Ms. Sophia Abena Boafoa Akuffo, a Nana Akufo-Addo appointed retired Chief Justice and a current member of the Council of State which was consulted in accordance with Article 146 of the 1992 Constitution before the President appointed a committee to inquire into three petitions by three citizens submitted to the President and to recommend to the President whether the Chief Justice ought to be removed from office and that resulted in the suspension of the respondent by the President after further consultations with the Council of State, was reported by the media on 30 April 2025 to have said before the Constitutional Review Committee (CRC) facilitated by the Institute of Economic Affairs (IEA) that “the current constitutional processes outlined in Article 146 of the 1992 Constitution for suspending and removing the Chief Justice is unfair and must be reviewed”.
Ms. Akuffo was also reported to have suggested to the CRC to consider an amendment to the current constitutional provisions to make the process for removing the Chief Justice more stringent. She further advocated for the amendments to include an opportunity for any Chief Justice found guilty by the committee to have a right of appeal from the recommendations of the committee. See Ghana Web of 1 May 2025 with GNA as Source.
I take the view that a member of the Council of State who has taken the oath of a member of the Council of State has no legal, ethical, and moral authority to mount a public platform, such as the CRC, to discuss the constitutionality of a provision of the Constitution (Article 146 (6), (7), (8), (9) and (10) in this case) in respect of which the Council of State has been consulted and the President has acted in a matter pending before a committee of inquiry for investigation and recommendations to the President. The conduct of such a Council of State member will clearly be an impermissible attempt at tacit bargaining using the CRC as her forum intended to influence the committee set up to investigate the pending matters alleged in the petitions and make recommendations to the President. Unfortunately, there is a breed of lawyers the world over who consider themselves exceptional by virtue of their professional knowledge acquisitions and are above the law when it comes to the right of the equality of citizens before the law and the conduct of Ms. Sophia Abena Boafoa Akuffo, a member of the Council of State, for me, exemplifies one such conduct which must not be allowed to pass without comment.
The contention by the member of the Council of State and former Chief Justice that the constitutional process for suspending the Chief Justice was unfair creates the impression in the public mind that she either abstained from the consultative process or voted or abstained from voting at the consultative meetings which were supposed to be an in camera Council of State process. Secondly, by advocating for amendments of Article 146 for any Chief Justice found guilty by the committee to have a right of appeal from the recommendations of the committee the Council of State member is expressing doubt about the integrity of the committee appointed by the President after an in camera consultation with the Council of State in the pending petitions for the removal of the current Chief Justice. Indeed her arguments, coming from a serving member of the Council of State can, only be understood within the context of the petitions submitted to the President for the removal of the Chief Justice and the decisions taken thereon in consultation with the Council of State.
One may wonder the reason for which the member of the Council of State and former Chief Justice would limit her call to only any Chief Justice who has been petitioned against under Article 146 instead of advocating for the same rights for all Superior Court Justices in respect of whom removal petitions have been made to the President by citizens. The reason is not far to find from the historical records. Firstly, as President Nana Akufo-Addo’s cousin and appointed Chief Justice, she made determinations of prima facie cases against the Electoral Commissioner and her two Deputies (respondents) with the analogous status of Superior Court Justices without batting an eye resulting in their suspension by the President (her cousin) and subsequent removal from office without any right of appeal.
Secondly, to her knowledge as Chief Justice, a citizen petitioned her cousin President AkufoAddo for her removal from office as the Chief Justice and her cousin the President in contravention of his oath of office refused or failed to take any action on the petition until she retired from office on 16 December 2019. Ms. Akuffo saw nothing wrong with her cousin the President’s violation of his constitutional oath of office because the petition was to remove her from office as the Chief Justice. Former President Akufo-Addo also violated Article 146 in refusing or failing to take any action on a petition seeking the removal of the Electoral Commissioner, Jean Mensa, formerly of the IEA, the forum at which she was speaking, and her two deputies from office. Consequently, the member of the Council of State and former Chief Justice has a vested interest in the petitions for the removal of the current Chief Justice who finds herself in a situation the member of Council of State had been in before with the difference that this time round the sitting President complied with Article 146 of the Constitution and his oath of office by commencing the processes mandated by the law.
On 23 April 2025 there was a panel discussion on Ekosiisen on Asempa 94.7 FM and the Facebook page of the station has the following quotation as its overview: “God bless former Chief Justice Sophia Akufo for abstaining from the removal process of Justice Torkonoo; I however expect her to make the reasons public – Andrew Egyapa Mercer, Former MP for Sekondi.” It was alleged on the panel discussion that the decision that there was a prima facie case established by each petition and to appoint a committee to inquire into the petitions was by the votes of thirty (30) members of the Council of State with one (1) member abstaining from the vote. One may, therefore, safely assume that the submissions of the member of the Council of State and former Chief Justice on 30 April 2025 at the CRC was to make her reasons for abstaining public as requested of her at the panel discussion on Asempa FM.
The Chief Justice against whom three citizens of Ghana have petitioned for her removal is also like Ms. Akuffo, an appointee of her cousin, former President Nana Akufo-Addo whose government was the notoriously endemic government of family, friends, and cronies. The foregoing, consequently, constitutes the environment, history, context and experience grounding my understanding or background knowledge to understanding the behaviour of exceptionalism arrogated to herself by Ms. Akuffo as a sitting member of the Council of State who would breach her oath of office to speak publicly about a matter which the Council of State of which she is a member was consulted before a decision was made.
