Opinion
BACKGROUND
This paper attempts to present some of the ethical issues that are facing the Judiciary Service in Ghana. The paper explores the usefulness of Judicial Codes of Conduct as an answer to uncertainty and increased public scrutiny. There is an unfortunate perception that Judicial Codes are somehow a punishment for judges who do not meet the ethical standards of office.
This is an attempt to demonstrate that codes of conduct are a useful and increasingly necessary tool for curbing corruption. The values and standards required of a judge vary with changes in the society that underlies the judiciary and it is important that judges be aware of these changes. This paper takes a look at some of the ethical issues facing judges and the importance of appropriately responding to these issues.
Judicial Codes of conduct provide a mechanism to help ensure fairness and equity in the administration of justice. It is hoped that the ideas and issues raised in this paper will help the Judiciary recognize the importance of developing, maintaining and, most importantly, honoring a code of conduct in keeping with the ethical obligations of Judicial Office. Whatever standards are ultimately adopted, they must be suitable to the national context.
The paper is organized in two sections. The first section provides an overview of ethics and the second section relates ethics in theory to practice by examining ethical standards within the Judicial Service of Ghana.
Ethics: An Overview
Investopedia defines business ethics as ‘The study of proper business policies and practices regarding potentially controversial issues, such as corporate governance, insider trading, bribery, discrimination, corporate social responsibility and fiduciary responsibilities.’ Ethics are often guided by law, while they also provide a basic framework that organizations may choose to follow in order to gain public acceptance.
Ethical codes are are implemented in order to ensure that a certain required level of trust exists between organizations and various stakeholders. For example, a portfolio manager must give the same consideration to the portfolios of family members and small individual investors. Such practices ensure that the public is treated fairly.
Ethics involves the basic concepts and fundamental principles of right human conduct. It includes study of universal values such as the essential equality of all men and women, human or natural rights, obedience to the law of land, concern for health and safety and, increasingly, also for the natural environment.
Generally business ethics can be described as the study and evaluation of decision making by businesses according to moral concepts and judgments. Ethical questions range from practical, narrowly defined issues, such as a company's obligation to be honest with its customers, to broader social and philosophical questions, such as a company's responsibility to preserve the environment and protect employee rights. Many ethical conflicts develop from conflicts between the differing interests of company owners and their workers, customers, and surrounding community. Managers must balance the ideal against the practical—the need to produce a reasonable profit for the company's shareholders with honesty in business practices, safety in the workplace, and larger environmental and social issues.
Ethical issues in business have become more complicated because of the global and diversified nature of many large corporations and because of the complexity of government regulations that define the limits of criminal behavior. For example, multinational corporations operate in countries where bribery, sexual harassment, racial discrimination, and lack of concern for the environment are neither illegal nor unethical or unusual. The company must decide whether to adhere to constant ethical principles or to adjust to the local rules to maximize profits. As the costs of corporate and white-collar crime can be high, both for society and individual businesses, many business and trade associations have established ethical codes for companies, managers, and employees.
It is important to emphasize that ethics permeates every facet of life. If you are a student, please take a moment to ask yourself what you have learned about ethics in your time in the classroom. If you are a teacher or administrator, consider what your curriculum covers in this regard. We know that medical students engage medical ethics, law students study legal ethics, business students take on business ethics, and military officers study military ethics, and so on. So let's ask ourselves, what should students and aspiring leaders in public affairs know about ethics to be considered professionals competent to practice?
By ethics, we do not mean simply compliance with law. Compliance is of course an essential part of ethics. But it is only a beginning. Compliance is a floor, a minimum upon which to build. Many actions in government, business, or private life comply with the law but are not optimal from an ethical perspective. Examples are all around us. Ghanaian members of parliament may not have broken laws when they used expense accounts to bill tax payers for lifestyle enhancements such as the purchase of expensive government bungalows for less than half the price. But surely this kind of behavior was wrong. In more serious policy matters, it may well be that most of our major banks and financial institutions were in full compliance with the law when it came to the management of credit default swaps and derivative trading. Yet something went very wrong in the area of risk and responsibility. There are many things we can do and still be in compliance with law—but some of them are wrong. Ethical reasoning helps us make these distinctions.
The discipline of ethics begins with Socrates' question: How should one live? Ethics is about choice. What values guide us? What standards do we use? What principles are at stake? And how do we choose between them? An ethical approach to a problem will inquire about ends (goals) and means (the instruments we use to achieve these goals) and the relationship between the two.
Ethical reasoning is the process of raising awareness of moral claims and applying principles to arising circumstances. Ethical reasoning implies an interrogation of the moral claims that surround us rather than a mere listing of do's and don'ts. In a word, ethical inquiry is proactive rather than passive.
The philosopher Simon Blackburn writes that ethics takes as its starting point that: "Human beings are ethical animals … we grade and evaluate, and compare and admire, and claim and justify … Events endlessly adjust our sense of responsibility, our guilt and our shame, and our sense of our own worth and that of others.
