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0 The Minister of Government Communications confirmed on Tuesday afternoon that the President, in consultation with the Council of State, has determined that there is a prima facie case for Chief Justice Torkornoo to answer in respect of three petitions submitted to the President seeking her removal from office. Following this determination, the President has, in accordance with Article 146(6) of the 1992 Constitution, established a Committee to hear the petitions. He has also, pursuant to Article 146(10) of the Constitution, suspended the Chief Justice pending the conduct of the hearings and the Committee’s report and recommendations.
A critical question that arises from these developments is this: should the Chief Justice be found guilty of the charges levelled against her and removed from office, or does she also forfeit her seat on the Supreme Court as a Justice of that Court? After all, she was first appointed a Justice of the Supreme Court before being elevated to the position of Chief Justice. So, shouldn’t there be a distinction between her role as Chief Justice and her position as a Justice of the Court?
This is a complex legal question that has not been directly addressed by the Supreme Court in the context of an Article 146 impeachment proceeding. However, the opinion of Justice Kpegah in Ghana Bar Association v Attorney General (“Abban case”) [1995-96] 1 GLR 596 may offer some guidance on the issue. In that case, the Ghana Bar Association filed a suit in the Supreme Court seeking a declaration that Justice Abban’s appointment as Chief Justice was unconstitutional. They requested a consequential order cancelling his warrant of appointment.
The GBA argued that Justice Abban lacked the high moral character and proven integrity required under the Constitution to be appointed as a Justice of the Supreme Court, and by extension, a Chief Justice. The Supreme Court dismissed the case.
In a lead judgment delivered by Justice Kpegah, he commented on the legal implications of granting the GBA’s relief, specifically, whether the cancellation of Justice Abban’s warrant of appointment as Chief Justice would have affected his continued membership on the Supreme Court.
He sated as follows:” Without mincing words, the ultimate result this action is intended to achieve for the plaintiff is the removal of the second defendant as Chief Justice of Ghana, and, as a fallout, a judge of the Supreme Court. The substratum of the plaintiff’s case, as we have stated earlier, is that the second defendant is not a man ‘of high moral character and proven integrity’ to be the Chief Justice; ipso facto, a judge of the Supreme Court since the qualifications are admittedly the same. For, if the second defendant is disqualified from occupying the post of Chief Justice on grounds of lack of integrity, I do not see how he can continue to be a judge of the Supreme Court.
“It will clearly be a contradiction in terms and an ambivalent position to take if one asserts otherwise. 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 that 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 a subversion of the Constitution.’ (Abban case, pp 655-656)”
At the centre of the Abban case were the basic qualifications required to be a Justice of the Supreme Court, and by extension, a Chief Justice. Under Article 128(4) of the 1992 Constitution, the qualifications of a candidate for the position of a Justice of the Supreme Court or Chief Justice are “high moral character and proven integrity” and having “not less than 15 years’ standing as a lawyer.”
In the current scenario of an impeachment proceeding under Article 146, the grounds for removal are stated misbehaviour, incompetence, or inability to perform the functions of the office due to an infirmity of body or mind. A comparison of the qualification and impeachment clauses shows that while the qualifying criteria or lack thereof, may sometimes intersect with some of the grounds for impeachment, they are not always synonymous. For example, a lack of high moral character and proven integrity may constitute stated misbehaviour, or a relevant factor in assessing it. Similarly, not being a lawyer of at least fifteen years’ standing could conceivably be an element of the impeachment ground of incompetence. However, in relation to a Chief Justice, the reverse may not always be true, because the existence of a ground for impeachment may not automatically mean that he or she has ceased to meet the basic qualifications of a justice of the Supreme Court. For instance, given that the Chief Justice’s responsibilities are primarily administrative and managerial, removal on grounds of being incompetent in performing the functions of Chief Justice may not necessarily implicate his or her legal qualifications and judicial competence as a justice of the Supreme Court.
In this regard, the opinion of Kpegah JSC in the Abban case must be approached with some caution. It is entirely conceivable that a Chief Justice could be removed from office on a ground that does not affect his or her basic qualification to serve as a justice of the Supreme Court. In such a case, there is no reason why removal as Chief Justice should automatically lead to removal from the Supreme Court bench as well.
In conclusion, there is no straightforward answer to the question of whether the current Chief Justice would automatically lose her seat as a Justice of the Supreme Court if removed from her role as Chief Justice. Justice Kpegah’s opinion in the Abban case certainly offers some guidance. However, his view would only hold true in the current scenario if the grounds for impeachment directly implicate the basic qualifications required of a justice of the Supreme Court. As it stands now, the specific charges levelled against Chief Justice Torkornoo in the petitions are not publicly known. Therefore, one cannot tell whether they are of such a nature that, if upheld, Chief Justice Torkornoo would also have forfeited her basic qualifications to be a Justice of the Supreme Court.
Suffice it to say, however, that if the charges are of such a character that she would no longer be qualified to remain on the Supreme Court if found guilty, then her removal as Chief Justice could indeed result in her removal from the bench as a Justice of the Supreme Court. On the other hand, if the charges do not go to the core of her qualifications as a Justice of the Supreme Court, then we may find ourselves in an uncharted constitutional territory where the guiding intervention of the Supreme Court may be required on her continued membership of that Court.
