Justice Torkornoo’s removal ignites public reaction - Committee finds CJ guilty of misbehaviour
The removal of Justice Gertrude Araba Sackey Torkornoo from office as the Chief Justice (CJ) has generated spirited public discussions dominated by legal arguments, emotions and outright politics.
While the government has defended the removal as a constitutional process in accordance with the rule of law, prominent individuals, such as a former Chief Justice, Justice Sophia Akuffo, and a former Attorney-General and Minister of Justice, Nii Ayikoi Otoo, have condemned it.
The Minister of Government Communications, Felix Ofosu Kwakye, in an interview with the media last Monday, said the removal was not politically motivated and not part of the government’s reset agenda.
“It has nothing to do with resetting the judiciary. Resetting the judiciary simply means that we demand that fairness and balance prevail in the way the judiciary does its work.
That’s all it is about,” he said.
However, Justice Akuffo, who is also a Member of the Council of State, in an interview, described the removal of Justice Torkornoo as an “unfair process” that would set a dangerous precedent for the country.
“She did not get a fair trial. Even though it is not a trial strictly speaking, it was handled as though it were a treason trial,” she said.
For Mr Ayikoi Otoo, who is also one of the lawyers who represented the ousted Chief Justice during the hearing by the committee, her client committed no wrong to warrant such treatment.
Another experienced legal practitioner, who spoke on condition of anonymity, said that although the President used the law to impeach the Chief Justice, like in the case of President Nkrumah removing Sir Arku, history had not been kind to Ghana’s first President.
The legal practitioner, therefore, believes that posterity will be the better judge as to whether President Mahama did the right thing or not.
Justified
A former Director of the Ghana School of Law, Kwaku Ansa-Asare, has justified the decision by President John Dramani Mahama to remove Justice Torkornoo from office based on recommendations of the committee of inquiry.
He explained that rather than expressing dismay, Ghanaians should take pride in the fact that constitutional processes for the removal of the Chief Justice have been duly followed as prescribed by the 1992 Constitution.
Mr Ansa-Asare, who also founded Mountcrest University College, added that any attempt to judge the President’s action must be based solely on President Mahama’s adherence to the constitution.
“So far, I have yet to be convinced that the President has contravened the constitutional process.
No one has been able to pinpoint exactly where President Mahama has gotten it wrong.
“If you allege that your constitutional rights are being violated, and you yourself, as the head of the judiciary, do not understand the ramifications of the Chief Justice removal process, you shoot yourself in the foot.
“I don’t think that we should be sad about this; we should rather be happy. We should be happy that the constitution is working.
This is a democracy,” Mr Ansa-Asare told JoyNews Pulse.
Stated misbehaviour
After two years in office, Justice Gertrude Araba Torkornoo became the first Chief Justice since the country’s return to democratic rule in 1992 to be removed from office.
She is also the second Chief Justice to be removed from office in the history of the country, with the first being Justice Sir Arku Korsah, who was sacked by the country’s first leader, President Kwame Nkrumah, in 1963.
When President John Dramani Mahama removed Justice Torkornoo from office last Monday following the recommendation of a constitutional committee set up to probe three petitions against her, the reason for the removal was “stated misbehaviour” as stipulated under Article 146 of the Constitution.
Under Article 146(9) of the Constitution, President Mahama had no option but was constitutionally bound to remove the Chief Justice after the five-member committee had recommended her removal for “stated misbehaviour”.
Not long after, a statement from the Minister of Government Communications announcing the removal in accordance with the Constitution and a letter from the Executive Secretary to the President, Dr Callistus Mahama, to Justice Torkornoo informing her about her removal, shed light on the “stated misbehaviour” that warranted her removal.
The letter by the Executive Secretary to the President explained that the committee concluded that Justice Torkornoo engaged in an act that “constituted avoidable and reckless dissipation of public funds.”
