REMOVAL OF CHIEF JUSTICE UNDER ARTICLE 146 HEARINGS- WHY A CHIEF JUSTICE OR JUSTICE OF A SUPERIOR COURT OF JUDICATURE IS DISABLED FROM RESIGNING OR RETIRING DURING THE PENDENCY OF ARTICLE 146 PROCEEDINGS – LEST WE FORGET!

But to begin with, it is important to remind ourselves that we are dealing with our national constitution, not an ordinary Act of Parliament. It is a document that expresses our sovereign will and embodies our soul. It creates authorities and vests certain powers in them. It gives certain rights to persons as well as to bodies of persons and imposes obligations as much as it confers privileges and powers. All these duties, obligations, powers and privileges and rights must be exercised and enforced not only in accordance with the letter, but also with the spirit of the Constitution. Accordingly, in interpreting the Constitution, care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other.” Acquah JSC (as he then was) in NMC v Attorney-General[1]

But the crux of the matter is that, “judges like ordinary citizens, who dispense justice to others should not be denied justice” when it concerns them as happened in the case of the Applicant” Jones Dotse (JSC) in The Republic v the Chief Justice of the Republic of Ghana, the Attorney General, Ex Parte Justice Kwame Ohene-Essel[2]

Introduction

The Chief Justice is the head of the Judiciary under the legal architecture of Ghana. He or she performs both judicial and administrative functions. He or she heads one of the three arms of Government in our democracy. Professor Sir Kofi K. Kumado in his book “A Handbook of the Constitutional Law of Ghana and its History”, said, “The Chief Justice is the head of the Judiciary, and as the Chief Executive Officer is responsible for the administration and supervision of the Judiciary. So, the Chief Justice combines both the offices of a judge and an administrator.”

Ever since the news about the petitions seeking to remove the learned Chief Justice broke and the events thereafter, some concerns have been raised by Ghanaians. Some have attributed the petition for her removal as politically motivated, others argue otherwise. Some have gone to the extent of positing that, it’s part of the attempts to capture and control the Judiciary. The minority members of Parliament have suggested that the steps taken by the President to suspend the learned Chief Justice, is nothing short of a brazen judicial coup, a reckless abuse of Executive power and a direct assault on the independence of Ghana’s Judiciary.[3] In recent times some commentators have even advised, although unsolicited, or in the Authors view, oblivious of the consequences for such a step, that she should resign from office and be free. Lawyer Martin Kpebu[4] has for instance called on the Chief Justice to resign arguing that she should step down from office, that her resignation would best serve the national interest and protect the integrity of Ghana’s democracy[5]. Dr. Nyaho Nyaho Tamakloe[6] has also waged into the controversy and said that if he were the Chief Justice, he would resign[7]. Mr. Franklin Cudjoe[8] also on 31^st May 2025 sought to advise the Chief Justice to abandon her legal rights following the Supreme Court’s dismissal of her injunction application[9]. It is the view of all these persons that it may be better for the Chief Justice who has been suspended to resign to save her face. These views are expressed, although they may be with good intentions, without any basis in law and benefit of constitutional jurisprudence.

The Author in this article suggests that the Chief Justice once the proceedings have commenced under Article 146 does not have the right to resign from office and even if such an attempt is made, the President may decide not to accept that resignation and that decision will be fortified in law some of which will be the focus of this paper. Aside the refusal of the President to accept the resignation, a Justice of a Superior Court of Judicature who resigns or retires voluntarily during the proceedings stands to lose his or her otherwise constitutionally guaranteed entitlement upon retirements.

Appointment of the Chief Justice under the Constitution 1992.

The appointment of the Chief Justice is regulated by Law. The Chief Justice shall subject to the Constitution be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.[10] By virtue of the position, the Chief Justice is a member of all the Superior Courts of Judicature, the Supreme Court[11] where he or she presides once on the panel and with not less than nine other Justices of the Supreme Court, the Court of Appeal which consists of the Chief Justice[12] and subject to clause 2 and 3 of Article 136 not less than ten other Justices of the Court of Appeal[13], the High Court which also shall consist of the Chief Justice[14] and not less than twenty Justices of the High Court.[15] Having set the background, the Author deals with the appointment of the Chief Justice.

According to the 1992 Constitution, the Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament.[16] The power to appoint a person as a Chief Justice therefore resides in the President who is the Head of State and Head of Government and the Commander in Chief of the Ghana Armed Forces[17] in whom the executive authority of Ghana is vested and same exercised in accordance with the provisions of the Constitution.[18] The exercise of the executive authority of Ghana shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by the 1992 Constitution.[19] In practice, the President makes a nomination for the position of the Chief Justice in consultation with the Council of State and the nominee is submitted to Parliament for vetting as a sine qua non for approval. The practice which seems to have almost crystalised into law is that the Chief Justices under the 4^th Republic have been appointed from members of the Supreme Court bench, but being on the Supreme Court is not a requirement for the appointment, although the Author thinks it is desirable for obvious reasons.

Some commentators have argued, and the Author sees reason in that view, that it may be worth considering appointing the most senior Justices on the Supreme Court bench as the Chief Justice whenever there is a vacancy. The learned Kwaku Ansah Asare[20] has for instance argued that “…We have a seniority system. But the President (at the time) skipped the topmost judges and appointed someone else. That undermines the judiciary.”[21] While the Author shares the view on the issue of seniority, it is also a fact that, this is not the first-time appointment of the Chief Justice has been made in this manner disregarding seniority. After all, the Constitution provides that the most senior acts in the absence of the Chief Justice or his or her inability to perform the functions of the office. This in the Author’s view is a presumption that the most senior is capable of being a chief justice. It is provided that, “Where the office of the Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of his office – (a) until a person has been appointed to, and has assumed the functions of, that office; or (b) until the person, holding that office has resumed the functions of that office; as the case may be, those functions shall be performed by the most senior of the Justices of the Supreme Court.” The Author shares the view and argues that, if a person is competent to act as Chief Justice in the absence of the Chief Justice, it is inconceivable why that same person with the same competences cannot be made the substantive Chief Justice. This takes the appointment of the Chief Justice out of the hands of the Political Class and largely limits the Executive only to the appointment of the most senior at any point in time, unless there is a tangible reason why the most senior cannot be appointed as substantive.

