On April 28, 2025, as the Article 146 Committee was being constituted to investigate petitions against Chief Justice Torkornoo, I made a prescient observation on Facebook as follows:
“Pwamang JSC has a unique opportunity to avert what could potentially be a calamity for our justice system. The judiciary, however credible or otherwise one may perceive it in its current state, remains the last bastion behind our democracy. We just cannot risk surrendering it to the whims and pleasure of the executive on a platter, to be made subject to the basal manipulations of conscienceless politicians.”
“Justice Pwamang may indeed be the direct beneficiary of a successful ouster of our CJ as is rumoured, but the deeper question he needs to ask himself is, in what condition is he willing to leave this hallowed position after his exit…? Is he dignified enough to look beyond his personal ambition and safeguard the greater good of the entire judiciary of which he has remained an important member?”
“For now, eyes can only look and observe him.”
We indeed looked and observed, but sadly, Gabriel Scott Pwamang JSC and his group of hand-picked co-conspirators caved in to their personal predilections, mutilating our judiciary and surrendering it to executive pleasure in the process.
The removal of Gertrude E.S Torkonoo (CJ) is an unprecedented culmination of a constitutional crisis predicted months earlier. The Article 146 Committee that recommended her removal, did so on three primary grounds. When subjected to proper legal scrutiny, it is manifestly obvious that each of these grounds suffers from fatal legal and constitutional defects that render the the committee’s recommendation and the eventual removal questionable and procedurally flawed.
GROUND 1: UNAUTHORIZED TRAVEL AND ALLEGED FINANCIAL MISAPPROPRIATION:
The committee found that Justice Torkornoo engaged in “unlawful expenditure of public funds” by traveling to Tanzania with her husband and to the United States with her daughter in September 2023, including payment of per diem for her family members. However, the Committee appears to have paid scant or no regard to the Policy on Foreign Travels by Head of the Judiciary and Superior Court Judges, which was in evidence as exhibit DO(2). This document expressly states at paragraphs A9 and A10 as follows:
Paragraph A(9): “The Chief Justice shall undertake unlimited official travels with either his/her Spouse or other person of his/her choice in a year, fully funded by the Judicial Service.”
Paragraph A(10): “Where the Chief Justice is accompanied by the Spouse or other person, he/she shall travel on the same class of air ticket as the Chief Justice and shall be paid the equivalent of half the per diem paid to the Chief Justice. It is apparent from this, that expenditures associated with these travels were not unlawful as the committee concluded. It has been suggested that the CJ was still in breach because these policy provisions concerned official travel. What these critics fail to establish however, is that the trips in question were NOT official. As AyikoiOtoo Esq argues, it was not CJ Torkonoo who asked to be allowed to make official travels with her spouse and other person of her choice. This was a condition of service that attended with her position as head of the judiciary.
But assuming I was wrong, and the CJ was actually in breach, was this misstep grievous enough to meet the exceptionally high constitutional threshold set by the Framers of our constitution on stated misbehavior as a ground for removing the Chief Justice, especially in the absence of evidence of fraud, deceit or a dishonest attempt by the CJ to benefit unduly?
Nana Dr. S.K.B Asante, Chairman of the committee that drafted the 1992 constitution and a revered constitutional expert, testified before the Pwamang Committee between 4 to 18 August 2025 that the framers never intended Artcile 146 to justify the CJ’s removal over trivial issues like personal travels, and emphasized that the exceptionally high threshold only permitted her removal on grounds that were so serious as to reasonably impair her ability to perform her official duties. This was affirmed by other eminent jurists who testified before the committee, including former Chief Justices Sophia Akuffo and Kwasi Aning Yeboah.
