Looking beyond tomorrow
In the report of the National Reconciliation Commission, the media were both commended and condemned for playing dichotomous roles in both the noble and ignoble history of our country.
The report thus admonished those of us in the media to make a commitment to be professional to seek the welfare of the people rather than become demagogues and say that " enough is enough" .
Unfortunately, we seem to be more splintered along partisan lines instead of being objective and professional.
This is reflected in the inelegant and extremely partisan media deliberations and discourse on the investigations into the petitions seeking the removal of the Chief Justice.
There have been copious references to the Supreme Court decided case of Frank Agyei Twum v Attorney General and Bright Akwetey, which settled the matter as to whether a Chief Justice in office, could be ousted from performing the administrative duty of empanelling a court to sit on a matter affecting him.
The court held that there is no such legal basis for ousting such a duty.
Therefore, in the present case of the investigations into the removal of the Chief Justice, the power of the President to constitute a committee to investigate the petition against the Chief Justice, is lawful and constitutional.
Article 146 provides that a Justice of the Superior Court can only be removed in accordance with the procedure specified in the article.
It provides under Article 146 (6) that " 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.".
More instructively on the issue of prima facie, the court held that although Article 146 (6) did not explicitly provide for the establishment of a primary facie case before appointing a committee to investigate the matter, it was critical and necessary because the Chief Justice is primarily a Superior Court Justice.
By the way, the Superior Courts are High Court/Regional Tribunal, Court of Appeal and Supreme Court.
Lead judgement
Prof. Justice S.K. Date Baah, JSC who delivered the lead judgement, noted that "The objective, purpose and spirit of the 1992 Constitution require that a Chief Justice be given the benefit of a prior prima facie case established against him or her before the President may appoint a committee to consider a petition for removal".
It must be noted that he referred to the Committee of Experts, which in the "Proposals for a Draft Constitution of Ghana" intended the Judicial Committee of the Council of State, to determine a prima facie case and further appoint three members of the committee and two others appointed by Parliament to examine the case and make proposals to the President for action.
The Chief Justice has told the world that she has so far not been told which of the accusations she is called upon to respond to because, she has not been furnished with any prima facie case.
Yet, on our media space there is widespread debate about the allegations upon which she has been directed to respond to, by people who have no locus in the matter except to invoke the public interest consideration. Is it true that the Chief Justice, who is the subject matter of the investigations has not been provided the prima facie case upon which she is being investigated, as she publicly claimed?
On the issue of publication of the contents of such a petition, Justice Date Baah noted that "The Constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner (by extension the petition and respondent) were allowed to publish his/her petition to any other than the President.
This is likely to lead to the petitioners (petition) allegations being aired in public while the judges’ response can only be considered in private. This could lead to grave adverse public relations consequences for the judiciary".
He stated further, "for what purpose is served by handling the impeachment proceedings in camera if in the meantime the contents of the petition have been put into the public domain," noting significantly that "in order to remain true to the purpose of Article 146(8) I believe that the Plaintiff is right in contending that the confidentiality attaching to the impeachment proceedings should also extend to documents and other relevant materials employed or to be employed in the proceedings".
Here is where everybody is condemning the Chief Justice for organising a press conference to spill the bean about the allegations contained in the petitions.
Legally, the Chief Justice has offended the spirit and letter of Article 146(8) because she is the first person to respect provisions in the Constitution in fulfilment of her fiduciary responsibility to the Judicial Service, the Judiciary, the rule of law and due process.
But in the face of equity and natural justice, can we compel her to obey strictly the provisions under Article 146 (8) when on a daily basis, her allegations are diffused in the media with recklessness from commentators who disparage or recognise her.
We must not forget that the Supreme Court has held that such a development is detrimental to the image and integrity of the affected person as well as problematic to the judiciary.
When people in government maintain that the President has acted in accordance with the provisions of Article 146(6) and insist on respect for the provisions of Article 146 (8) they are right and stating the obvious.
But what does it mean under Article 146(10) which states extensively that "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 Council of State, by warrant signed by him, suspend the Chief Justice"? Is this also obligatory or discretionary?
Would we have gone through the poisoned environment if the Chief Justice had not been suspended?
Discretionary power
What about Article 296 which states that "where in this Constitution or in any other law discretionary power is vested in any person or authority a) that discretionary power shall be deemed to imply a duty to be fair and candid b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with the due process of the law and c) where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power".
My position is that we can help defuse tension over the matter if we focus more on Article 146 (10) rather that Article 146 (6) because in declaring Ghana a one-party state or in passing the Preventive Detention Act, Osagyefo Dr Kwame Nkrumah did not stage a coup but followed the law.
The recent political protests in Togo and Cote d'Ivoire, arise out of legitimate and constitutional provisions, lawful acts but seen to be obnoxious and flagrant abuse of democratic tenets with the concomitant diffused condemnation. In Uganda today, civilians are to be tried before military tribunals, and that is lawful.
I want to conclude by asking whether in one of the petitions, as stated by the Chief Justice, the petitioner suggested that he will call Mr Justice Gabriel Pwamang as a witness and whether the President and Council of State saw it.
The other is what are we doing to appeal to the Justice Pwamang committee, to follow the due process and the rule of law to assure Her Ladyship Chief Justice Gertrude Torkonoo or she is crying wolf baselessly.
These are the measures that will bring out the objective necessity to investigate the matters in the petitions so that as a people, we are able to deal with the matter thoroughly such that we can be one or at ad idem about the necessity or frivolity of the exercise.
