Beyond the Torkornoo Case: Law, Legitimacy and Constitutional Refinement

The reported dismissal of former Chief Justice Gertrude Torkornoo’s application before the ECOWAS Court has once again drawn Ghana’s constitutional order into sharp public scrutiny. Though the full ruling is yet to be released, its political and legal echoes already extend well beyond the immediate dispute.

At stake is a familiar but unresolved tension in constitutional governance: the gap between what the law permits and what legitimacy requires for public confidence to endure.

On TV3’s KeyPoints on 27 June 2026, Lawyer Edudzi Tamakloe defended the removal process as fully compliant with Article 146 of the 1992 Constitution. His argument reflects a strict and orthodox reading of the text. If upheld, it settles the question of procedural legality.

But legality is not the same as legitimacy.
Lawful Process, Uneasy Confidence
A constitution is more than procedure; it is the moral framework of state authority. Article 146 permits the removal of superior court judges on grounds including “stated misbehaviour” and incompetence, yet offers no precise definition of the term.

In early constitutional commentary, retired Supreme Court Justice William Atuguba has observed, drawing on established jurisprudence, that “stated misbehaviour” cannot be reduced to criminal wrongdoing alone. It extends to conduct that undermines the integrity of the judicial office, is inconsistent with the judicial oath, or erodes public confidence in the administration of justice. The emphasis, as reflected in cases such as Agyei-Twum v Attorney-General, is not only legality of conduct, but institutional fitness for office.

That silence in Article 146 is therefore not accidental. It provides necessary flexibility. But flexibility without principled discipline risks inconsistency, especially where judicial independence and public trust are directly engaged.

In such cases, strict compliance with procedure may still fail to fully resolve public concern about transparency, fairness, and institutional balance.

Validity Is Not Sufficiency
If the ECOWAS Court confirms compliance with regional human rights standards, the legal validity of the process will be affirmed.

But validity is not sufficiency.
A process may satisfy legal requirements and still raise deeper constitutional questions: are the standards clear enough, are safeguards visible enough, and does the framework adequately protect both judicial independence and public trust?

These are questions of constitutional design, not courtroom procedure.

The Need for a Clearer Framework
This moment calls for serious reflection on a Judicial Conduct and Accountability framework to complement Article 146.

Such an instrument would not amend the Constitution. It would give structure to its open-textured language by:

1. Clarifying the meaning of “stated misbehaviour”

2.Codifying judicial ethical standards
3.Creating transparent complaint screening procedures

4.Strengthening due process guarantees
5.Setting timelines to avoid indefinite suspension of justice

6. Introducing proportionate sanctions short of removal

Properly designed, such a framework would not weaken judicial independence. It would strengthen it by replacing discretion with predictability.

Comparative Insight
Other jurisdictions have taken similar steps. Canada, for instance, has refined its judicial accountability system through reforms to its Judges Act, strengthening complaints handling while preserving judicial autonomy.

The lesson is not imitation, but principle: constitutional systems mature by clarifying, not complicating, the rules that govern public power.

Beyond Legality
Even if the ECOWAS Court endorses the legality of the process, that will not conclude the constitutional debate.

A lawful process may still expose institutional gaps that require reform. Judicial accountability must balance two imperatives: independence of the bench and confidence of the public.

The real question is therefore not only whether Article 146 was followed, but whether it is sufficiently structured to carry the weight of modern constitutional expectations.

Conclusion: Constitutional Maturity
The Torkornoo matter should be seen not as an endpoint, but as a constitutional signal, revealing the distance between procedural compliance and institutional maturity.

The strength of a constitutional system is not only in its obedience to existing rules, but in its capacity to refine them when experience exposes their limits.

A process may be lawful. But the law itself may still be improved. That distinction is not a critique of the Constitution. It is an affirmation of its living capacity to evolve in the service of legitimacy, accountability, and public trust.