The recent remarks of the Chief Justice of Ghana at the Minerals Income Investment Fund (MIIF) and following his visit to the Social Security and National Insurance Trust (SSNIT) have generated a legitimate constitutional debate. During the visit to MIIF on September 2, 2026, the Chief Justice reportedly praised the institution’s performance and remarked that, when compared with developments under the preceding eight years, “we wonder what we really have been doing in the past eight years.” He also referred to the previous situation at SSNIT and its consideration of the disposal of valuable assets, including the Labadi Beach Hotel.

The issue is not whether the Chief Justice is entitled to appreciate improvements in public institutions. He certainly is. The deeper constitutional question is whether the head of the Judiciary can publicly contrast the performance of the current administration with that of its political predecessor without creating a perception that the Judiciary has taken a political position. That distinction is crucial because judicial independence is not merely about whether judges can decide cases without receiving instructions. It is also about whether citizens can reasonably believe that they do so without political allegiance, gratitude, hostility or preference.

The Judicial Service has subsequently defended the comments, saying they were made in good faith and were not intended to undermine judicial independence. That defence, however, does not completely resolve the constitutional concern. The question is not necessarily what the Chief Justice intended. The question is what his words communicate institutionally.

Judicial independence is more than the absence of political instructions. Ghana’s Constitution is unusually explicit on this matter. Article 125 provides that the Judiciary shall be independent and subject only to the Constitution. Article 127 goes further, providing that the Judiciary, in both its judicial and administrative functions, shall not be subject to the control or direction of any person or authority. It also prohibits interference with judges in the exercise of their judicial functions.

But constitutional independence has two dimensions. The first is actual independence: judges must genuinely be free from political direction. The second is perceived independence: citizens must have reasonable grounds to believe that judges are impartial.

The second dimension is often underestimated. A court can technically be independent while losing public confidence in its independence. And for the Judiciary, public confidence is not superficial. It is part of the institution’s effectiveness. A judicial decision ultimately depends upon the public accepting that the judge arrived at the decision according to law rather than political preference. This is why the Chief Justice occupies a particularly sensitive position.

A statement made by an ordinary citizen saying, “the Mahama administration is performing better than the previous government,” is political commentary. A Chief Justice making substantially the same comparison carries an entirely different institutional meaning.

The problem is not praise; it is comparison. There is nothing inherently improper about the Chief Justice congratulating MIIF, SSNIT or any other public institution. Indeed, that could be entirely consistent with his responsibility to encourage good governance. If, for instance, he had said: “the management of this institution deserves commendation for improving its performance”, there is little reason to regard that as political.

The problem emerges when institutional praise becomes a comparative political assessment. By saying that an institution is performing well is an assessment of an institution. Saying that its present performance makes one wonder what the country was doing during the previous eight years is an assessment of a political era. And in Ghana’s political context, “the past eight years” is not a politically neutral expression. It refers unmistakably to the period of the previous administration. That distinction extremely matters.

The Chief Justice is not an ordinary public commentator. One possible defence is that the Chief Justice is a Ghanaian citizen and therefore retains the right to express opinions about national development. That proposition is true but inherently defective. Public office changes the institutional consequences of speech.

A university professor, an economist, a journalist or an ordinary citizen can praise a government and condemn its predecessor without anyone reasonably concluding their stance will affect their institutional decisions. The Chief Justice is different: He is the head of one of the three constitutional branches of government. His words therefore have an institutional dimension.

Judicial Independence is essential against the background that government decisions can be challenged in constitutional litigation, public procurement can be challenged, executive appointments can be challenged, electoral disputes can reach the courts, government legislation can be challenged, actions of ministers can be challenged at the court, and even the conduct of the President can, within the constitutional framework, become the subject of judicial proceedings. Therefore, the head of the Judiciary publicly praising the performance of the governing administration creates an avoidable perception problem.

There is another problem: the evidentiary basis. The Chief Justice’s comments also raise a practical question. What exactly does “performance” mean? MIIF may have experienced improvements. SSNIT may have equally improved its financial position. Some state-owned enterprises may indeed be performing better. But establishing that a government has performed better than another government requires considerably more than observations during institutional visits. It requires measurable indicators, appropriate benchmarks and a sufficiently comprehensive time horizon. A Chief Justice is not constitutionally prohibited from forming an economic opinion. But when the opinion implicitly evaluates the performance of a political administration, the evidentiary standard should be particularly demanding because of the office from which the assessment comes.

