Constitutional Breaches with removal of a Chief Justice and the Reasons lacked weight for removal of the Chief Justice

Constitutional breached by Council of State

The Constitution of Ghana at Article 3 requires all Citizens to defend it. Thus the defence of the Constitution requires the Citizens especially the President and the Commander-in-chief of the Ghana Armed Forces and the personnel of the Ghana Armed Forces especially Commissioned Officers who have sworn an oath to uphold, preserve, defend and protect the letter and spirit of the provisions of the Constitution at all times.

This motivated this writer, a Bogobiri, meaning a person with fighting spirit, who is a former Commissioned Military Senior Officer with rich experiences for a Better Ghana Agenda to share the experiences with others as required by God for the support the Government of the Day to ensure the right things are done as required by God and by the Constitution of Ghana for a Better Ghana for current and future generations, hence for public interest.

There are two concepts of a Constitution in order to ensure good governance in a democratic dispensation, namely Constitutionalism and Constitutionality. Constitutionalism is the limitation placed on the exercise of legal and political power and thus compels constitutional bodies to act according to the letter and spirit of the Constitution. So, Constitutionalism is the concept that the power of government be it Executive Power, Legislature Power or Judicial Power is limited by law or the Constitution through the concept of Constitutionality to ensure good governance. Constitutionality on the other hand, are acts being in accordance with the Constitution, that is the rule of law at the Constitutional level, no matter what the content of the law, the law rules. That is, the law is the Law as stated by Lady Araba Sackey Torkonoo, the former Chief Justice of Ghana.

So, to ensure a fair, impartial and Independent body or a Committee, the removal of a Chief Justice and a Justice, was made by the framers of the 1992 Constitution to be by a judicial question and not subject to a political question. Consequently, the framers of the Constitution, strictly denied, rejected, prohibited barred a political body with seemingly or real political partisan undertone including the Council of State to conduct a preliminary inquiry or simply inquiry into a petition to determine is of prima facie case before the appointment of a duly judicial body, in the form of a Committee by the President, in consultation with the Council of State to conduct full investigation into a removal of CJ’s petition sent to the President .

Note in 1992, the framers of the 1992 Constitution totally or strictly rejected the recommendations of the Committee of Constitutional Experts for the Council of State to determine a petition for the removal of a Chief Justice is of prima facie case so they made Article 146 of the 1992 Constitution to be an entrenched provision thus barred the Supreme Court to rewrite the Removal provision in the Constitution. Dr Nana SKB Asante, PHD, a Constitutional Lawyer, Statesman the Paramount Chief of Asante Asokere, lecture in 2002 on the deliberations during the drafting of the provisions 1992 Constitution by him and other members of the Committee of Constitutional experts, which drafted the 1992 Constitution. He is still alive to confirm this claim. Otherwise check Findings number 218 at page 254.

So the framers of the 1992 Constitution made the removal of a CJ to be a judicial inquiry as in the letter and spirit of Article 146 of the 1992 Constitution which speak of a Committee, in real sense it is a Tribunal as in Article 128 of the 1979 Constitution or Section 76 of the Armed Forces Act 1962 (Act 105) which includes a Board of Inquiry, hence a fact finding Committee is a Tribunal and the removal process is protected by an entrenched provision at Article 146 of the 1992 Constitution.

This is very necessary because the framers of both the 1979 and 1992 Constitutions made the determination of prima facie and if so a subsequent full investigation into a petition for the removal of the Chief Justice to be a judicial question and not a political question. You may confirm this assertion with finding number 218 at page 254 of the Report of the 2011 Constitutional Review Commission, chaired by Professor Albert FIADJOE with Professor Raymond Atuguba as the Executive Secretary of the Commission.

So the Supreme Court had /has no power to rewrite an entrenched provision of Article 146 of the 1992 Constitution to cloth the Council of State, with the power to inquire into a petition is of prima facie case to remove a Chief Justice of Ghana. So, the Council of State breached clause 6 of Article 146 of the 1992 Constitution when it arrogated to itself the power to review petitions and decided they were of prima facie cases before the appointment of the Committee to inquire into the petition.

