HISTORICAL DEVELOPMENT OF THE COURTS AFTER INDEPENDENCE

The Ghana Independence Act, 1957: This received Royal Assent on 7/2/57. The long title described it as An act to make provision for and in connection with, the attainment by the Gold Coast of fully responsible status within the British Commonwealth of Nations. The effect of the opening words was to place all the four territories on an equal footing as the dominions of Her Majesty in her capacity as Queen of Ghana. On 8/3/57 Ghana became a member of the United Nations Organisation.

Constitution of 1957: The Ghana (Constitution) Order in Council, 1957 (S.I. 1957, No. 277; L.N. 47) the main provision which came into force on 6th March, 1957, embodied the new Constitution of Independent Ghana, apart from Legislative powers contained in the lst Schedule to the Independence Act.

The most important new features were as follows:-

The Executive: The Governor was replaced by a Governor-General, who was also Connnander-in-chief of the Armed Forces. The Executive power of Ghana was vested in the Queen exercisable by her or by the Governor-General as her representative. Previous limitations on the power of  Cabinet were removed, and it was charged with the general direction and control of the Government of Ghana, and made responsible to Parliament.

National Assembly: The Legislative Assembly was renamed the National Assembly. Membership had remained at 104. Voting was -to be by secret ballot on the basis of adult suffrage. A Bill which passed through the Assembly was required to be presented to the Governor-General who may assent thereto in her Majesty’s name or refuse it. Acts replaced Ordinances. Maximum life of the Assembly was extended from 4 years to five.

Regions: Ghana was divided into 5 Regions. The Western and the Trans-Volta Regions remaining as before. Former Eastern and Accra Regions were merged into a new Eastern Region.

Chieftaincy: The Constitution made  provision that the office of chiefs in Ghana, existing by customary law and usage, is hereby guaranteed. A House of Chiefs was required to be established in each region. But in 1959 'the Brong Ahafo Region was created and the Trans-Volta/Togoland Region renamed the Volta Region. Courts of Justice: The Courts (Amendment) Ordinance 1967 (No.17) S.2 divided the Supreme Court into the High Court of Justice and the Court of Appeal with effect from 6th March, 1957. Appeals to WACA were abolished but jurisdiction of the Privy Council continued.

Justices of the Court of Appeal were given the same security as was enjoyed by Supreme Court judges. In an attempt to overcome the shortage of High Court judges the office of the Commissioner of Assize and Civil Pleas was created (1958) but abolished in 1960. But by the Constitution (Amendment) Act, 1959 fNo.7) the Judicial Service Commission was dissolved. Thereafter all judges of the Supreme Court and appeal commissioners were appointed on the advice of the Prime Minister. Power to appoint and exercise disciplinary control over judicial officers became exercisable on the advice of the Chief Justice given after consultation with the Prime Minister.

Constitution of the First Republic - 1960-1966: Passed by the Constituent Assembly on 29/6/60 and came into force on 1/7/60. The Queen, acting through the person of her Governor-General, was displaced as Head of State and the President became the Head of State and holder of executive power. He was also the Commander-in-Chief of the Armed Forces and Fount of Honour. No Bill became law without his assent. Art.18 enabled a Presidential Commission to be set up when there was no President capable of acting or when the President was merely temporarily incapacitated by illness or absence. Article 6 divided the territories of Ghana into 8 instead of 6 Regions. The Central and the Upper Regions were created by the Constitution.

National, Assembly: Under Article 21, the National Assembly was to consist of the Speaker and not less than 104 members elected by universal adult suffrage -  one man, one vote. The Speaker is to be elected by the members of the Assembly. Apart from its other functions, the National Assembly was entrusted by the Constitution with the power of dismissal of a judge of the Superior Court or the Auditor-General, to fix salaries and allowances of the President, Judges and the Auditor-General. Ministers were appointed from the Assembly; and its Speaker was given, together with the Chief Justice, the function of pronouncing on the incapacity of the President.

The Courts: Article 40 of the Constitution Of l960 divided the laws of the country as follows: (a) the Constitution; (b) enactments made by or under the authority of the Republican Parliament; (c) enactments other than the Constitution made by or, under the authority of the Constituent Assembly; (d) enactments in force immediately before Republic Day; (a)  Common Law; and (f) Customary Law. The Constitution divided the Courts of Ghana into Superior and Lower courts.

The former comprised the Supreme and, the High Courts. The Courts Act, 1960 (C.A.9) created the inferior courts consisting of Circuit, District, Juvenile and local courts. Article 42 (1) declared the Supreme Court to be the final court of appeal, the appellate jurisdiction of the Wm African Court of Appeal and the Judicial Committee of the Privy Council having been abolished. Article 45 provides for judges to be appointed by the President.

It is silent as to qualifications for appointment but S.8 of the Judicial Service Act, 1960 (C.A.10) provides that no person shall be appointed as a judge of the Supreme Court unless his standing as legal practitioner is at least, 10 years. Five years standing was enough for the High Court.

