By Stephen Apolima
Date: 27th March, 2025
Introduction
Ghana’s legal community is embroiled in a heated debate over the interpretation of Article 146 of the 1992 Constitution, following petitions seeking the removal of Chief Justice Gertrude Torkornoo. The controversy centers on whether the Chief Justice has the right to receive copies of the petitions and respond before the President and the Council of State assess whether a prima facie case exists.
At stake is a fundamental constitutional question: Does due process require the Chief Justice’s input at this preliminary stage, or does the Constitution’s silence on the matter suggest that no such obligation exists? The issue has drawn responses from key legal figures, including Chief Justice Torkornooherself, petitioner Prof. Kweku Azar, and prominent lawyer Thaddeus Sory. Now, the Supreme Court is set to determine whether the current procedure violates principles of fairness or remains consistent with constitutional intent.
Background: The Petitions and the Chief Justice’s Response
On March 25, 2025, the Presidency announced that three separate petitions seeking the removal of Chief Justice Torkornoo had been submitted and referred to the Council of State in accordance with Article 146(6) of the Constitution. The details of the petitions have not been made public, but they reportedly contain allegations concerning her conduct in office.
Two days later, Chief Justice Torkornoo formally wrote to the President, the Council of State, and other judicial authorities, requesting copies of the petitions and the opportunity to respond before any further action. In her letter, she outlined several key arguments:
First, she contended that natural justice demands her right to be heard (audi alteram partem) before a decision is made on whether the petitions disclose a prima facie case. She also pointed out that in previous cases involving judges, the accused was granted access to the petition at this early stage. Finally, she cited the Agyei-Twum v. Attorney-General decision as supporting her position that a judge’s response should inform the initial consultations on a petition.
However, Prof. Kweku Azar, one of the petitioners, countered this argument on social media. He maintained that the Constitution deliberately separates the preliminary filter stage from the full inquiry. Allowing the Chief Justice to respond at this stage, he argued, would collapse the two-stage processoutlined in Article 146 and risk turning a constitutional procedure into a political battle.
The Legal Battle: Assafuah’s Supreme Court Challenge
As the controversy deepened, Vincent Ekow Assafuah, the Member of Parliament for Old Tafo, took the matter to the Supreme Court. On March 27, 2025, he filed a suit challenging the President’s referral of the petitions without first notifying the Chief Justice. He claimed that this omission violated:
1. Article 23, which guarantees a right to fair administrative processes.
2. Article 57(3), which governs the President’s exercise of discretion.
3. Article 296, which prohibits arbitrary decision-making.
4. Article 146(6), which, he argued, implicitly requires that the Chief Justice be given a chance to respond before any consultations occur.
Assafuah’s suit immediately divided legal opinion. Thaddeus Sory, a prominent constitutional lawyer, dismissed it as legally unfounded. According to Sory, the text of Article 146(6) is clear: the President must consult only the Council of State at this stage, and there is no requirement to involve the Chief Justice before the prima facie determination. He further argued that Agyei-Twum v. Attorney-General did not mandate early involvement of the judge under scrutiny. In his view, due process is still protected because the Chief Justice would have a full opportunity to defend herself if a prima facie case is established.
Legal Analysis: What Does the Constitution Say?
The Two-Stage Process Under Article 146
Article 146 lays out a two-stage process for removing a superior court judge, including the Chief Justice.
In the first stage, once a petition is submitted, the President refers it to the Council of State, which advises on whether it discloses a prima facie case. The Constitution does not explicitly state whether the accused judge must be notified or allowed to respond at this point.
If a prima facie case is established, the process moves to the second stage, where a special committee is set up to investigate the allegations. It is at this stage that the Chief Justice would be given a formal hearing and the opportunity to defend herself.
Key Precedent: Agyei-Twum v. Attorney-General
A crucial precedent in this debate is the Agyei-Twum v. Attorney-General case (2005-2006), where the Supreme Court ruled that a prima facie determination is a prerequisite before setting up an investigative committee. However, the ruling did not explicitly state whether the judge facing removal must be consulted before this stage.
The Chief Justice’s Natural Justice Argument
Chief Justice Torkornoo’s argument hinges on the principle of natural justice, which holds that no person should be condemned unheard. She argues that fairness requires that she be given a chance to respond before the Council of State deliberates.
Her opponents counter that the Constitution’s silence on this point is intentional. They argue that early involvement of the Chief Justice could politicize the process and undermine the purpose of the prima facie filter, which is meant to assess petitions objectively and without interference from the accused party.
Stakeholder Perspectives
The legal battle has sparked a broader debate on due process versus constitutional formalism.
The Chief Justice maintains that she must be given access to the petitions and the opportunity to respond before a decision is made. On the other hand, petitioners like Prof. Kweku Azarargue that early involvement undermines the Constitution’s carefully designed procedure.
Legal expert Thaddeus Sory insists that the law is clear and does not require the Chief Justice’s input at this stage. Meanwhile, MP Vincent Assafuah, through his Supreme Court suit, argues that the President’s failure to notify the Chief Justice violated due process principles.
Why This Matters
The outcome of this dispute has profound implications. It raises the question of whether strict constitutional procedure should take precedence over broader notions of fairness. Additionally, some observers believe the Supreme Court challenge is a deliberate attempt to stall the process, while others see it as a necessary step to uphold transparency.
The case could also set a major precedent on the interpretation of Article 146, influencing how future judicial removal petitions are handled.
Conclusion: What Next?
The Supreme Court must now decide:
1. Whether Article 146(6) implicitly requires that the Chief Justice be given access to the petitions before consultations.
2. Whether MP Assafuah’s suit has legal merit or is simply a political maneuver.
As the case unfolds, the decision will either reaffirm the current two-stage process or reshape how judicial removals are handled in Ghana. As Thaddeus Sory aptly quoted from Acts 5:38, “If this counsel be of men, it will come to nought; if it be of God, ye cannot overthrow it.” In the end, Ghana’s legal system must balance constitutional fidelity with the principles of justice.
About the Author
Stephen. Apolima is a legal journalist with expertise in constitutional law and governance.
