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Legal Opinion On Petition To Remove The Chief Justice; At What Stage Can The Chief Justice Have Knowledge Of The Content Of The Petition To Remove Her?

By Mark Addey
30 Mar 2025

1. BACKGROUND

On 25th March 2025, the Minister for Government Communications, Hon. Felix Kwakye Ofosu, issued a communique titled “PRESIDENT MAHAMA CONSULTS WITH THE COUNCIL OF STATE ON THREE(3) PETITIONS FOR THE REMOVAL OF THE CHIEF JUSTICE.”

The content of the letter reads as follows:

“President Mahama has received three (3) petitions from various persons seeking the removal of the Chief Justice. The President has forwarded the three (3) petitions to the Council of State to commence the consultation process mandated by Article 146 of the 1992 Constitution.”

On 27th March 2025, the Law Platform reported that the Learned Chief Justice had written to the President of the Republic, H.E John Dramani Mahama, the Chairman of the Council of State, Hon. Doe Adjaho and the Former Chief Justice, who is a member of the Council of State, Sophia Akuffo requesting for copies of the three petitions to the President for her removal before the President consults with the Council of State for the constitution of a committee to hear grounds for her removal contained in the petitions.

In the letter, she noted that despite the President’s action, she has neither received nor been given copies of the petitions sent to the Council of State, which are expected to form the basis for her removal from office. In the letter, the Hon. Chief Justice explained that when a petition for the removal of a Supreme Court judge is received, the Chief Justice is required to bring the petition to the attention of the accused judge and seek their response before any further action is taken.

The last but one paragraph of the letter states as follows:

“I am by this letter humbly and respectfully asking His Excellency the President and eminent members of the Council of State to forward the petition against me to me, and allow me at least seven days after receipt of same, to provide my response to you, which response can then form part of the material that you conduct the consultations anticipated under 146 (6) before the possible setting up of a Committee of Inquiry under article 146(7).”

2. OBJECTIVE

The question this paper seeks to address or answer is:

The sole objective of this paper is to answer the aforementioned question by examining the relevant constitutional provisions and case law governing the removal of a Chief Justice.

1. PROCEDURE FOR THE REMOVAL OF THE CHIEF JUSTICE AND A JUSTICE OF THE SUPERIOR COURT

The Constitution of Ghana, 1992 which is the supreme law of this land, provides for the procedure to be followed for the removal of the Chief Justice and a Justice of the Superior Court. It also determines which person or organ has the power to remove the Chief Justice and a Justice of the Superior Court. The said procedure for the removal of the Chief Justice and a Justice of the Superior Court is provided in Article 146 of the 1992 Constitution.

Article 146 provides as follows:

  1. A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.
  2. A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.
  3. If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.
  4. Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial Council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.
  5. The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.
  6. 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.
  7. The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
  8. 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.
  9. The President shall, in each case, act in accordance with the recommendations of the committee.
  10. Where a petition has been referred to a committee under this article, the President may -
    1. in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice;
    1. in the case of any other Justice of a Superior court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that

Chairman of a Regional Tribunal.

(10) The President may, at any time, revoke a suspension under this article.

To ensure a clear understanding of these distinct processes, this paper will first outline the removal procedure of a Justice of the Superior Courts before delving into the specific process applicable to the removal of the Chief Justice. Following this analysis, the paper will address the central question posed earlier.

2. REMOVAL OF A JUSTICE OF THE SUPERIOR COURT

Article 146(2) unequivocally mandates that no Justice of the Superior Court of Judicature may be removed except in strict compliance with the procedures prescribed under the said Article. Any attempt to remove a Justice of the Superior Court without full adherence to these constitutional safeguards shall be rendered null and void.

