Last week Ghanaians awoke to depressing news. A team of investigative reporters revealed they had 500 plus hours of video tapes showing High Court judges and lower court magistrates accepting payoffs to acquit defendants in cases ranging from robbery and murder to bribery itself. (Click here, here, and here for news accounts.) For Ghana, this is bad news, very bad news: dangerous criminals remain at large; some innocent individuals may have been jailed because they didn’t pay off a judge; and whatever confidence citizens may have had in the courts has been shattered.
But the initial reports contain some very good news as well. The government is taking forceful and responsible action to cleanse a critical state institution of corruption. In accordance with article 146 of the Ghanaian Constitution, Chief Justice Georgina Theodora Wood has established a committee to examine the allegations against each judge and advise Ghanaian President Mahama whether he should remove any of them from office per the constitutional test of “stated misbehavior.” At the same time, the Attorney General has announced his intention to prosecute judges, magistrates, and their accomplices for bribery and related crimes.
The scandal is similar in many ways to the one that engulfed Chicago’s courts in the 1980s, recounted in a Foreign Policy article flagged here last week. As in Ghana, the Chicago cases arose from secret tape recordings showing judges fixing cases for money. Like the Chicago judges caught on tape, some of those implicated in the Ghanaian scandal claim the taping violated the sanctity of the judicial chambers and evidence from them should therefore not be heard in any legal proceeding. And, as in Chicago, many in Ghana are urging that those who bribed their way out of a criminal case be re-tried before an honest judge.
As the Ghanaian scandal unfolds difference between it and the one in Chicago will emerge, but some issues will be the same, and it may help Ghanaian authorities and citizens to know about Chicago’s experience. Probably most useful is the reasoning American courts relied upon to overcome the defense of double jeopardy when prosecutors sought to retry those defendant who had paid a judge to acquit them.
Ordinarily, the ancient doctrine of double jeopardy, applicable in Ghana thanks to its ratification of UN Covenant on Civil and Political Rights, would bar authorities from trying a defendant for the same crime twice. But in what is likely the first case in any jurisdiction where retrial was sought on the basis of bribery at the first trial, an American federal appellate court held double jeopardy was not applicable. The court reasoned that since an acquittal at the first trial was a preordained conclusion, the defendant was never truly in jeopardy at the first trial, and hence there was no double jeopardy if the state retried him. Aleman v. Hon. Judges of the Circuit Court,138 F.3d 302 (7th Cir.1998).
A knottier problem that Ghana may face is whether corrupt judges convicted innocent defendants to “make their numbers look good.” In the aftermath of the Chicago scandal some convicted defendants — who had not bribed but had been convicted by judges later shown to have accepted bribes in other cases — sought new trials on the grounds of “compensatory bias.” They claimed they were innocent and that bribe-taking judges, fearing that issuing too many acquittals would spotlight their corrupt activities, had convicted them to compensate for the acquittals in the cases where the judges took bribes. Although lower courts had looked askance at the argument, the U.S. Supreme Court did not. In a 1997 decision it ruled that a defendant convicted by a judge who took bribes in other cases was entitled to inquire as to whether he or she had been wrongfully convicted. Although the defendants who brought the issue to the Supreme Court failed to unearth evidence sufficient to merit a retrial, the court hearing the evidence they did produce ruled that one defendant had shown his judge had exhibited a pro-prosecution bias at the sentencing stage, possibly to counter his reputation for being “soft” on criminals, and ordered a re-sentencing. This is apparently the extent of the fallout as news stories and case law reveal no other case in which a convicted defendant was able to show compensatory bias. But Ghanaian authorities may want to prepare now for an onslaught of such cases.
Perhaps the most important lesson Ghana can take from the Chicago experience is the value of convening a reform commission to study how corruption came to infect its courts and what can be done to vaccinate against future infections. Post-corruption scandal commissions usually have only sketchy data about what caused the corruption and can thus say little more than transparency and accountability should be increased. But, as in Chicago, the individual cases against Ghanaian judges and their accomplices will reveal a wealth of detail about how different corruption schemes courts operated. A special reform commission can use this information to offer detailed recommendations for what changes are needed and why.
