Legal analyst Amanda Akuokor Clinton says former Chief Justice Gertrude Torkornoo’s latest petition is “her strongest yet,” arguing that while the law favours her, political realities may block her return to the bench.
“Out of the many petitions that Chief Justices [have filed], the one she filed this week is the one most likely to succeed,” Clinton said. “She is essentially arguing that you can remove her as Chief Justice, but you cannot, by the Constitution, remove her as Justice of the Court.”
Torkornoo was removed on September 1 by President John Mahama following a series of petitions from businessman Daniel Ofori, the group Shinning Stars of Ghana, and lawyer Ayamga Yakubu Akolgo. The petitions alleged misconduct including misuse of funds, abuse of power in judicial transfers and unethical conduct.
Acting under Article 146 of the Constitution, the President consulted the Council of State and appointed a five-member committee chaired by Justice Gabriel Scott Pwamang. The committee concluded that Torkornoo should be removed, prompting the President to issue a Warrant of Removal covering both her position as Chief Justice and as a Justice of the Supreme Court.
In her new application, however, Torkornoo argues the President exceeded his powers by using a single process to remove her from two distinct offices. She contends that while petitions targeted her conduct as Chief Justice, there was no constitutional basis to extend the removal to her seat on the Supreme Court bench.
Clinton agreed that this line of attack strikes at the heart of judicial independence. “Just because there were petitions to remove her as Chief Justice, if they didn’t touch on removing her as Justice, then it can be seen as an overreach of the executive to remove her as Justice,” she said.
She pointed to constitutional safeguards. “Article 128 and Article 144 essentially treat both roles separately in terms of the Chief Justice role and the Justices of the Supreme Court’s role differently. They have essentially different appointment processes and different roles,” Clinton said.
Comparing Ghana to other countries, she added: “In other jurisdictions, removal from the Chief Justice role does equal removal from the bench. Countries such as India, Nigeria, Kenya and the United States, if you’re removed from the Chief Justice role because the role is fused, you are automatically removed. With the current state of the Constitution as it is, since it hasn’t been amended, these roles are distinct.”
Still, Clinton warned that a legal win may not translate into reinstatement. “Legally, the decision could go in her favour because the law, as I mentioned, is very sound. However, practically and politically, there are a lot of barriers,” she said. “These are the same Justices of the Court who ruled against her. How would it be like if she, for instance, resumed at a lower position in terms of as a Justice and would have to deal with them? It might be toxic, to say the least.”
“Even with a favourable decision, returning to the bench… might be very messy politically, and the executive or future governments might resist,” she added.
Clinton said the stakes reach beyond one individual. “She’s not just protecting her role or her skin or herself or her position, she’s protecting all future Chief Justices’ roles. And I say this, not lightly, because this is a precedent being set,” she said. “Ultimately it undermines the separation of powers and the guarantees in the Constitution that Justices are secure in their position except for specific misconduct proven through due process.”
The dispute comes as Ghana’s long-running constitutional review reaches its final stage. “No amendment suggestion has been made as far as I’m aware,” Clinton said. “The only amendment suggestion that has been made in relation to Article 146 is that it shouldn’t be so easy as to remove a Chief Justice… the bar must be set higher.”
“It is her strongest petition yet,” Clinton concluded. “But politically and because of how toxic it might be for her to re-enter in terms of as a Justice of a higher court, we’ll wait and see what the final decision is, not only in Ghana, but should she also take it to the African Union.”
