Chief Justice suspended - Justice Baffoe-Bonnie to act

President John Dramani Mahama has suspended the Chief Justice, Justice Gertrude Sackey Torkornoo, after determining that three petitions seeking her removal establish a prima facie case to warrant a probe.

Following the suspension of Justice Torkornoo, Justice Paul Baffoe-Bonnie, the most senior Justice of the Supreme Court, will act as Chief Justice.

This is pursuant to Article 144(6) of the 1992 Constitution, which allows the most senior Justice of the Supreme Court to act as the Chief Justice in the event the position of the Chief Justice becomes vacant or the substantive Chief Justice is unable to perform his or her functions, as pertains in this case where Justice Torkornoo is unable to perform her functions due to her suspension.

The suspension of the Chief Justice by President Mahama, the first in the country’s governance system, followed the determination of the prima facie case by the President, in consultation with the Council of State, and the subsequent establishment of a five-member committee to inquire into the petitions, in accordance with Article 146 (6) of the 1992 Constitution.

Article 146(10) of the Constitution allows the President, acting in accordance with the advice of the Council of State, to suspend the Chief Justice when a committee is established to probe the petitions seeking the removal of the Chief Justice.

“Pursuant to Article 146 (10) of the Constitution and in accordance with the advice of the Council of State, the President has by a warrant, suspended the Chief Justice with immediate effect pending the outcome of the committee’s proceedings,” a statement signed and issued by the Spokesperson to the President and Minister of Government Communications, Felix Kwakye Ofosu, stated.

Committee

The statement by the Spokesperson to the President announced that the five-member committee established by President Mahama to probe the petitions would be chaired by a Justice of the Supreme Court, Justice Gabriel Scott Pwamang.

The other members of the committee are a Justice of the Supreme Court, Justice Samuel Kwame Adibu-Asiedu; a former Auditor-General, Daniel Yaw Domelevo; Major Flora Bazwaanura of the Ghana Armed Forces, and Professor James Sefah Dzisah of the University of Ghana.

History

Although there have been several attempts by individuals to seek the removal of the Chief Justice in the history of the country, this is the first time under the Fourth Republic that a President has triggered Article 146(10) of the Constitution to suspend a Chief Justice who is facing impeachment proceedings.

In fact, this is the first time a petition seeking the removal of the Chief Justice has passed the prima facie determination to a committee being set up by the President to probe the petition.

In 1995, the Ghana Bar Association (GBA) filed a writ at the Supreme Court challenging the nomination of Justice Isaac Kobina Abban as Chief Justice by then President Jerry John Rawlings on the basis that Justice Abban was not a person of high moral character or proven integrity to serve as Chief Justice.

The suit was, however, dismissed by the Supreme Court after a preliminary objection was raised by the Attorney-General that the removal process of the Chief Justice was not within the purview of the Supreme Court but was rather a political question preserved for the President and the Council of State under Article 146 of the Constitution.

In 2006, a petition was filed seeking the removal of the then Chief Justice, Justice George Kingsley Acquah, but this came to nothing after the Supreme Court in the celebrated case of Frank Agyei Twum vs Attorney-General held that the President violated Article 146(6) of the Constitution by forming a committee to probe the petition without establishing a prima facie case in consultation with the Council of State.

In 2024, President Nana Addo Dankwa Akufo-Addo declined to facilitate the process for the intended removal of Justice Torkornoo upon the receipt of a petition from a constitutional lawyer, Prof. Kwaku Asare, on the subject.

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”.

Article 146 governs the process for the removal of Justices of the Superior Courts, the Chief Justice and persons whose offices are analogous to 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.

Article 146(6) of 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”.

However, in the case of Frank Agyei Twum vs Attorney-General, the Supreme Court added the layer of prima facie determination concerning the impeachment process of the Chief Justice, which was not expressly stated in Article 146 (6) of the Constitution.

This means that 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.

If a prima facie determination is made, then the committee, as stipulated under Article 146(6) of the Constitution, will be established to investigate the petition.

It is important to note that under Article 146(10) of the Constitution, the President has the power to suspend the Chief Justice immediately after the committee is formed.

This suspension can be in place until the committee finishes its work, but the President has the power to revoke the suspension.

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

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

Background

On March 25 this year, Mr 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.

Two days later, the Member of Parliament for Old Tafo, Vincent Ekow Assafuah, filed a writ asking the Supreme Court to declare the prima facie determination process as unconstitutional owing to what he termed as a failure of the President to notify the Chief Justice about the petitions and receiving her responses before forwarding same to the Council of State.

On the same day that the two court processes were filed, Justice Torkornoo also wrote to the President requesting copies of the petitions and to be allowed to respond in tandem with the rules of natural justice.

Mr Assafuah, represented by his lawyer, Godfred Yeboah Dame, a former Attorney-General, also filed an injunction application seeking to halt the entire impeachment process pending the final determination of the substantive suit.

However, two days after the writ and the injunction application were filed, President Mahama, on March 29, 2025, forwarded the petitions to the Chief Justice seeking her preliminary response in the process initiated with the Council of State to determine whether or not there was a prima facie case for her to answer.

The President gave Justice Torkornoo 10 days to submit her responses, which the Chief Justice reportedly complied with.

The injunction application is expected to be heard by a five-member panel of the Supreme Court on May 6 this year.

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