According to Blackburn, ethical inquiry is normative in the sense that it suggests "norms." Norms are what we consider "expected and required" behavior. We all experience functional norms. For example, in the Ghana, drivers stay on the right-hand side of the road; in the United Kingdom, drivers keep to the left. We also experience moral norms. A moral norm would consist of an expectation such as nondiscrimination in the workplace or the requirement to respect the needs of the most vulnerable members of society (e.g. the elderly). Moral norms are aspirational and prescriptive rather than functional and descriptive—they paint the "ought" rather than the "is." It is this type of norm that we want to focus on in this essay.
A cautionary note is necessary here. Norms, expectations, and ethical claims depend deeply on context. No single normative theory or formula will suffice across different types of examples. One of the great ethicists of recent memory, Isaiah Berlin, famously gave up his Oxford chair in normative theory, so the story goes, because he felt he had no single normative theory to purvey. Berlin did not pretend to offer a grand theory that would meet the test of the many different types of cases he was concerned with.
Berlin's work reminds us that normative inquiry is a non-perfectionist art. The first lesson of ethics is that values overlap and conflict. The single-minded pursuit of any particular virtue can subvert a competing virtue. So as we often see, freedom can conflict with order, justice with mercy, and truth with loyalty. In international affairs, peace may be our goal, but we cannot ignore the need to confront aggression. Some may chant "no more war." These same people may also chant "never again genocide." Sometimes, tragically and unavoidably, force is needed to prevent harm. Here, and in countless similar examples, we see norms clashing. Berlin lets us know that these clashes happen more often than not.
Ethics in Three Dimensions
Despite our lack of a single theory or formula, Berlin and others do offer a framework for ethical reasoning.
individual could say: I am Ghanaian. I am a Muslim. I am a woman. I am a professor. I am a feminist. Clearly, many sets of values make up a composite yet single-actor identity in an example like this. Each element of one's identity plays an important role in determining which values and allegiances Inspired by Berlin and other pragmatists, we think of this framework as ethics in three dimensions.
The first dimension focuses on the decision maker—the actor or the agent who makes a choice. We can and should evaluate the acts of individuals, be they presidents, ministers, judges, official representatives, CEOs, community leaders, advocates, employees, consumers or citizens. Each has a role as an autonomous actor.
At first glance, the idea of the autonomous actor seems simple and straightforward. However, we should bear in mind that identity is fluid not static. Most individuals have multiple identities. Consider an example like the following. A single among many may have priority. Claims of national loyalty, religious obligation, professional codes of conduct, and solidarity around an issue of social justice and concern might all come into play. This is the way life is actually lived, isn't it?
In addition to single actors, a discussion of agency must also consider the identity, values, and acts of collective actors such as states, corporations, non-governmental organizations, and international organizations. One of the most important trends of our time is the growing power of non-state actors—especially multinational corporations. Wal-Mart, Microsoft and other companies of this size and scope rival the capacities of many states in terms of their economic, political and social reach. It is therefore both necessary and proper to ask and answer questions relating to the moral choices of corporate entities. All are moral agents.
The second dimension of ethics has to do with the systems, social arrangements, and conditions that define our range of choices. In short, we need to examine the "rules of the game" by which we live and make decisions. We all live within sets of norms and expectations—some more fair and just than others. Perhaps the best way to illustrate this dimension is to show examples of when "rational" choices within a set of arrangements yield "bad" or less-than-desirable results. In other words, in some systems, when you do the "right thing" within the system, the net result is sub-optimal.
Here we are thinking of a common example of consumer behavior. When shopping for clothes, it usually makes sense for you to buy the least expensive shirt available when quality between competing options is equal. But because of the supply chain of the global economy, that shirt may be produced in a sweatshop that runs on child labor. Buying the least expensive shirt of equal quality might be rational according to market design—yet the result might be ethically troubling.
The third dimension of ethics is the assertion that we often have the opportunity to improve our situation—to do better. One way to think of this is to consider a standard ethics scenario like this: My mother is sick. I cannot afford medicine. So I steal the medicine from a pharmacy whose managers will not even notice that it is gone. Is stealing the medicine in this circumstance the right thing or the wrong thing to do?
We can discuss this case in terms of my decision as a moral agent—whether I am a thief and villain, a rescuer and a hero, or both. Ethical questions are frequently raised as dilemmas such as this one. In many situations, there is a genuine need to choose between two competing and compelling claims, and ethical reasoning can help to sort these out. But we can also expand the inquiry to ask a broader question beyond the narrow question of whether to steal or not to steal. We can also ask: What kind of community denies medicine to sick people who cannot afford it? Is there something unfair or unethical about this system?
To further illustrate this third dimension, it is useful to note the distinction that Andrew Carnegie drew between charity and philanthropy. Charity, according to Carnegie, is the duty to attend to immediate and acute human suffering. Charity translates to feeding the hungry, tending to the sick and destitute, providing relief to victims of natural and man-made disasters, and giving shelter to the homeless. Philanthropy is something different—it is an endeavor that reaches above and beyond the imperatives of charity. Philanthropy explores new ways of living, new ideas and institutions to improve society.
While this may sound abstract, Carnegie's philanthropy was specific and practical. He addressed the societal-level problem of education by suggesting and then providing the infrastructure for two institutions we now take for granted: the public library and the teacher pension system. Carnegie believed that every person should have access to knowledge. Universal literacy and educational opportunity would be possible by supporting a free public library system which he began to do all across the United States and to a much lesser extent, the United Kingdom (his place of birth). In his lifetime, Carnegie provided funds to build more than 2500 public library buildings.
