Chief Justice Torkornoo: Serve me with copies of petitions asking for my removal to enable me respond

The Member of Parliament (MP) for Old Tafo, Vincent Ekow Assafuah, has filed a lawsuit asking the Supreme Court to declare as null and void the ongoing process which could lead to the removal of the Chief Justice, Justice Getrude Sackey Torkornoo, from office.

The MP, in the writ filed at the apex court yesterday, is asking the Supreme Court to declare as null and void President John Dramani Mahama’s decision to forward the petitions seeking the removal of the Chief Justice to the Council of State for consultation.

The writ was filed against the Attorney-General (A-G) by the lawyer for the MP, Godfred Yeboah Dame, the immediate past A-G.

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Counsel for the Old Tafo MP is also in another motion at the same court seeking an interlocutory injunction restraining the President and the Council of State the from proceeding on the consultation processes for the removal of the Chief Justice under Article 146 or in any manner until the hearing and final determination of the instant action.

The application for the interlocatory injunction would be moved on Wednesday, April 2, 2025.

In another development, the Chief Justice has written to the President requesting to be given copies of the petitions against her submitted to the President before conclusions of consultations between the President and the Council of State under Article 146(6).

Justice Torkornoo bases her request on the common law principle of natural justice, (audi alteram partem) where a defendent must be given hearing before proceeding to arrive at a decision.

“Respectfully, as you are no doubt aware, it is the most fundamental precept of the common law and our constitutional dispensation ingrained into the justice delivery process, that no consideration that affects the rights of a defendant can be made unless the defendant has been given notice of the contents of a charge, and an opportunity to respond to them.

“Further, no defendant can be subjected to a trial unless the preliminary process of receiving their response has been adhercd to,” Justice Torkornoo wrote in her request.

Reliefs

The substantive application of Mr Assafuah, the plaintiff argued that the President was enjoined by various provisions in the 1992 Constitution to have first notified the Chief Justice about the petitions in order to obtain her comments and responses before forwarding same to the Council of State for consultation.

Failure to notify the Chief Justice, the plaintiff argued in his reliefs, was not only unconstitutional but also against the rules of natural justice that required giving persons accused of wrongdoings a fair hearing.

The MP, as of yesterday, was, however, yet to file his statement of case that would set out the legal arguments underpinning his writ.

As part of his reliefs, he is further asking the Supreme Court for a declaration that “upon a true and proper interpretation of Articles 146(1), (2), (4), (6) and (7), 23, 57(3) and 296 of the Constitution, the President is mandated to notify the Chief Justice about a petition for the removal of the Chief Justice and obtain his or her comments and responses to the content of such petition before referring the petition to the Council of State or commencing the consultation processes with the Council of State for the removal of the Chief Justice”.

He is also seeking a declaration that “upon a true and proper interpretation of Articles 146(1), (2), (4), (6) and (7), 23 and 296 of the Constitution, a failure by the President to notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State constitutes a violation of Article 146(6) as well as the constitutional protection of the security of tenure of the Chief Justice who is a Justice of the Superior Court of Judicature stipulated in Article 146(1) of the Constitution”.

Mr Assafuah is further seeking a declaration that “a declaration that upon a true and proper interpretation of Articles 146(1), (2), (4), (6) and (7), 23, 57(3) and 296 of the Constitution, a failure by the President to notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State amounts to an unjustified interference with the independence of the Judiciary enshrined in Article 127(1) and (2) of the Constitution”.

The plaintiff further wants the highest court of the land to declare that “the failure by the President to notify the Chief Justice and obtain her comments and responses to a petition for the removal of the Chief Justice before triggering the process for her removal constitutes a violation of the fundamental right to a fair hearing contained in Articles 23 and 296, and renders the consultation processes for the removal of the Chief Justice initiated by the President null, void and of no effect”.

Impeachment process

Article 146 of the Constitution stipulates that a Justice of the Superior Courts can only be removed from office “for stated misbehaviour or incompetence or on grounds of inability to perform the functions of his office arising from infirmity of body or mind”.

In view of the Supreme Court’s decision in Frank Agyei Twum vs Attorney-General, if the petition is for the removal of the Chief Justice, it is sent to the President, who forwards it to the Council of State for consultation on the determination of a prima facie case.

Indeed, in Article 146(6), the Constitution states 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” if a prima facie case is established.

The committee will inquire into the petition and make recommendation to the President whether the Chief Justice should be removed or not.

The President is bound to act in accordance with the recommendations of the committee.

CJ’s request

The CJ submitted that her request was also in line with the fundamental rights of citizens under Articles 19, 23, and 296 of the 1992 Constitution, and all decisions in Ghana's jurisprudence.

“Up to date on 27th March, 2025, I have not been shown the three petitions mentioned in the communication of 25th March, 2025 or given an opportunity to respond to them, which material is expected to form the premise for the consultations between the Council of State and His Excellency the President under Article 146 (6), as to whether there is a need to set up the Committee of Inquiry described in Article 146 (6) and 146 (7) for the trial of any issues raised,” Justice Torkornoo submitted.

She explained that, just like when a petition for removal of a Superior Court Judge under Article 146 (1) was forwarded to the Chief Justice, the first requirement of due process was for the CJ to bring the petition to the attention of the accused judge, and to obtain their response to the petition, as of right afforded every citizen in justice delivery.

“In my time as Chief Justice, I have handled five such petitions for removal of superior court judges, and heard from them before determining whether a prima facie case has been made against them to merit the setting up of the investigative committee provided for under Article 146 (4),” she stated.

Justice Torkornoo further submitted that it was the combination of the evidence in the petition and the response of the judge that guided the CJ to determine, as a sole enquirer under Article 146 (3), whether a prima facie case had been established against the judge, to merit the setting up of the investigative committee to conduct a hearing of the complaint against the judge.

“Respectfully, in the case of the Chief Justice, please allow me to submit that it is the combination of the evidence in the petition and the response of the Chief Justice that provides the material for consultation between His Excellency the President and eminent members of the Council of State under Article 146 (6),” she argued.

Justice Torkornoo believes that those two sources served to guide whether a prima facie case had been established, such that a Committee of Inquiry should be set up under Article 146 (7) to inquire into whether the CJ may be removed from office, citing the direction of the Supreme Court in the case of Agyei-Twum v Attorney-General and Akwettey (2005-2006] SCGLR 732.

Background

Last Tuesday, the Spokesperson to the President and Minister of Government Communications, Felix Kwakye Ofosu, released a statement announcing that President Mahama had forwarded to the Council of State for consultation three petitions seeking the removal of Justice Torkornoo.

The statement explained that the move by President Mahama was in line with Article 146 of the 1992 Constitution.

Article 146 governs the processes for the removal of Justices of the Superior Courts, the Chief Justice and persons whose offices are analogous with Justices of the Superior Courts such as the Chairperson and Deputy Chairpersons of the Electoral Commission and Commissioner and Deputy Commissioners of the Commission on Human Rights and Administrative Justice. 

Writer’s email: emma.hawkson@graphic.com.gh