Otherwise, a statement based on information received during a brief institutional visit can inadvertently acquire the appearance of a judicially authoritative verdict on a government’s performance. The danger is elusive: political indebtedness. There is an even deeper institutional issue. Judicial independence does not require that a judge actually be politically indebted to the government. It requires that no reasonable observer should have compelling grounds to suspect such indebtedness.

The Chief Justice’s position is constitutionally significant partly because the President participates in the appointment process of the Chief Justice. Under Article 144, the President appoints the Chief Justice in consultation with the Council of State and with parliamentary approval. That constitutional appointment relationship does not mean that the Chief Justice is beholden to the President. Quite the contrary: once appointed, the Judiciary is constitutionally independent. But precisely because the executive participates in the appointment process, the Chief Justice has an additional reason to avoid unnecessary political signalling.

If the Chief Justice publicly praises the government’s performance and urges officials to ensure that the President’s agenda succeeds, critics may reasonably ask whether the Judiciary is sufficiently distanced from the Executive.

The answer may be an emphatic yes in terms of actual judicial independence. But institutions must protect themselves against the appearance of dependence as well. The remark “make the President’s agenda succeed” is particularly sensitive. This is arguably more problematic than praising MIIF or SSNIT.

There is an important distinction between serve the public interest and perform your statutory mandate effectively and do everything to make the President’s agenda succeed. The first is institutionally neutral. The second is politically loaded. A government agenda is, by definition, a political programme. It represents the governing party’s policy choices. The Judiciary’s constitutional role is not to make a President’s political agenda succeed. Its role is to interpret and apply the Constitution and laws, protect rights, resolve disputes and uphold the rule of law.

Sometimes judicial decisions will facilitate government policies because those policies are lawful. At other times, the Judiciary’s constitutional duty may require it to stop the government from implementing its preferred policy. That is precisely why judicial independence matters. A politically neutral Judiciary must be able to tell a government No, even when the government believes its policy is beneficial.

The danger of institutional capture begins with language before it reaches judgments. It would be excessive to claim that the Chief Justice’s comments prove that the Judiciary has become politically captured. There is no evidence from these remarks alone to establish that. But it would also be naïve to say that language is irrelevant. Institutional capture rarely begins with a judge openly announcing “I am politically aligned with the government.”

It can begin much more subtly, with relationships, rhetoric, proximity, praise, public endorsements and the gradual erosion of institutional distance. That is why democratic institutions develop conventions of restraint. The objective is not to silence public officials, especially Judges. It is to preserve the boundaries that allow institutions to function credibly.

Judges have a different relationship with political neutrality. A judge does not have to be politically ignorant. Judges obviously understand politics: they know which government policies are being implemented, they can have personal political opinions etc. What distinguishes judicial office is that those preferences must remain irrelevant to the exercise of judicial power.

That requires not only impartial decision-making but also disciplined public conduct. The Chief Justice therefore has a stronger obligation than an ordinary citizen to distinguish between personal opinion, institutional observation and political endorsement. The closer a statement comes to the third category, the greater the danger.

Indeed, Ghana’s own constitutional framework recognises the importance of protecting the Judiciary’s independence, dignity and effectiveness. Article 127 expressly requires state organs to accord the courts such assistance as may reasonably be required to protect those qualities. The Chief Justice can commend institutions for excellence: He can encourage public servants, he can demand accountability, he can speak about economic and social conditions.

But when doing so, political comparisons should be avoided, particularly comparisons that implicitly endorse the sitting administration against its predecessor. The Judiciary must not merely avoid political control; it must maintain sufficient distance from political power to make its independence believable. The controversy should therefore be understood as a warning about institutional perception, not as conclusive proof of judicial capture.

The safest position, therefore, is not that the Chief Justice must never praise a government institution. It is that the head of the Judiciary should maintain an especially high degree of political neutrality in public pronouncements. Ghana does not merely need judges who are independent. It needs a Judiciary whose independence is so visibly protected that neither government nor opposition can plausibly claim ownership of it.

Emmanuel Kwabena Wucharey
Economics Tutor, Policy Advocate and Religion Enthusiast.