Democratic acculturation and the sad assault on neutral principles in Ghana’s legal system [Article]

A democratic state runs on the notion of increased awareness of the democratic state, consistency of the principles guiding it and adherence to the neutral principles in the application of the law.

Democratic culturalization happens when civil society develop fundamental proclivities for the democratic idea through an understanding that, the law is enforced without any form of bias.

One of the hallmarks of a democratic regime is adherence to neutral principles in applying the law. If laws are enforced with partiality toward some classes of people or groups, the state becomes an instrument of oppression rather than a guarantor of liberty and property. Respect to neutrality separates liberals, classical or otherwise, from authoritarians.

It is terrible to see law enforcement misconduct that results in death. But ultimately, individual wrongdoers, whether private citizens or low-level officials like police officers, can and should be held to account.

The trashing of neutral principles by government officials in high office, however, can endanger the liberal regime. Politics then becomes all about acquiring power to protect your side from the other.

Neutral principles require that whatever rationale is selected, it must be applied consistently in all cases; it cannot be selectively altered in subsequent cases solely because the outcome dictated by use of that principle is seen to be politically distasteful or offensive.

Thus, a decision in applying a principle should not depend on the identity of the parties, or even on the nature of the dispute, but rather on standards that transcend the dispute and the character of the parties. Standards must always precede public policy relating to the law.

Consistency of standards is a key requirement for dealing with neutrality of principle.

In a democracy, where there are reasons to believe that trust in those interpreting the law is low, constraint on discretion is even more essential and where there is strong democratic acculturalization and there is high trust in those interpreting the law, neutral principles reduces conflicts between the state and the governed.

A democracy must not chose to entrench certain rights and not others, but once the rights are determined, it requires that they be defended in a neutral manner.

The Ghanaian state is a mockery of the idea of neutral principles. We have seen situations where judges have turned this principle upside down(Our Amicus brief is an example). The police service is the biggest offender of the idea of neutral principles..

The executive presidency in its desire to adhere to constitutional provisions has become the biggest abuser of neutral principles. Democracy cannot develop in a society where neutral principles are skewed to benefit specific classes of the political establishment.

Democratic acculturalization becomes a false expectation in a state where elite hegemony on the law fundamentally derails the neutrality principles expected in law enforcement. Neutral principles have purchase outside the law as well.

A democracy in a complex society like Ghana must depend on experts and or thought leaders because most people do not have the time, inclination, or technical background to understand completely certain issues of public importance. But necessary democratic confidence in experts is, in turn, dependent on their neutrality.

Experts are trustworthy precisely because they leave aside considerations that are irrelevant to their professional expertise in making their judgments. The problem in Ghana is how we have developed abhorrence to expert opinions, thought leaders and place no value on the intellectuals in the public policy space (Check how we deride CSOs and Academia)

Another problem with our democratic entrenchment is how in our quest to pretend to honor the idea of neutral principle, our social conservative state is failing to expand legal education in Ghana.

In an era where the rational bureaucracy of the state is expanding and requiring more regulation, management and reform, the administrative state of Ghana is refusing and failing to make legal education easily accessible.

The poor and the marginalized have become victims of this octane process to deepen a perpetual disdain for the principles of neutrality in the general application of the law. The visceral hostility of some of Ghana’s elites towards legal reform only shows we shall remain a cuckoo in the progressive nest and our quest to deepen neutral principles would just remain intents and not actions.

We have an assemblage of men in the GLC whose minds have refused to deal with facts and moral certainties but rather have resorted to suppressive tendencies to maintain a status quo which is anti-development, lame and does not even smack of any serious adherence to orthodoxy.

They have created an impression of the legal profession been a freak of fortune which the rest of the society are just mere beneficiaries. The GLC is made up of men who are bent on maintaining a social expectation which we have been programmed to observe for the past 60 years.

A society that seeks to make the law its foundation is in itself engaged in a process to limit legal education and ultimately totally assault neutral principles in the application of law.

We as a nation cannot continue this path of limiting access to legal education and hope to have a resurgence of the discipline that society requires.

The Deprecatory estimation of the collective thoughts of the people by the GLC and its cohorts is not the best and should not be accepted. We should all resist the oppression of the GLC with marvelous potency and support the adherents of legal education reform. Absence of lawyers affects the notion of “certainty of the law” and that eventually has a negative effect on neutral principles in the application of the law.

Relying on neutral principles is not to give up on reforming institutions that are systemically discriminating against classes of people. The struggle for the instantiation of neutral principles can be a noble one because once rights are determined, democracy requires that they be defended in a neutral manner. A critical analysis of the Ghanaian state reveals a daily reversal and disrespect for this principle in all spheres of life. There is lack of institutional reforms to make this happen. The political elites have jointly become the biggest culprits in disrespecting the idea of neutral principles. The current Auditor general issue is a spite on neutral principles.
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Source: Ebenezer Tackie Oblie (Director, Conservative Policy Research Centre)