As debate continues over the removal of former Chief Justice Gertrude Araba Torkornoo, renowned legal scholar Prof. Stephen Kwaku Asare has offered a detailed explanation of what qualifies as stated misbehavior under Ghana’s Constitution, particularly Article 146.
His analysis comes amid public confusion and political commentary surrounding whether the former Chief Justice’s conduct justified her removal.
“‘Stated misbehavior’ is not a novel constitutional creation. It is rooted in the common law and has long been used in Commonwealth jurisdictions to justify the removal of public officers whose conduct undermines the integrity of their office.”
Prof. Stephen Kwaku Asare
He referenced the landmark Supreme Court case Agyei-Twum v. Attorney-General [2005–2006] SCGLR 732, which interpreted stated misbehavior in broad terms.
The court ruled that the term encompasses corruption, abuse of office, bias, and any other form of conduct that erodes public confidence in the judiciary.
Importantly, the court dismissed arguments suggesting that a Chief Justice’s administrative actions should be immune from scrutiny under Article 146.
The court stated: “…the Plaintiff’s argument on this issue is founded on the fallacy that a Chief Justice’s conduct in the administration of the Judiciary can never ever be construed as a ‘stated misbehaviour’ or ‘incompetence’ within the meaning of Article 146 of the Constitution… As far as the Chief Justice is concerned, I think it is reasonable to link his conduct of his administrative responsibilities with his position as a Justice of all the Superior Courts.”
Prof. Asare emphasized that this interpretation makes it clear that administrative decisions by a Chief Justice — such as case assignments, judicial transfers, or internal administrative actions — are subject to constitutional oversight.
Accordingly, he asserted that if these powers are abused or exercised for improper motives, they could amount to stated misbehavior.
Understanding the Threshold for Stated Misbehavior
Prof. Asare explained that for conduct to qualify as stated misbehavior under Article 146, certain key criteria must be met. First, there must be specificity, meaning the allegations should be clearly defined and supported by credible evidence.
Second, the conduct must meet a threshold of seriousness, as minor mistakes, differences in judgment, or simple administrative errors do not suffice.
Third, there must be a clear connection to judicial office, where the misconduct directly relates to judicial duties, the exercise of judicial power, or the overall administration of justice.
Applying these standards, he highlighted several examples of actions that would amount to stated misbehavior if proven.
These include financial impropriety, such as the mismanagement or misuse of judicial funds, which undermines the integrity of the judiciary and erodes public confidence in the justice system.
“Interference and tampering with judicial proceedings: This goes to the heart of judicial independence. Any manipulation of proceedings violates due process and undermines the rule of law.
“Abuse and misuse of transfer, dismissal, and case assignment powers: This illustrates arbitrariness and administrative abuse. If exercised for improper motives, such powers become tools of intimidation and bias, contrary to Articles 125–127 on judicial independence.”
Prof. Stephen Kwaku Asare
He also highlighted other serious forms of misconduct that could qualify as stated misbehavior under Article 146. These include a blatant disregard for judicial processes, where a failure to respect established procedures threatens the legitimacy and authority of the courts.
Another example is the arbitrary scheduling of cases, where unfairly fixing hearing dates can place litigants at a disadvantage and erode public confidence in the impartiality of the judiciary.
Most critically, he pointed to the erosion of judicial independence, such as when judicial officers engage in direct lobbying of the executive or bypass established procedures for judicial appointments, actions that ultimately weaken constitutional safeguards designed to protect the judiciary’s autonomy.
Accordingly, Prof. Asare cautioned that lowering the standard for accountability would set a dangerous precedent. Judges, given the extensive powers they wield, must be held to higher, not lower, ethical and professional standards.
Judicial Misconduct: Prof. Asare Sets Guidelines
To help the public better understand what constitutes stated misbehavior, Prof. Asare outlined five key considerations.
He explained that determining misconduct involves asking whether the act in question involved dishonesty, corruption, or financial impropriety. It is also crucial to determine whether the conduct compromised the fair administration of justice or interfered with judicial proceedings.
Another factor is whether the authority of the office was exercised arbitrarily or for improper purposes.
Additionally, one must consider whether the actions demonstrated contempt for established judicial processes or the authority of the courts. Finally, he emphasized examining whether the conduct compromised the independence of the judiciary as a whole.
If the answer to any of these questions is “yes,” he argued, the behavior in question likely meets the constitutional threshold for removal proceedings under Article 146.
“Judges, by the power vested in them, can do more harm to the polity than any other public officer. As a result, they must be held to a higher standard, never a lower one, as is being advocated by some.”
Prof. Stephen Kwaku Asare
Executive Interference Concerns In Chief Justice Removal
One of the most contentious debates surrounding Article 146 has been whether the President’s role in initiating removal proceedings threatens judicial independence.
Prof. Asare clarified that the President’s involvement is procedural.
He explained that the President’s responsibility is limited to forming an investigative committee when allegations arise.
He referenced the Agyei-Twum decision, which explicitly rejected the claim that the President’s procedural role automatically signals interference. Instead, the focus should be on ensuring that the investigative process itself remains impartial and insulated from political pressures.
“Thus, the President’s role is procedural, not substantive, and the safeguard lies in the independence of the committee process itself. The attempt to spin Article 146 proceedings as executive interference must therefore be firmly rejected.”
Prof. Stephen Kwaku Asare
Prof. Asare concluded by emphasizing the critical role of the judiciary in Ghana’s democratic governance.
Judges possess immense power to shape society through their rulings and administrative decisions. As such, their actions must reflect the highest ethical standards to preserve public trust.
By clarifying the meaning of stated misbehavior, Prof. Asare aims to promote transparency and accountability while safeguarding the independence of Ghana’s judiciary.
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