FRANK AGYEI TWUM V. ATTORNEY-GENERAL (2006)
Supreme Court · WRIT NO. J1/7/2006 · 12 Jul 2006 · Ghana
CORAM
AKUFFO (MS) J.S.C. (PRESIDING), WOOD (MRS) J.S.C., DR. DATE-BAH J.S.C., PROF. OCRAN J.S.C., ANSAH J.S.C., ASIAMAH J.S.C., ADINYIRA J.S.C.FRANK AGYEI TWUM V. ATTORNEY-GENERAL
WOOD (MRS), J.S.C.
I have also had the benefit of reading the well reasoned opinion of my learned brother Dr. Date-Bah, J.S.C. I am in full agreement with him on the findings and conclusions reached on the substantive issues raised in this important constitutional matter.
As rightly found by him, the applicant is entitled to only the reliefs (iv), (v) and (vi) of his claim.
DR. DATE-BAH, J.S.C
Preliminary objection
Before dealing with the merits of this case, it is necessary to set out the reasons why this Court on 26th May 2006 rejected the second defendant’s preliminary objection to the composition of the Court.
At the first hearing of this suit, on 9th May 2006, the second defendant orally stated that he objected to the empanelling of this Court by the incumbent Chief Justice, since he had an interest in the outcome of this suit. The Court accordingly ordered him to file the grounds for his objection in writing and adjourned the case to enable this to be done and for the plaintiff to respond to the second defendant’s preliminary objection. The second defendant duly filed, on 15th May 2006, his written preliminary objection to the empanelling of the Supreme Court by the Chief Justice and the plaintiff responded to it in writing. After considering these written submissions, the Court dismissed the preliminary objection, on 26th May 2006, and indicated that it would give its reasons for the dismissal in its judgment on the merits of this case.
The crux of the second defendant’s objection is expressed in his written submission as follows (at p. 2):
“It offends against the rules of natural justice, equity and good conscience for the CJ in the peculiar circumstances of this case, to empanel the judges who will hear this case, which case is organically related to the performance of the duties of his office.”
The second defendant further develops this point in the following terms (at p. 3 of his submission):
“The principles of natural justice will be offended if the CJ becomes a judge in his own cause. He has the authority, both constitutional and statutory, to choose the panel, and the discretion to determine which of the judges would constitute the panel. But it would be more honourable, and a boost for the image of the judiciary, which image he (the CJ) has so badly dented with repeated and unsubstantiated allegations of corruption, if he invites the next most senior Supreme Court Judge, as provided for in Article 128(3) of the Constitution, to compose the panel for this case. That would give the lie to the Petitioner’s claim of judicial misconduct and abuse of office.”
Whatever may or may not be the moral or honourable thing for the Chief Justice to do, this Court’s concern can only be with the law and whether the Chief Justice is prevented by the law, as is, from empanelling the Court for this case. I interpret the second defendant’s claim, therefore, to be one that the Chief Justice is legally disabled from empanelling this Court because the common law doctrine of natural justice, particularly the principle of nemo iudex causae suae, overrides statutory and constitutional provisions. Indeed, the second defendant, in his written preliminary objection, after reviewing the case law, concludes as follows (at pp 5-6):
“Statute law must not override the principles of natural justice at all times as the Courts should seek to do justice, not only accordingly (sic) to statutory provisions, but according to equity and good conscience as well. Statutory provisions may override the principles of natural justice, but not in the current case. Public interest would weigh more than the statutory provisions in this case.”
This argument is virtually a natural law one and yet it is addressed to this Court whose constitutional responsibility it is to apply positive law. The difficulty with the argument is that it conflicts with case law binding on this Court. Accordingly, unless the second defendant can establish a material distinction between this case and the decided cases or, alternatively, persuade this Court to depart from its previous decisions, this argument must fail. It is thus to these previous decisions that I must turn next.
However, before considering the decided cases, I would like to highlight the basis for the Chief Justice’s constitutional authority to empanel this Court. This is article 125(4) of the 1992 Constitution, which reads as follows:
“The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”
Thus, for as long as the Chief Justice is in office, the right to constitute panels of the Supreme Court is exercisable by him as one of the administrative incidents of his office. Indeed, his is not only a right, but also an obligation, to constitute such panels. The difficulty of compulsorily taking away this function of the Chief Justice, in relation to a particular case, is evidenced by the fact that no endeavour to do so has so far succeeded in the history of our courts since independence. However, there has been no dearth of lawsuits against incumbent Chief Justices. It is probably for this reason that the second defendant petitioned the President to suspend the current Chief Justice from office. By a letter dated 27th April 2006, a copy of which is appended to the second defendant’s written preliminary objection, he requests the President to suspend the Chief Justice, pursuant to Article 146(10)(a) of the Constitution “to prevent him from being a referee and a player at the same time.” Without such suspension (which the President has not carried out), it is an uphill task to seek to prohibit a serving Chief Justice from constituting the panels of the Supreme Court, even if the exercise of the function gives an impression of a conflict of interest.
An explanation for the reluctance by this Court (and its predecessors) to interfere with this function of the Chief Justice is probably to be found in the judicial oath of the judges. Supreme Court judges are not malleable clay in the hands of the Chief Justice. The judges of the Court are likely to believe that whichever of their number are empanelled will act independently. Therefore not much hangs on the exercise of this ministerial, as contrasted with the judicial, power of the Chief Justice. Amissah JA, as he then was, makes a similar point in Akufo-Addo and Ors. v. Quashie-Idun [1968] GLR 667, where he says (at p.672):
“Judges are sworn to do justice between the parties without fear or favour. This oath transcends mere invitations or even appointments to sit in a particular case. Were it otherwise, no one would dare, from fear of bias, to bring an action against government, because the very appointment of the judges is made by government.”
The second defendant himself cites (in his written submission on his preliminary objection) two of the Ghanaian cases on the issue of the Chief Justice’s right to compose a judicial panel where he has an interest in the outcome of the case: Akufo-Addo and Ors. v. Quashie-Idun [1969] GLR 667 and Kuenyehia and Ors. v. Archer and Ors. [1993-4] 2 GLR 525. Other relevant cases are Bilson v. Apaloo [1981] GLR 24; Ghana Bar Association v. Attorney-General and Anor. [1995-96] 1 GLR 598; and Tsatsu Tsikata v. Chief Justice and Attorney-General [2001-2002] SCGLR 437. (The second defendant also orally drew our attention to the last case.) Indeed, the Ghana Bar Association case, although it was not one in which the issue of empanelment by the Chief Justice was expressly raised or argued, is nevertheless authority for the proposition that even where the removal of a Chief Justice is an issue before a panel of the Supreme Court, the Chief Justice may nevertheless constitute the panel.
It will be recalled that in Ghana Bar Association v. Attorney-General and Anor (which I will refer to subsequently as the Abban case) the Supreme Court held that the main thrust of the action was to seek the removal from office of the then incumbent Chief Justice, His Lordship Justice I K Abban. Nevertheless, the right of that same Chief Justice to empanel the Supreme Court was not challenged by the parties. To illustrate the point that the Abban case dealt with the issue of the removal from office of a Chief Justice, let me quote a passage from the judgment of her Lordship Mrs. Justice Bamford-Addo JSC (at p. 617 of the Report):
“In reliefs (3) and (4), the plaintiff requests for an injunction to restrain the Chief Justice from acting as such and a declaration that the warrant is null and void and a cancellation of same by this court. What the plaintiff in actual fact is seeking from this court is the removal of the Chief Justice from office since an injunction and a cancellation of his warrant of appointment would result in his removal. The fact that reliefs (3) and (4) are not so couched makes no difference to the true nature of the claim. It is the duty of the court to decide the true nature of a claim however camouflaged or disguised in another form, in order to decide whether or not it is clothed with the requisite jurisdiction to entertain that case under article 130 of the Constitution, 1992 and other provisions of the Constitution, 1992.”
The case before us is not one for the removal of the Chief Justice, but the second defendant’s contention is that the Chief Justice is insisting on “setting up the panel that would determine a case affecting his destiny on the bench.” (See p 2 of his written preliminary objection). Assuming that the second defendant is correct in this assertion, this court can still cite the Abban case as an authority permitting the Chief Justice to do so. Indeed, that was a stronger case of conflict, since the plaintiff there sought the removal of the Chief Justice through the judicial process, whereas here the issues directly raised are those of constitutional interpretation, albeit with an impact on the impeachment process that the second defendant has initiated.
The principle laid down in the Akufo-Addo case was that where the common law principles of natural justice conflict with a mandatory statutory provision, the statutory, or, by implication, constitutional, provision prevails even if it results in non-compliance with the rules of natural justice. This position is justified by reference to the doctrine of necessity. In that case, Amissah JA, delivering the judgment of the Full Bench of the Court of Appeal, said (at p. 673):
“In our judgment, where a statute clearly enjoins a person to perform an act, he has to do it even if its performance is incompatible with the strict rules of natural justice.”
After referring to the English case of Dimes v. Grand Junction Canal Proprietors (1852) 3H.L. Cas. 759 and the opinion of Parke B expressed on behalf of the judges in that case, he continues as follows (at pp. 673-4):
“The opinion of the judges delivered by Parke B met with the approval of the House of Lords in that case and in the later case of Ranger v. Great Western Railway Co. (1854) 5 H.L. Cas. 72 at p. 88. In like manner this present case presents a situation of necessity where the person to exercise the power to constitute the bench hearing the appeal is also a party to the appeal. As no other may perform his duties for him, the objection on the ground of natural justice cannot be sustained.”
The most recent endorsement of this principle is in the case of Tsatsu Tsikata v. Chief Justice and Attorney-General (supra). The objections raised to the Chief Justice’s right to empanel the Supreme Court in that case were remarkably similar to those formulated by the second defendant in this case. Ampiah JSC, who delivered the judgment of the Court in that case, summarised the arguments of counsel as follows (at pp. 442-443):
“The plaintiff-applicant argued that since the Chief Justice was a party to the action, it would be wrong for him to empanel the bench which was to hear the case. As a necessary party, he was biased and this would be against the rules of natural justice as it would amount to a person being a judge in his own cause — nemo judex in causa sua. By choosing judges to sit on a case in which he is a party, the Chief Justice would more or less be sitting on his own case; this would be unfair. Counsel for the defendants who is also one of the parties in the case, contended that the authority to empanel a bench to hear a case is the statutory responsibility of the Chief Justice and no one else. He submitted that where power to act is given to a person by statute, he would have to perform that duty no matter what. …
The applicant contended that since the Chief Justice is being accused of bias, he has become disabled or is unable to perform the functions of his office and therefore the most senior of the Justices of the Supreme Court should perform his functions; in this case, the empanelling of the bench to sit on the action.”
In response to these arguments, Ampiah JSC held that:
“It has not been demonstrated convincingly to us that the Chief Justice is unable to perform his functions under the 1992 Constitution. We do not think an allegation of bias should in the circumstances make the Chief Justice unable to perform his functions. Who determines whether he is able or unable to perform his functions and when does he resume the functions of that office?”
