Ayikoi Otoo explains why the removal of Chief Justice Torkornoo is unconstitutional, citing breaches of Ghana’s legal framework.
As lead counsel to the Chief Justice of the Republic of Ghana, Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo, I feel compelled to speak out on behalf of my colleagues, against a deeply troubling process that has culminated in her removal from office.
This development raises serious constitutional, procedural, and institutional concerns that demand the urgent attention of the Ghanaian public, legal community, and all stakeholders committed to the rule of law and constitutional democracy.
Procedural violations and denial of due process
The constitutional process for removing a Chief Justice is provided for in Article 146 of the 1992 Constitution. It requires strict adherence to principles of natural justice, fairness, and transparency.
Unfortunately, the process that Her Ladyship Sackey Torkornoo has been put through was marred by significant anomalies:
The Chief Justice was never served with a copy of the prima facie determination allegedly made by the Council of State upon referral of the petitions for her removal.
This failure deprived her of the opportunity to know and prepare appropriately to respond to the exact issues for the determination or consideration of the Committee set up by the President under Article 146 to consider the petition for her removal.
The petitions sought her removal solely in her capacity as Chief Justice.
The Committee recommended, and indeed could only have recommended, that she be removed from office as Chief Justice. The recommendation was made under article 146(7).
Under Article 146(9), the president could only act in accordance with the recommendation of the Committee.
However, the warrant of removal executed by the President unconstitutionally extended to her role as a Justice of the Supreme Court, which was never the subject of the petition or the recommendation of the Committee.
This constitutes a serious overreach and a violation of the original terms of reference and the Constitution 1992.
The addresses filed by her legal team was not considered by the committee before the committee submitted its final report and recommendation. This undermines the fairness of the proceedings.
Suppression of exculpatory evidence
From the reasons for removal stated in a letter issued by the President’s secretary, the committee ignored exculpatory evidence provided on behalf of the Chief Justice, including an audit management letter which acknowledged and accepted the explanation of the Judicial Secretary,the Spending Officer, regarding the payment of per diem, travel expenses and ticket for her husband and daughter on two occasions each travelled separately with her.
The Director of Finance of the Judiciary Service who testified before the Article 146 Committee, admitted that the issue never appeared in the Management Letter issued by the Office of the Auditor -General and tendered the policy that these payments have been based on since 2010. This evidence was further confirmed by witnesses.
This critical piece of evidence was material to the allegations and its omission from the committee’s consideration in their alleged grounds for recommending removal from office, is a grave miscarriage of justice and renders the recommendation perverse and absurd.
Equally absurd is a recommendation that the Chief Justice’s transfer of one member of staff warrants removal from office. And the alleged recommendation that nomination by the Chief Justice for promotion warrants removal from office, when the obligatory duties of a Chief Justice as head of administration and supervision of Judges is spelt out in the Constitution.
How many staff and Judges has the current Acting Chief Justice transferred even in his acting capacity?
Can any Chief Justice work if such inappropriate excuses are used to remove the head of the third arm of Government from office?
Pending judicial review and active litigation
The grounds for her removal are currently the subject of a Judicial Review Application, challenging their rationality and constitutionality.
Five separate cases are pending before the Supreme Court questioning the constitutional validity of various aspects of the removal process.
The Supreme Court has failed to give a date for the consideration of the substantive case in any one of these matters.
So far, the supreme court has only dealt with interlocutory applications in these cases.
Considering the importance of this case, and the speed with which the Supreme Court addressed the interlocutory matters against Justice Torkornoo or her interest, we expect and respectfully implore the Supreme Court to urgently deal with the substantive matters currently pending before it which border on the removal of the Chief Justice.
Two additional petitions are still pending before the Article 146 constitutional committee, and the committee had adjourned proceedings to hear them.
Without completing the cases referred to them in one warrant issued by the President, both the Committee and the President have purportedly used only one to justify her removal from office.
His Excellency the President, meanwhile purportedly made one prima facie determination in respect of all three petitions -as stated on the warrant of suspension of the Chief Justice.
These facts raise fundamental concerns about unconstutionality,procedural incompleteness and judicial propriety in the whole process from start to finish.
Community court of justice-ECOWAS
It is also significant to note that there is a matter pending before the Community Court of Justice -ECOWAS which has adjourned for Ruling an Application for Interim measures seeking a suspension of ongoing proceedings to remove her Ladyship from office and her reinstatement with full entitlements, pending the determination of the substantive matter before the Court.
