A Critical Reflection on the Supreme Court’s Ruling, Judicial Independence, and the Ongoing Constitutional Crisis
Respectfully,
In Vincent Ekow Assafuah v. Attorney-General, the Supreme Court has emphatically clarified that only an express judicial grant of an injunction can lawfully restrain a person or body from performing constitutionally or statutorily mandated duties.
As someone who has previously called for judicial clarity on this matter, I welcome this authoritative guidance. It brings much-needed structure to an area that had become increasingly uncertain in practice.
SUMMARY OF MY CONCERNS
While the Supreme Court’s decision in Assafuah brings welcome clarity to the legal effect of injunction applications in constitutional matters, it is not without deep and troubling implications. This article critically engages with the Court’s refusal to restrain the President in the face of serious allegations involving the attempted removal of the Chief Justice. It argues that although the decision strengthens procedural orthodoxy, it risks weakening institutional safeguards meant to protect judicial independence. Drawing on the powerful dissent of Justice Henrietta Mensa-Bonsu, the piece contends that the ruling, while lawful, may ultimately fall short of what constitutional democracy demands in moments of institutional crisis. In light of ongoing litigation now brought by the Chief Justice herself, this article calls for a re-examination of the principles established in Assafuah and a more balanced approach that prioritizes both legal clarity and constitutional integrity.
SUMMARY OF THE PLAINTIFF’S CASE AGAINST THE ATTORNEY-GENERAL
The case was initiated by Vincent Ekow Assafuah, Member of Parliament for Old Tafo, who sought to restrain President John Mahama from proceeding with what he described as unconstitutional attempts to remove Chief Justice Gertrude Torkornoo from office. In inviting the Court to freeze the President’s hands, Assafuah argued that the ongoing process was fraught with legal improprieties and therefore ought to be halted.
In his constitutional action before the Supreme Court, Assafuah contended that the steps taken by the President—specifically the referral of petitions against the Chief Justice to the Council of State—violated key provisions of the 1992 Constitution and threatened the independence of the Judiciary. He claimed the process lacked procedural transparency, undermined the constitutional safeguards meant to insulate the Judiciary from political interference, and posed a grave danger to the rule of law.
Accordingly, he sought multiple reliefs, including a declaration that the President’s actions were unconstitutional and an interlocutory injunction to suspend all proceedings related to the Chief Justice’s removal until the substantive matter was resolved by the Court.
In essence, the plaintiff’s case centred on preserving judicial independence, preventing executive overreach, and ensuring strict adherence to constitutional procedures in matters affecting the tenure of the head of the Judiciary.
THE SUPREME COURT’S RULING IN ASSAFUAH
The Supreme Court rejected his invitation in a 3-2 Majority decision. In doing so, it effectively overturned a long-standing assumption—held in some quarters—that the mere filing of an injunction application, or notice of such filing, automatically suspends the actions of respondents in cases before the courts, including constitutional or statutory duty bearers. The oft-cited High Court decision in Republic v. Moffat and Others; Ex Parte Allotey is frequently invoked to support that position. In that case, the High Court held:
“It is well established that any conduct which tends to bring the authority and administration of the law into disrespect or to interfere with any pending litigation is a contempt of court. So that once the respondents had become aware of the pendency of the motion before the High Court, and which motion gave them notice in clear terms of the court’s intention to inquire into the matter and to decide whether or not they should be prohibited from outdooring the said James Allotey, any conduct on their part which was likely to prejudice a fair hearing of that motion or was likely to interfere with the due administration of justice, would amount to a contempt of court, absence of an interim order for stay notwithstanding.”
However, the Supreme Court has now taken a firm stance against this approach. The Court cautioned that such a blanket interpretation would undermine the public interest and disrupt the lawful exercise of constitutionally assigned functions. As Justice Kulendi J.S.C. eloquently stated:
“In good conscience and in fidelity to our judicial oath, we cannot endorse a position that could potentially be exploited by deliberate and well-resourced strategy deployed by individuals or entities pursuing parochial private interests to obstruct, delay and frustrate constitutional oversight and hold the public interest to ransom.”