The learned Supreme Court judge then proceeds to refer with approval to the principle of necessity articulated in Akufo-Addo v. Quashie-Idun (supra) and then expresses the following view on the binding nature of that authority (at p. 444):
“The court that gave judgment was the full bench of the Court of Appeal. At that time, like the Supreme Court now, it was the highest court in the land. That decision is binding on us unless it could be shown why we should depart from it. None has been shown!”
Another reason why the second defendant’s preliminary objection lacks a solid legal foundation is well articulated by Anin JSC, delivering the majority opinion of the Supreme Court, in Bilson v. Apaloo [1981] GLR 24 at pp. 52-53, where he said:
“There can therefore be no question of either reasonable suspicion or real likelihood of bias arising in the discharge of such a ministerial, non-judicial duty. The rule against bias is expressed in the natural justice rule that no man should be a judge in his own cause; for the essence of a fair judicial decision is that it shall sic have been made by an impartial judge. In our view, in discharging his official ministerial duty of empanelling the court that heard the Tuffuor case, the defendant neither performed a judicial or quasi-judicial duty nor assumed the mantle of a judge deciding his own cause. He could not by any stretch of the imagination be said to have committed any breach of natural justice in the event.”
In other words, the principles of natural justice are not, in any case, applicable nor relevant to the empanelment decision, since that decision is neither judicial nor quasi-judicial, but merely ministerial. When the Chief Justice empanels a bench, he acts as an administrator and not as a judge. Accordingly, a principle of natural justice tailored to the requirements of proceedings cannot be relevant to that exercise. Rather, what is relevant is the Chief Justice’s implied duty to be fair and candid in the exercise of his discretionary power, as laid down in Article 296 of the Constitution. However, the second defendant does not found his objection on any breach of Article 296; nor does he provide any evidence of a breach of Article 296.
Now, if I may return to the passage from second defendant’s written objection, which is set out near the beginning of this judgment, its reliance on article 128(3) of the Constitution does not help his case nor does it justify a departure from the case law discussed above. This provision is in the following terms:
“The Chief Justice shall preside at sittings of the Supreme Court and in his absence, the most senior of the Justices of the Supreme Court, as constituted, shall preside.”
With respect, this provision has nothing to do with empanelment. It only deals with who shall preside over the panels constituted by the Chief Justice. The more relevant provision is article 144(6) which reads:
“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 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.”
This provision is what was considered in Tsatsu Tsikata v. Chief Justice and Attorney-General (supra). The difficulty for the second defendant, however, under this provision, is how to demonstrate that the Chief Justice is unable to perform the functions of his office because of a perceived conflict of interest. The second defendant has certainly not proved any such inability to perform. In the Bilson case, Anin JSC soundly points out that the onus is on the person challenging the Chief Justice’s ability to perform his functions to prove this. This is what he said (at p. 52 of the Report):
“In the law of evidence there is a rebuttable presumption that official duty has been regularly performed: see the Evidence Decree, 1975 (N.R.C.D. 323), s.37(1). The onus of rebutting that presumption is on the party alleging the contrary. In this case the plaintiff assumed the burden of proving that the defendant was unable to perform the functions of his office for a specified reason; and it was not for the defendant to justify his due and regular performance of official duty in his capacity as the Chief Justice.”
For the reasons discussed above, I have found no merit in the second defendant’s preliminary objection. I believe that the doctrine of stare decisis requires this Court to hold that the Chief Justice is entitled to empanel the Court as currently constituted. The case is well within the principle of necessity earlier established by the case law. In my view, the second defendant has not made a convincing case for this Court to depart from this principle of necessity, which was the main element in the ratio decidendi of the Quashie-Idun case (supra), and of this Court’s previous binding decision in Tsatsu Tsikata v. Chief Justice and Attorney-General (supra). In any case, as shown in the Bilson case, the case is not even within the scope of the natural justice doctrine. The law so far discussed is trite; there is nothing new in it. Counsel before this Court should keep in mind that there is no advantage in continuing to flog this particular dead horse.
I will accordingly proceed next to the merits of the present action.
Introduction
The interpretation that this Court is called upon to give to certain provisions of the Constitution of Ghana 1992 in this case has the potential to affect the security of tenure of any holder of the high office of Chief Justice. Such security of tenure, of course, has implications for the constitutional system currently in place in Ghana. This case is thus of considerable constitutional importance.
The facts of the case are briefly as follows. The second defendant, who is a lawyer and a citizen of Ghana, on 16th January 2006 sent a petition, dated 13th January 2006, to the President, with a copy to the Chief Justice. Further copies were also sent to the Secretary of the Ghana Bar Association, the Attorney-General and the Judicial Secretary. The petition sought the removal of the Chief Justice on the grounds of judicial misconduct and abuse of power. On March 9th 2006, the President’s Press Secretary issued a public statement that in compliance with article 146 of the Constitution, the President was setting up a committee to inquire into the petition. The Plaintiff complains that the appointment of a committee by the President to inquire into the petition is unwarranted and unconstitutional. He has therefore invoked the original jurisdiction of this Court, in his capacity as a citizen of Ghana, citing Articles 2(1); 146(1) and 146(6); 127(1), (2) and (3); and 17, and is seeking the following declarations
(i) “A Declaration that the petition dated 13 January 2006, presented by Mr. Bright Akwetey to the President which relates to the removal of the Chief Justice is in respect of the performance of administrative functions of the Chief Justice within the meaning of Article 125(4) of the Constitution and is, therefore, inconsistent with the said Article 125(4).
(ii) A Declaration that Mr. Bright Akwetey is not entitled to present his petition to the President in his personal capacity or as a Lawyer and officer of the Court in respect of a complaint relating to the transfer or removal from office of the Judges named in the petition being administrative acts within the competence of the Chief Justice as provided by Article 125(4) and Article 127(1) and (2) of the Constitution.
(iii) A Declaration that an appointment by the President of a Committee to enquire into Mr. Bright Akwetey’s petition dated 13 January, 2006, will constitute an interference which infringes Article 127(1) and (2) of the Constitution.
(iv) A Declaration that Article 146(6) of the Constitution shall be construed concurrently with Article 146(3) and (4) which requires the establishment of a prima facie case prior to the setting up of a Committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court.
(v) A Declaration that by virtue of such construction, the consultation by the President with the Council of State in respect of the appointment of a Committee to inquire into a petition for the removal of the Chief Justice shall first determine whether the said petition discloses a prima facie case before the Committee is appointed.”
(vi) A Declaration that the publication in the media of the 2nd defendant’s petition to the President contravenes Article 146(8) of the Constitution which provides that all proceedings relating to the removal of a Justice of the Superior Court shall be held in camera.”
If I may be permitted to be graphic, I would say that in this case, in the green corner, as it were, to borrow a boxing term, is the literal approach to constitutional interpretation and in the red corner the purposive approach. The two approaches are about to be unleashed in combat to determine the outcome on one of the issues in this case. The contest is between a literalist interpretation of article 146(6), which leads to absurd consequences, and a purposive interpretation of that provision intended to avert the said absurd consequences. Put another way, the Court is confronted with whether to accept certain constitutionally unpalatable policy consequences flowing from a literal reading of article 146(6) or whether to interpret this constitutional provision purposively in a way that avoids these undesirable consequences. These undesirable consequences include the likelihood of undermining two interrelated structural pillars of the Constitution, namely, the independence of the judiciary and the separation of powers.
Establishment of a Prima Facie Case against a Chief Justice as a Precondition to the President setting up a Committee to inquire into a Petition for the Removal of the Chief Justice
Having outlined the context of this case, let me proceed next to deal first with two of the declarations sought by the plaintiff. The fourth and fifth declarations sought by the Plaintiff in this case raise the core issues relating to the issue of interpretation to which I have drawn attention. These declarations, it will be recalled, are to the following effect:
“(iv) A Declaration that Article 146(6) of the Constitution shall be construed concurrently with Article 146(3) and (4) which requires the establishment of a prima facie case prior to the setting up of a Committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court.
(v) A Declaration that by virtue of such construction, the consultation by the President with the Council of State in respect of the appointment of a Committee to inquire into a petition for the removal of the Chief Justice shall first determine whether the said petition discloses a prima facie case before the Committee is appointed.”
Article 146(3), (4), (5) and (6) are in the following terms:
“(3) If the President receives a petition for the removal of a 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.
(4) 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.
(5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President.
(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.”
When one compares Article 146(3) with Article 146(6), it becomes evident that there is a gap in the logical sequencing of action under Article 146(6). According to the literal language of Article 146(6), no one is required to examine a petition brought against the Chief Justice to ascertain whether it establishes a prima facie case, before the President refers it to a Committee established by him. Once any petition, no matter how frivolous its contents are, is presented to the President, then he has a duty to establish a committee to consider it. A literal reading of the provision, therefore, could lead to the floodgates being opened for frivolous and vexatious petitions being continuously filed against a serving Chief Justice, with two Supreme Court judges being perpetually tied down to hearing such petitions, alongside the other members of the committee that the President has to appoint. This is a scenario that would weaken the efficacy of the top echelon of the Judiciary.
Moreover, there is even more mischief in the literal interpretation. This is because Article 146(10)(a) authorises the President, albeit on the advice of the Council of State, to suspend the Chief Justice whilst a petition for his removal is being considered by a Committee appointed by him under article 146(6). There is thus scope for the Executive or others to initiate frivolous and vexatious petitions against the Chief Justice resulting, according the literal reading, to an automatic establishment of a committee to consider the petitions and the empowerment of the President to suspend the Chief Justice from his functions. This is a scenario that is deeply subversive of the balance of power underlying the 1992 Constitution and the separation of powers that it entrenches. It is, of course, also inimical to the independence of the judiciary. As the plaintiff points out in his Statement of Case (paragraph 28.9):
“…There is an implied obligation of the President to maintain the basic tenets of the Constitution among which is the doctrine of separation of powers and, its corollary, the independence of the Judiciary.”
He then quotes Articles 58(1) and (4) in support of this proposition.
The critical question which this Court needs to address is: Could the framers of the Constitution have intended the scenario sketched out above? The Plaintiff purports to answer this question in his Statement of Case in the following terms (see paragraph 28.10):
“The plaintiff will contend that a literal interpretation of Article 146(6) of the constitution will raise the wider issue of the independence of the judiciary. If a Chief Justice can be exposed to the threat of impeachment on the basis of any kind of petition as soon as it is presented to the President, his office will be a precarious one. The plaintiff says that it is inconceivable that the constitution intends such an outcome.”
To answer the highlighted question posed above, let us revisit first principles. Judicial interpretation is about determining the legal meaning of a set of words. A set of words will often raise a range of possible semantic meanings and the task of judicial interpretation is to select which of these semantic meanings should be accepted as the legal meaning of the text. All legal texts which are placed before a court have to be subjected to this process of judicial interpretation, even if their meaning appears to be plain. This is because the plainness of the meaning is itself a conclusion reached by the relevant judge after a process of interpretation. That process need not be laboured or elaborate in every context. In some contexts, the legal meaning of words concerned can be determined simply and quickly. The words whose meaning become contentious tend to be those in exceptional cases where the legal meaning cannot be simply and quickly determined.
