We must act with caution

When the President initiated the process towards the impeachment of Chief Justice Getrude Torkonoo, there were popular public sentiments in support of the move and it was construed as justified since many Ghanaians supported it. 

However, it must be noted that public opinion might not necessarily reflect the mood and true thinking of the people because public opinion reflects only the opinion of the people which has been openly expressed.

There may be others who would never make any open comment about a national issue for different reasons.

Thus, sometimes it is not functionally productive to base certain conclusions on public opinion alone without further enquiries to validate them.

Reacting to the populist expression of joy over the matter to remove the Chief Justice, I wrote in my column a piece titled "Uncanny Path to Destruction of Democracy", published on Thursday, July 17, this year.

I quoted Acts 12:1-3, stating, "About that time, Herod the King laid violent hands on some who belonged to the church.

He killed James, the brother of John, with the sword. When he saw that it pleased the Jews, he proceeded to arrest Peter also".

That was during the days of Unleavened Bread. It seems that is what has happened.

The removal of the Chief Justice appeased some Ghanaians and although the legal processes have not been concluded, a new Chief Justice has been appointed. 

Because the removal of Chief Justice Torkonoo was received with seeming joy, some individuals have been energised to bring up proposals for the removal of the Special Prosecutor, as well as the chairperson and two deputy chairpersons of the Electoral Commission (EC).

These developments have gained currency at a time when we have entered the Advent season, awaiting the birth of Jesus Christ and the celebration of Christmas.

How apt, significant and even germane that Herod also acted during a season of joy—an uncanny coincidence with the biblical narrative.

When I first heard that the President had received some petitions for the removal of the chairperson and the deputy chairpersons of the EC, I thought about writing a letter to my Roommate, President John Dramani Mahama, to urge him from rushing to take any action.

But when it emerged that the petitions also seek to oust the Special Prosecutor.

Convince to change

I recollected something I read long ago about how it is far easier to persuade or convince an individual to change, but impossible when you are dealing with a group.

He notes that when a group of people come together and make up their mind to do something and resolve to do as they have decided, it is futile and fruitless to engage them in change.

Whether it would be admitted, conceeded or repudiated, as a political party, many within the National Democratic Congress (NDC) made it unequivocal that if ever the party came to power, the leadership of the EC would have to be changed as a reciprocal act to the removal of Mrs Charlotte Osei and her deputies when the New Patriotic Party (NPP) came to power.

With the recent outburst against the Special Prosecutor, especially the criticisms from Martin Kpebu, it is no wonder that there have been petitions for his removal as well.

Diverse

Ghanaians will have diverse views about the developments, since we have not sufficiently doused the embers of division over the removal of Chief Justice Torkonoo. But whatever positions people take must be based on principle, since vengeance and retribution do not help build healthy relations.

While Article 44 clauses (2) and (3) stipulate that the terms and conditions of service of the chair and deputies of the EC shall be the same as those of Justices of the Court of Appeal and High Court, respectively, the terms and conditions under the Office of the Special Prosecutor are provided for under the enabling legislation establishing the Office. But, the process falls under  Article 146 clauses (3), (4), (5), (8), (9) and (10) (b).

Article 146(3) provides that "If the President receives a petition for the removal of a 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", whilst 146(4) states "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".

As was the case with the Chief Justice, the President is enjoined under Article 146(9) thus: "The President shall, in each case, act in accordance with the recommendations of the committee". 

Demostrate

That is why both the Council of State and the Judicial Service must demonstrate their desire for justice, fairness, impartiality and transparency in their advice and appointment of the members of the committee, respectively.

More imperative, the President must resist any ill or mis advise to suspend any of the affected public office holders by invoking Article 146 (10) (b) which says that "Where a petition has been referred to a committee under this article, the President may in the case of any other Justice of the 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".

Any such suspension, under 146(10)(b), which is a discretionary power could breach Article 296 (a),(b) and (c) especially 296(c) to the effect that " Where in this Constitution or in any other law discretionary power is vested in any person or authority where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power".

Article 296 was the provision relied upon by the Ghana Bar Association (GBA) to remind the government to operate in accordance with all the provisions in the execution of the removal processes of the Chief Justice under the 1992 Constitution but which attracted strong rebuttal from the Attorney General, including accusations of bias.

By all means, Ghana is a nation of Constitutional Democracy, the rule of law and due process, which means there must be transparency, openness, fairness, impartiality and trust. But beyond all these, there must be justice and that is why we must tread with care, caution and circumspection to enable true justice to permeate all facets of our lives.