1. Introduction
Disturbing indications suggest President John Dramani Mahama may be contemplating the use of his constitutional powers under Article 146(10)(a) to suspend the Chief Justice imminently – with some sources indicating this could occur before day’s end. While I cannot independently verify these reports, the very possibility compels me to emphasize the paramount importance of upholding the rule of law in its purest form.
The constitutional authority to suspend the Chief Justice, while explicit in its grant, becomes profoundly contentious when considered for exercise under current circumstances. This potential action demands rigorous constitutional examination, as it touches upon fundamental questions of judicial independence and the delicate balance of constitutional powers our democracy relies upon.
2. The Constitutional Framework for Suspension
Article 146(10) provides:
“Where a petition has been referred to a committee under this article, the President may—
(a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice.”
While the provision appears straightforward, its implementation must be considered within the broader constitutional architecture, particularly given:
– The ongoing constitutional litigation challenging the procedure being used to prosecute the cases against the Chief Justice;
– The delicate balance of powers among the three arms of government; and
– The mandatory safeguards under Article 296 regarding the exercise of discretionary powers.
3. Judicial Independence and the Rule of Law
The Judiciary stands as a co-equal branch of government, and the Chief Justice serves as its constitutional head. Any suspension of the Chief Justice during pending constitutional litigation concerning the very process would:
– Constitute a grave constitutional impropriety;
– Undermine public confidence in judicial independence; and
– Risk creating a perception of executive overreach into judicial affairs.
The President, as an important guardian of the Constitution, has a sacred duty to respect this delicate balance. The Supreme Court’s admonition in Tuffuor v. Attorney-General on the need to protect judicial integrity remains particularly relevant.
4. Article 296: Mandatory Constraints on Discretionary Power
The Constitution imposes strict limitations on the exercise of discretionary power under Article 296, which states:
“Where in this Constitution or in any other law discretionary power is vested in any person or authority—
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased… and shall be in accordance with due process of law.”
Crucially, Article 296(c) mandates:
“Where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations… to govern the exercise of the discretionary power.”
5. Legal Consequences of Non-Compliance with Article 296
It is my humble submission that suspension of the Chief Justice, as provided for under the Constitution, is quintessentially a discretionary power. I admit that as is the case with many legal opinions, a contrary view is arguable. If my view states the true position of the law, I proceed to humbly submit that:
– Neither the President nor the Council of State qualifies as a “judge or judicial officer” under the Constitution;
– No constitutional or statutory instrument has, thus far, been published by the President to regulate this power as required by Article 296(c).
Thus, any attempt to suspend the Chief Justice without first establishing the requisite regulatory framework would be unconstitutional for violating:
– Due process under Article 296(a)-(b); and
– The mandatory publication requirement under Article 296(c).
Did previous occupants of the office fulfil the requirements of Article 296? I doubt.
6. Conclusion & Recommendations
Constitutional Reform is Urgently Needed to Safeguard Judicial Independence
The current constitutional framework for removing superior court judges is fundamentally flawed. Under the existing arrangement, a mere petition—however frivolous (and let me be clear, this is not a judgment on the current petitions against the Chief Justice)—can trigger a process where the President, in consultation with the Council of State, initiates the removal of a superior court judge. This mechanism is dangerously susceptible to abuse and fails to provide adequate protection for judicial independence.
The Constitutional Disparity in Removal Standards
The Constitution establishes markedly more rigorous procedures for removing other high constitutional officers:
– For the President, Article 69(11) requires a two-thirds majority vote of all MPs;
– For the Speaker, Article 95(2)(d) demands an even higher threshold of three-quarters of all MPs.
Yet for the Chief Justice and Superior Court Justices, the process requires only a committee investigation establishing misconduct or incompetence, followed by a presidential removal. This disparity is indefensible in a constitutional democracy that prizes the separation of powers.
Comparative Best Practices Demonstrate the Solution
We must look to progressive jurisdictions that have instituted robust safeguards:
– The United States requires impeachment by the House and conviction by two-thirds of the Senate
– India mandates impeachment by a special majority vote in Parliament;
– Nigeria similarly requires legislative approval.
Proposed Amendment
Ghana’s Constitution should be amended to require that the removal of the Chief Justice or any Superior Court Justice be subject to approval by not less than three-quarters of all Members of Parliament. This would:
1. Bring Ghana in line with international best practices;
2. Create parity with the removal standards for other constitutional officeholders;
3. Provide a crucial democratic check on executive power; and
4. Most importantly, fortify judicial independence against political interference.
The time for this reform is now. Judicial independence is not a privilege—it is the bedrock of constitutional democracy. We must act decisively to protect it.
In view of the foregoing, it is my humble opinion that:
1. The President’s power under Article 146(10)(a) must be read in harmony with Article 296;
2. No lawful suspension can occur until the mandatory regulations are published; and
3. Precipitate action during pending litigation would undermine constitutional governance.
The proper course is for the President to withhold any suspension until:
– The Supreme Court conclusively determines the pending constitutional challenge; and
– The necessary constitutional instrument is issued to regulate this discretionary power.
Where the President fails in his constitutional duty to uphold these safeguards, it then falls to the Judiciary—as the ultimate guardian of our constitutional order—to rise to its solemn responsibility. I humbly urge, and indeed pray, that the courts will marshal the requisite judicial courage and fortitude to rectify such a constitutional transgression, should it occur. The rule of law demands nothing less.
The delicate balance of powers under our 1992 Constitution was designed precisely for moments like this. History and jurisprudence alike remind us that when one branch stumbles, another must steady the ship of state. The Judiciary’s fidelity to this role is not merely expected—it is indispensable to the survival of our constitutional democracy.
-rD.s
