I confess I am raising these questions more to provoke a necessary conversation than to offer final answers. This is not a debate that can, or should, rest on one voice alone.
Yoni Kulendi has argued, quite firmly and with rhetorical clarity, that Supreme Court judges do not make law. But is that the full picture?
The detailed technical debates that sit within legal scholarship are beyond my professional expertise. However, as a citizen, I believe there is room—indeed a responsibility—to reflect on the philosophical and practical realities that shape governance. I intend to exercise that right in the pursuit of freedom and justice.
In practice, judicial interpretation inevitably shapes how laws evolve. The supervisory and appellate roles of superior courts often end up clarifying, refining, and sometimes effectively reshaping what the law means in real terms. The final authority of the apex court in constitutional matters also determines which laws stand and which do not.
So while legal theory often prefers neat separations of power, real governance is rarely that clean or mechanically divided.
The question, then, is why there is often institutional discomfort in acknowledging this reality.
There are grey areas in governance that require interpretation and clarification, just as there are ongoing public policy choices that must be made if society is to function coherently.
From a historical and material perspective, it is difficult to avoid the conclusion that courts—particularly apex courts—do play a role in shaping law through interpretation. This is not a criticism, but an observation of how legal systems function in practice. I also believe the judicial process in Ghana would benefit from more open, interdisciplinary engagement and scrutiny.
Ultimately, constitutional interpretation by the courts determines the validity of laws passed even by Parliament.
At one point, Deng Xiaoping’s rejection of a rigid interpretation of separation of powers struck me as controversial. With time, however, I have come to better understand the broader logic behind his thinking. I will return to that another time in more detail.
Serious development requires cooperation across institutions, supported by safeguards that preserve accountability while enabling effective outcomes. Governance works best not in isolation, but through structured interaction that still respects institutional roles.
The branches of government are not entirely separate, impermeable systems. To pretend otherwise risks ignoring how governance actually operates in practice.
That said, separation of powers remains important, but it cannot be treated as an inflexible doctrine that limits the ability of institutions—especially the judiciary—to deliver justice effectively.
In Ghana, an excessive focus on legal formalism at times appears to discourage deeper questioning of how the justice system functions end-to-end.
These issues should be discussed more openly, realistically, and without unnecessary caution. Society stands to benefit from that honesty.
If certain economic models have constrained development thinking, then it is worth examining whether similar rigidity exists in legal thinking as well—offering structure, but not always delivering substantive justice.
The Supreme Court, while bound by law and precedent, is not entirely rigid. In practice, it also contributes to the evolution of legal interpretation and doctrine.
There is room for this conversation to continue—whether as debate, disagreement, or even sharp disagreement. Progress often emerges through intellectual friction, not silence.
A full argument would require a detailed interdisciplinary treatment, but the conversation itself is necessary. It is one we cannot avoid, if we are serious about governance and justice.