The Scales Must First Weigh: Due Process in the Removal of a Chief Justice in Ghana
Authored by: J.B. Afrifa, Esq.
The removal of a Chief Justice under Article 146 of the 1992 Constitution is a matter of grave constitutional significance, demanding strict adherence to due process and the preservation of judicial independence. The recent petitions seeking the removal of the Chief Justice, as announced by the Presidency on March 25, 2025, have ignited legal and procedural concerns. The Presidency communicated that in accordance with Article 146(6), the President has referred the petitions to the Council of State to commence the consultation process. Yet, a shadow of doubt lingers, as the Chief Justice has raised concerns about not being furnished with copies of the petitions or given an opportunity to respond before these consultations take place. This omission, though seemingly procedural, strikes at the heart of the principles of fairness and natural justice.
A careful reading of Article 146, coupled with judicial pronouncements, underscores the necessity of a fair and transparent process before any decision is taken. The Constitution provides that a Justice of the Superior Court, including the Chief Justice, may only be removed on grounds of stated misbehavior, incompetence, or an inability to discharge the functions of office due to infirmity of body or mind. Where a petition concerns a Justice of the Superior Court other than the Chief Justice, the President refers it to the Chief Justice, who then determines whether a prima facie case exists. If such a case is established, a committee of inquiry is constituted to investigate the allegations.
However, where the Chief Justice is the subject of a petition, Article 146(6) states that the President, in consultation with the Council of State, appoints a committee to conduct an inquiry. The Constitution, however, is silent on the determination of a prima facie case and who determines whether a prima facie case exists before the committee is constituted.
In Frank Agyei Twum v. Attorney General and Akwetey [2005-2006] SGLR 732, His Lorsdhip Date-Bah JSC reasoned that although the Constitution does not explicitly state the requirement of a prima facie determination for a Chief Justice, such a requirement is implicit in the spirit of Article 146. The eminent jurist indicated that the omission of requirement of a prima facie case is a logical gap which the apex court is clothed with jurisdiction to purposively fill in interpreting the constitution. He further opined that if Justices of the Superior Court are shielded from arbitrary removals by the necessity of establishing a prima facie case, it stands to reason that the Chief Justice, who is primarily a Justice of the Superior Court should be afforded the same protection.
To safeguard judicial independence, Date-Bah JSC suggested, that the Council of State could play a significant role in assisting the President in this determination. However, Article 146(6) in its clear terms merely assigns the Council the duty of assisting the President in appointing the committee of inquiry and does not expressly grant it the power to determine a prima facie case.
Recent precedent offers further guidance. In a letter dated January 3, 2025, former President Nana Addo Dankwa Akufo-Addo dismissed a petition for the removal of the Chief Justice, filed by Professor Stephen Kwaku Asare. The President, after determining that the petition was unmeritorious, found no prima facie case to warrant further action. This conclusion was reached in consultation with the Council of State, which, through a formal communication, conveyed its advice to dismiss the petition. This precedent reinforces the principle that the President must determine a prima facie case before triggering the constitutional machinery of a full inquiry.
The importance of affording the Chief Justice a fair opportunity to respond before this determination is further bolstered by Dery v. Tiger Eye P.I. Unreported Suit N0. J1/29/2015, where Benin JSC emphasised that rules of natural justice and the right to a fair hearing dictate that a named respondent in a petition for the removal of a Justice of the Superior Court must be given an opportunity to respond before a prima facie determination is made. The absence of a formalised rule does not negate the fundamental principle that an affected person should be heard before any adverse decision is taken. Indeed, the determination of a prima facie case in the case of the removal of the chief justice is an adverse finding which invites a full enquiry into facts from the petition presented before the committee.
Fundamentally, Judicial independence enshrined in Article 127 of the Constitution, is the bedrock upon which the rule of law stands. The judiciary owes its allegiance not to the Executive nor the Legislature, but to the Constitution and the people from whom justice emanates. The process of removing a Chief Justice must therefore be shielded from political interference, ensuring that it remains a safeguard of accountability rather than a tool of intimidation. The looming specter of frivolous or politically motivated petitions necessitates a high threshold for establishing a prima facie case. Without such a safeguard, the judiciary risks being subjected to the whims of transient political forces, with imminent suspensions under Article 146(10)(a) serving as a weapon rather than a remedy.
Given these considerations, the path forward is clear. Before any consultation between the President and the Council of State, the Chief Justice must first be provided with copies of the petitions and given sufficient opportunity to respond. Only after weighing the petition against the response of the Chief Justice can the President make an informed determination on whether a prima facie case exists. To do otherwise is to set a perilous precedent where constitutional processes are reduced to mere formalities, lacking the substance of fairness and justice.
From the foregoing, a holistic reading of Article 146, viewed alongside Agyei Twum and Dery v. Tiger Eye P.I., confirms that the President must first determine a prima facie case before appointing a committee of inquiry. This determination cannot be made in isolation but must be guided by the principles of fairness, ensuring that the Chief Justice is heard. Any departure from this process would not only undermine judicial independence but also erode the constitutional safeguards that protect the highest judicial office in the land. In a democracy, the law must be a fortress of reason, not a battleground for political expediency.
Consequently, I recommend that the 8-member Constitutional Review Committee, established by the President, identify Article 146 as a key area of interest requiring reform to align with the country’s evolving democratic framework. Specifically, the committee should consider the explicit incorporation of a prima facie determination in the process of removing a Chief Justice. Additionally, it should clarify the legal requirements necessary to establish that a petition warrants an inquiry by a committee constituted under Article 146. Furthermore, there is a need to explicitly state that all processes, steps, and correspondence involved in proceedings under Article 146 must be conducted in camera to uphold confidentiality and protect the integrity of the process.
J.B. Afrifa, Esq.
Akufo-Addo, Prempeh & Co.
