Introduction
The rules of natural justice are not engraved on tablets of stone.
Natural Justice – its real function – is to ensure that a fair procedure has been established and followed by a decision-making body, be it of judicial, quasi-judicial or administrative character. Natural justice, is not written or codified into any single statute in Ghana, yet it is the silent architecture beneath every courtroom, tribunal, and administrative decision in Ghana. It rests on two (2) ancient limbs: audi alteram partem (hear the other side) and nemo judex in causa sua (no one should be judge in their own cause). In theory – very simple, yet in practice – very difficult without a straightforward application. The first limb demands voice and insists that no person should be condemned unheard; that decisions affecting rights must allow for explanation, defence and reply. The second limb requires that a decision-maker comes to the matter without interest, prejudice or appearance of bias. Between them, however, lies a wide and contested space: the gray area where strict procedure meets human perception; where delay begins to look like denial; where bias is not proved but may be reasonably suspected, and where a hearing is technically given yet not seen to be fair. This essay does not argue for a single outcome. It examines that space. How the courts have in recent decisions defined its boundaries and how natural justice is measured in instances where the rules are clear on paper but the experience of justice remains uncertain.
The first limb: audi alteram partem
The first limb of natural justice is audi alteram partem – hear the other side or hear both sides. It is a compendium of rights consisting of substantive and procedural guarantees which connote the right to a fair hearing, and provides a minimum guarantee that no person should be condemned without being heard. Article 19 of the 1992 Constitutionexpressly entrenches this right, but it is framed almost entirely around criminal trials. That narrow framing has wrongly given the impression that the right to be heard does not apply outside the criminal context. The courts, however, have rejected that reading and constantly held that audi alteram partem applies with equal force to civil suits, administrative actions, disciplinary proceedings and any decision affecting rights, interests or legitimate expectations. Thus, in the case of Republic v Ghana Railway Corporation; Ex parte Appiah [1981] GLR 752, the Court stated that the core idea implicit in the natural justice principle of audi alteram partem is that “a party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his statement in explanation of any question and answer any arguments put forward against it. The principle did not require that there must be a formal trial of a specific charge akin to court proceedings…”
This means that an affected party must be given adequate opportunity to prepare and present their case. This does not always require a formal hearing. Depending on the circumstances, written submissions may be sufficient. Furthermore, an affected party must be given a proper opportunity to consider, challenge or contradict any evidence. This includes, being able to present relevant evidence, call witnesses, cross-examine witnesses, etc. It also involves the person being fully aware of the nature of allegations against him or her, so as to have a proper opportunity to present his or her own case. In compliance with the audi alteram partem rule, a person may claim the right to adequate notification of the date, time and place of the hearing, as well as, detailed notification of the case to be met, in order to effectively prepare one’s case. It allows a person whose rights are affected with the right to legal representation, including access to state sponsored legal aid where applicable, and in instances where it is denied, it will be deemed breach of natural justice. All in all, every decision maker must exercise the qualities of “probity, transparency, objectivity, opportunity to be heard, legal competence, absence of bias, caprice or ill-will” in arriving at its decision. This limb protects voice and insists that process matters, because without the chance to speak, the law risks becoming power without participation.
The Second limb: Nemo Judex in Causa Sua
Natural justice also requires impartial decision-making. The second limb of natural justice is nemo Judex in causa sua, to wit, that no one should be judge in their own cause. It is aimed at protecting against partiality and biased hearings whilst requiring that a decision maker should not have a financial, relational or other significant interest in the subject matter or outcome of same. This principle applies to all courts of law, tribunals, arbitrators and any person having the duty to act judicially. A decision that is tainted by a breach of this limb will be quashed by a Superior Court. The jurisprudence of the Superior Courts in Ghana is clear that its application goes beyond proof of actual bias. The real test is an objective one; that is, would a reasonable and fair-minder observer, knowing the facts, conclude that there was a possibility of bias? If yes, the decision would be deemed tainted, even if the decision-maker acted in good faith. The rationale is simple: justice must not only be done, but must be seen to de done, lest public confidence collapses and the general populace suspects that the umpire is also a player.
The courts have consistently upheld the standard of real likelihood of bias, or more extremely, actual bias as the governing test for establishing a breach of the 2nd limb. Accordingly, a mere suspicion is not enough, rather an interest giving rise to a reasonable suspicion. If not, this limb can be fashioned as a weapon to seek the disqualification of any judge by the simple expedient of having appeared before him or her before. As was emphasized in Attorney-General v Sallah 2 G & G 487, “to disqualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest (other than pecuniary or proprietary) in the subject matter of the proceedings, a real likelihood of bias must be shown.” As further emphasized in the same Sallah case, “talk and gossip…are scandalous and appear to be undermining public confidence in terms of independence and impartiality of the judiciary. It does not hold water because idle talk and gossip cannot be the measure of the dependence or independence of the judiciary.” The case further highlighted that, Ghana is so small a community that everyone practically knows someone. Also, the family system is such that if a personal relationship is stretched to its logical conclusion, no judge would be found to be competent enough to sit on any case. Thus, the 2nd limb therefore guards structure and requires that the person deciding, be and appear to be independent and detached from the dispute in question.
Natural Justice: the space between
It is in this middle ground that most disputes over natural justice arise. The law may have been followed on paper, yet fairness can still feel absent – and sometimes, the law itself says strict compliance is not required. For example, take the issue of unnecessary delay. A hearing granted several years after a case may have been brought or an interim suspension pending a final determination, may satisfy the procedure but by then the damage to reputation or livelihood may have been caused. Courts will ask whether the delay defeated the purpose of the hearing. Yet, what is the truth is that urgency can also excuse delay especially in cases of public health, national security, public interest, or imminent financial loss, such that a decision may, sometimes, be made first and a hearing given after.
There are other recognized exceptions. Audi alteram partem may be limited where it is impracticable to hear everyone, such as mass disciplinary actions, or where legislation expressly excludes a hearing. In the recent consolidated cases of Centre for Citizenship Constitutional and Electoral Systems LBG v Attorney-General and 2 Others; and Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo v Attorney-General and 5 Others, Consolidated Writ Nos J1/20/2025 & J1/22/2025, the Supreme Court speaking through Tanko JSC emphasized that the audi alteram partem rule is not absolution but subject to some exceptions. These include, variation and flexible application of the rule in line with the context; different applications of the rule in preliminary and dispositive decisions; constitutional or statutory categories where the right is excluded or attenuated; and lesser consequences being attached to certain breaches of the rule. Regarding Nemo Judex in causa sua, it gives way to exceptions related to necessity, statutory authority, and the waiver or acquiescence of the parties involved. Even with these exceptions, perception matters. The “space between”forces judges to balance rules against reality. The question is no longer just “was the process followed?” but “was it fair enough that people can trust it, and did any exception truly apply?”
Conclusion
In conclusion, Natural Justice is not a technical checklist. The two limbs are minimum standards meant to ensure that power is exercised fairly and that people can trust the process. Article 19’s focus on criminal trials has caused confusion, but Ghanaian courts have made clear that the right to be heard extends to civil, administrative, and disciplinary decisions. Similarly, the rule against bias looks to perception as much as to actual prejudice, because public confidence depends on how justice appears. Yet the law also recognizes that fairness is not absolute. Exceptions for urgency, necessity, and impracticability show that procedure must adapt to context. Ultimately, natural justice lives in the space between rule and reality. It asks not only whether a decision was lawful, but whether it was made in a way that respected voice, guarded impartiality, and could withstand public scrutiny. That is how the rule of law earns legitimacy.
God bless!
