Last Tuesday, May 6, the Supreme Court of Ghana in a 3-2 majority dismissed an application by Vincent Ekow Assafuah, a member of parliament who invited the court to halt the suspension of Ghana’s Chief Justice as effected by the president of the republic, His Excellency John Dramani Mahama.

The decision followed the unanimous ruling of the court dismissing the objection of the lawyer for the applicant against Acting Chief Justice Baffoe-Bonnie from presiding over the injunction application. In an interview after the proceedings, the lawyer asserted that in the constitutional history of the country there has not been any instance of a Chief Justice presiding over proceedings when the matter concerns the Chief Justice. Thus, as an Acting Chief Justice and a direct beneficiary of the issue at hand, he is not supposed to preside over the proceedings.

The process for the removal of the Chief Justice, Her Ladyship Getrude Torkornoo was initiated on March 25, when an official communique from the office of Ghana’s president stated that three petitions from different persons have been received by the president seeking for the removal of the chief justice, her Ladyship Getrude Torkornoo.

The communique also stated that the president has upon receiving the petitions, forwarded them to the Council of State to commence the consultation process mandated by article 146 of the 1992 Constitution. By the communique, a lot of issues was raised concerning the constitutionality of the process as initiated by the president.

Two separate writs by Ghanaian citizens Vincent Ekow Assafuah and Ebenezer Osei-Owusu were issued on 27th of March invoking the jurisdiction of the Supreme Court, arguing that the process as initiated by the President of Ghana is in clear violation of the constitution, specifically article 146. Former Attorney General Godfred Yeboah Dame representing his client Vincent Ekow Assafuah argued that there ought to be a notification to the Chief Justice before processes under 146 can be triggered as this is in consonance with all rules of natural justice and constitutionalism.

In addition, the chief justice issued a communication requesting the president and eminent members of the council of state to forward the petitions against her to her and be allowed at least seven days after receipt to respond to same. She argued,

It is the most fundamental percept of the common law and our constitutional dispensation ingrained into the justice delivery process, that no consideration that affects the rights of a defendant can be made unless the defendant has been given notice of the contents of a charge, and an opportunity to respond to them.

Thus, her response together with the evidence in the petition should be obtained before the procedure under article 146(6) can be triggered.

Pursuant to the combined reading of clauses (6) and (7) of article 146, the president is required to appoint a committee acting in consultation with the Council of State to determine the merits when a petition is for the removal of the Chief Justice. Thus, the constitution is silent on obtaining the preliminary response of the Chief Justice and determining a prima facie case before the setup of a committee.

The logical gap of a determination of a prima facie case was presented before the court in the case of Frank Agyei Twum vs. Attorney General & Akwetey (2005-2006), in which the plaintiff prayed for reliefs inter alia that the court should construe article 146 (6) concurrently with article 146(3) and 146(4) which requires the establishment of a prima facie case prior to the setting up of a Committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court.

Upholding the plaintiff’s averments, the court through Date-Bah JSC (as he was then) declared,

In my view, the objective purpose and spirit of the 1992 Constitution require that a Chief Justice be given the benefit of a prior determination as to whether there is a prima facie case established against him or her, before the President may establish a committee to consider a petition for his or her removal. A comparative examination of the relevant provisions dealing with petitions for the removal of other Superior Court Justices (in articles 146(3) and 146(4)) reveals an omission in the plain language of article 146(6) relating to the impeachment process of the Chief Justice which, in my view, could not have been intended by the framers of the Constitution.

The question that stirred public reactions, including the two suits, was whether or not the president has a mandate to first obtain the Chief Justice’s preliminary response before the determination of a prima facie case.

In response to the Chief Justice’s letter the president gave the Chief Justice 10 days to give her preliminary response to the petition before the establishment of a prima facie case.

Following the establishment of a prima facie case, the president on 29th of April established a 5-member committee in compliance with article 146(6) to inquire into the merits of the petitions. Consequently, the president suspended the Chief Justice pursuant to article 146(10) from office pending the outcome of the committee’s proceedings. It is noteworthy to quote the provision in article 146(1) which deals with the conditions of a removal of a justice of a superior court.

Article 146(1) – A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

While the suspension of the Chief Justice has raised many public concerns including a #SaveTheJudiciaryDemonstration, literally the president is following the constitutional requirements under article 146. Ghana lies in wait for both the court’s reasoning in upholding the suspension of the Chief Justice (which is set to be out on 21st May) and for the outcome of the findings of the committee set up to investigate the petitions against the Chief Justice.