In interpreting constitutional language, one should ordinarily start with a consideration of what appears to be the plain or literal meaning of the provision. But that should not be the end of the process. That literal meaning needs to be subjected to further scrutiny and analysis to determine whether it is a meaning which makes sense within its context and in relation to the purpose of the provision in question. In other words, the initial superficial literal meaning may have to yield to a deeper meaning elicited through a purposive interpretation. Thus, Prof. Zander, the English academic, in his The Law-Making Process (1999, 5th Ed.) p. 125 makes the following criticism of the literal approach:
“A final criticism of the literal approach to interpretation is that it is defeatist and lazy. The judge gives up the attempt to understand the document at the first attempt. Instead of struggling to discover what it means, he simply adopts the most straightforward interpretation of the words in question — without regard to whether this interpretation makes sense in the particular context. It is not that the literal approach necessarily gives the wrong result but rather that the result is purely accidental. It is the intellectual equivalent of deciding the case by tossing a coin. The literal interpretation in a particular case may in fact be the best and wisest of the various alternatives, but the literal approach is always wrong because it amounts to an abdication of responsibility by the judge. Instead of decisions being based on reason and principle, the literalist bases his decision on one meaning arbitrarily preferred.”
Thus, where an interpreter comes to the conclusion that the literal meaning does not make sense within its context and in relation to the purpose of the relevant provision, it becomes necessary for the interpreter to explore other semantic possibilities flowing from the language of the provision. In exploring these possibilities, the interpreter has to bear in mind the purpose of the provision.
Analysis of the concept of the purpose of a constitutional provision reveals that there are two kinds of purpose: subjective and objective. The subjective purpose is what the framers of the Constitution actually intended. The objective purpose, on the other hand, is what the provision should be seeking to achieve, given the general purposes of the Constitution and the core values of the legal system and of the Constitution. In other words, it is the purpose that a reasonable person would have had if he or she were faced with formulating the provision in question. In Asare v. Attorney-General [2003-2004] SCGLR 823, this Court held that, in determining the purpose of a provision, the interpreter should balance the two kinds of purpose. The spirit of a constitutional provision includes its objective purpose. I explained this in my judgment in Asare v. Attorney-General [2003-2004] SCGLR 823, where, I said (at p. 835):
“In this connection, I would like to refer to the dictum of Sowah JSC (as he then was) in Tuffuor v. Attorney-General [1980] G.L.R 637 at p. 647, which is frequently referred to and is in this case relied on by both the Plaintiff and the Defendant. He said:
“The Constitution has its letter of the law. Equally, the Constitution has its spirit….Its language, therefore, must be considered as if it were a living organism capable of growth and development. Indeed, it is a living organism capable of growth and development. A broad and liberal spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing it into conformity with the needs of the time.” The “spirit” to which Sowah JSC refers is another way of describing the unspoken core underlying values and principles of the Constitution. Justice Sowah enjoins us to have recourse to this “spirit” or underlying values in sustaining the Constitution as a living organism.”
I describe objective purpose in the Asare case in the following terms (at p. 834):
“The objective purpose is not what the author actually intended but rather what a hypothetical reasonable author would have intended, given the context of the underlying legal system, history and values etc. of the society for which he is making law. This objective purpose will thus usually be interpreted to include the realisation, through the given legal text, of the fundamental or core values of the legal system.”
Accordingly, the core values of the Constitution can be drawn upon to help fashion a construction of its language. Thus, though an initial superficial reading of a provision may convey a particular meaning, further reflection on the provision, taking into account the context and core values of the Constitution, may lead to a different construction of the provision. This further reflection may identify a gap in a provision, whereas at first sight it might have been thought to be complete and to bear a particular plain meaning. Having identified such gap, the issue then arises as to whether the gap is to be filled and whether it is legitimate for judges to fill the gap. Does filling the gap come within the concept of interpretation? Taylor JSC had some insightful observations on this issue of gaps in a statutory or constitutional provision and how they might be filled, in Sasu v. Amua Sakyi [1987-88] 1 GLR 506.
This is what he had to say, after arriving at a conclusion to fill a gap in the relevant statute that he had identified (at p. 512 of the Report):
“I have arrived at this conclusion by considering the content and consequently the wording of section 3 (2) not in isolation but within the context of the whole of P.N.D.C.L. 191. And I have carried out this exercise by examining all the other words of P.N.D.C.L. 191. I have furthermore looked at the previous state of the law and the objectives of the law with the mischief it was designed to remedy. The exercise has necessitated filling in gaps by adding words to the provisions to make sensible reading in order to give effect to the intention of the legislature. I suppose the legal question posed by this apparent meddling with enacted words in order to discover what the legislature intended to enact is: do the principles and canons of interpretation permit this licence with legislation?”
His conclusion, after reviewing the English case-law, was (at p. 515 of the Report):
“It is noteworthy that Lord Simonds championed the conservative approach of the literal school of the strict constructionists in the Magor and St. Mellons case (supra) in 1952. About a quarter of a century later Lord Reid, undoubtedly one of the great English judges of the 20th century, with a most brilliant and lucid mind, espoused the modern liberal trend when in Federal Steam Navigation Co. Ltd. v. Department of Trade and Industry [1974] 2 All E.R. 97 at 100, H.L., he said:
“Cases where it has properly been held that a word can be struck out of … statute and another substituted can as far as I am aware be grouped under three heads: where without such substitution the provision is unintelligible or absurd or totally unreasonable; where it is unworkable; and where it is totally irreconcilable with the plain intention shewn by the rest of the … statute.”
Sir Rupert Cross, Vinerian Professor of English law in the University of Oxford and an eminent jurist of great ability, in his book on Statutory Interpretation (1976 ed.) at 43 after reviewing the authorities and inspired by Lord Reid’s exposition in the Federal Steam Navigation case (supra), formulated the following rule of statutory interpretation gathered from the authorities which permits the modification of its language by deleting words or adding words to the provisions of an enactment. He stated the rule thus:
“3. The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unintelligible or absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.”
It seems to me that if the thrust and the implications of the rules derivable from the authorities I have discussed in this ruling are considered with due regard to my analysis of the wording of section 3 (2) of Act 372 as inserted by P.N.D.C.L. 191, and they are applied to a construction of the provisions of the said section 3 (2) having regard to the context, the other words of the said P.N.D.C.L. 191 and the intention of the legislature as is apparently disclosed by the wording, then the meaning I have given to it by supplying the omissions, following my said comparative analysis, cannot be resisted.”
Taylor JSC thus expresses himself in favour of gap filling in a limited range of circumstances. He regards this as part of the process of judicial interpretation in the common law tradition. The principle that I derive from Sasu v. Amua Sakyi is that, in exceptional cases, additional text may be imported into an enactment in order to give effect to its purpose.
It is not unprecedented for a common law court to imply a provision into a Constitution to give it efficacy in relation to its purpose. For instance, the High Court of Australia has implied a bill of rights into the Australian Constitution. (See, for instance, Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 12; Australian Capital Television Pty. Ltd. v. Commonwealth (1992) 177 CLR 106; Theophanous v. Herald and Weekly Times Ltd. (1994) 182 CLR 104; Lange v. Australian Broadcasting Corp. (1997) 189 CLR 520.)
In Canada also an implied Bill of Rights was recognised by the Canadian Supreme Court before the enactment of the Canadian Charter of Rights and Freedoms. (See Reference re Secession of Quebec [1998] 2 S.C.R. 217). The United States Supreme Court has long recognised that though the US Constitution lists expressed powers for each branch of government, it also confers “implied powers” that arise out of the language and intent of the Constitution. (See McCulloch v. Maryland (1819) 17 US 316.)
In my view, the objective purpose and spirit of the 1992 Constitution require that a Chief Justice be given the benefit of a prior determination as to whether there is a prima facie case established against him or her, before the President may establish a Committee to consider a petition for his or her removal. A comparative examination of the relevant provisions dealing with petitions for the removal of other Superior Court Justices (in articles 146(3) and 146(4)) reveals an omission in the plain language of article 146(6) relating to the impeachment process of the Chief Justice which, in my view, could not have been intended by the framers of the Constitution. The omission to provide for a prior determination of a prima facie case leads to a manifest absurdity which this court has power to avert. In effect, one is saying that there is a logical gap or inadvertent mistake in Article 146(6) which this Court should correct, by interpretation. The purpose of article 146(6) is to enable credible allegations as to the Chief Justice’s stated misbehaviour, incompetence or infirmity of body or mind (see article 146(1)) to be investigated. No reasonable interpreter could reach the conclusion that its purpose also includes providing a forum for the ventilation of frivolous or vexatious petitions. These observations regarding the purpose of article 146(6) are obviously to be taken into account in determining the meaning of the provision. In this connection, the plaintiff is right when he points out in his Statement of Case (paragraph 29.17) that:
“The literal interpretation would also be incompatible with the established tradition of this honourable court which has embraced the purposive approach to constitutional interpretation. In a long line of cases, most notably: Tuffour v. the Attorney-General [1980] GLR 637 C.A. sitting as S.C.; Republic v. High Court, Accra; Ex Parte Adjei [1984-86] 2 GLR 511–561; Republic v. Tommy Thompson Books Ltd. (No. 2) [1996-97] SCGLR 484; Kuenyehia v. Archer [1993-94] 2 GLR 525; and Sam (No. 2) v. Attorney-General [2000] SCGLR 305, among others, this Court has sought to approach its interpretive task from a purposive stance.”
I, of course, fully endorse this purposive stance. Such a purposive approach is in consonance with the modern trend in other mature jurisdictions, such as the English, as I point out in my judgment in Asare v. Attorney-General (supra). This trend is confirmed in the recent opinion of Lord Steyn in R v. Secretary of State for Health Ex Parte Quintavalle (on behalf of Prof-Life Alliance) [2003] UKHL 13 (reported in [2003] 2 All ER 113), where the noble Lord declares (at para. 21) that the pendulum has swung towards purposive interpretation. In that case, which involved the interpretation of an English statute, this is what he said:
“In reaching a conclusion that cell nuclear replacement is a process covered by section 1(1) of the Human Fertilisation and Embryology Act 1990 the Court of Appeal adopted a purposive approach para 27. The extensive interpretation adopted by the Court of Appeal could only be justified by a purposive approach. It was a necessary step in the reasoning of the Court of Appeal but not a sufficient one. The Court of Appeal found the basis for such an approach in the fact that the Human Rights Act 1998 extended “the boundaries of purposive interpretation …where needs must”. Given that the 1998 Act is not applicable in the present case I would accept the submission of counsel for the appellant that this approach is not appropriate. On the other hand, the adoption of a purposive approach to construction of statutes generally, and the 1990 Act in particular, is amply justified on wider grounds. In Cabell v. Markham (1945) 148 F 2d 737 Justice Learned Hand explained the merits of purposive interpretation, at p. 739:
“Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it statute, a contract, or anything else. But it is one of the surest indexes of a mature developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”
The pendulum has swung towards purposive methods of construction. This change was not initiated by the teleological approach of European Community jurisprudence, and the influence of European legal culture generally, but it has been accelerated by European ideas: see, however, a classic early statement of the purposive approach by Lord Blackburn in River Wear Commissioners v. Adamson (1877) 2 App. Cas. 743, 763. In any event, nowadays the shift towards purposive interpretation is not in doubt. The qualification is that the degree of liberality permitted is influenced by the context, eg social welfare legislation and tax statutes may have to be approached somewhat differently. For these slightly different reasons I agree with the conclusion of the Court of Appeal that section 1(1) of the 1990 Act must be construed in a purposive way.”