Carnegie's library venture was an extraordinary feat totaling $41 million dollars, easily several billion in today's dollars. Yet tellingly, he asked municipal leaders to be partners in the enterprise by providing the books and the funds for upkeep. Carnegie would build the buildings, but communities would be responsible for whatever would happen next. Carnegie thought that if these institutions had real value, communities would invest in them rather than merely accept them passively as gifts. Similarly, when he decided to provide the funds to build Carnegie Hall in New York City, he built the structure in all its grandeur but he did not leave an endowment for maintenance. He believed that if the music hall had genuine value, its patrons—those who benefitted from it—would contribute to its upkeep.
Similarly, when it came to politics, Carnegie believed that new institutions could improve public policy. Specifically, as an advocate for the peaceful resolution of international conflicts and disputes, Carnegie supported the mediation and arbitration movement that grew out of Geneva in the mid-19th century. Again, the idea was elegant in its simplicity and grandeur. Just as we have legal mechanisms to arbitrate disputes in domestic society, so too can we have mechanisms in international society for the same purpose. In this spirit, Carnegie financed the building of the Peace Palace at The Hague, supported the establishment of the International Court of Justice, and lobbied for the establishment of the League of Nations. Carnegie devoted much of his philanthropy—and his personal energy—to promoting these new institutions and the ideas behind them.
So then the third dimension of ethics expands the range of choices we have in front of us. It is about creating new possibilities. We’ll like to picture this idea in its cartoon form. For us, it comes to life in the character of Bugs Bunny. The narrative is familiar. Our hero gets into trouble and runs away from a threatening pursuer. But he is eventually backed into a corner. There is no escape. What does he do? He reaches into his pocket and miraculously pulls out a pen or marker. He then proceeds to draw a picture of a window on the blank wall. The image of the window becomes real. Then he climbs out. Sometimes we do face genuine dilemmas—and the lines we draw on the wall remain lines. But other times we can and should im0agine better options.
An Ethical Framework: Three Principles
Pluralism begins with appreciation for diversity while recognizing what is common in the human experience. A value such as self-interest and or a moral sentiment such as honor or fairness will develop differently according to time, place, and circumstance. Yet there is something that binds us—and that "something" is the capacity to enter into a value system that is not our own.
Simon Blackburn, James Rachels and other philosophers make this point by citing an example from Herodotus' Histories regarding funeral customs. We know that in some societies the most common funeral custom is to bury the dead. In other societies it is customary to burn the dead. In still others, the custom is to eat the dead. Members of each society think that their custom is best, and that others are misguided or worse. The point here is not to say that one's own customs are always superior. Nor is the point the opposite: that all customs are relative and are purely matters of convenience. Rather, the point of this example is that there is a central truth—respect for the dead—that takes different forms in different circumstances.
Pluralism's first argument is with monism. Monists are purveyors of moral clarity, single-minded advocates of a truth as they see it. As such monists adhere to familiar custom and dogma, the validity of which his based on faith and will remain beyond human reason and reach. Monists neglect the idea that our understanding of the truth may change over time, especially in light of new information and experience. Monists will resist the idea that truths are many, not one, and that while we often agree on those verifiable observations we call facts, we often do not agree on their meaning. Enlightened realists remind us that humility is required in the face of conviction. Pluralists remind us that, ironically, the one thing we should agree upon is the possibility that we can be wrong. The realist and pluralist point of view does not resonate with monists who are more comfortable in the waters of "moral clarity."
We feel the full weight of pluralism when we view a great work of art or read a classic text. Through these encounters, we can understand the experiences and the value systems of others. We enter into another world and experience part of it as others do. Pluralism is a way to transcend the false dichotomy of monism and relativism. Monism holds that "only one set of values is true, all others are false." Relativism holds that "my values are mine, yours are yours, and if we clash, too bad, neither of us can claim to be right. Most of us live in that interesting place in between—and this is the territory of the pluralist.
In addition to the dangers of monism, pluralism also addresses the challenges of relativism. Relativism is the idea that every moral claim is just as good as any other. The well-worn example is, "one man's terrorist is another man's freedom fighter." One can try to make that argument; but it will not alter the fact that terrorism is the random slaying of innocent people. Another tired relativist argument is that norms are merely the reflection of the interests of the power actors who make the rules and stand to gain from their enforcement. While one may make this argument too, it will not alter the fact that freedom makes no sense without order, and that power must be deployed to insure order. Power considerations cannot be wished away; and the actions of powerful actors should not be dismissed out of hand as morally suspect.
Pluralists hold firm against cynicism. They contend that it is both possible and necessary to sort out competing claims. Pluralists observe that every society has strongly developed codes of duty and restraint that promote some notion of human well-being. Part of what makes us human is our capacity to understand these norms, how they developed, and why—even if we disagree with them strongly. This open approach enhances the prospects for moral argument.