Security of Office of the Chief Justice and Justices of the Superior Courts of Judicature

It is imperative to provide a historical perspective as to the reason for the security of tenure afforded the Chief Justice and other Justices of the Superior Courts of Judicature. In the first Republic, the first African Ghanaian Chief Justice, Sir Arko Korsah was dismissed by the President Dr. Kwame Nkrumah[22] after the trial of the suspects involved in the Kulungugu Bomb Attack on the life of Dr. Kwame Nkrumah. In discussing the independence of the Judiciary, the learned Bimpong Buta, in his book, the Role of the Supreme Court in the Constitutional Law in Ghana at page 44 said, “In discussing the issue of the independence of the Judiciary, one tends to think of interference emanating from or committed by the executive arm of government by direct and indirect act or conduct. Such interference may be defined to include intimidation by die-hard supporters of the ruling government….” The learned Bimpong Buta in his said book narrates that, “An example of a summary dismissal by the Nkrumah regime arose after the decision of the Special Criminal Division of the High Court (coram Sir Arku Korsah CJ, Van Lare and Akufo-Addo JSC) in the case of State v Otchere. The Court in this case after hearing and reviewing the evidence, acquitted and discharged the third, fourth and fifth accused persons of the offences of conspiracy to commit treason and treason. The decision was subsequently declared as “of no effect” by the Special Criminal Division Instrument, 1963 (EI 161), issued by the government.” He continues thus, “And two days after, President Nkrumah in exercise of his powers under article 44(3) of the Constitution, 1960 summarily dismissed Sir Arku Korsah, the Chief Justice from office. There is no doubt that all the actions taken by the Nkrumah regime in respect of this criminal trial and its aftermath, constituted gross interference with the judicial process, albeit taken in accordance with the prevailing law. The truth, however, is that all the actions taken were politically motivated and draconian.” The case of State v Otchere[23] had to do with the trial of the suspects in the Kulungugu incident. It is the Author’s view that, it is to avoid such tendencies that the Constitution 1992 has provided safeguards to protect the Justices of the Superior Court and given them security of term until they retire or subject to proceedings under Article 146 of the 1992 Constitution.

The Chief Justice and the other Judicial Officers, especially at the Superior Court, enjoy security of tenure which is guaranteed by the Constitution. And made provisions to ensure that the judiciary is insulated from such tendencies as well as granting some form of immunity including Article 127 (3) of the 1992 Constitution which provides that, “A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power.” The framers of the 1992 Constitution knew the lacuna and sought to rectify it by ensuring that measures are in place to prevent the recurrence of the incident in Chief Justice Arku Korsah.

Vacancy in the Office of the Chief Justice

Nature, they say abhors a vacuum, and the office of the Chief Justice is not occupied for life. The law acknowledges that the office may be vacant or the occupant may not be willing to stay in the office beyond a certain point or till they retire. The law provides that, “Where the office of Chief Justice is vacant, or where the Chief Justice is for any reason unable to perform the functions of his office – (a) until a person has been appointed to, and has assumed the functions of, that office; or (b) until the person, holding that office has resumed the function of that office; as the case may be, those functions shall be performed by the mist senior of the Justices of the Supreme Court.” The office of the Chief Justice may become vacant upon the resignation, retirement[24], suspension[25] or removal of the substantive Chief Justice in accordance with law[26]. The Constitution provides that, “A Justice of Superior Court or a Chairman of a Regional Tribunal shall vacate his office (a) in the case of a Justice of the Supreme Court or the Court of Appeal, on attaining the age of seventy years;….” A procedure for resignation is provided by the law thus, “A Justice of the Superior Court of Judicature or a Chairman of a Regional Tribunal may resign his office by writing signed by him and addressed to the President.”[27]

Why we are where we are

Some Ghanaians[28] have petitioned the President to remove the Chief Justice on allegations of incompetence, misconduct and inability to perform the functions of her office, the contents and merits of which petitions the Authors restrains himself from commenting. The law is that Justice of the Superior Court or 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.[29] The Constitution provides for the procedure for the removal and same is strictly done in accordance with the provisions of Article 146. In the case of Ghana Bar Association v Attorney General[30] (The Abban case), the Ghana Bar Association sought to challenge the appointment of the then Chief Justice Honourable Isaac Kobina Abban on grounds that he is not of a high moral character and proven integrity, from matters that arose from the case of New Patriotic Party v Attorney-General[31] (31^st December case) and the case of the Republic v Mensah Bonsu; Ex Parte Attorney-General and Others[32] (famously called the page 28 case). The Supreme Court refused and pointed to the fact that the only process for the removal of the Justices of the Superior Court was in accordance with Article 146. The apex Court speaking through Edward Wiredu JSC (as he then was) said, “ We of the judiciary have our limitations under the Constitution 1992 and the judiciary as the repository and watchdog of it, and enjoined to enforce and defend same, must be the first to respect the new legal order and not to clothe it with powers it does not possess. Each one of us as a judge, like the President as the executive head of State, members of the Council of State, and members of Parliament have all sworn to uphold and defend the Constitution. We are all subject to constitutional supremacy. We should not by any means open the floodgates so wide as to circumvent what is not properly cognizable in the courts under the Constitution. The court does not have original concurrent jurisdiction with the body empowered to exercise jurisdiction on matters properly falling within the parameters of article 146 of the Constitution 1992. We as judges must not arrogate ourselves powers, we do not have. We must jealously guard against any attempt to erode the powers constitutionally vested in the court by any person. We should recognize the limitations imposed on our powers by the Constitution 1992”. For his part, Kpegah JSC said thus, “I am firmly of the view that the undeclared intention of the plaintiff is to impeach the second defendant not only as Chief Justice but also as a Judge of the Supreme Court by using the judicial process. For if we should declare that the second defendant is not a man of “high moral character and proven integrity” to occupy the position of Chief Justice, we would also equally have declared he is not fit to be a justice of the Supreme Court; not having the basic qualification for such a position either. This invidious scenario is not supported by the Constitution 1992. Constitutional lawyers will describe such a prospect as “unconstitutional and subversion of the Constitution.” The procedure for the impeachment of a Chief Justice, a Judge of the Superior Courts, or a Chairman of a Regional Tribunal is clearly and unambiguously spelt out in article 146 of the Constitution 1992….” The procedure for the removal is the one provided in Article 146 without more. A Justice of a Superior Court cannot be removed except in accordance with Article 146. In the case of a petition for removal of other Justices of the Superior Court of Judicature, the President upon receipt of the petition, shall refer the petition to the Chief Justice whose duty it is to determine whether there is a prima facie case against the Justice in respect of whom the petition is filed.[33] Two issues are clear from here, the Chief Justice must make that determination before the petition proceeds to the next stage, failing which the petition will be dismissed. Secondly, the President serves only as a conveyor belt[34] and therefore has nothing substantial to do with the merits of the petition at that time. In respect of a petition for the removal of a Justice of the Superior Court, “where the Chief Justice under Article 146(3) decides that there is a prima facie case, the Chief Justice shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunal 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.[35] This Committee so established shall go into the complaint and investigate and make its recommendations to the Chief Justice who shall forward same to the President.[36] The committee may make a recommendation after the hearing which recommendation may either be for the removal of the said Justice of a Superior Court or the dismissal of the petition.