Prof. Justice Ocran JSC has also, in his recent delivery of the unanimous judgment of the Supreme Court in Nii Nortey Omaboe III and Ors v. Attorney-General and Anor. (Unreported, Suit No. J6/1/2005, delivered on 21st June 2006), re-iterated this Court’s endorsement of the purposive approach to the interpretation of the Constitution, while not ruling out the legitimacy of other techniques of interpretation in the appropriate circumstances.
There is some evidence from the legislative history of article 146(6) which confirms that the failure to provide for a prima facie determination may have been the result of inadvertence. In the Proposals for a Draft Constitution of Ghana, prepared by the Committee of Experts which formulated the initial draft of the 1992 Constitution that was laid before the Consultative Assembly, paragraph 286 on the removal of judges is instructive. This is what it says:
“On the removal of Judges of the Superior Courts, the Committee, conscious of the need to ensure that judges are not arbitrarily removed from office, proposes that the Chief Justice or a Judge of the Superior Courts may be removed from office only for inability to perform the functions of his or her office, arising from infirmity of body or mind or for stated misbehaviour or incompetence. Secondly, the method of removal should be as follows:
(a) If the President receives a petition of complaint against a judge of the Superior Courts other than the Chief Justice, he or she should refer the petition to the Chief Justice, who would determine whether there is a prima facie case.
(b) After satisfying himself or herself that there is a prima facie case, the Chief Justice should set up a tribunal consisting of three judges of the Superior Courts appointed by the Judicial Council, and two persons appointed by Parliament to go into the matter and make its recommendation to the President.
(c) Where the petition is against the Chief Justice, the President should refer the matter to the Judicial Committee of the Council of State. After satisfying itself that there is a prima facie case, the Judicial Committee should empanel a tribunal of five, three of whom should be members of the Judicial Committee of the Council of State, and the other two appointed by Parliament to examine the issue and report on it to the President.
(d) The President should act in accordance with the recommendations of the tribunal in either case.”
Thus, it is clear that the Committee of Experts which formulated the original draft of the 1992 Constitution intended that the Chief Justice should also have the benefit of a prima facie determination, before a committee was empanelled to examine a petition for his or her removal. The Consultative Assembly, in changing the appointing authority for the committee from the Judicial Committee of the Council of State to the President, omitted the reference to the need for the appointing authority to satisfy itself that there is a prima facie case. The issue which arises is whether the omission was intentional or was the result of inadvertence. Given the absurd consequences of the omission, I am inclined to believe that the omission was the result of inadvertence.
Of course, this Court could adopt the attitude of Lord Esher in R v. Judge of City of London Court [1892] 1 QB 273 at 290, where he said:
“If the words of an Act are clear, you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislator has committed an absurdity.”
I do not, however, believe that such an approach would be helpful in the development of the constitutional jurisprudence of this country. In my view, the purposive approach to interpretation of our Constitution requires that in the context of this case implicit words be read into the Constitution to avert a manifest absurdity. It has to be remembered that there is room for the unwritten in a written constitution. The fact that a country has a written constitution does not mean that only its letter may be interpreted. The courts have the responsibility for distilling the spirit of the Constitution, from its underlying philosophy, core values, basic structure, the history and nature of the country’s legal and political systems etc., in order to determine what implicit provisions in the written constitution flow inexorably from this spirit.
The requirement of the establishment of a prima facie case against a Chief Justice before a Committee is empanelled to consider a petition filed for his removal is one such implicit provision. The authority of the courts to imply such a provision through purposive interpretation is not a licence for the judges to re-write the constitution. The interpretative authority is a limited one to make explicit what is implied within the penumbra of the letter of the Constitution, given the Constitution’s objective purpose, core values and underlying philosophy. The living Constitution, as famously referred to by Sowah JSC (as he then was) in Tuffuor v. AG [1980] G.L.R 637 at p. 647, comprises both the letter and spirit of the Constitution. From within the penumbra of the letter of the Constitution may be implied such provisions as are essential for effectuating the purpose and spirit of the Constitution. Accordingly, I do not accept the argument of the second defendant that an insistence on a prima facie case in the context of article 146(6) would amount to re-writing the provision. This is what he argues (at paragraph 18.2 of his Statement of Case):
“Admittedly, being a constitutional provision, a more liberal approach is recommended for interpreting Article 146(6) but, I submit, that whatever interpretation is adopted should reflect the true and proper meaning of the words used by the Legislature to express its intention. The constitution deliberately refuses to apply the prima facie test to Petitions relating to the CJ. Any insistence on the prima facie case in the context of Article 146(6), will amount to an invitation by the Plaintiff to this Honourable Court to re-write Article 146(6). That is not the duty of the judiciary. That is a duty reserved for the Legislature. The court’s duty is to give effect to the intention of the Legislature which has been expressed in the Constitution and not to re-write the constitution or import its own intention into it.”
With respect, what I am seeking to do is not to import my intention into article 146(6), but to determine its meaning in the light of its context and purpose. To do that, I believe that it is necessary to read article 146 as a whole and to make explicit what is implicit 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.
This conceptual route of an implied provision requiring a prima facie determination, which I have articulated above, is in substance the same as the argument made by the plaintiff in its Statement of Case.
The Plaintiff’s argument was to the following effect (see paragraphs 29.6 and 29.7):
“6. The process for the removal of a Justice of the Superior Courts expressly requires a prima facie finding before a presidential committee is established. It is true that no such express wording is used with respect to the Chief Justice — such express language being superfluous — yet it would be absurd that the President acting in consultation with the Council of State (Article 146(6)) could appoint a Committee of Inquiry without first establishing a prima facie case founded on stated misbehaviour or incompetence, or inability to perform the functions of his office arising from infirmity of body or mind (Article 146(1)). To do otherwise would mean that the high office of the Chief Justice could be impugned regardless of the source, nature, merits, or bona fides of a petition addressed to the President.
7. The President and the Council of State are not mere passive agents in the grave process for the removal of the Chief Justice. Both the President and the Chief Justice are required by the ethos and foundational principles of the Constitution and the central thematic purpose of Article 146 as a whole to establish a prima facie case prior to the appointment of a Committee of Inquiry.”
It is obvious from what I have said above that I accept this reasoning of the plaintiff, although it is not formulated expressly, or labelled, as an implied provision argument. In substance, however, it is.
The issue which arises, then, from the discussion above is: who is to make the prima facie determination? From the analogy in article 146(3), it is clear that the framers of our Constitution wanted an independent determination of the issue of a prima facie case. That is why they provided in that sub-article that the issue was to be referred to the Chief Justice for determination, in cases relating to Superior Court judges other than the Chief Justice. Similarly, I do not consider it reasonable to infer that they would want the President himself alone to make the prima facie determination in the case of a petition for the removal of the Chief Justice. There is a parallel need for a process which ensures an independent determination of whether there is prima facie case against the Chief Justice. I consider that the reasonable implication to be made from the context of Article 146(6) is that the Council of State should play a prominent role in the determination of whether there is prima facie case against the Chief Justice. Accordingly, I am inclined to grant the Plaintiff a declaration that the consultation by the President with the Council of State in respect of the appointment of a Committee to inquire into a petition for the removal of the Chief Justice shall first determine whether the said petition discloses a prima facie case before the Committee is appointed. It would be prudent for the Council of State to evolve a convention by virtue of which the advice of a reputable independent lawyer is sought as part of the consultative process with the President.
To summarise, I would determine in favour of the plaintiff the fifth issue that he sets out in his Memorandum of Issues filed before this Court, which is in the following terms:
“Whether or not from the combined effect of Article 146(1) (3) (4) and (6) of the Constitution and in order to protect the independence and integrity of the Judiciary as enshrined in the Constitution, the President and the Council of State should satisfy themselves in their consultations, that a prima facie case is made out prior to the setting up of a committee to investigate complaints in a petition for the removal of a Justice of the Superior Court because the Chief Justice is first and foremost a Judge of the Superior Court.”
I would, similarly, resolve against the position taken by the second defendant the practically identical issue which he sets out in his Memorandum of Issues as the first issue, in the following terms:
“Whether or not by virtue of Article 146(6) of the 1992 Constitution, the President is required as in the case of other Superior Court Judges under Article 146(3) and (4), to establish a prima facie against the Chief Justice before setting up a Committee to inquire into a Petition received against the Chief Justice.”
However, the rationale for my decision is not limited to the actual language of the sub-articles of Article 146 referred to above. It also incorporates the spirit and objective purpose of Article 146 read as a whole, which I have interpreted to support an implication of a prima facie requirement.
The second defendant himself, in his Statement of Case, admits that the President himself has a role to play in determining whether there is prima facie case, before he institutes a committee of inquiry. There is a degree of internal contradiction in the second defendant’s position on this. He insists that there is no requirement for establishing a prima facie case but at the same time seeks to establish that the President would not have acted to establish the committee if he were not persuaded that there was a prima facie case.
The following extract from the second defendant’s Statement of Case (paragraph 18.1) illustrates my point:
“It would be the height of naivety to assume that the President, in popular parlance, “just got up”, and set up a committee, without satisfying himself that there is a prima facie case against the Chief Justice. The President is a lawyer of over 30 years standing at the Bar. He knows and understands the essence of a prima facie case, and, to satisfy himself, the President has competent and well established national investigating/investigative institutions capable of assisting him to satisfy himself, and to satisfy the Council of State, that the allegations establish a prima facie case. The President has the BNI, the Police, the Serious Fraud Office, the National Security Council, Military Intelligence and the Attorney-General’s office to help him establish a prima facie case, before decidingg to establish the Committee of Inquiry.”
This extract implicitly accepts the declaration that I have just granted the Plaintiff. This is because it argues that in practice the President and the Council of State are unlikely to have instituted a committee of inquiry without satisfying themselves that a prima facie case has been established against the Chief Justice. If this is the case, then the second defendant can hardly complain if a literal reading of article 146(6) which seems to require a contrary result, in the sense of requiring an automatic institution of a committee of inquiry whether or not a prima facie case has been established, is declined and instead a purposive interpretation is adopted to reach the outcome that he thinks is what has happened in practice.
In any case, the declaration, which I have granted, in no way diminishes the accountability of the Chief Justice. Where there is substance in any allegations levelled against a Chief Justice in a petition, the requirement for a prima facie determination will not stop the process of holding the Chief Justice to account. The declaration is intended to sieve out frivolous and vexatious petitions. However, for the avoidance of doubt, I am in no way suggesting that the second defendant’s petition is frivolous or vexatious. The declaration that I have granted is not to be interpreted as taking any position on the merits of the contents of the second defendant’s petition. It is not the responsibility of this Court to assess the merits of the second defendant’s petition. Indeed, it does not have the jurisdiction to do so, as pointed out by Wiredu JSC, as he then was, in Ghana Bar Association v. Attorney-General and Anor [1995 – 96] 1 GLR 598 at p. 611, where, speaking of the Supreme Court, he says:
“The court does not have original concurrent jurisdiction with the body empowered to exercise jurisdiction to adjudicate on matters properly falling within the parameters of article 146 of the Constitution, 1992.”