GROUND 2: BREACH OF ARTICLE 296 IN THE TRANSFER OF MR. BAIDEN:
Regarding this, the committee is reported as stating that …”the Chief Justice unjustifiably breached the provisions in artcile 296(a) and (b) of the constitution 1992, in the way and manner that she transferred Mr. Baiden…
The most glaring defect in this declaration, is the committee’s constitutional overreach it evidences. Article 130(1) of the 1992 Constitution confers upon the Supreme Court “exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the 1992 Constitution. The Article 146 committee on the other hand, is limited to mere fact-finding, and has no jurisdiction over interpretation and enforcement functions otherwise reserved exclusively for the Supreme Court. By declaring that CJ Torkonoo’s administrative decision breached Article 296 (a) and (b) of the constitution, the committee:
- Usurped the SUpreme Court’s exclusive original jurisdiction;
- Exceeded its terms of reference and fact-finding mandate; and
iii. Violated the principle of separation of powers by encroaching upon judicial functions as an administrative committee.
Apart from these serious constitutional flaws, the committee’s finding on this ground is further plagued by latent procedural lapses. We know that the affected judicial officer, Mr. Baiden, was not the petitioner nor complainant. It is neither suggested that he partook in the inquiry nor authorized Daniel Ofori, the actual petitioner to raise that complaint on his behalf. This leads us to the critical question of Daniel Ofori’s locus standi.
Whilst generally, locus for bringing interpretation and enforcement actions in the Supreme Court is liberally construed to include any citizen, the proceedings before the committee was not an interpretation and enforcement proceedings. A fortiori, a person raising an in personal allegation of malice and vendetta against the CJ in the exercise of her administrative functions, must have a personal interest in the matter.
But Daniel Ofori had no direct interest or personal involvement in the matter. This means that whatever evidence was provided for this ground would be secondary, hearsay evidence. Mr. Daniel Ofori is at best, a meddlesome interloper who, goaded by his conspiring principals, embarked on a phishing expedition to gather charges against the CJ.
Finally, assuming without prejudice, that Mr. Baiden’s transfer was in fact procedurally flawed, the fundamental question remains: Do administrative personnel decisions constitute “stated misbehaviour” warranting the removal of a Chief Justice? It is crucial to observe the necessary distinction between ordinary administrative errors/misjudgment and serious misconduct meeting the threshold of stated misbehavior. The unjustified elevation of routine administrative decisions to serious constitutional violations constitutes a dangerous expansion of removal grounds that threatens judicial independence and ultimately, democratic stability.
GROUND 3: SIDESTEPPING SUPREME COURT APPOINTMENT PROCEDURES:
The final ground upon which the committee recommended the CJ’s removal was that she inappropriately submitted five names to the former president for Supreme Court nomination. This was characterized as bypassing established procedures.
Article 144((2) of the constitution provides that Supreme Court Justices are appointed by the President “acting on the advice of the Judicial Council”. The CJ serves as chair of the Judicial Council. This constitutional provision, and case law espousing its application establish the central role played by the CJ in this process. Due to this important role, the mere submission of names for presidential consideration cannot be condemned as stated misbehavior in the absence of evidence that it was tainted by corruption, bias or bad faith.
But once again, even if it were conceded that the CJ actually sidestepped formal procedures, the question remains whether her dismissal is a proportionate and proper remedy. The answer, once again is a BIG NO.
As a person clothed with administrative authority, she is within her right to get it wrong, in much the same way a judge cannot be condemned for deciding a case wrongly. In the case of a judge adjudicating a case wrongly, the remedy lies not in dismissing or removing the judge from office, but through various levels of appeal and or judicial review. In the same vein, the CJ’s presentation to the president, even if procedurally wrong, could be corrected by several alternative remedies including rejection by the president, parliamentary review through refusal to grant parliamentary approval, administrative correction through a re-starting of the whole process and/or judicial review if necessary.
One can easily discern from the grounds, a clear effort to rationalize ex post facto, an already predetermined outcome. The inherent danger however, is that this drastically lowers the article 146 threshold in ways that eliminate the security of tenure necessary to secure judicial independence, which constitutes the very sinews of our democracy.
The question I posed to Justice Pwamang in April … “ in what condition is he willing to bequeath the judiciary” now resonates with tragic clarity. Justice Pwamang has spearheaded the creation of a perilous precedent that fundamentally undermines the security of tenure that protects his own position and that of our future. I hope he can live with his creation in good conscience.
I really do!