The content of a petition to the President for the removal of a Justice of the Superior Court, including the Chief Justice under Article 146 may not be disclosed to the media, nor indeed to any person other than the President and the public is denied the right to know the content of the petition before a prima facie case has been determined or the committee has completed its work and submitted its report, whichever of the foregoing terminates the proceedings (See Dery v 1. Tiger Eye P. I 2. The Chief Justice 3. The Attorney General, Writ No. J1/29/2015, Supreme Court, 4 February 2016 (unreported)).
In the circumstance laid down by the Supreme Court in the immediate preceding paragraph, when a member of the Council of State breaks ranks with the other thirty members to make public criticism of Article 146 the message being sent out to the public is the indictment on the Council of State that the abstaining member (during the vote in the consultative process on the determination of a prima facie case based on the contents of the petitions, the appointment of the committee, and the suspension of the Chief Justice) found the contents of the petitions unmeritorious to warrant further action by the Council of State. The public criticism and statements about the unfairness, looseness, and absence of a right of appeal feeds into the public discussion on the contents of unauthenticated petitions, undermines the work of the committee, and brings into disrepute and opprobrium the reputation and independence of the appointed committee of inquiry in the eyes of the public.
The provisions in the Fourth Republican Constitution, 1992 on the removal of Superior Court Justices was an improvement upon what the Consultative Assembly 1991 considered to be the loose provisions of the Third Republican Constitution, 1979 which improved on the still looser provisions of the Second Republican Constitution, 1969. The provisions of the Second, Third, and Fourth Republican Constitutions have substantially similar provisions except that the 1979 Constitution introduced the requirement of the petition setting out in detail the facts, supported by the necessary documents, on which it is claimed that a Justice be removed from office, the establishment of a prima facie case, the holding of the inquiry in camera, and the entitlement of the respondent to be heard in his defence by himself or by counsel or other expert person of his choice.
The only substantial departure of the Fourth Republican Constitution from the Third Republican Constitution was to democratise the composition of the committee to inquire into the petition for the removal of a Chief Justice by reducing the number of the Justices of the Supreme Court from three to two and increasing the number of the other persons not being members of the Council of State, nor members of Parliament, nor lawyers to three. The reasons for the changes are in the Hansard of the Consultative Assembly, 1991 and only self conceited lawyers will credit those three citizen-electors with no sense of justice.
The Report of the 1978 Constitutional Committee stated in detail the reasons for proposing that the hearing of petitions for the removal of Justices of the Superior Court to be held in camera and that it was to protect the integrity of the Judiciary. The Consultative Assembly, 1991 found the justification for protecting the Judiciary and Justices of the Superior Courts from public hearing more reasonable than holding a public hearing and adopted the provisions of the 1979 Constitution on the hearing of such petitions in camera.
The debate of the Consultative Assembly, 1991, the Report of the 1978 Constitutional Committee and the debate of the Constituent Assembly, 1978 are public documents and persons wishing to propose a public hearing of such petitions because a Chief Justice appointed by a President they served is being investigated by a constitutionally appointed committee by a President they consider an adversary should be advancing cogent and credible arguments to rebut the conclusions arrived at by the Constituent Assembly, 1978, and the Consultative Assembly, 1991.
The authority of the President to consult the Council of State for the removal of the Chief Justice and to further suspend the Chief Justice upon the appointment of the investigative tribunal or committee to hear the petition and make recommendations to the President to act in accordance with those recommendations has been the law for more than half a century since 1969 without any right of appeal. In the design and scheme of the removal provisions since 1969 the President is just a conveyer belt within the removal process acting in consultation with the Council of State under the Constitution.
The President of the Republic is elected by universal suffrage in which Justices of the Superior Courts participate as citizens of Ghana. The judiciary is the only arm of government which is not elected but appointed by the President with the approval of Parliament. Consequently, if a former Chief Justice who has recommended lawyers and justices to previous Presidents for appointment or a former Speaker of Parliament who approved the nominations cannot trust the wisdom of the framers of the Constitution in reposing the power to receive the petitions and initiate the process to remove Superior Court Justices to the President who appoints them, the reason is not because of ineffectiveness of the removal process but other inarticulate political preferences or family interests of the proposers of the amendments.
The Supreme Court has interpreted Article 146 of the Constitution to prohibit the disclosure of the content of removal petitions submitted to the President until the process is terminated at the stage of the determination of a prima facie case or the completion of the work of the appointed committee and the submission of its report to the President. Every citizen is enjoined to abide by the decision of the Supreme Court and it is, therefore, impermissible to seek to influence the removal process by publishing unauthenticated content of alleged petitions or for a member of the Council of State or for any other so called eminent persons to mount public platforms at the CRC to tacitly bargain into the hearing of the petitions by the committee appointed to do so.
The public is entitled, after the completion of the removal process and the final decision of the President in accordance with the recommendation of the committee, as of right to know not only the content of the petitions, but also the report of the committee and its recommendations. The public will then be in a position to make an informed decision whether or not the process was rigged for or against the Superior Court Justice or the Chief Justice as the case may be. The electorate in whom sovereignty resides are a better appellate court than any unelected number of judges put together to hear appeals from the removal process of a Chief Justice. The Judiciary is the Servant of the People and not Lord over it. Stop looking down on We-the-People!
Martin A. B. K. Amidu
15 May 2025
