://www.moibrahimfoundation.org/downloads/PHR-indicators.pdf.
http://www.moibrahimfoundation.org/downloads/2012-IIAG-data-report.pdf, http://www.modernghana.com/news/292468/1/judges-reply-kwabena-adjei.html.
http://worldjusticeproject.org/rule-of-law-index http://eadi.org/gc2011/brobbey-784.pdf, http://ghanadistricts.com/home/?_=42&sa=3640&ssa=898
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6.5 Survey Instrument
Ministry of Justice and Attorney General’s Department in Collaboration with United Nations Development Programme (UNDP), Judicial Service & Legal Aid Board Questionnaire (Regional Survey) Baseline Survey on Justice Sector of Ghana A. PART ONE RESPONDENT’S INFORMATION NAME (Optional) AGE GENDER OCCUPATION LEVEL OF EDUCATION COMMUNITY REGION
B. PART TWO: KNOWLEDGE/EXPERIENCE OF THE JUSTICE DELIVERY SYSTEM(FORMAL AND INFORMAL)
1. Do you have any knowledge or experience of the formal justice system in Ghana? YES NO
2. Do you understand the processes or proceedings in the formal justice system? Briefly explain. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
3. Have you ever heard of or experienced any challenges with the formal justice delivery system? If yes, briefly explain. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
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……………………………………………………………………………………………… ………………………………………………………………………………………………
4. From your knowledge or experience, how would you rate the formal justice delivery system? (tick where appropriate)
Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
5. Do you have any knowledge or experience of the informal justice system in Ghana? YES NO
6. Do you understand the processes or proceedings in the informal justice system? Briefly explain. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
7. Have you ever heard of or experienced challenges with the informal justice delivery system? YES NO 8. If yes, briefly explain. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
9. From your knowledge or experience, how would you rate the informal justice delivery system?
Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent
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4. Professional 5. Transparent 6. Corrupt
10. Have you ever engaged the services of a lawyer? YES NO
11. Why did you/have you never engaged the services of a lawyer?
……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
12. From your knowledge or experience, how would you rate the services you received from the lawyer?
Rate Very High High Moderate Low Very Low
1. Fair
2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
13. Do you have any knowledge or experience of any alternative dispute resolution methods? YES NO 14. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
15. Do you have any knowledge or experience of Legal Aid in Ghana? YES NO
16. Please explain your answer.
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……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
17. How would you rate the Legal Aid Scheme?( tick where appropriate)
Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
18. Have you ever experienced the services of any of the following officials?(tick where appropriate)
Office Yes No 1. Court/Judge 2. Prosecutors 3. Police 4. Prisons Officials 5. Chief/Odikro etc 6. Alternative Dispute Resolution Practitioner 7. Legal Aid Officer 8. Commission on Human Rights and Administrative Justice (CHRAJ) Officer 9. Other
19. If yes, how would you rate the service you received? ( tick where appropriate)
Court/Judge Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt 7.
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Prosecutors Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Police Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Prison Officers Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Chief/Odikro Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Alternative Dispute Resolution Practitioner Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Legal Aid Officer
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Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Commission on Human Rights and Administrative Justice (CHRAJ) Officer Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
Other Rate Very High High Moderate Low Very Low 1. Fair 2. Fast 3. Independent 4. Professional 5. Transparent 6. Corrupt
20. Were you asked to pay any bribe/unofficial payment for the services rendered? YES NO
21. Which official demanded the bribe/unofficial payment? ……………………
22. Have you ever been asked to pay a bribe/unofficial payment to any other official in the justice sector? YES NO
23. Which official demanded the bribe/unofficial payment? ( tick where appropriate)
Official Tick 1. Judicial Officer
2. Police Officer 3. Prisons Official 4. Prosecutor 5. Other specify
24. How many times have you been asked to pay a bribe? ......
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25. Did you report this to anyone in authority? YES NO
26. Please explain. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
27. If no, why did you not report it? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
28. Do you think a person’s sex (Male/Female) is a barrier to accessing justice in Ghana? YES NO 29. If yes, how? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
30. Do you think the justice delivery system favors men over women or women over men? YES NO
31. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
32. Are you aware of your human rights, freedoms and responsibilities? YES NO
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33. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
