Impeachment of CJ: Vexing issues arising

The Supreme Court is expected to soon fix a date to hear an injunction application seeking to halt the process that could result in the impeachment of the Chief Justice, Justice Gertrude Sackey Torkornoo.

President John Dramani Mahama has initiated a consultation process with the Council of State in line with Article 146 of the 1992 Constitution, aimed at establishing whether three petitions seeking the impeachment of Justice Torkornoo meet the prima facie threshold to warrant investigations.

The Member of Parliament for Old Tafo, Vincent Ekow Assafuah, on March 27, this year 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.

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.

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

Is the application moot?

However, two days after the writ and the injunction application were filed, President Mahama, on March 29, 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.

The new twist has therefore raised the issue of whether the application and the substantive writ are moot.

In law, a case is termed moot if it has been overtaken by events, with the subject matter of the case either extinguished or being determined by the events.

While some lawyers and legal scholars have reinforced this position, others believe that a determination by the Supreme Court will bring clarity to the issue of whether the response of the Chief Justice is required by law during the prima facie determination by the President in consultation with the Council of State.

Should the CJ empanel the judges?

Another raging controversy which has dominated discussions and is likely to come up during the hearing today is whether it is in the interest of fair trial for the Chief Justice to empanel the Justices of the apex court who will hear and determine the application.

Critics have pointed out that as an interested party in the case, the Chief Justice should hand over her administrative function in empanelling the Justices that will determine the application since it would amount to her being a judge on her own case.

However, this argument has been countered by others who are of the view that the law as established by the legal doctrine of necessity and a plethora of cases such as GBA vs A-G (Abban case) and Frank Agyei Twum vs A-G is that the Chief Justice cannot be made to forgo her administrative duty of empanelling judges as established under Article 125(4) of the 1992 Constitution so far as she remained the substantive Chief Justice.

Those who subscribe to this line of argument further contend that the Chief Justice empanelling judges does not make the judges susceptible to manipulation by the Chief Justice, as judges are expected to be fair-minded.

Reliefs

In the substantive writ of Mr Assafuah, he argued that the President was enjoined by various provisions in the 1992 Constitution to have first notified the Chief Justice about the petitions 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.

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”.

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.

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.

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, 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.

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