Isaiah Berlin gives us a classic example of how and why pluralism is not relativism. He writes:
"I find Nazi values detestable, but I can understand how, given enough misinformation, enough false belief about reality, one could come to believe that they are the only salvation. Of course they have to be fought, by war if need be, but I do not regard the Nazis as, as some people do, as literally pathological or insane, only as wickedly wrong, totally misguided about the facts, for example, in believing that some beings are subhuman, that race is central, or that Nordic races alone are truly creative, and so forth. I see how, with enough false education, enough widespread illusion and errors, men can, while remaining men, believe this and commit the most unspeakable crimes."
Pluralism is not relativism because Berlin first empathizes, he seeks to understand the Nazi worldview on its own terms, and then he engages in moral argument to refute it.
Another place to plant the flag against relativism is on the high ground of the idea of "rights." By rights we mean protections and entitlements in relation to duties and responsibilities. Rights arguments are put forward against arguments of utility. According to rights theorists from Kant to Jefferson and beyond, there is something fundamental about being human (an inalienable characteristic) that prohibits any person as being treated as something merely "useful," as a means to an end.
The source of human rights is an unending debate. However, we are persuaded by pragmatists like Judith Shklar, Amy Gutmann, and Michael Ignatieff who argue that in the end, foundational arguments may not really matter. Empirical observation of the need for human rights and the work that human rights arguments do may be sufficient. After all, the mass murders of the twentieth century are proof of the need for protection. Think of the body counts under the regimes of Hitler, Stalin, and Mao. The facts of the genocides and gulags in such recent memory should be sufficient to make the case that protections are needed. Duties to provide protection therefore follow.
Rights claims raise questions about assignment of responsibilities that are not always clear. One way to think about assignment of responsibilities is to consider rights claims in terms of "perfect" and "imperfect" obligations. Perfect obligations are specific and direct. For example, we have the perfect obligation not to torture. Imperfect obligations are more general, less specific, and inexactly targeted. So in the case of torture, there is the requirement to "to consider the ways and means through which torture can be prevented.
Although this is not a perfect illustration of the distinction between perfect and imperfect duties, consider the infamous case of Kitty Genovese. Kitty Genovese was a 28-year old woman who lived in Kew Gardens Queens in 1964. One night on her way home, she was stabbed several times by an unknown assailant and left to die. Her case became widely known because it was alleged that 38 people passed her by as she lay dying in the street. No one helped her. Presumably, each of the 38 passers-by thought someone else would help, or they didn't want to get involved. Whatever the precise details, this scenario helps to elucidate the point about perfect and imperfect duties. We all share the basic duty not to harm. But we also share the basic duty not to allow the conditions of harm, and that when harm is done, to mitigate the effects of it. To echo a previous point, the exercise of imperfect duty is far from altruism. It is in our enlightened self-interest to live in a community where people are not left to die in the streets.
In looking at public policy today, we see several obvious cases where both our direct and indirect participation in the mitigation of harms is inevitable. As participants in the global economy, the global environment and global security, we act both directly as agents and indirectly as bystanders. When we consume and travel, we engage in a system that provides benefits and places burdens. There is really no place to hide. As implicated agents in these social arrangements, our actions will be judged accordingly.
The third principle to consider is fairness. Ideas about fairness are highly subjective and heavily influenced by circumstances. As we have observed throughout literature, one of the most useful models for illustrating fairness considerations is the Ultimatum Game (UG). In the game, two players have the opportunity to divide a pot of money. A proposer (P) makes an offer to a Respondent (R) over how a pot of money should be divided. R can either accept P's offer—in which case the money is divided as P proposed—or R can reject the offer, in which case both players walk away with nothing.
The classic rational actor model of behavior predicts that, in such cases, the split might be something along the lines of 99:1; that is, P would offer R 1 unit while keeping 99 for himself. Since we can usually count on profit-maximizing behavior, this division makes both parties better off and so there is no reason for R to reject it. Maximization strategies therefore lead to unequal divisions of a given pie.
But behavioral economists, repeating the UG in a variety of countries and under and a variety of conditions, have observed a puzzling result. When R's are offered an amount that they consider to be "unfair" they reject it—they would prefer nothing to something. Indeed, knowing that "unfair" offers are likely to be rejected, P's routinely offer about one-half the pot at the outset, and when asked why they do so they normally answer that "this seems fair."
Researchers have drawn several significant findings from the UG, all of which are relevant to the study of moral considerations in world politics. First, P's adopt moral reasoning or other-regarding behavior out of their self-interest. Proposers who do not care about what others think must nonetheless fear rejection of an "unfair" offer and the absence of any payoff whatsoever. The adoption of "fairness considerations" is therefore efficiency enhancing to the extent that it leads to an agreement and thus an increase in welfare for both of the agents.
Second, the Proposer's concern with achieving an equitable or fair result arises in part from uncertainty about how R will respond to its offer. If P knows that R will willingly accept a greedy offer, P will be much more inclined to propose a lopsided division. Not knowing R's response ex ante, P offers the amount that intuitively seems to be fair (e.g. equal division).
Returning to our theme of enlightened self-interest, fairness and reciprocity suggest that what is good for you is often linked to be what is good for others involved. This is the nature of complex problems and decisions. Taken to the global level, individual interests must be seen in terms of complex interdependence, international norms, and global responsibilities.