Regarding the removal of the Chief Justice, the Constitution provides that, “Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor members of Parliament, nor lawyers.”[37] The express wording of Article 146(6) supra did not make any provision for a prima facie determination by the President before setting up of the committee under article 146. The prima facie requirement into Article 146(6) was supplied into article 146(6) after the case of Agyei Twum v Attorney-General & Bright Akwetey[38] in which case the said provision was up for interpretation and the Supreme Court so construed. In Agyei Twum v Attorney-General & Bright Akwetey, the 2^nd Defendant a lawyer had on the 15^th January 2006 petitioned His Excellency President J.A. Kuffour for the removal from office of the Chief Justice at the time, Hon. George Kingsley Acquah on grounds of judicial misconduct and abuse of his office. On the 9^th March 2006, the Press Secretary issued a statement to the effect that the President was setting up a committee to inquire into the petition, whereupon the Plaintiff issued a writ in the Supreme Court for reliefs by way of declarations including for purposes of this piece, that ……(iii) the appointment of a committee of inquiry into the petition by the second defendant would constitute interference with the independence of the judiciary and thus infringe the said article 127(1) and (2) of the Constitution, (iv) a declaration that article 146(6) of the Constitution should be construed concurrently with article 146(3) and (4) which required the establishment of a prima facie case before the setting up of a committee to investigate complaints against a Justice of a Superior Court because the Chief Justice was first and foremost a Justice of the Superior Court….

In consideration of the issues on article 146(6) Dr. Date-Bah JSC said among, “I believe that it is necessary to read article 146 as a whole and to make explicit within the penumbra of the language employed in article 146 (6). I do not believe that the framers of our Constitution would have intended a procedure which lends itself to manipulation and to interference with the independence of the Judiciary in terms of article 127 of the Constitution.”

Prof Modibo Ocran JSC on his part delivered himself thus, “There is the need to insulate the Chief Justice from frivolous petitions while insisting on transparency and accountability in the execution of his functions. Beyond that general statement, there is article 146(9), a clause which is easily overlooked, but which makes the finding of a prima facie case even more compelling in the case of the Chief Justice… The states are very high in the case of the committee findings on the Chief Justice. And if you consider that an article 146(6) committee unlike an article 146(4) committee, consists of a majority of lay persons who may have little or no experience in quasi-judicial fact-finding and deliberations, you will appreciate how critical it is for an experience body to make a prior determination of a prima facie case before an article 146(6) committee is called upon to do its work. Even the work of an article 146(4) committee, whose conclusions presumably are mere recommendation to the President, must be preceded by a prima facie determination by the Chief Justice, who of course is a seasoned lawyer.”

Upon the receipt of the petitions for the removal of the Chief Justice Hon Gertrude Araba Esaaba Sackey Torkornoo, The President submitted same to the Council of State for a prima facie determination.[39] The Council of State returned with a prima facie determination.[40] The President has proceeded to establish a committee in accordance with the Constitution to investigate the petitions against the Chief Justice.[41] The Author notes that, as far as the law is concerned, it is difficult to fault the President for breaching any law or principle known to law under Article 146 in the steps taken so far. The Committee established under Article 146(6) and chaired by His Lordship Justice Pwamang, shall enquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.[42] At the hearing the Chief Justice is entitled to be heard in his or her defence either by him or herself or by a lawyer of his or her choice or any other expert of his or her choice.[43] To the Author’s mind, if for any reason a respondent Chief Justice is unable to attend the hearing, and his or her lawyer is present, business can be conducted unless his or her presence is a sine qua non for the day’s proceedings. Even so, the lawyer or whichever expert he or she chooses must be recognized by the Committee. The narrative in the public that the committee refused to recognize the lawyer of the Chief Justice in one of the proceedings because she was absent can be worrying when measured against Article 146(8).

The President is empowered by the Constitution to suspend the Chief Justice or any Justice of the Superior Court as the case may be when the petition is referred to the committee. The law, which is the law provides that, “Where a petition has been referred to a committee under this article, the President may – (a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice; (b) in the case of any other Justice of a Superior or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of Regional Tribunal.”[44] The President therefore activated Article 146(10)(a), acted on the advice of the Council of State and suspended the Chief Justice[45] and to the extent of the law, the Author does not think the President has breached any law by so acting under Article 146(10). When a person acts in accordance with the law, that act or conduct is protected by the law. The Author takes the view, that the President although advised by the Council of State could not be bound by the advice being an ‘advice’. The law is settled on the effect of an advice in the cases of, Ghana Bar Association and Others v Attorney-General and the Judicial Council,[46] Richard Dela Sky v Attorney General[47] Danso Acheampong v Attorney General[48] The Supreme Court[49] in the consolidated suit has said that, an advice remains an advice and not binding on the person to whom the advice is rendered, so the President could have exercised his discretion anyway. Such discretion is exercised in accordance with law, the exercise of which shall be deemed to imply a duty to be fair and candid, shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.[50] The operative word in Article 146(10) does not use “shall” but uses “may” and the effect of that is clear in the law. Although Article 146 (10) of the 1992 Constitution has been invoked and applied in respect of other Justices of the Superior Court of the Judicature, this instance is the first time the said Article 146(10) has been applied in relation to a Chief Justice of the Republic. All things are permissible, but not all things are beneficial, says the Holy Book.[51]

Can the Chief Justice Resign while the 146(6) Committee is in session.

It is the considered view of the Author that once disciplinary proceedings or impeachment proceedings under the law particularly Article 146 have been commenced against an employee, the freedom to resign or the option is limited and may not avail such a person. In some instances, it is advisable the employee resigns before the commencement of the disciplinary proceedings. When a person resigns before the commencement, such a person having resigned prior to the proceedings may not be subject to such proceedings because at the time such will commence, the said person is no longer a Justice of the Superior Court and cannot therefore be removed.

