CONSOLIDATED WRIT CENTRE FOR CITIZENSHIP vs. AG & ORS AND HER LADYSHIP JUSTICE TORKORNOO vs. AG & 5 ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: AMADU JSC (PRESIDING)

KULENDI JSC

KWOFIE JSC

DZAMEFE JSC

ADJEI JSC

SUURBAAREH JSC

AMALEBOBA JSC

CONSOLIDATED WRIT

NOS. J1/20/2025 & J1/22/2025

2ND JULY, 2026

CENTER FOR CITIZENSHIP

CONSTITUTIONAL AND ELECTORAL …………. PLAINTIFF

SYSTEMS LBG (“CenCES”)

VRS

1. THE ATTORNEY-GENERAL …………. 1ST DEFENDANT

2. HER LADYSHIP, JUSTICE GERTRUDE …………. 2ND DEFENDANT

ARABA ESAABA SACKEY TORKORNOO

3. HIS LORDSHIP, JUSTICE GABRIEL …………. 3RD DEFENDANT

SCOTT PWAMANG

AND

HER LADYSHIP, JUSTICE GERTRUDE ARABA ……… PLAINTIFF

ESAABA SACKEY TORKORNOO

VRS

1. THE ATTORNEY-GENERAL ……… 1ST DEFENDANT

2. JUSTICE GABRIEL SCOTT PWAMANG ……… 2ND DEFENDANT

3. JUSTICE SAMUEL KWAME ADIBU-ASIEDU ……… 3RD DEFENDANT

4. DANIEL YAW DOMELOVO ……… 4TH DEFENDANT

5. MAJOR FLORA BAZWAANURA DALUGO ……… 5TH DEFENDANT

6. PROFESSOR JAMES SEFAH DZISAH ……… 6TH DEFENDANT

JUDGMENT

TANKO AMADU JSC:-

INTRODUCTION

My Lords, Chapter Eleven of the 1992 Constitution of the Republic provides an elaborate frame work for the judiciary under Articles 125 to 161. Inherent in the provisions of the Articles is the security of tenure of Justices of the Superior Courts of Judicature and the independence of the judiciary. However construed, those provisions are not intended for the comfort of the justices who constitute the judiciary, but their security of tenure. The provisions are also intended for the protection of the people, the governed in whom the sovereignty of the State resides and on whose behalf the judiciary administers justice.

Implicit in the provisions is also a solemn covenant that, the judiciary will adjudicate without fear or favour to all persons, it being the people’s ultimate guarantee that the law, and not the will of the public office holder ultimately governs the Republic. It is therefore a matter of the gravest moment for the citizenry and the judiciary, when the head of the judiciary is drawn into a constitutional process for removal from office and for this court to be invited to pronounce on the validity of that process. The two consolidated actions herein present precisely that occasion.

The Plaintiff in Writ No.JI/20/2025, the Centre for Citizenship, Constitutional and Electoral Systems LBG (“CenCES”) is a body corporate that sues as a citizen under Article 2(1) of the Constitution and shall be referred to simply as the First Plaintiff. The Plaintiff in Writ No.JI/22/2025 was until her removal, the Chief Justice of the Republic and head of the Judiciary pursuant to Article 125(1) of the 1992 Constitution. It is the procedure by which the provisions of Article 146 of the Constitution was invoked, given effect to, and eventually resulting in her removal which is central to the issues for our determination. The effect is that, if this court finds favour with the respective declaratory reliefs sought in either or both actions, then pursuant to Article 2(2) of the Constitution, this court is empowered to make “such orders and give such directions as it may consider appropriate ……”

This consolidated action before us has arisen from a single sequence of events: the receipt by His Excellency the President of the Republic of three petitions seeking the removal of the Chief Justice; the announcement on 22nd April 2025 that, following consultation with the Council of State, a prima facie case had been established against her; the constitution of a five-member committee under Article 146(6) to inquire into the petitions; and the warrant, issued the same day under Article 146(10)(a), suspending the Second Plaintiff from office pending the outcome of that inquiry.

The constitutional significance of what is at stake is not light. Article 146 of the Constitution stands at the meeting-point of two principles, each indispensable to the constitutional order and each capable, if pressed to its extreme, of defeating the other. The first is the security of judicial tenure, without which judges cannot decide causes without fear, and the rule of law cannot endure. The second is the accountability of those who hold public office, without which the judicial power, like any other, may be abused with impunity.

The framers of the 1992 Constitution, conscious of our own history in which the summary dismissal of judges was once an instrument of executive displeasure sought under Article 146 to reconcile these principles: to make the removal of a judge possible, but only upon stated grounds, by a prescribed and protective procedure, and never at the unfettered will of the Executive or any other branch of government. The questions in these suits are, at bottom, questions about how that reconciliation is to be read and applied. They are not questions about whether the Second Plaintiff did or did not commit the conduct alleged. That is the business of the committee. They are questions about the meaning of the safeguards the Constitution provides, and about the limits of this Court’s own role in supervising and ensuring compliance pursuant to the powers vested in the Supreme Court under the same Constitution.

We are not unaware of the singular and peculiar character of this litigation. It is novel in the history of our judiciary for the holder of the highest judicial office in the land to appear as a party before the Court she heads, especially in an action which defines her tenure. Therefore, the Justices of this Court have been called upon to pronounce upon the lawfulness of a process touching one of their own who in fact is their head but the other peculiar character of this dispute is that, two of their colleagues are named as Defendants. We do not sit in a matter of this kind lightly.

As this Court observed in the related ASSAFUAH case, the judiciary as an institution, and its officials, are charged with the exercise of judicial power on behalf of the people, and the recent happenings surrounding this matter have been, to say the least, lamentable; yet it is precisely because the people must have somewhere to turn for the peaceable and orderly vindication of their rights that, this Court cannot shrink from a duty laid upon it by the Constitution merely because the duty is novel and uncomfortable.

We approach the task, as we must, with detachment and fidelity to the Constitution alone. The office of the Second Plaintiff does not enlarge her rights, and the eminence of the questions does not alter the discipline of their resolution. As Sowah JSC reminded us in TUFFUOR VS. ATTORNEY-GENERAL [1980] GLR 637, the Constitution must be read as a living organism, in a broad and liberal spirit; but it must be read, and not rewritten, and the duty of the Court is to give effect to its letter as illuminated by its spirit, no more and no less.

It is imperative to point out that, we are not concerned with the truth or otherwise of the allegations in the three petitions as that is within the report of the committee. Neither are we sitting in judgment upon the wisdom of the President’s decision, nor upon the political controversy that has attended these events. Our jurisdiction, invoked under Articles 2(1) and 130(1) of the Constitution, 1992, is confined to the interpretation and enforcement of the Constitution. What unites the two actions is a contest over the meaning and incidents of the prima facie requirement that this Court read into Article 146 in AGYEI-TWUM VS. ATTORNEY-GENERAL & AKWETEY [2005-2006] SCGLR 732, and over the constitutional limits upon the process of removing a Chief Justice.

We must also address at the outset, a development that has overtaken the events out of which these actions arose. Since the institution of these suits the Article 146 process has run its course: the committee has reported, the Second Plaintiff has ceased to hold the office of Chief Justice, and a new Chief Justice has since been appointed and sworn into office. The question naturally arises whether the consolidated action has thereby become moot and ought not to be entertained. We are satisfied that it has not, and that, we remain bound to decide it. The reliefs sought are not confined to the restoration of the Second Plaintiff to an office she no longer holds which this court undoubtedly has the power to do. They, also raise questions of the true and proper interpretation of Article 146 , the nature of the prima facie determination, the incidents of the in camera rule, the qualification of committee members, and the limits upon the power of suspension which are of general and enduring constitutional importance, which govern every future invocation of the removal process against any Justice of the Superior Courts or other constitutional office holder as prescribed in the Constitution and which are eminently capable of repetition.

Where therefore, a Constitutional question of this character has been fully argued and is of continuing public moment, this Court does not decline to resolve it merely because the particular controversy that occasioned it has moved on. The removal of the Second Plaintiff from office neither answers the questions she raised, nor relieves us of the duty to answer them. It simply means that, our answers will not only guide the future but will infact make remedial restorative orders if we have to.

II. THE CONSOLIDATION AND THE PARTIES

Writ No. J1/20/2025 was issued by CenCES, and Writ No. J1/22/2025 by the then Chief Justice, each invoking the original jurisdiction of this Court. Although the two writs are differently framed, that First Plaintiff endorsing seven reliefs and the Second Plaintiff sixteen, they raise, substantially at their core, the same questions of constitutional interpretation concerning Article 146. In the interest of the orderly and consistent administration of justice, and to avoid the spectre of conflicting determinations upon identical questions, the two actions were consolidated and heard together upon the memoranda of issues filed by the parties.

This single judgment disposes of both. In each action the 1st Defendant is the Attorney-General, joined under Article 88(5) as the Constitutional representative of the State; the 2nd to 6th Defendants in Writ No. J1/22/2025 are the five members of the committee constituted under Article 146(6), the 2nd (its Chairman) and 3rd being Justices of this Court, while the 4th, 5th and 6th are the lay members of the Committee.

On the morning appointed for the adoption of issues, the Court was presented with a notice of withdrawal filed by counsel for the Plaintiff in Writ No. J1/22/2025 (“Second Plaintiff herein”). The Court found the notice defective, no direction for service having been made upon the Second Plaintiff herself, and declined to presume that, she had been notified of the step taken by her lawyer. The notice of withdrawal was not struck out, with the effect that, the lawyer who filed it remained the Second Plaintiff’s lawyer on record. Having regard to the public-interest character of the action, and the fact that all processes, including the memoranda of issues, had been filed, the Court directed that, a certified copy of the proceedings and of the notice of withdrawal be served upon the Second Plaintiff, with liberty to file any further process before judgment. This court then proceeded with the hearing and determination of the consolidated action. Nothing in the course thus taken, has worked any prejudice to the Plaintiff in J1/22/2025, whose case, as fully pleaded, we have considered upon its merits.

III. THE FACTS

The material facts are, for the most part, not in dispute, and several of them are borne out by the very processes filed before us. On 25th March 2025, the Presidency announced, by public notice that, the President had received three petitions seeking the removal of the Second Plaintiff from office and had transmitted them to the Council of State for the consultation mandated by Article 146. Of particular significance for the issues we must decide is what followed.

The Second Plaintiff did not sit passively. By her letter of 27th March 2025, she herself requested copies of the petitions and an opportunity to respond to them before any determination was made. The President obliged that request. By a letter of 28th March 2025 the Presidency furnished her with the petitions and invited her response.

On 4th April 2025, she submitted written responses to each petition; and on 7th April 2025 those responses were transmitted to the Council of State. It was only thereafter, on 22nd April 2025, that the prima facie determination was made. The sequence is therefore, not in doubt: the Second Plaintiff asked to be heard before the determination. Her request was granted and she was heard. Her responses were therefore before the consulting authority when the determination was made.

