The President will be violating the Presidential Oath he took on the assumption of office should he accept the resignation letter of a justice of the superior courts under Article 145 (3) after a prima facie case for the removal has been established against the justice in a pending petition and a committee of inquiry appointed to inquire into the petition and to make recommendations to the President under Article 146 of the 1992 Constitution.
The President who accepts such resignation during the pendency of the hearing into the merits of the petition by the committee will be opening himself up to suspicion of having instigated the petition to compel the justice to take the easy way of resignation to avoid accounting for a committed misconduct or acting to save a justice who has indeed violated his or her judicial oath of office by provable misbehaviour warranting removal from office.
As I write this discourse, it is a notorious fact of public knowledge that a committee has been appointed pursuant to Article 146 (7) to inquire into three petitions against the misbehaviour and incompetence of a justice of the Supreme Court who has been suspended from office until the determination of the petitions and the recommendations of the appointed committee. Unfortunately, even though the content of the petitions has not been published to the public by the recipient of the petition to whom the petitioners addressed their respective petitions (the President in this case) alleged unauthenticated copies of the petitions and responses thereto which ought not to be within the public domain have unconstitutionally been circulated in the media as tacit bargaining to influence the public and the appointed
committee set to inquire into same. The unconstitutional conduct of the leakers of the alleged content of the petitions and the responses thereto have led to media commentaries urging the respondent to resign to save the judiciary from embarrassing accountability, the opening of a can of worms, and also to further save the family of the respondent from embarrassment.
The arguments for the right to resign with regard to any pending petition is intended to ridicule the petitioners for exercising their constitutional right to petition for the removal of a superior court justice or to save the suspectedly guilty respondent at an inquiry. Apart from violating the rights of both the petitioners and the respondent to privacy of the process until after the report of the committee of inquiry has been submitted to the President and acted upon, such arguments constitute tacit bargaining by perceived supporters of the petitioners and the respondent to undermine the provisions of the Article 146(4) or (6) process, as the case may be.
The right to resignation argument during the pendency of an inquiry by the committee reeks of a despotic and undemocratic argument for judicial exceptionalism for judges from public scrutiny. It gives the resemblance of self-serving seeking for favours from superior court justices when made by lawyers and a misapprehension of the constitution when made by others. It is inconsistent with the constitutional mandate enjoined on judges to discharge the sacred functions of the judicial office with the highest integrity and allows offending justices to escape through a side door when a citizen petitioner has successfully met the first and second thresholds of making a prima facie case against the respondent and a committee has been appointed to inquire into the misbehaviour or incompetence for purposes of removal from office.
The judicial branch is the only anti-majoritarian arm of government given such enormous powers and authority over the lives and wellbeing of the people that the removal petition is the only avenue provided for in the Constitution for the sovereign citizen to hold judges accountable for misbehaviour and incompetence should there be prima facie evidence established against the conduct of a superior court judge. The 1992 Constitution holds every citizen to the standard of equal justice. And the due process of law and an unelected judge under a removal inquiry must not be an exception.
The determination that a petition has met the threshold of having established a prima facie case for the respondent to answer and the appointment of the pursuant committee to inquire into the petition and make recommendations to the Chief Justice or the President, as the case may be, joins issues between the petitioner and the respondent justice of the superior court which must mandatorily be inquired into by the appointed committee unless the petitioner exhibits an inability or unwillingness to prosecute his petition. Any scheme for aborting the petition which is not embedded within the removal processes under Article 146 of the Constitution will constitute an interference with a fundamental right apportioned to citizens aggrieved by grave judicial misbehaviour and incompetence.
It would be absurd for a Chief Justice who is the recipient of removal petitions in respect of superior court justices other than himself or herself after determining that there is a prima facie case in a petition to allow the respondent justice to submit a resignation letter to the Judicial Council which proceeds to recommend the resignation to the President for his acceptance. Such a conduct will constitute an obstruction of the due process of law guaranteed under Article 146 and sins against transparency and accountability in judicial conduct. This explains why in 2015, the Chief Justice, Mrs. Georgina Wood, did not allow the twelve (12) superior court justices against whom she had determined prima facie cases to answer and suspended in the Anas Aremeyaw Anas corruption petitions to walk out from the inquiry process by the side door through letters of resignation and escape the verdict of the committees appointed to investigate them.
