OPINION: Quo tendimus, Ghana (“Where are we going, Ghana”)?

In the past few months and days, an African country called Ghana, with an economy far smaller than that of the endowment of many universities in the United States of America, and which until 32 years ago was bedevilled with coups d’état by the military in collusion with certain civilians, has been busy debating the removal of a chief justice who has been “suspended”.

Fortunately, after 68 years of independence in 1957, Ghana can boast of having appointed three female chief justices out of the total 15.

History

Ghana’s democracy under her Fourth Republic has been in existence for less than 33 years, since 7 January 1993. Prime Minister Nkrumah remained the head of government under the 1957 constitution of Ghana, which still had Queen Elizabeth II of Great Britain as the head of state. This constitution lasted for three years.

The republican constitution of 1960 lasted for almost four years before Ghana was declared a one-party state on 1 February 1964 by a CPP-majority Parliament and, by a constitutional amendment, President Nkrumah was made president for life.

The one-party constitution lasted for exactly two years and was abrogated by a military-police coup on 24 February 1966.

There have been the coups d’état of 1966, in which Lieutenant General Joseph Ankrah became head of state under the National Liberation Council (NLC), and 17 April 1967 (a coup attempt) in which General Emmanuel Kwasi Kotoka, a member of the NLC, was assassinated. There was General Ankrah’s forced resignation as head of state and chairman of the NLC on 2 April 1969, over a bribery scandal involving a Nigerian businessman, and his replacement by General Akwasi Amankwa Afrifa, who was head of state from 2 April 1969 until 3 September 1969. On that date, he handed over to the civilian constitutional government under Professor Kofi Abrefa Busia, which lasted for two years and four months, from 3 September 1969 to 13 January 1972. There was the coup d’état of the National Redemption Council (NRC) in 1972, followed by the establishment of the first military government of the Supreme Military Council (SMC1) from 9 October 1975 to 5 July 1978, SMC2 (5 July 1978 to 4 June 1979) and then the Armed Forces Revolutionary Council (AFRC; 4 June 1979 to 24 September 1979).

There was a brief return to a liberal constitutional democracy under President Hilla Limann’s elected government, which was similarly short-lived, lasting two years and three months from 24 September 1979 to 31 December 1981, and the abrupt interruption of our democracy by the 31 December 1981 coup d’état of the Provisional National Defence Council (PNDC).

The 1992 constitution of Ghana

The less-than-33-year-old constitution of 1992, which came into force in January 1993, is the constitution for the longest-serving democracy we have had so far in Ghana. The drafters of this constitution put in clauses covering the grounds for “Removal of President” and similar provisions for the “Removal of the Chief Justice”. Note that these provisions do not apply to Parliament, where the Speaker and Members of Parliament can only “vacate” their seats.

Under Article 69 of the 1992 constitution, the president shall be removed from office on three grounds of misconduct or wilful violation of his or her oath of allegiance to Ghana or any other provision of the constitution; or for having shown any form of incompetence that brings the “high office of President into disrepute, ridicule or contempt”, or devalued the economy of the state or undermined the security of Ghana. The third ground for removal will be where the president is found to be “incapable of performing the functions of his office, by reason of infirmity of body or mind”.

There are provisions under Article 146, similar to the president’s, for the removal of a chief justice. These, in sum, are for misconduct or stated misbehaviour, for incompetence, or for being incapable of performing the functions of his or her office, “by reason of infirmity of body or mind”.

The framers of the Ghana constitution of 1992 saw the position of president, similarly to that of Chief Justice, as sacrosanct. That is why they put in a clause for the removal of the president (which has never taken place) on three grounds, similar to that of the Chief Justice.

Even when the president had health problems and died on the seat in 24 July 2012, he had been protected and his position viewed as untouchable for the continuity of our liberal constitutional democracy.

The president is untouchable; likewise, the Chief Justice is untouchable. Their positions are sacrosanct to our democracy. Are we trying to stage a coup? Do we want to remove the president? Do we want to remove the Chief Justice?

Similarly to the president, the removal of a chief justice before the end of his or her constitutional term of office is like a coup d’état. In practice and for purposes of sustaining our democracy, there is nothing like the removal of the president or Chief Justice unless there is a coup. Let’s not be myopic or short-sighted to think of our constitutional democracy as being only for today, tomorrow or four years, but rather see it as long-lasting and sustainable.

The US has practised it with intermittent amendments for almost 240 years, since 4 July 1776, and the UK can trace tenets of her unwritten constitution from Magna Carta (the Great Charter) in 1215, which established that everyone, including the king/queen, is subject to the law.

The law and not the king rules and in the rule of law (not the dictatorship of the king) are human and individual rights such as protection from illegal imprisonment, access to swift justice and other fundamental human rights and freedoms recognised and respected universally.

Gaps in constitutional theory and practice exist with some provisions of our constitution. The regional tribunals of Article 142, which used to exist in the revolutionary phase of Ghana’s history, have ceased to be practised. The provision under Article 142 (c) for lawyers and non-lawyers to take part in such tribunals, which in the past have convicted people to death by firing squad, was viewed as an aberration to due process and our constitutional democracy.

Even though, in theory, the constitution provides for the separation of powers, checks and balances amongst the three arms of government (Articles 58 to 89), in practice the president has the authority to appoint a large number of ministers from Parliament and is also involved in appointments to the Judiciary.

