President Acted Unconstitutionally

Supreme Court Rules On Petition To Remove CJ
Accra, July 13, Statesman -- In a major landmark case yesterday, the Supreme Court ruled unanimously that the President acted unconstitutionally when he appointed a committee to inquire into a petition for the removal of the Chief Justice, Kingsley Acquah.

Granting the relief sought by Frank Agyei-Twum, News Editor of The Statesman, the seven-member panel ruled that a prima facie case ought to have first been established before the President acted under Article 146(6) of the Constitution to set up the five-member committee.

The court also ruled that the decision by Bright Akwetey, the petitioner, to communicate the contents of the petition to others other than the President was in direct breach of Article 146(8), which states that all proceedings for the removal of a superior court judge must be held in camera. “The Chief Justice must be given the benefit of a prima facie case before the President determines there is a case for his removal,” they ruled.

The justices also ruled that the duty of determining a prima facie case should rest in the Council of State, which, it was recommended should establish a convention of engaging “an independent and reputable lawyer” to advice them on the evidence.

The Supreme Court went further to criticise the petition before the President, with one judge describing it as “procedural terrorism.”

The court ruled that “A legally improper petition is no petition in law and should not be granted at all,” saying that Mr Akwetey’s petition did not satisfy any judicially accepted standard, since it was allegations that could be described as rumours.

The main judgment, which took about two and a half hours to be read, was given by Samuel Date-Bah. The court was presided over by Justice Sophia Akuffo. The plaintiff was represented by Ampem Chambers, with Messrs Kofi Asante, Nana Asante Bediatuo, and Asare Otchere-Darko.

Dr Date-Bah described the case before the court as a boxing match, with the literal approach to interpretation of statutes in the green corner, and the purposive approach in the red corner. In the end, the red corner won as the court ruled that it would have undesirable consequences and affect the balance of power if the gap in Article 146 of the Constitution was not filled to imply a prima facie case prerequisite to the setting up of a committee. Indeed, Article 146(3) requires such a prima facie case being established before a committee is set up to inquire into a petition against any other superior justice other than the CJ.
Giving his additional opinion, Justice Modibo-Ocran took issue against the competence of Bright Akwetey’s petition. He described its content as “second and third generation allegations,” with very little evidence of first hand knowledge. “The narration of events sounds very much like the sort of thing that anybody can pick up from the rumour mill.”
On January 13, Mr Akwetey petitioned the President for Justice George Kingsley Acquah’s removal on grounds of abuse of power and judicial misconduct. He cited, in evidence, the transfers of a High Court judge, Anthony Oppong, and a Circuit Court judge, Emmanuel Ankomah, as well as the dismissal of Williewise Kyeremeh, a Circuit Court judge.
His allegation was that the three justices were “unlawfully victimised” by the CJ with the result that Messrs Oppong and Ankamah had been “punished with greatly inconvenient transfers outside Accra,” and Mr Kyeremeh had been “unlawfully dismissed from the Judicial Service.”
The petition cited scores of plain allegations in support of his petition. “I have a real problem in legally characterising such a petition under Article 146,” ruled Justice Modico-Ocran, adding, it lacked the sort of legal seriousness that ought to be attached to such an action. With no local precedent to fall on, he compared Mr Akwetey’s petition to what constitutes a petition in the USA.
In his view, Mr Akwetey’s petition would at best “serve as a memorandum,” to an independent inquirer, like Kenneth Star, who is already looking into impeachable allegations, but not the substance of a petition. It falls “woefully below the legally accepted standard,” and a “legally improper petition is no petition at all.”
This judgment by Justice Modibo-Ocran, in effect, dismisses the petition, without necessarily seeing the Supreme Court supplanting the duty of the President as the ruling sought to interpret what constitutes a petition, without necessarily going into the merits of it.
He further noted that since once the CJ has been removed as a CJ, he loses his job also as a judge, even if he is a very good judge but a terrible administrator, it is important that the process is not trivialised by a “barrage of groundless and frivolous petitions.”
The court also ruled that Bright Akwetey or any other citizen of the land is entitled to petition for the removal of the CJ without suffering any personal injury. Though Article 146 is “silent on who is entitled to petition… But, I read that it should be read like Article 2(1),” said Justice Modibo-Ocran. Justice Asiamah gave a dissenting judgment in support of Mr Agyei-Twum’s case that Mr Akwetey lacked capacity to petition. He said the dismissal of justices was done by the Judicial Council, not the CJ. “No action can therefore be brought against the Chief Justice personally.”
He further stated that a judge below the ranking of Appeal Court judge has no right to be permanently stationed at any area of the country. He thought the best course of action for the aggrieved justices was a judicial review and not in a petition.
He described the petition by Mr Akwetey as “mere speculating musings and conjectures.” And to entertain such an action would “fuel mistrust in the judiciary and institute procedural terrorism in our administration of justice.” The other Supreme Court justices who concurred with Dr Date-Bah’s ruling were Georgina Woode, Adinyira, and Ansah.