The recent news of three petitions calling for the removal of Chief Justice Gertrude Torkornoo has sparked interest in the legal processes surrounding the removal of Ghana’s top justice. Unlike countries like Bolivia and Switzerland, where judges are elected, Ghana’s justices, including the Chief Justice, are appointed by relevant authorities through established processes. As expected, the removal process is also governed by established procedures as outlined under the constitution.
The 1992 Constitution guarantees the independence of the judiciary, and to safeguard this independence, it subjects the removal of justices from office to a rigorous process. This ensures that the removal process is fair, transparent, and not influenced by external factors.
This article will delve into the legal framework governing the removal of Ghana’s Chief Justice, exploring the stages involved and the principles that guide this process.
The removal of a Chief Justice is a serious matter that rarely occurs. In 2006, a citizen, Bright Akwetey Esq., petitioned President J.A. Kufuor to remove Chief Justice Kingsley Acquah, citing allegations of abuse of power and judicial misconduct. The petition led to a Supreme Court case but ultimately did not succeed. Some reasons for the failure were the oversight of the President to conduct an initial assessment of the petition and the breach of the confidentiality duty regarding removal petitions.
Nearly two decades later, history is repeating itself with three petitions calling for the removal of the current Chief Justice.
The question on everyone’s mind is: how will this end? Are we to expect an outcome similar to the 2006 petition or this will bear a different fruit? Well, as the process unfolds, only time will tell. Let’s explore the specific procedures outlined under article 146 of the 1992 Constitution for the removal of the Chief Justice of the Republic of Ghana.
- Petitioning the President
The process for removing Ghana’s Chief Justice is triggered with a petition sent by a citizen of Ghana to the President of the Republic. This involves a citizen of Ghana submitting a petition to the President, outlining constitutionally grounded reasons for the Chief Justice’s removal.
The petition must be based on specific allegations as recognized by the Constitution.
This initial step is crucial, as it sets the stage for the subsequent procedures outlined in the Constitution.
- Constitutional Grounds for Removal
The Constitution outlines three key reasons for removing the Chief Justice:
1. Incompetence: This refers to the Chief Justice’s inability to perform their duties effectively. It may involve a lack of proper judgment, inadequate knowledge of the law, or poor management of the judiciary.
2. Misbehavior or Judicial Misconduct: This encompasses behavior that undermines the integrity of the judiciary, such as corruption, bias, or unprofessional conduct. It can also include violations of ethical standards or codes of conduct.
3. Inability to Perform Duties due to Health Reasons: This ground involves situations where the Chief Justice is no longer physically or mentally capable of performing their duties. This may be due to illness, injury, or other health-related issues.
If any of these grounds is sufficiently proved during the process, then the Chief Justice may likely be removed.
- Establishment of a Prima Facie Case
A prima facie case is a case that appears to have merit based on the available evidence.
Upon receiving a petition, the President, in consultation with the Council of State, must determine whether a prima facie case has been established. This involves assessing whether the allegations in the petition are substantial enough to warrant a response from the Chief Justice.
In other words, the President and the Council of State must decide whether the petitioner has presented a compelling case that deserves to be answered by the Chief Justice.
This initial assessment is crucial to ensure that the Chief Justice is not unnecessarily burdened with responding to baseless or unfounded allegations. By evaluating the prima facie case, the President and the Council of State can filter out unmeritorious claims and prevent the Chief Justice from being called upon frequently to respond to frivolous accusations.
- Appointment of an Investigatory Committee
After establishing a prima facie case, the President, in consultation with the Council of State, is mandated to appoint a five-member committee to investigate the allegations. The committee comprises:
– Two Supreme Court judges; and
– Three individuals who are not Members of Parliament, the Council of State, or lawyers
The committee conducts investigations, allowing the Chief Justice to respond to the allegations, and makes recommendations to the President.
- President to Act on the Recommendations of the Committee
After receiving the recommendations of the Investigatory Committee, the President of the Republic is therefore required to implement the measures suggested by the Committee. Where the Committee suggested a removal, the President has no option than to officially remove the Chief Justice.
- Private Proceedings of the Investigatory Committee
The investigatory committee’s meetings are held in private. This is to protect the judges and the judiciary from false accusations that could harm their reputation.
The judiciary needs to be respected by the people. If accusations are made public and later found to be false, it could damage the judiciary’s reputation. So, it’s best to investigate these accusations in private.
The Supreme Court has ruled that this confidentiality provision should be extended to the contents of the petition. Therefore, a petitioner can only disclose the information that they have requested the President to remove the Chief Justice but the law frowns on their public airing of the contents of the petition.
Alhassan Aboagye on behalf of OSD and Partners. [email protected]