It is for this reason that, thus far, I have not narrated the details of the contents of the petition brought for the removal of the Chief Justice. In my view, those details are not necessary in order to reach a conclusion on the declaration regarding the need for a prima facie case to be established.
Are the Administrative Acts of the Chief Justice Immune from the Impeachment Process?
The next declaration whose grant or refusal I will consider is the first one sought by the Plaintiff. It will be recalled that the declaration sought is in the following terms:
“A Declaration that the petition dated 13 January 2006, presented by Mr. Bright Akwetey to the President which relates to the removal of the Chief Justice is in respect of the performance of administrative functions of the Chief Justice within the meaning of Article 125(4) of the Constitution and is, therefore, inconsistent with the said Article 125(4).”
The third declaration sought by the Plaintiff in his Writ raises legal issues similar to those flowing from the first one and it is convenient to consider the two declarations together. The third declaration is in the following terms:
“A Declaration that an appointment by the President of a Committee to enquire into Mr. Bright Akwetey’s petition dated 13 January, 2006, will constitute an interference which infringes Article 127(1) and (2) of the Constitution.”
A consideration of these declarations requires the narration of more of the contents of the petition brought by the second defendant than has so far been set out in this judgment. For the reasons I will set out in my discussion (infra) of the issue whether there has been a breach of article 146(8) of the Constitution, I consider it regrettable that the contents of the second defendant’s petition are in the public domain. Being, however, already in the public domain and having been put in evidence in this case, it is necessary to give some account of the contents of the petition.
The second defendant complains, in his petition, of the alleged conduct of the Chief Justice in relation to Justice Ankamah, a Circuit Court Judge; Justice Anthony Oppong, also a Circuit Court Judge; and Justice Williewise Kyeremeh, a third Circuit Court Judge. The petition claims that these three judges have been victimised by the Chief Justice for refusing to take his instructions relating to cases before them. It is alleged that two of the judges were punished with transfers outside Accra, while the third was unlawfully dismissed from the judicial service. Much more detail on these allegations than it is necessary to recount here is set out in the petition.
The plaintiff’s argument in relation to the first and third declarations is as follows (see paragraphs 25.10 –14):
“10. Because the Chief Justice is a judge and the Chairman of a Regional Tribunal, the Constitution, in its wisdom, provides that the Chief Justice can only be removed from office on the SAME grounds as that of any other judge or chairman of a Regional Tribunal. Hence, Article 146(1) reads:
“A justice of the Superior Court or a Chairman of a Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on grounds of inability to perform the functions of his office arising from infirmity of body or mind.”
11. Thus, the Constitution makers by the expression “shall not be removed from office except”, prohibit the removal of a Justice of the Superior Court or a Regional Tribunal Chairman from office on any ground other than that stated in Article 146(1). A Chief Justice, being a justice of the Superior Court, can only be removed from office on the grounds set out in Article 146(1) and on no other ground.
12. The Constitution does not provide any separate and distinct grounds, other than those set out in Article 146(1), for removing the Chief Justice qua Chief Justice from office. Thus, under the Constitution, a Chief Justice cannot be removed as a Chief Justice from office and remain on the bench as a Justice of the Superior Courts. He can rather be removed from office on the same grounds as a Justice of the Superior Courts and by implication lose his position as a Chief Justice.
13. My Lords, it is the failure of the Petitioner to appreciate the above points and thus unconstitutionally attack the Chief Justice in the performance of his duties that the Plaintiff herein seeks to invite this Honourable Court to grant the reliefs sought in this action.
14. The Plaintiff is contending that the Petition, in a single word, is INCOMPETENT to call into action the provisions of Article 146. For the Constitution does not permit a Chief Justice to be removed from office on grounds related to the performance of his duties. (Emphasis supplied by this Judge). He can only be removed from office on the same grounds as set out in Article 146(1) for the removal of any other Justice of the Superior Courts. And, indeed, these are the same grounds upon which any magistrate or judicial officer can equally be removed from office. See Article 151 (1) of the Constitution….”
The proposition highlighted above from this argument is quite an extraordinary and startling one, which requires critical evaluation. Is it correct that the Constitution does not permit the Chief Justice to be removed from office on grounds related to the performance of his duties? The Plaintiff further elaborates the basis for this extraordinary assertion which, in my view, is counter-intuitive. The instinct of most people unlettered in the law would, I suspect, be that if the Chief Justice is guilty of serious or gross malfeasance in the performance of his duties he should be removable through an appropriate procedure for such malfeasance. What are the Plaintiff’s reasons for believing that this intuitive view is not the constitutional position? He obliges us with an answer in paragraph 28 of his Statement of Case which is entitled: “The establishment of a committee to inquire into the Petition amounts to an unconstitutional interference with the Judicial branch.” The paragraph is in the following terms:
“1. Plaintiff submits that the Petition does not represent a proper case for the establishment of a committee and such establishment by the President amounts to an unconstitutional interference with the judicial branch. The Plaintiff submits that the transfers and the dismissal were administrative acts, which do not constitute misbehaviour.
2. The Plaintiff further submits that by reason of Article 125(4) and Article 127(1) the transfer and the dismissal were within the powers of the Chief Justice. Article 125(4) provides: “The Chief Justice shall, subject to this Constitution be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.”
Article 127(1) and (2) provide:
(1) “In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions including financial administration is subject only to this Constitution and shall not be subject to the control or direction or control on (sic) any person or authority.
(2) “Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions…”
3. As noted above, it is manifest from the deconstructed Petition that its factual complaints relate to the exercise of the Chief Justice’s administrative functions. The indisputable facts are that transfers and dismissals occurred. The Plaintiff submits that an appointment by the President of a committee to inquire into the 2nd Defendant’s petition constitutes an interference which infringes Article 127(1) and (2) of the Constitution. The transfer of judges is a well established practice in the judicial administration of this country. …”
In paragraph 6, he continues as follows:
“Article 146(1) sets the basis and standards for the exercise of removal powers by the President with respect to justices of the superior courts. That is to say, there must be proved stated misbehaviour, incompetence or inability of the concerned judge to perform the functions of his office arising from infirmity of body or mind. No factual allegation of misbehaviour, incompetence or inability to perform the functions of the office of a Justice of the Superior Courts, which is the constitutional standard, is made in the Petition. Rather, the Petitioner relies on his stated grounds of “abuse of power” and “judicial misconduct” which the substance of the Petition does not ever reflect.”
Further, in paragraph 8, he sums up the essence of his argument as follows:
“8. The exercise of administrative powers by the Chief Justice such as the transfer of, and enforcement of discipline among judges enjoys complete autonomy and freedom from interference by the Executive and Parliament. The effect of the President’s appointment of a committee to, in essence, question or inquire into the exercise of those administrative powers by the Chief Justice is to violate clear constitutional dictates and can properly be regarded as a breach of Article 127(1) and (2). It undermines the authority conferred on the Chief Justice by Article 125(4) as chief executive of the Judiciary responsible for the administration and supervision of the Judiciary. Surely, transfers and dismissals of judges by the Chief Justice cannot be considered acts of misbehaviour or corruption. Assuming, arguendo, that the three judges named in the Petition have genuine grievances, it would be proper for them to seek relief on their own. The proper course should be to commence an action in the courts for a declaration that their transfer or dismissal, as the case may be, is wrong in law.”
I think that the Plaintiff’s argument on this issue is founded on the fallacy that a Chief Justice’s conduct in the administration of the Judiciary can never ever be construed as a “stated misbehaviour” or “incompetence” within the meaning of Article 146 of the Constitution. Other Justices of the Superior Courts also have administrative responsibilities, such as the Supervising High Court Judges, or judges representing the judiciary on the General Legal Council. I believe that it would be dangerous and not in the public interest to uphold a proposition in relation to all such judges that their administrative acts cannot ever be the substance of a charge of “stated misbehaviour” within the meaning Article 146(1).sic
As far as the Chief Justice is concerned, I think it is reasonable to link his conduct of his administrative responsibilities with his position as a Justice of all the Superior Courts. Justices of the Superior Courts are required to adhere by certain judicial ethics which can be infringed by the conduct of a Chief Justice in the performance of administrative acts. It is therefore unacceptable to exclude, a priori, all administrative acts of the Chief Justice from scrutiny as possible evidence of stated misbehaviour in his capacity as a Justice of the Superior Courts.
Moreover, the fact that it is the President who establishes a Committee under Article 146 to investigate an allegation that a Chief Justice has been guilty of such misfeasance of his administrative responsibilities as to bring him within the meaning of “stated misbehaviour” under Article 146(1) does not necessarily imply Executive interference in the affairs of the Judiciary. Accordingly, I find merit in the counter-arguments of the second defendant set out in his Statement of Case, subject, of course, to my view already expressed on the need for the establishment of a prima facie case as a precondition to any establishment of the relevant committee. He says (in paragraph 19):
“1. …..The Plaintiff is seeking a Declaration that the setting up of the Committee to inquire into the allegations of fact contained in my Petition constitutes an unconstitutional interference with the judicial branch. In my view, the contrary is true. The President’s action is in full compliance with the Constitution. The Constitution which gives the CJ control over the adminstration of the judiciary (Article 125(4)) is the same Constitution that clothes the President with authority to set up a committee of inquiry to inquire into the allegations of fact contained in my Petition. (Article 146(6), (7), (10)(a) in my Petition.
2. The Constitution has not insulated the actions of the CJ against inquiry. The performance of the CJ’s administrative functions is subject to control under Article 146 (6), (7) and (10)(a) of the same Constitution. The President has therefore acted perfectly within the confines of the same Constitution.
3. The President’s action does not constitute an interference in the affairs of the judiciary. Nor does it constitute an interference with the independence of the judiciary. The President was performing a constitutional duty required to be performed in the circumstances of this case, by setting up the committee. The setting up of the Committee would amount to unlawful interference if the power he exercised in setting it up, is not sanctioned by the Constitution. The framers of the Constitution considered these checks and balance necessary to achieve a workable government.
4. Article 127(1) insulates both the administrative and judicial functions of the Judiciary against control by any person or authority, but it does not insulate such administrative and judicial functions against control by the Constitution itself. Article 127(1) makes the administrative and judicial functions of the judiciary subject to the control and might of the Constitution. That control is exercisable under Article 146….”
Moreover, the fact that the alleged victim of an administrative act of a Chief Justice may commence an action in the courts for a declaration that his or her transfer or dismissal, as the case may be, is wrong in law, as recommended by the Plaintiff in the quotation from his Statement of Case above, is not a substitute for a procedure for making a Chief Justice accountable for the performance of his duties as such Chief Justice. In my view, acts of a Chief Justice in his administrative capacity may be fit for possible characterisation as “stated misconduct” of a Justice of the Superior Court within the meaning of Article 146(1), depending on the evidence available on the specific act. It would thus be an error for this Court to rule out in limine and a priori all administrative acts of the Chief Justice as incapable of founding a petition under Article 146 of the Constitution. If, for instance, it were established that a Chief Justice was taking bribes in exchange for transfer decisions regarding judges of the lower courts, would this not be stated misconduct on his part as a Justice of the Superior Courts?
