Supreme Court should be able to Reverse Past Decisions That Cause Injustice – Bernasko-Essah

Supreme Court nominee Justice Sophia Bernasko-Essah has argued that the apex court should be willing to reconsider and depart from its previous decisions where necessary to prevent injustice and ensure that the law remains consistent with Ghana’s 1992 Constitution.

Justice Bernasko-Essah made the submission on Thursday, August 27, 2026, during her vetting before Parliament’s Appointments Committee following her nomination by President John Dramani Mahama to the Supreme Court.

Responding to questions on the doctrine of judicial precedent and whether the Supreme Court should remain bound by its earlier decisions, the Court of Appeal judge acknowledged the importance of precedent in promoting certainty, consistency and predictability within the justice system.

She, however, noted that the principle should not prevent the apex court from correcting an earlier position when it becomes clear that the decision has produced an unjust outcome, was based on an error of principle, conflicts with the Constitution or has become impractical to apply.

According to Justice Bernasko-Essah, Article 129(9) of the Constitution gives the Supreme Court the authority to depart from its previous decisions when circumstances warrant such a move.

She explained that while earlier judgments provide stability and predictability in the interpretation of the law, the court must retain the flexibility to correct positions that no longer serve the interests of justice.

“To the extent necessary, the Supreme Court under Article 129 (9) is required to depart from its decisions if need be. It is the case that the decision which have earlier been made creates a sense of certainty, predictability and stability.

“However, if it appears to the court that in a matter which has come before the court, it has created injustice or there was an error in the principle or it was inconsistent with the constitution or it is not workable, then the court can depart from its previous decision and give compelling reasons why it is departing from it and give its new position on the law.”

Justice Bernasko-Essah’s position forms part of her responses to questions on the role of judicial precedent and the balance between maintaining consistency in the law and ensuring that established legal principles do not produce unjust or unconstitutional outcomes.