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Member of Parliament for Old Tafo, Vincent Ekow Assafuah has filed a writ of summons and a statement of claim at the Supreme Court (SC) challenging the recent decision of President Mahama to consult the Council of State (CoS) on what the presidency says are three petitions presented to the president by three persons for the removal of the Chief Justice (CJ) of the Republic, Justice Getrude Araba Sackey Torkornoo.
The presidency, in a release dated Tuesday, 25 March 2025, and signed by Felix Kwakye Ofosu, spokesperson to the President and Minister for government communications, indicated that “President Mahama has received three petitions from various persons seeking the removal of the Chief Justice.
“The President has forwarded the three petitions to the Council of State to commence the consultation process mandated by Article 146 of the 1992 constitution,” the statement by Mr Kwakye Ofosu read. There was no indication as to whether the Chief Justice, Justice Getrude Araba Sackey Torkornoo, had been notified or served with the petitions submitted against her.
Reliefs sought
The MP is essentially praying the Supreme Court for four reliefs. First is “a declaration that upon a true and proper interpretation of articles 146(1), (2), (4), (6) and (7), 23, 57(3) and 296 of the Constitution, the President is mandated to notify the Chief Justice about a petition for the removal of the Chief Justice and obtain his or her comments and responses to the content of such petition before referring the petition to the Council of State or commencing the consultation processes with the Council of State for the removal of the Chief Justice;
Second, “a declaration that upon a true and proper interpretation of articles 146(1), (2), (4), (6) and (7), 23 and 296 of the Constitution, a failure by the President to notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State constitutes a violation of article 146(6) as well as the constitutional protection of the security of tenure of the Chief Justice who is a Justice of the Superior Court of Judicature stipulated in article 146(1) of the Constitution.
Third, “a declaration that upon a true and proper interpretation of articles 146(1), (2), (4), (6) and (7), 23,(57(3) and 296 of the Constitution, a failure by the President to notify the Chief Justice and obtain his or her comments and responses to a petition for the removal of the Chief Justice before triggering the consultation process with the Council of State amounts to an unjustified interference with the independence of the Judiciary enshrined in article 127(1) and (2) of the Constitution;
Fourth, “a declaration that the failure by the President to notify the Chief Justice and obtain her comments and responses to a petition for the removal of the Chief Justice before triggering the process for her removal, constitutes a violation of the fundamental right to a fair hearing contained in articles 23 and 296, and renders the consultation processes for the removal of the Chief Justice initiated by the President null, void and of no effect.”
Constitutional provision
The process for the removal of a serving Chief Justice is provided for in Article 146, Clause 6 to 11 of the 1992 of the Republic. Its states; Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.
(7) The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
(8) All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.
(9) The President shall, in each case, act in accordance with the recommendations of the committee.
(10) 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;
(b) in the case of any other Justice of a Superior Court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.
(11) The President may, at any time, revoke a suspension under this article.
Adjei Twum case
In further development of the constitutional provisions for the removal of a serving Chief Justice, the Supreme Court on 12 July 2006 in the case of Agyei Twum vrs Attorney General and Akwetey, through a seven-member panel presided over by Justice Sophia Akufo and comprising Justices Georgina Wood, Dr Date-Baah, Professor Ocran, Julius Ansah, Sophia Adinyira and Asiamah, shed more light on whole of Article 146 of the 1992 Constitution.
The Supreme Court in the Adjei Twum Case, among others, held that “When one compares article 146(3) with article 146(6), it becomes evident that there is a gap in the logical sequence of action under article 146(6).
“According to the literal language of article 146(6), no one is required to examine a petition brought against the Chief Justice to ascertain whether it establishes a prima facie case, before the President refers it to a committee established by him. Once any petition, no matter how frivolous its contents, is presented to the President, he has a duty to establish a committee to consider it.
“A literal reading of the provision, therefore, could lead to the floodgates being opened for frivolous and vexatious petitions to be continuously filed against a serving Chief Justice, with two Supreme Court judges being perpetually tied down to hearing such petitions, alongside the other members of the committee that the President must appoint. This is a scenario that would weaken the efficacy of the top echelon of the Judiciary,” the Supreme Court stated in the Adjei Twum Judgment.
“Moreover, there is even more mischief in the literal interpretation. This is because article 146(10)(a) authorises the President, albeit on the advice of the Council of State, to suspend the Chief Justice whilst a petition for his removal is being considered by a committee appointed by him under article 146(6).
“There is thus scope for the Executive or others to initiate frivolous and vexatious petitions against the Chief Justice resulting, according the literal reading, to an automatic establishment of a committee to consider the petitions and the empowerment of the President to suspend the Chief Justice from his functions.
“This scenario is deeply subversive of the balance of power underlying the 1992 Constitution and the separation of powers it entrenches. It is, of course, also inimical to the independence of the Judiciary,” the Supreme Court further held in the Adjei Twum case.
Reporting by Wilberforce Asare in Accra
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