By parity of reasoning, the President who is the recipient of petitions for the removal of the Chief Justice will be abusing his oath of office to obstruct the right of a citizen petitioner to prosecute his petition against the respondent Chief Justice by accepting her resignation after the determination of a prima facie case, the appointment of the pursuant committee to inquire into the petition and her suspension from office. What is good for the goose is good for the gander!
The only occasion in Ghana when a justice of the superior court’s resignation was accepted during the pendency of an inquiry by the appointed committee by a Chief Justice after the determination of a prima facie case against the respondent was in the case of the late Mr. Justice Kweku Etrew Amua-Sekyi in 1998 when he was a Supreme Court judge. The recipient of the petition for removal was Chief Justice Philip Archer at the time the complainant lodged the petition.
The main petitioner was Mr. Justice Isaac Kobina Abban also of the Supreme Court. A prima facie case was determined by Chief Justice Archer against Kweku Amua-Sekyi and a committee appointed to inquire into it under the Chairmanship of Mr. Justice Acquah. The docket on the removal petition was transmitted to the Office of the Attorney-General to appoint prosecuting counsel to the committee to inquire into it.
Mr. Justice Kweku Amua-Sekyi submitted a resignation letter to the Chief Justice. When the resignation letter was brought to my notice, I told the Judicial Secretary that, when one wounds a snake one must decapitate it otherwise it will live to kill the next time round.
Justice Abban called me to say that if he wants to go let him go after all that was the substance of what he wanted with his petition. I repeated the snake proverb to him. I repeated the proverb to the Attorney-General and President Rawlings when my position was reported to them.
The resignation of Kweku Amua-Sekyi was accepted by President Rawlings and Amua-Sekyi resigned without accounting for his grave misbehaviour and thereafter the committee became defunct. But my objective position as the Deputy Attorney-General was that once the
Committee had become seized of the matter it was for the inquiring committee to determine that the petitioner had abandoned his petition and to discharge Kweku Amua-Sekyi for lack of prosecution.
President John Agyekum Kufour assumed office as President and appointed Kweku Amua-Sekyi as Chairman of the National Reconciliation Commission. I suspected the main qualification of the appointment was the fact that of the untimely resignation forced upon him. Kweku Amua-Sekyi mounted a vendetta against some of those involved in handling the charges against him. The NDC, President Rawlings, and I became victims of Kweku Amua-Sekyi’s vengeance. The snake had been left to go free to have the opportunity to kill the second time, if it could.
As an aside, but for the simple words I asked Victor Smith to convey to former President Rawlings when I was stepping down the steps of the former President’s office at Ridge, the trap set for the NDC would have damaged it. In accordance with learned socialist revolutionary tradition in fighting comprador government adversaries, I told Victor Smith: “ Tell the Oldman that I say that if he meets with Commander Assassie Gyimah and the two of them are unable to reconcile their narratives, he should hang it on W. O. Tetteh. The two of them cannot disagree on the basic facts – it will damage us.” The circus at the hearing of the Kweku Amua-Sekyi Commission did not last more than ten minutes when President Rawlings appeared before the Commission. The NDC had won the first round. The President should not let history rhyme again.
There are foul whisperings abroad by the New Patriotic Party (NPP) and others, without the production of any evidence, that the series of petitions by citizens for the removal of the justice of the superior court under discussion in this discourse have been engineered by the President and the NDC to get rid of an unwanted adversary for purely political reasons without any iota of evidence grounding the petitions.
President Mahama will only be confirming these foul whisperings abroad should he contravene his oath of office and accept any resignation from the respondent during the pendency of the removal process without allowing the appointed Committee to complete its work and submit its recommendations to him to act upon as required under the Constitution.
It is more honourable for the respondent to resign after an acquittal by the Committee than the President creating the appearance that the petitioners were actuated by selfish motives of just getting an innocent justice of the superior court out of office under the guise of genuinely petitioning for her removal on provable grounds of misbehaviour and incompetence.
The snake is already wounded and may next time do more damage to the petitioners should the processes be truncated by an unconstitutional abuse of power by the President in accepting any resignation while the hearing at the Committee is pending. History does not repeat itself but it rhymes!
Martin A. B. K. Amidu 8 May 2024