In employment law, the law presumes equality of parties between the employer and the employee, although the reality is that the employer wields more power than the employee. In the case of Kobea & Others v Tema Oil Refinery and Akomea Boateng & Others v Tema Oil Refinery[52] the Supreme Court had this to say in that regard, “At common law, an employee and his employee are free and equal parties to the contract of employment hence either party has the right to bring to the end in accordance with its terms…..” The employer-employee relationship is one of contract, with its terms and conditions. The contract is bound by legislation, foremost in this case being the Labour Act 2003 (Act 651) among others. The employment contract confers rights and imposes obligations by which the parties are bound. An employee is free to resign from employment subject to the terms and conditions of the contract. In the Kobea case cited supra, the apex court said, “Thus, an employer is legally entitled to terminate an employee’s contract of employment whenever it wishes and for whatever reason, provided only that he gives due notice to the employee or pay him wages in lieu…”

The Chief Justice since her issue came has been advised by many to consider resigning. Indeed, she alluded to that in her ‘address’ to the nation on 25^th June 2025[53]. In the said address she said, “…..I have heard on several occasions, from loved ones, persons who care, persons who may not know me beyond my public duties, and many who think that since it is clear that the current proceedings seems to be carefully staged to result in my removal as Chief Justice, it would be best if I just retired or resigned, rather than subject myself to an ill motived process…” She continued thus, “Furthermore, resigning or retiring while article 146 proceedings are being conducted to remove a judge is not an option any judge or public official is even allowed to have. There is a decided case on that subject by the Supreme Court. The suit number is J6/02/2019.”

Her Lordship the Chief Justice as seen above mentioned that there is a decision of the Supreme Court but fell short of mentioning same. The Author’s review of the case law shows that at least, the Apex Court has had the opportunity of pronouncing on this issue in a number of decided cases, implying some established jurisprudence in that area. In the of Amoah v Attorney-General[54] this issue came up as to whether a Justice of the Superior Court of Judicature in respect of whom proceedings in article 146 had commenced could resign from office. In that case, the Plaintiff, Justice Frank Kwadwo Amoah, who was appointed to the High Court from private practice. He served at various stations as a judge. In the year 2010, the learned Chief Justice received a petition against him alleging judicial impropriety for delivering a judgment in 2009 and later purporting in March 2010 to render a different or a separate judgment regarding the same case. Upon receipt the Chief Justice referred the matter to a Justice of the Court of Appeal to conduct further investigations into the allegations, which investigations confirmed the allegation which raised a case of misconduct against him. The Chief Justice referred the findings to the Judicial Council, which also tasked its Disciplinary Committee to inquire into the matter. The Judicial Council accepted the findings of its Disciplinary Committee and in accordance with the Constitution petitioned the President for the removal of the erring judge as a Justice of the Superior Court. The President after going through the petition, acting under article 146(3) of the Constitution referred the matter to the Chief Justice for a prima facie determination. Upon determining a prima facie case, the Chief Justice established a committee under article 146(4) to impeach the Plaintiff, the committee was composed of, His Lordship Dr. Justice S. K Date-Bah, (Justice of the Supreme Court) as Chairman, Mr. Justice G.M Quaye (Justice of the Court of Appeal), Mrs. Justice Cecilia H. Sowah (Justice of the High Court), Prof. Kofi Anyidoho, (English Department, University of Ghana) and Mr. Iddrisu Egala (Chartered Accountant and Chairman of the Central Tender Review Board).

Upon receipt of a notification of the establishment of the five-member committee in accordance with Article 146(4) of the 1992 Constitution to impeach him, the Plaintiff wrote to the Chief Justice giving notice of his intention to voluntarily retire from the Judicial service because he had been elected to be installed as a paramount chief of Assin Fosu. His reason for the decision was his election and impending installation as a chief and the fact that he had only nine (9) months to reach his retirement age, and the few remaining months will not change his circumstances in any way regarding retiring with full benefits. The Chief Justice referred the letter to the President. The President refused to accept the resignation and responded thus, “I regret to inform you that His Excellency the President is unable to grant your request of voluntary retirement, due to the notice of impeachment for misconduct served on you by Her Ladyship the Chief Justice. Besides, you failed to give adequate notice of your intention to retire voluntarily from the judiciary as required per Article 45(4) of the Constitution.” The Author suggests that the reference to article 45(4) should be 145(4) of the 1992 Constitution.

One of the issues before the Supreme Court relevant to this paper were “Whether or not His Excellency the President is bound to accept a request of a Superior Court Judge to voluntary retire from the Judicial Service at a time impeachment proceedings are pending against the said judge.” Another issue was, “Whether or not a Superior Court judge upon attaining the compulsory retiring age is amendable to impeachment proceedings.”

The Supreme Court in construing Article 146(3) of the 1992 Constitution said that, “We are of the opinion that the requirement of notification to the President is to enable him as the appointing authority to take steps to ensure that the judge seeking to resign does not have any pending disciplinary proceedings against him before going on voluntary retirement. This provision, in our view, accords not only with principle but common sense as well. The only question which arises from the said provisions is whether the President as has been complained to us in these proceedings by the plaintiff can refuse to give accession to the decision by a superior court judge to resign. We think that as the date the plaintiff notified the President of his intention to resign, there was disciplinary proceedings pending against him the President was not bound to accept same.” The Court therefore held that once there is an impeachment or disciplinary proceedings against the Plaintiff, he could not resign, or the President was right in refusing to accept the voluntary resignation. The Supreme Court continued thus, “We are equally of the opinion that had the President accepted the letter of resignation, its effect would be to undermine the carefully drafted disciplinary provisions in relation to superior court judges under the constitution. Accordingly, we are unable to yield to the plaintiff’s argument that the refusal was wrong; we hold that the President acted within the scope of the constitution and cannot therefore be said to have conducted himself unconstitutionally.” Situating the issue in employment law, the Court had this to say, “It must be pointed out that even under the common law, an employee who tenders his resignation to his employer is obliged to do so as the employer is obliged to do so as the employer may hold him accountable for any wrong done during his tenure. We note that the constitution does not expressly confer on the President the power to reject or accept the resignation of a judge but implicit in the power conferred on him to be notified by the superior court judge who intends to resign his office is the power to either accept or reject such a request. Reference is made in this regard to article 297 (c) by which it is provided thus: “In this constitution and any other law where a power is given to a person or authority to do or enforce the doing of an act or thing, all such powers shall be deemed to be also given as are necessary to enable person or authority to do or enforce the doing of the act or thing””. The Supreme Court on this point concluded thus, “A combined and purposive reading of articles 144(5) and 145(3) makes it tolerably clear that the President as appointing authority may either accept or refuse to accept any such request addressed to him. We think that any other interpretation will render the provision useless and ineffective and defeat the presumption that it was inserted to achieve a purpose….” By this decision therefore, as far back as 2015, the Supreme Court spoke clearly on the question whether it is open to a Justice of a Superior Court of Judicature to resign when impeachment processes have commenced in relation to him or her.