On 22nd April 2025, the President announced that, his consultation with the Council of State had established a prima facie case in respect of each of the three petitions; that a five-member committee had been constituted under Article 146(6) to inquire into them; and that, acting on the advice of the Council of State, he had by warrant suspended the Second Plaintiff from office with immediate effect. The communication conveying the prima facie finding, signed by the Secretary to the President, stated the conclusion but set out no reasons and did not identify which of the allegations in the several petitions had been found to cross the prima facie threshold.

A word should be said, at this factual stage, about the body whose consultation lay at the heart of the process. The Council of State is established by Article 89 of the Constitution to counsel the President in the performance of his functions. It is composed of persons of experience and standing in national life, including former holders of high judicial and other constitutional office. It is neither a court nor a tribunal, and it does not adjudicate; its constitutional function is consultative and advisory.

Yet, as this Court held in the AGYEI-TWUM case (supra) it is precisely this body that the Constitution contemplates as the safeguard of independence at the threshold of the removal of a Chief Justice, the disinterested check, standing apart from the ordinary political contest, whose participation supplies the assurance that the prima facie determination is not the unilateral act of the Executive. Its involvement here, on the undisputed facts, preceded both the prima facie determination and the warrant of suspension, each of which was made or advised in consultation with, or upon the advice of, the Council.

It is common ground that, the contents of the petitions and of the Second Plaintiff’s responses found their way, by unauthorised disclosure, into the public domain, and that the matter attracted sustained public commentary. It is also a matter of record that the process being impugned has already been the subject of a series of interlocutory applications before this Court, each seeking to halt it and each refused. The challenge in VINCENT EKOW ASSAFUAH VS. ATTORNEY-GENERAL (Writ No.J1/18/2025) was dismissed on 6th May 2025.

The interlocutory reliefs sought by the First Plaintiff CenCES, founded upon materially the same depositions now repeated, were dismissed on 21st May 2025; and the Second Plaintiff’s own application for interlocutory injunction was dismissed, by unanimous decision, on 28th May 2025. Those rulings, being interlocutory, did not finally dispose of the substantive questions of interpretation, which are reserved for this judgment; but the reasoning there developed, to which we shall return, bears directly upon the matters now to be decided.

IV. THE RELIEFS SOUGHT AND THE ISSUES

Because two distinct writs have been consolidated, each with its own indorsement of reliefs and its own memorandum of issues, we think it appropriate to set out separately, and faithfully, what each Plaintiff has sought and what issues each suit has raised, before distilling the questions that fall to be determined in the consolidated action.

The reliefs sought in Writ No. J1/20/2025 (CenCES)

In the first of the Consolidated Suits, the First Plaintiff, CenCES, suing as a citizen under Article 2(1), indorsed on its writ the following reliefs:

A declaration that, upon a true and proper interpretation of Articles 17(1), (2) and (3), 23 and 146(1), (2), (3), (4) and (6) of the Constitution, the purported determination by the President, communicated by the Secretary to the President by letter dated 22nd April 2025 in respect of the three petitions for the removal of the Chief Justice, does not constitute a determination of a prima facie case and is therefore null, void and of no effect.

A declaration that, upon a true and proper interpretation of Articles 17(1), (2) and (3), 23, 146(1), (2), (3) and (6), 125(3) and (4) and 127(1) and (2) of the Constitution, the said purported determination contravenes the constitutional prohibition of executive interference with the independence of the Judiciary and is therefore void.

A declaration that, upon a true and proper interpretation of Articles 146(1), (2), (3), (4) and (6), 23 and 296 of the Constitution, the establishment of a five-member committee to inquire into the three petitions without a prima facie case duly determined violates the Chief Justice’s right to equal treatment under Article 17 and to a fair hearing under Article 19(13), and is unconstitutional, null and void.

An order restraining the committee set up by the President from carrying out its terms of reference or inquiring into the three petitions, and restraining the 2nd Defendant from participating in the committee’s proceedings.

A declaration that, upon a true and proper interpretation of Articles 146(1), (2), (3), (4) and (6), 23 and 296 of the Constitution, the warrant of suspension issued by the President dated 22nd April 2025 violates the Constitution, the Chief Justice’s rights to a fair hearing and equal treatment under Articles 17 and 19(13), the right to administrative justice under Articles 23 and 293, and the protection of judicial independence under Articles 125(3) and 127, and is therefore unconstitutional, null and void.

An order striking down the warrant of suspension dated 22nd April 2025 as arbitrary, capricious, unconstitutional and void.

Any other order(s) as this Honourable Court may deem fit to make.

The reliefs sought by Second Plaintiff in Writ

No. J1/22/2025

In the second of the Consolidated Suits, the Second Plaintiff, suing as a citizen under Article 2(1)(b), indorsed on her writ sixteen reliefs, set out as follows:

A declaration that, upon a true and proper interpretation of Articles 17(1) and (2), 19(13) and (14), 146(7) and (8), 281(1) and 295(1) of the Constitution, a Chief Justice has the right to a public hearing in proceedings before a committee appointed to inquire into a petition for her removal.

A declaration that, upon the like interpretation, and of Article 23, the right to a public hearing and the incidents of a fair hearing may be excluded only in the interest of public morality, public safety or public order.

A declaration that, upon the like interpretation, a Chief Justice called upon to participate in a hearing under Article 146(6) may waive the privilege of in camera proceedings.

A declaration that, upon a true and proper interpretation of Articles 19(13), 23, 146(1), (2), (4) and (6) and 296, a determination of a prima facie case in respect of a petition for the removal of a Chief Justice or a Justice of the Superior Courts is a quasi-judicial process requiring a judicious evaluation culminating in a reasoned decision.

A declaration that the purported prima facie finding served on the Plaintiff by letter dated 22nd April 2025 does not amount to a proper determination of a prima facie case and is null, void and of no effect.

A declaration that the purported finding by the President that a prima facie case had been made against the Plaintiff was arbitrary, capricious, in violation of her right to a fair trial, and therefore unconstitutional, void and of no effect.

A declaration that, upon a true and proper interpretation of Articles 146(1), (2) and (4), 125(3) and (4), 127(1) and (2) and 296, the purported determination, together with the warrant of suspension, constitutes an unjustified attempt to remove the Plaintiff as Head of the Judiciary and an undue infringement of judicial independence.

A declaration that, upon a true and proper interpretation of Article 146(6) and (7), the failure to serve the Plaintiff with a judicious determination of a prima facie case before appointing the committee violated her right to substantive administrative justice and fair hearing, rendering the entire proceedings null and void.

An order setting aside the warrant of suspension dated 22nd April 2025.

A declaration that, upon a true and proper interpretation of Articles 23, 146(6) and (7) and 296(a) and (b), the 2nd Defendant, Justice Gabriel Scott Pwamang, is not qualified to be chairman or member of the committee, having adjudicated and given rulings in favour of one of the petitioners, Daniel Ofori.

An order prohibiting the 2nd Defendant from presiding as Chairman of the committee or participating in its proceedings.

A declaration that, upon a true and proper interpretation of Articles 23, 127(1) and (2), 146(6) and (7) and 296(a) and (b), the appointment of the 3rd Defendant, Justice Samuel Kwame Adibu-Asiedu, who had already sat on a panel of this Court hearing an application challenging the Article 146 proceedings, violates the independence of the Judiciary.

An order prohibiting the 3rd Defendant from sitting as a member of or participating in the proceedings of the committee.

A declaration that, upon a true and proper interpretation of Articles 146(1), (2) and (4), 23 and 296 and Sections 1, 2 and 4 of the Oaths Act, 1972 (NRCD 6), the 4th, 5th and 6th Defendants are not qualified to act as members of the committee.

An order restraining the committee, composed of the 2nd to 6th Defendants, from proceeding to carry out the terms of reference set out in the letter dated 22nd April 2025.

Any other order(s) as to this Honourable Court may seem meet.

The memorandum of issues in Writ No. J1/20/2025

(CenCES)

In the CenCES Suit, the Attorney-General proposed, and the Court adopted, the following issues for resolution:

Whether a prima facie determination under Article 146 requires a judicially reasoned legal opinion.

Whether the suspension of the Chief Justice from the performance of the functions of the office amounts to interference with the independence of the Judiciary.

Any other issue(s) that the Court may deem necessary.

The memorandum of issues in Writ No. J1/22/2025 filed on behalf of the Second Plaintiff

In Writ No.JI/22/2025 initiated by the Second Plaintiff, the Attorney-General proposed, and the Court adopted, the following issues:

Whether an Article 146 committee hearing may be held in public at the instance of the Plaintiff alone.

Whether an Article 146 prima facie determination in respect of the removal of a Chief Justice requires a reasoned legal opinion in support.

Whether or not a person is disqualified from adjudicating an Article 146 petition on the ground only that he has previously adjudicated a court matter involving a party.

Whether or not the 3rd Defendant ever heard the motion for interlocutory injunction in ASSAFUAH VS. ATTORNEY-GENERAL (Suit No. J1/18/2025).

Whether or not the 4th, 5th and 6th Defendants have taken and subscribed to the oath of office.

Any other issue(s) that the Court may deem necessary.

THE CONSOLIDATED ISSUES FOR DETERMINATION

Drawing the two memoranda together, and adding the further questions necessarily raised on the facts, the issues that fall for determination in the consolidated action are set of by this court as follows:

Whether the determination by the President, in consultation with the Council of State that, a prima facie case exists in respect of a petition for the removal of the Chief Justice is a quasi-judicial act requiring a reasoned decision; and, if so, the legal consequence of the absence of stated reasons.

Whether the right to be heard (audi alteram partem) attaches to the prima facie stage, and whether it was observed in this case.

Whether a Chief Justice who is the subject of an Article 146(6) inquiry is entitled to a public hearing, or may unilaterally waive the in camera requirement of Article 146(8).

Whether the suspension of the Chief Justice under Article 146(10)(a) constitutes an unconstitutional interference with the independence of the Judiciary.

Whether the 2nd and 3rd Defendants are disqualified from membership of the committee on grounds of bias or the appearance of bias.

Whether the participation of the 4th, 5th and 6th Defendants is vitiated by a failure to take the prescribed oath.

Whether the Attorney-General may properly appear as counsel for the members of an Article 146(6) committee.

V. THE CASES OF THE PARTIES

Although the two suits have been consolidated and turn upon overlapping questions, the case advanced by each party is distinct in emphasis, and we summarise each in turn before proceeding to analyse them within the context of the relevent applicable law.

(I) The Case Of The First Plaintiff in Writ No.J1/20/2025

(CenCES)

The First Plaintiff (CenCES), a body corporate suing as a citizen in defence of the Constitution, puts its case as one of institutional principle rather than personal grievance. Its central contention is that the words “determine whether there is a prima facie case” in Article 146, read purposively and in the light of the AGYEI-TWUM case, require an actual determination. And that involves a reasoned evaluation of the petitions against the Second Plaintiff’s responses and not a mere cursory reference to a conclusion. A determination unaccompanied by reasons, it argues, is no determination at all, and offends the duties of fairness and candour imposed by Articles 23 and 296.