The letter indicated that Justice Torkornoo, during her holiday travels in September 2023, went with her husband to Tanzania, and her daughter to the United States of America (USA), which, per the committee’s findings, amounted to “unlawful expenditure of public funds.”
“Those acts constitute avoidable and reckless dissipation of public funds and, in the view of the committee, to have been occasioned by the overall head of the Judiciary and the Judicial Service, whose duty is to guard public resources allocated by the government, is caught within the spectrum of stated misbehaviour”, the committee findings said as revealed in the letter.
Again, Justice Torkornoo was found by the committee to have breached Article 296 (a) and (b) of the Constitution when she transferred a staff member of the Judicial Service, simply mentioned as Mr Biden, adding that such conduct amounted to “stated misbehaviour under Article 146(1)”.
Also, the committee found the former Chief Justice to have committed “stated misbehaviour” for recommending five persons to then President, Nana Addo Dankwa Akufo-Addo, in 2024.
“The appointment of the Chief Justice herself as a Justice of the Supreme Court went through the very process and procedure set out in the case.
Therefore, to seek, wittingly, to outwit this known process and procedure for appointing Supreme Court justices amounts to misbehaviour in the eyes of the committee and the committee finds it as such,” the letter added.
The letter concluded that the President was mandated to remove Justice Torkornoo as Chief Justice as recommended by the committee pursuant to Article 146(9) of the Constitution.
Analysis
Three petitions seeking Justice Torkornoo’s removal were presented to President Mahama.
The five-member committee, presided over by Justice Gabriel Scott Pwamang, decided to treat each petition separately, with each of them analysed on its own strengths and weaknesses.
With this approach, the committee has practically made the other two petitions moot, after it concluded that the first petition filed by businessman, Daniel Ofori, met the threshold of “stated misbehaviour” for the removal of Justice Torkornoo.
The impeachment proceedings have put into focus the democratic and political system of the country vis-à-vis how public officials are held accountable and the nature of the system in place to check abuse of office, with many people calling for stronger safeguards to cement the independence of the judiciary.
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.
However, many critics have described Article 146 as scanty and problematic, adding that in its current form, it could be manipulated for political expediency.
The same arguments were made when the former Chairperson of the Electoral Commission, Charlotte Osei, was removed from office under the erstwhile Akufo-Addo administration in 2018 under the same provision.
Critics have, therefore, called for a law by Parliament that would fill the gaps in Article 146, and, for instance, shed light on what “stated misbehaviour” meant, as well as how the committee to probe a petition should operate.
Lawsuits
Although the inquiry into the three petitions seeking the removal of Justice Torkornoo was held in camera as stipulated by Article 146(8) of the Constitution, issues surrounding it became a spectacle in the law courts and in the courts of public opinion.
Four constitutional applications for interlocutory injunction were filed against the suspension of Justice Torkornoo and the impeachment process.
All four applications for interlocutory injunction, including the recent one by the Chief Justice herself, were dismissed by the Supreme Court.
Justice Torkornoo described the process as a “flagrant violation of the rules of natural justice and fair trial as guaranteed by the Constitution”.
Apart from the cases at the Supreme Court, Justice Torkornoo further filed a certiorari application at the High Court, asking the court to quash some decisions of the committee of inquiry on the basis that they were arbitrary and against the rules of natural justice.
The court, however, dismissed the application, ruling that it was not different from the case dismissed by the Supreme Court, and that it had no jurisdiction to interpret the constitution or review a decision of the highest court of the land.
The Chief Justice also filed an application for the enforcement of her human rights at the ECOWAS Community Court of Justice on the same issue. The case is still pending at the sub-regional court.
Background
On April 22, the Spokesperson to the President and Minister of Government Communications announced that President Mahama had suspended Justice Torkornoo.
The suspension of the Chief Justice by President Mahama, under Article 146 (10) of the Constitution, followed the determination of a 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.
Writer’s email: emma.hawkson@graphic.com.gh