Ethics: Implications for Leadership
While we hope these remarks have given positive ideas about leadership, we also hope they have not promised too much. It is important to close with a sense of realism that reminds us of the limits of human achievement and the dangers of assuming harmonious outcomes. Good intentions are never enough. Leaders must always attend to consequences. Moral imperatives often conflict. Leaders must make difficult and imperfect choices. The literal definition of utopia means "no place." Utopia does not exist. And as we all know from history, it has been the pursuit of utopia—of perfect societies and outcomes—that have led to the worst episodes in human history.
There is much in the commonplace sayings such as "leadership is a foul weather job" and organizations "rot from the head down." Burdens placed on leaders force them to be visionaries and exemplars—and yet, they can never be nor should they aspire to perfection. Ethics plays a central role in navigating the ideal vision and the realities of daily life. Ethics is a process, a constant reflection on aspirations and compromises. It is incumbent upon leaders to set out their normative vision and to measure their behavior accordingly. What are my goals? What are my core values? And what tradeoffs am I willing to make? These questions never go away.
Management gurus are quick to point out that if we are not trying to improve, then we are sure to get worse. Commitment to our highest aspirations, openness, and self-correction is the essence of ethics in leadership. By suggesting three dimensions as points of entry into ethical inquiry—our roles as moral agents, as participants in the institutions in which we live, and as the architects of new institutions that will define our future—we hope we have given you a sense of the practical importance of ethics. And by offering the principles of pluralism, rights, and fairness as a place to plant a flag—or to aim your fire—we hope we have given you a framework that empowers you and leads you on a journey toward principled leadership.
Understanding Judicial Corruption and its Contexts
Corruption arises from self-regarding behavior of public officeholders (sometimes in collusion with private economic agents) that deviates from the formal duties of the public office aimed at securing private monetary or status gains. From the perspective of criminal law, the term is used generally to refer to the use by a public officer of his office to obtain financial or other advantages for himself, family or friends in a manner that is contrary to the duty and to the rights of others. Corruption occurs within what one writer referred to as the “corruption complex” which includes nepotism, abuse of power, embezzlement and various forms of misappropriation, influence-peddling, prevarication, insider trading and abuse of the public purse .
According to Edgardo Buscaglia, judicial corruption entails the “use of public authority for the private benefit of court personnel when this use undermines the rules and procedures to be applied in the provision of court services.” He classifies judicial corruption into two principal forms—administrative and operational. Administrative corruption involves the violation of formal and informal rules and procedures by court personnel for their private benefit, such as the taking of a bribe in order to ensure that a case is delayed or accelerated. Operational corruption, however, involves “substantive irregularities affecting judicial decision making” with high political and/or economic interests at stake.
A politically-motivated court ruling or judgment or one in which the judge stands to gain economically is the best example of operational corruption. Justice Michael Kirby, a former Judge of the High Court of Australia, aptly captures the pervasiveness of both administrative and operational corruption within the judiciary when he states that: “Without a "tip", a file may be lost and will never make its way to a hearing. Without a bribe, a favorable decision may not be assured.”
The general causes of corruption are legion and indeed well known. Some scholars have, however, identified two basic causes of corruption—need and greed. The former arises from the abysmally low remuneration that public officials in developing countries get; the difference in remuneration between the public and private sectors is often said to create a high propensity on the part of public wage earners to 'make up for the difference'. Greed is, however, just simply inherent in human nature and is a consequence of the desire to have more material resources. Other general causes of corruption less “basic” than need and greed include the love of ostentatious lifestyles, the inability of those charged with prosecuting corrupt officials to bring their “political soul mates” to book, tempting offers from both domestic and foreign businesses and so on. To these general causes, one can identify factors that contribute to corruption within the judiciary.
These corruption-enhancing factors include the absence of a transparent and predictable system for the allocation of internal organizational roles to court employees; the complexity of procedural steps coupled with wide procedural discretion (e.g. relating to time limits for filing of claims or the rendering of judgments); lack of judicial knowledge of the substantive and procedural rules leading to attempts by lawyers and litigants to bend the rules; and finally, insufficient alternative sources of dispute resolution mechanisms. Of course, variables such as culture and the ethical attitudes of key actors - judges, lawyers, litigants and court employees—matter significantly as sources of corrupt behavior. Cultural and ethical attitudes determine to a large extent the moral baseline of these key actors and whether or not they would be willing and able to engage in corrupt behavior.
So far, there have been no studies that directly measure the prevalence of judicial corruption in Ghana. However, general surveys of the phenomenon of corruption have often included questions relating to perceptions of judicial corruption. The most current of such general corruption surveys is the 2005 Afro Barometer study by the Ghana Centre for Democratic Development (CDD-Ghana). According to the study “Ghanaians perceive varying levels of corruption in public agencies and among public officials. The police and judges as well as tax officials top the list. Over 8 in 10 respondents perceive some corruption among the police; over 7 in 10 hold the same view of judges and tax officials.” Another survey by the Ghana Integrity Initiative (GII) in July 2005 on the other hand ranked the Judiciary fourth (4th) among ten institutions highly affected by corruption in Ghana.