I must stress that my analysis above addresses the broad constitutional principles. Its focus is not on the particular merits or demerits of the second defendant’s petition. I believe that this Court must resist the temptation, that both the plaintiff and the second defendant have endeavoured to wave before it, of entering into an evaluation of the merits of the petition. As already pointed out, this is not the right forum for that exercise. The question that I am considering therefore is whether the administrative acts of Chief Justices in general, rather than the particular acts alleged against the current Chief Justice, are immune from challenge under Article 146.
By way of illustration, let us look at the particular claims of the second defendant. In paragraph 19.7 of the second defendant’s Statement of Case, he makes the following claim:
“The form and type of transfers and dismissal inflicted on Oppong, Ankamah and Kyeremeh, are not mere administrative acts, as stated in paragraph 28(1) of the Plaintiff’s statement of case. They constitute serious acts of abuse of power and judicial misconduct. They constitute interference in the exercise of the judicial functions of Ankamah, Oppong and Kyeremeh. The CJ had no right or authority under any law, to tell Ankamah not to grant the injunction requested in the Nii Alabi Petempeh case. He had no right — constitutional or legal — to direct Oppong to dismiss the writ filed by the Plaintiff in the Nii Petempeh case. Nor did he have any right constitutional, conventional or legal, to direct Oppong to use Justice Abada’s ruling to dismiss the writ, when there are other judgments, better written and better thought-out by other High Judges, on the same matter.”
These unproven claims, on which I pass no judgment, are what the President has to consult with the Council of State about in order to arrive at a determination of whether they establish a prima facie case. This is, as established earlier in this judgment, a precondition to the establishment of a committee of inquiry to investigate the claims embodied in the petition seeking the removal of the Chief Justice. This Court should not hold that in concept and a priori these acts, because they are administrative, cannot found a charge of stated misbehaviour under Article 146. However, I do accept as valid, the following comments made by the Plaintiff in his Answer to the 2nd Defendant’s Statement of Case (paragraphs 18 and 19):
“18. Allegations of fact relating to Chief Justice’s administrative functions are simply not enough to justify the establishment of a Committee of enquiry. Plaintiff’s contention is that there must be factual allegations relating to the bases for removal stated in Article 146(1) which, on their face, establish a case against the Chief Justice for him to answer through the Committee process. This is essentially an impeachment process. The Chief Justice cannot be called upon to answer just any allegations.
19. First, such allegations must relate to the bases for removal in Article 146(1). Second, they must prima facie establish a case to answer. Third, the Chief Justice must have an opportunity to defend. It is an impeachment process so not just any allegation will do. …”
In sum, I would say that the administrative acts of a Chief Justice are not immune from challenge in an impeachment process. Furthermore, the establishment by the President of a committee, pursuant to Article 146(6), to investigate allegations of misconduct founded on administrative acts would not constitute unconstitutional interference with the judiciary. Such allegations must, however, surmount the prima facie case hurdle, before the President may lawfully establish the committee.
Does the Second Defendant have the capacity to bring the Petition?
The second declaration sought by the plaintiff questions the right of the second defendant to petition the President either in his personal capacity or as a lawyer on the matters contained in the petition. The Plaintiff, in his Statement of Case, states his case on this issue as follows (see pp. 14 – 15):
“Neither the Constitution nor any other law empowers the Petitioner, in his personal capacity, to bring the Petition or to bring it as a lawyer not representing a third party but posing as an “officer of the court.” Article 2(1) is not applicable to this matter as the Petitioner does not allege in a suit at the Supreme Court that an enactment or an act or omission of any person is inconsistent with or contravenes the Constitution. Nor is he seeking declaratory relief in terms of Article 2(1). This is a Petition to the President which relates, on its face, to alleged personal grievances of others. Unless the matters complained of are within the personal knowledge of the Petitioner or the Petitioner has the ability, demonstrated in the Petition, to prove facts upon which the allegations are based, it is our humble submission that the Petition is misconceived and ought not be entertained by the President.”
The plaintiff concludes his argument on this issue in the following terms (at pp 15 – 16).:
“To entertain such petitions is to invite mischief makers and charlatans to harass the Chief Justice and to bring his office into disrepute. The independence of the judiciary as enshrined by Article 125(1) and (3) and 127(1) and (2) of the Constitution is crucial to the foundational ethos of the Constitution. Public policy considerations require that the Petitioner, founding this Petition on hearsay and innuendo, be declared lacking capacity to bring the Petition. The Petition must be dismissed.”
These arguments of the plaintiff are untenable. Article 146 does not prescribe any capacity requirements for petitioners seeking the removal of a Justice of a Superior Court or of the Chief Justice. There is no justification for implying such a capacity requirement, since a prima facie case precondition has to be established, even in relationsic the removal of a Chief Justice, as already discussed. This Court should be careful not to put unnecessary impediments in the way of those seeking to hold judges to account for stated misbehaviour, incompetence or infirmity of body or mind, provided they are able to leap over the hurdle of establishing a prima facie case against the judge complained of.
The second defendant’s response to the plaintiff on this issue is that (see p. 23 of his Statement of Case):
“2. Article 146(6) which is a follow-up on Article 146(3) simply states:
“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.”
3. This Article does not identify any specific category or group of persons who can petition the President for the removal of the CJ. Any ordinary citizen, or an enfranchised Ghanaian is qualified to petition the President. A fortiori, a lawyer of 28 years standing at the Bar, who is apprised of the disturbing details of the Petition, can petition the President for the removal of the CJ.”
I would uphold the second defendant’s arguments on this capacity issue. There is nothing in the Constitution or any statute which stands in his way if he wishes to petition the President for the removal of the Chief Justice. He must, however, establish a prima facie case against the Chief Justice, before the President can establish a committee to investigate the allegations contained in his petition.
I am strengthened in my view that the second defendant has capacity to bring the petition by the line of ofsic case law which this Court has developed on the distinct issue of capacity to bring an action under article 2 of the Constitution. (See e.g. Tuffuor v. Attorney-General [1980] GLR 637; Sam (No.2) v. Attorney-General [2000] SCGLR 305 and Bimpong-Buta v. General Legal Council [2003-2004] SCGLR 1200.) These cases and others have held that a person need not have a personal interest in the outcome of a suit to bring action under article 2 of the Constitution. It is sufficient if he is a citizen of Ghana. This is a solid analogy on which to base capacity to bring a petition under article 146. It would be anomalous if this Court were to adopt a different basis for determining the capacity of a petitioner under article 146. Moreover, an insightful rationale for this stance on capacity is provided by my brother Justice Ocran JSC, in terms of the public interest representation model, in his concurring opinion in this case, which I have had the privilege of reading in advance in draft. I accept that rationale.
Is the publication of the Second Defendant’s Petition in the Media a Breach by him of Article 146(8)?
The last of the declarations sought by the plaintiff is (it will be recalled) in the following terms:
“A Declaration that the publication in the media of the 2nd defendant’s petition to the President contravenes Article 146(8) of the Constitution which provides that all proceedings relating to the removal of a Justice of the Superior Court shall be held in camera.”
This claimed relief highlights a fascinating tension between the constitutional objective of not undermining the integrity of the judiciary through the public airing of allegations against judges which may be unfounded and cannot be proven and the even more important constitutional objective of protecting freedom of expression. Speaking of the rationale for Article 146(8), Kpegah JSC affirmed in Ghana Bar Association v. Attorney-General [1995-96] 1 GLR 598 at p. 656 that:
“The good sense in the constitutional prescription that impeachment proceedings be held in camera, are very obvious and need not be recited here; suffice it to say that the judiciary, as an institution, thrives on the healthy estimation in which it is held by the people it serves. It is therefore not safe to impugn the integrity of a judge in public in case the allegation turns out to be unfounded; hence the constitutional provision that such proceedings be held in camera.”
On the other hand, Article 21(1)(a) guarantees the second defendant his freedom of speech and expression. It is, to my mind, significant that freedom of expression is the first of the general fundamental freedoms to be listed in Article 21. Students of political systems acknowledge that freedom of expression is among the foremost of fundamental freedoms. It is vital to the exercise of freedom of conscience; to the development of personal identity and to participation in political discourse and the political process. The framers of the 1992 Constitution had this importance of freedom of expression firmly in their sights when making the original proposals for the Constitution. The Committee of Experts who drew up the Proposals for a Draft Constitution of Ghana had this to say on freedom of expression (at p. 25):
“The experience of modern states has demonstrated convincingly that in the absence of freedom of the press and thought, and an enlightened and vigilant public opinion, a safe future for democracy and its success cannot be ensured anywhere. The mass media, the press and platform are the means to educate the people and make them the watchdogs of their liberties inherent in a democracy. So vital is the role of the mass media that freedom of expression along with that of the press has been called “the first freedom”. Indeed, any successful attack on human rights by governments often starts with a suppression of the freedom of the press. Once this freedom is denied, governments are free to abuse basic human rights without any publicity and frequently with impunity.”
Accordingly, it is not by accident that the 1992 Constitution has provided a framework for a strengthened freedom of expression in Ghana.
How are these two constitutional rights to be reconciled in a situation where the actual proceedings under Article 146 have not yet commenced? Can a petitioner under Article 146 freely publish to persons other than the President the contents of his or her petition to the President before the start of any proceedings under the Article? Or, can it, rather, be validly argued that the public interest in protecting impeachment proceedings against judges from being put into the public domain is sufficiently strong to withstand the countervailing public interest in the freedom of expression of the petitioner? This Court has the responsibility of striking the right balance between these two competing public interests.
The plaintiff’s argument on this issue is that the in camera provision in article 146(8) implies confidentiality which extends to documents and other relevant materials employed or to be employed in the proceedings. In support of this requirement of confidentiality, he contends in his Statement of Case as follows (at p.35):
2. “2. There are cogent reasons why the framers of the Constitution have provided for in camera proceedings. Judges are in a peculiarly vulnerable position. It is very easy to scandalize a judge by making allegations against him which may turn out to be utterly without foundation. A judge, unlike a politician, does not have the machinery of a political party and press secretaries behind him. He cannot, as a politician can, mount a public platform or engage in a public media debate. It is therefore understandable, and indeed essential, that proceedings relating to the removal of a judge be held in camera so as not to provide the medium by which an innocent judge may be scandalized. It is to avoid the real possibility that a judge will be scandalized and damaged by frivolous and baseless allegations. Such damage, when it occurs, invariably is not wholly repaired even if the judge is found innocent.
3. The Petition, upon which all proceedings will be based having been placed in the public domain, has engendered serious prejudice and opprobrium against the Chief Justice, who has already been scandalized by the media. For example, on March 9, 2006, the Enquirer newspaper published a story about the Petition under the banner headline “The Chief Justice is Corrupt”. The headline can only be understood by readers of the newspaper as an assertion of proven fact. An examination of the Petition has not even begun and yet the full text of the Petition is in the public domain the subject of debate on radio stations along with the usual scorn and opprobrium, which is fashionable on FM stations these days. Plaintiff submits that the publication of the Petition, which would be an essential part of the proceedings, is a clear breach of Article 146(8).”
The second defendant’s response to the plaintiff’s case on this issue is that (see p. 22 of his Statement of Case):
“In my considered view, it is not the contents of the Petition which should be “held” in camera. It is the enquiry into the contents of the Petition which is required to be held in camera. I submit therefore that the wide publicity given the Petition does not contravene Article 146(8) of the Constitution as reliefs (vi) (sic) seeks to proclaim.”
