CAN THE NOW REMOVED CHIEF JUSTICE STILL BE AT THE SUPREME COURT BENCH?
I shall address the following issues
1. Whether a non-justice of the Supreme Court can be appointed as the Chief Justice
2. Whether the Chief Justice must first be a justice of the Supreme Court or a justice of the superior court to qualify as a chief justice.
3. Whether the REMOVED CJ, can still be at the Supreme Court Bench?
Now, what is the position of the law?
Article 144(1), of the 1992 Constitution of Ghana, provides that “The Chief justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament”.
Article 144(2), of the same Constitution further provides that “The other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial council, in consultation with the council of state and with the approval of parliament”.
Article 128(1) of the 1992 Constitution goes ahead to provide that “The Supreme Court shall consist of the Chief Justice and not less than nine other Justices of the Supreme Court.
Under Article 128(4) of the 1992 Constitution, “A person shall not be qualified for the appointment as a Justice of the Supreme Court unless he is of high moral character and proven integrity and is of not less than fifteen years standing as a lawyer”.
Article 146(1), Constitution 1992, states “A Justice of the superior court or a chairman of the Regional Tribunal shall not be removed from office except for stated misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind”.
On the question of [Whether a non-justice of the Supreme Court can be appointed as the Chief Justice]-
The position of the law (Supra) [Article 144(1), Constitution 1992, provides that “The Chief justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament] is trite that, any lawyer in practice who is fifteen years or more can be appointed as a Chief Justice whether he or she is a judge already or not. The qualification criterion did not mention that the person must be appointed from amongst members of the Bench. In practice, we have witnessed several instances where non judges such as those in academia, private practice etc. have been appointed to the benches of the superior courts in Ghana.
Now, on the issue of [Whether the Chief Justice must first be a justice of the Supreme Court or a justice of the superior court to qualify as a chief justice], the legal principle per Article 144(1), Constitution 1992, provides that “The Chief justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament”. It again went further to say in Article 144(2), Constitution 1992 that “The other Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial council, in consultation with the council of state and with the approval of parliament”.
From the above Articles in the constitution, it means that one need not be a justice of the Supreme Court or the superior court in order to qualify as a chief justice of the Republic of Ghana. Once you qualify under Article 128, the President can validly appoint you as the Chief Justice. However, since the inception of the fourth Republic, all Chief Justices’ have been appointed from amongst members of the Supreme Court Bench and so people are of the mistaken believe that to qualify as a chief justice, the person must have first served as a justice of the Supreme Court. This view, respectfully, is not grounded in any law. Presidents’ after presidents have adopted this practice out of mere respect for seniors at the bench.
Now, on [Whether the REMOVED CJ, can still be at the Supreme Court Bench?] – There are two schools of thought, some say because she was removed from office as a Chief Justice, then her earlier position as a Justice of the Supreme Court Bench will not be affected.
Others also say, upon her removal, she cannot revert to her previous position as the Supreme Court justice.
On the first school of thought:
With the greatest of respect, proponents of this school of thought have not been able to support their position or argument with any legal authority. Their views are more of common sense and a bit of emotions. In interpretation, Lawyers are taught that where the interpretation of a law may likely lead to absurdity, it should be avoided. In the case of those who say that the removed CJ can go back as a justice of the Supreme Court, citing that she was only removed as a CJ, such an interpretation to Article 146 of the constitution 1992 will lead to absurdity on the basis that for example [assuming the CJ was removed from office for a stated misbehavior like “bribery” and then later she’s asked to go back and work as a Supreme Court justice and she’s empaneled to sit on a matter, are we by this assertion implying that Justice will be seen to have been done? Certainly, not. [emphasis mine]
Again, Article 146 applies to justices of the superior courts in Ghana, and the framers of the law did not exclude the chief justice from that process which means that the Chief justice in ordinary sense is a justice of the superior court and therefore cannot come back to sit at the bench after going through Article 146 unsuccessfully. See the case of “Frank Agyei-Twum Vs. Attorney General.
Also see the case of Peter Utter Dery Vs. Tiger Eye P.I.
In conclusion, it is my considered view that the now REMOVED CHIEF JUSTICE cannot hold herself as a justice of the Supreme Court and therefore cannot go back there to work as any attempt to interpret Article 146 to tie it to only the office of the chief justice will lead to absurdity.
The writer, Clement Opoku Gyamfi is a private legal practitioner, football administrator and an activist.