The first step is that when the President receives a petition to remove a Justice of the Superior Court, the President shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

Where the Chief Justice determines that there is a prima facie case against the said Justice, he shall set up a 5-member committee. The 5-member committee shall comprise of 3 Justices of the Superior Court, appointed by the Judicial Council and 2 other members who are not members of the Council of State nor lawyers nor members of Parliament appointed by the Chief Justice on the advice of the Council of State.

The committee shall then investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.

Article 146(8) adds that proceedings under article 146 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. This provision is in line with the rules of natural justice specifically audi alterem partem. It is at this stage that the affected Justice is informed of the Petition thereby granting him the right to appear before the Committee and respond to the allegation. The Constitution is clear, it is during the committee inquiry stage that the affected Justice would have copies of the petition to afford him time to prepare his defense.

A Justice of the Superior Court can only be removed through the procedure outlined above. Crucially, the grounds for removal must be constitutionally valid. Article 146(1) explicitly states that a Justice of the Superior Court or a Chairman of a Regional Tribunal may only be removed from office for the following reasons: stated misbehaviour, incompetence, or an inability to perform their duties due to physical or mental infirmity. These are the sole constitutional grounds for removal; no other reasons are permissible.

Having considered the procedure for the removal of a Justice of the Superior Court, I now turn to the central focus of this discussion.

3. REMOVAL OF THE CHIEF JUSTICE

The same Article 146 also governs the removal of the Chief Justice, though the procedure differs slightly in key respects. Below, I outline the process specific to the removal of the Chief Justice. Without sounding repetitive, Article 146(6) provides as follows:

  1. 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.
  2. The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
  3. 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.

Upon receiving a petition for the removal of the Chief Justice, the Constitution requires the President to consult the Council of State and appoint a 5-member committee. This committee is tasked with investigating the petition and submitting its recommendations to the President. During the inquiry, the Chief Justice has the legal right to be heard on any defence against the allegations in the petition. This ensures fairness by allowing the Chief Justice to respond to the claims before any final decision is made.

4. DETERMINATION OF PRIMA FACIE CASE

Prima facie is a Latin word for “at first sight,” “on the face of it” or “based on first impression.” Prima facie is used by the court to indicate that there is sufficient or adequate evidence to support a claim. In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. It implies that, based on the information available, there is enough evidence to establish a case unless contradicted by additional evidence. Essentially, it serves as a preliminary standard that helps determine whether a case should proceed to a full trial or further examination.

You will recall that while discussing the removal of a Justice of the Superior Court, the Chief Justice is mandated - after receiving the petition from the President - to determine whether a prima facie case has been made against the said Justice. What must be noted here is that the Constitution under Article 146 is silent on the issue of prima facie case when it comes to the removal of the Chief Justice. That is, the Constitution under Article 146 did not state that a prima facie case must be determined where the petition is sent to the President for the removal of the Chief Justice.

When one compares Article 146(3) with Article 146(6), it becomes evident that there is a gap in the logical sequencing of action under Article 146(6). According to the literal language of Article 146(6), no one is required to examine a petition brought against the Chief Justice to ascertain whether it establishes a prima facie case before the President refers it to a Committee established by him. Once any petition, no matter how frivolous its contents are, is presented to the President, then he has a duty to establish a committee to consider it. This prima facie provision under article 146(3) and (4) is not included in the removal of the Chief Justice. This became an issue in 2006.

The case of AGYEI-TWUM AND ANOR. V. ATTORNEY-GENERAL AND AKWETEY

(2005-2006) SCGLR 732 is instructive here. The plaintiff in this case prayed to the Supreme Court to declare that Article 146(6) of the Constitution shall be construed concurrently with Article 146(3) and (4) which requires the establishment of a prima facie case before the setting up of a Committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court. Additionally, the Plaintiff prayed for a declaration that by virtue of such construction, the consultation by the President with the Council of State in respect of the appointment of a Committee to inquire into a petition for the removal of the Chief Justice shall first determine whether the said petition discloses a prima facie case before the Committee is appointed.

