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 doing so is necessary to prevent injustice and uphold the 1992 Constitution.
Justice Bernasko-Essah made the remarks on Thursday, August 27, 2026, during her vetting by Parliament’s Appointments Committee following her nomination by President John Dramani Mahama.
Responding to questions on judicial precedent, the Court of Appeal judge acknowledged the importance of previous court decisions in ensuring consistency, certainty and predictability within Ghana’s legal system.
She, however, noted that precedent should not be applied rigidly when an earlier ruling has produced an unjust outcome, was based on an error of principle, conflicts with the Constitution or has become impractical to implement.
Justice Bernasko-Essah explained that Article 129(9) of the Constitution gives the Supreme Court the authority to depart from its earlier decisions when circumstances warrant such a move.
She stressed that any decision to overturn an earlier position must be supported by compelling reasons and should clearly establish the new legal position.
“To the extent necessary, the Supreme Court under Article 129 (9) is required to depart from its decisions if need be,” she said.
According to her, while judicial precedent provides stability and helps ensure predictability in the administration of justice, the courts must remain responsive when existing decisions no longer serve the interests of justice.
She said the Supreme Court could therefore revisit a previous decision where it finds that the ruling has created injustice, contains a fundamental error or is inconsistent with the Constitution.
Justice Bernasko-Essah maintained that the power to depart from precedent should be exercised carefully, with the court providing clear justification for changing its earlier position on the law.
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