Article 146 for the guillotine?

The controversy surrounding the suspension of the Chief Justice (CJ), Gertrude Araba Esaaba Torkornoo, continues unabated. In fact, it has gathered momentum and attained international dimensions as the suspended CJ has taken the Ghanaian government to the ECOWAS Court of Justice for the resolution of her grievances. 

This latest move by the former CJ has attracted copious commentary, both for and against the move, further demonstrating how the suspension and ongoing inquiry have polarised Ghanaians.

Amidst the accusations, counter accusations, mud-slinging, and in some unfortunate situations, open and direct insults being traded by both sides of the argument, it is pertinent to revisit the provenance of all this ‘confusion’.

Three Ghanaians have exercised their constitutional right to petition the President for the removal of the CJ from office for ‘stated misbehaviour’ as captured in the Constitution. The article which deals with such removal of a sitting CJ is 146.

Materially, Article 146 provides that a CJ can be removed from office for ‘stated misbehaviour, incompetence or on the ground of inability to perform the functions of the office, arising from infirmity of body or mind’.

When a petition is received by the President, he shall, in consultation with the Council of State, decide whether there is a case to answer — what is legally termed as whether there is a ‘prima facie’ case.

If the answer to this is in the affirmative, the President, in consultation with the Council of State, shall appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be the Chairman of the committee, and three other persons who are not members of the Council of State or lawyers.

The President is bound to follow and implement the recommendations of the committee. During the sittings of the committee in determining whether the Chief Justice should stay or be removed, she is entitled to the services of a lawyer or an expert of her own choosing.

Whilst the committee is determining the merits or otherwise of the petition, the President may suspend the CJ.

Also, Article 146 dictates that the proceedings of the committee examining the petition should be 'in camera’. 

Procedure

So far, the government has followed the procedure as elaborated in the Constitution.

However, the approach of the government has come under attack, especially as to whether the CJ should have been suspended and also whether the proceedings should be ‘in camera’.

These grievances, amongst others, have spawned court challenges, the latest of which is the action at the ECOWAS court.

Whilst we are all anxiously waiting for the outcome of the suits challenging the removal of the CJ (the matter is sub-judice, i.e. ongoing court proceedings), we hesitate to highlight a glaring anomaly that is fuelling the controversy, i.e., are the provisions of Article 146 a cast-iron safeguard of judicial independence?

The answer, as far as this column is concerned, is an emphatic, “no!”.

The government (President) cannot be faulted in any way, as he has merely followed what the Constitution says.

Any criticism targeted at him is wrong, if not ill-informed.

The ire of all those aggrieved, including the suspended Chief Justice, should be directed at the provisions of Article 146. 

For something as important as the processes for the removal of a Chief Justice, it is my humble opinion that it is not watertight enough.

This is even more serious and needs immediate fixing, given that the object of the removal process is to guarantee the uninhibited independence of the judiciary. 

Jurisdictions

A cursory look at the procedures in other jurisdictions — England, India, South Africa and Kenya, to take but a few — all poignantly reveal the inadequacy of Article 146 as currently constituted.

In all these jurisdictions, there is active involvement of the national assemblies and, in the case of England and India, both houses of parliament.

Interestingly, the Chairman of the Constitutional Review Commission, Professor H. Kwesi Prempeh, has come out to say that Article 146 requires urgent amendment.

He suggested an amendment to the article regarding the role of the President in the removal process, as the present arrangements can be compromised.

The framers of the Constitution, he reckons, assumed that holders of public office are all ‘angels’.

Professor Prempeh said that leaving the provisions of Article 146 in its present form is a temptation for office holders — “You don’t tempt power in these parts like that”.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com