34. Have you experienced any human rights violations in the past two years? YES NO
35. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
36. Did you report the human right violation to any person/authority? YES NO
37. If yes, which authority did you report the violation to? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
38. If no, why did you not report it? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
39. Have you ever been detained by the Police or any other security agency? YES NO
40. If yes, did you have access to a lawyer? YES NO
41. Why were you detained?
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……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
42. How long were you in detention before you were bailed, cautioned and discharged? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
43. If you taken to court, were you detained in Police custody before you were taken to court? YES NO
44. If yes, for how long were you held in detention?......
45. Were you remanded in prison custody by the court? YES NO
46. If yes, for how long were you in prison/remand custody? …………….
C. PART THREE: ATTITUDE OF CITIZENS TO THE JUSTICE DELIVERY SYSTEM(FORMAL AND INFORMAL)
47. If you have a dispute/problem/case, where would you prefer to go for redress? 1. The Court 2. Police Station 3. Chief’s Palace 4. Other (specify)
48. Explain why you made the choice above? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
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49. What factor(s) would prevent you from using or recommending the use of the formal justice delivery system in Ghana? (tick where appropriate)
Factors Yes No 1. Availability 2. Cost 3. Delay in proceedings 4. Location 5. Procedural Technicalities 6. Other(specify)
50. In your opinion, what factor(s) would prevent you from using or recommending the use of the informal justice delivery system in Ghana? (tick where appropriate) Factors Yes No 1. Availability 2. Cost 3. Delay in proceedings 4. Location 5. Procedural irregularities 6. Other (Specify)
51. In your opinion, what factor(s) would prevent you from using or recommending the use of the services of a lawyer? (tick where appropriate)
Factors Yes No 1. Availability 2. Cost 3. Delay in proceedings 4. Location 5. Other (specify)
52. What factor(s) would prevent you from using or recommending the use of ADR services? (tick where appropriate)
Factors Yes No 6. Availability 7. Cost 8. Delay in proceedings 9. Location 10. Other (specify)
53. What factor(s) would prevent you from using or recommending the use of Legal Aid services? (tick where appropriate) Page 80 of 105
Factors Yes No 11. Availability 12. Cost 13. Delay in proceedings 14. Location 15. Other (specify)
54. Do you perceive the justice sector to be independent? YES NO
55. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
56. Do you perceive the justice sector to be corrupt? YES NO
57. Explain your answer. ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
D. PART FOUR: REFORM PROPOSALS
58. What proposals do you think would enhance access to the formal justice delivery system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
59. What proposals do you think would enhance the quality of the formal justice delivery system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
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……………………………………………………………………………………………… ………………………………………………………………………………………………
60. What proposals do you think would enhance access to the informal justice delivery system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
61. What proposals do you think would enhance the quality of the informal justice delivery system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
62. What proposals do you think would enhance access to the Alternative Dispute Resolution system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
63. What proposals do you think would enhance the quality of the Alternative Dispute Resolution system? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
64. What proposals do you think would enhance access to the Legal Aid Scheme in Ghana? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
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……………………………………………………………………………………………… ………………………………………………………………………………………………
65. What proposals do you think would enhance the quality of the Legal Aid Scheme in Ghana? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
66. Is there any other information relating to the formal justice system that you wish to share with us? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
67. Is there any other information relating to the informal justice system that you wish to share with us? ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ……………………………………………………………………………………………… ………………………………………………………………………………………………
Thank You
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6.6 Interview Guide Ministry of Justice and Attorney General’s Department in Collaboration with United Nations Development Programme (UNDP), Judicial Service & Legal Aid Board Questionnaire (In depth Interview) Baseline Survey on Justice Sector of Ghana
I. BACKGROUND INFORMATION
NAME OF ORGANIZATION NAME OF RESPONDENT (Optional)* POSITION OF RESPONDENT CONTACT NUMBERS EMAIL ADDRESS
1. What is the mandate of your organization?
2. What is the main line of activity of your organization?
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3. Can you provide us with a list of institutions with which your organization interacts in the discharge of its mandate?
4. What is the nature of the interaction between your organization and these institutions in the justice sector?
5. How can the level of interaction between your organization and other institutions in the justice sector be improved?
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6. What is the total number of staff in your organization disaggregated by gender?
