I confess I am trying to provoke a needed conversation, rather than close it. This conversation needs many more actors than just one person expressing his thoughts.
Yoni Kulendi once stated emphatically, and with rhetorical elegance, that Supreme Court judges do not make law. But was that the whole story?
The debates that reside in the arena of legal technicalities are out of my reach and professional competence.
Yet, a citizen has a right to examine the philosophical realities and empirical facts that influence governance, however we agree that should be defined. And I intend to use mine, in unfettered pursuit of freedom and justice.
Judicial interpretation is, necessarily, a driver of the evolution of laws. Supervisory functions of the superior courts can have the same effect. The appellate role of the apex court eventually has the effect of clarifying what is law.
Therefore, while rhetorical convenience favours neat Cartesian boxes into which powers are separated, placed, and hermetically sealed; real life is never as neat and mechanistic.
Why are we institutionally squeamish about acknowledging this?
There are interstitial spaces that need to be illuminated or filled. Just as there are always public policy considerations to be made. Or else harmony in society is impossible.
A historical materialist examining the facts, it seems to me, can reach no other conclusion than that judges do make law, especially on the apex court. I have no doubt that the judicial process in Ghana will benefit from major and robust transdisciplinary challenge and examination.
Ultimately, they decide which laws passed, even by parliament, are constitutional.
It sounded like political blasphemy when I first read Deng Xiaoping’s rejection of the idealistic application of separation of powers in governance. But I now understand his points better. On another occasion I can more comprehensively explain what seems like iconoclastic views.
The development effort, when it is determined and serious, needs focused cooperation – with the required safeguards – to deliver improvements in wellbeing at scale.
Realistically, this must be done with an organic interplay, in an institutional format that retains sufficient role clarity, and therefore secures governance.
The three branches of government are not completely immiscible liquids. Whatever we say about rigid separation of powers it is philosophically escapist and timorous to deny this.
It has some real life relevance, but separation of powers cannot have an infinite runway on which to taxi. Especially if it has the effect of constricting judicial efforts to secure justice.
Our performative pseudo-religious reverence for legal technicalities, in Ghana, has closed too many doors of honest challenges to the end-to-end judicial process.
We must discuss this matter more courageously, realistically, holistically and clearly. Our society can only be better for it.
If neoliberal economics is suffocating us in development, it seems to me that we are blindly subscribing to some neoliberal legal adjunct. It is a road that can deliver ornamental technicalities of legal science, but very little true justice for the people.
A supreme court cannot have boundless de jure powers, that is not in reasonable doubt. But it also needs freedom to manoeuvre, ethically and legally. It should not be an immovable crystalline structure. For what it tends must ultimately deliver justice in an organic society. But old habits die hard, especially in conservative institutions.
These are de facto realities that stare us in the face, as we climb the mountain of governance to secure true development.
If there was a Kulendi view, too restrictive to my mind, there is a Date-Bah school, which I am now persuaded cannot and should not be completely ignored.
The Supreme Court is not rigidly bound by even its own precedents. To me, it does functionally participate in the broad processes of making law.
Let the conversation, or debate, or even quarrel, happen; yea, though the heavens fall. Friction precedes productive and progressive construction, in many useful endeavours.
It will take a whole interdisciplinary paper to make my arguments fully. But this is a debate that must be had, in the interest of society. We cannot avoid it.
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