By this Ultra Vires action by the Council of State, the issue of fairness, impartiality and Independence of the Judiciary as required granted under Article 127 and Article 146 of the Constitution to Investigative Committee were impaired in the removal case. Hence in the eyes of some members of the public, the Justice Pwamang’s Committee, were forced to rubber stamp the findings of the Council of State. So, the Supreme Court when its power is invoked, should please rise to the Occasion to declare the actions of both the Council of State and the Committee null and void.

Stated Misbehaviour as a Reason for removal

The qualities of the Chief Justice and Justice of Ghana are required to be of high moral character and proven integrity. So, any conduct be it immoral or criminal or cruel or insubordination and thus brings dishonor (disgrace or disrespect) to a CJ or a Justice as a person and or the Judiciary as an Institution in the eyes of the public and thus shakes the faith and confidence which the public reposes in the affected person and or the Judiciary may be termed as Stated Misbehaviour. It is a Misbehaviour on part of a Justice or the CJ, if he or she acted in a manner including corrupt act which brings or is likely to bring the high office of the Chief Justice into disrepute, ridicule, or contempt or prejudicial or inimical to the security and safety of the Judiciary.

The gravamen of Article 146 of the 1992 Constitution, is that the action of a Justice or a Chief Justice disgraces him or her personally or bring dishonor to the Judiciary. The framers used the highest threshold of Stated Misbehaviour to arrest weaponization of the matter by political actors and nor the use of Stated Misbehaviour by a staff or any other person due to dissatisfaction of an act or conduct by a CJ, which is done due to his or her judgment and may entail human error, not related to corruption, not with bad faith, or bias or not an abuse of office. Especially when appellate system exist for seeking redress or corrective action at an appeal Court or by the Administrative system including the use of the judicial council and audit system by a surcharge is available to a dissatisfied person.

The three coequal Arms of Government namely the Executive Arm headed by the President, the Legislature Arm Headed by the Speaker and the Judiciary Arm Headed by the Chief Justice in a Democratic Dispensation by the theory and practice of Separation of Powers are to enjoy independence, hence independent in Decision Making. Notwithstanding this philosophy of Independence of the three Coequal Arms of Government, the framers of the 1992 Constitution based on the Political History of Ghana, further ensured the Independence of the Judiciary is anchored by Article 127 of the 1992 Constitution as an entrenched provision.

Clause 1 of Article 127 of the 1992 Constitution grants Independence to the Judiciary both in Judicial and Administration including Financial Administration, and this is subject to only the Constitution. In a Book by Professor Date-Bah JSC, entitled Select Papers/Lectures in Ghanaian Laws at page 90 speaks of Independence of the Judiciary is in both personal and institutional Independence and is both in theory and in practice.

He stated I the book that personal independence is by a Justice working in accordance to Judicial core values through his or her judgment in a fairly and impartial way without bias and acts of corruption. He indicated that Institutional Independence refers to the various elements or arrangements like Constitutional provisions, Statutory laws etc in place to ensure the Independence of the Judiciary. This thus include, separation of powers, Independent Constitutional process for removal of a CJ and a Justice as required of Article 146 Constitutional Committee, Administration including financial autonomy of the Judiciary as in Clause 1 of Article 127 of the 1992 Constitution.

Thus a Chief Justice, as the Head of the Executive of the Supreme Court and the Head of the Judiciary, and as a human being, one cannot rule out the likelihood of his or her misjudgment in the Chief Justice’s Judiciary and Administrative acts. A misjudgment does not constitute stated misbehaviour or incompetent within Article 146 of the 1992 Constitution when it is not related to corruption, etc.

For the above narration, Mr Braiden’s transfer, the CJ’s travel matters, as covered in the Judicial Travel Policy lacks the weight to be termed as Stated Misbehaviour. Lastly, since Clause 1 of Article 1 of the 1992 Constitution requires that power of government is to be exercised for the welfare of the citizens, hence the staff under the Authority of a CJ, so the recommendation of persons to the President to be considered as Justice of the Supreme Court, and since the said list was ignored by the then President made all the above three petitions or cases to lack weight or the gravity to qualify as Stated Misbehaviour to warrant a removal of a Chief Justice .

The recommendation of the Justices to the Supreme Court would be/ is a stated misbehaviour, if the recommendation was approved and thus in the public eyes, corruption may be suspected based on the theory of scratch my back and I will also scratch you back, hence element of corruption. It must also be noted that Mr Daniel Ofori lacked locus to deal with the matter of the transfer of Mr Baiden etc.

.
.

   Comments1