The First Plaintiff further contends that, two of the petitions being grounded upon the Second Plaintiff’s conduct in the exercise of judicial power, a prima facie finding upon them trespasses against the immunity conferred by Article 127(3). Further that, the suspension, effected without a proper determination, is an executive interference with judicial independence contrary to Articles 125(3) and (4) and 127(1) and (2); and that, if such a process is left unchecked, the removal mechanism may be turned into a tool for intimidating the Judiciary. It prays, accordingly, for the nullification of the determination, the striking down of the warrant of suspension, and the restraint of the Committee.

(II)The case of the Second Plaintiff in Writ No.J1/22/2025

The Second Plaintiff’s case, while embracing the same core contention as to the necessity of a reasoned prima facie determination, is broader and is pressed on several further fronts. She contends first, that, the determination of 22nd April 2025 was arbitrary, capricious and devoid of reasons, in breach of Articles 19(13), 23 and 296 and that, every step founded upon it, the suspension and the constitution of the committee is in consequence null and void.

Secondly, she contends that, the petitions and her responses having been unlawfully published, she is entitled to waive the in camera privilege of Article 146(8) and to have the inquiry held in public, consistent with Articles 19(14) and 281(1). Thirdly, she challenges the composition of the committee contending that, the 2nd Defendant is disqualified by his prior judicial involvement in matters concerning two of the petitioners. On the 3rd Defendant by his having sat on the panel that heard the challenge to the process; while the 4th, 5th and 6th Defendants were not qualified to act for want of swearing to prescribed oath.

Fourthly, she contends that, the representation of the committee by the Attorney-General, a member of the Executive, is incompatible with the independence of a body forming part of the Judiciary’s own disciplinary machinery. She prays for declarations and orders giving effect to each of these contentions, and for the setting aside of the warrant of suspension.

(III) THE CASE OF THE DEFENDANTS

The Attorney-General, appearing for all the Defendants, resists every relief and prays that the consolidated action be dismissed in its entirety. His case is, in summary, as follows. The determination whether a petition discloses a prima facie case is committed to the President in consultation with the Council of State, a consultative and pre-eminently political body under Article 89, and is not a judicial act requiring a reasoned legal opinion. That, the phrase prima facie bears its ordinary meaning, calling only for the question whether the allegations, assumed true, would warrant further inquiry. He further contends that, even if reasons were desirable, their absence will not nullify the determination, as this Court held in its ruling of 28th May 2025 and as the authority of R VS. OLDHAM JUSTICES, EX-PARTE CAWLEY [1997] QB1 confirms.

In the response on the in camera requirement of Article 146(8), the Attorney General argues that, it is a mandatory constitutional command which the Second Plaintiff cannot waive at her election. The suspension was effected in the precise manner authorised by Article 146(10)(a) and is therefore not an interference with judicial independence. He submits further that, the allegations of bias fail the settled test of real likelihood of bias laid down in SALLAH VS. ATTORNEY-GENERAL [1970] 2 G&G 493 (CA).; the complaint against the 3rd Defendant is in any event foreclosed by the finding of 6th May 2025, that the 3rd Defendant did not adjudicate the relevant motion; while the complaint as to the oath fails on the facts as same is answered by Section 4(2) of the Oaths Act, 1972 (NRCD 6).

In support of his overarching submission that, this Court should not interfere with a constitutional process, the Attorney-General relies upon the high threshold for such interference established in WELFORD QUARCOO VS. ATTORNEY-GENERAL [2012] 1 SCGLR 259 AND RANSFORD FRANCE (NO.1) VS. ELECTORAL COMMISSION [2012] 1 SCGLR 689, and upon the jurisdictional limits affirmed in GHANA BAR ASSOCIATION VS. ATTORNEY-GENERAL [1995-96] 1 GLR 598.

VI. JURISDICTION AND THE APPROACH TO

INTERPRETATION

No question was raised, and none could be, as to the competence of this Court to entertain these actions. By Articles 2(1) and 130(1) of the 1992 Constitution, the Supreme Court has exclusive original jurisdiction in all matters relating to the enforcement or interpretation of the Constitution. The settled test, laid down in REPUBLIC VS. SPECIAL TRIBUNAL; EX-PARTE AKOSAH [1980] GLR 592 and applied without interruption since, is that, the jurisdiction arises where the words of a provision are imprecise or ambiguous, where rival meanings are pressed upon the Court, or where the operation of constitutional institutions is in conflict. The proper construction of the prima facie requirement in Article 146(6) and (7), and the reach of Articles 23, 125, 127 and 296 upon the removal process, squarely engage the first two limbs of that test. The action is properly before us. Nor is there any difficulty as to the standing of either Plaintiff.

The law is settled, since TUFFUOR VS. ATTORNEY-GENERAL (supra) and the long line of jurisprudence that, follows it, that the enforcement of the Constitution is a matter of public right, and that any citizen may invoke the original jurisdiction of this Court to vindicate the Constitution, without the need to demonstrate any personal interest beyond that which he holds in common with every other citizen. The First Plaintiff, CenCES, sues in that representative and public-spirited capacity, as a body corporate exercising the citizen’s right under Article 2(1) to seek a declaration that a conduct is inconsistent with the Constitution.

The Second Plaintiff, then Chief Justice, sues both as a citizen and as the person most directly affected by the process impugned. Each is properly before the Court, and the public character of the questions raised which we have already held to survive the conclusion of the particular controversy reinforces rather than diminishes the propriety of our entertaining them.

The Attorney-General urged upon us, as a threshold matter that, the substance of the determination of the President and the Council of State is “policy-based” and is beyond the reach of the Court. We think it unnecessary to decide the question in the absolute terms in which it was put. This Court undoubtedly has jurisdiction to inquire, under Article 295(8), whether a constitutional power has been exercised in accordance with the Constitution. To that limited extent, the actions are justiciable, and we have entertained them.

However, the Attorney-General’s submission carries an important and sound caution, which we accept and to which we shall return. That, the more a function partakes of consultative and political judgment as the determination committed by Article 146 to the President and the Council of State plainly does, the narrower is the proper compass of judicial review, and the greater the restraint the Court must observe. We may ask whether the Constitution was obeyed; we may not substitute our own judgment for that which the Constitution has entrusted to others. With that distinction in mind, we turn to what the Constitution in fact requires.

That restraint is not a matter of mere prudence; it is the settled jurisprudence of this Court in matters of public law. In WELFORD QUARCOO VS. ATTORNEY-GENERAL [2012] 1 SCGLR 259 and RANSFORD FRANCE (NO.1) VS. ELECTORAL COMMISSION [2012] 1 SCGLR 689, this Court laid down that, the carrying out of a constitutional function will not lightly be restrained or undone; that the threshold for judicial interference with the discharge of a constitutional or statutory duty is a high one, to be approached with extreme circumspection. That such interference is warranted only upon a clear and manifest constitutional infraction, where the public interest in the orderly operation of the Constitution would not thereby be defeated. The same discipline that governs whether a court will halt a constitutional process must inform whether it will annul the steps already taken within it.

We bring that discipline to bear upon the reliefs now sought, mindful that what the Plaintiffs ask, in substance, is that this Court bring to a halt a process the Constitution has set in motion. It follows that the intensity of review appropriate to a determination of this character is at the lighter end of the spectrum.

Public law has long recognised that the rigour with which a court scrutinises the exercise of a power varies with the nature of the power and of the body exercising it. At one extreme, lie decisions affecting fundamental rights or personal liberty, which attract the most anxious scrutiny. At the other, lie decisions of high policy, committed to bodies chosen for their political or of a representative character, where the court’s role is confined to ensuring that the decision-maker has kept within the four corners of its authority and has not acted in a manner so unreasonable that no reasonable authority could have so acted.

A consultative prima facie determination by the President and the Council of State, a body the Constitution designed for the bringing of seasoned judgment to bear upon affairs of State lies much nearer the latter end than the former. This Court does not sit as an appellate forum upon the merits of that determination. This court does not ask whether it would itself have reached the same conclusion. This court will only ask whether the determination was one open to be made within the constitutional power, made by the right body, by the prescribed procedure, and untainted by a clear and manifest infraction. To assume a more intrusive role would be to convert the supervisory jurisdiction of this Court into an appellate one, and to arrogate to the Judiciary a share in a function the Constitution has confided to others. We are careful not to stray outside our constitutional mandate.

As to method, the parties are at one, and rightly so, that the governing approach is the purposive and holistic construction settled in the TUFFUOR case (supra) and elaborated in the AGYEI-TWUM case and BROWN VS. ATTORNEY-GENERAL (AUDIT SERVICE CASE) [2010] SCGLR 183. That approach now has statutory anchorage. Section 10 of the Interpretation Act, 2009 (Act 792) enjoins the purposive construction of enactments, and the Memorandum to that Act records that the courts of the Commonwealth “have abandoned the strict constructionist view of interpretation in favour of the true purpose of legislation”, taking account of the words according to their ordinary meaning together with the subject-matter, scope, purpose and background.

The aim here is one of synthesis rather than a concentration on language to the exclusion of context. We are thus to read the Constitution as a whole, in the light of its core values and the aspirations of its preamble, and to distil from its underlying philosophy such implications as flow inexorably from its spirit. It is by that approach that this Court, in the AGYEI-TWUM case read into the otherwise sparse language of Article 146(6) and (7) the requirement of a prima facie determination before a Committee may be appointed to inquire into a petition against the Chief Justice. The present actions ask us to say what the incidents of that requirement are; but, as we shall see, the purposive method that supplies a missing requirement does not also supply a licence to multiply requirements at will. We turn to that question and answer them.

Two interpretive canons of particular relevance accompany us into this inquiry. The first is that a provision is to be read as a whole and in its context, so that the words “prima facie case” in Article 146 take their colour from the office they perform within the removal scheme, and not from any abstract or imported meaning. The second, which the authorities establish and which this Court has repeatedly applied, is that a constitutional provision conferring power upon a public functionary is construed strictly, neither enlarged beyond its terms in favour of the repository of the power, nor, as we have observed, burdened with conditions the Constitution did not impose.

Allied to these guidelines is the presumption of constitutionality and of regularity as official acts done under colour of constitutional authority are presumed to have been regularly and validly done until the contrary is shown, and the burden of displacing that presumption lies upon the party who asserts the invalidity. These canons are not mere technical aids; they reflect the constitutional allocation of functions, reminding the Court that, its task is to police the boundaries of power, not to occupy the territory of those to whom power has been entrusted by the Constitution.

VII. THE NATURE OF THE PRIMA FACIE

DETERMINATION AND THE QUESTION OF REASONS

(i) THE COMPETING CONTENTIONS

The Plaintiffs contend that, the determination of a prima facie case under Article 146 is a quasi-judicial act; that, it must be the product of a judicious evaluation of the petition against the response; that it must be accompanied by reasons; and that it must specify which of the allegations have been found to cross the threshold. A bare announcement that a prima facie case “has been established”, they say, is no determination at all, and everything built upon it falls with it.

