The ongoing legal and political debate surrounding the potential removal of Ghana’s Chief Justice, Gertrude Torkonoo, has intensified following President John Dramani Mahama’s referral of petitions seeking her removal to the Council of State for consultation.
The move has sparked contrasting legal interpretations from prominent legal practitioners, including Sammy Gyamfi, National Communications Officer of the opposition National Democratic Congress (NDC), and Kow Essuman, former legal counsel to ex-President Akufo-Addo.
At the heart of the controversy is the constitutionally mandated process for removing a Chief Justice, which hinges on the determination of a prima facie case before any further actions are taken.
While communications from the presidency insist President Mahama is following due process, critics argue that key procedural steps have been overlooked, particularly the Chief Justice’s right to be furnished with a copy of the petition before responding to the allegations against her.
Sammy Gyamfi Defends President Mahama’s Actions
Sammy Gyamfi, Esq, has strongly defended President Mahama’s decision to refer the petitions to the Council of State, asserting that the President is acting within the confines of Ghana’s constitutional framework.
Citing the landmark case of Agyei Twum v Attorney-General, Gyamfi emphasized that the President does not have unilateral authority to determine a prima facie case but must do so in consultation with the Council of State.
“The letter from the President forwarding the said petitions to the Council of State, indicated clearly that the Council was being consulted by the President for a Prima facie case to be determined.
He also consulted the Council of State on the fact that, the petitions seeking the removal of the CJ should be forwarded to the CJ and that she should be given 10 days to respond to the allegations therein before a Prima facie case is determined.”
Sammy Gyamfi Esq., Legal Practitioner and NDC National Communications Officer
Sammy Gyamfi thus strongly posited that President Mahama is strictly adhering to the dictates of the Constitution and the Agyei Twum case, asserting that the President has done nothing unlawful or untoward.
His position underscores a broader argument that President Mahama’s approach is grounded in legal precedent and does not constitute an overreach of executive authority.
By involving the Council of State in the decision-making process, Gyamfi contends that the President is ensuring transparency and adherence to constitutional requirements.
Kow Essuman Challenges the Process
Contrary to Sammy Gyamfi’s assertions, legal practitioner Kow Essuman raised concerns about the procedural integrity of the President’s approach, particularly the Chief Justice’s right to respond to the petitions.
He referenced the case of Dery v. Tiger Eye P.I. (2016), in which Justice Benin of the Supreme Court, as he then was underscored the principles of natural justice and fair hearing.
“There are no hard and fast rules in place, but the rules of natural justice and the right to fair hearing will just dictate that the Chief Justice should at least seek a response to the petition from a named respondent before making a prima facie determination under this provision.
“The fact that it involves examination of available evidence in order to make that determination whether or not a prima facie case exists makes it a quasi-judicial decision-making.”
Kow Essuman quoted from the ruling of Dery v. Tiger Eye P.I. (2016)
He argued that the Chief Justice’s demand to be given a copy of the petition before responding is both reasonable and legally justified.
Kow Essuman expressed surprise that such a fundamental aspect of procedural fairness appears to have been overlooked in the ongoing deliberations.
Furthermore, he criticized the President’s approach, asserting that while he may not heed his advice, he remains bound by his constitutional oath to uphold the laws of Ghana.
The legal controversy surrounding the removal of a Chief Justice revolves around the interpretation of Article 146 of Ghana’s 1992 Constitution.
This provision stipulates that: a Justice of the Superior Court, including the Chief Justice, may be removed only on grounds of stated misbehavior, incompetence, or inability to perform judicial functions due to ill health.
In this regard, a petition for removal must be submitted to the President, who, in consultation with the Council of State, determines whether a prima facie case exists before setting up a committee for further inquiry.
The Agyei Twum case reaffirmed that the President cannot make a prima facie determination unilaterally but must engage in a consultative process.
The ruling also recommended that the Council of State seek an independent legal opinion to guide its decision-making.
However, the Dery v. Tiger Eye P.I. case emphasized the necessity of natural justice, particularly the right of an accused judicial officer to respond to allegations before any determination is made.
The unfolding legal battle has significant implications for Ghana’s judiciary, governance, and constitutional interpretation.
While Sammy Gyamfi and the NDC maintain that President Mahama is following the established legal framework, critics like Essuman suggest that a failure to provide the Chief Justice with the petition could undermine the fairness of the process.
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