7. Does your organization have a strategic plan?
8. If yes, was there input from other stakeholders in the justice sector in the preparation of the strategic plan?
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9. What was your annual budget per year for the last three years? 2010 2011 2012
II. GENERAL VIEWS ON JUSTICE SECTOR
A. Access to Justice 10. In your opinion, how accessible is the justice delivery system in Ghana?
11. What do you perceive as some of the major barriers to access to justice in Ghana?
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12. What can be done to remove these barriers?
13. Do you think the current structure of the formal justice delivery system impedes access to justice?
14. In your view, what can we do to improve access to formal justice?
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15. In your opinion, what can we do improve the informal justice system?
16. In your opinion, do you think a person’s sex (Male/Female) is a barrier to accessing justice in Ghana?
17. In your opinion, do you think the justice delivery system favors men over women or women over men?
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18. In your view, what inter-linkages can be created between your organization and other institutions in the justice sector to improve access to justice?
19. In your view, what reforms can be undertaken to improve access to formal justice?
20. In your view, what reforms can be undertaken to improve access to informal justice?
B. Judicial Independence 21. What are your perceptions on judicial independence?
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22. In your view, what reforms can be undertaken to improve judicial independence?
C. Perception of Judicial Corruption 23. What are your perceptions on the issue of judicial corruption?
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24. In your view, what are the causes of the high public perception of corruption in the judiciary?
25. In your view, how much of a problem does the perception of judicial corruption pose to access to justice?
26. In your opinion, how can we eliminate the problem/perception of judicial corruption?
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III. INSTITUTIONAL SUCCESSES AND CHALLENGES
27. Is the legislative and Institutional architecture of your organization sufficient for an effective discharge of your mandate?
28. What are some of your successes in the last 3-5 years?
29. What are some of the challenges you have faced in the last 3-5 years?
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30. How did you overcome the above challenges?
31. Are there any planned legislative or institutional reforms aimed at enhancing the discharge of your mandate?
IV. REFORM PROPOSALS
32. Do you have any reform proposals that would enhance the operations of your organization?
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33. Do you have any other information you wish to share with us on the justice sector in Ghana?
Thank You.
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6.7 List of Interviewees (Institutions)
NATIONAL STAKEHOLDER INTERVIEWEES
NAME INSTITUTION POSITION
Mr. Ebenezer Addo Ministry of Justice and Attorney Director , Policy Planning, Monitoring and General’s Department Evaluation
Anonymous Judicial Service Chief Registrar of Courts
Mr. James Mensah Judicial Service Registrar of the Supreme Court
Mrs. Ramatu O. Ammah Judicial Service Registrar Court of Appeal (Civil Division)
Mr. Solomon Botchway Judicial Service Registrar High Court
Judicial Service Reforms and Projects
Mr. Alex Nartey Judicial Service (Alternative Dispute National Coordinator of ADR Resolution Unit )
Mr. Joseph Whittal Commission for Human Rights and Deputy Commissioner Administrative Justice
Alhaji Al-hassan Yayaha Seini Legal Aid Scheme Director
Prof. John Nabila National House of Chiefs President
Supt. Curtbert Anapengo Ghana Police Service- Criminal Director, Narcotics Investigations Department
ACP Elizabeth Dassah Ghana Police Service-Domestic Director, National Coordination Violence and Victims Support Unit
Mad. Josephine Fredua Ghana Prisons Service Deputy Director of Prisons Agyeman Supt. Collins Twum - Barimah Ghana Prisons Service 2nd in Command James Fort Prisons
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Mr. Samuel Akuamoah National Commission on Civic Director of Programmes Education
Mr. Mottey Biadela Akpadzi Economic and Organized Crime Director Office
REGIONAL STAKEHOLDER LIST INTERVIEWEES
ASHANTI REGION
NAME INSTITUION POSITION
Anonymous Legal Aid Unknown
Anonymous Court of Appeal registry Court Registrar
Mr. Robert Awolugutu Ghana Prisons Service Deputy Regional Commander
Mr. Kingsley Osei Asante Regional House of Chiefs Regional Registrar
BRONG AHAFO REGION
NAME INSTITUTION POSITION
Anonymous B.A Regional House of Chiefs Unknown
Mr. Millanus Nateng Judicial Service High Court Registrar
Anonymous CHRAJ Senior Principal Investigator
CENTRAL REGION
NAME INSTITUTION POSITION
Anonymous CHRAJ Principal Registrar
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Anonymous Regional DOVVSU Deputy Coordinator
