Justice for all: Reforms continue to overhaul the national court system

 

Although there is always scope for improvement, Ghana’s judicial system – particularly as it relates to business activities – is one of the more effective and transparent on the continent. This is due in large part to a series of targeted changes that have sought to strengthen the judiciary’s independence, roll out new channels of dispute resolution, and the improvement the enforcement of decisions. Reform of the justice system has been an ongoing process since the re-establishment of civilian rule, and especially following the establishment of the Judicial Reforms and Projects Directorate (JRPD) under Ghana’s Judicial Service in 2004. While significant strides have been made with the help of several key international development partners, the country’s judicial system still faces numerous hurdles, including petty corruption, a lack of coordination between the main judicial institutions and a growing backlog of cases. Even so, Ghana’s justice system remains fairly independent from political interference, particularly in a regional context.

RANKINGS: According to the World Economic Forum’s “Global Competitiveness Report 2012-13”, Ghana ranks 58th out of 142 nations for judicial independence, a relatively high mark compared to neighbouring countries like Nigeria (73), Benin (101) and Côte d’Ivoire (137). The efficiency of the national court system ranked even better in terms of settling disputes, placing 50th. This could be improved further as the JRPD works to establish more alternative dispute resolution channels. Judges in Ghana are comparatively well trained and benefit from a number of resources to improve the ease of the transition from bar to bench. Originally, as is the norm in Common Law jurisdictions, judges in Ghana received no additional training or education when nominated for the bench, but in the 1970s and 1980s that began to change. The country now has a specific Judicial Training Institute, which provides not just orientation courses for new judges but also continuing education on new topics, such as alternative dispute resolution, and uniform codes of practice on specific processes.

COMMERCIAL COURT: The country also now has a dedicated commercial court, the Commercial Division of the High Court, which was inaugurated in 2005 and which hears everything ranging from contract enforcement to debt restructuring and intellectual property issues. The court, which has national jurisdiction, consists of six judges and 60 staff and has something of a reputation for robust time management. Adjournments, for example, are limited to a maximum of 72 hours. Pre-trial conferences are also required within 30 days of submitting written arguments. While statistics are limited, according to some sources, such as the World Bank, in the court’s early years more than 20% of the cases referred to it were resolved in pre-trial mediation. Arbitration has traditionally been less common, with some estimates pegging it in the single digits each year.

ENFORCING CONTRACTS: The country’s contract enforcement mechanisms are also fairly strong, particularly for an emerging market. The World Bank ranks it favourably, at 48th out of 185 countries, higher than all other African states (barring Tanzania, Rwanda, Cape Verde and Namibia) and besting a number of Organisation for Economic Cooperation and Development states, including Canada, Ireland and Spain. It takes on average 487 days to resolve a contract dispute (162 days less than the sub-Saharan average), although the filing, trial and judgment portions of the process are usually resolved within less than six months. The costs – including the expenses incurred by engaging legal counsel, court filing fees and the subsequent measures required for enforcement of the judgment – come out to less than a quarter of the cost of the average claim and more than 50% lower than the sub-Saharan average.

There are, however, several areas where implementing reforms could help create a more equitable judicial system and improve general governance. For example, the court’s ability to challenge government regulation ranked 78th, while the country also ranked 115th in terms of irregular payments and bribes, according to the World Bank. Furthermore, corruption was found to be corporates’ second-highest concern for doing business in the country.

PARTNERS IN PROGRESS: Ghana currently has several global development partners working with the judiciary to improve efficiency, transparency and equitability in the court system. These partners include the World Bank, UN Development Programme (UNDP), Danish International Development Agency (DANIDA) and the UK Embassy’s Department for International Development.

The UNDP’s work to improve Ghanaian justice falls under the broader framework of the UN’s Development Assistance Framework 2012-16. Some of the goals outlined by the programme include the creation of a national policy on children’s access to justice in line with international standards by 2015, and an alternative community-based services programme as a primary referral for children in conflict with the law by 2016, which could have tangible effects on the country’s already-overcrowded prisons. Other partners have been involved in developing strategic policies to increase judicial access for other vulnerable groups. The creation and expansion of a specialised court system for domestic violence, for example, aims to increase gender equality in the judicial system and society as a whole.