Justice Date-Bah J.S.C. (as he then was) highlighted a critical lacuna between Articles 146(3)–(4) and 146(6) concerning the removal of the Chief Justice. He noted that the absence of a prima facie case requirement under Article 146(6)—unlike the process for other Superior Court justices—creates a procedural gap. This omission, he warned, could “open the floodgates” to frivolous or unsubstantiated petitions being submitted to the President, thereby triggering unnecessary committee inquiries. He put it in these words:

“A literal reading of the provision, therefore, could lead to the floodgates being opened for frivolous and vexatious petitions being continuously filed against a serving Chief Justice, with two Supreme Court judges being perpetually tied down to hearing such petitions, alongside the other members of the committee that the President has to appoint. This is a scenario that would weaken the efficacy of the top echelon of the Judiciary.”

To cure this lacuna or gap, the Learned Judge employed the purposive approach to interpretation and held as follows:

“In my view, the objective purpose and spirit of the 1992 Constitution require that a Chief Justice be given the benefit of a prior determination as to whether there is a prima facie case established against him or her, before the President may establish a Committee to consider a petition for his or her removal. A comparative examination of the relevant provisions dealing with petitions for the removal of other Superior Court Justices (in articles 146(3) and 146(4)) reveals an omission in the plain language of article 146(6) relating to the impeachment process of the Chief Justice which, in my view, could not have been intended by the framers of the Constitution. The omission to provide for a prior determination of a prima facie case leads to a manifest absurdity which this court has the power to avert. In effect, one is saying that there is a logical gap or inadvertent mistake in Article 146(6) which this Court should correct, by interpretation. The purpose of article 146(6) is to enable credible allegations as to the Chief Justice's stated misbehaviour, incompetence or infirmity of body or mind (see article 146(1)) to be investigated.”

Date Baah (J.S.C) highlights a critical oversight in Article 146(6) of the 1992 Constitution regarding the removal process of the Chief Justice. He emphasizes that the constitutional framers could not have intended to subject the Chief Justice to removal proceedings without first establishing a prima facie case—a safeguard expressly provided for other Superior Court judges under Articles 146(3) and 146(4). The absence of such a preliminary screening mechanism creates an absurdity, exposing the Chief Justice to potential frivolous or politically motivated petitions. The comparison with the procedural protections afforded to other justices underscores this glaring inconsistency. He added that no reasonable interpreter could reach the conclusion that its purpose also includes providing a forum for the ventilation of frivolous or vexatious petitions. These observations regarding the purpose of Article 146(6) are obviously to be taken into account in determining the meaning of the provision.

Paragraph 286 of the Proposals for a Draft Constitution of Ghana, prepared by the Committee of Experts for the 1992 Constitution confirms the above analysis. Paragraph 286(c) provides as follows:

Thus, it is clear that the Committee of Experts which formulated the original draft of the 1992 Constitution intended that the Chief Justice should also have the benefit of a prima facie determination before a committee was empanelled to examine a petition for his or her removal. Date Baah J.S.C (as he then was) highlighted that the omission of the prima facie case in the process of removing the justice is as a result of inadvertence.

The question flowing from this discussion is: Who then makes the “prima facie” determination? Date Baah J.S.C(as he then was) answered this question. He held as follows:

“From the analogy in article 146(3), it is clear that the framers of our Constitution wanted an independent determination of the issue of a prima facie case. That is why they provided in that sub-article that the issue was to be referred to the Chief Justice for determination, in cases relating to Superior Court judges other than the Chief Justice. Similarly, I do not consider it reasonable to infer that they would want the President himself alone to make the prima facie determination in the case of a petition for the removal of the Chief Justice. There is a parallel need for a process which ensures an independent determination of whether there is a prima facie case against the Chief Justice. I consider that the reasonable implication to be made from the context of Article 146(6) is that the Council of State should play a prominent role in the determination of whether there is a prima facie case against the Chief Justice. Accordingly, I am inclined to grant the Plaintiff a declaration that the consultation by the President with the Council of State in respect of the appointment of a Committee to inquire into a petition for the removal of the Chief Justice shall first determine whether the said petition discloses a prima facie case before the Committee is appointed. It would be prudent for the Council of State to evolve a convention by virtue of which the advice of a reputable independent lawyer is sought as part of the consultative process with the President.”