It is, however, pertinent to point out that the Afro Barometer relied on the views of the general public, some of whom may never have had any contact with the judicial system, to come to its conclusions. That said, the study still remains a useful indicator of judicial corruption. It shows that to the general populace, judges are perceived to be corrupt, though it is not clear from its findings how corrupt they are. To determine the actual prevalence of corruption within the judiciary, an empirical study based upon the views of key actors must be conducted. However, anecdotal evidence from lawyers and litigants, as well as persons who have been intimately involved with the judicial process, points to a high prevalence of corruption within the judiciary. Within the legal community, certain judges and courts are known or alleged to have a high proclivity for “speed money” payments. Indeed it is not uncommon to hear stories of judges taking such speed money from both parties in the hope that parties in adversarial litigation would not talk to each other and therefore that the bribes would not be discovered.
There are no special legal and regulatory provisions to deal with the issue of judicial corruption; judges, judicial officers and court staff are subject to the general laws of the land dealing with corruption. These are contained in the Criminal Code. In terms of Section 240 of the Code, a public officer commits the crime of corruption “if he directly or indirectly agrees or offers to permit his conduct as such officer…to be influenced by the gift, promise, or prospect of any valuable consideration to be received by him or by any other person, from any person whomsoever.” Other forms of corrupt behavior such as bribery, extortion and embezzlement have also been criminalized by the Code when engaged in by public officials. The Criminal Code contains the provisions dealing with the substantive offences that go under the name of corruption but it lacks a framework for investigating corruption.
Until recently, the statute that arguably contained a comprehensive procedure for investigating and punishing corruption was the Corrupt Practices (Prevention) Act, 1964 (Act 230). Apaloo J. A. (as he then was) aptly captured the purport and intent of Act 230 when he stated in Akainyah v. The Republic that: “The Act was passed to meet a social need and as its object shows, to provide a better and obviously a more expeditious method of investigating and dealing with corrupt practices— one of the greatest social evils with which this country was beset.” Why would a legislative enactment with such a laudable objective be repealed? It is not immediately clear from reading the repealing statute what political and legislative reasons accounted for the repeal of Act 230.
However one could speculate that the political authorities decided to repeal it because it had been rendered redundant with the coming into force of the Constitution and the creation of the Commission on Human Rights and Administrative Justice. The latter has been vested with constitutional jurisdiction to among others investigate complaints of corruption and abuse of office by public officials in the exercise of official duties. This constitutional development probably rendered Act 230 superfluous since its main remit was to enable the use of commissions of inquiry as a mechanism or technique for dealing with financial corruption. Other legal and institutional developments, such as the establishment of the Serious Fraud Office may also form part of the explanatory factors accounting for the repeal of Act 230.
Judges and judicial officers can thus be investigated for engaging in conduct that meets the definition of the various forms of corrupt practices criminalized under the Criminal Code. Also where the said conduct amounts to serious fraud as defined under the SFO Act, the SFO can investigate and prosecute the offending judge or judicial officer.
Furthermore, the Judicial Service Act, 1960 (C. A. 10) as amended and the Judicial Service Regulations, 1963 (as amended) contain a rather elaborate set of provisions on disciplinary measures to be taken where a judicial officer has been found to have misconduct himself or herself or to have performed unsatisfactorily. The Judicial Service Regulations in particular bar persons convicted of criminal offences involving fraud or dishonesty from being employed in pensionable positions within the Service. In other words, persons convicted for corruption cannot gain employment as pensionable judicial staff.
From the foregoing, it is clear that there is no shortage of laws to deal with corruption generally. It is, however, also clear that there are no comprehensive provisions dealing specifically with corruption within the judiciary. This should however not pose a problem if the general laws on corruption are applied effectively to cases of corruption occurring within the judicial branch. The problem is that so far, very few judges and judicial officers have been prosecuted for committing or attempting to commit any of the acts falling within the socio-legal concept of corruption.
Consequences of Judicial Corruption
The prevalence of corruption has serious socio-legal consequences. First, court-related corruption is a significant source of institutional malfunction; it can thus undermine the integrity and credibility of the entire legal system. When litigants, lawyers and the general populace lose faith in the judicial system it cannot wholly recover its credibility no matter how efficiently, fairly and effectively it functions thereafter. Second, for litigants seeking relief for breach of business or investment contracts or for judicial clarification of uncertain title to land, high transaction costs could be raised as a result of judicial corruption. Third, a corrupt judiciary is also prone to political manipulation and so could be weak in terms of the protection of the fundamental human rights of ordinary citizens, especially the protection of rights that are of a civil and political character. This is because the enforcement of these rights is often directed against the state, particularly the political branches of government.
That corruption retards economic growth and development is now a widely accepted fact. Various studies of corruption in developing countries have concluded that it discourages both domestic and foreign investment. According to some of these studies, foreign investors invest less in countries prone to corruption than in less corrupt countries. Moreover, corruption affects the size and composition of public expenditure, with heavy spending skewed toward sectors such as defense which are subject to little or no public scrutiny because of security concerns. As Susan Rose-Ackerman puts it “The available evidence suggests that corruption retards economic growth, leads to inefficient resource allocation, and undermines the legitimacy and fairness of public policies.”