Anonymous Judicial Service High Court Court Registrar
Anonymous Police Service Unknown
Anonymous Attorney Generals’ State Attorney Department
EASTERN REGION
NAME INSTITUTION POSITION
Anonymous Attorney Generals’ Unknown Department
Anonymous Regional DOVVSU Deputy Co-ordinator
Anonymous Police Service Crime Officer
Mr. Donald Osei Ampofo Legal Aid Assistant ADR Officer
NORTHERN REGION
NAME INSTITUTION POSITION
Anonymous Attorney General’s Unknown Department
Anonymous Ghana Police Service Unknown
Anonymous Legal Aid ADR Officer/Administrator
Anonymous Court Registry High Court Registrar
Anonymous Regional House of Chiefs Registrar to the Judicial Committee
Mr. N. Adam Baam CHRAJ Anti-Corruption Focal Person
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UPPER EAST REGION
NAME INSTITUTION POSITION
Mr. R.H Akatti Regional House of Chiefs Regional Registrar
Anonymous ADR office ADR Officer
Anonymous CHRAJ Regional director
Anonymous Attorney Generals’ Department
Anonymous Ghana Bar Association President
Mr. Obiri Charles Police Service Staff Officer
Mr. Jonah M. Bazor Aboni Legal Aid Principal Mediation Specialist
UPPER WEST REGION
NAME INSTITUTION POSITION
Mr.K.D Adei Acheampong Police Service Regional Police Commander
Mr. Emmanuel Abayik Prisons Service Assistant Chief Officer
Mr. Adams Mumuni CHRAJ Principal Investigator
VOLTA REGION
NAME INSTIUTION POSITION
Mr. Joseph Nuertey CHRAJ Regional Director
WESTERN REGION
NAME INSTITUTION POSITION
Anonymous Attorney Generals’ Chief State Attorney
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department
Anonymous Judicial Service Deputy Chief Registrar
Anonymous DOVVSU Station Officer
Anonymous Police Service Unknown
Anonymous CHRAJ Administrator and Regional Director
Mrs. Ellen Adwoa Sweetie Legal Aid Assistant Director Sowa
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6.8 Research Team
NAME POSITION
Raymond Atuguba (Dr) Team Leader/Principal Researcher
Julius Fobil (Dr) Lead Statistician
Rowland Atta-Kesson Senior Researcher
Clement Kojo Akapame Senior Researcher
Mawuse Oliver Vormawor Researcher
Osman Alhassan Researcher
Joseph Darko Assistant Statistician
Linda Afrani Research Assistant
Ama Hagan Research Assistant
Michael Karikari Research Assistant
Sophia Bedie Research Assistant
George Asare-Afriyie Research Assistant
Kwadwo Ohene Boakye Research Assistant
Joe Slovo-Tia Research Assistant
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Tramaine Poku Research Assistant
Monica Wayoe-Anokye Support Staff
Abigail Baddoo Support Staff
i The rule of law indicator on the Ibrahim Index comprises variables including: a) Judicial Process - the extent to which the judicial process or courts are subject to interference or distortion by interest groups; b) Judicial Independence - the extent to which the courts can interpret and review norms and pursue their own reasoning, free from the influence of rulers or powerful groups and individuals; c) Transfers of Power - clarity, establishment and acceptance of constitutional mechanisms for the orderly transfer of power from one administration to the next; and d) Property Rights - including the extent to which private economic activity is facilitated by an effective legal system and rule-based governance structure in which property and contract rights are reliably respected and enforced, the degree to which property rights are respected and enforce and the ability of individuals to accumulate private property, secured by clear laws that are fully enforced including the independence of the judiciary, including the extent of corruption, and the ability to enforce contract. See http://www.moibrahimfoundation.org/downloads/SRL-indicators.pdf, retrieved on Dec. 1, 2012. ii The variables making the transparency indicator include: a) Accountability, Transparency and Corruption in the Public Sector - accountability of the executive for use of funds and results of actions by the electorate, legislature and judiciary and extent to which public employees within the executive are accountable for use of resources, administrative decisions and results; b) Accountability, Transparency and Corruption in Rural Areas - local level accountability of the executive and legislature, including public employees and elected officials, to low income rural populations for use of funds and results of actions; c) Corruption and Bureaucracy - intrusiveness of bureaucracy, amount of red tape likely to be encountered and likelihood of experiencing corruption among officials and other groups (EA); and d) Corruption in Government and Public Officials - level of vested cronyism among, and corruption of, public officials (both elected and appointed). See http://www.moibrahimfoundation.org/downloads/SRL-indicators.pdf, retrieved on Dec. 1, 2012. iii See http://worldjusticeproject.org/rule-of-law-index, retrieved on Dec. 1, 2012. iv http://www.moibrahimfoundation.org/downloads/2012-IIAG-data-report.pdf, last visited on Nov. 11, 2012. v The rights sub-category comprise indicators such us: 1) freedom and fairness of executive elections across the campaign period and all aspects of the election process, including