The Attorney-General answers that, the President and the Council of State are a consultative and pre-eminently political institutions and not a court. That the Council of State is constituted under Article 89 to bring to bear a distinguished sense of judgment upon matters of public concern and further that, prima facie bears its ordinary meaning of “on the face of it”, calling for the modest question whether, assuming the allegations true, they would amount to a ground of removal warranting further inquiry. The Attorney-General submits further that, in any event, the want of stated reasons does not nullify a decision, for which proposition reliance is placed upon the ruling of this Court of 28th May 2025, where I was privileged to deliver the opinion of the court and upon authorities such as R VS. OLDHAM JUSTICES, EX-PARTE CAWLEY.

(ii) THEANALYSIS

We acknowledge at once that the Plaintiffs’ argument is not without appeal, and we do not dismiss it lightly. There is a respectable instinct, rooted in the values of Articles 23 and 296 that, the exercise of any consequential public power should be transparent and that those affected by it should be told why. Were we writing upon a clean slate, and were the function in question a judicial one, much ink will be spilled for the standard the Plaintiffs urge. But we are not at large. We are bound by the language of Article 146, by the character of the institutions it engages, and by the prior pronouncements of this Court; and when these are weighed, the Plaintiffs’ case, however attractively put, are with all due respect unsustainable.

It is worth pausing upon what the AGYEI-TWUM case actually decided. For, both Plaintiffs lean heavily upon it and it repays close reading. The petition there concerned the then Chief Justice, and the Court was confronted with the silence of Article 146(6) and (7), which unlike clause (3) for ordinary Justices says nothing of a prima facie determination before a committee is appointed. Professor Date-Bah JSC, delivering the lead opinion held that, this silence was a “logical gap”, and observed that there was “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.”

Reasoning by analogy from clause (3), and from the objective purpose of the Constitution, the protection of judicial independence through security of tenure, the Court implied the requirement of a prima facie determination, and held that the Council of State should play a “prominent role” in making it, so as to secure an independent assessment. That, and no more, was the gap the Court filled. The Plaintiffs are right, therefore that, a genuine prima facie determination is constitutionally indispensable and that, the Second Plaintiff must be furnished with the petitions and afforded the opportunity to respond before it is made. Where their argument founders is in the further inference that the determination must take the form of a reasoned judicial opinion which the AGYEI-TWUM case neither states nor implies. To that extent, the Plaintiffs merely blew a muted trumpet to their hearing alone.

We begin with the character of the function. The determination whether a petition discloses a prima facie case is committed by Article 146(6), as construed in the AGYEI-TWUM case to the President acting in consultation with the Council of State. These are not judicial officers, and the body they compose is not a court. The Council of State, by Article 89, is a deliberative organ that brings political and practical wisdom to bear upon affairs of State; its members are not, qua members, charged with adjudication, and the idiom natural to them is that of counsel and advice, not of reasoned judgment. To require of such a body a determination cast in the form and idiom of a judicial opinion is to mistake its constitutional nature.

As the authorities relied on by the Attorney-General show, the pronouncement of Lord Bingham in A VS. SECRETARY OF STATE FOR THE HOME DEPARTMENT, AND THE NOTTINGHAMSHIRE [2004]UKHL 56 cautions that, the more a question partakes of political and consultative judgment, the smaller the role of the court and the lighter the procedural burden the law imposes. A consultative determination at the threshold of a constitutional process is not the same act, in kind, as the adjudication of guilt; and the Constitution does not demand that it be dressed as one.

We would add that, the very feature the Plaintiffs press, that is the involvement of the Council of State is, on the reasoning of the AGYEI-TWUM guidelines, the constitutional guarantee of independence at this stage, supplying the disinterested check that the analogy with Clause (3) was designed to secure. The protection the Plaintiffs seek is thus already built into the structure; what they ask us to add is not protection but mere formality.

Clearly the text of Article 146 does not lend itself to the Plaintiffs contention. This is because Clause (3), which governs other Justices of the Superior Courts requires the Chief Justice to “determine whether there is a prima facie case”, and Clause (6), which applies to a Chief Justice, requires the President in consultation with the Council of State to appoint a committee. Nowhere does the Article prescribe that the determination be reasoned, particularised, or reduced to a written opinion.

In the AGYEI-TWUM case, this court, held by purposive construction on the requirement of a prima facie determination that the bare text of the Constitution had omitted. The court did not go on to prescribe the elaborate incidents the Plaintiffs now seek to attach to it. We are invited, in effect, to take the implication drawn in the AGYEI-TWUM case and to build upon it, a further and more demanding edifice of procedure. That is a step the text does not compel, and we decline to take it. The function of this Court is to interpret the Constitution, not to legislate for it a code of administrative procedure that its framers did not enact.

In declining that invitation, we are not retreating into literalism; we are observing the limits that the purposive approach itself respects. Purposive construction empowers a court to fill a genuine gap, as the AGYEI-TWUM case filled the gap left by the silence of Clause (6) upon the prima facie requirement, an implication drawn to render the provision “reasonable or intelligible”, and no further. It does not licence a court to add to a provision incidents that its language does not bear.

The settled principle, as Francois JSC put it in KUENYEHIA VS. ARCHER [1993-94] 2 GLR 525, is that, in interpreting the Constitution the Court “must be very careful to avoid importing into the written document what does not appear therein”, for “rules of construction do not permit a passage which has a clear meaning to be complicated or obfuscated by any interpretation, however well intentioned.” To the same effect is the caution of Acquah JA (as he then was) in REPUBLIC VS. REGIONAL LANDS OFFICER, HO; EX-PARTE KLUDZE [1991] 2 GLR 13, that it would be “outrageous to read into” a clear provision what is not stated there. The Plaintiffs’ reading would have us do precisely that. It is an invitation to read into the spare command of Article 146 a detailed obligation of reasoned, particularised adjudication that its framers, who knew how to prescribe such things when they wished did not enact.

That restraint is reinforced by the canon, settled in this jurisdiction that, a constitutional provision conferring power upon a public functionary is to be construed strictly and not extravagantly; but the converse discipline applies with equal force to the obligations a court would imply against the exercise of such power. Just as the Court will not enlarge a grant of power beyond its terms, so it will not manufacture in the name of due process, conditions upon a constitutional power that the Constitution has not itself imposed. The accommodation the Plaintiffs seek is a matter for the framers, or for any future regulations and certainly not for the interpretive office of this Court in the instant consolidated action.

The point is one of high principle, and we may draw upon the learning of the foremost modern theorist of purposive interpretation, Justice Aharon Barak formerly of the Supreme Court of Israel, a leading proponent of the modern purposive approach to interpretation, as reflected in his book Purposive Interpretation in Law (Sari Bashi trans., Princeton University Press, 2005). His work has been embraced by this Court and underlies the purposive method we apply.

The purposive interpretation, Barak teaches, is at its most expansive in the constitutional field, favouring the objective purpose of the instrument and reading its “majestic generalities” in the light of the values of the democratic system; yet it remains, throughout, interpretation, and interpretation has limits. “The language of the constitution,” he writes, “is not clay in the hands of the interpreter, to be molded as he or she sees fit.” The structure and implications of a constitution may yield meaning written “between the lines”; but, in his memorable formulation, while “we can extract what is written between the lines, we cannot add lines that are missing.” To add a missing line is no longer to interpret but to fill a gap by a non-interpretive act, and “interpretation cannot create a new constitutional text.” It is significant that Barak names the separation of powers and the independence of the judiciary as themselves implications drawn from the structure of a constitution; the very values the Plaintiffs invoke.

We honour those structural implications. But the obligation the Plaintiffs would have us impose, thus, a reasoned, particularised, quasi-judicial opinion at the prima facie stage is not an implication latent in the structure of Article 146; it is a new line, which the framers did not write and which this Court will not add under the guise of construction.

The expression prima facie is a term of art with a settled and consistent meaning across the several contexts in which our law employs it, and that meaning is illuminating here. In the criminal law, a prima facie case at committal, or upon a submission of no case to answer, is established where the evidence, taken at its highest and assumed to be true, would be sufficient to require the accused to answer. It is emphatically not a finding of guilt, and it involves no weighing of the ultimate merits. In the civil law, a prima facie case is one which, if unanswered, would entitle the claimant to judgment.

This again, is upon the assumption that the asserted facts are made out. The common thread is that a prima facie assessment is provisional, it assumes, rather than proves the truth of the allegations, and asks only whether they are of sufficient substance to warrant the matter proceeding. To carry that meaning into Article 146 is to ask whether the petitions, assuming their contents are true, disclose allegations of misbehaviour, incompetence or infirmity serious enough to warrant the inquiry that the committee will conduct. It is not to ask, and it does not require the determining authority to decide, whether those allegations are in fact true. This is the very question the Constitution reserved for the committee.

It is against that background that the authority of the DERY case must be read, and it accords with the Attorney-General’s submission and against the Plaintiffs’. In DERY VS. TIGER EYE P.I. [2015-2016] 2 SCGLR 812, Benin JSC explained that, a prima facie determination involves an examination, upon initial scrutiny, of whether the petition raises serious issues bordering on misconduct, misbehaviour, incompetence or infirmity such that, notwithstanding the response offered, the matter deserves further investigation. That is a threshold and provisional assessment, not a final adjudication. It decides nothing as to the truth of the allegations. It decides only that, they are serious enough to be inquired into. A standard pitched at that modest level is amply satisfied by a considered conclusion that the threshold is crossed, and does not of constitutional necessity generate a reasoned opinion of the kind the Plaintiffs demand. To require, at this provisional and assumption-based stage, the full reasoned evaluation that belongs to the final adjudication would be to misunderstand the very concept the framers as construed in the AGYEI-TWUM case employed.

Further, the Plaintiffs argue that, whatever the general position, a determination wholly devoid of reasons must be a nullity. We are prepared to accept, and we say so plainly, that it is desirable that reasons accompany a determination of this consequence, and that the better practice to which we shall return is for the President and the Council of State to indicate, at least in summary, the basis of their conclusion. But desirability is not the same as constitutional imperative, and the want of reasons is not, in our law, a vitiating defect. In the ruling of this court of 28th May 2025, I addressed this very point and held as follows:

“While it is in the interest of justice that reasons accompany judicial or quasi-judicial outcomes, there is no known jurisprudence in our courts to the effect that a decision rendered without detailed reasons is thereby a nullity. This holds especially true when a prima facie case is said to have been made without reasons, but which merely requires the adversary … to appear before a committee of enquiry in response to the allegations for which the prima facie determination has been made.”

That reasoning, with which we respectfully agree and which we now adopt as the considered view of the Court, is fortified by authority of long standing in cases such as; R VS. OLDHAM JUSTICES, EX PARTE CAWLEY [1997] QB 1; and OPOKU & ANOR VS. AXES COMPANY LTD. [2012] SCGLR 1214, which establish that a decision is not rendered void merely because its reasons are unexpressed. The distinction is fundamental. A prima facie determination does not condemn; it does no more than open the door to an inquiry at which the person affected will be fully heard, and at the conclusion of which the committee must itself report and recommend. The protections of fairness are concentrated at the inquiry, where they belong, and not at the threshold gateway to it. To hold that, the absence of reasons at the gateway annihilates the whole process would be to elevate form above substance and to frustrate a constitutional mechanism on a ground the Constitution itself neither provides for, nor recognises.