It follows that under a proper constitutional interpretation, the President must first consult with the Council of State to determine whether a prima facie case exists against the Chief Justice before empanelling the 5-member committee.

5. AT WHAT STAGE?

Francois JSC, in NEW PATRIOTIC PARTY V ATTORNEY-GENERAL [1993-94] 2

GLR 35 AT PAGE 79 said as follows:

“My own contribution to the evaluation of a Constitution is that a Constitution is the outpouring of the soul of the nation and its precious life-blood is its spirit. Accordingly, in interpreting the Constitution we fail in our duty if we ignore its spirit. Both the letter and the spirit of the Constitution are essential fulcra which provide the leverage in the task of interpretation. In support of this, we may profitably turn to the Constitution, 1992 itself which directs that we accord due recognition to the spirit that pervades its provisions.”

The Supreme Court has yet to make a determination on this issue. On 26th March 2025, Hon. Vincent Ekow Assafuah issued a writ invoking the original jurisdiction of the Supreme Court to declare that the President is mandated to notify the Chief Justice about the 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.

This legal opinion was prompted by two key developments: the Honourable Chief Justice’s formal request for copies of the three pending petitions, and Hon. Vicent Assafuah’s subsequent writ challenging the procedural safeguards in the removal process.

It is settled and trite that in interpreting constitutional provisions, the natural and ordinary meanings must first be accorded the said constitutional provision. Sowah J.S.C (as he then was) in the case of TUFFUOR V. ATTORNEY-GENERAL [(1980) GLR 637 AT 659-660]

stated that “. . .our first duty is to take the words as they stand and give them their true construction having regard to the language of the provisions of the Constitution, always preferring the natural meaning of the words involved, but nonetheless giving the words their appropriate construction according to the text. . .” In the case of KUENYEHIA V. ARCHER [1993-1994] GLR 525, in its second holding, the Court found that

“A constitutional instrument is a document sui generis to be interpreted according to principles suitable to its peculiar character and not necessarily according to the ordinary rules and presumptions of statutory interpretation. It appears that the overwhelming imperatives are the spirit and objectives of the Constitution itself, keeping an eye always on the aspirations of the future and not overlooking the receding footsteps of the past. It allows for a liberal and generous interpretation rather than a narrow legalistic one.”

With these constitutional interpretation principles established, I now proceed to analyze the question posed above.

The Constitution in Article 146(7) and (8) is clear that after the 5-member Committee has been empanelled by the President in consultation with the Council of State, the Committee shall inquire into the petition. And in the process, “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.” This constitutional language strongly suggests - and I firmly maintain - that it is at this investigative stage that the Chief Justice must first be formally provided with copies of the petition and informed of its specific allegations. Such disclosure is essential to fulfil the fundamental right of defence, enabling the Chief Justice to: properly prepare a response; consult legal representation if desired, and effectively exercise the right to be heard before the committee.

Article 146(8) of the Constitution guarantees the Chief Justice both the right to be heard by the Investigative Committee and the right to legal defence, which necessarily requires that the Chief Justice must first receive full disclosure of the petition's contents - including copies of the petition itself and even the prima facie determination report - at the stage when the 5-member committee commences its formal inquiry. This prior disclosure is essential to satisfy constitutional due process, as it enables the Chief Justice to properly prepare a defence by reviewing allegations, consulting counsel, and gathering evidence before appearing before the Committee, thereby giving meaningful effect to the right to be heard and ensuring the proceedings comply with principles of natural justice and fair administrative action. It must be emphasized that the Committee is constitutionally required to allow a reasonable period for the Chief Justice to prepare a defence after providing copies of the petition and other supporting documents.

