Fair is foul, and foul is fair: Hover through the fog and filthy air. WITCHES IN MACBETH
Hell is murky! Lady Macbeth would say; and we in Ghana would say the Judiciary is murky and there is a ping-pong tussle. A Ghanaian citizen (3 or 5?) sends a petition to the President for the removal of the Chief Justice. The President is enjoined: (Article 146 (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”. There is no mention of prima facie in this provision as there is in the case of Article 146 Clause 3 which affects “other” Justices of the Supreme Court.
When the news broke about the petition the Chief Justice wrote to the President to furnish her with a copy of the petition to enable her have full knowledge of what she is being accused of. The Chief Justice wrote to the President for a copy of the petition. She did, and she got it (unconstitutionally).
Of course, we appreciate jus naturale (the principle of natural justice) both sides to be heard: audi alteram partem (listen to the other party); nemo judex in causa sua (no one shall be a judge in his own case).
But what is Afenyo-Markin urging the Ghana Bar Association to do? Resorting to “argumentum ad hominem” or better “argumentum ad populum”? He stands on the platform of his party (NPP) and bellows: “What is happening is unacceptable, and it is clear that the NDC wants to infiltrate the judiciary and make it partisan… But my advice to the Judiciary is to stand together… The next day you will be the next. The judiciary must stand together as one body, and make a full statement and condemn this action. The Ghana Bar Association must stand for the judiciary. Civil Society Organisations must stand for the Judiciary”.
What should the Ghana Bar condemn? When the President has not flouted the Constitution? Care should be taken otherwise our actions themselves may fall into bandwagon fallacy. We should be careful about using Adjei Twum v. AG and another (2006) as a stare decisis (guided by a previous decision). Their Lordships had stated: “When the President receives a petition for the removal of a Chief Justice, he ought to first make a prima facie case determination.” One would ask: “At what stage should the President make the prima facie case? After submitting the petition to the Council of State?” We are a constitutional democracy, and we pick a cue from kindred states, including the U.S.A.
In March, 1804, the U.S. House of Representatives impeached Samuel Chase, an associate justice of the Supreme Court. But the man waded through when the Senate freed him.
Their Lordships in Kuenyehia v Archer (1993-1994) 2 GLR 525 stated: “…When construing provisions of a national Constitution such as ours, the Constitution must be given a benevolent, broad, liberal and purposive construction, so as to promote the apparent policy intention of its framers and in order to achieve its enlightened objectives. Thus, a lot of flexibility is called for.”
And despite the quietude marking the episodic action taken by the President, Prof. Kwaku Asare (Azar) insinuates what a “rogue Chief Justice” can do to imperil the judiciary independence by: (i) subverting the Judicial Appointments Process …negotiating with the President to elevate their candidates (ii) Manipulating Panel Composition… (iii) Issuing Unconstitutional Directives (iv) punitive transfers and case re-assignments – as a form of retribution for perceived disloyalty (v) suppressing dissent and debate-thereby cultivating a culture of fear, stifling criticism… (vi) Undermining Collegial Governance (centralizing authority). Azar ammo obiara din (Azar did not mention anyone’s name).
We do not pray to suffer the fate of Hopeson Adorye who has been sued by Ofori Atta for GH¢10 million for defamation over the “Agaypadie Book”, a book condemned by ex-President Akufo-Addo, even though the text appears (allegedly) to talk of the Judiciary this way: “Considering the competitive nature of our work as politicians, there’s always a need to be a step ahead against our opponents to secure our interest, dominance and maintain power in 2020… In 2020 and the next 20 years. Our focus as a party has always been to position our members and sympathisers at strategic positions both in government and in the Judiciary to cover and protect our interest… All the appointments made to the Supreme Court, Court of Appeal and some of the High Courts in Ghana under our government was to promote the NPP agenda and to ensure our country never falls in (to) the hands of the Opposition, NDC…”
What happened when a framed-up charge of corruption was put on the head of gentle, unassuming Lordship Anin-Yeboah over an allegation of bribery of $5m from Ogyeedom Obranu Kwesi Atta VI v Ghana Telecom.
Started by our learned colleague Akwasi Afrifa, Esq in 2024? The Alliance for Social Equity and Public Accountability (ASEPA) submitted a petition to ex-President Akufo-Addo whose response on July 26, 2021 read: “The President of the Republic has in accordance with Article 146 (6) of the Constitution commenced the appropriate processes subsequent to being petitioned for the removal of the Chief Justice…” We can’t forget the Ghana Bar Association v Attorney General (1995-1996) GLR challenging the appointment of Chief Justice Abban for lacking “high moral character and proven integrity.”
We all sat quiet, waiting for the outcome of the investigations, because we respected rule of law. We have looked at Tuffour v AG (1980) GLR 637; NPP v AG (1993–94) 2 GLR 35; Goldwater v Carter 444 US 996 (1979) J.H. Mensah v AG (1996–97) SC GLR 320; Amidu v President Kufuor (2001–2002) SC GLR 86 @ 106 among others. What has happened now? and people, particularly NPP people are agitating a face-off with the Executive?
“Aluta”, Yes. But we have brains! Our cerebrum works. We do not move irrationally to do acts that we will later be remorseful about. Everyone should bear in mind that when we say we are “patriotic”, we mean “patriotic” to Ghana, and not to any individual whether in NPP or NDC or Akua Donkor’s party.
Someone writes, and we wholeheartedly endorse same: “Judicial independence is not just about resisting political interference. It is also about preventing the concentration of power within the judiciary itself. The petition process is not reckless or arbitrary; it is anchored in due process. True fidelity to the Constitution means allowing the process to run its course — openly, lawfully, and without interference.” What is in the process and the act to suggest a political coup? And where has the President flouted Article 296 — use of discretionary powers?
The President, in line with Article 146 Clause 10, has suspended Chief Justice Torkornoo. We know per Article 146 (8) that the proceedings “shall be held in camera”, and we do not want to believe in “foul whisperings” including the C.J. receiving payment of 20% of her salary for accommodation despite living in a government bungalow.
The Ghanaian Judiciary has a history-mostly chequered: Sir Arku Korsah’s dismissal by President Nkrumah in 1963 still lingers.