It is worth dwelling on why the absence of reasons, even if it were a defect, would not entail the nullity for which the Plaintiffs contend. For, their argument throughout assumes that any departure from the ideal produces automatic voidness. That assumption is misconceived. Our law has long distinguished between an act that is void ab initio and one that is at most voidable or irregular, and between a defect that goes to jurisdiction and one that goes only to the manner of exercising it. Even where this Court finds a constitutional impropriety, it does not follow that the impugned act is automatically a nullity to be struck down root and branch; Article 2(2) of the 1992 Constitution confers upon the Court a remedial discretion to make “such orders and give such directions as it may consider appropriate.” In ASARE VS. ATTORNEY-GENERAL [2003-2004] SCGLR 823, for instance, this Court found that, the Speaker had acted unconstitutionally in purporting to perform the functions of President without taking the presidential oath, yet it declined the far reaching drastic relief the Plaintiff sought, fashioning instead a measured declaration for the future. The lesson is that constitutional adjudication is not a mechanical exercise in which every imperfection triggers annihilation. The Court weighs the nature of the defect, the prejudice (if any) it occasioned, and the public interest, before settling the consequence. An unreasoned but substantively valid threshold determination, which condemned no one and merely opened the door to an inquiry, is in our view, the kind of matter in which nullification would be a disproportionate and inappropriate response.

There is, further, a principle of our law directly fatal to the Plaintiffs’ attempt to deploy the common-law rules of natural justice to override the express terms of Article 146. As this Court recognised in AKUFO-ADDO VS. QUASHIE-IDUN [1968] GLR 667, and as Anin JA (as he then was) affirmed in BILSON VS. APALOO [1981] GLR 24, where the common law principles of natural justice conflict with a mandatory statutory or constitutional provision, the latter prevails, even if the result is that, the natural justice principle must yield. The framers, having prescribed in Article 146 a specific and detailed procedure for the removal of a Chief Justice by a process of consultation, prima facie determination, committee, in camera inquiry, report and recommendation have themselves defined what fairness requires in this setting. A litigant may not invoke a more demanding conception of natural justice to displace the very procedure the Constitution, the fundamental law, has laid down. To do so would invert the hierarchy of norms, subordinating the supreme law to a judge-made gloss upon it.

We have not overlooked the Plaintiffs’ reliance upon Article 127(3), which immunises a Justice from suit for acts done in the exercise of judicial power, and their submission that two of the petitions are founded upon judicial conduct and so cannot ground a prima facie case at all. The argument proves too much and is, in any event, premature. Whether particular allegations stray into the protected territory of decisional immunity, or whether they concern administrative conduct, misbehaviour or incompetence falling outside that protection, is the kind of question the committee is constituted to examine, with the petitions and responses before it.

Indeed, this Court in the AGYEI-TWUM case addressed the cognate question whether the administrative acts of a Chief Justice are immune from the impeachment process, and treated it as a matter for determination on the substance, not as an automatic bar. To decide it now, upon an originating action and without the benefit of the committee’s inquiry, would be for this Court to pre-empt the very process the Constitution ordains. The point is open to be taken before the committee, and thereafter, if necessary; it is not a basis for striking down the determination in advance.

Accordingly, we hold that, the determination of a prima facie case under Article 146 is a consultative and threshold function, committed to the President and the Council of State. That it is not required by the Constitution to be cast as a reasoned judicial opinion; and further that, the absence of stated reasons in the communication of 22nd April 2025 does not render that determination, or anything founded upon it, a nullity. The first and principal plank of both actions therefore fails, and are hereby dismissed.

VIII. THE RIGHT TO BE HEARD: THE RULE, ITS

EXCEPTIONS, AND ITS APPLICATION

Both Plaintiffs contend that, the audi alteram partem rule attaches to the prima facie stage and was not honoured. Because the rule lies at the heart of their case, and because its true scope is frequently misapprehended, we think it right to state the principle and its limits with some care before applying it to the facts.

The maxim audi alteram partem, hear the other side is, with its companion nemo judex in causa sua, one of the twin pillars of natural justice. Its content, in its classic form, is that a person whose rights, interests or legitimate expectations stand to be affected by a decision must be given adequate notice of the case against him and a fair opportunity to answer it before the decision is made. In our jurisprudence, the rule is not merely a creature of the common law. It is given constitutional force by Article 19(13) of the Constitution in adjudicative settings and, more broadly, by the guarantee of administrative justice in Article 23, which this Court in AWUNI VS. WEST AFRICAN EXAMINATIONS COUNCIL [2003-2004] SCGLR 471 held to require of every public decision-maker the qualities of “probity, transparency, objectivity, opportunity to be heard, legal competence, absence of bias, caprice or ill-will.” Nor is the rule, in this jurisdiction, a mere graft from English soil. It is woven into the indigenous legal tradition itself: As the authorities on customary arbitration such as BUDU II VS. CAESAR [1963] 1 GLR 241, confirm, the fundamental principle audi alteram partem, that a decision on the merits must be arrived at only after a fair hearing of both sides, was recognised as a necessary part of customary arbitration procedure long before it was constitutionalised. Its rationale is twofold: instrumentally, a decision taken after hearing both sides is more likely to be correct; and intrinsically, the dignity of the person affected demands that he not be condemned unheard. So cardinal do the courts regard the rule that, as this Court observed in REPUBLIC VS. HIGH COURT, ACCRA; EX-PARTE SALLOUM [2011] 1 SCGLR 574, a denial of the right to be heard is treated as a fundamental error which may nullify the proceedings irrespective of their merits.

The rule is not absolute with its exceptions and distinctions, as powerful as it is, a court that treated it as an inflexible incantation would do the law a disservice. The authorities, here and elsewhere, recognise that its application is shaped, and in defined circumstances displaced, by the following considerations.

First, the content of the right varies with the context. The rule does not prescribe a single, invariable procedure. What fairness requires depends upon the nature of the power exercised, the gravity of its consequences, and the stage of the process at which it is exercised. A hearing may be oral or it may be confined to written representations. It may yet be elaborate or summary. Fairness is a flexible standard, not a fixed ritual.

Secondly, the rule distinguishes between preliminary and dispositive decisions. A decision that merely sets an inquiry in motion, or that determines that a matter is fit to be investigated, does not attract the same intensity of hearing as the final decision that disposes of rights. At a threshold or screening stage, the law requires that the person be informed of the allegations and permitted to answer them. It does not require the full apparatus of a trial – oral evidence, cross-examination, and the rest which belongs to the dispositive stage. To insist upon the full panoply at the threshold would be to collapse the distinction the Constitution deliberately draws.

Thirdly, there are recognised categories in which the obligation is attenuated or excluded altogether. These include: statutory exclusion or modification, where the Constitution or a statute itself prescribes the procedure to be followed; urgency, where an interim or protective step must be taken at once and a hearing would defeat its purpose, the hearing being afforded afterwards; interim or disciplinary suspension, which the authorities treat as a holding measure not requiring a prior hearing in every case; impracticability, where a prior hearing is not feasible; and waiver, for it is settled , see BILSON VS. APALOO [1981] GLR 24 which provides the principle that, the rules of natural justice may be waived by the party entitled to their benefit. These are not licences for unfairness; they are recognitions that, in the circumstances to which they apply, no unfairness results from the modification of the ordinary rule.

Fourthly, breach and consequence are distinct questions. It does not follow from every departure from the ideal procedure that the resulting decision is a nullity. Whether a given imperfection vitiates a decision depends upon whether it worked a real unfairness or prejudice to the person affected. A complaint of breach that discloses no prejudice because the opportunity to be heard was in substance afforded, or because the decision complained of was merely preliminary, will not, without more, bring down the proceedings.

Situating these principles in the context of an Article 146 prima facie determination, two things are clear. First, the determination is, as we have held, a threshold and not a dispositive act. It decides only that, the petitions warrant inquiry, not that the allegations are true. By the distinction drawn above, the hearing it attracts is the opportunity to be told of the allegations and to answer them in writing, not the full apparatus of a trial, which belongs to the committee stage that follows. That, this is the measure of the right at this stage is confirmed by the DERY case (supra), whose very formulation of the prima facie standard that the petition deserves investigation “notwithstanding whatever response the respondent has to offer” presupposes that a response has been sought and received.

Second, on the undisputed facts, the opportunity that the rule requires at this stage was not merely available in the abstract but was invoked by the Second Plaintiff and granted by the President before the determination was made. As we have recounted, the Second Plaintiff herself, by her letter of 27th March 2025, requested copies of the petitions and an opportunity to respond. The President obliged. The Second Plaintiff was furnished with the three petitions on 28th March 2025. The Second Plaintiff submitted written responses on 4th April 2025; and those responses were transmitted to the Council of State on 7th April 2025, well before the determination of 22nd April 2025. This is not, then, a case in which a right to be heard lay dormant and unclaimed. It is a case in which the right was expressly sought, expressly accorded, and in fact exercised. The Second Plaintiff requested to be heard, and she was heard.

The case is therefore not one of denial of the right at all, still less of the kind of fundamental denial; it is, at highest, a complaint that the determination does not on its face record that her responses were weighed. But that, as we have already explained, it is a reformulation of the complaint of absent reasons, which we have rejected. The President and the Council of State are thus presumed, in the regular discharge of their constitutional functions, to have considered the material lawfully before them. This presumption the Plaintiffs have not displaced.

Even were the requirements of fairness at this stage more exacting than we have held them to be, the consequence for which the Plaintiffs contend, the nullification of the entire process would not follow. By the distinction between breach and consequence drawn above, and consistently with the holding of this Court in the DERY case that, even a breach of the confidentiality command of Article 146(8) does not ipso facto vitiate the petition or the process, an imperfection at the threshold that occasioned no real prejudice, the Second Plaintiff having in fact been heard, and the matter having proceeded to a full inquiry at which she was entitled to be heard again could not justify so drastic a remedy. On this issue also, the Plaintiffs fail. The reliefs sought consequent upon the resolution of the distilled issue herein are consequently dismissed.

We would emphasise, finally, the feature of the Article 146 scheme: it affords not one hearing but two, and the more searching of them comes later. At the threshold stage, the person affected is told of the allegations and may answer them in writing which the Second Plaintiff herein did. At the committee stage, she is entitled to the full incidents of a fair hearing: to know the case in detail, to be present, to be represented, to test the evidence against her, and to lead evidence of her own. The fairness of the process is therefore to be judged in the round, across both stages, and not by holding the threshold stage to a standard that the law reserves for the inquiry.

A process that guarantees a full hearing before any adverse determination on the merits is reached, does not become unfair merely because the preliminary filter that precedes it is, by design, summary. To insist otherwise would be to demand that the gatekeeping be conducted with all the formality of the trial it merely permits to commence, a demand the law has never made, and which would render the threshold stage redundant of its filtering purpose.

