GBA sues A-G, Judicial Council over appointment of Supreme Court judges
The Ghana Bar Association (GBA) and three others have instituted legal action to bring an end to what they term “persistent” failure of Presidents in the Fourth Republic to seek the advice of the Judicial Council before appointing judges to the Supreme Court.
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In a 66-page writ of summons and statement of case seeking to invoke the original jurisdiction of the Supreme Court, the plaintiffs are praying the court to direct the Head of State to fully comply with Article 144 (2) and (3) of the 1992 Constitution which admonishes the President to appoint justices to the Supreme Court upon advice from the Judicial Council.
The other plaintiffs in the case are the President of the GBA, Nene Amegatcher; Mr Justin Amenuvor and Mr Beecham, both legal practitioners.
Joined to the suit are the Attorney-General and Minister of Justice, as well as the Judicial Council.
According to the plaintiffs, “Since the 1992 Constitution came into force, Presidents after Presidents have not acted fully on the advice tendered by the Judicial Council in the appointment of Superior Court judges.”
The suit was filed barely 24 hours after Mr Justice Yaw Apau and Mr Gabriel Pwamang were sworn in as justices of the Supreme Court by President John Dramani Mahama.
The two were sworn in on Monday after the Appointments Committee of Parliament had approved their nomination.
“Despite the seeming coincidence, the suit and its outcome will not affect these two justices or other justices who might have been appointed without full compliance with Article 144 clauses (2) and (3) of the 1992 Constitution.
“It is also worthy to note that aside the general claim that Presidents in the fourth republic had acted at variance with clauses (2) and (3) of Article 144, no specific reference was made to the appointment of a particular justice or justices of the Supreme Court,” Nene Amegatcher explained in an interview with the Daily Graphic in reaction to media reports that the suit was challenging the appointment of the two justices.
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“All we want is for the Supreme Court to interpret Article 144 (2) and (3) of the 1992 Constitution to guide us in the future,” Nene Amegatcher added.
Reliefs sought
The plaintiffs are praying the court to declare that upon true and proper construction of Article 144 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Supreme Court were valid on the condition they were made in strict accordance with the advice of the Judicial Council.
Other reliefs sought include a declaration that upon true and proper interpretation of Article 144 (2) and (3) of the 1992 Constitution, a constitutional trust had been created in the Judicial Council to make nominations of the person(s) best qualified to serve as justices of the Superior Courts of Judicature and also that the Judicial Council was required to ensure that such nominations were actually submitted by the President to Parliament for approval after due consultations with the Council of State.
The plaintiffs are further urging the Supreme Court to rule that upon true and proper construction of the Article 144 clauses (2) and (3) of the 1992 Constitution, the Judicial Council had a constitutional obligation to specifically advise the President as to which specific person(s) is/are suitable for appointment to serve as Justice(s) of the Superior Courts of Judicature, in accordance with which advice the President is mandatorily required to exercise his powers of appointment.
They are also asking the Supreme Court to order that an appointment or non-appointment by the President of a Justice of the Superior Court, “in a manner out of accord with the advice of the Judicial Council, is unconstitutional, null, void and of no effect”.
Judicial Council violates
According to the plaintiffs, the Judicial Council had violated its judicial constitutional duties in either not giving advice to the President for appointments to the Superior Courts or not ensuring that the advice it offered to the President was carried out to the letter by taking steps, including court action, to counsel the President to act on its advice, which the council had failed to do.
“Since the 1992 Constitution came into force, Presidents after Presidents have not acted fully on the advice tendered by the Judicial Council in the appointment of Superior Court judges,” they argued.
Statement of case
A statement of case filed on behalf of the plaintiffs by Mr Thaddeus Sory, a legal practitioner, noted that the current case had nothing to do with the appointment of the Chief Justice but with clauses (2) and (3) of Article 144 of the Constitution, which touched on the appointment of Supreme Court judges.
The plaintiffs submitted that the meaning and effect of Article 144 Clause 2 of the Constitution was that while the power of appointment was without doubt vested in the President’s discretion to appoint Justices of the Supreme Court, he could only exercise that discretion upon the advice of the Judicial Council.
They further submitted that the President must necessarily adhere to the advice of the Judicial Council to the letter and spirit of the of the advice given in its strictest essence, adding that “the President of the Republic of Ghana cannot act out of accord with, side step, ignore or alter the terms of the advice of the Judicial Council in the matter of the appointment of Justices of the Superior Courts”.
Independence of Judiciary
The plaintiffs further argued that the independence of the Judiciary would be severely undermined if the President’s power of appointment of justices of the Superior Courts “is so interpreted as to allow the President the liberty of acting outside of the Judicial Council, which is constitutionally entrusted with the function of ensuring that the Judiciary carries out its constitutional functions efficiently and effectively for the realisation of justice”.
According to the plaintiffs, it was insufficient for the President “to merely recite in his warrant of appointment of any particular person that his appointment is on the advice of the Judicial Council, regardless of the exact nature of the Judicial Council’s advice to the President on the subject”.
Writer’s email: mabel.baneseh@graphic.com.gh.
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