Removal of Chief Justice — Reform now!

The Ghana Bar Association is imploding; the New Patriotic Party (NPP) is at its wit’s end with anger, civil societies are firing salvos; academia is divided and last but not least, the whole country is sitting on tenterhooks.

In the Twi language, we say ‘Egya da mu’, which literally means ‘the thing has caught fire’. Yes, without a shred of doubt, the temperature in the country has reached boiling point, occasioned by the brouhaha in the body politic flowing from the suspension of the Chief Justice.

The tension in the country is at once palpable and ominous — there is an urgent need for a complete ceasefire of hostilities, with a view to calming frazzled nerves and battered egos.

As part of the process outlined in the Constitution for the removal of a sitting Chief Justice (head of the Judiciary), the President has the discretion to suspend the Chief Justice when he appoints a committee to investigate allegations enumerated in a petition for the removal of a Chief Justice.

It is the exercise of that discretion that has fuelled the hullabaloo bursting the seams of the country’s otherwise peaceful existence.

Point

Whilst my training and professional discipline stops me from stating my position on the matter–the NPP has gone to court and so the matter is sub-judice.

I would like to reiterate the point I have been canvassing relentlessly — the need to strengthen the contempt regime relating to matters before the courts.

The legal rightness of wrongness of the removal process has once again engendered ‘illegal’ commentaries and expositions that make me shiver.

In my opinion, the committee tasked with the unenviable role of recommending to the President whether or not the Chief Justice should be removed has their work cut out.

Various media platforms have openly discussed the merits or otherwise of the matter in a way that is very prejudicial to the eventual decision. 

Parliament, through legislation or the Supreme Court by issuing guidelines, should act to plug this democratic deficit.

As indicated in the title of this article, I am of the opinion that the time has come for us to amend the Constitution. 

Revision

There are lots of areas earmarked for revision, but surely, the controversy surrounding the process for the removal of the Chief Justice has given the push for revision a renewed impetus and elixir.

In order to offset any future controversy, we advocate that the process for the removal of the Chief Justice is strengthened to make it even more watertight and not amenable to manipulation.

This is because a cursory glance at the process in other jurisdictions clearly shows that the position as it obtains here is ‘loose’.

Whilst the grounds for the removal of a Chief Justice largely remain the same across jurisdictions — incapacity, gross incompetence or misconduct — the processes for removal are different.

In the UK, the Chief Justice can only be removed on an address presented by both Houses of Parliament.

In South Africa, the Judicial Service Commission has to make a case for removal and this has to be approved by the National Assembly by a 2/3 majority before the President can remove the Chief Justice. In India, the process is initiated in Parliament, followed by a committee made up of a Justice of the Supreme Court, the High Court and a distinguished jurist.

If they find a case for removal, it is voted on by both Houses of Parliament, requiring a 2/3 majority before the President can remove. The constant equation in all these scenarios is the participation of Parliament. Our Constitution needs a review to reflect these global good practices.

An unwelcome development arising out of this impasse is the call by the Ghana Bar Association (GBA) on the President to rescind the decision to suspend the Chief Justice.

Critics argue that the GBA is politicising the issue and ground that assertion on some solid points, including the following:

- that the Bar refused to comment on a similar situation when Charlotte Osei was removed as the Electoral Commissioner;

- that to carry a resolution made by 44 members out of a pool of over 5000 is dubious at least and undemocratic at worst;

-    that the request to the President to rescind a decision is not backed by law and precedent.

These points are to be explored later.

Until this is done, the President can only go according to what the Constitution stipulates in Article 146 and nothing more. 

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