On November 19, the Community Court of Justice of the Economic Community of West African States (ECOWAS)—a regional court with jurisdiction over human rights violations in West African member states—ordered Ghana to file its defence by December 19, 2025, in the case of Gertrude Araba Esaaba Sackey Torkornoo v. The Republic of Ghana. Former Chief Justice Gertrude Torkornoo alleged human rights violations during the process of her removal from office in September over “misbehavior” and “incompetence” allegations.
The court’s order directing Ghana to file a defence came despite preliminary objections raised by Ghana’s attorney, Dr. Srem Sai. He objected to the court’s jurisdiction to hear the matter on the grounds that it required interpreting Ghana’s constitution—an issue he contended was already settled by Ghana’s highest court. He also objected to Gertrude Torkornoo’s request for provisional measures—temporary court orders to preserve the status quo while the court decides the case—which she filed together with her initial application. Dr. Srem Sai submitted that Ghana acted strictly in accordance with its constitution.
On the issue of jurisdiction, the court stated that Article 9(4) of the Court’s 1991 Protocol, amended by the Supplementary Protocol of 2005, gives the court jurisdiction to determine human rights cases pending in any ECOWAS member state. The court held that the mere allegation of human rights violations by a citizen of Ghana—a Community citizen—is sufficient to invoke its jurisdiction.
Ghana objected on two grounds. First, the court could not interpret a member state’s constitution when a municipal court—a domestic national court—had already ruled, nor could it examine national court judgments. Second, the court could not hear a case against a member state when that same case was pending in the member state’s national courts, as this would violate the principle of sub judice—a Latin term meaning “under judgement,” which prohibits public discussion of a matter under judicial consideration to avoid prejudicing the court’s decision.
The court dismissed both of Ghana’s objections. It reasoned that by its own precedent, the court was not empowered to interpret national or local laws, review judgments, or exercise appellate jurisdiction over national courts. However, the court could consider such legislation, judgments, or decisions in cases where an applicant alleges that a national constitution, local law, or court proceeding violated their human rights. In such cases, the court would examine the issue strictly within that context to protect human rights.
Additionally, the court held that two cases with similar facts and reliefs would not invoke the rule of sub judice as a basis to challenge the court’s jurisdiction.
Gertrude Torkornoo’s human rights abuse allegations are rooted in Articles 5, 7, and 15 of the African Charter on Human and Peoples’ Rights. She argued that her suspension as Chief Justice—and the later creation of a panel to determine whether she committed misconduct—infringed on her right to a fair hearing, and to fair, equitable, and satisfactory conditions. She also asserted that her suspension and the legal proceedings exposed her to local and international public disgrace and hatred, which she said violated her right to human dignity.
In addition to her substantive application, Gertrude Torkornoo filed a request for provisional measures, seeking an order to quash her suspension and to halt the panel created to investigate the allegations against her. She also argued that if the investigation continued and she was removed and replaced, she could never regain her position as Chief Justice. A favourable court ruling would therefore be nugatory—meaning useless or ineffective—because she could not be reinstated.
On admission, the court declared that Gertrude Torkornoo satisfied all three requirements under Article 10 of the Court’s 1991 Protocol, as amended by the Supplementary Protocol of 2005. The Protocol requires the applicant to: (1) establish victim status—that they personally suffered the alleged human rights violation; (2) not file the application anonymously; and (3) not to submit the application to another international court for adjudication.
Gertrude Araba Esaaba Sackey Torkornoo served as Chief Justice of the Republic of Ghana until her suspension from office following allegations of misconduct. Acting under provisions of the 1992 Constitution of Ghana, President John Mahama suspended her in September 2025, and instituted a committee to investigate three misconduct petitions filed against her. The suspension proceedings garnered public scrutiny nationally and internationally, and has been the subject of legal and constitutional debate within Ghana—including proceedings before the country’s highest court.
After her suspension, Gertrude Torkornoo approached the ECOWAS Court, alleging that Ghana’s suspension procedures and disciplinary proceedings violated her fundamental human rights under regional and international human rights instruments.
The court did not address exhaustion of local remedies—the requirement that litigants pursue domestic legal options before filing international claims. However, it clarified that sub judice, a Latin term meaning “under judgement,” refers to matters under judicial consideration that are restricted from public discussion to avoid prejudicing the court. The court concluded that sub judice does not bar its jurisdiction over alleged human rights violations when all jurisdictional requirements are met.
Gertrude Torkornoo’s case sets a precedent in human rights cases within the ECOWAS Community—particularly regarding the application of international human rights instruments, even when international protections conflict with national laws and procedures. The case has also distinguished between sub judice and exhaustion of local remedies, and how the principle of sub judice is applied by the ECOWAS Court.
Two unresolved questions remain. First, the African Charter requires exhaustion of local remedies before bringing human rights claims. Does the ECOWAS Court have jurisdiction over Gertrude Torkornoo’s case when her claims rely on the African Charter, even though the ECOWAS Protocol does not require exhaustion of local remedies?
Second, the court denied Gertrude Torkornoo’s request for urgent provisional measures. She has already been removed from office and replaced. If the court rules in her favour, what practical remedy can it offer? She cannot be reinstated as Chief Justice.
I patiently look forward to learning more as the case unfolds. Insha’Allah.
