SPEECH DELIVERED BY HER LADYSHIP THE CHIEF JUSTICE SOPHIA A.B. AKUFFO ON “REFORMING THE JUDICIARY TO ENHANCE THE EASE OF DOING BUSINESS ”AS GUEST OF HONOUR AND MAIN SPEAKER AT THE 2ND 2017 AMCHAM & GARIA MEETING AT THE KEMPINSKI HOTEL, ON THURSDAY, NOVEMB
Source: judicial_service_of_ghana

Samuel Date-Bah, retired Justice of the Supreme Court and Chairman for today’s meeting Your Excellency Robert Jackson, US Ambassador to Ghana Albert Fiadjoe Justices of the Superior Courts of Judicature here present Joe Mensah, President of the American Chamber of Commerce & Country Manager for Kosmos Energy Representative of His Excellency William Hanna - E.U. Ambassador to Ghana Justice Strigue Scott I am grateful to the Governing Council of the Ghana Association of Restructuring and Insolvency Advisors (GARIA) and the Board of Directors of the American Chamber of Commerce (AMCHAM) for your kind invitation to be the special guest of honor at this meeting of august members and captains of industry. I am particularly delighted by the topic you have asked me to speak on because it gives me the opportunity to share with important stakeholders in the economy, the highlights of a journey of reforms that the Judicial Service and the Judiciary of Ghana have been undertaking for close to a decade and a half. Sharing these highlights therefore includes an invitation to you to assess critical ways in which you might partner the Judicial Service to achieve the objectives of these reforms. We are still in the process of reaching these objectives. The confidence that business men and women have that their contract and property rights will be determined by an independent and impartial judiciary is vital to the facilitation of business. An effective and efficient justice system which ensures that disputes are resolved in a quality manner, i.e. structured and orderly, fosters economic stability and growth in a number of important ways. First if fosters respect for property rights and guarantees contract enforcement. Secondly, it promotes predictability in the application of the normative framework – an important requirement for the growth of business. Thirdly, an inefficient and ineffective justice system is symptomatic of a weak State incapable of enforcing the law. Finally, a weak justice system is bound to promote corruption. The Judicial Service has not rested on ots oars in its bid to ensure an independent, impartial, effective and efficient justice system. In 2001, the Judicial Service started a bold reform programme to transform the systems for justice delivery from a slow machinery operating from old buildings with moribund tools, towards a more efficient and modernized service that better discharges the trust imposed on it as the institution responsible for justice delivery by Chapter 11of the Constitution of Ghana. Inefficiency in justice delivery has been identified as a deterrent to investor confidence in any nation and in Ghana as well. So the judicial reforms were part of a national development policy captured in documents covering the Ghana Poverty Reduction Strategy I (GPRS I, 2003-2005), and its successor (GPRS II, 2006-2009). It is this national policy framework that undergirded the Judicial Service reforms in its development. In this work, we have collaborated with many MDAs and private sector groups such as the Ministry of Private Sector Development, the Ministry of Finance and Economic Planning, Ministry of Communication, Ministry of Trade and Industry, the Bank of Ghana, Chambers of Commerce and Private Enterprise Foundation. The strategies mapped out to respond to the reform vision included: A fundamental review of commercial law reform initiatives. Improving access to justice for businesses and enhancing the use of Alternative Dispute Resolution ADR mechanisms within the Justice Sector Reform Programme. Developing cost effective solutions for enhancing access to justice. By 2003, the implementation of reform initiatives had been fine-tuned to rest on the following pillars: A stronger focus on Training and Capacity Building for the Judiciary and staff of the Service Institutionalizing Court-Annexed ADR. ECT, E-Governance, Computerization and Automation of Courts. Institutional Strengthening and Infrastructural Development – including the creation of specialized divisions of courts. Reviews of the Law and the Rules and Procedures of the Court. Policy Development and Implementation Image Building Improving Access to Justice So, in this conversation, I would like to highlight our domestic work in this reform agenda and the external contribution you as stakeholders can bring to the ease of doing business. I will start with an area of concern you have raised - the role of the judiciary in dispute resolution. I will then raise for your consideration issues that affect justice delivery within the other three areas of concern - land and property rights, sanctity of contract, and minimizing corruption in business transactions. THE ROLE OF THE JUDICIARY IN DISPUTE RESOLUTION Article 125 of Chapter 11 of the 1992 Constitution directs that ‘ justice shall be administered in the name of the Republic by the Judiciary ’ and further that ‘ The judicial power of Ghana shall be vested in the Judiciary ’. With this mandate, the Courts are the keen bearers of the scales and weight of justice delivery. This constitutional obligation requires that the Judiciary must be equipped with all levels of tools to effectively and efficiently create machinery and structures that efficiently administer justice within the jurisdiction. Since 