Continuing at paragraphs 91 to 93 of the judgment, the Court held:
“In the premises, we find that, in cases involving the discharge of constitutionally or statutorily mandated functions by specifically designated actors, be they statutory bodies, public offices or individuals empowered by law so to act, it would be utterly imprudent to adopt a blanket rule that mere service of an application for interlocutory injunction suffices to halt constitutional or statutory action which presumptively, would inure to the collective interest of the public.”
“We further hold that in such cases, nothing short of an express judicial grant of an injunction would suffice to restrain a constitutional or statutory duty bearer whose actions are presumptively in line with constitutional or lawful mandates. In fact, the Constitution itself envisages the continuous running of the Republic in article 64(2) with the declaration that even if this Court in a presidential election dispute declares as invalid the election of a president, such a declaration shall be without prejudice to anything done by the president before the declaration.”
“The Constitution in the said article 64(2) accepts the principle of continuity of the effect of discharged constitutional duties. That being the case, we are of the considered opinion that there is no jurisprudential basis for halting or suspending the operation of the Constitution by the mere filing and service of an application for interlocutory injunction. On what basis should we put clutches on constitutional and public law duty bearers by the force of mere pendency of interlocutory applications? We think that a pending interlocutory injunction application is insufficient to hold the ground and suspend the performance of a constitutional or statutory duty, irrespective of the possibility of success.”
In view of this decision, the processes initiated to remove Chief Justice Torkornoo from office will ‘lawfully’ continue unless and until an express judicial grant of injunction is issued to halt them. The Supreme Court’s ruling makes it clear that neither the mere filing of an injunction application nor notice of such filing is sufficient to restrain the exercise of constitutionally mandated functions. Notably, the Chief Justice herself is now before the same Court, having filed a substantive suit alleging unconstitutional conduct in connection with the attempts to remove her from office. She has fortified her claim with an application for an injunction. However, in light of the Court’s authoritative pronouncement in Assafuah, such proceedings—absent an express injunctive order—do not, in themselves, operate to suspend the process. As it stands, the constitutional machinery remains active and must proceed, presumptively valid, until lawfully restrained by judicial authority.
ENDORSEMENT OF CHIEF JUSTICE’S HANDLING OF CASE AGAINST SPEAKER BAGBIN
Importantly, the Supreme Court also affirmed in the same decision that in certain exceptional cases—particularly those involving urgent constitutional questions with potential to cause irreparable harm—it may be necessary to swiftly empanel the Court to hear and determine such matters without delay. This recognition offers a compelling institutional justification that should firmly silence critics who, last year, questioned the propriety of the Chief Justice’s decision to urgently empanel the Court to hear and rule on the case brought by the (then-Majority Leader) and MP for Effutu, Alexander Afenyo-Markin, against the Attorney-General and the Speaker of Parliament, over the controversial declaration of four parliamentary seats as vacant. The Court has now made it clear: where the constitutional order is at stake, urgency is not only permissible—it may be imperative.
As the Majority stated in paragraph 94: “We are not unmindful of the fact that certain matters may require immediate injunctive relief due to their time-sensitive nature. In such exceptional constitutional cases, the Supreme Court, given its critical constitutional role, can be empanelled to hear the application immediately, without delay. The Court’s unique mandate, after all, allows it to convene at any time to address urgent matters of national significance, ensuring that constitutional order and continuity are maintained and potentially irreparable harm to the constitutional order and public interest is averted.”
A LANDMARK DECISION, BUT NOT WITHOUT LEGITIMATE CONCERNS
While the Supreme Court’s decision in Assafuah offers much-needed clarity on when injunctions may lawfully restrain the performance of constitutional or statutory duties, it is by no means immune from criticism—particularly in its refusal to halt President Mahama’s actions in the current case, despite serious allegations surrounding the removal of Chief Justice Gertrude Torkornoo.
