Redundant Tribunals under Ghana’s 1992 constitutional democracy: ‘Legal non grata’ or “regime effect”?
In fact Article 126(1)(a) of the 1992 Constitution ranks the High Court at the same level as the Regional Tribunal and both of them are part of the Superior Courts of Ghana
The word “Tribunal” may be strange to the millennials but for the older generation of Ghanaians who experienced or witnessed military regimes, the word gives them several unending tales.
In fact Article 126(1)(a) of the 1992 Constitution ranks the High Court at the same level as the Regional Tribunal and both of them are part of the Superior Courts of Ghana. Article 142 of the 1992 Constitution of Ghana explicitly states the composition of Regional Tribunals, their jurisdiction, and qualification of its chairmen. The said provision reads:
1. There shall be established in each region of Ghana such Regional Tribunals as the Chief Justice may determine.
2. A Regional Tribunal shall consist of
a. the Chief Justice;
b. one Chairman; and
c. such members who may or may not be lawyers shall be designated by the Chief Justice to sit as panel members of a Regional Tribunal and for such period as shall be specified in writing by the Chief Justice.
3. A Regional Tribunal shall be duly constituted by a panel consisting of the Chairman and not less than two other panel members.
4. A person shall not be appointed to be a Chairman of a Regional Tribunal unless he is qualified to be appointed a Justice of the High Court.
5. A panel member of a Regional Tribunal shall be a person of high moral character and proven integrity.
Thus the Tribunal Court concept is engraved in our current constitutional framework.
The History of Tribunal Courts is linked to the Provisional National Defence Council (PNDC). The PNDC in 1982 created special criminal courts known as Public Tribunals to adjudicate criminal matters concurrently with the established courts. Public Tribunals were an important component in the PNDC’s ‘house cleaning’ of Ghanaian society.
These tribunals did not replace the regular courts but were however not run by technical rules which had in the past allowed ‘criminals’ to be set free according to the regime. Particularly, Tribunals were tasked to deal with the special offences specified in the Criminal Code of 1960 as well as offences arising from the violation of customs and excise laws, income tax avoidance, narcotics use, and trafficking and any other offences involving serious economic fraud and loss of state lands or property.
The various Magistrates Courts that had existed in the past were abolished and Circuit Courts, Circuit Tribunals, and Community Tribunals were established in their place.
The Circuit Courts were given original jurisdiction in primarily civil matters where the amount in dispute was not more than 10 million cedis. They could exercise any other jurisdiction and in the early period of the restructuring, they exercised criminal jurisdiction in places where there were no tribunals.
When Ghana became the Fourth Republic in 1993 and adopted a new Constitution, the tribunals were reintegrated into the regular court system under the control of Ghana’s Supreme court. The Regional Tribunal was made part of the Superior Courts of Ghana and Parliament was given the power to establish “such lower courts or tribunals”.
The Courts Act of 1993 (Act 459) further affirmed this constitutional framework. The superior courts were to comprise the Supreme Court, the Court of Appeal, the High Court, and Regional Tribunals that were to have concurrent original jurisdiction with the High Court in most criminal matters. The lower courts established under Act 459 included Circuit Tribunal and Community Tribunal and gave a right of appeal to the Regional Tribunal.
In an interview in 1997, Charles Agbevor, the Deputy Judicial Secretary, outlined some of the difficulties associated with the Tribunal System. He indicated that the Judicial Service had to move carefully to allay the still existent hostility on the part of an important segment of the Ghanaian legal establishment to any form of Public Tribunal.
The Ghana Bar Association, which had condemned the Public Tribunals and urged its members not to appear before these institutions, was still opposed to any tribunal system when it was established. The Association rather called for the ‘existing traditional courts’ to take over the jurisdiction of all tribunals and a return to single magistrates presiding over lower courts under the new constitution.
Despite the challenges of the Tribunal system, it has been said that the tribunals were able to deal with most of the drug cases that came before them with more dispatch, particularly when the defendants lacked connections. For example, in September 1996 an Accra Circuit Tribunal, after a short trial, found two foreigners guilty of dealing in cocaine and heroin and sentenced them to 12 years imprisonment.
The Tribunal also dealt with high-profile cases such as the ‘genital-shrinking’ cases which had swept southern Ghana early in 1997 as well as other cases which were confirmed by the number and diversity of the reports on their activities in the daily press.
Despite the achievements above, the tribunals also acquired the reputation of being the most corrupt of Ghana’s courts since more people were involved in the adjudicative process, there existed opportunities for corruption. According to Ellison Owusu Fordwuor, a lawyer with extensive experience in Ghana’s various kinds of criminal courts, the structure of the tribunal system predisposed them to corruption more than the High Courts. This stemmed from the fact that the position of Regional Tribunal chairman represented the end of the career path in the system, and since they were ‘not well paid’ the temptation was ‘to make good while the going was good.’
In addition, with so many people involved, there was invariably a great deal of ‘fraternizing with the public’ which easily led to corruption.
In 2002 Parliament passed the Courts (Amendment) Act, 2002 (Act 620). This Act deleted the Circuit Tribunal and Community Tribunal from our Court’s structure. It took away the Appellate Jurisdiction of the Regional Tribunal. Thus it became a legal non-grata and jettisoned out of the window of our democratic dispensation.
In effect that the opposers of the Tribunal system succeeded in cutting down the size of the Tribunal. The Regional Tribunal became a standalone court. The decisions’ of the Tribunal appear not to have captured the attention of the Council for Law Reporting thereby making the current generation fall into the oblivion of their decisions. A review of the various syllabus of the Law Faculties and Schools also does not make the decisions of the Tribunal part of the academic discussion.
The Professor Albert Kodzo Fiadjoe Commission or Constitution Review Commission which was set up under the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64 recommended that “Regional Tribunal be abolished and matters handled by them incorporated into the regular courts”. This was accepted by the Government in its “WHITE PAPER ON THE REPORT OF THE CONSTITUTION REVIEW COMMISSION PRESENTED TO THE PRESIDENT.”
Currently, although the Constitution and Courts Act establishes Regional Tribunal, there is no region in Ghana that has a Regional Tribunal. The focus of the justice system is on the establishment of more High Courts. It, therefore, appears that this is the only recommendation of the Commission that has been implemented by practice than referendum as outlined in the Constitution.
Can this decision not to designate a structure as a Regional Tribunal be deemed as a violation of the Constitution by omission? Can it be said that the opponents of the Tribunal System through the effluxion of time have buried the Regional Tribunal although it purports to exist under our current dispensation?
In all, it can be said that the Regional Tribunal has become a “living-dead” with no liquid fire in its gun caused by drinking deep into the regime change brought by the 1992 Constitution and enforced by officers of the law.
Roger Gocking. African Affairs, Jan. 2000, Vol. 99, No. 394 (Jan. 2000), pp. 47-71. Oxford University Press on behalf of The Royal African Society. https://www.jstor.org/stable/723547
Constitution of the Republic of Ghana. Jan. 1993.
WHITE PAPER ON THE REPORT OF THE CONSTITUTION REVIEW COMMISSION PRESENTED TO THE PRESIDENT .pdf (rodra.co.za)