150 Years of Finality– The Supreme Court of Ghana: From Crown Instrument to Constitutional Guardian

SPECIAL ANNIVERSARY EDITION OF MONDAY LEGAL ESSAY

Introduction

We want a Supreme Court which will do justice under the Constitution – not over it. In our courts we want a government of laws and not of men.

            In 1876, the Gold Coast Supreme Court sat for the first time with a British Chief Justice applying English common law to Fanti fishermen in a wooden courthouse by the sea. In April 2025, the Supreme Court of Ghana sat to hear an application to injunct an Article 146 committee inquiring into petitions for the removal of its own Chief Justice. The 149 years between those sittings trace the most turbulent and triumphant arc in Ghanaian public life: from colonial adjudication to constitutional guardianship. No other institution of state has existed continuously for 150 years. Parliament was dissolved repeatedly. The Presidency was overthrown eight times. Yet the Judiciary, in some form, heard cases every decade since 1876. That continuity is not accident. It is the product of institutional struggle — between indigenous authority and imperial law, between executive power and judicial independence, between military rule and constitutionalism. The argument is simple and that the Supreme Court’s authority today was not merely granted. It was earned, lost, and re-earned across 150 years of Ghanaian history. This essay tells that story. 

Before the Supreme Court: Law in the Gold Coast

Judicial power in pre-colonial Ghana resided in chiefs, queenmothers, and councils of elders. Disputes over land, marriage, inheritance, and crime were resolved in the open, often under a tree, with the procedure governed by the local customs and precedent. Elders and family heads served as advocates and the system prized reconciliation over punishment. Finality rested on communal acceptance rather than written judgments. The British presence on the coast, however, changed that. From the 17^th century, British merchants exercised informal jurisdiction around the forts at Cape Coast, Elmina, and Accra. The vacuum of formal law was filled between 1830 and 1847 by George Maclean, Judicial Assessor. Maclean heard cases from British and African litigants, applying a mix of English mercantile custom and what he understood of Fanti law. His court was popular because it was faster and cheaper than the chiefs’ courts, but it had no statutory basis. The British Settlement Act of 1843 thus gave the British the power to make Orders-in-Council for the Gold Coast. The Bond of 1844 followed where eight (8) Fanti chiefs signed a document acknowledging the Crown jurisdiction. It declared the object of law to be protection of persons and property, outlawed human sacrifice and “panyarring”, and agreed that serious crimes would be tried by Crown officers sitting with chiefs. This was the first formal fusion of English and customary law. An 1844 Order-in-Council then directed British courts to apply local custom “compatible with the principles of the law of England”. This was where the dual system was born.

Origins and Early life of the Supreme Court

The Supreme Court Ordinance of 1853 created the first statutory Supreme Court for the forts and settlements which had civil and criminal jurisdiction. The Chief Justice was the head but was also a member of the Executive and Legislative Councils. This meant that there was no separation of powers. The Court applied English common law, used English procedure, and conducted business in English whilst the customary law remained subordinate. In the early life of the Supreme Court, Appeals lay first to the Governor and Legislative Council, then to the Privy Council in London after 1877. For the locals, this meant that final justice was 3,000 miles away and two years late. The Court increased certainty in commercial disputes, which helped British trade, but it eroded the chiefs’ authority at the same time. In 1866, the Supreme Court was abolished and replaced by a “Court of Civil and Criminal Justice” under a Chief Magistrate. The experiment however failed as the jurisdiction was unclear, and commerce demanded a stronger court.

The 1876 Ordinance and Colonial Maturity

The Supreme Court Ordinance of 1876 re-established the Court on firmer footing as it now had jurisdiction over the Colony, Ashanti, and later the Northern Territories. In 1877, an Order-in-Council formalized appeals to the Judicial Committee of the Privy Council. Thus, for the next 83 years, the Privy Council was Ghana’s final court. The 1876–1947 period entrenched a sophisticated dual system, in that, the British courts handled commerce, land with documents, and serious crime whilst the Chiefs’ courts handled family, land without documents, and minor crime. All in all, the Supreme Court in this era lacked independence. This was because the Governors appointed, promoted, transferred, and disciplined judges. Also, the Judges sat in Executive and Legislative Councils until the 1940s making the court more political.

Africanization and Constitutional Stirrings

The 1954 (Constitution) Order-in-Council was revolutionary as it, for the first time, made provision for the Judiciary in the Constitution. The Chief Justice was appointed on the advice of a Judicial Service Commission. Supreme Court judges could only be removed for misbehavior or infirmity by a two-thirds vote of the National Assembly. In 1956, Sir Kobina Arku Korsah became the first Ghanaian Chief Justice and the Court began training the lawyers who would lead the country including K.A. Busia, N.A. Ollennu, J.B. Danquah who all appeared before it. The Courts Ordinance 1935 and the Native Courts Ordinance 1944 tried to unify the system, but the duality remained. That notwithstanding, by 1957, Ghana had a Bench that was majority African, professionally trained, and constitutionally recognized.