IX. THE IN CAMERA REQUIREMENT AND THE

ALLEGED RIGHT OF WAIVER

The Second Plaintiff contends that, the petitions and her responses having been unlawfully published, the protective purpose of the in camera rule in Article 146(8) is spent, and that, she is entitled to waive it and to have the committee’s inquiry conducted in public. She invokes Articles 19(14) and 281(1), and the principle that justice must be seen to be done.

The contention cannot survive the language of Article 146(8) and the settled construction of this Court. The provision is mandatory: “All proceedings under this article shall be held in camera.” In GHANA BAR ASSOCIATION VS. ATTORNEY-GENERAL [1995-96] 1 GLR 598 this Court, held the requirement to be a mandatory constitutional command, the purpose of which is to preserve, protect and safeguard the authority, dignity and independence of the Judiciary. In the AGYEI-TWUM case, Professor Date-Bah JSC, and in the DERY case Benin JSC, explained that, the confidentiality protects not the judge alone but the institution itself and the position of witnesses. A protection conferred in part for the benefit of the institution and of third parties is not the personal entitlement of the Second Plaintiff to be surrendered at her election and wish. The Second Plaintiff, could not be lawfully contending by waiver and dispense with a command the Constitution addresses to all.

Moreover, the reach of the provision is, wide. In the DERY case, this Court considered the very meaning of “in camera” and, declining to confine it to the narrow, literal image of a closed courtroom, held that the phrase, read with the words “all proceedings under this article”, extends to the whole of the removal process including its originating stages because the confidentiality serves a purpose that would be defeated by a grudging construction. The Court there reasoned that, the early process is itself quasi-judicial in character and that the protection of Article 146(8) is engaged from the outset. It aligned its construction with the United Nations Basic Principles on the Independence of the Judiciary, 1985, which provide that the examination of complaints against judges “shall be kept confidential unless otherwise requested by the judge.” We note, in passing, that the qualifying words of that international instrument “unless otherwise requested by the judge” reflect a policy choice that our framers did not make. Article 146(8) contains no such reservation in favour of the judge’s election, and we may not import one. The confidentiality of our Constitution prescribes is unconditional and cannot be disturbed.

We do not underrate the value the Second Plaintiff sought to invoke. Open justice, that justice should not only be done but be seen to be done is a principle of the first importance, and in the ordinary run of adjudication Article 19 guarantees a public hearing. But two answers must be given. The first is that the Constitution itself has, in Article 146(8), made a specific and deliberate exception to open justice for this particular class of proceeding, and a specific provision prevails over a general one. The framers weighed the value of publicity against the competing values of institutional dignity, the protection of witnesses, and the preservation of public confidence in the Judiciary during the pendency of an unproven allegation, and they struck the balance in favour of confidentiality. It is not for this Court to re-strike a balance the Constitution has already struck.

The second is that, the personal fair-trial guarantees of Article 19, on which the Second Plaintiff relies, are directed to the protection of a person against the determination of a criminal charge or civil right; they do not confer a right to insist that proceedings the Constitution requires to be private be made public. The right to a fair hearing and the right to a public hearing are distinct, and only the former is engaged by an Article 146 inquiry.

The argument from unlawful publication, far from assisting the Plaintiffs, tells against them. As this Court observed upon the interlocutory application in this very matter, the leakage of the petitions and responses was “a plain illegality”. It would be a singular doctrine that permitted an illegality to extinguish a constitutional safeguard, so that the wrong of disclosure became the warrant for abandoning confidentiality altogether. The remedy for a breach of Article 146(8) is to vindicate the provision, not to repeal it by conduct.

There is yet a deeper objection, which this Court adverted to in refusing the Second Plaintiff interlocutory application. To accede to the prayer would be to invite this Court itself to direct the committee to act in defiance of a mandatory command of the Constitution, to order, in effect, the very illegality that the Constitution forbids, and thereafter, perhaps, to be invited to declare the process a nullity for the breach so ordered. We decline that invitation. It is no part of the function of this Court to set aside, for the personal preference of a litigant however eminent, a provision the framers cast in mandatory terms for the protection of the institution as a whole. Nor are we able to read the Second Plaintiff’s asserted misgivings about the publicity of the process as a reason to doubt the impartiality of the five distinguished citizens, two of them her own colleagues on this bench with whom she has adjudicated disputes in this court and to whom the inquiry has been constitutionally entrusted; the integrity of an inquiry held in camera is not diminished by its confidentiality, which is its constitutional condition and not its vice. This relief is totally misconcieved and inherently mischievous. We accordingly dismiss it without hesitation.

X. THE SUSPENSION AND THE INDEPENDENCE OF

THE JUDICIARY

Both Plaintiffs contend that, the suspension of the Second Plaintiff is an unconstitutional interference with judicial independence, contrary to Articles 125(3) and (4) and 127(1) and (2). The submission, earnestly advanced, misconceives the nature of judicial independence and the structure of Article 146.

Judicial independence is a cardinal value of the Constitution, and this Court will guard it vigilantly. But independence, as Dotse JSC explained in DEXTER EDDIE JOHNSON VS. THE REPUBLIC [2011] 2 SCGLR 601, means that, the Judiciary is subject only to the Constitution and not to the control or direction of the Executive or the Legislature. It does not mean that, judges stand outside the Constitution’s own scheme of accountability. The separation of powers, as this Court recognised in ASARE VS. ATTORNEY-GENERAL [2003-2004] 823, is not absolute but is tempered by checks and balances. The branches are, in Justice Jackson’s words in YOUNGSTOWN SHEET & TUBE CO. VS. SAWYER 343 U.S. 579 (1952), the Steel Seizure case, “separate but interdependent, autonomous but reciprocal.” The power to remove a judge for proven misbehaviour or incompetence, and to suspend pending inquiry, is itself a constitutional check , which is, the means by which the Judiciary is held to account without being subordinated. To brand its lawful exercise an assault upon independence is to confound accountability with control.

An independent judiciary is indispensable to the rule of law; yet judges, who wield great power, cannot be wholly unaccountable, for unaccountable power is the antithesis of constitutionalism. Judicial independence is not absolute. The authority judges exercise must come with responsibility.The task of every mature constitution is therefore to reconcile the two imperatives that pull in opposite directions: to secure judges against removal at the whim of the political branches, and yet to provide a lawful means of removing the unfit.

Thus, the independence the Constitution guarantees has two principal dimensions. The first is decisional independence: the freedom of a judge, in deciding the cause before him or her from external direction, pressure, or fear of consequence protected in our Constitution by the security of tenure in Article 127, the protection of emoluments, and the immunity in Article 127(3) for acts done in the exercise of judicial power. The second is institutional independence: the autonomy of the Judiciary as a branch, in its administration and self-governance, from control by the Executive or Legislature, secured by Article 127(1) and (2).

Neither of the two dimensions is touched by the lawful invocation of Article 146. A prima facie determination and a suspension pending inquiry do not direct how any judge shall decide any case. They do not subordinate the Judiciary as a branch to the political organs. Neither do they not expose the judge to liability for his or her judicial decisions. They subject the individual judge, qua individual, to the constitutional process of accountability for alleged misbehaviour or incompetence, a process the Constitution itself ordains and which, far from offending independence, is the necessary counterpart of the security the Constitution elsewhere confers. Security of tenure is a shield against arbitrary removal; it is not a charter of impunity or misconduct.

The distinction between suspension and removal is, in this connection, fundamental, and the Plaintiffs elide it. Removal is the final and permanent deprivation of office. It may be effected only at the end of the process, upon the recommendation of the committee, for a ground established to the committee’s satisfaction. Suspension, by contrast, is an interim and protective measure, expressly authorised by Article 146(10)(a), which neither determines nor prejudges anything. Its utility is to hold the position in a state of suspense pending the inquiry in order to protect the integrity of that inquiry. It is in our view to preserve public confidence in the administration of the office while grave allegations are examined, and to spare both the office and its holder the impossible position of the latter continuing to exercise the highest judicial functions while the holder of the office is the subject of a pending removal proceeding.

The interim suspension of this kind is a familiar and accepted incident of judicial-discipline regimes the world over, and is not, in any of them, regarded as a violation of independence. That it operates upon the Second Plaintiff or for that matter any Chief Justice does not alter its character. The Constitution, in Article 146 (10)(a), expressly contemplates the suspension of the occupant of the office of Chief Justice. What the Constitution expressly authorises, it cannot simultaneously forbid.

This conclusion is reinforced by long-standing authority upon the very point. In GHANA BAR ASSOCIATION VS. ATTORNEY-GENERAL [1995-96] 1 GLR 598, Bamford-Addo JSC held that, the Constitution itself provides the grounds and the procedure for the removal or suspension of a Chief Justice, and that “no court has jurisdiction to suspend or grant an injunction to prevent him from discharging his duties or to remove a Chief Justice”.

Indeed, she added, “it would be a violation of the Constitution for any court to attempt to do this.” Wiredu JSC, in the same case, affirmed that this Court “does not have original concurrent jurisdiction with the body empowered” to deal with matters falling within Article 146. If this Court may not itself suspend or restrain a Chief Justice, neither, by parity of reasoning, may interfere with a suspension that the Constitution expressly authorises the President to make.

Finally, we are guided by the admonition of Benin JSC in the DERY case that, the petition which commences the process derives its validity from the Constitution, and that the substantive process so commenced is “divorceable from the procedural steps” put in place to resolve it, so that “the procedural steps cannot override the validity of the originating process.” The Plaintiffs’ complaints, go to the manner in which steps within the process were taken; they do not impeach the constitutional validity of the process itself. Such complaints are to be addressed within the process, and upon any review of its outcome, not by the destruction of the process at its threshold.

XI. THE ALLEGATIONS OF BIAS AGAINST THE 2ND

AND 3RD DEFENDANTS

The Second Plaintiff contends that, the 2nd Defendant, the Chairman of the committee, is disqualified because he sat on panels of this Court in matters involving two of the petitioners, Mr. Daniel Ofori and Mr. Ayamga Akolgo, and authored a judgment in favour of the former; and that the 3rd Defendant is disqualified because he sat on the panel that heard the injunction application challenging the process. The Attorney-General answers that the test is real likelihood of bias, that prior adjudication involving a party does not ipso facto establish it. Further, the Attorney-General submitted with respect to the 3rd Defendant that, it has already been determined that he never heard the relevant motion.

The governing test is firmly settled. It is a real likelihood of bias or actual bias. An allegation of bias, when challenged, must be proved to at least the civil standard. It is not enough to point to a reasonable suspicion. In ADZANKU VS. GALENKU [1974] 1 GLR 198 the Court held that, the law recognises not mere suspicion but an interest giving rise to a real likelihood of bias; and in QUIST VS. KWANTRENG [1961] GLR 605 it was observed that, the mere fact that a judge knows, or has previously decided a matter involving, a party is no reason to debar him for, “if that were so very few cases can be heard by judges born and bred in Ghana.” Were the contrary the rule, parties could engineer the disqualification of any judge by the simple expedient of having appeared before him or her before.