extent of opposition participation, adherence to electoral procedures, citizens’ access to information, levels of violence, acceptance of results and turnover of power; 3) availability of relevant information for citizens and their freedom to participate in the political process; 4) extent to which citizens enjoy freedom of political choice, and the legal right and effective capacity to change laws and governing bodies through free and fair elections; and 4) extent to which democratically elected rulers have effective power to govern or to which there are veto powers and political enclaves. See http://www.moibrahimfoundation.org/downloads/PHR-indicators.pdf. vi Indicators here include: 1) ratification of core international human rights conventions and whether the relevant reports to the appropriate treaty bodies that monitor implementation of the convention have been submitted; 2) likelihood of a state being accused of serious human rights violations; 3) freedom to participate in the political process including the right to vote freely for distinct alternatives in legitimate elections, compete for public office, join political parties and organisations, and elect accountable representatives; 4) extent to which workers enjoy internationally recognised rights at work, including freedom of association, the right to bargain collectively, a minimum age of employment and acceptable conditions with regards to minimum wages, hours of work, and occupational safety and health; 5) extent to which citizens, organisations and mass media can express opinions Page 102 of 105
freely and extent to which such freedom of speech and of and press are affected by government censorship, including ownership of media outlets; and 6) freedom of association and assembly. vii Indicators here include: 1) whether a country has enacted, and enforces, laws and policies that promote equal access for men and women to human capital development opportunities, and productive and economic resources; and give men and women equal status and protection under the law; 2) ratio of girls to boys enrolled at primary and secondary levels in public and private schools; 3) female population that is economically active; 4) extent to which laws, policies, institutions and practices promote equal representation of men and women in local decision-making; 5) parliamentary seats held by women; 6) extent to which women enjoy internationally recognised rights at work; 6) extent to which women enjoy internationally recognised rights to participate freely in the political process; and 7) existence of laws against domestic violence, sexual assault or rape, and sexual harassment. viii http://www.moibrahimfoundation.org/downloads/2012-IIAG-data-report.pdf, last visited on Nov. 11, 2012. ix Raymond A. Atuguba, “Administrative Law: The New Law of the Century” (Unpublished paper). x See for instance Ahumah-Ocansey v Electoral Commission; Centre for Human Rights and Civil Liberties (CHURCIL) v Attorney-General and Electoral Commission (Consolidated) [2010] SCGLR 575 and NPP v. Attorney-General (31st December case) [1993-94] GLR 35. xi Albert Anthony Ampong and Anim Adoom v. Attorney-General, Suit No. HRCM 63/10, 8th November, 2010 (Unreported). xii Awuni vrs West African Examinations Council [2003-2004] 1 SCGLR 471. Article 23 of the Constitution provides that " Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal." Article 296 on the other hand provides that "Where in this Constitution or in any other law discretionary power is vested in any person or authority, (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law; and (c) where the person or authority is not a Justice or other judicial officer, there shall be published by constitutional instrument or statutory instrument, Regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power." xiii Human Rights Council Working Group on the Universal Periodic Review, Fourteenth Session, Geneva, 22 October to 5 November, Summary prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 - Ghana, A/HRC/WG.6/14/GHA/3, p 6, available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, last visited on Nov. 11, 2012. xiv Human Rights Council Working Group on the Universal Periodic Review, Fourteenth Session, Geneva, 22 October to 5 November, Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21- Ghana, A/HRC/WG.6/14/GHA/2, p 5, available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, last visited on Nov. 11, 2012. xv Human Rights Council Working Group on the Universal Periodic Review, Fourteenth Session, Geneva, 22 October to 5 November, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21- Ghana, A/HRC/WG.6/14/GHA/1, p 3, available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, last visited on Nov. 11, 2012. xvi Note 18 supra, page 5. xvii Note 20, supra, p. 6. xviii No winner emerged after the December 7, 2008 election and the December 28, 2012 round-off election between the first two candidates of the former. The eventual winner won by 0.46% of valid votes cast, only after election in the Tein Constituency on January 3, 2009, the delay of which was due to logistical problems.