On the second issue, the court said that, “We have carefully given thought and consideration to the various articles in the constitution to which reference has been made in the course of this judgment and have come to the opinion that article 146 of the constitution deals with persons who are in the employment of the Judiciary as judges and does not apply to judges who have retired by operation of law compulsorily. We are of the view that as impeachment proceedings are for purpose of removing a serving judge from employment on clearly stated constitutional grounds, it is unreasonable to impute to the law maker that the provision was intended to apply to retired judges as well. A judge who has compulsorily retired is clearly outside the scope of article 146. The operative words, which describe the consequence of impeachment as provided in article 146 “shall be removed from office” render any ither interpretation of the consequences of retirement on the impeachment process not only unreasonable but an abuse of language.”

The Author is therefore of the view and fortified in the law, that the door is resignation or early voluntary retirement is closed to a Justice of the Superior Court, the Chief Justice included, a fact she is not oblivious of and she was emphatic on that at page 8 of her address to the press on 25^th June 2025.[55] Before proceeding further, the Author notes some key characters or actors in the case of Amoah v Attorney-General discussed above. Counsel for the Plaintiff in that case was the learned Godfred Yeboah Dame, former Attorney-General and one of the lawyers for Chief Justice Gertrude Esaaba Sackey Torkornoo in the Supreme Court in the case of Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo v The Attorney-General and 5 others[56], His Lordship Justice Paul Baffoe-Bonnie, the Acting Chief Justice, whose inclusion on the bench in the cases involving the current Chief Justice has been unsuccessfully challenged, was on the panel although the decision was unanimous and read by Anin Yeboah JSC (as he then was).

Retirements Benefits of a Justice of the Superior Court of Judicature vis a vis Article 146

The Author proposes under this head to discuss whether a person undergoing impeachment or disciplinary proceedings is entitled to retirement benefits under the law. The law provides as part of the security of tenure of justices of the superior courts that, “Notwithstanding the provisions of this Chapter, a justice of the Superior Court of Judicature who has attained the age of sixty years or above, shall on retiring, in addition to any gratuity payable to him, be paid a pension equal to the salary payable for the time being to a Justice of the Superior Court from which he retired where – (a) He has served for ten continuous years or more as a Justice of the Superior Court of Judicature, or (b) He has served for twenty years or more in the public service at least five continuous years of which were as a Justice of a Superior Court of Judicature, and upon retirement under this clause, he shall not hold any private office of profit or emolument whether directly or indirectly”[57]. In the absence of anything to the contrary a Justice of the Superior Court of Judicature of which the Chief Justice is the head is entitled to these benefits, unless there are legal impediments such as in the view of the Author, proceedings under the Criminal laws, Article 146 or any other disciplinary proceedings since it is trite that Article 146 is not the only procedure known to law for disciplining such justices.

In the speech of Chief Justice Gertrude Araba Esaaba Sackey Torkornoo, she said inter alia that, Again, no one has the authority to walk away from proceedings started by the state. Judgment can be entered against you because you failed to defend yourself. And a judge who resigns or retires would lose all entitlements because they failed to defend the claims and resigned or retired while the proceedings were going on. Therefore, if false claims are made against a Judge or any Commissioner or other public office holder subject to article 146 proceedings……… the solution cannot be to resign or voluntarily retire out of frustration, pressure or fear. One would only find themselves being subjected to two cruelties – a judgment based on false claims, and loss of everything that one has worked for…..” The issue of whether a Justice of the Superior Court of Judicature going through proceedings under Article 146 or any such will be entitled to full retirement benefits and gratuities under the Constitution has been pronounced on by the Courts in some judicial cases, some of which will engage the mind of the Author.

In the case of The Republic v the Chief Justice of the Republic of Ghana and Attorney-General, Ex Parte Kwame Ohene-Essel Rtd.[58] the Supreme Court[59] had the opportunity by way of reference under Article 130 of the 1992 Constitution to determine whether a person subject to article 146(3) and (5) is entitled to full benefits under Article 155(1) of the 1992 Constitution. Arising from the famous Anas Documentary on the Judiciary in 2015. A petition was sent to the Applicant to respond to an allegation against him. He was given an opportunity to watch the audio visual and study the petition. Upon establishing prima facie case, a letter was written to suspend the Applicant pending the impeachment. His suspension came with payment of half salary and other benefits in accordance with law. His lawyers wrote on his behalf to retire from the Judicial Service owing to failing health, which was rejected. The response insisted that he will retire at his retirement age of 65 on 23^rd August 2017. He was also informed in that letter that his retirement benefits will be withheld until the determination of the matter in the impeachment proceedings. He then commenced an action seeking to quash the retirement letter as unconstitutional and therefore lawful. The learned High Court Judge, Justice Gifty Adjei Addo decided to refer this issue to the Supreme Court for their interpretation, which issue was, “Whether or not upon a true and proper interpretation and or construction of Article 146 (3) and (5), the Applicant can be permitted to enjoy his rights under Article 155 (1)(b) of the 1992 Constitution upon his retirement by reason of age, when by reason of he exercising his constitutional right to challenge the prima facie case in court, proceedings under Article 146(5) of the 11992 Constitution could not be completed by the Respondent.”

In determining the issue of referral, the Supreme Court set out the criteria for benefiting from Article 155 thus, “The following criteria can be said to be the applicable guideline in determining the qualifications that a retiring Superior Court Judge must satisfy to enjoy the provisions of Article 155(1) as described by the cases referred to supra: – 1. Attainment of sixty years (60) or above”, 2. The second is that, the said Juddge must have worked for a continuous period of ten or more years as a Justice of the Superior Court or he must have served for twenty years (20) or more in the public service, out of which at least five continuous years must be as a Justice of the Superior Court of Judicature. 3. The Judge must be of high moral character and proven integrity. See Article 139 (4) of the Constitution 1992, 4. The said Judge must not be a convicted felon – see the unreported decision of Justice Edward Boateng…… “, the Author shall discuss the said case presently.

