Is It Constitutional? Insight On The Removal Of The Chief Justice

For the past few weeks we’ve seen emerging stories on the removal of the 14^th Chief Justice of the Republic of Ghana, Her Ladyship Chief Justice Gertrude Torkornoo which has stirred up a national debate. Her Ladyship was sworn into office on 12^th June 2023, and has since served as the Chief Justice of the Republic up until her suspension (which is a first), on April 22, 2025, by His Excellency President John Dramani Mahama. Before delving into this matter it is important to note the necessity of judicial independence as this principle ensures the sustenance of democracy in Ghana.

Judicial Independence ensures a fair and impartial justice system as the judiciary is free from external influence either from the executive, the legislature or even private individuals. It allows for the protection of the constitution, rule of law, minority rights and also maintains checks and balances. As per Article 127 of the 1992 Constitution of Ghana, Judicial Independence is upheld. In Article 127(2), neither the President nor Parliament nor any person acting under the authority of the President nor Parliament nor any other person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial powers, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution. The 1992 constitution thus establishes that the Judiciary must exist as an independent body free from any form of influence to ensure the smooth functioning of the Judicial arm in all judicial matters.

In the context of the Chief Justice’s suspension, this principle is of grave importance. The Constitution of Ghana, through Article 146, provides the process for the removal of superior court judges, including the Chief Justice, specifically for the protection against arbitrary or politically motivated actions. This removal process began with three different petitions brought before the president followed by a written response by Her Ladyship Gertrude Torkornoo to both the president and the Council of State addressing the various allegations against her. A five-member committee set up by President John Dramani Mahama, to investigate the petitions filed against Her Ladyship Gertrude Torkonoo was formed. After review of the petitions and the Chief Justice’s response, the Council of State determined that a prima facie case existed leading to her suspension by the President made in accordance with Article 146(10) of the 1992 constitution of Ghana. Following the suspension of the Chief Justice, Justice Paul Baffoe-Bonnie, the most senior member of the Supreme court has assumed the role of acting Chief justice as established under Article 144(6).

But then, concerns have been raised as to whether her removal is politically motivated due to the timing of events and if found to be politically oriented could severely threaten judicial independence and constitutional order. As a law student observing the unfolding issue, I would be expressing my views and stating my opinions through a constitutional lens to give an insight into the constitutionality of the matter.

The 1992 Constitution of Ghana is the supreme law of the land and the foundation upon which the democratic governance of this country is built on. It defines the whole system of the government of Ghana, collection of rules which establish and regulate the government, outlining the doctrine of separation of powers, guaranteeing fundamental human rights and establishing the concept of checks and balances between the three arms of government; the executive, legislature, judiciary to ensure democracy. The Chief justice appointed under Article 144 of the 1992 constitution has the sole responsibility to serve as head of the judiciary and ensure proper administration and supervision of the Judiciary as provided in Article 125(4) of the 1992 constitution. Additionally, the Chief Justice performs constitutional duties, such as swearing in the President and involving in judicial appointments. As the head of the judicial arm of government, the Chief Justice upholds the rule of law and serves as a symbol of the independence and integrity of Ghana's judicial system.

Meanwhile under Article 146 of the 1992 Constitution, when a petition is submitted for the removal of a justice of the Superior Court, including the Chief Justice, the President is required to consult with the Council of State and determine whether a prima facie case has been established, if a prima facie case is found, the President in consultation with the Council of State is mandated to appoint a committee consisting of two justices of the supreme court , one of whom shall be chairman, and three other persons who are not members of the council of state, nor members of parliament, nor lawyers as stated in Article 146(6) of the 1992 constitution. The committee is required to inquire into the petition and recommend to the president whether the Chief Justice ought to be removed from office. And when the committee completes its work and makes a recommendation for a removal from office, then a final decision can be made. The President of Ghana, His Excellency John Dramani Mahama acted in accordance with Article 146(10) by suspending the Chief Justice after the establishment of a prima facie case and in consultation with the Council of State.

The three main petitions filed for the removal of Her Ladyship Gertrude Torkornoo mainly allege a misconduct of the Chief Justice. One of the petitions made to the president was from Professor Stephen Kwaku Asare, a D&D Fellow in Public Law and Justice at CDD-Ghana, who is also a KPMG Professor in accounting at the Fisher School of Accounting, Florida-USA, a public intellectual and scholar-activist whose contributions and activism, includes acting as plaintiff in a number of precedent-setting cases before the Supreme Court of Ghana according to Ghana Law Hub. He submitted a petition alleging misconduct and abuse of judicial authority and raised concerns about procedural irregularities as well as the role of the Chief Justice in the administration of the judiciary. In his petition he alleged a lack of transparency and bias in the handling of matters of the judiciary.

The next petition by Mr. Daniel Ofori, a private citizen alleged ethical breaches and administrative misconduct by the Chief Justice. His petition highlighted claims of favoritism and a conflict of interest in certain judicial cases. Mr. Daniel Ofori’s petition emphasized the need for accountability and raised questions about whether the Chief Justice had upheld the high standards expected of the office.

Finally, the third petition which was in fact made by an anonymous petitioner from the Volta Region also raised similar concerns about the conduct and integrity of the chief justice. The petition alleged abuse of office, breach of judicial ethics and a failure to promote judicial independence.

In assessing whether there was a breach of constitutional provisions throughout the Chief Justice's removal process, we therefore need to carefully examine each step of the process to determine whether there was an adherence to the framework set out in Article 146 of the 1992 Constitution of Ghana, which governs the removal of a Chief Justice or any other Superior Court judge.

Article 146(6) establishes that, where there is a petition 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.

According to Article 146(7), the committee appointed under clause (6) of Article 146 must inquire into the petition and recommend to the president whether the chief justice must be removed from office and that is precisely what has been done by the president by appointing justice Gabriel Scott Pwamang (Chairman) and justice Samuel Kwame Adibu-Asiedu who are both justices of the Supreme Court, Mr. Daniel Yaw Domelevo (former auditor-general), Major Flora Bazwaanura Dalugo (Ghana Armed Forces) and Professor James Sefah Dzisah (Associate Professor at the University of Ghana) to form the five-member committee.

Article 146(10) establishes that the president may suspend the chief justice in accordance to advice received from the council of state based on the petition referred to the committee. The suspension followed the prima facie case determination and was done in consultation with the Council of State. President John Dramani Mahama did just that on April 22, 2025, when he suspended Chief Justice Gertrude Torkornoo.

While the suspension was made, the investigative committee is yet to complete its investigation. Despite varying views on the constitutionality of the removal of the Chief Justice, the process appears to be in line with the constitutional procedure, as it respects the rule of audi alteram partem, which means “let the other side be heard”, allowing the chief justice to respond to the allegations filed in the various petitions. Also, the president forming the five-member committee to investigate the petitions is in line with Article 146(7). After the establishment of a prima facie case, the president in consultation with the Council of State acting in line with Article 146(10) suspended Her Ladyship Gertrude Torkornoo.

Based on the steps taken so far, the formal procedure outlined in Article 146 of the Constitution has largely been followed. The petitions were valid, a prima facie case was established, and the President, with consultation from the Council of State, suspended the Chief Justice. And thus, even though this removal process may seem politically motivated due to the timing of events it is undeniable that a valid case has been established and the entire process is following constitutional provisions.

Samia Omar
UPSA, LLB3 (level 100)
samiaomar998@gmail.com

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