2005, the rules of procedure of every level of Court – from the District Court to the Supreme Court - have been comprehensively reviewed and replaced with new Constitutional Instruments that have major focus – to ensure effective, efficient and final binding decision making process. Until this review, the Rules of Court used in the High Court dated back to 1954. The language was archaic, procedures laborious, and many provisions – especially provisions relating to post judgment interest in debt recovery matters – were so outdated that they were inimical to the delivery of quality justice. The language of the current High Court (Civil Procedure) Rules C.I. 47 is simpler, rules on commercial claims such as Moneylenders and Mortgages actions, appointments of receivers, injunctions and preservation of property are grouped for easier access compared to how they had been scattered through the old rules. This makes the rules easier to use by even people without legal education. New and extensive rules have also been incorporated on proceedings relating to intellectual property and other rights in response to market needs. At the level of the High Court, the reform process went a step further to introduce specialized courts. Starting with the Fast Track Division which has evolved, we now have specialized Commercial Courts, Economic and Financial Crimes Courts, Land Courts, Human Rights Courts and a General Jurisdiction Division. And especially designated courts such as dealing with galamsey and in a short while these will grow into Environmental Courts. All these divisions have been created to enhance the ease of accessing justice in these critical areas of the economy with the appreciation that with better access to justice, there will be greater ease in doing business. The physical infrastructure of Courts has increased immensely but also improved over the period and all over the country. New Court structures have been built with a basket of resources from donors, internally generated funds, central government sources and local government sources. It is heartening to point to the Accra High Court Complex of 42 courts which has been touted as the most modern in Africa was built primarily with internally generated funds (IGF). When it comes to supporting business with effective justice delivery, special rules of court were formulated for the Commercial Courts. These rules utilize one of the most critical avenues for efficient justice delivery –Alternative Dispute Resolution or ADR for short. I must emphasize that one of the greatest secrets to efficient and effective justice is the role of ADR in dispute settlement. It is a secret sitting in plain sight though it does not seem to be much recognized by the business community. There is such high value in ADR that I cannot over emphasize its significance in bringing ease to doing business at a forum of decision makers such as this. When a case is settled by parties through ADR, the decision is legally binding on every party. It is also faster and, unlike traditional litigation, it fosters friendship among the parties, continuity of business just to mention a few of its benefits. This is the policy reasoning and resource made available for business disputants in the Court-Connected ADR that the Judicial Service has been vigorously promoting and pursuing since 2005. And while speaking on that broad initiative, let me speak specifically about the Pre-trial Settlement Conferences in the Commercial Courts. To ensure certainty and reduce abuse of this administrative machinery, the Rules of Court direct that every suit filed in the Commercial Division of the High Court be subjected to pre-trial settlement conference. This means that very early in the day, parties are able to meet over a thirty-day period, sit together under the mediation auspices of a trained judge attuned to commercial law and practice, and negotiate their debt or lapses in the transaction that led to the dispute in the first instance. The rules allow the parties to take the mediation and negotiation outside of the Courts to any expert forum that can better assist them with dispute resolution, or work with assessors from the relevant industry within the confines of the Court. The law on ADR ensures that the discussions in this process remain privileged and non-binding, whereas the final decision is binding on the parties. This allows parties the ease of candour during this thirty-day settlement period. It is my hope that after today’s interaction, market place Ghana will take a critical look at how we may make a success of this structure, and see how we might continue to assure its utility to increase the ease of doing business. But the institutionalization of ADR is not confined to commercial disputes in the High Court. The Judicial Service has an ADR Directorate headed by a Director, and with oversight by a Justice of a Court of Appeal. The Service conducts ADR weeks, in which we deploy the services of external mediators to assist in reducing the case-load burden in cases amenable to ADR. This is done for all level of trial Courts. The essence of all this investment is to reduce the tension and stress of litigation and improve the confidence of early dispute resolution for every form of transaction in the jurisdiction. Beyond structures for early dispute resolution, we have also taken steps to ensure that the Service is resourced by a Judiciary who are not only proficient in the law, but understand the ethics of independence, propriety, impartiality, integrity in the standards agreed by all