Impeachment: President not obliged to seek response from CJ — A-G

The President is not constitutionally obliged to ask for the response of the Chief Justice when he receives a petition seeking her removal from office, the Attorney-General (A-G) has contended.

In an affidavit in opposition to an injunction application, the A-G also avers that apart from the Constitution, there is no other law, including a decision of a court, that enjoins the President to give the Chief Justice a hearing prior to the establishment of the prima facie case.

The A-G agreed that the Constitution, indeed, made it a mandatory requirement for a Chief Justice facing an impeachment process to be given a hearing before a decision is taken as to whether or not to remove her from office.

However, the A-G contends that there is no such law that stipulates that the hearing should be activated before the prima facie case is established.

“Neither, the Constitution nor case law (properly considered) requires the President to take a response  a Chief Justice before the determination of whether a petition for the Chief Justice's removal from office establishes a prima facie case,” the A-G stated.

According to the A-G, even if such an obligation exists, there is no law that stipulates that the President must seek the response of the Chief Justice before transmitting the petition to the Council of State for the consultation needed to establish whether the petition disclosed a prima facie case.

The affidavit in opposition filed last Monday, April 7, with a further supplementary application, filed last Tuesday, April 8, are in response to an injunction application filed by the Member of Parliament (MP) for Old Tafo, Vincent Ekow Assafuah.

Affidavit in opposition

In the supplementary affidavit in opposition, the A-G further refuted claims by the applicant that the established practice was for the President to first seek the response of the Chief Justice before forwarding same and the petition to the Council of State.

The A-G gave an example of a petition by Professor Stephen Kweku Asare on December 18, 2024, which he said, was forwarded to the Council of State for consultation before seeking the response of the Chief Justice.

According to the A-G, after receiving the petition, the then President forwarded it to the Council of State on the same day (December 18, 2024) but sought the response of the Chief Justice on December 20, 2024.

“No evidence of consistent practice exists to support the applicant's claim that a petition for the removal of a Chief Justice is, by practice, transmitted by the President to the Chief Justice for a response before transmission to the Council of State for the purposes of the mandatory consultation,” the A-G averred.

Mr Assafuah, who is represented by his lawyer, Godfred Yeboah Dame, a former A-G, is seeking an injunction to halt the entire impeachment process until the determination of his writ challenging the constitutionality of the impeachment process.

In his substantive writ, 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 was unconstitutional as it violated Articles 146(1), (2), (4), (6) and (7), 23, 57(3) and 296 of the Constitution, and was also against the rules of natural justice that required giving persons accused of wrongdoings a fair hearing.

The MP wants the apex court to halt the impeachment process until the determination of the substantive suit on the basis that if the impeachment process under Article 146 of the Constitution is concluded before the suit is determined, it would undermine the rule of law.

Application adjourned indefinitely

Meanwhile, the Supreme Court has adjourned indefinitely the application filed by Mr Assafuah.

When the case was called yesterday, a five-member panel of the apex court, presided over by Justice Professor Henrietta Mensa-Bonsu, announced that it had to adjourn the matter due to a request from the Office of the Attorney-General.

Justice Mensa-Bonsu explained that the Attorney-General had written to the Chief Justice, requesting an adjournment of all cases involving the Attorney-General’s outfit for the week, owing to a conference of State Attorneys currently ongoing in Accra.

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.

Article 146 governs the processes for the removal of Justices of the Superior Courts and Chairmen of Regional Tribunals.

On March 27, Mr Assafuah filed his writ and injunction application.

On the same day, the Chief Justice wrote to President John Dramani Mahama requesting to be given copies of the petitions against her that had been submitted to the President before conclusions of consultations between the President and the Council of State.

Two days later, on March 29, the President 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 is reported to have met.

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