A Judge could be removed only by 2/3 'majority of the National Assembly and the grounds for removal were stated misbehaviour or infirmity of body or mind. Retiring age of a Supreme Court Judge was 65 and that of a High Court Judge was 62.

Constitution of the National Liberation Council: 1966-1969: By a Proclamation dated 26th February 1966, the Constitution of the First Republic 1960 was suspended; and the National Liberation Council was established with powers to administer the country. Decrees replaced Acts, but the ordinary laws in the country continued in operation as well as the Public Services and other institutions.

The Courts: The Courts Decree, 1966 (NLCD.84) provided, inter alia, a Supreme Court of Judicature consisting of the Court of Appeal and the High Court, which shall be the Superior Courts of Ghana; and (i) the Circuit Courts, (iii) District Courts of two Grades designated District Courts (Grade 1) and District Courts (Grade 111), and (iii) such other Inferior Courts as may be provided by law. Appointments to Grade 11 courts were filled mainly by non-lawyers, while Grade -1 were strictly packed with lawyers. The Decree also Established Juvenile Courts.

Constitution (Consequential and Transitional Provisions) Decree, 1969 - (NLCD 406) made 30/9/69 dissolved the National Liberation Council and the Executive Council and the Proclamation of February 1966 was repealed.

Constitution of the Second Republic: 1969-1972: The 1969 Constitution provides, inter alia, the offices Of 8 President and a Prime Minister with a Cabinet. Art.53 provides for a Council of State to aid and counsel the President. Provision is made for a Parliament consisting of the President and a National Assembly.

The National Assembly shall consist of not less than 140 and not more than 150 elected members. Prominence is given to the liberty of the individual, fundamental human rights and the Rule of Law. Art.100 makes provision for the establishment of an Ombudsman.

The Judiciary: Art. 102 (4) provides that the Judiciary shall consist of the Supreme Court of Ghana, the Court of Appeal and the High Court of Justice which shall be the superior courts of record and which shall constitute one Superior Court of Judicature and other inferior and traditional Courts Parliament may by law establish. Appointments of Judges is spelt out in full in Arts. 115 to 120.

The Chief Justice shall be appointed by the President acting in consultation with the Council of State. Other Judges of the Superior Court of Judicature shall be appointed by the President acting in accordance with the advice of ttie Judicial Council. Only lawyers of not less than 15 years are eligible to be appointed to the Supreme Court; not less than 12 years to the Court of Appeal; and not less than 10 years to the High Court of Justice.

A Superior Court Judge may retire at the age of 60 years and shall vacate that office at the age of 65 years. Provision is also made for the establishment of a Judicial Council, which shall advise the Chief Justice in the performance of his administrative functions and other functions as provided by the Constitution or by any other law. Art.121 provides for the establishment of a Rules of Court Committee to make Rules for regulating the practice and procedure of all Courts in Ghana.also the provisions of the Courts Act 1971 (Act 372).

Constitution of the N.R.C.:1972-1975: The National Redemption Council (Establishment) Proclamation, 1972, established, inter alia, the National Redemption Council as from 13/l/72. The 1969 Constitution was suspended. Offices of the President, Prime Minister and Leader of Opposition were abolished and the National Assembly dissolved; but the Public Services and the Public Services Commission as well other national institutions were allowed to continue until a decree provided the contrary.

The Chieftaincy Act, 1971 (Act 370) was retained with all Houses of Chiefs and Traditional authorities. The Courts: Decree are to have the force of Acts, and any enactment or rule of law in force in Ghana immediately in force before 13/l/72 "shall continue in force." Para 4  the Courts, the Judicial Service, the Judicial Council and the Rules of Court Committee until rectified by subsequent decrees,. (See the Courts (Amendment) Decree 1972 (NRCD 101), and the Courts (Amendment) (No.2) Decree, 1972 (NRCD 137).

A Change to Supreme Military Council: 1975-1979: This was provided by the National Redemption Council (Establishment) Proclamation (Amendment) Decree, 1975 (NRCD 360). The Decree established the S,M.C. on 9/10/75 as the highest legislative and administrative authority in Ghana.

Members are: The Chairman of the former NRC, the CDS, The Army, Navy and Air Force Commanders; and the Inspector-General of Police. The National Redemption Council comprises, Members of the SMC, Commissioners of State appointed by the Chairman of the SMC on the advice of the SMC; and, the Commander for the First and Infantry Brigades with Chairman of the SMC as the Chairman of the NRC, Head of State and Commander of the Armed Forces.

Executive power shall be vested in the Chairman and he shall, whenever practicable, act in accordance with the advice of the SMC. Any enactment  in existence before the commencement of this Decree shall have effect subject to such modifications as may be necessary to give effect to the provisions of this Decree

The Armed Forces Revolutionary Council 1979: The Armed Forces Revolutionary Council (AFRC) Government did not  effect any change in the court structure as it existed immediately before June 1979. However, the military regime set up a special court under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (AFRCD 31) to try specified criminal offences.

