Respect For Constitutionlism

Mr Justice F. Y. Kpegah, the most senior among the Supreme Court justices, on Tuesday assumed office as Chief Justice, in compliance with the law, pending the appointment of a substantive justice to that high office.

That is as it should be under any system which professes to be democratic to give meaning to the rule of law and constitutionalism. The development thus, in many ways, underlines the government's respect for the rule of law and due process.

Indeed, until Mr Justice Kpegah assumed office as a matter of constitutional right, there were baseless but destructive speculations that the process would not comply with the requirements of the Constitution.

Article 144 of the 1992 Constitution unambiguously sets out the procedures for the appointment of a Chief Justice, a responsibility imposed on the President but which is not unilateral but systematic and involving the Judicial Council, the Council of State and eventually ending with Parliament. Thus, at the end of the day, the appointment of a Chief Justice does not lie with the President alone but involves all the three arms of government.

However, because of the elaborate procedures established for the process, the Constitution envisages some delay and, to avoid any vacuum, provides, under Article 144 (6), that whenever the Office of the Chief Justice becomes vacant or the office holder is unable to perform his duties, until a person has been appointed to the office and has actually assumed office, the functions must be performed by the most senior of the Supreme Court justices.

Something might have triggered the speculations which have the tendency to create hatred, animosity and cliques within the system. It is thus good that the matter of who acts as Chief Justice has been resolved in honour of the rule of law and functional constitutionalism.

It will give the bodies charged with the duty of helping the President to appoint the Chief Justice room to do diligent and thorough search. We need to ensure transparency in such appointments to give meaning and credibility to our claim of being a constitutional democracy.

Part of the uneasiness about appointments to the Supreme Court could be attributed to the apparent haste with which the PNDC appointed some justices to the Supreme Court on the eve of the Fourth Republic on January 6, 1993.

Supporters of the PNDC would claim that it was legitimate. However, those who opposed the appointments, including the Ghana Bar Association, maintained at the time that they were made to circumvent the process of parliamentary approval, since, in their view, some of the judges could not have passed the test of parliamentary approval, even in the predominantly National Democratic Congress dominated Parliament.

Indeed, as part of the process to circumvent the constitutional provision that the most senior of the justices shall act as Chief Justice, a retired Supreme Court judge was re-appointed to take up the position. Shortly thereafter, the most senior of the justices was retired on the grounds that his conditions of service were not covered under the 1992 Constitution.

The Constitution is clear as to the powers of the President in the appointment of a Chief Justice. However, he has no role when it comes to an acting Chief Justice.

We must show respect to the Constitution in all its provisions so that we can benefit meaningfully from it. As a matter of fact, it is only when we give respect to the rule of law and provisions of the Constitution, by word and deed, that we could be said to be operating functional constitutionalism.