After analysis of the provisions and case law some of which have been discussed supra and other to be discussed infra, the Supreme Court reached a conclusion thus, “In view of all the above, we accordingly answer the question referred to us by the High Court in regard to Article 146(3) and (5) and 155 (1)(b) of the Constitution to wit: – Whether or not upon a true and proper interpretation and or construction of Article 146(3) and (5), the Applicant can be permitted to enjoy his rights under Article 155 (1)(b) of the 1992 Constitution upon his retirement by reason of age, when by reason of the exercising of his constitutional right to challenge the prima facie case in court proceedings under Article 146(5) of the 1992 Constitution could not be completed by the Respondent receives an affirmative answer from us….” Their Lordships continued, “In particular, we answer that the Applicant is entitled to all the pension and gratuity benefits as provided for under Article 155(a)(b) of the Constitution 1992 as are applicable to the Applicant…” The Author takes the view that the Supreme Court so held because the Applicant had taken steps to challenge the proceedings forming the basis of his referral under Article 146 proceedings which had not completed at the time of the suit or retirement. Had the facts been different, their Lordships in the Author’s view would have reached a different conclusion having regard to the criteria for benefiting from Article 155 as above.

Further in the case of Justice Edward Boateng v The Judicial Secretary, The Judicial Service and Attorney-General[60] the provisions that called for interpretation of the Supreme Court was Article 146 (10)(b) and Article 155. This case was also by reference from the High Court. Article 146(10)(b) provides that, “Where a petition has been referred to a committee under this article, the President may, in the case of a Justice of the Superior Court or a of a Chairman of a Regional Tribunal acting in accordance with the advice of the Judicial Council, suspend that Justice or Chairman of a Regional Tribunal”. Article 155(1) has been quoted supra, and the Author does not find it necessary to repeat same. This case involves a Justice of a Superior Court of Judicature who had been convicted for an offence involving dishonesty. In this regard the Court said, “We now proceed to the issue arising under article 155, the effect of which is that the plaintiff having retired on 31^st December 2011, without being impeached is entitled to pension and gratuity notwithstanding the undeniable fact that he was convicted on July 19, 2013, for an offence involving dishonesty. The said conviction, from the processes filed before us in the matter herein has not been set aside so for all purposes, the plaintiff is an ex-convict.” It was the view of the Supreme Court that, “We are of the opinion that in answering the question that arises under article 155(1) of the Constitution, we have to consider the effect of the said conviction and sentence on the status of the plaintiff as a Justice of the Superior Court. The undisputed facts are that while a serving judge, he was on May 10, 2005 served with a letter of interdiction and never resumed work until his retirement and conviction. In our view, from the date of his interdiction, he was not in continuous service and would in order to satisfy the situation envisaged in article 155(1) have to be restored to continuous service by virtue of an acquittal for the offence with which he was charged. Having been convicted of the offence, it meant that as at the date of his interdiction, his continuous service was brought to an end by an act that rendered him unqualified to continue to hold the office of a High Court Judge as provided for in the following words in article 139(4) of the Constitution. “A person shall not be qualified for appointment as a justice of the High Court unless he is a person of high moral character and proven integrity and is of at least ten years’ standing as a lawyer””….. The Court continued thus, “In our opinion, to remain in continuous and uninterrupted service such as would entitle a judge to pension and gratuity, such judge should not lose any of the qualifications required of him as a judge including “high moral character and proven integrity” which by his conviction the plaintiff no longer had. From the moment of his conviction, the plaintiff became a person “not of high moral character and proven integrity,” so to say. Having lost those very significant qualities that were a condition precedent to render him qualified for appointment as a judge, it is unreasonable to contend that notwithstanding the fact that his trial endured beyond the date when he compulsorily retired, his conviction cannot relate backwards. That is making a simplistic view of article 155(1) of the constitution. Such a view of the matter would defeat the fundamental principles underpinning our constitution including accountability, transparency and in particular as regards the imperatives of a judge like Ceasar’s wife, living above suspicion. We have to remind ourselves that special provisions made for Justice of the Superior Courts are an acknowledgment of the very important role that we have to play in our constitutional dispensation and society expects a high standard of behaviour in return as exemplified in the qualifications for office contained in article 128(4), 136(3) and 139(4) of the Constitution…..” In concluding the judgment, the Apex court said, “In view of the above, our response to the second question which arise by implication under article 155(1) concerning the plaintiff’s conviction after retirement and his entitlement to pension is that he is not entitled to gratuity and pension.” In essence the plaintiff was held not to be entitled by virtue of his conviction.

The last decision the Author proposes to discuss is the case of Mr. Justice Kwame Ansu-Gyeabour (Rtd) v The Chief Justice and Attorney-General[61] which discussed the issue of whether a Justice of the Superior Court of Judicature going through a stalled impeachment process under Article 146 of the 1992 Constitution is entitled to his or her retirement benefits under Article 155 of the 1992 Constitution upon his or her compulsory retirement. The Supreme Court held in this case that, to the extent that the impeachment processes had been stalled not at the instance of the Justice of the Superior Court at the time of his compulsory retirement, his entitlement under Article 155 could not be withheld and withholding same will be unconstitutional and an attempt to re-write the Constitution, which is not the mandate of the Supreme Court in the interpretative functions as Professor Kludze JSC reminds us in the case of Republic v Fast Track High Court Accra, Ex Parte Daniel[62] that, “We cannot, under the cloak of constitutional interpretation, rewrite the Constitution of Ghana. Even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the law-giver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution.”

