The answer is “yes” and also “no”. It depends on the type of democratic tradition and the legal framework that operates in the country where the courts function.
In the United States, for example, the President can put his/her favourite men and women at the courts because the American Constitution does not abhor that practice.
Under Article 3 of the US Constitution, the following categories of Americans can nominate persons to be appointed as federal judges: Senators or House of Representative members who belong to the same political party as the sitting President or whose political philosophy or ideology is similar to that of the President.
The recommendations so made are then processed by the US Justice Department and the White House General Counsel’s Office.
After that, the final list of nominees is sent to the President who forwards it to the Senate for approval – under Article 2 of the US Constitution.
Federal judges are judges that sit in courts established under Article 3 of the US Constitution and include the Chief Justice and associate justices of the Supreme Court; Circuit judges, Court of Appeal district judges; District Court and Court of International Trade judges.
Unlike in some countries, the US Constitution does not prescribe specific qualifications that an applicant for a position on the bench should have.
For example, no age limit, level of literacy or academic credentials, citizenship, legal education, legal or bar of professional certificate is required for appointment.
Federal judges in the US appointed under Article 3 of the Constitution are allowed to serve for life.
A federal judge remains in office until his/her death, resignation or removal under provisions prescribed by the Constitution. Magistrate judges or judges of the lesser federal tribunals are appointed under Article 1 of the Constitution.
Judges in this category have age limits attached to their appointments and do not serve for life. In the US, about 90 per cent of state court judges are elected.
How are judges appointed in the United Kingdom?
To become a judge in the UK, a person must apply to the Judicial Appointments Commission that is responsible for that purpose. In Britain, it is the King that appoints judges of the Supreme Court on the advice of the Prime Minister after receiving recommendations from the Judicial Appointments Commission.
Judges of the Supreme Court in Britain retire at the age of 75. It is not necessary in the UK for a person to possess experience on the bench before becoming a judge of the Supreme Court.
In Canada, Supreme Court and Federal Court judges are appointed by the Federal Government with the Governor-in-Council as the ultimate appointer of all judges. Inferior court judges are appointed by the provincial government.
Judges of the provincial or territorial courts retire at the age of 70. Judges chosen for appointment to French courts must be approved by a special panel, the High Council of the Judiciary.
Judges of the superior courts are appointed by the President of the Republic on advice by the High Council of the Judiciary. They do life-time service.
Under provisions of the Constitution of the Fifth French Republic (1958), “Article 64, the President of the Republic shall be the guarantor of the independence of the judicial authority. He shall be assisted by the High Council of the Judiciary’’.
In Germany, federal judges are appointed by the President on recommendation by a body, the Committee for Election of Judges. The committee is chaired by the Federal Minister of Justice and is made up of ministers of the federal state responsible for administrative courts and an equal number of members appointed by the Bundestag (Federal Parliament).
One of the requirements is that candidates “do not have to be professional judges but must be lawyers’’. In Switzerland, Parliament elects federal judges, and judges in the Cantons are elected by citizens through local political parties.
The Judicial Committee nominates federal judges who are then elected by the United Federal Assembly. I have made brief presentations on how judges are appointed, selected or elected in some major countries of the world.
It can be seen from the presentations that most of the methods of appointing judges have the President, Prime Minister, Monarch or Head of States as part of the appointment process.
Appointment of judges in most of the countries is a responsibility that is distributed among the executive arm of government, the legislature and the judiciary.
For example, a judicial committee or commission makes recommendations directly or indirectly to the President, Head of State, Prime Minister or Monarch who ultimately approves the nominations.
In a few countries, citizens elect judges. An example is in the US where citizens elect judges to the state courts. In federations, federal judges of the Supreme Court are appointed by the President, Head of State or Monarch upon recommendations by the Judicial Committee.
How are judges appointed in the Republic of Ghana?
Justices of the Supreme Court, Appeal court and others are appointed in accordance with modes prescribed by the 1992 Ghana Constitution. Article 144, Clause 1, states ‘’The Chief justice shall be appointed by the President, acting in consultation with the Council of State, with approval of Parliament’’. Clause 2 of Article 144 stipulates that “The other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council in consultation with the Council of State and with approval of Parliament’’.
For appointment of Court of Appeal, High Court and Regional Tribunal judges, Clause 3 states that they should be appointed “by the President acting on the advice of the Judicial Council”.
The Judicial Council is, according to Article 153 of the Constitution, composed of the following persons: the Chief Justice who is the Chairperson; the Attorney General; a Justice of the Supreme Court nominated by the Justices of Supreme Court; a Justice of the Appeal Court nominated by the Justices of the Court of Appeal; a Justice of the High Court nominated by the Justices of the High Court.
The others are two representatives of the Ghana Bar association, one of whom shall be a person of not less than 12 years standing as a lawyer; a representatives of the Chairmen of Regional Tribunals nominated by the chairmen; a representative of the lower courts or tribunals; and the Judge Advocate-General of the Ghana Armed Forces.
The rest are: the Head of Legal Directorate of the Ghana Police Service; the Editor of the Ghana Law Reports; a representative of the Judicial Service Staff Association nominated by the Association; a Chief nominated by the National House of Chiefs and four other persons who are not lawyers appointed by the president.
From the list of membership of the Judicial Council, a powerful legal institution, it is clear that the composition has been so entrenched that it would be difficult for a person or a President of the Republic to “smuggle” his/her favourites through the process to become a judge.
The Council of State is also composed in such a manner that it is difficult for the President to put political party members into the courts.
This is because Ghana’s Constitution is not like that of the US by which the US President can pack the courts with members of his political party or sympathisers.
If it ever happens that some political party members find their way onto the courts in an improper manner, then the Council of State; the Judicial Council and the Committee responsible for vetting judges must be blamed for not doing their work well.
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The answer is “yes” and also “no”. It depends on the type of democratic tradition and the legal framework that operates in the country where the courts function.
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