President Mahama forwards Petitions for the Removal of Chief Justice Gertrude Torkonoo from Office
Less than two years ago on Monday, June 12th 2023, Her Ladyship Gertrude Araba Esaaba Torkornoo, was sworn in as Chief Justice of Ghana’s Judiciary. This was after her appointment by His Excellency Nana Addo-Danquah Akuffo Addo in April 2023, (pending the retirement of the erstwhile CJ Justice Kwasi Anin Yeboah in May 2023) subsequent Parliamentary vetting and approval.
It has recently surfaced that three individuals petitioned His Excellency the President of the Republic for her removal from office, in accordance with Article 146 of the Constitution of Ghana (1992). In respect of the said provisions in Article 146, the President has forwarded the petitions to the Council of State for consideration. The question that begs asking from this is this: does this qualify as a case of witch-hunting or not? Are the President’s actions ultra vires the provisions of the Constitution? Is he doing anything unlawful? And finally, what is the general feeling of the Ghanaian populace regarding the said petitions for removal?
What does Article 146 say?
(1) A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.
(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.
(3) If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.
(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.
(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.
(6) 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.
(7) The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
(8) All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.
(9) The President shall, in each case, act in accordance with the recommendations of the committee.
(10) Where a petition has been referred to a committee under this article, the President may –
(a) 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;
(b) in the case of any other Justice of a Superior court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.
(11) The President may, at any time, revoke a suspension under this article.
Possible Explanation of Article 146 in respect of Chief Justice Torkonoo
Per clause 1 of the Article 146, reasons which could warrant the removal of a Justice of the Superior Court/ Chairman of a Regional Tribunal/ the Chief Justice are : (1) stated misbehavior and (2) incompetence (3) inability to perform the functions of his/her office arising from infirmity of body or mind, which is to say that they must either be physically ill or mentally ill which renders them incompetent to perform the function of their office.
In the case of a Justice of the Superior Court/ Chairman of a Regional Tribunal, the President is mandated to forward a petition to the Chief Justice for determination whether there is a prima facie case justifying the petition for their removal. In the Chief Justice’s case, the President is mandated to act in consultation with the Council of State, first to determine if there is a prima facie case which justifies his/her removal according to the Article 146. On establishing a prima facie case, secondly,to appoint a committee consisting of two Justices of the Supreme Court, one to be appointed chairman by the President, with the appointment of three other neutral persons who are neither Council of State members, nor MPs, nor lawyers to inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office. The letter (wording) of the provision does not state that the CJ was to be furnished with a copy of the petition. Not to talk of 7 or 10 days to respond to the petition before the determination of a prima facie case? These are possibly being implied in reliance on the doctrine of Natural justice; specifically its sub-principle to hear the other side.
What has His Excellency the President actually done?
From the reports gathered, the President forwarded petitions from three individuals for the removal of Chief Justice Gertrude Torkonoo to the Council of State. But before they determine a prima facie case against her, Chief Justice Torkonoo requested for a copy of the petition and an opportunity to respond to the issues raised in there, prior to the first determination of the petition. There has been differing opinions as to whether the President has followed the due process of law.?
What some Ghanaian legal luminaries are saying
It’s been reported that some legal luminaries in Ghana are of the opinion that the President can decide a prima facie case against the Chief Justice without her response. But is this borne out by the provisions in the Constitution relating to petitions for removal? In some other reports we have laid hand on, another renowned Ghanaian lawyer posits that just as the former President His Excellency Nana Addo Danquah Akuffo-Addo, after consultation with the Council of State, last year did not find a prima facie case against the same CJ Gertude Torkonoo without her response, it presupposes that a similar inference can be made this year. And thus, President Mahama can go ahead with this present Council of State consultations without her response.
What the citizenry think
A former director of the Ghana School of Law; Kwaku Ansa-Asare has expressed concern that petitions for the removal of Chief Justices in Ghana are becoming one too many. Whereas most of them are frivolous, establishing no prima facie cases against the Chief Justices, others are merely vexatious, intended to cause mere annoyance to the defendants. On the other hand, there are currently two separate suits challenging the constitutionality of the removal process embarked on by His excellency the president. One of these suits is at the instance of the immediate past Attorney General, Godfred Yeboah Dame who has filed a lawsuit on behalf of his client, Vincent Ekow Assafuah, MP for Old Tafo, against the Attorney-General at the Supreme Court, challenging the procedural propriety of the President’s actions concerning the removal process of the Chief Justice.
Before the Supreme Court’s Ruling, it is reported that a prima facie case has been established against the Chief Justice, with President Mahama suspending the Chief Justice Torkonoo.
To be continued in another story…
