Ghanaian citizen Samuel Bryan Buabeng has filed his Statement of Case at the Supreme Court, setting out the legal arguments in support of his application to compel President John Dramani Mahama to appoint a former Chief Justice to the Council of State.
In the Statement of Case filed under Suit No. J1/32/2026, Mr Buabeng argues that the failure to replace retired Chief Justice Sophia Akuffo, who resigned from the Council in September 2025, has left the constitutionally prescribed body improperly constituted.
The plaintiff contends that the vacancy has persisted for approximately a year despite the constitutional requirement for a former Chief Justice to be represented on the Council.
Plaintiff argues vacancy undermines constitutional composition
At the centre of Mr Buabeng’s case are Articles 89(1) and 89(2)(a)(i) of the 1992 Constitution, which establish the Council of State and prescribe its membership.
Article 89(2)(a)(i) provides for the appointment by the President, in consultation with Parliament, of one person who has previously held the office of Chief Justice. The provision makes similar arrangements for a former Chief of Defence Staff and a former Inspector-General of Police.
The plaintiff argues that the express provision for these categories of membership does not permit the appointing authority to leave a designated position vacant indefinitely following a resignation, permanent incapacity or removal from office.
He maintains that the continued absence of a former Chief Justice undermines the Council’s constitution and its ability to perform the advisory functions envisaged under the Constitution.
In support of this argument, Mr Buabeng relies on section 5(3) of the Council of State Act, 2020 (Act 1037), which provides that where a vacancy occurs, it shall be filled in accordance with Article 89 of the Constitution.
He argues that the provision, read together with Article 89, imposes an obligation to fill the vacancy without undue delay.
The plaintiff also addresses Article 92(10) of the Constitution, which provides that proceedings of the Council of State are not invalidated by a vacancy in its membership, including a vacancy that remains unfilled when the Council first meets.
Mr Buabeng contends that this provision protects the validity of proceedings conducted while a vacancy exists but does not resolve the underlying question of whether the continued failure to fill a constitutionally designated position is lawful. He argues that the Council is improperly constituted and, in his view, non-existent in law in its current form.
To support his argument on the intention behind the constitutional arrangement, the plaintiff refers to paragraph 47 of the 1991 Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana. He argues that the report’s discussion of the Council’s advisory role, including on important appointments such as that of the Chief Justice, underscores the importance of having the experience and perspective of a former Chief Justice represented on the Council.
Relies on Supreme Court’s approach to constitutional interpretation
The plaintiff also relies on established principles of constitutional interpretation developed by the Supreme Court.
He cites Tuffuor v Attorney-General [1980] GLR 637, Kuenyehia v Archer [1993–94] GLR 525 and National Media Commission v Attorney-General [2000] SCGLR, arguing that the Constitution must be interpreted broadly and purposively, with due regard to the intention of its framers.
According to Mr Buabeng, the Constitution must be read as a coherent whole, with its provisions interpreted in a manner that gives effect to the overall constitutional framework.
He further invokes Republic v Special Tribunal; Ex Parte Akosah [1980] GLR 592, a decision setting out principles for determining whether a matter raises an issue of constitutional interpretation or enforcement warranting the exercise of the Supreme Court’s original jurisdiction.
The action is brought under Articles 2(1) and 130(1) of the 1992 Constitution and Rule 45 of the Supreme Court Rules, 1996 (C.I. 16).
Council of State Act also features in the case
Apart from the constitutional provisions, Mr Buabeng relies on section 4 of the Council of State Act, 2020 (Act 1037), which addresses the composition of the Council.
He argues that the statutory framework reinforces the constitutional requirement for the inclusion of a former Chief Justice alongside the other designated members and representatives prescribed by law.
According to the facts set out in his affidavit, President Mahama appointed and swore Justice Sophia Akuffo, a former Chief Justice, into office as a member of the Council on or before February 18, 2025. She subsequently resigned in September 2025.
Mr Buabeng alleges that the President has since failed or refused to appoint a replacement and has not provided reasonable official grounds for the continued vacancy.
He further asserts that two living former Chief Justices are fit and qualified for appointment to the Council.
These assertions form part of the plaintiff’s case and have not, by the filing of the Statement of Case, been established as findings of the Court.
Seeks appointment within 48 hours after consultation
Among the reliefs sought in the action, Mr Buabeng is asking the Supreme Court to declare that the President is constitutionally required to appoint another former Chief Justice whenever the person occupying that designated position on the Council resigns, becomes permanently incapacitated or is removed from office.
He also wants the Court to declare that the failure or refusal to fill the vacancy is inconsistent with the 1992 Constitution.
Additionally, the plaintiff seeks an order directing the President to consult Parliament within 14 days and, following that consultation, appoint a former Chief Justice to the Council within 48 hours.
The case raises important questions about the constitutional composition of the Council of State, the legal consequences of leaving a designated membership position vacant and whether the President is subject to an enforceable constitutional duty to fill the vacancy within a reasonable time.
The Supreme Court’s determination will establish how the relevant constitutional and statutory provisions apply to the circumstances of the case. Until then, the plaintiff’s claims remain arguments to be considered by the Court, and the filing of the Statement of Case does not establish that the President has breached the Constitution or that the orders sought will be granted.
