Monday Essay: The Blood on the Bench: The Loneliness of the Independent Judge

Introduction

Judges do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.

​On the night of 30^th June, 1982, three (3) High Court judges were taken from their homes in Accra, namely, Justice Cecilia Koranteng-Addow, Frederick Poku Sarkodee, and Kwadwo Agyei Agyapong. By morning they were confirmed dead. They were not killed for corruption; not killed for crime; they were killed for judgment! It is for this reason that the bench and the bar commemorate Martyrs’ Day, a yearly event, in the memory of the slain judges and it serves as a reminder to all present judges, presenting them the most important question: “what are you willing to pay for independence?” The martyred judges knew and understood the price of loneliness on the bench. With this knowledge, they still showed up and wrote rulings whilst alive. They delivered judgments against powerful men and this was the reason the gun came for them. Today’s judge – the independent one – still faces the loneliness. The independent judge has the law, the record and his/her conscience. The independent judge lives a life of avoiding the calls that come after ruling against the powerful. The independent judge has to endure all manner of attacks on the media when one rules against the powerful. The independent judge risks losing invitations and friendships, when rulings and judgments are delivered against one’s friends, colleagues or contemporaries in society or at the bar. The opposite of the independent judge is partiality, which has three (3) faces – fear, favor and friendship. The blood on the bench remains a constant reminder of the price that has to be paid, if one is to remain independent. This essay is in commemoration of the 44^th Martyrs’ Day celebration and a note to today’s judge. 

Protecting fair and impartial courts: the imperative of judicial independence

The existence of fair and impartial courts is a cornerstone of any democratic society. At the heart of this ideal lies the principle of judicial independence, which ensures that judges are free to decide cases based on law and justice rather than external pressures or personal interests. Article 125(1) of the 1992 Constitution says it plainly, that “justice emanates from the people and shall be administered in the name of the Republic by the Judiciary which shall be independent and subject only to this Constitution.” Judicial independence operates on two (2) fundamental levels: decisional and institutional. Decisional independence requires that judges be free from interference when resolving disputes, while institutional independence ensures that the judiciary functions as a separate branch of government, insulated from executive and legislative control. Alexander Hamilton famously put it thus, “the judiciary possesses neither force nor will, but merely judgment” underscoring the importance of its independence from political will. An independent judge matters because citizens rely on courts to provide justice free from bias, coercion, or favoritism. The legitimacy of the judicial system thus depends, not only on actual fairness, but the public perception of fairness. 

Of course, judges are human beings who inevitably bring their experiences, beliefs, and values to the bench. The notion that a judge can completely eliminate personal influence is unrealistic. That notwithstanding, an independent judge is required by the law to exhibit the highest degree of impartiality that human nature permits. The classical view of judging portrays the judge as a mechanical applier of rules. Under this model, law is seen as objective, scientific and free from value judgments. Judges under this model are expected to suppress personal views and apply legal principles in a strictly logical manner. Justice Oliver Wendell Holmes Jr. is cited as exemplifying this ideal since his detached approach reflected a broader belief that judicial decision-making should be impersonal and disengaged. This model has been widely criticized, making way for the modern perspective which articulates a more dynamic vision of judging. According to Justice Benjamin Cardozo, the modern independent judge must weigh competing social interests and make choices that inevitably involve value judgments. The modern judge is allowed to view the judicial process as not merely interpretive but also creative, requiring sensitivity to the needs of society.

Passion, Bias, Prejudice and the Limits of Impartiality

The Code of Conduct for Judges and Magistrates reflects a balance between detachment and engagement. While it imposes strict obligations on judges to avoid impropriety and bias, it does not require them to withdraw from society entirely. Judges are permitted and even encouraged to participate in educational, civic, and intellectual activities, provided these do not compromise their impartiality. This acknowledges that interaction with the broader community can enrich judicial understanding and improve decision-making. At the same time, the Code of Conduct imposes clear limits. Judges must remain faithful to the law, avoid conflict of interest and refrain from conduct that undermines public confidence. The ethical framework supports engaged but disciplined judging. The presence of passion in judging is not inherently problematic. Indeed, a judge who is entirely indifferent may fail to appreciate the significance of the issues before the court. A judge’s passion can enhance sensitivity to facts, awareness of social impact and commitment to justice. However, passion becomes dangerous when it transforms into personal bias or prejudice, hostility towards parties and disregard for legal rules. A judge who allows personal emotion to override legal reasoning violates both ethical standards and the core function of the judiciary. Unlike general emotional engagement, personal bias is categorically impermissible. Judges must not exhibit prejudice based on race, gender, religion, or any other irrelevant factor. Such bias undermines the principle of equal protection and erodes public confidence in the legal system. Bias need not be explicit to be harmful. It may reside internally and influence decisions subconsciously. This makes it particularly difficult to regulate and highlights the importance of both self-awareness and institutional safeguards, such as recusal. Justice must not only be done but must also be seen to be done.

Admonition: live like the law is watching

To the judge today: your only master is the law – not fear, not favour, not friendship. Decide on the record. If it is not in evidence, it is not in your judgment. Social media noise and “big man” calls should be ignored as not being relevant to the judicial function. An independent judge should see the giving of reasoned rulings as an armour. Furthermore, an independent judge should avoid the appearance of bias and by so doing, be ready to lose one’s case through recusal, where necessary, rather than lose the court’s soul. The martyrs died for this. Independence is lonely, but compromise is fatal. Let the bench be clean by living as though the law is watching. Judges cannot resurrect the slain judges, but they can refuse to make their death meaningless. Every fair trial is a memorial. Every time a magistrate releases an accused because the prosecution has no case, despite pressure, that is a memorial. Every time a High Court judge throws out an illegal detention, that is a memorial. Every time a judge writes “the application is dismissed” to a powerful man and sleeps well that night, that is a memorial.  The bench will always be lonely because the right decision feels like the wrong career move, but loneliness is the price of the robe.

Conclusion

In conclusion, the blood on the bench in 1982 was a warning. It said: “if you make judges afraid, you make citizens unsafe.” In recent times, the gun is mostly gone, but the pressure remains. It comes as a phone call, a transfer, a critique on the social media, and many more. Martyrs’ Day asks us one thing: “Will you do the job anyway?” An independent judge is not necessarily a hero, that judge is merely doing what the Constitution demands. But coming from a history where judges have been killed for it, doing the ordinary thing may seem extraordinary. Let the bench remain lonely, regardless. But let it also be clean. That is how the blood on the bench is honored.

God bless!