In any case, the second defendant denies that he was responsible for putting the petition in the public domain. He rather accuses the Chief Justice of responsibility for attracting publicity to the petition. He does however admit (at p. 20 of his Statement of Case) to sending a copy of the petition to the Secretary of the Bar Association; the Attorney-General and the Judicial Secretary. He even gives a hint that he may have given a copy to the Minority Leader in Parliament, although admittedly the second defendant’s language on this score is unclear and insufficient to constitute an admission. This is what he says (ibid):
“5. In fact, the contents of the Petition were not made public by anybody, not even the Minority Leader in Parliament who one may perceive would publicise it. The first publicity about the Petition was made by the CJ himself, when in addressing a public gathering on 1st March 2006, he proclaimed to the world, that somebody is colluding with pressmen to have him removed from office because he is fighting corruption. …”
A balanced assessment of the competing public interests in this area is bound to lead to a certain degree of curtailment of the freedom of expression of a petitioner for the removal of a Chief Justice or any other judge of the Superior Court of Judicature. The constitutional requirement that the impeachment proceedings be held in camera would be defeated if the petitioner were allowed to publish his or her petition to anyone other than the President. This is likely to lead to the petitioner’s allegations being aired in public, while the judge’s response can only be considered in private. This would lead to grave adverse public relations consequences for the judiciary. The institution of the judiciary could be undermined without any justification. Accordingly, in my view, a petitioner under article 146 may not disclose the contents of his or her petition to the media nor indeed to any person other than the President. He or she may reveal the fact that he or she has presented a petition to the President, but not its contents, if the purpose of the framers of article 146(8) of the 1992 Constitution is to be adhered to.
To conclude, on this issue, I am not persuaded by the second defendant’s argument that it is only the enquiry into the contents of the petition which is confidential and that the contents of the petition itself are not confidential. That position subverts the intention and purpose embodied in article 146(8). For, what purpose is served by holding the impeachment proceedings in camera if, in the meantime, the contents of the petition have been put into the public domain? In order to remain true to the purpose of article 146(8), I believe that the plaintiff is right in contending that the confidentiality attaching to the impeachment proceedings should also extend to documents and other relevant materials employed or to be employed in the proceedings. Accordingly, I am of the view that the second defendant breached article 146(8) when he published the contents of his petition to persons other than the President. However, there is no conclusive evidence on record that the second defendant was responsible for the publication in the media of his petition.
Conclusion
Let me conclude by summing up on which of the reliefs sought by the plaintiff I would grant or reject: First, I am unable to grant the first of the declarations sought by the plaintiff “that the petition dated 13 January 2006, presented by Mr. Bright Akwetey to the President which relates to the removal of the Chief Justice is in respect of the performance of administrative functions of the Chief Justice within the meaning of Article 125(4) of the Constitution and is, therefore, inconsistent with the said Article 125(4)”.
Second, I am unwilling to grant the second declaration sought by the plaintiff “that Mr. Bright Akwetey is not entitled to present his petition to the President in his personal capacity or as a Lawyer and officer of the Court in respect of a complaint relating to the transfer or removal from office of the Judges named in the petition being administrative acts within the competence of the Chief Justice as provided by Article 125(4) and Article 127(1) and (2) of the Constitution.”
Third, I would also refuse the third declaration sought by the plaintiff to the effect that “an appointment by the President of a Committee to enquire into Mr. Bright Akwetey’s petition dated 13 January, 2006, will constitute an interference which infringes Article 127(1) and (2) of the Constitution.”
Fourth, I do, however, declare that, upon a proper purposive construction of the whole of article 146 in the context of the Constitution viewed in its entirety, the Chief Justice must be given the benefit of a prior determination of whether a prima facie case has been established against him before the President may lawfully establish a committee to consider a petition for his removal. This prima facie determination is to be made by the President in consultation with the Council of State. Thus, as claimed in the plaintiff’s fifth relief, the consultation by the President with the Council of State in respect of the appointment of a committee to inquire into a petition for the removal of a Chief Justice has to determine first whether the said petition discloses a prima facie case, before the President may proceed to the appointment of the committee, again in consultation with the Council. In the course of my judgment, I also advised the Council of State that it would be prudent for it to evolve a convention by virtue of which the advice of an independent reputable lawyer would be sought by it as part of the consultative process with the President on this issue.
Finally, I hereby declare that the publication of the petition by the second defendant to persons other than the President contravened Article 146(8) of the Constitution, which provides that all proceedings relating to the removal of a Justice of the Superior Court shall be held in camera.
In the result, the plaintiff’s action partially succeeds.
Role of the Attorney-General
I am disappointed that the Honourable Attorney-General did not deem it fit to assist this Court in these proceedings. I believe that it would serve the interests of the development of our constitutional jurisprudence if the Attorney-General were to adopt a policy of active engagement in all cases where the original jurisdiction of the Supreme Court has been invoked. In contrast, I wish to commend counsel for the plaintiff and the second defendant, who appeared in person, for their industry in assisting this Court to determine the issues of law raised in this case.
ASIAMAH, JSC
I have had the opportunity of reading through the erudite judgments of my learned brothers DR. Date-Bah and Prof. T. M. Ocran. I agree with the opinions reached in their judgments. I have however few additions to make. The facts have been given in the lead judgment. I would therefore not belabour myself in repeating same.
The Plaintiff and 2nd Defendant filed separate memorandum of issues. However the issues raised in both memoranda are virtually identical or the same.
I will begin by stating what the duties of the Chief Justice are. His duties are clearly defined in Article 125(4) of the 1992 Constitution. Section 4 of Article 125 states:
“The Chief Justice shall, subject to this Constitution be responsible for the administration and supervision of the Judiciary.”
The word “supervision” is used in its literal sense. To supervise as defined in Encarta World English Dictionary first published in 1999 carries two meanings: firstly it means “to watch over a particular activity or task being carried out by other people and ensure that it is carried out correctly”. And secondly “to be in charge of a group of people engaged in some activity and to keep order or ensure that they carry out a task adequately”.
It is obvious from this definition that the execution of the Chief Justice’s responsibilities entails the ultimate fulfilment of the legitimate customary expectation of the general populace. His work should lead to the promotion of efficient and reliable judicial administration with a view to maintaining a harmonious societal relationships and secondly to see to establishing an enduring and acceptable professional conduct of its personnel particularly among its judges so as to maintain and sustain public confidence in the overall administration of Justice.
This oversight responsibility includes, inter alia, the transfer of judges, empanelling judges to sit on cases and physical and qualitative development of the entire judicial set up. In carrying out this duty the Chief Justice is subject only to the Constitution and intuitively guided by the exigencies of the ever changing climate of the social and economic ethos of the time.
At the onset of the hearing of this Case the 2nd Defendant raised a preliminary objection to the empanelling of the bench by the Chief Justice on the ground that he has an interest in the outcome of this case. This court overruled his objection and deferred reasons for its ruling. Here we go with the reasons. The power to empanel a bench of Justices to sit on a case, a constitutional responsibility, vested solely in the Chief Justice was eloquently stated by the Full Bench of the Court of Appeal then the highest Court in Ghana, in the case of Akufo-Addo v. Quashie-Idun [1968] GLR 663 thus:
“……..where a statute clearly enjoins a person to perform an act, he has to do it even if its performance is incompatible with the strict rules of natural justice.”
The court further stated op.cit. that in
“a situation of necessity where the person to exercise the power to constitute the bench, hearing the appeal, is also a party to the appeal” and no other may perform his duty it is the person in whom the power is vested who is to perform the act notwithstanding the principles of natural justice.
The court held at pages 673-674:
“As no other may perform his duties for him, the objection on the ground of natural justice cannot be sustained.”
Furthermore in the most recent case of Kuenyehia v. Archer and Ors. [1993-94] 2GLR 525 this court had an occasion to decide on the question of whether or not the power to empanel judges vested in the Chief Justice could be delegated or waived whilst there is a substantive Chief Justice in an active service. The Court per Francois, JSC said at p 529 as follows:
“The power or the right to empanel judges to sit on cases have by convention use and practice become the exclusive preserve of the Chief Justice. He has constitutional responsibility for the smooth administration and supervision of the judiciary. He is the Constitutional head of the judiciary. The right to empanel justices by the Chief Justice are (sic) in accordance with precedents and authority. He has no power to delegate or waive that responsibility or that duty in favour of any person whilst in office and is able to act…..”
This same view was expressed and held in another earlier judgment of this court in the case of Bilson v. Apaloo [1981] GLR 24. In this suit the Chief Justice was the Defendant and it was he who empanelled the bench to sit on the case. In a response to the challenge to the judicial rightness of the Chief Justice’s action in empanelling the justices the court held per Anin JSC at pp 52-53 that:
“This duty is undoubtedly a ministerial duty as distinct from a judicial or quasi-judicial are and no adjudication is involved in the empanelling of a court. There can therefore be no question of either reasonable suspicion of real likelihood of bias arising in the discharge of such a ministerial, non-judicial duty.”
In the three cases just referred to above the words “right” and “duty” have been used. The two words are correlatives. A “right” has been defined as “the capacity of a person with the aid of the law, to require another person or persons to perform, or to refrain from performing a certain act” and a “duty”, an obligation the law imposes upon a person to perform a certain act, or refrain from performing a certain act.” See Smith and Roberson’s Business Law 9th ed. P5. If a duty is vested in, or imposed upon a person, it is only that person who shall perform it. This is explicitly what the case law has endorsed as epitomised in the cases referred to in this judgment: Furthermore Article 297(b) gives a positive affirmation to this firm position of the case law. It reads:
“(b) where a power is conferred or duty is imposed, the power may be exercised and the duty shall, be performed, from time to time, as occasion requires.”
It is obvious from Article 297(b) that in the performance of his duty be it administrative or judicial the Chief Justice has no power of delegation. The imperative word “shall” has been used to emphasise the non-delegable nature of his Constitutional duties.
The situations where a locum tenens may step into the breach and perform the Chief Justice’s duties, as for example, to empanel a bench of justices to determine a case are specified in Articles 144(6) and 146(10) (a) of the 1992 Constitution. The former Article states:
“(6) 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…….those functions shall be performed by the most Senior of the Justices of the Supreme Court.”
And the latter, that is 146(10)(a), is:
“(10) 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 :”
The phrase “unable to perform” in Article 146 (6) connotes an existing and continuing factual situation. It encompasses situations where the Chief Justice is not available or has travelled outside the country or has been incapacitated by reason of ill-health or has been suspended by the President acting within the authority of Article 146 (10)(a) of the Constitution. In any one of these three circumstances a locum tenens may step into the shoes of the disabled Chief Justice and perform his duties. None of these situations has arisen. The president has not yet justifiably exercised his Constitutional power under Article 14610)(a). In fact the stage at which he would be deemed to be acting within the remit of his power under the said Article is yet to ripen. I will go into depth to the matter of this aspect of the issue of impeachment later in this judgment. It was upon the basis of these reasons that the objection as to the Constitution of the Justices by the Chief Justice to hear the Plaintiff’s case was jettisoned.