international protocols that have worked to define judicial ethics. The central role of the Judicial Training Institute has been part of the reform programme. The JTI is headed by a Court of Appeal Judge, to ensure the requisite leadership authority in the training of all members of the Judiciary and the Judicial Service. Its programmes focus not only on refreshing training in the black letter of law, but also in judicial ethics, judicial skills, technical ICT skills, and social dynamics that make for better application of law to evolving issues. I now turn to the concerns raised over land and property rights as well as sanctity of contract. In this regard, we have set up specialized Land Courts for the speedy adjudication of land and property rights disputes. Also, the Rules of Court have made provision for the separate trial of a preliminary issue in a cause or matter before the Court where the determination of that preliminary issue can substantially dispose of the main cause of action or matter, without the need to go through full trial. Thus, in a land litigation, where the determination of the boundaries of the respective parcels of land involved in the litigation can substantially dispose of the main matter, the Courts having jurisdiction in land litigation, including the Specialized Land Courts, are empowered to apply this provision in the Rules to determine the preliminary boundary issue to dispose of the matter at this early stage, without going through full trial. The difficulty encountered in this regard, however, has to do with the delays from the Lands Commission when the Court makes a referral to it to determine boundaries of respective parcels of land involved in a dispute. Judges are compelled to adjudicate conflicting claims without the support of primary maps on identified borders. So, decisions tend to be piecemeal and only good until a different claimant commence another trajectory of claims. The creation of a database of the boundaries of all differently owned areas of land by the Lands Commission is long overdue. Until when, such database comes into existence the guiding principle is caveat emptor (let the buyer beware). Prospecting investors seeking to gain access to land must take all steps necessary to conduct the relevant searches, investigations and/or enquiries before parting with money. Prevention, it is said is better than cure. This will help to reduce the number of land disputes coming to the Courts, in the first place. Lastly, I will deal with the concern raised over corruption in business transactions . Where the citizenry are assured of an efficient and effective system of justice that will deal with exposure of corrupt transactions, we believe that the propensity for corruption in business transactions will be lessened. Corruption thrives less in transparency than it does in murkiness. So, what have we done to increase transparency and efficiency in justice delivery apart from the scope of reforms earlier discussed? The Judiciary has been responsive to the need to incorporate the advantages of e-business. The automation of Court hearings has meant that Court records have become increasingly easier to access, and turnaround time for Court business has greatly decreased. Insistence of a Judiciary that is ICT proficient has helped in this process. But the effect of these advantages has been blunted by the manual process of filing documents and the national inefficiency in finding addresses so that litigants can be manually served with Court documents. These inefficiencies form the breeding ground for much of the delays and therefore the corruption that one finds in the justice delivery chain. The introduction of Digital Address System by Ghana Post is therefore very timely and welcome, as it will feed well into the way forward. Fortunately, this is the next level of reforms that we are moving into – the filing and service of Court processes electronically. Much groundwork has been done, and we are actively laying in place the case management record systems that will ensure the protection and authentication of documents in this landscape. Achieving the targets of these e-reforms require moving in tandem with several other stakeholders though. The work of local governments as they manage the physical spaces in communities to make property identification easier cannot be ignored. The work of the National Information Technology Agency (NITA) to support the infrastructure necessary for the sustenance of the technology to be deployed is key to its success. We cannot forget the need for clean and sustainable energy to ensure access to the digital realm on a continuous basis, hence our plans to optimize utilization of Solar energy in our facilities across the nation. Then there is the necessary links that the Judiciary has to align with all agents in the justice delivery chain such as Prisons, Ministry of Justice, and lawyers’ chambers. And these are only a few of those we must walk with, if we can move far in the use of technology. I trust that anyone who has been a close watcher of Ghana’s Judicial Service is likely to admit that the reforms have borne much fruit. Admittedly, taking the biblical fruit levels of 30 fold, 60 fold and 100 fold, we have likely reached much less than the 100 fold that we could have attained because of the many pitfalls associated with change dynamics. But it has been a journey and we continue to move. We invite you to walk with us and help us with the journey. Thank you for your kind invitation once again and may God bless us all. Prev Next