This Court has applied that test in the very setting of high judicial office. In TSATSU TSIKATA VS. CHIEF JUSTICE & ATTORNEY-GENERAL [2001-2002] SCGLR 437, the Plaintiff objected, on grounds of nemo judex in causa sua, to the Chief Justice empanelling the very court that was to hear an action in which the Chief Justice was a party. This Court unanimously rejected the objection, holding that the allegation of bias could not disable the Chief Justice from performing a function committed to that office by the Constitution, and that, while the discretion must under Article 296 be exercised fairly and candidly and not capriciously or out of prejudice, it is not defeated by the bare assertion of interest. The principle is directly apposite here: a constitutional function entrusted to a named officer or body is not paralysed by an unproven allegation of bias, and the standard for displacing such a functionary is correspondingly high.

The complaint against the 2nd Defendant requires closer attention. It is said that, one of the petitions complaining of interference with the execution of a judgment given in Mr. Ofori’s favour, and the 2nd Defendant having authored that judgment, he cannot impartially inquire into the allegation. We understand the disquiet, and we do not pretend that the overlap is ideal. But the test is not whether the position is ideal; it is whether a real likelihood of bias is established on evidence.

On scrutiny, it is not. The 2nd Defendant’s prior judgment was the unanimous or collegiate act of a panel deciding a cause between other parties; it expressed no view upon the conduct of the Second Plaintiff, who was herself a member of the same bench. To have participated in deciding the Ofori litigation is not to have formed, or to be likely to form, a partial view upon the distinct question whether the Second Plaintiff thereafter misconducted herself in relation to that judgment. The connection is one of subject-matter, not of interest or predisposition, and subject-matter overlap, without more, does not meet the test of bias. The allegation of disqualifying on ground of bias is not made out. The issue for resolution herein having been resolved in favour of the Defendants, the relief sought arising therefrom is consequently dismissed.

XII. THE OATH AND THE PARTICIPATION OF THE

4TH, 5TH AND 6TH DEFENDANTS

The Second Plaintiff contends that, the 4th, 5th and 6th Defendants had not taken the oath required by Article 156(1) and the Oaths Act, 1972 (NRCD 6) when the committee first convened, so that their participation is void. The complaint fails on the facts and on the law alike.

On the facts, whether and when the oath was taken is a pure question of fact. The Attorney-General has averred on affidavit that each member took and subscribed the relevant oath; the Plaintiffs have offered nothing but assertion in reply. An allegation of this kind must be proved, and it has not been. On the law, the matter is concluded by Section 4(2) of the Oaths Act, 1972 (NRCD 6) which provides that subsection (1) “does not invalidate an act done by a public officer in the execution or intended execution of official duties by reason only of the failure to take an oath or make an affirmation required of that public officer by law.” The statute draws the very distinction the Plaintiffs seek to collapse: a refusal to take the oath vacates or disqualifies. A mere failure does not invalidate the acts done. We see no warrant for reading down so plain a provision, which exists precisely to prevent the collateral nullification now sought.

The Plaintiffs’ argument, moreover, mistakes the purpose of the oath. An oath of office is a solemn affirmation of fidelity to the Constitution and to the duties of the office; it is a safeguard of the integrity with which the office is exercised, not a condition precedent upon which the very existence of the office or the validity of every act done in it depends. The common law has long recognised, through the de facto officer doctrine that, the acts of one who occupies an office under colour of authority are valid as regards the public and third parties, notwithstanding some defect in the officer’s appointment or qualification.

This is precisely so that the public business is not held hostage to technical irregularities of which the public is unaware and for which it is not responsible. Section 4(2) of the Oaths Act 1972, (NRCD 6) is the statutory embodiment of that salutary principle. Were the law otherwise, every act of every public officer would be vulnerable to retrospective avoidance upon proof that some oath had been administered a day late or in defective form, a conclusion as inconvenient as it is unsupported by authority. This complaint, too is dismissed.

XIII. THE REPRESENTATION OF THE COMMITTEE BY THE ATTORNEY-GENERAL

Finally, the Second Plaintiff submits that it is incongruous for the Attorney-General, the legal adviser to the Executive, to appear as counsel for members of a committee forming part of the Judiciary’s constitutional machinery, relying upon AMEGATCHER VS. ATTORNEY-GENERAL [2012] 1 SCGLR 679. The point does not avail the Plaintiffs as a ground of relief. By Article 88(1) and (5) of the 1992 Constitution, the Attorney-General is the principal legal adviser to the Government and is responsible for the initiation and conduct of all civil proceedings on behalf of the State, and all civil proceedings against the State are to be instituted against the Attorney-General as Defendant. The office is thus, by constitutional design, the ordinary and proper representative of the State and its emanations in litigation.

It follows logically that, the Committee constituted under Article 146(6) is a creature of a constitutional process set in motion by an organ of State, and its members. Having been sued in respect of their functions on that Committee, the actions fall naturally within the range of those whom the Attorney-General may represent. The decision in the AMEGATCHER case does not hold otherwise. It recognises and sensibly so, that, there may be situations in which the Attorney-General’s representation of a constitutionally independent body would be inapposite because the body’s autonomy from the Executive is the very matter in issue, or because a conflict of interest would arise, but it treats this as a consideration to be weighed in the circumstances, not as an automatic disqualification working the nullity of anything done.

When tested against that standard, the complaint discloses no ground of relief. No party has demonstrated that the conduct of the present litigation was in fact prejudiced, or that any conflict of interest materialised, by reason of the Attorney-General’s appearance for the Committee members. More fundamentally, the question who may represent the Committee in litigation is logically independent of the questions actually in issue, the validity of the prima facie determination, the lawfulness of the suspension, the composition of the Committee, and the rest. Even if it were irregular for the Attorney-General to appear for the Committee and its members (a matter we need not finally decide) that irregularity could not retrospectively invalidate the determination, the warrant, or the committee’s constitution, none of which depends upon who later appears as counsel. The Plaintiffs’ relief on this issue also fails, and we accordingly dismiss same.

XIV. CONCLUSION

The pertinent principle from our analysis is that the Constitution, in Article 146, has itself struck the balance between the independence of the Judiciary and the accountability of those who hold judicial office, and that this Court is to give faithful effect to the balance so struck, neither diluting the safeguards the Constitution provides, nor manufacturing new ones it withheld. Each of the Plaintiffs’ contentions, when examined, is in substance an invitation to re-strike that balance: to convert a consultative threshold into a reasoned adjudication; to read into the right to be heard. We hold that, these steps are constitutionally provided for by deliberate architecture. They are incidents that belong to a later stage.

Consequently, to subordinate a mandatory command of confidentiality to a litigant’s preference; to treat a protective and expressly authorised suspension as an assault upon judicial independence; to disqualify constitutional functionaries upon unproven suspicion; and to nullify a whole process for want of a timely oath or by reason of who appeared as counsel, none of which in the context of the peculiar facts of this dispute have been proven, nor justified in accordance with the settled jurisprudence of our courts, are self-serving requests and allegations. These will certainly not found a relief in favour of the Plaintiffs. In each instance therefore, the invitation must be declined, not because the values the Plaintiffs invoke are unworthy, but because those values are already provided and served by the constitutional scheme as it stands. They will not be advanced by the judicial rewriting of it.

We have examined each of the grounds advanced in the two consolidated actions, and we have found none of them sufficient in law. The prima facie determination under Article 146 is a consultative and threshold function that the Constitution does not require to be cast as a reasoned judicial opinion, and the absence of stated reasons does not nullify it. The right to be heard at that stage was in fact afforded and observed. The in camera command of Article 146(8) is mandatory and is not susceptible of unilateral waiver. The suspension was effected in the precise manner that Article 146(10)(a) authorises and is no interference with judicial independence. The allegations of bias are not established on the evidence and against the settled test. The complaint as to the oath fails on the facts and is in any event answered by Section 4(2) of the Oaths Act 1972, (NRCD 6). The question of representation, whatever its merits as a matter of prudence, founds no relief that may avail the Second Plaintiff in particular who pleaded it.

We are also not unmindful of the larger anxieties that animate these proceedings. The Plaintiffs have argued, with evident sincerity that, the independence of the Judiciary is a fragile and precious, thing, and that, the power to remove a Chief Justice or any other Justice of the Superior Court or Constitutional office holder as prescribed by the Constitution, must never become an instrument of executive convenience. While we share in that conviction without reservation, the answer to the fear of abuse is the faithful adherence to the Constitution’s own safeguards; the consultation with the Council of State, the prima facie threshold; the committee of inquiry; the entitlement to be heard in one’s defence; and the requirement that the President shall act upon the committee’s recommendation and not the invention by this Court of additional requirements the framers did not impose.

In the instant case, the safeguards the Constitution provides were observed. Where the procedural steps prescribed by the Constitution have been followed, it is not the office of this Court to halt it upon apprehensions of what the future portends. We say without fear of contradiction that, judicial independence is vindicated as much by the Judiciary’s fidelity to the law that binds others, as by its vigilance against those who would breach it inluding the judges who are constitutionaly empowered to adminster justice on behalf of the people.

Having found nothing meritorious to warrant the grant of any of the reliefs sought in the consolidated action, the same wholly fails and is accordingly dismissed.

(SGD.) I. O. TANKO AMADU

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. YONNY KULENDI

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. KWOFIE

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

(SGD.) G. S. SUURBAAREH

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

CONCURRING OPINION

ADJEI JSC:

The two writs, which the Supreme Court consolidated on 28th May, 2026, raise the same legal issues for resolution, relating to the constitutionality of all the processes that led to the impeachment of Her Ladyship Gertrude Araba Esaaba Sackey Torkonoo as the Chief Justice of the Republic of Ghana, the Plaintiff in Suit No. JI/ 22/2025, Her Ladyship Gertrude Araba Esaaba Sackey Torkonoo brought the suit against the Attorney-General of the Republic of Ghana, and five other persons who made up of the Committee Members who the President of Ghana constituted in accordance with the power vested in him by Article 146 (6) of the Constitution of Ghana, 1992 to determine the impeachment proceedings in her capacity as a citizen of Ghana in terms under Article 2(1) (b) of the Constitution. The five other Defendants are: Justice Gabriel Scott Pwamang, Justice Samuel Kwame Adibu Asiedu, Daniel Yao Domelovo, Major Flora Bazwaanura Dalugo, and Professor James Sefah Dzisah.

