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Opinions of Wednesday, 26 July 2017

Columnist: K. Badu

Akufo-Addo has done what Mahama could not do

It is being reported across the media landscape that President Nana Akufo-Addo has duly adhered to Article 146(3) of the Constitution of Ghana, and, referred a petition against the chairperson of the Electoral Commission to the Chief Justice to determine whether there is a prima facie case.

In his recent interview with the Accra based radio station, Kasapa, Mr Richard Nyama expressed disappointment over Ex-President Mahama’s refusal to refer the petition he ( Mr Nyamah) and his associates issued against Mrs Charlotte Osei to the Chief Justice for determination of a prima facie constitutional violation.

If we stroll down memory lane, somewhere in February 2016, Mr Richard Nyamah and his minions submitted a petition to Ex-President Mahama, in accordance with Article 146. The petitioners were requesting for the impeachment of the Chairperson of the Electoral Commission, Mrs Charlotte Osei over an alleged constitutional breach.

According to the petitioners, Mrs Charlotte Osei appeared to have breached the Constitution of Ghana, by virtue of holding another public office, together with her assigned role as the EC boss.

The petitioners contested that since Mrs Charlotte Osei refused to resigned from the Ghana Reinsurance Board, following her appointment as the chairperson of the Electoral Commission, she appeared to have violated Article 44(4) of the Constitution of Ghana.

Article 44(4) of the Constitution of Ghana stipulates: “The Chairman and the two Deputy Chairmen of the commission shall not, while they hold office on the Commission, hold any other public office.”

It would be recalled that Ex-President Mahama duly forwarded Mr Nyamah and his cohorts previous petition issued against the then chairperson of the CHRAJ, Mrs Lauretta Vivian Lamptey to the Chief Justice to ascertain an unobjectionable constitutional violation.

Consequently, the Chief Justice established a prima facie constitutional violation, and, Mrs Lamptey was impeached accordingly.

The all-important question then is: why did former President Mahama somehow turn a blind eye to the petition against the chairperson of the Electoral Commission, Mrs Charlotte Osei?

Interestingly, Article 146(3) is candid on our presidents obligation to act upon receipt of any petitions, contrary to the schools of thought somewhat sophistic bone of contention that the sitting presidents are not obliged to refer all petitions to the Chief Justice.

All the same, the 1992 Constitution of Ghana, to be precise, Article 146 provides interesting steps or measures that need to be taken in order to impeach a Justice of the Superior Court or a Chairman of the Regional Tribunal.

The Article (146) states: (1), “A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

“(2) A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.

“(3) If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

“(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State.

“(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President (The 1992 Constitution of Ghana).”

Patently, Ex-President Mahama was required by law to refer the petition brought against Charlotte Osei to the Chief Justice to determine whether there was a prima facie case.

Therefore, Ex-President Mahama had no excuse not to refer Mr Richard Nyamah’s petition brought against Mrs Charlotte Osei to the Chief Justice for determination of a prima facie case.

The crucial question then is: if, indeed, former President Mahama knowingly withheld the petition issued against Charlotte Osei, can we then infer that he violated the Constitution of Ghana?