Even though Article 125(3) vests final judicial power in the judiciary and Articles 127(1) to (3) protect the judiciary from interference by the “president, Parliament or any other person acting under the authority of the president or Parliament or any other person”, in practice, presidential appointments to the judiciary – sometimes of judges who have a history of either being fellow party members or sympathising with the president’s party – have been seen as some of the efforts by the executive to influence adversely the independence and impartiality of the judiciary.

Council of State

Article 89, which provides for a Council of State “to counsel” the president objectively and impartially in the performance of his/her duties, provides under Article 89(2) (d) for 11 members to be appointed directly by the president.

Article 89 (2) (c) provides for representatives from each region of Ghana who are also elected by an electoral college, made up of two representatives who are nominated from each of the districts in the region, by the district assemblies in the region.

Even though Article 240 of the constitution promotes, as far as is practicable, a local government administration which is decentralised, in reality the assemblies are chaired by government-nominated and government-appointed metropolitan, municipal and district chief executives who owe allegiance to the central government and not to the populations in their localities.

Election by the assemblies of a non-ruling-party member to the Council of State is far from possible.

Social media and in-camera proceedings

With the modern influx of social media channels, which has contributed to an information boom, certain documents and processes which were years ago considered confidential, and thus protected by secrecy, have ceased to be so.

For instance, the petitions against the Chief Justice, which were expected to be in the ambit of the president under Article 146 (5), were being paraded without scruple on social media by certain individuals long before the responses by the Chief Justice also found their way on to social media.

Thus, with the constitution as a living being or document, the provision under Article 146(8) that all proceedings regarding the removal of a chief justice “shall be held in camera” is very outmoded and must, in practice, evolve to reflect modern life.

Gender equality

On 7 January 2025, when the ninth parliament of the Fourth Republic of Ghana was established and the president and the first female vice-president were sworn into office, by a female chief justice, we were proud to show to the world that Ghana was indeed fulfilling her commitment to the Solemn Declaration on Gender Equality in Africa (SDGEA).

The SDGEA commitments were made by the African Union (AU) heads of state and government in 2004 to promote and advance gender equality on the African continent. There is, indeed, gender equality amongst the four key leaders of our constitutional multiparty democracy: being a male president, a female vice-president, a male Speaker of Parliament and a female chief justice of the Republic of Ghana.

The world has seen the importance of gender equality to nations’ development. According the International Monetary Fund and Organisation of Economic Co-operation and Development, countries that have more women in leadership tend to have better governance and financial outcomes. As an aside, we are very proud Ghana has a female vice-president and though she is temporarily ill and on leave, Ghanaians, including schoolchildren, will appreciate the opportunity to send her messages of love, prayers and get-well cards to aid in her speedy recuperation.

I will say that we stand to be proud of the accomplishments of our women, including our Chief Justice. Women in leadership should never be viewed in a derogatory manner. That brings into remembrance the contempt of court case in 2016 which involved three individuals from the Montie FM radio station.

On 29 June 2016, during a political talk show, the host of the show, Salifu Maase (alias Mugabe), and the panellists Alistair Nelson and Godwin Gunn made remarks considered horrific, including threats to kill Supreme Court judges and a specific threat to rape the then chief justice, who was also the first female chief justice of the Republic of Ghana.

On 27 July 2016, a Supreme Court panel that initiated contempt proceedings against the Montie Three and the owners of Montie FM found the three men guilty of contempt and sentenced each of them to four months in prison with a fine. Supporters of the ruling National Democratic Congress (NDC) at the time petitioned the then first-term president John Mahama to pardon the three convicts.

On 22 August 2016, President Mahama exercised his prerogative of mercy under Article 72 of the Constitution of Ghana and granted presidential pardons to the Montie convicts.

The United Nations Special Rapporteur on Violence Against Women must have this occurrence in her records from collecting, analysing and reporting information on violence against women among UN member nations. Ghana stands to be addressed, having signed on to as well as ratified the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) on 2 February 1986 and ratified the optional protocol to CEDAW on 3 February 2011.

The International Commission of Jurists (ICJ) and the International Association of Women Judges (IAWJ) are international organisations which also work to promote the rule of law and gender equality globally.

To the distinguished judiciary, if the CJ is removed, then the country will never recover from this precedence, because every new government will be constituted with a new parliament and a new chief justice and possibly a new Judiciary, who can be removed at will with a tenure of, on average, four years only.

To the Judicial Service and members of the Judicial Service Staff Association of Ghana (JUSAG), who are now shielded from forced dismissals and forced takeovers, unlike what is happening in some other public institutions, that protection could become a thing of the past. Let us not treat our democracy with frivolity, because it took ages to get here. Let us not contemplate or encourage a multiparty constitutional democracy where rules, principles and practices are changed at the whims and caprices of individuals, political parties, ethnic groups and civil society leaders, for for regional and short-sighted interests.

With reference to the first to fourth lines of the second stanza of the National Anthem of Ghana, composed by Philip Gbeho, with original lyrics written by Emmanuel Pappoe-Thompson:

Hail to thy name, O Ghana,
To thee we make our solemn vow:
Steadfast to build together
A nation strong in Unity.

Gloria Ofori-Boadu, Esq  

The writer is a senior lawyer in private practice in Ghana 

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