LAND ADMINISTRATION: The World Bank has been working to reform land administration procedures via the Ghana Land Administration Project (LAP), an eight-year, $48m initiative. There have been four traditional categories of land in Ghana – government, vested, private and customary, which is defined as being under either historic ownership or practical (known as allodial) ownership. Reforming and modernising Ghana’s land administration system is a long-term objective for the country, given that over 80% of the national territory is considered to be customary land, largely under the ownership of traditional chiefs or in a few select cases, families, many of whom remain in a struggle with the government over land administration, according to the World Bank’s 2013 report on the LAP.

Some of the LAP results reported by the World Bank yielded varied results, including legislation allowing for the merger of four of the country’s six land agencies into the National Land Commission. While the World Bank noted that the merger produced little change in the quality of service offered to citizens, the commission was able to open new deeds offices in eight regions. This, in turn, led to reduced processing times as well as an increase in land registration because citizens did not have to travel as far to register land holdings. Meanwhile, the value of land in the country continues to rise, placing more significance on the importance of land reform in the long term. Increasing land surveys, further incorporating Customary Land Secretariats and the continued expansion of deeds offices around the country are all vital aspects towards securing an equitable land administration and resolving disputes.

ALTERNATIVE DISPUTE RESOLUTION: DANIDA’s work with the Judicial Service has been in support of the Court Connected Alternative Dispute Resolution Programme (ADRP). The ADRP was created to provide both parties of pending cases the opportunity to settle affairs outside the courts, through mediation. With the court system’s huge backlog of cases, the advent of ADR has helped relieve the judicial system of some of the burden, adjudicating 11,524 cases out of a possible 22,004 from 2007 to 2012, according to the Judicial Service. To date, 180 mediators have been trained and are serving 47 district and circuit courts around the country, according to a local press report, with funding for much of this service being provided by DANIDA.

The impetus for ADR in Ghana dates back to the late 1990s when an increasingly congested court system, governed in part by outdated legislation from the 1960s, prompted the government to explore new channels of settling commercial and corporate disputes. In 2010 a new law was passed to outline specific measures for both arbitration and ADR, although it still leaves Ghana’s legal framework for dispute settlement somewhat unaligned with many of its Francophone neighbours.

French-speaking civil law countries in West and Central Africa have traditionally used precepts and practices that are in accordance with the Organisation for the Harmonisation of Business Law in Africa, which has helped with standardising a set of laws and institutions for the 17 African member countries since its creation in 1993.

APPEALS REPRODUCTION: Another project aimed at reducing the high volume of cases in the court system is the Court of Appeals. Dubbed the “Reproduction of Appeals Records”, it is meant to expedite reproduction of records in all trial and appellate courts. But as the Judicial Service does not have the logistical means to keep pace with the rising numbers of complicated appeals, the appeal records service was essentially privatised, with the remit handed to three firms in 2011. This step was initially taken as a pilot project in Accra, with plans for national implementation expected in the future.

INCREASING TRANSPARENCY: Though e-governence is currently limited in Ghana, it has been increasing at a rapid pace in recent years. Under the umbrella of the eGhana Project, the Ministry of Communications, along with the National Information Technology Agency, is working with the Ministry of Justice on what is known as the eJustice project. The $24m World Bank-funded project began in February 2012 and in part aims to overhaul existing court automation programmes with the overall goal of “improving the effectiveness and efficiency of justice delivery”, according to the Judicial Service.

The first phase of the project includes a pilot programme run by international consulting outfit Leading Associates, which is currently under way at the head office of the Judicial Service, as well as all of the municipal courts in the immediate vicinity. The second phase of the initiative is set to introduce the Electronic Case Management System, which is referred to as eCMS, on a national level.

Programmes like eJustice and the ADR are designed help alleviate some of the pressure on the justice system in the short to medium term, while other projects, such as land reform, will clearly need to be tackled over longer periods of time. However, increased efficiency and transparency within the court system is but one aspect needed to improve the country’s judicial framework. Overcrowded prisons and corruption in the police force also present significant obstacles to a free and fair justice system. The pace of judicial reform so far has been relatively steady and should remain so for the near future, which bodes well for the outstanding issues.

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