It is important to clarify that the prima facie determination stage – where the President, in consultation with the Council of State, assesses whether a petition against the Chief Justice discloses a potential case – is neither a trial nor a formal inquiry. This preliminary administrative procedure does not constitutionally require the Chief Justice’s participation or response or defense. The Chief Justice has no right to be heard at this initial phase because:

  1. The purpose is simply to evaluate whether the petition merits further investigation, not to adjudicate the allegations; and
  2. Considering the Chief Justice’s response at this stage would effectively transform the preliminary screening into a full hearing, rendering the subsequent committee process under Article 146(8) redundant.

The constitutional right to be heard and mount a defence arises only after the committee is empanelled, as expressly provided in Article 146(8). This staged procedure ensures both efficiency in preliminary assessments and fairness in subsequent investigations.

From the foregoing, it is evident that the Constitution has created 3 major stages for the removal of the Chief Justice:

Stage 1 - The determination of the prima facie case by the President in consultation with the Council of State[Article 146(6) and Agyei Twum case]

Stage 2 - The Inquiry stage by the Committee [Article 146(7) and (8)]

Stag 3 - The President acting in accordance with the recommendation of the Committee [Article 146(9)]

Significantly, the constitutional right of the Chief Justice to know the petition's contents and mount a defence attaches only at the second stage, when the Committee conducts its inquiry. It is at this critical phase that Article 146(8) guarantees the right of the Chief Justice to: receive full disclosure of allegations, be heard, respond to questions, and present a proper defense.

Thus, in the case of NATIONAL MEDIA COMMISSION V ATTORNEY-GENERAL

[2000] SCGLR 1 on page 11, Acquah JSC (as he then was) stated as follows:

“Accordingly, in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other.”

From the analysis so far, it can be shown that permitting the Chief Justice to receive the petition and submit a defence during the prima facie determination stage would fundamentally disrupt this design, as it would improperly merge the preliminary screening function (determination of prima facie case) with the investigative phase (where full due process protections apply). The inquiry stage under Articles 146(7)-(8) serves as the constitutionally designated point for the Chief Justice to: obtain the petition prepare a defence, and be heard before the Committee. Allowing these rights to be exercised in the first stage would render the Committee's investigative role superfluous and violate the staged process' careful balance between efficient screening and comprehensive adjudication. Prof. Date-Bah JSC(as he then was) in the case of ASARE V ATTORNEY-GENERAL [2003-2004] SCGLR 823 cited, with approval, the words of Justice Aharon Barak from his essay “A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002) 116 Harv. LR 19 at p 66)” where he said; “the aim of interpretation in law is to realize the purpose of the law; the aim in interpreting a legal text (such as a constitution or a statute) is to realize the purpose for which the text was designed Law is thus a tool designed to realize a social goal.”

6. CONCLUSION

As far back as 1954, in HENRY V. TAYLOR [(1954) 1 QB, 513], Lord Denning declared in his characteristically simple but powerful class of writing that “Where there is a fair choice between a literal and a reasonable interpretation, we should always choose the reasonable interpretation.” This was quoted with approval in the case of OMABOE III v. ATTORNEY- GENERAL & LANDS COMMISSION (2005-2006) SCGLR 579 This analysis transcends the conventional dichotomy between literal and reasonable interpretation, as both methodologies converge on the same constitutional conclusion: the Chief Justice's right to access removal petitions and prepare a defence properly arises only during the committee's investigative stage under Articles 146(7)-(8), not during the preliminary prima facie determination by the President and Council of State under Article 146(6). The textual framework explicitly reserves procedural protections for the inquiry phase. This interpretive harmony demonstrates the constitutional design intentionally sequences disclosure rights to balance efficient preliminary assessment with comprehensive investigative fairness.

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