The plaintiff in the case filed against the processes triggered by the President for the removal of the Chief Justice, Hon. Vincent Ekow Assafuah, Member of Parliament for the Old Tafo Constituency in the Ashanti Region, has filed a statement of case in support of the writ issued by him on 27th March.

In a comprehensive 42-page submission filed on his behalf on 9th April, by his counsel, former Attorney-General and Minister for Justice Godfred Yeboah Dame, the plaintiff argues for the Supreme Court to declare as null, void, and of no effect all steps taken by the President in consultation with the Council of State for the removal of the Chief Justice, Gertrude Araba Esaba Torkornoo.

Mr. Dame refers to the constitutional history of Ghana from 1957 on provisions to protect the judiciary from what he describes as “undue interference with the independence of the judiciary and protection of the security of tenure of judges” and also examines the legal regime and practice of various jurisdictions from around the world. He concludes that the Supreme Court ought to exercise its powers of “judicial review under articles 2(1) and 130(1) to nullify all steps taken purportedly to remove the Chief Justice from office as prayed for in the writ of summons”.

The plaintiff submits in his statement of case that the right to be notified of charge(s) levelled against one and to be heard on same is a fundamental and inalienable right enshrined in the Constitution, 1992.

That right, according to plaintiff, “assumes greater significance in the context of quasi-judicial proceedings. The process of determining the existence or otherwise of a prima facie case in a petition for the removal of the Chief Justice is a quasi-judicial one performed by the President in consultation with the Council of State”.

In the view of the plaintiff, following the presentation of a petition to the President for the removal of the Chief Justice, the Chief Justice is entitled to receive a copy of the petition and to be notified about the contents thereof.

"The Chief Justice, upon a true and proper interpretation of the Constitution, is entitled to deliver his or her responses to allegations contained in the petition which will be a basis for consultation between the President and the Council of State on whether a prima facie case is disclosed by the petition”, Mr. Godfred Dame submitted to the Supreme Court.

Counsel for the plaintiff contends that a notification of the Chief Justice and the grant of an opportunity to deliver a response to allegations contained in a petition are not only procedural rights but substantive due process designed to protect the institution of the judiciary from abuse and undue interference and must therefore be strictly observed.

Effect of President’s press release and subsequent measures

Counsel for the plaintiff notes that a purported step to furnish the Chief Justice with a copy of the petition and request his or her answers after the consultation process with the Council of State has begun violates the constitutional requirements of due process anticipated by articles 23 and 296 as stated above. Such a step further shows bad faith and should not be condoned by the Court.

“Respectfully, there is no justifiable reason for the President to “commence the consultation process mandated by Article 146 of the Constitution”, and announce it to the world before coming back to ask the Chief Justice for her responses. This is unfair and violates due process. It is outstandingly bad, shocking and egregiously unfair for the President to announce a trigger of the removal processes of the Chief Justice under article 146 to the whole world, when he has not even extended the courtesy of informing the Chief Justice about a receipt of the petition(s) in question.

What could explain the unbridled zeal of the President to trigger Article 146 and commence consultation with the Council of State as announced by his Spokesperson to the world when he had not informed the Chief Justice or given her a copy? What kind of consultation had the President actually commenced with the Council of State? Was it consultation to form a committee, or a consultation to make a prima facie determination? These questions arise from the press release by the President”, Mr. Dame quipped in the statement of case filed on behalf of the plaintiff.

Having regard to the history of this country for some political administrations in the past to control the Judiciary through removal processes, the Court ought to insist on a strict compliance with the procedural requirements anticipated by the letter and spirit of articles 23, 146 and 296 in the processes for an attempt to remove the Chief Justice, and declare any step taken in violation of the provisions null, void and of no effect”, counsel for plaintiff submitted.

Constitutional history of Ghana

Examining the strength of Ghana’s history of protection of judges, as can be seen in the various constitutions the nation has had since independence, Mr. Dame noted that the 1957 and 1960 Constitutions presented the weakest regime for protection of the security of judges.

On this account, “the President in 1963 dismissed the Chief Justice. This was supported by the votes of two-thirds of the Assembly in a Parliament dominated by one political party – a situation very similar to the circumstances Ghana finds itself in now as a country”, he submitted.

This experience calls for stronger measures to protect the independence of the Judiciary and the tenure of judges, particularly, the head of the Judiciary, the Chief Justice.

Practice in foreign jurisdictions

Regarding the practice in other jurisdictions, counsel for the plaintiff, Godfred Yeboah Dame noted that “all advanced legal systems stipulate a rigorous and elaborate procedure for the removal of a judge of a superior court. The procedures do not consider such exercises lightly and are calculated at protecting judges from abusive tendencies to compromise the independence of the Judiciary – a necessary organ for the running of any heathy society. Even when the legal framework is as scanty and sketchy as Ghana’s, practice has ensured that it is only through an elaborate and rigorous mechanism that the removal of a superior court judge may be effected. It is even more so in the case of the Head of the Judiciary – the Chief Justice”.

Counsel concluded his submissions by stating that a failure by the President to notify the Chief Justice about allegations contained in a petition filed against him or her before consulting the Council of State on same, results in a violation of a substantive right impinging on an abuse of the Head of the Judiciary, shows complete bad faith and renders the process null, void and of no effect.

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