Respectfully, while the majority’s refusal to freeze the hands of the President may adhere to what some may call “procedural orthodoxy”, it arguably falls short of safeguarding the deeper institutional integrity demanded by constitutional democracy. It is precisely here that the powerful and principled dissent of Justice Henrietta Mensa-Bonsu deserves not only recognition but sustained amplification.
In her compelling dissent, Justice Mensa-Bonsu (backed by E.Y. Gaewu JSC) elegantly and forcefully articulates a vital truth about the role of the Judiciary:
“Knowing the importance of the preservation of judicial independence in the court’s ability to protect the citizen against the powerful in the community, many are the provisions and safeguards provided under the Constitution.”
This is not merely an expression of sentiment—it is a constitutional imperative. When (as now) the very head of the Judiciary invokes the Constitution to challenge executive action aimed at her removal, the situation demands caution, not haste. The refusal to pause and assess undercuts public confidence and institutional balance.
Her words strike at the heart of institutional fragility:
“Perhaps, [judges] may be forced to re-think their options and career choices if removing the head of the institution is no more difficult than removing a class prefect of a school.”
This is no alarmist posture; it is a sober warning about how easily judicial independence can be diminished when the process is allowed to outpace principle.
Justice Mensa-Bonsu’s insistence that the Judiciary must “push the pause button” when its independence is threatened reflects compelling constitutional wisdom, not delay. Her invocation of a Twi proverb—“one does not brush off soldier ants while standing in their nest”—drives home the point: step back, reassess and proceed with prudence. That counsel should have guided the Court. Unfortunately, it did not.
Even more forcefully, she reminds us:
“The blessings of the rule of law are dependent upon the proper functioning of courts around the country—not on acts by street mobs, or the expression of opinions that are fashionable with the public at any point in time.”
And finally, she appeals to moral reciprocity and institutional foresight:
“Do unto others as you would have them do unto you. There are weighty issues to be addressed in this suit… Granting the injunction… would, to my mind, not only be dictated by caution and wisdom but by the wider interests of the system at large.”
CONSTITUTIONAL CONCERNS ARISING FROM THE PRINCIPLE ESTABLISHED IN ASSAFUAH
These reflections, in my humble view, deepen the legal concerns already raised by the decision. Among them:
1. It may embolden executive or statutory actors to ignore legitimate legal challenges simply because an injunction has not yet been granted.
2. It places a significant burden on applicants to secure an injunction before any potentially harmful act is restrained—often impractical in urgent, fast-moving constitutional contexts.
3. It could discourage recourse to the courts if public officials know they can lawfully proceed without pause, regardless of serious constitutional questions raised in pending litigation.
These concerns merit serious reflection, especially in a country where judicial processes are often slow—as seen in the unconstitutional and regrettable removal of Auditor-General Daniel Yao Domelevo under the previous Akufo-Addo administration. The courts are sometimes costly, sometimes inaccessible, and too often delayed. Against that backdrop, requiring the grant of an express injunction before halting state action may, in practice, amount to justice denied.
To be clear, the decision in Assafuah has brought clarity to a previously murky area of constitutional procedure. It is a welcome jurisprudential development. But (in the specific context of the ongoing processes to remove the head of judiciary) clarity must not come at the cost of constitutional integrity. This moment should open space for a deeper conversation about how to balance judicial efficiency, access to justice, constitutional accountability, and the preservation of democratic values.
The Court has spoken. But so, too, must we—as lawyers, citizens, and defenders of the Republic. For in defending judicial independence today, we protect the constitutional freedoms and future of all Ghanaians tomorrow. One can only hope that the legitimate concerns raised—both within and outside the Court—will invite a careful judicial re-examination of the Assafuah decision, especially now that the Chief Justice herself has brought a constitutional challenge fortified by an application for the injunction. In matters bearing on the very integrity of the Judiciary, justice must not only be done, but must also be seen to be done—with wisdom, restraint, and unwavering fidelity to the Constitution.
#HardLaw
-rD.s
