The Chief Justice’s lawsuit

Article 146(6) was triggered in response to three petitions filed asking for the removal of the Chief Justice.

This has generated very heated debates, not only among constitutional law experts but also among citizens in the public square.

The debates, even when partisan, are very helpful, as they raise important questions that border on how to ensure that independent constitutional bodies continue to play their role as a key democratic safeguard.

It is now public knowledge that on May 21, 2025, the Chief Justice, through her lawyers, has filed a suit at the Supreme Court, regarding the ongoing process seeking her removal from office.

The 16 reliefs sought include a call to make the committee hearings public on the grounds that:

a) The Chief Justice is entitled to one based on certain provisions of the Constitution; and 
b) The Chief Justice can waive the privilege of in-camera hearings, again based on certain provisions of the Constitution. 

An Offence to Article 146(8)?

Article 146(8) states, “All proceedings under this article shall be held in camera and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.”  

My research showed three cases (Ghana Bar Association v. Attorney-General and Another; Agyei-Twum v. Attorney-General and Akwetey and His Lordship Justice Paul Uuter Dery Vrs Tiger Eye P.I and Others) where the Supreme Court addressed this provision in deciding the above-referenced cases.

My reading of this provision, notwithstanding other provisions dealing with ensuring fairness in judicial processes, plus my understanding of the Supreme Court’s position, leads me to two conclusions – a) the committee cannot deviate from what is prescribed in 1468(8) and b) the stated position of the court is that the 146 processes must be private.

But courts are known to sometimes depart from their precedents and positions.

It will, therefore, be instructive to see how the court handles this lawsuit and this relief.

The call for transparency

The relief being sought is about transparency. I have no objections, in principle, to transparency. As a matter of fact, on April 5, 2025, I wrote the following in my op-ed piece “Correcting the defects of Article 146(6).

The core reform needed to correct this defect is transparency.

It may require providing the public with an abridged version of the petition, even if a petitioner’s identity must be kept secret.

In addition, the response of a Chief Justice must be made a part of the public record. It may not hurt to make the advice given by the Council of State, as well as the findings of the committee and their recommendations, public as well.

The gravity of removing a Chief Justice from office is such that it must be done in a way that builds confidence in institutions. One way to do that is to make the process more transparent.”

I share this to reiterate my strong belief that Article 146 needs fixing. In a follow-up to my op-ed, I submitted a memo to the Constitutional Review Committee with suggestions on how this “defect” can be addressed to ensure greater transparency if there is a removal process initiated against a chief justice or any other officer, where this article is applicable in the distant future.

The current public discourse

Observing the public discourse in response to this lawsuit, there are two emerging positions.

On one side are those who argue for transparency and demand that the hearings be made public.

On another side are those who refer to Article 146(8) and simply assert the process is in conformity with the dictates of the Constitution. Both sides believe in the legitimacy of their positions.

However, here are three points of reflection as this process continues to unfold.

First, we must admit, even in our disapproval or distrust of the entire process involving the current Chief Justice, that each step has proceeded in conformity with the Constitution.

This is important because, sometimes, the sentiments expressed by some appear to create the impression that something unconstitutional is being done.

Second, the call for transparency, while important, cannot overlook the Constitution and the court’s precedent.

Until the court decides otherwise, the process must proceed, guided by “what is” and not “what ought to be.”

In our calls for transparency, we must guard against becoming advocates of constitutional violations.

Third, whatever the outcome of this process is, we must be guided by the fact that precedents are being set.

For me, whether these precedents become a guide that either enables or restrains the triggering of Article 146, only time will tell.

But given the nature of our partisan duopoly politics, I worry about what the country can expect with the next turnover elections.  

The writer is the Project Director, Democracy Project.