Despite these unresolved constitutional and legal matters, the President has moved to nominate the person he appointed as Ag Chief Justice following her ladyship’s suspension from office for vetting as substantive Chief Justice, disregarding the pending judicial processes and undermining the integrity of the separation of powers.
Non availability of committee’s report and recommendations
Notwithstanding that the Article 146 Committee investigated one petition and His Excellency the President purported to have acted in accordance with the recommendations of the Committee, Her Ladyship the Chief Justice has still not been given or served with a copy of the Report containing the recommendations.
The Chief Justice, as a citizen is simply asking that she must be accorded the minimum procedural justice that the Constitution itself accords every Ghanaian citizen, including her. She is a career judge of significant repute who has risen to the top of her profession.
If someone wishes to destroy the hard work of many decades and accomplishments, the least that should be done in a constitutional Republic is to at least accord her the basic rights she is entitled to as a citizen.
She has a right to know the findings against her and the reasons for her removal in a proper and complete report so she can avail herself of any remedies available.
The processes engaged in side step all lawful procedure and simply throws her out of office whilst denying her rights guaranteed under the Constitution.
As someone whose life has been devoted to justice and ensuring it for others, she owes it as a duty to herself and posterity to fight for the right things to be done.
This process she has been subjected to is not known to Ghana’s Constitution or the common law that Ghana subscribes to.All the rules known to our law have been breached.
There are cases pending which necessarily must be heard to determine the rightness or wrongness of the procedures complained about.
If these processes are abused as they are now and the courts remain silent and would not ensure that the right processes are gone through, it will be an indelible stain on Ghana’s fidelity to the principles of rule of law.
Whoever becomes the new Chief Justice ought to inherit a clean seat, not one yanked forcefully under questionable processes.
It taints the office and its occupant.
Our client is very willing to abide by all decisions as long as they are properly reached.
What has happened is a travesty of legal procedures and the directions of the Constitution and it reduces us all.
How do we know that this would not be repeated in future and where will this travesty end?
A dangerous constitutional precedent
This incident sets a dangerous precedent that signals subordination of the judiciary to the executive arm of government.
The removal of a sitting Chief Justice, a head of an arm of government, without due process, amidst ongoing judicial challenges, signals an alarming erosion of judicial independence and constitutional balance.
If successive governments are emboldened to remove Chief Justices through questionable processes, we risk converting the highest judicial office into a revolving door subject to political convenience rather than constitutional safeguards.
The judiciary at all levels, through this alarming development, can only become subject to the intimidation of political actors from this time on.
A call for constitutional vigilance
Ghanaians must rise in defence of the 1992 Constitution and resist any attempts—subtle or overt—to weaken the judiciary.
The independence of the judiciary is the last line of defence for the liberties of the citizenry. Its erosion affects not only judges, but every Ghanaian who seeks justice and protection under the law.
OUR DEMANDS – We call on:
The legal fraternity to speak out in defence of the Constitution
We also call on all including CSOs to speak up because a breach of constitutionally guaranteed procedure is a sign of a crumbling society.
If the Chief Justice can be removed without proper procedure and her right to challenge the processes are also foreclosed, then anyone and everyone is at risk.
Parliament no matter its current balance, to act as a check on executive overreach, and
The international community to take note of developments that signal threats to the rule of law in Ghana.
We call on His Excellency the President to do the right things that line up with the oath of office dictated by the Constitution.
We call on the Judiciary to also insist on procedural justice and wake up to the oath they took to dispense justice, in accordance with law.
The strength of a democracy is tested not when all is well, but when difficult questions must be asked of those who wield power. Today, we ask: What is the value of constitutional safeguards if they can be violated so easily, under pretence of compliance*?
Let us, as a nation, reject the politicized domination of the Judiciary and remain vigilant stewards of our Constitution.
Let us remain vigilant and united in our commitment to deepening, not weakening, of the rule of law and tenets of justice, constitutionalism, and the preservation of the separation of powers.
The Chief Justice is not in the least desperate to stay in office. She is fighting for what is right for the Country, for the rule of law, and for her rights, as a citizen in a constitutional democracy.
- Ayikoi Otoo
Lead Counsel to her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo
