President John Dramani Mahama is being criticised by a faction of the public over his decision to suspend the Chief Justice, Justice Gertrude Torkornoo, with proponents of the largest opposition political party, the New Patriotic Party (NPP), threatening demonstrations and legal actions against the government.

President Mahama, in consultation with the Council of State, suspended the Chief Justice after they found that there was a ‘prima facie case’ in the three petitions for her removal.

The critics of the president have, however, argued that there was no ‘prima facie case’ in claims stated in the petitions as grounds for her removal, including allegations of financial misappropriation, incompetence and abuse of power.

But what does the ‘prima facie case’ mean at all?

‘Prima facie,’ in the layman's language, means there is a reason to look into something.

The 1992 Constitution states that once a 'prima facie case' is determined against the Chief Justice or any Superior Court justice a petition for removal is filed against, the president can suspend the justice as the allegation against him/her is being looked into.

Renowned US-based Ghanaian lawyer and scholar, Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has given a concise explanation of what a ‘prima facie case’ is.

Kwaku Azar, in a post shared on X on April 24, 2025, explained that the determination of a ‘prima facie case’ against the Chief Justice does not mean she has done something wrong.

He said that it only means that the allegations against Justice Torkornoo, on the face value, are worth looking into.

“A prima facie case refers to an allegation that, if assumed to be true, would warrant further investigation. It is not a final judgment or a finding of guilt. Under the Constitution, once such a threshold is met, the President is obliged to refer the matter to a committee established under Article 146(6).

“That committee — not the President — is tasked with conducting a full inquiry and recommending whether a judge ought to be removed. The Supreme Court in Agyei-Twum v Attorney-General explained that the president’s function at this stage is procedural, not evaluative. It is analogous to a judge deciding whether a claim can proceed to trial — not whether it will ultimately succeed,” he wrote.

He added, “The goal is to ensure that serious allegations are not dismissed out of hand, nor frivolous ones allowed to waste state resources.”

The legal luminary, who petitioned for the removal of Justice Torkornoo in 2024 but was dismissed by the then president, Nana Addo Dankwa Akufo-Addo, said that the right processes were followed in the determination of a ‘prima facie case’ by President Mahama.

He pointed out that Akufo-Addo’s determination of no ‘prima facie case’ against the embattled justice in his petition was rather wrong.

“Former President Akufo-Addo’s prima facie determination short-circuited that process. It applied the wrong standard, assumed powers reserved for the investigative committee, and failed to inspire confidence in its impartiality or fidelity to constitutional principle.

“By contrast, the current President’s decision to refer a recent petition — upon finding that it discloses a prima facie case — correctly embraces the constitutional meaning of that term: that credible allegations, if true, warrant investigation. It reflects a proper appreciation of the President’s limited screening role and reaffirms the need to preserve the integrity of the Article 146 process,” he added.

He went on to list the following as reasons Akufo-Addo’s determination of no ‘prima facie case’ against Justice Torkornoo was wrong:

1. Misapplication of the Prima Facie Standard:
The President demanded more than credible allegations—he asked for proof. He dismissed claims as speculative unless accompanied by exhibits or affidavits. But prima facie means that the allegations, on their face, raise serious issues if true — not that they be conclusively proven at the threshold stage.

2. Usurpation of the Committee’s Role:
Rather than refer the matter for investigation, the President opined on the legality of the Chief Justice’s actions, defended her decisions, and interpreted the Constitution in her favour. This is precisely the evaluative task assigned to the Article 146(6) committee — not to the Executive.

3. Arbitrary Departure from Precedent
In the Charlotte Osei petition, the President allowed petitioners to regularise their submission. In contrast, the petitioner in this case, though offering additional evidence and willing witnesses, was summarily dismissed. Such unequal treatment violates Articles 23 and 296, which require fairness and consistency in administrative action.

4. Inaccurate Assertion of “No Evidence”
The President claimed the petition lacked evidence. Yet the petition listed dates, referenced a letter from the Chief Justice, named affected judges, and identified Justice Senyo Dzamefe as a witness. These are not bare allegations—they are specific and investigable.

5. Biased and Dismissive Language
The determination described the petitioner as a “self-acclaimed advocate,” accused him of leaking the petition without proof, and speculated on his motives. Such language betrays a lack of neutrality incompatible with the limited administrative role the President is to play.

6. Defence Instead of Deliberation
The President’s response read more like an apologia for the Chief Justice than an objective threshold screening. He justified her reconstitution of panels and administrative directives, instead of asking whether those actions, if abused, could constitute misconduct.

7. Contradiction of Agyei-Twum Precedent
The determination held that reconstituting panels or transferring judges cannot constitute misbehaviour. But Agyei-Twum makes clear that even administrative acts can ground a removal petition if they amount to abuse of office. The President’s interpretation conflicts with binding precedent.

8. Improper Disqualification Based on Legal Interpretation
The President dismissed several claims on the grounds that the petitioner misunderstood legal principles. But a legal argument’s correctness is not the test at this stage. The question is whether, if true, the alleged conduct raises serious constitutional or ethical concerns.

9. Council of State’s Prejudgment
The Council of State advised dismissal almost immediately after the petition’s filing—and a member publicly described the petition as “stupidity.” This taints the consultative process and raises doubts about its impartiality, which is essential under Article 146.

10. No Basis for Res Judicata
Res judicata applies to final judgments rendered by competent judicial bodies after hearing both sides. This determination was neither judicial nor deliberative—it was an administrative screening marred by legal and procedural flaws. It binds no one. It is an example of what Presidents must not do!

11. Danger to Judicial Accountability
Allowing this flawed determination to stand unexamined would send the wrong message: that even serious allegations against the judiciary’s highest officer can be dismissed without inquiry. That undermines not just the Constitution, but public confidence in the rule of law.

BAI/AE

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