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Opinions of Wednesday, 4 November 2015

Columnist: Stephen Kwaku Asare

Mahama's inaction on CHRAJ boss petition unacceptable

To guarantee the independence of the Commission on Human Rights and Administrative Justice (CHRAJ), Article 146 of the Constitution sets out in clear details the process that must be followed to remove its Commissioners (see Article 228, stating that “The procedure for the removal of the Commissioner and Deputy Commissioners shall be the same as that provided for the removal of a Justice of the Court of Appeal and a Justice of the High Court respectively under this Constitution).

Article 146 (1) provides that a CHRAJ Commissioner can only be removed for “stated misbehaviour or incompetence or on grounds of inability to perform the functions of his office arising from infirmity of body or mind.”

The removal process is triggered with a petition to the President, who is obliged to refer the petition to the Chief Justice to ascertain whether the petition establishes a prima facie case.

Sub-article 4 provides that “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.”

Sub-article (5) provides that the Committee “shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.” Under sub-article 10(b), where a petition has been referred to a Committee, the President may suspend the Commissioner. Lastly, sub-article 9 provides that “The President shall, in each case, act in accordance with the recommendations of the Committee.”

In September 2014, Messrs. Richard Nyamah and Annor Dompreh petitioned the President to remove CHRAJ Commissioner L. Vivian Lamptey following allegations that, among others, she incurred daily hotel costs of $5,000 for a 3-month period. The President immediately referred the matter to the Chief Justice who, after her immediate preliminary investigation, established a prima facie case that the Commissioner had engaged in serious misconduct, exercised serious misjudgment, abused her office and breached her fiduciary obligations.

Pursuant to sub-article 4, a 5-person Committee, headed by Justice Anin Yeboah was thus set up to conduct an in-camera investigation (other members are Justice A. A. Benin, Justice Mariam Owusu, Edwin Barnes and Brigadier General Fuseini Iddrisu).

In the interim, the President suspended the CHRAJ Commissioner, pursuant to his power under Article 146(10)(b). On September 30, 2015, the Committee completed its work and submitted its report to the Chief Justice who immediately, as required by the Constitution, forwarded it to the President.

Although Article 146(9) requires the President to act immediately upon the receipt of the report from the Chief Justice, he has inexplicably failed to act, in flagrant violation of both the Constitution and his oath of office.

Article 146 commands the President and others to act in the immediate tense. For instance, when Article 146(3) provides that “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,” it obligates the President to act immediately upon the receipt of a petition, not at some time in the future or at his leisure.

To interpret Article 146(3) as providing no time constraints, will empower the President to choose which petitions he acts on and effectively emasculate the petitioning process. In like manner, when Article 146(9) provides that, “the President shall act in accordance with the recommendations of the committee,” it obligates the President not just to act in accordance with the committee’s recommendations but to do so as soon as the President receives the report. Whether thePresident agrees or disagrees with the recommendations is an entirely irrelevant consideration.

If the report has exonerated the Commissioner then she must be reinstated and her suspension revoked. On the other hand, if the report has found that she has engaged in misbehavior then she ought to be removed and a new Commissioner appointed.

What is clearly unacceptable is for the President to act as if the Committee’s report is just another document on his “to do list” while the CHRAJ Commissioner serves her suspension and the nation moves on to other issues! There is no justification for the President’s inaction thirty-five (35) days after receiving the report. In fact, he is violating the Constitution!