Article 146 and sections thereof and others correlative to it are now due to be considered. The 2nd Defendant’s petition, seeking, as it were to stampede the President to straightaway set in motion impeachment proceedings against the Chief Justice prompted the Plaintiff to come to this court for the interpretation of Article 146 upon which the former relies in his petition for the removal of the Chief Justice form office “on the grounds of Abuse of Power and judicial misconduct pursuant to Article 146 of the 1992 Constitution”. The diatribe against the Chief Justice in the Petition relates to the transfer from Accra to some provincial courts in the Country of Justice Oppong, a Justice of the High Court Judge Ankamah, a Circuit Court Judge and the dismissal of yet another Circuit Court Judge, Kyeremeh by the Chief Justice. The three Judges were involved in some underhand dealings in the performance of the juridical duties. This fact was in the public domain before the transfers and the dismissal were effected. It is worth noting that in the event of the occurrence of any misconduct on the part of any judge of the inferior court necessitating dismissal it is the Judicial Council of which the Chief Justice is the head which does it and not the Chief Justice. No action therefore can be taken against the Chief Justice personally in respect of dismissals affecting any inferior court judge.
It is also worth stressing the point that once appointed, a judge has a right to work at any court anywhere in Ghana commensurate with his judicial rank or status. However, he acquires no right to be posted permanently to any specific place, town or court if the position he holds is below that of Justice of the Appeal Court or Supreme Court. If a judge is transferred to an outstation post or a provincial court and he strongly feels that his transfer has been actuated by malice and that the Chief Justice has acted capriciously or whimsically his recourse to redress lies in his or her seeking a judicial review in the courts but does not lie in petitioning the President for impeachment however badly he or she or any person might feel about it. It is an accepted principle of law that where a law confers a specific task to a body or person, the power to carry out the task, if the law is not to be rendered wholly in effectual, that it confers on the body or person necessarily and per se the powers which are indispensable in order to carry out the task. Transfers are a necessary part of the friction of the machinery of effective judicial administration. They occur when the exigencies of the time so require with a view to upholding the integrity of the judiciary and maintaining an enduring public confidence in the judicial set up as an instrument of justice and equity.
If our notion of the judiciary as an instrument of justice is to endure, then the Chief Justice who is the head of this institution should not be seen to be manipulating the justice system by any overt or covert act of his by wilfully promoting the prostitution or corruption of the system through meddlesome interference in the judicial work of the judges and thereby rendering the judges automatons in the performance of the judicial responsibilities. If such a conduct becomes part of the modus operandi of the oversight responsibility of the Chief Justice he will be seriously compromising his high office and be an anathema to our civilised society. The consequence that will inevitably flow from such a despicable behaviour may render him liable for removal under S 128 (4) of the Constitution for lacking in “high moral character and proven integrity”. This Article reads:
“A person shall not be qualified for appointment as a Justice of the Supreme Court unless he is of high moral character and of proven integrity…”
There is a serious paucity of evidence to the effect that the Chief Justice in transferring the two judges committed administrative impropriety. The justice of this case would not warrant our Lordships to put any reliance on mere speculative musings and conjecture of a petitioner. To yield to such speculative assertions and give judicial credence to them would not only lead to promoting in our justice system miscarriage of justice but also to fuelling distrust in the judiciary and invidiously institutionalising what I will term procedural terrorism in the administration of justice.
Article 146 does not explicitly state the procedural rules by which impeachment proceedings must follow. Be that as it may, we are not, however, oblivious of what the nature and form a written Constitution should take. In his book The Nature of the Judicial Process at p83, Justice Cardozo has echoed the characteristic form of a Constitution in the following words:
“A Constitution states or ought to state not rules for the passing hour, but principles for an expanding future.”
Our society has through its Constitution in its Article 146(1),(3) conferred a legal right upon the superior court Justices of which the Chief Justice holds the position of primus inter pares, and created a moral claim in them that the right would be upheld. The responsibility of honouring this claim falls on Justices of this court. It is for this court to discern the procedure embedded in the Constitution and to reveal it for it is emphatically within the remit of this court not only to interpret the Constitution but it equally behoves of it to explicate, supply omission, correct uncertainties and expound it. It is also an inextricable element of law that once rights are created they must be given procedural protection. This procedural safeguard is that which is stated in Article 146(3). It requires that there must be a prior investigative process for the purpose of establishing a prima facie case against any Justice of the Supreme Court whose composition includes the Chief Justice before the President can proceed to act under the authority of Article 146(6).
The principle of equality of all person before the law and non-discrimination is firmly ensconced in Article 17(1) (2) of the Constitution and it states:
“(1) All persons shall be equal before the law.
“(2) A person shall not be discriminated against on grounds of……social or economic status.”
What then are the attributes of equality and fair treatment before the law? In her book Just Law published in 2005, Helena Kennedy has illuminated this principle thus at p 49:
“The principles of equality before the law and of fairness demand that we extend the same rights to everyone. Whenever we deny to one class of suspects rights that we treat as essential for others, we act unfairly.”
I venture to say that rights are not expandable entities to be discarded when exigencies require. At page 113 of Due Process and Fair Procedures by D. J. Galligan the learned author in stressing the need to uphold rights has said: sic
“….but where the individual person is treated unfairly by being denied of a right to which he is entitled, injustice results and the integrity of the process is called into question.”
Let me for a moment pause to explicate the word “equality”:. This word in its general import is susceptible to duality of interpretation, namely, formal equality and substantive equality. In the book Judicial Review of Administrative Action we have a lucid explication of the word in its double meaning at pages 576-577 as follows:
“Formal equality requires officials to apply or enforce the law consistently and even handedly, without bias.”
The learned authors went further to explain what “consistent” application of the law entails and said op.cit:
“Consistent application of the law also, however, possesses another value in its own right — that of ensuring that all person similarly situated will be treated equally by those who apply the law.”
And in adverting to substantive equality they said:
“…..Substantive equality, does not refer to the enforcement of the law but to its content. It seeks equal laws — laws which themselves do not discriminate between individuals on invidious grounds.”
This view expressed by the learned authors chimes in with the letter and spirit of Article 17(2) of the Constitution which has been reproduced earlier on in this judgment. The argument before this court neatly dovetails into the legal frame of what the learned authors have said in their book and Article 17(1), (2) of the Constitution. That the Chief Justice being a necessary portion of the composition of the complement of the Justices of the Supreme Court can’t be made to be amenable to an entirely separate or different procedural mode of inquisition and excluded from that which is applicable to his confreres. The superior court Judges constitute one egalitarian crowd of Justices. They are under the principle of equality and fairness amenable to one and the same investigative procedures in matters relating to their rights or anticipated impeachment. It is also the legitimate expectation of the holders of office of Chief Justice or any other office created by law to which the law attaches a right in the holder thereof that whenever an occasion arises requiring something to be done, like for example impeachment, that which is to be done would follow the same process which is applicable to his peer office-holders.
This expectation is clarified at p 58 of D. J. Galligan’s book Due Process and Fair Procedures that it:
“is not just hope, prediction, or wishful thinking, but has a binding and obligatory character, so that to thwart the expectation would be a breach of obligation.”
The law does not concern itself with speculations. It rather seeks to explore arguable cases and to draw the right and legitimate decisions on them. Now this is the position of the law with regard to Article 146 of the Constitution that without first establishing an arguable or a prima facie case against a superior court judge, and the Chief Justice is one such judge, the President of Ghana has no power constitutionally or otherwise to appoint any committee under S 6 of Article 146 to start straight away impeachment proceedings against the Chief Justice. This is the cumulative intent and purpose of sections 1, 3, 6, and 10(a) of this Article, that is Article 146.
I will now consider the standing of the 2nd defendant in his purported petition. It was in consequence of this petition that the plaintiff brought the present action. The foundation of the petition was that the Chief Justice had transferred some two judges earlier on mentioned in this case and caused the dismissal of a third judge. The 2nd Defendant took the initiative in his own right and not as a representative of the judges whose alleged interest he claimed to be championing. It is remarkable to note that the persons for whose interest the 2nd defendant appears to be fighting never filed any process in the action neither did the 2nd Defendant initiate his impeachment petition as a representative of the affected judges nor as their accredited legal representative. He brought the action in his own right. Was the 2nd Defendant under the impression and with the understanding that under Article 2(1)(b) of the Constitution he is clothed with sufficient locus standi to file his petition? This Article reads:
“2(1)(b) Any persons who alleges that any act or omission of any person is inconsistent with, or in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”
Under this provision and granting that the transfers of the two judges by the Chief Justice in the performance of his administrative functions and the dismissal of the third judge was in contravention of any of the constitutional provisions the appropriate forum for an action he was minded to take is the supreme court but not to take his complaint to the President through a petition. It must be acknowledged that Article 2 of the Constitution Permits any person who shows an honest interest in a public issue to invoke the processes of the court to have a substantive matter of concern considered and that such public spirited persons may be encouraged, however, the courts should be vigilant so as not to encourage a professional litigant and meddlesome interloper to invoke the jurisdiction of the court or any provision of our constitution in matters in which he is not concerned.
The plaintiff’s action succeeds in part as stated in the lead judgment.
ADINYIRA (MRS), J.S.C.
I have previously had the opportunity to read the reasoned opinion of my Brother Dr. Date-Bah, J.S.C. and fully attachésic myself thereto and have nothing useful to add except the following remarks on relief (iv) of the plaintiff’s writ.
This case inspires a delicate balance of sensitivelysic and detachment. The plaintiff has invoked the exclusive and original jurisdiction of this court under article 130(1)(a) of the 1992 Constitution to interpret Article 146(6), beyond ordinary rules and presumptions of statutory interpretation, and to construe it concurrently “with Article 146(3) and (4) which requires the establishment of a prima facie case prior to the setting up of a committee against a Justice of the Supreme Court because the Chief Justice is the first and foremost a sicJudge of the Superior Court”.
Fortunately, this Court does not need any prodding. The Supreme Court has by its own previous decisions recognized as a living organism, the Constitution that this country adopted which as expressed in the opening of the preamble to the Constitution was:
“In EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessing of liberty, equality of opportunity and prosperity.”
This aspiration can only be achieved if the supreme law of the land is interpreted as a living organism meeting the needs and aspirations of the people and not bogged down by strict literal interpretations which may fit issues of the past but might shrink with the passage of time and stifle the growing spirit and mind and yea even the freedom of the people for whose benefit and protection the Constitution was adopted, enacted and given. This Court has in the past gone beyond literal text of the Constitution in recognizing and securing particular rights of the individual. Some of these cases have been adequately dealt with in my brother’s judgment.
Article 146(3) affords Justices of the Superior Court procedural safeguards whereby the President is required to refer a petition for the removal of a Justice of the Superior Court to the Chief Justice to determine whether there is a prima facie case before a panel is appointed to investigate the matter. There is no compelling reason why such procedural protection should not be accorded the Chief Justice who is first and foremost of the Superior Court. Failure to do so may erode the whole spectrum of the benefits of security of tenure that Article 146(1) seeks to accord the Justices of the Superior Courts. It is obvious that the drafters of the constitution made an inadvertent omission. I therefore concur with the lead judgment.
Appearances
MR. KOFI ASANTI WITH NANA ASANTE BEDIATUO AND MR. ASARE OKYERE ,DARKO FOR PLAINTIFFS. 2ND DEFENDANT IN PERSON