The direct consequences of corruption on economic growth occur often within the context of government procurement, the allocation of concessions or licenses for natural resource extraction (e.g. mining or oil and gas exploration), privatization deals, and governmental service delivery such as tax collection. In the context of public procurement, corrupt deals generally deprive the state of value for its money. This occurs in situations where goods and services procured are under-supplied because the supplier had to use a portion of the contract sum to pay officials of the entity that awarded the contract. Very often contractors do not pay kickbacks from their profits but from the sum of money allocated to providing the goods or service. This implies that the contractor would either have to inflate the price or cut down on quality of the delivered product or service in order to be able to afford the kickback.
Similarly, privatization deals riddled with corruption deprive the state of the true (market) value for its assets. Under-pricing of public assets is a common occurrence with privatization transactions and is often done by public officials charged with selling the assets with a view to gaining from the deal. Privatized assets are often times sold in circumstances in which the deals cannot objectively be described as arms-length transactions. Sales to political cronies, close family members and business associates are examples of this type of transactions.
Another context in which corruption directly affects economic growth is that of governmental service delivery. Corruption in this case undermines the efficiency of the services that public institutions and agencies are mandated to provide. In the case of services targeted at the business community, such as filing of tax returns, registration of business entities, enforcement of business contracts, trademarks and other intellectual property rights, the costs to the economy of corruption-induced inefficiencies can be enormous. This is because corruption in governmental service delivery often raises the transaction costs of businesses and these in turn translate into lower growth rates for the economy.
Corruption not only has the above-mentioned direct consequences on economic growth and development; it can also indirectly undermine economic growth by destroying the potential effectiveness of governmental policies and programs. Corruption raises the cost of implementing government policies by encouraging public officials to create regulatory barriers so as to increase costs and generate more bribes. Beneficiaries of government policies and programs often pay the price of such restrictions in the form of wealth transfers to the officials involved in implementing them.
Corruption causes underdevelopment but is often also the effect of underdevelopment. In its 2005 Urban Corruption Perception Survey, the GII found that an overwhelming percentage of those surveyed cited poverty-related factors as the causes of corruption. As much as 76% of 900 respondents surveyed cited low income as a leading cause of corruption, while almost 57% of them attributed corruption to the high costs of living. Poverty (45.6%) and 'making ends meet' (survival) (38.2%) were also cited as some of the causes of corruption. Thus the results of the survey, though limited in terms of their empirical generalizability, point to an intimate connection between economic development or the lack thereof and corruption. So what has judicial corruption got to do with economic development? Because judicial corruption is not radically different from corruption within other state institutions and agencies, the simple answer is that its consequences for economic development do not differ from the effects already noted.
The difference, however, is that because the judiciary plays a watchdog role, a corrupt judiciary undermines the potential efficacy of anti-corruption policies designed to hold public officials, including judges, accountable. Justice J. N. K. Taylor has noted that “…public accountability is attained in the utilization of the judicial process by employing the services of judges and magistrates sitting in courts to discipline the entire population and other organizations as well as state institutions.” The judiciary pronounces on the legality of public conduct and is thus a central institutional mechanism for the realization of the ideals and goals of public accountability. Judicial corruption inevitably exacerbates the problem of corruption within the larger society with the attendant consequences for the economy as a whole.
Finally, it should be noted that no market economy can function efficiently without the existence of a clear and predictable system of property rights. Given that the enforcement of most property rights depends on the judicial system, a corrupt judiciary that undermines the system of property rights also weakens the economy. Efficiency in resource allocation can be hampered irreparably by judicial corruption.
Ethical Realities in the Judicial Service
The effectiveness of Judicial Codes of Conduct depends on how realistic the standards are. Codes must be sensitive to different jurisdictions, and the different situations faced by judges. They must also be sensitive to the different national contexts in which the code is to operate. The following are some examples of concerns that would have to be addressed in developing codes of conduct.
The Kenyan Model
The Judicial Code in Kenya provides comprehensive sanction provisions. Unlike the Ghanaian Judicial Service which could not provide us with any Code of Ethics during our visit, we found out that Kenya’s Judiciary provides sanctions that are included as part of Ethical Code. The (Kenyan) Judicial Code provides for a wide variety of sanctions ranging from dismissal to reprimand. The relevant section of the Kenyan Code reads as follows:
Sanctions
Where an officer has contravened any of foregoing provisions of this code he is liable to suffer one or more of the following punishment.
(i) Dismissal in accordance with part iv of the Service Commission Act - cap 185
(ii) Reduction in rank or seniority (demotion)
(iii) Stoppage of increment in rank.
(iv)Withholding of increment
(v) Deferment of increment.
(vi)Reprimand (including severe reprimand)
(vii) No recovery of the cost of any or part of the cost of any loss or damage caused by default or negligence.
The inclusion of the sanctions within the body of the provisions allows the judges to be very aware of the potential consequences of their misconduct. This also demonstrates the seriousness of the Code provisions. Another innovative feature of the Kenyan Code is the inclusion in the section entitled EXPLANATIONS of the following provision:
Violation of any of the rules contained in this code shall constitute judicial misconduct or misbehavior calling for disciplinary action. Such a provision helps to alleviate uncertainty that judges may feel when faced with a code of conduct. Also it confirms the importance of adhering to the standards set and the certainty of negative consequences is a violation of the standards is proven.