Independence and the First Republic: Sovereignty and subordination

On 6^th March, 1957, Ghana gained Independence and thereafter, the Court (Amendment) Ordinance 1957 split the Supreme Court into a High Court of Justice and a Court of Appeal. The West African Court of Appeal (WACA) appeals ended, But Privy Council appeals continued. The 1957 Constitution did not define the Supreme Court’s composition or quorum and in reality, the Supreme Court was a court in theory only. On 1^st July, 1960, Ghana became a Republic. The 1960 Constitution vested judicial power in a Supreme Court and High Court as superior courts, whilst establishing the Circuit, District, Juvenile, and Local Courts as lower courts. Article 42(1) made the Supreme Court final thus abolishing the Privy Council but sovereignty came with a price. The President appointed all judges and removal required a two-thirds vote of Parliament for misbehavior or infirmity. The President could revoke a Chief Justice’s appointment “by instrument under the Presidential Seal”. The Re Akoto & 7 Others [1961] GLR 523 case was a first test for the Supreme Court. Till date, many argue that it remains the symbol of judicial subordination. It was followed by the Kulungugu Affair where accused persons in the attempt to assassinate Nkrumah were acquitted by the Supreme Court. Nkrumah responded by dismissing CJ Korsah and constituting a Special Court that convicted the accused. The lesson was that finality lay with the President, not the Court. Judicial independence was thus broken.

Coups, Abolition and Survival

The Judiciary outlived every government from 1966 to 1992. This is worth celebrating since Parliament was dissolved five (5) times. The 1969 Constitution restored the independence of the judiciary allowing the Supreme Court to reassert itself. In 1972, the NRC coup suspended 1969 Constitution but kept courts. In 1975, the SMC abolished the Supreme Court. The Full Bench of the Court of Appeal became the final court. In 1979, the third Republican Constitution re-established the Supreme Court with changes. The 1979 Constitution was later suspended. Courts were kept, but Public Tribunals were created. On June 30, 1982, Three High Court judges namely Kwadwo Agyei Agyepong, Fred Poku Sarkodee, Cecilia Koranteng-Addow and a retired army officer were abducted and murdered. The judiciary was traumatized yet it kept working. The survival of the High Court and Court of Appeal through the 1980s meant that when the Fourth Republic came, there was a Bench to inherit.

150 Years of Development, Growth and Rule of Law

The 1992 Constitution was drafted with Re Akoto and the Kulungugu affair in mind. Chapter 11 makes the Judiciary independent and the Supreme Court powerful. Now, only the Supreme Court interprets and enforces the Constitution. Also, no appeal lies from the Supreme Court. Judges have security of tenure unless removed under Article 146. The Court have since evolved from a one-man colonial office in 1853 to a constitutionally entrenched apex court with 15 plus justices. The Court has overseen peaceful transfers of power through Election petitions where electoral disputes were settled by the law not on the streets. The Supreme Court has consistently upheld constitutional accountability by striking down laws and checking the Executive. The Court has since had its first female Chief Justice appointed under the 1992 Constitution and also seen, for the first time, a Chief Justice removed on the basis of an Article 146 petition presented under the constitution. When Parliament was dissolved in 1966, 1972, 1979, 1981, the Courts kept sitting. The state never fully collapsed because the Judiciary held. The 1992 Constitution did not create judicial power from nothing. Its codified lessons paid for by Korsah’s dismissal, the judges’ murders in 1982, and Re Akoto.

Conclusion: Finality and Duty

In conclusion, the Supreme Court of 1876 began with finality borrowed from the Privy Council. It could be overruled in London. The Supreme Court of 2026 exercises finality drawn from Article 125 which says “Justice emanates from the people and shall be administered… by the Judiciary”. That journey from the Crown instrument to the people’s guardian – is the meaning of 150 years. The Court is not perfect. Article 146 proceedings in 2025 show Ghanaians still argue about its process. But the fact that we argue through writs, not coups, is the Court’s victory. Chief Justice upon Chief Justice, from Chalmers to Baffoe Bonnie, have held the same seal. The seal’s authority no longer comes from the British Crown. It comes from the 1992 Constitution, and thus from us. After 150 years, the duty remains what the 1844 Bond first promised: “the protection of individuals and property”. The Court has since added to its mandate, the protection of the Constitution itself. That is finality. That is the Supreme Court at 150!

God bless!