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Sun, 25 May 2025 Feature Article

Why the Immediate Past Attorney General Cannot Defend the Chief Justice: A Legal and Ethical Analysis

Why the Immediate Past Attorney General Cannot Defend the Chief Justice: A Legal and Ethical Analysis

The ongoing Article 146 proceedings to remove the Chief Justice of Ghana, Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo, have raised an important constitutional and ethical question: Can the immediate past Attorney General and Minister of Justice lawfully and ethically represent the Chief Justice in such proceedings? I argue, unequivocally, that the answer is no. This is not merely a matter of optics—it is a serious legal and constitutional breach, grounded in the doctrines of conflict of interest, natural justice, and the need to preserve public trust in constitutional processes.

This article provides a rigorous legal analysis, comparative jurisprudence, and a call for systemic reform in Ghana’s legal and political architecture.

The Legal Framework: Article 146, Ethics, and Public Office

Article 146 of the 1992 Constitution provides the mechanism for the removal of superior court judges, including the Chief Justice. It is a quasi-judicial process, requiring strict adherence to the principles of impartiality, fairness, and public confidence in the administration of justice. The Chief Justice’s suspension in April 2025 under this Article is a solemn moment for Ghana’s constitutional democracy.

The immediate past Attorney General—who served in the very administration that appointed the Chief Justice to the Supreme Court and later to her current role—now seeks to act as her legal representative in the removal proceedings. This move is constitutionally improper and ethically indefensible for several reasons.

Conflict of Interest: A Breach of Constitutional and Ethical Duties

The principle of Nemo Judex in Causa Sua (no one should be a judge in their own cause) is at the heart of this issue. The former Attorney General, as the government’s chief legal advisor, played a direct role in the appointment of the Chief Justice, potentially over more senior justices. This prior involvement creates a conflict of interest, both real and perceived, which undermines the integrity of the removal process.

Under Rule 11 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423), a lawyer must not act where they possess confidential information from a previous position that could materially affect a new matter. The former Attorney General, by virtue of his office, had access to sensitive state secrets, legal opinions, and cabinet discussions about judicial appointments and governance. His appearance as counsel in these proceedings violates the duty of confidentiality and raises the specter of insider advantage.

The test of reasonable apprehension of bias, as articulated in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, applies here. Would a reasonable person, apprised of the facts, perceive the former Attorney General’s involvement as compromising the impartiality of the Article 146 process? The answer is an unequivocal YES.

Comparative Jurisprudence: Lessons from Other Common Law Jurisdictions

In MacDonald Estate v. Martin [1990] 3 SCR 1235, the Supreme Court of Canada ruled that a lawyer must not act where there is a risk of using confidential information acquired during a previous representation or office. In Kallinicos v. Hunt [2005] NSWSC 1181 (Australia), the court barred legal representation where the perception of bias was reasonably foreseeable. Similarly, the UK Cabinet Office Code of Conduct for Former Ministers prohibits former ministers from engaging in activities that create an appearance of impropriety.

Ghana, as a constitutional democracy built on the common law tradition, must align with these global best practices to safeguard judicial independence and public trust.

The Integrity of Article 146: Beyond Adversarial Representation

The Article 146 process is not an ordinary legal proceeding; it is a constitutional inquest into the suitability of a Chief Justice to continue in office. It demands the highest standards of probity, accountability, and impartiality. The involvement of the immediate past Attorney General—who previously advised the President and Cabinet on judicial matters—taints the process, potentially rendering it vulnerable to judicial review on grounds of procedural impropriety.

Questions for Reform: Strengthening Ghana’s Constitutional Architecture

This controversy raises critical questions for Ghana’s legal and political institutions:

  1. Should there not be a statutory prohibition on former Attorneys General representing public officers in proceedings arising from their prior tenure?
  2. Can we continue to ignore the lack of post-office conflict of interest rules for high-ranking public officials in Ghana?
  3. How do we reconcile the constitutional mandate of impartiality with the revolving door culture between government legal offices and private legal practice?

Conclusion: Let the Rule of Law Prevail

The immediate past Attorney General and Minister of Justice cannot ethically or constitutionally represent the Chief Justice in the ongoing Article 146 proceedings. This is a matter not only of legal technicality but of preserving the integrity of Ghana’s constitutional order. The Council of State, Parliament, and the broader legal community must act decisively to prevent such conflicts of interest from undermining our democracy.

The time has come to codify post-office restrictions for former public officers, especially those who have held sensitive legal positions. Let us learn from this moment and strengthen the guardrails of our Republic.

Let us all be reminded that "the law is the law"

By
Lewis Kwame Addo

Lewis Kwame Addo
Lewis Kwame Addo, © 2025

This Author has published 36 articles on modernghana.comColumn: Lewis Kwame Addo

Disclaimer: "The views expressed in this article are the author’s own and do not necessarily reflect ModernGhana official position. ModernGhana will not be responsible or liable for any inaccurate or incorrect statements in the contributions or columns here." Follow our WhatsApp channel for meaningful stories picked for your day.

Comments

Jones | 5/25/2025 4:17:16 AM

I am surprised till date no one has filed to challenge Dame representation of former cabinet members n now CJ in court. Disgusting, disgraceful behaviour of Dame .

Do you support the GH¢1 fuel levy imposed by government to address the electricity challenges?

Started: 06-06-2025 | Ends: 06-07-2025

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