Supreme Court nominee Justice Sophia Rosetta Bernasko Essah has said the apex court has the authority to depart from its previous decisions where doing so is necessary to prevent injustice or correct an error in the law.
Appearing before Parliament’s Appointments Committee, Justice Bernasko Essah said although decisions of the Supreme Court provide certainty, stability and predictability in the legal system, the court should not be bound indefinitely by a precedent that has produced an unjust or legally untenable outcome.
She was responding to a question on whether the Supreme Court, whose decisions are binding on all courts, including itself, should be permitted to depart from its previous decisions.
Justice Bernasko Essah answered in the affirmative but stressed that such departures must be justified by compelling reasons in accordance with Article 129(3) of the 1992 Constitution.
“Yes, to the extent necessary, the Supreme Court is required under Article 129(3) to depart from its decisions if need be,” she said.
She explained that judicial precedent plays an important role in maintaining consistency within the legal system by ensuring that similar cases are treated in a predictable manner.
She added, “However, if it appears to the court that in a matter which has come before the court, it has created injustice, or it is creating injustice, or there was an error in the principle, or it was inconsistent with the Constitution, or not workable, then to that extent the court can depart from its previous decision.”
Justice Bernasko Essah emphasised that departing from precedent should not be undertaken casually.
She said where the Supreme Court chooses to depart from an earlier position, it must provide compelling reasons for doing so and clearly set out the new legal position.
The approach, she suggested, strikes a balance between respecting established judicial precedent and ensuring that the law remains responsive to constitutional principles, fairness and changing circumstances.