The court was to be composed of a judge-advocate and adult Ghanaians able to speak and read the English language with a degree of proficiency that would enable them to actively participate in proceedings: see AFRCD 3, s 1(5). Its decisions were final and not appealable to any court. By a subsequent amendment, it was decreed that its decisions were valid notwithstanding any defect in the composition of a panel: see Armed Forces Revolutionary Council (Special Courts) (Amendment) Decree, 1979 (AFRCD 19).

The operations and procedures of these courts were also shrouded in-mystery, but people were known to have been fined, imprisoned, executed or had their properties confiscated by orders from those courts Before handing over to a civilian government, the AFRC established a special tribunal by the Armed Forces Revolutionary Council (Special Tribunal and Other Matters) Decree, 1979 (AFRCD 23) which took over cases pending before the special courts and tribunal established by the AFRC Government.

Court structure under the Third Republic- 1979-1981: A third civilian government came into being yet again between 1979 and 1981 as the government of the Third Republic. It was ushered in by the 1979 Constitution. Under this Constitution, the structure and hierarchy of the courts remained the same as they existed under the 1969 Constitution and Act 372.

Section 17 of the transitions] provisions of the 1979 Constitution reinforced the powers given to the special tribunal established under AFRCD 23. By implication, AFRCD 23 and the 1979 Constitution abolished all other special Courts established by the Armed Forces Revolutionary Council.

The structure and hierarchy of the courts was again as follows.-

(I) The Supreme Court-, (ii) the Court of  Appeal: (III) the High Court, (iv) the circuit court: (v)the district court grade 1; and(vi) the district court grade 11.

Provisional National Defense Council Government: 1981-1992: The court structure under the Third Republic was intact when the army took over the government in December 1981 and established the ProvisionaI National Defense Council (PNDC).All these courts continued to operate until 1992.

The PNDC Government however made a fundamental change in the court system with the introduction of the public tribunals into this country in 1982: see the Public Tribunals Law, 1982 (PNDCL 24); the Provisional National Defense Council (Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL 42) and the Public Tribunals Law, 1984 (PNDCL 78) as amended by the Public Tribunals (Amendment) Law, 1985 (PNDCL 108) and the Public Tribunals (Amendment) Law, 1989 (PNDCL 213).

Between 1982 and 1993, the stricture and hierarchy of the tribunals were represented as the: National Public Tribunal, Regional Public Tribunal, District Public Tribunal, Community  Public Tribunal. Until the enactment of Act 459, the courts and the public tribunals operated parallel to one another as two distinct and separate adjudicating institutions. No appeals or reviews in one system could be taken up in the other system: see PNDCL 78, s 24(l).

Administratively, the courts were run by the Judicial Court, while the tribunals were run by the Board of Public Tribunals under PNDCL 78. Finally, the PNDC Government also introduced special rent and housing committees into the country with the enactment of the Rent Control Law, 1986 (PNI)CL 139) as amended by the Rent Control (Amendment) Law, 1986 (PNDCL 163). The rent and housing committees were situated in specified cities and towns; and had jurisdiction to, inter alia, deal with specified matters involving landlord and tenant.

The Fourth Republic: 1993 TO DATE: The Fourth Republic was ushered in by the 1992 Constitution which introduced very dramatic changes to the structure and hierarchy of the two main adjudicating institutions in the Country.

The 1992 Constitution abolished all the public tribunals and created the Regional Tribunal whose chairman was equated with the High Court judge in respect of qualifications and further made provision for the establishment of the lower courts and tribunals. Act 459 was enacted pursuant to this article and it established the circuit tribunal and vested it with the entire criminal jurisdiction of the circuit court. With the enactment of Act 459, the Circuit Court now has civil jurisdiction only.

Act 459 also established the community tribunals which replaced the district courts, grades I and 11, and all of their sub-divisions. However, even before it became fully operational, Act 459 was amended by Act 464 which empowered the circuit court to have and exercise the jurisdiction of the circuit tribunal similarly empowered the district court grade l in existence immediately before the coming, into force of act 459 to have and to exercise the jurisdiction of the community tribunal under sections 47 and 48 of act 459: see Act 464, s 3.

Hence, the district courts grade I were still in existence The lower courts and tribunals as established under Act 459 thus comprised the circuit courts, circuit tribunals and community tribunals.

Finally, it may be added that the specialised divisions of the district court grade I of old, namely the motor courts, the juvenile courts and the family tribunals still continue in existence as specialised divisions of the community tribunals or district courts under the new court system.

In effect, the 1992 Constitution and Act 459 merged the courts and tribunals under one judiciary, headed by the Chief Justice The amendment to the Courts Act 2002 (Act 620) abolished community and Circuit Tribunals and re-established the Circuit and Magistrate Courts.