A real concern in the establishment of judicial standards is the recognition of the differences in the situation between a judge in an urban area and a judge in a rural area. In a rural area judges often know the community well and were, prior to their appointment, active in community affairs. These rural judges do not have the luxury of leaving their judicial persona at the office. Their views and attitudes are common knowledge in the community and their conduct is assessed on that basis. A difficulty with a standard Code of Ethics is that it may ignore the great disparity that may exist between urban and rural settings. An Ethical Code must therefore provide some assistance in this area by explicitly recognizing the reality of the rural judge. This will allow for flexibility and pragmatism of the Judicial Codes.
New Ethical Considerations in the Judicial Service
The reality of judicial office is changing. Judges are being drawn into sensitive social issues and are coming under increased attack by the media.
One could point to many examples to show that we are living in an era of confused values, what some have called an ethical crisis. New situations arise in all areas of society that require constant reexamination of ethical constraints. The judiciary is not immune to this process. Judges need to continually discuss and evaluate their role and conduct.
The increase in the use of Bills of Rights, or Charters of Rights in many countries has put highly controversial cases before the judiciary. These cases excite strong and diverse opinion. A code of ethics can be helpful in ensuring that both the public and the judges understand the appropriate roles that judges should play. The code can also assist judges in formulating appropriate responses to increased community and media pressures.
In Ghana, many moral issues are being brought to Court through the use of Charter challenges to existing laws or government action. Examples of such issues are abortion, and religious and gender equality. The sensitivity of these issues makes it imperative that the judiciary be seen as unbiased. Whether or not a country has a Charter of Rights, citizens are increasingly turning to judges to resolve difficult moral and ethical problems.
The rise in human rights legislation, Charters and other constitutional entrenchments of rights, demonstrates an increased awareness of the importance of equality. The new changes in Ghanaian laws are a reflection of changing societal values. The codification of these values ensures that judges will be aware of their ethical obligations and reassures the public about the standards of conduct that are required. It is important that judicial codes be flexible and responsive to ethical changes in society. The response to sexual harassment is another change in society that is important for judicial codes to recognize. The importance of equality and the absence of discrimination must also recognize in the Code of Conduct for Judicial Officers. They [judicial officers] should not be improperly influenced by: the sex, ethnic or national origin, religions, beliefs, political association of the victim, witness, accused person, plaintiff, or defendant.
Most Civil Service regimes (certainly in the West) still equate “Public Sector Ethics” with anti-corruption efforts, and limit their engagement with professional practice issues to a minimalist written Code of Conduct or Code of Ethics, which is usually concerned with prohibiting conflict of interests and self-dealing, and encouraging political and other forms of impartiality, and (increasingly) service to the community.
In our view this is an insufficient effort. Publishing a Code of Ethics, by itself, will achieve little. It is now generally recognized that meaningful and enforceable Ethics codes, linked to systemic practices and procedures, based on legislation, and backed by management leadership and high-level political commitment, and ongoing 'professional ethics' training, are essential.
Ethics and Corruption
Ethical conduct and corruption in the public sector are the two sides of the one coin.
To the extent that an organization succeeds in enhancing its own ethical climate internally, and that which it operates in externally, (for example, by including suppliers and contractors within the scope of an ethics program), it reduces the acceptability of corruption. Conversely, control opportunities for corruption and you make room for ethical practices to become established.
The major problem for implementing effective Codes of Ethics remains that no law or Code will be of much value if individual civil servants lack the technical competence to recognize an ethics problem for what it is, or if they do not know what standards their organization expects of them, or (worst of all), if they consider it to be not in their interests, personally or professionally, to take a stand for integrity and against corruption.
The Code of Ethics is best regarded as a general statement of ‘core values’ which define the professional role of the civil service. In general, modern civil service Codes of Ethics set out broad high-level principles such as Integrity, Accountability, Responsibility, Trustworthiness, etc., but give little attention to how these principles are to be applied in specific circumstances.
By contrast, Codes of Conduct usually set out specific standards of conduct expected in a range of realistic circumstances, representing a particular organization’s preferred or required interpretation of the core values or principles which are seen as important to its work. (Hence the title - Code of Conduct)
In most western civil service ‘Codes of Ethics’, there is a mixture of the two elements. The earlier the Code, the more likely it is to deal with ‘ethics’ in a general way, and ignore specific conduct or relationships.
REFERENCES
Elliott, Ray & Mary Tuohy. Ethics and Morality in a Multicultural Society. South Melbourne, Vic.: Thomson Social Science Press, 2006.
Gray, Sandra Trice. Evaluation With Power: A New Approach to Organizational Effectiveness, Empowerment, and Excellence. San Francisco: Jossey-Bass, 1998. Jossey-Bass Nonpro? t and Public Management Series.)
Ghana Integrity Initiative Report (2007): Report on Monitoring Judicial Corruption Exercise in Ghana. Retrieved from http://www.tighana.org/giipages/publication/Report_on_judicial_corruption_monitoring_exercise_in_Ghana.pdf
Samuel Asihene Nyampong
post graduate student
Andrews University
8975 US-31, Berrien Springs,
MI 49104, United States