In the case of Ansu-Gyeabour, the Plaintiff, a retired Justice of the High Court, had by operation of law[63] retired at the compulsory age of 65 on 1^st May 2015 and therefore ceased to be a Justice of the High Court, subject only to an extension for not more than six months as may be necessary to enable him deliver judgment or do any such thing in relation to proceedings that were commenced before him prior to attaining the compulsory retirement age.[64] At the time of his retirement he was a subject of an impeachment proceedings under Article 146 which had stalled, yet his retirement benefits under Article 155 had been withheld whereupon he commenced the instant action against the Chief Justice and the Attorney-General. The essence of his suit was that he had constitutionally retired after 12 years of service as a Superior Court Judge and therefore entitled to full benefits under Article 155, however the Chief Justice had unconstitutionally withheld his gratuity and end of service benefits since he retired on 1^st May 2015. The basis for the withholding of his entitlement was that there was a pending impeachment proceeding against him before his compulsory retirement became due and until the determination of the impeachment, he would not receive his entitlement. According to the Plaintiff, this unlawful conduct had deprived him of his legitimate livelihood and hence the action. His writ sought reliefs including a declaration that having worked as a High Court Judge and retired compulsorily, he could not be subject to any constitutional procedures for his removal, a declaration that the withholding of his gratuity and retirement benefits on the orders of the Chief Justice since 1^st May was unconstitutional among others. In their joint statement of defence, the Chief Justice and Attorney-General contended that the Plaintiff was facing impeachment proceedings before his retirement age, but he had employed delay tactics or judicial gymnastics to frustrate the completion of the process. According to the Defendants, the Plaintiff frustrated the process by deliberately failing to prosecute his appeal before the Court of Appeal against the judgment of the High Court that had dismissed his complaint against his impeachment. The Plaintiff (Justice Ansu-Gyeabour) denied and contended inter alia that he did not seek any stay of execution of the judgment of the High Court pending his appeal, but the Adinyira Committee, under Article 146 of the 1992 Constitution never invited him for the commencement of the impeachment proceedings after the dismissal of his case by the High Court. According to the Plaintiff, there was no such ‘Justice Adinyira Committee’ properly so called because at the time, the committee had lost two of its members through retirement and suspension more than three years before the Plaintiff retired. Justice R.K Apaloo, a member of the Committee voluntarily retired as a Justice of the Court of Appeal three months after establishing the committee, Justice Charles Quist also a member of the Committee was implicated in the Anas/Tiger ‘I’ PI expose and was himself on a suspension a couple of years before the Plaintiff’s compulsory retirement age, both members were never replaced by the Chief Justice. To his mind, therefore there was no such committee conducting his impeachment processes and hence the withholding of his entitlement was unlawful. The Supreme Court noted that the issues raised in the Ansu-Gyeabour case were the same as arose in the Amoah v Attorney-General case supra, although the Author notes the facts are distinguishable. For instance, in the Amoah case, the affected Justice sought to voluntarily retire before his retirement age, while in the Ansu-Gyeabour case, the affected Justice had mandatorily retired by operation of law. The Court remarked in this regard that, “From the submissions of plaintiff, there were no ongoing impeachment proceedings against him at the time his retirement became due, so the conclusion of this Court in the Amoah case (supra) as to how proceedings under article 146 could follow a superior court judge into retirement does not apply to him”. On the allegation by the Defendants that the Plaintiff had delayed the impeachment proceedings, the Court found that as unproved when it said thus, “Judging from the circumstance of this case, as disclosed by the facts and arguments advanced by both parties in their various statements of case and legal arguments, can it be said that plaintiff deliberately employed legal processes to delay his impeachment so that he could retire to enjoy his gratuity and entitlement benefits without facing a possible removal from office? We do not think the defendants have been able to establish this fact…” The Court continued that, “We are firm in our conviction that the defendants could not make such a case. The facts before us do not disclose any conduct of the plaintiff that put unnecessary impediments in the way of the 1^st defendant in the discharge of her responsibilities under article 146(4) of the Constitution. Defendants could not show in any way that plaintiff was ever served with any notice to appear before the Justice Adinyira Committee for the continuation of the impeachment process after the dismissal of his suit by the High Court on 14^th March 2013 but refused to do so. This was the case because, with the voluntary retirement of Justice R.K Apaloo as far back as 1^st April 2011 and the suspension of Justice Quist somewhere in 2013, there was no functioning impeachment committee called the Justice Adinyira Committee as at the date the High Court dismissed the plaintiff’s suit up to the date of his retirement almost two years afterwards.” From the time the plaintiff’s suit was dismissed by the High Court and his compulsory retirement was (almost two years) no step was taken for his impeachment proceedings. The apex Court commented on that thus, “…We think two years is too long a time within which the 1^st defendant could have discharged her constitutional duty. The Plaintiff cannot therefore be faulted for the failure of the 1^st defendant to live up to her constitutional duty when the same constitution also obligates the plaintiff to retire within a specified period. We therefore hold that the inability of the Adinyira Committee to undertake to completion the impeachment process of the plaintiff was due to the inaction of the 1^st defendant but not any legal tactics employed by the plaintiff to frustrate the processes.” After a review of the case law and legislation relevant to the suit, the Supreme Court held, and the Author agrees that the plaintiff was entitled to his retirement benefit since there were no ongoing impeachment proceedings against him at the time of his compulsory retirement. The Supreme Court speaking through Yaw Appau JSC concluded thus, “To resolve the first issue therefore, we would say that in the circumstances of this case, plaintiff cannot be subject to proceedings under article 146 of the Constitution since at the time of his retirement, there was no existing impeachment committee in place that was investigating him but for his statutory retirement. In other words, there were no ongoing impeachment proceedings against the plaintiff at the time he reached his compulsory retiring age. Any attempt to interpret article 146 to rope in retired justices of the Superior Courts who were not hitherto undergoing continuous impeachment proceedings prior to their retirement would be tantamount to re-writing the Constitution. Our jurisdiction to refine legislation or constitutional provisions through judicial review does not permit us to rewrite the Constitution. That is not the trademark of purposive interpretation.”

The Ansu-Gyeabour decision therefore holds that, if at the time of the retirement or resignation, there is no active, ongoing impeachment proceedings against the Justice of the Superior Court of Judicature and the stalling of the process under article 146 is not at the instance of the said Justice, the proceedings could not be continued or pursued after the person has lawfully ceased to be a justice of the Superior Court, neither can the constitutionally guaranteed retirement benefits and entitlements be withheld on the account of a commencement but stalled impeachment proceedings under article 146 of the 1992 Constitution.

Recommendations

From the above discussions and current happenings with the current processes, the Author makes the following recommendations for consideration by the powers that be.

