The 1992 Constitution of Ghana provides the grounds for the removal of the Superior Court Judges, including the Chief Justice, under Article 146. It stipulates that a petition for the removal of the Chief Justice can be initiated by any citizen (the Constitution does not specify the calibre of persons to initiate the process; any citizen can do that), which is to be submitted to the President. Upon receipt of a petition, the President is mandated to forward it to the Council of State to determine if a prima facie case has been made. If the petition concerns the Chief Justice himself or herself, the President forwards it to the next most senior Judge of the Supreme Court to investigate the matter if the Council of State establishes a prima facie case.
President John Dramani Mahama suspended the Chief Justice of Ghana based on the powers of Article 146 clause 10(a) of the Constitution. Article 146 clause 10(a) states that where a petition has been referred to a committee under this Article, the President may, “in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice. President Mahama invoked the powers of Article 146 clause 10(a) of the Constitution by suspending the Chief Justice when he (the President) referred the case to a five-member Committee formed to investigate the issues in the petition.
In any democratic dispensation, the Judiciary stands as a mainstay of justice, fairness, and independence. Central to this structure is the Chief Justice, who serves not only as the head of the Judiciary but also as a character of judicial integrity and impartiality. However, in Ghana, the initial processes designed to remove a Chief Justice are riddled with legal and procedural ambiguities that pose significant threats to judicial independence. While the process may appear to promote transparency and accountability, it raises fundamental questions about fairness, abuse of process, and the potential for executive overreach.
The removal of the President needs to be initiated by the Parliament of Ghana – Article 69 clause 2 (b). Article 69 (a) requires that a notice in writing be signed by not less than one-third of all Members of Parliament. Clause (b) of Article 69 states that “for the purposes of the removal from office of the President, a notice in writing – stating that the conduct or the physical or mental capacity of the President be investigated on any of the grounds specified in clause (1) of this article, shall be given to the Speaker who shall immediately inform the Chief Justice and deliver the notice to him copied to the President.
The action for the removal of a President must begin with Members of Parliament, then it gets to the Speaker of Parliament and later to the Chief Justice before a tribunal is convened by the Chief Justice, consisting of the Chief Justice as Chairman and four most senior Justices of the Supreme Court. The tribunal inquires in camera whether there is a prima facie case for the removal of the President.
With the removal of the Speaker, there must be a resolution by Parliament supported by the votes of not less than three-quarters of all the members of Parliament (Article 95 clause 2(d)). The initial processes to remove the Speaker of Parliament begin with the Members of Parliament. The process is guarded from abuses.
With the removal of the Chief Justice, the initial processes expose the office of the Chief Justice to frivolous petitions that are not reviewed by an independent body. Any individual can invoke the powers of Article 146 clause 6, which says “where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.” The Constitution gives an unbridled opportunity to individuals including politically-exposed persons to file petitions that may not meet an appropriate standard for removing the Chief Justice. The initial processes with regard to the removal of the Chief Justice are faulty.
A key defect in the process emanates from the absence of preliminary safeguards. Unlike other democratic jurisdictions where petitions must meet strict admissibility criteria before proceeding, Ghana’s system lacks a preliminary review mechanism by an independent body to filter frivolous or politically motivated petitions. The Council of State does not have the independence required in this circumstance in doing the preliminary review to determine or find a prima facie case or issue in the petitions filed. The Council of State is even a questionable constitutional creature.
The Council of State cannot be independent in its review of the petitions filed for the removal of the Chief Justice because, the Council of State is polarised just like many institutions of state. The nature of the election of the members of the Council of State cannot guarantee that neutrals and independent individuals were elected. The composition of the Council of State raises critical questions about independence and fairness in dealing with matters that affect the various institutions of state. Ideally, the Council of State which is almost a political institution should not be the state establishment to determine a prima facie case against the Chief Justice.
That is why all previous attempts, in the history of Ghana or in the past, have failed to successfully achieve the goal of removing past Chief Justices. The Council of State has never been right in their attempts to determine or find a credible prima facie case against Chief Justices that citizens of Ghana endeavoured to remove from office in the past. This explains why committees could not recommend the removal of past Chief Justices individuals tried to remove through petitions to the President: the prima facie cases found by past Councils of State lacked substance for a recommendation for the removal of past Chief Justices. In the end, the current attempt to remove the Chief Justice will provide lessons for understanding the fragility of the work of the Council of State.
The opportunity to file a petition for the removal of the Chief Justice should have been limited to the Judicial Council, Lawyers (subject to preliminary review), Justices of the various courts. The door to petition the President for the removal of the Chief Justice should not be open to politicians and private individuals who may abuse such processes or procedures. The President and the Speaker of Parliament (both heads of arms of government) are insulated against baseless removal cases. The Chief Justice is exposed to faulty petitions by persons who may not be able to ascertain what constitute misbehaviour and incompetence. That is why all the previous cases filed for the removal of Chief Justices in Ghana traumatically failed.
Another source of defect is the unclear role of the Judicial Council. While the Judicial Council plays a critical role in the appointment of Judges, its role in the removal process is undefined and passive. This creates a gap in institutional checks and balances that could otherwise serve as a bulwark against political misuse. The process for determining a prima facie case lacks political and procedural integrity. Decisions could initially be made by politically-exposed persons, beginning from the petition to the Council of State and even the Committee that finally investigates the matter to make a recommendation to the President. To safeguard the sanctity of judicial independence, Ghana must consider revising the procedures outlined in Article 146.
There must be an institutional review by establishing an independent judicial supervisory body or a tribunal to initially vet petitions before they reach the Chief Justice or the senior judge. There must be an attempt to reduced Executive control to remove the President’s intermediary role and place the process directly under a reformed Judicial Council or independent body.
The current initial processes for removing the Chief Justice in Ghana, though constitutionally mandated, are marred by procedural deficiencies and susceptibility to abuse. In a democracy that seeks to uphold the rule of law and the independence of the Judiciary, these flaws demand urgent reform. Strengthening these processes is not only necessary for protecting the Judiciary from political interference but also vital for maintaining public confidence in the justice system of Ghana.
Emmanuel Kwabena Wucharey
Economics Tutor, Advocate and Religion Enthusiast.