The bad news for Ghana remains the revelation of rot at the core of a critical institution of government. But the Chicago experience teaches that this can be good news as well. For the scandal presents an opportunity to cut the rot away and restore the courts’ ability to deliver justice untainted by greed restored. Ghanaians should seize the moment.
Rick, thank you for the excellent post. The analogy to Chicago is an interesting one. With that many judges implicated, one has to wonder how many others on the Ghanaian bench knew about the bribery and turned a blind eye. Do you happen to know how far the Chicago investigation went into who knew what when? Were judges who were not directly implicated in taking bribes nevertheless let go?
To my mind restoring faith in the judicial system (in Chicago then and in Ghana now) will take far more than firing and convicting those who were literally corrupt. It will involve flushing out those judges who knew and said nothing, or deliberately stuck their heads in the sand.
I’ve also been wondering about how and the extent to which it’s possible to rid the judiciary of those complicit in corruption, a question which perhaps implicates the broader point on administrability. As the Foreign Policy article notes, even if only a few judges are corrupt, this matters little if someone can steer their case at the assignment process to a judge willing to accept a bribe. Relatedly, the complicity of court staff and intermediaries in Chicago increased the difficulty of prosecuting judicial corruption — I wonder whether incentives like raising salaries for court staff as well should also be considered.
On that note, I do think the idea of raising judicial salaries sounds enticing, but without data of the type Katie raises, I’m skeptical of how effective it might be, especially where corruption stems from above or political pressures, or where processes for selecting and punishing judges remain unsatisfactory.
Rick, thank you for another great post. After reading this, I have a similar question to one I had after reading your article in Foreign Policy. That article relays what the director of the Gambat reform commission (in Chicago) learned when he interviewed judges who continued taking bribes even after peers were being indicted: they needed the money to keep up the lavish lifestyles bribes afforded.
In light of that explanation—and taking it at face value—I wonder if part of Ghana’s reform effort should include an increase in salary for judges. On the one hand, a higher salary might decrease the incentives for a judge to accept an offered bribe from a purely economic perspective. On the other, if a judge has little fear of being prosecuted for taking a bribe there may be no individual economic disincentive to taking a bribe regardless the judge’s official salary.
Of course, increasing judicial salaries is not a cure-all. But it is possible that, in concert with increased anticorruption measures, higher salaries may reduce the incidence of judicial corruption on the margin.
Nathan, your point about the need for prosecution is a good caveat, but the cost of all the administrative hassle Rick highlights above seems like some support for your higher salary proposal: it might be more expensive up front, but might save on costs down the road. I wonder if any economically-minded legal scholar has done any sort of study on the returns on higher salaries in relation to corruption; I’m sure the results would be highly context-specific, but I’d be interested to see just how much a difference that sort of change can make (one way or the other), and what the ideal or minimum salary is from some sort of utilitarian cost-benefit perspective (with, granted, one wanting to leave some sort of cushion).
Rick, Thank for is very interesting post. Like Nathan, I also wonder whether Ghana should increase Judge’s salaries.
Several reports on corruption of the judicial system stated that part of the problem could be explained by the fact that judges’ salary were too low. In many countries, judges cannot entirely support themselves without getting involved in bribery to increase their incomes. Further, it has been argued that low salaries do not attract qualified legal personnel.
Raising Judges’ salaries could contribute to remove incentive for judicial corruption but, to be efficient, additional measures should be envisaged correlatively, especially when the system is widely perceived as corrupt, it presents a special set of challenges.
Moreover, high judicial salaries have also been presented as having potential undesirable effect. For instance, Francis T. Seow, argues that salaries judges receive in Singapore could be described as a ‘permanent bribery’ impairing impartiality to the extent that judges would never decide a case in a way that could threaten their wages.
Rick, Is Ghana going to face a shortage of eligible judges after dismissing all of those involved in the corruption scandal? Since the legal profession requires special training that takes years to accomplish, and I imagine that Ghana was not starting out with a surplus of lawyers to begin with, I wonder the effects that having to replace so many judges will have.
Additionally, because of the special training involved, I wonder if there are more chances to educate people about the harms of bribery (and, in order to maximize effectiveness, about how likely they are to be caught if committing bribery), during the course of law school there.