There should be timelines that guide or regulate the proceedings. There is currently no timelines for the conduct of proceedings under Article 146. What this means is that a proceeding can commence and one may not know when it will come to an end. When an employee is under interdiction or in this case suspension under Article 146(10) the person may lose certain benefits for the time being and so such proceedings must not go on ad infinitum. Indeed, in the case of Amoah v the Attorney-General and the Ansu-Gyeabour cases cited supra, such an issue was raised. The Committee under Article 146(3) and (5) had been established but proceedings were not going on for reasons including the death or retirement of a panel member. The Author is fortified in his view by the epilogue in the judgment in the case of the Republic v The Chief Justice of the Republic of Ghana & The Attorney-General, Ex Parte Justice Kwame Ohene-Essel cited supra thus, “It does appear that the administrative machinery put in place at the Judicial Service has been very slow in the pursuit of disciplinary proceedings against Judges. We can refer to the following, Justices Frank Amoah and Ansu-Gyeabour cases discussed supra. This will be the third one in succession. In order to stem the tide of this unhealthy development, this court recommends to His Lordship The Chief Justice to immediately put in place a control mechanism to regulate in future any impeachment proceedings that would be instituted under Article 146(4) and (5) of the Constitution by giving definite timelines within which the operate, bearing in mind the retiring date of the affected Judge….” It is regrettable that despite this admonition given over five years remains undone.

Enactment of Rules or Constitutional Instrument. It appears there are no clear rules that guide the proceedings under Article 146. It has been argued that the Commission of Inquiry (Practice and Procedure) Rules, 2010 (C.I 65) is applicable for proceedings of a Commission of Inquiry but a careful reading of C.I 65 will show that that C.I 65 was enacted for a specific commission or committee of inquiry and is not of a general application. In the case of the Republic v The Chief Justice of the Republic of Ghana & Attorney-General, Ex Parte Justice Kwame Ohene-Essel cited supra, the Supreme Court again it its epilogue said that, “Indeed, this court will urge the Chief Justice to pursue with all the command he can master the processes already commenced at the Rules of Court Committee aimed at formulating Rules of Procedure for the impeachment of all Article 71 office holders which are conducted under this Article 146 proceedings..” The Author notes that aside this indication in the above mentioned case, the Constitutional Review Commission 2011 recommended at page 254 of the report thus, “The Commission recommends that the Rules of Court Committee should within 6 months of the coming into force of the amended Constitution make Rules regulating the practice and procedure of a committee set up under Article 146 to investigate a petition for the Chief Justice, other Justices of the Superior Courts, and the members of the ICBs.”

It is also recommended that the appointment of the Chief Justice should be such that the hands of the Executive or Political Class are limited only to appointing the most senior Justices on the Supreme Court bench as the next Chief Justice when there is a vacancy. If most seniors can act in the absence of the substantive Chief Justice, it stands to reason that such a person is competent to take the position as the substantive Chief Justice, unless there is a reason why that cannot be. This avoids the consequences of Senior Justices being passed over by other justices who are considered juniors to them and all the challenges it portends. It also takes out political influence in the appointment of the head of such an important arm of Government whose independence and impartiality are one of its greatest assets if not the most important.

The law should be fleshed to provide an expansive mechanism for the removal of the Justices of Superior Courts of Judicature. The provisions in Article 146 appear scanty and inadequate in terms of certainty. It is also unclear what constitutes stated misbehaviour, incompetence and inability to perform the function of the office capable of removing such persons. If the rules are not clear, there will be more such petitions at the least opportunity. The Constitutional Review Commission led by the respected Professor H. Kwasi Prempeh and his team may look at these areas as part of their work towards a constitutional reform that is fit for purpose in our current situation.

It is also recommended that the composition of the persons who make up the two committees under Article 146 be given another consideration. When the petition is for the removal of a Justice of a Superior Court, Article 146 (4) of the 1992 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.” From the above, the committee is made up of three lawyers by necessary implication because the three Justices of the Superior Courts are obviously lawyers. However, when the petition is in respect of the Chief Justice, who is the head of the Judiciary, the composition of the committee has Justices of the Superior Courts in the minority. The Constitution 1992 in that regard provides in Article 146, (6) “Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President and three other persons who are not members of the Council of State, nor members of Parliament nor lawyers.” The members of the committee under clause 6 of Article 146 have lawyers in the minority of two. In the proceedings, there may be legal issues such as admissibility of evidence, relevancy, application of certain precedents and principles, among other legal technicalities. It is, without sounding disrespectful, unclear how the non-lawyers may appreciate such technical legal issues when they come up in Article 146 proceedings. It is recommended therefore that the majority of the members of the committee under Article 146(6) be lawyers, especially when the subject of proceedings being dealt with is Chief Justice and the Head of an independent arm of the Government, the stakes being higher.

In nation building and building a democracy, some of these issues are expected, institutions are tested, and one can only be hopeful the institutions stand to the test and emerge stronger. As the Author pens down these thoughts, the famous music by the legendary Osibisa[65] kept ringing in the ears and one cannot resist the temptation of reflecting on those lyrics as the Author concludes.

We are going, Heaven knows where We are going, We know we will….

We will get there, Heaven knows how We will get there, We know We will….

It will be hard We know, and the road will be muddy and rough, but We will get there,

Heaven knows how We will get there We know We will……”

Conclusion

In conclusion, the Author had set out to review the processes for removal of the Chief Justice of the Republic of Ghana and for that matter any other Justice of the Superior Court of Judicature. The invocation of the law in respect of the sitting Chief Justice has exposed some weakness in the law which must be fixed. It has also been argued that the law is settled and the Chief Justice or for that matter anyone found in a similar situation will not be to resign because the resignation may be refused once the proceedings have commenced with the consequence of one losing all that he or she has worked for.

[1] [2000] SCGLR 1 @ 11

[2] Reference No. J6/02/2019

[3] https://www.myjoyonline.com/minority-condemns-mahamas-suspension-of-chief-justice-as-judicial-coup/

[4] A private Legal Practitioner in Ghana

[5] https://www.modernghana.com/news/1402841/martin-kpebu-explains-why-chief-justice-torkornoo.html

[6] A founding member of the New Patriotic Party (NPP)

[7] https://www.facebook.com/TV3GH/videos/removal-of-chief-justice-if-i-were-justice-torkornoo-i-will-resign-dr-nyaho-nyah/24266976029571965/

[8] Founding President and CEO of IMANI Centre for Policy and Education

[9] https://citinewsroom.com/2025/05/give-up-the-fight-and-move-on-franklin-cudjoe-tells-suspended-cj/

[10] Article 125(3) of the 1992 Constitution of Ghana

[11] Article 128 (1) of the 1992 Constitution of Ghana

[12] Article 136(1)(a) of the 1992 Constitution of Ghana