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xix Human Rights Council, Eighth Session, Report of the Working Group on the Universal Periodic Review - Ghana, 29th May, 2008, A/HRC/8/36. xx See Human Rights Council Working Group on the Universal Periodic Review, Fourteenth Session, Geneva, 22 October to 5 November, Draft Report of the Working Group on the Universal Periodic Review - Ghana, A/HRC/WG.6/14/L.4 available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, last visited on Nov. 11, 2012. xxi See the US State Department assessment of Ghana human rights situation http://www.state.gov/j/drl/rls/hrrpt/2010/af/154349.htm , last visited on Nov. 11, 2012. See also the State of Human Rights in Ghana by CHRAJ; and Human Rights Council Working Group on the Universal Periodic Review, Fourteenth Session, Geneva, 22 October to 5 November, Draft Report of the Working Group on the Universal Periodic Review - Ghana, A/HRC/WG.6/14/L.4 available at http://www.ohchr.org/EN/HRBodies/UPR/Pages/GHSession14.aspx, last visited on Nov. 11, 2012. xxii Note 8, supra. xxiii Along with Electoral Commission, CHRAJ is ranked by Afrobarometer surveys as most trusted governmental institution in Ghana. See E. Gyimah-Boadi, Victor Brobbey, Kojo Asante, Achieving Successful Governance In Africa: The Case of Ghana’s Commission on Human Rights and Administrative Justice, Sept. 2011, available at http://eadi.org/gc2011/brobbey-784.pdf, retrieved on Dec. 1, 2012. xxiv ShawbellConsulting, Report on the Research into Indentified Barriers to Access to Justice for the Poor and Vulnerable, October, 2009 xxv See World Bank, Uses and Users of Justice in Africa: The Case of Ghana's Specialized Courts, 2010. xxvi See CDD, Afrobarometer Surver for 2005 and 2008; and Ghana Integrity Initiative, The "Voice of the People" Survey": A National Survey of Corruption in Ghana, November, 2011. The perception of judicial corruption in recent times has led to palpable tension between some political forces and the judiciary, amidst threats to "clean" up the judiciary if the Chief Justice does not "purge" and "cleanse" it. See Nathan Gadugah, Under fire NDC chair says his comments sought to strengthen the judiciary, Joy Online, Sept. 14, 2011, and Nathan Gadugah, Judges reply Kwabena Adjei; say his remarks are insensitive and unfortunate, Joy Online, Sept. 14, 2011, and Daily Guide, Judges Reply Kwabena Adjei, available at http://www.modernghana.com/news/292468/1/judges-reply-kwabena- adjei.html. xxvii AfriMAP, the Open Society Initiative for West Africa, and the Institute for Democratic Governance, Ghana: Justice Sector and the Rule of Law,( OSIWA: 2007) xxviii Note 8, supra. xxix Id. xxx Id. xxxi Id. xxxii Note 10, supra. xxxiii See note 10, supra, where it was stated that "[t]he 2005/2006 Judicial Service Annual Report indicates that soon after this Unit was set up in 2005, a total number of 635 petitions were received. Of this figure 107 were disposed of, 186 were being investigated at the time of the said report, and 339 petitions were awaiting investigations. The 107 cases disposed of included 13 complaints concerning delays and irregularities in the delivery of judgments; 19 complaints against courts/judges/magistrates in terms of frequent adjournments, delays of cases and dissatisfaction with court judgments, orders and procedures; and 21 complaints against judicial staff in the context of bribery, forgery, service of processes, Receiverships and Managerships, compilation of appeal records and records of proceedings, execution, and estate matters." xxxiv Note 10, supra,
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