THE FRAMERS ACTUALLY INTENDED A MORE SERIOUS APPROACH TO THE REMOVAL OF THE C.J. THAN REMOVAL OF OTHER JUSTICES

Rickdel’s File:

I am sharing this opinion for the benefit, particularly, of teachers and students of the law, because lawyers are required to be very critical and analytical thinkers.

It would appear from the provisions of Article 146 of our Constitution of 1992 that the removal of the Chief Justice from office is less rigorous than the removal of other Justices of the Superior Courts.

But my very critical reading of Article 146 suggests to me that the framers of the Constitution rather wanted a more serious and straightforward approach to the process and proceedings in the removal of the Chief Justice than those in the removal of the other Justices. Let’s see why I think so:

Major Players in Removal of Other Justices:

In the removal of Justices of the Superior Courts other than the Chief Justice, the main actors are the Chief Justice and the Judicial Council.

1. Article 146(3) directs that as soon a petition is received by the President for the removal of any Justice of the Superior Courts other than the Chief Justice, the President must refer the petition to the Chief Justice. The C.J alone must determine if the petition makes a prima facie case against the accused Justice. Quite simple.

2. By article 146 (4), where the C.J. alone decides that a prima facie case has been established, he or she must set up a five-member committee—to investigate the complaints in the petition—three of whom must be Justices of the Superior Courts and must be appointed by the Judicial Council. The other two shall be appointed again by the Chief Justice (though, here, on the advice of the Council of State).

3. By article 146(5), when the investigative committee completes its work, its recommendations shall first be submitted to the Chief Justice before he or she shall forward the same to the President to comply with.

4. Per article 146 (10)(b), if the President may suspend the accused Justice, it has to be with the advice of the Judicial Council.

High-Profile Approach with Different Actors for Removal of a C.J.:

In the removal of the Chief Justice from office, the major players are the President of the Republic and the Council of State, which, in consultation, must set up a committee of highly qualified and distinguished personalities to investigate the petition. It should be evident that the framers had thought very highly of the office of the Presidency and the Council of State.

Looking at the composition of the Council of State as stated in the Constitution, it is obvious that the framers had not envisaged a partisan Council of State at all. They might have considered it as an esteemed, experienced, and revered body, and had therefore reposed absolute trust in it, and had confidently entrusted the process of the removal of the Chief Justice into its hands and of the Presidency as follows:

5. By article 146 (6), when the President receives a petition for the removal of the Chief Justice from office, nobody is expected to toy with the petition in the name of determining whether or not the petition establishes a prima facie case.

6. The President, in consultation with the Council of State must straightaway set up a committee and refer the petition to the committee for investigation, where the Chief Justice shall be given all the opportunity to defend himself or herself fully in person or by a team of lawyers of his or her choice. This is a more serious and straightforward approach, I think.

7. By article 146 (7), when the committee completes its work, it shall submit its recommendation to the President, and he must comply with it.

Comparing the two processes, it is obvious that though the removal of the Chief Justice may seem simpler, it is more straightforward, and the approach is more serious and envisaged to yield a better result.

The issue of Suspension

By Article 146 (10), an accused Justice in a petition may be suspended if a committee is set up and the petition is referred to it for investigation of the allegations. In the case of the Chief Justice, the suspension shall be on the advice of the Council of State.

In my opinion, the reason why the suspension in either case is optional for the President is that it is not a recommendation by the investigative committee. In the case of Justices other than the Chief Justice, the advice must come from the Judicial Council, while in the case of the Chief Justice, it must come from the Council of State.

I think the Judicial Council can recommend suspension, presumably because the Chief Justice must have reviewed the petition and established a prima facie case. But the law says the President may overrule the advice. This indicates the authority and reverence of the office of the Presidency over the office of the Chief Justice and the Judicial Council.

In the case of the Chief Justice, I believe the suspension is optional because the process of her removal does not specifically require the finding of a prima facie case. The Constitution is silent on that, and therefore, it is possible that the President and the Council of State may not review the petition at all, and so shall not have any basis to suspend the Chief Justice.

Once the much talked about Agyei Twum case has compelled the President and the Council of State to review a petition against a Chief Justice as well, and find a prima facie case before setting up a committee to probe the complaints in the petition, suspension may be logical if the allegations in the petition, reviewed by the President and the Council of State seem so egregious to them.

If the allegations in the petition are egregious, it shall not be pleasant for the Chief Justice to remain in office and perform his or her normal duties, including empaneling the Supreme Court for hearings; sitting to hear matters before the Court; and supervise the lower courts; while two of his or her subordinates are sitting on a committee, investigating him or her for a possible removal from office. Suspension in this case is most appropriate, if I am asked.

Issue of Secrecy of Proceedings

Finally, on the subject of the secrecy of the proceedings in article 146, I stated a few times previously that my understanding of the first part of article 146 (8) that “all proceedings under this article shall be held in camera,” does not mean that the petition itself may not be disclosed to the general public. I hold the view that the proceedings referred to in that article include only the process of determining a prima facie case and the actual hearing by the investigative committee.

My thoughts may sound a little controversial, but just yesterday, I read a similar view expressed by the Chairman of the Constitution Review Committee, H. P. Kwasi Prempeh. The only difference in our views is that while I think the petition may be made public from the onset, he thinks it must, at least, be disclosed at the conclusion of the investigation.

To conclude, I wish to state that most of our jurists are not protecting the true meaning of our Constitution very well enough. For the Supreme Court, they mostly obfuscate very simple constitutional provisions just in order to arrive at predetermined conclusions in many constitutional cases. That was what happened in the Agyei Twum and the 2020 election petition cases in particular.

Thank you for reading all of it. I hope it helps.

By: Eric DELANYO Alifo, Esq.

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