The reliefs sought by the Plaintiffs are as follows:

“a. A declaration that upon a true and proper interpretation of Articles 17(1) and (2), 19(13) and (14), 146(7) and (8), 281(1) and 295(1) of the Constitution, a Chief Justice has the right to a public hearing in proceedings before a committee appointed by the President to inquire into a petition presented for the removal of the Chief Justice: b. A declaration that upon a true and proper interpretation of Articles 17(1) and (2), 19(13) and (14), 23, 146(7) and (8), 281(1) and 295(1) of the Constitution, the right of a Chief Justice to a public hearing and all the incidents of a fair hearing may only be excluded in the interest of public morality, public safety or public order; c. A declaration that upon a true and proper interpretation of Articles 17(1) and (2), 19(13) and (14), 23, 146(7) and (8), 281(1) and 295(1) of the Constitution, a Chief Justice who is called upon to participate in a hearing conducted by a committee constituted under Article 146(6) to inquire into the merits of a petition seeking the removal from office of the Chief Justice can waive the privilege of “in camera” proceedings. d. A declaration that upon a true and proper interpretation of Articles 19(13), 23, 146(1), (2), (4) and (6) and 296 of the Constitution, a determination of a prima facie case in respect of a petition for the removal of a Chief Justice or a Justice of the Superior Court of Judicature is a quasi-judicial process requiring a judicious evaluation, culminating in a reasoned decision. e. A declaration that upon a true and proper interpretation of Articles 19(13), 23, 146(1), (2), (4) and (6) and 296 of the Constitution, the purported prima facie finding in respect of three petitions presented for the removal of the Chief Justice and served on the Plaintiff by a letter dated 22nd April, 2025, does not amount to a proper determination of a prima facie case and is therefore null, void and of no effect; f. A declaration that upon a true and proper interpretation of Articles 19(13), 23, 146(1), (2), (4) and (6) and 296 of the Constitution, the purported finding by the President that a prima facie case has been made against the Plaintiff and served on the President by a letter dated 22nd April, 2025 was arbitrary, capricious, in violation of the right of the Plaintiff to a fair trial, and therefore unconstitutional, void and of no effect; g. A declaration that upon a true and proper interpretation of Articles 146(1),125(3)(4), 127(1) and (2) and 296 of the Constitution, the purported determination by the President that a prima facie case has been established against the Plaintiff as conveyed in the letter dated 22nd April 2025, together with the warrant of suspension of the Plaintiff, constitute an unjustified attempt to remove the Plaintiff as Head of Ghana’s Judiciary and thus, an undue infringement on the independence of the judiciary. h. A declaration that upon a true and proper interpretation of Article 146(6) and (7) of the Constitution, the failure to serve the Plaintiff with a judicious determination of a prima facie case before appointing a committee to purportedly inquire into the petitions for the removal of the Plaintiff as Chief Justice constitutes a violation of the Plaintiffs right to substantive administrative justice and fair hearing, rendering the entire proceedings initiated null and void. i. An order setting aside the warrant for suspension issued by the President dated 22nd April, 2025 to suspend the Plaintiff as Chief Justice of the Republic. j. A declaration that upon a true and proper interpretation of Articles 23, 146(6) and (7) and 296(a) and (b) of the Constitution, the 2nd defendant, Justice Gabriel Scott Pwamang, is not qualified to be a chairman or member of the committee set up by the President to inquire into the petitions against the Plaintiff on account of having adjudicated and given various rulings in favour of one of the petitioners, Daniel Ofori in actions filed in the Supreme Court. k. An order prohibiting the 2nd defendant, Justice Gabriel Scott Pwamang, from presiding as Chairman of the committee or participating in proceedings of the committee set to inquire into the petitions against the Plaintiff. l. A declaration that upon a true and proper interpretation of Articles 23, 127(1) and (2), 146(6) and (7) and 296(a) and (b) of the Constitution, the appointment of the 3rd defendant, Justice Samuel Kwame Adibu-Asiedu, as a member of the committee set up by the President to inquire into the petitions against the Plaintiff, at a time when he had already sat as a member of a panel of the Supreme Court constituted under Article 128(a) of the Constitution to hear an application for interlocutory injunction filed by a Ghanaian citizen challenging the “Article 146 proceedings” initiated against the Plaintiff, violates the independence of the Judiciary. m. An order prohibiting the 3rd defendant, Justice Samuel Kwame Adibu-Asiedu from sitting as a member of or participating in the proceedings of the committee set up to inquire into the petitions against the Plaintiff. n. A declaration that upon a true and proper interpretation of Articles 146(1), (2), (4), 23 and 296 of the Constitution and Sections 1, 2 and 4 of the Oaths Act, 1972, the 4th, 5th and 6th Defendants are not qualified to undertake the functions entrusted on them as members of the committee set up by the President to inquire into the petitions against the Plaintiff; o. An order restraining the committee set up by the President to inquire into the three petitions against the Chief Justice composed of the 2nd, 3rd, 4th,5th and 6th Defendants from proceeding to carry out the terms of reference of the committee set up under Article 146(6) as laid out in the letter dated 22nd April, 2025”. p. Any other orders) as to this Honourable Court may seem meet”.

The brief facts of the case are that the Plaintiff was the Chief Justice of the Republic of Ghana, and the President of the Republic of Ghana received three petitions seeking her removal from office on the grounds of stated misbehaviour under Article 146(1) of the Constitution of Ghana. The said provision sets out the grounds upon which a Chief Justice, a Justice of the Superior Court, or a Chairman of a Regional Tribunal may be removed, namely: stated misbehaviour, incompetence, or inability to perform the functions of his office arising from infirmity of body or mind.

According to the Plaintiff, on 22nd April, 2025, the President of the Republic of Ghana, through the Secretary to the President, communicated that a prima facie case had been established against the Chief Justice in respect of all three petitions and subsequently constituted a committee, in consultation with the Council of State, without affording her a hearing. The Plaintiff was further suspended as Chief Justice by a warrant issued by the President acting in accordance with the advice of the Council of State under Article 146(1)(a) of the Constitution of Ghana.

The Plaintiff asserted that on 27th March, 2025, she requested copies of the three petitions from the President to enable her to respond and provide her version of events, which was to be submitted before she was furnished with copies of the said petitions. She was given ten days to respond, even though she had requested seven days. The Plaintiff further asserted that she petitioned to have the Committee’s in camera hearing waived, but the request was denied. She challenged the President’s prima facie determination as null and void because the facts contained in the petitions failed to meet the threshold for a prima facie determination envisaged by the Constitution of Ghana. The Plaintiff further submitted that the purported determination of a prima facie case by the President, and the warrant of her suspension contained in the letter dated 22nd April, 2025, amounted to an unjustified attempt to remove the Plaintiff as Head of the Judiciary of Ghana and constituted an undue infringement on the independence of the Judiciary.

According to the Plaintiff, the 1st and 2nd Defendants ought to be disqualified from serving as members of the Committee for the stated reasons provided in the writ and statement of case. The Plaintiff further alluded to the fact that the 4th, 5th, and 6th Defendants were not qualified under both the Constitution and the Oaths Act, 1972, to undertake the functions entrusted to them as members of the Committee to inquire into the petitions against the Plaintiff.

The Plaintiff alleged that all the steps taken in the impeachment process, including the establishment of a prima facie case, her suspension from office and consequent inability to discharge her functions as Chief Justice, the appointment of the Committee to inquire into the petitions, the alleged disqualification of members of the Committee, the Committee’s refusal to waive the in camera proceedings, and the findings made by the Committee, all offended several constitutional provisions and ought to be declared unconstitutional.

The Defendants in their statement of case have submitted that there was no constitutional infractions in any of the stages for the removal of the Chief Justice and the decision in Agyei Twum v Attorney-General & Another [2005-2006] SCGLR 732 which, provides that even though the removal of Chief Justice from office does not make mention of prima facie case to be established by the President and Council of State, the Chief Justice is a superior court judge and should take benefit of the prima facie which may dismiss a petition against her without escalating it to the committee provided under Article 146(6) consisting of two Supreme Court Judges one of whom shall be appointed the chairman by the President of Ghana and any other three persons who are not members of the Council of State, nor members of Parliament, nor lawyers are appointed.

The Attorney-General filed the memorandum of issues, and they are as follows:

“1. Whether an Article 146 Committee hearing may be held in public at the instance of the Plaintiff alone.

2. Whether an Article 146 prima facie determination in respect of the removal of Chief Justice requires a reasoned legal opinion is supported by law.

3. Whether a person is disqualified from adjudicating an Article 46 petition on grounds only that he was previously adjudicated a court matter involving a party.

4. Whether or not the 3rd Defendant has ever heard a motion for an order of interlocutory injunction in Assafuah v Attorney-General (Supreme Court Suit No. J1/18/2025).

5. Whether or not the 4th, 5th, and 6th Defendants have taken/subscribed to the oath of office, and

6. Any other issue(s) that the honourable Court may deem necessary.”

In Suit No JI/20/2025, the Plaintiff, Centre for Citizenship Constitutional and Electoral Systems LBG ( CenCES) v The Attorney-General, Her Ladyship Gertrude Araba Esaaba Sackey Torkornoo CJ, and His Lordship Gabriel Scott Pwamang as 1st, 2nd, and 3rd Defendants respectively, the following reliefs are endorsed:

“i. A declaration that upon a true and proper interpretation of articles 17(1), (2), (3), 23, and 296, 146(1), (2), (3), and (6), of the Constitution, the purported determination by the President communicated by the Secretary to the President dated 22nd April, 2025, in respect of three petitions presented for the removal of the Chief Justice does not constitute a determination of a prima facie case and is therefore null, void and of no effect. ii. A declaration that upon a true and proper interpretation of articles 17(1), (2), 146(1), (2), (3) and (6), 125(3) and (4), 127(1) and (2) of the Constitution, the purported determination by the President communicated by the Secretary to the President that a prima facie case has been established against the Chief Justice contravenes the constitutional prohibition of executive in reference with the independence of the Judiciary prohibited by articles 125(3) and (4), 127(1) and (2) and is therefore void. iii. A declaration that upon a true and proper interpretation of articles 146(1), (2), (3), (4), and (6), 23 and 296 of the Constitution, the establishment of a five- member committee to inquire into three petitions against the Chief Justice without a prima facie case duly determined pursuant to article 146 (1), (2), (3), 4), and (6) violates the 2nd Defendant’s right to equal treatment before the law guaranteed under article 17(1) (2) (3) and right to fair trial under article 19(13) and so is unconstitutional, unlawful, null, void and of no effect. iv. An order restraining the committee set up by the President from proceeding to carry out the terms of reference on the committee set out in the letter dated 22nd April, 2025 and or to inquire into the three petitions against the Chief Justice, and to restrain the 2nd Defendant from participating in proceedings of the Committee; v. A declaration that upon a true and proper interpretation of articles 146(1), (2), (3))(4) and (6), 23 and 296 of the Constitution, the warrant for suspension issued by the President to suspend the Chief Justice dated 22nd April, 2025, violates the directions of the Constitution in articles 146(1), (2), (3), (4), and (6), the 2nd Defendant’s right to fair trial and equal treatment under article 17 and 19(13), the right to administrative justice under article 23 and article 293, and the constitutional protection of the independence of the Judiciary pursuant to article 125(3), 127(1), (2), (3) and is therefore unconstitutional, null, void and of no effect. vi. An order striking down the warrant for suspension issued by the President dated 22nd April, 2025 to suspend the Chief Justice, her Ladyship Justice Gertrude Araba Essaba Sackey Torkornoo (2nd Defendant) as being arbitrary, capricious, unconditional and therefore void and of no effect. vii. Any other order(s) as this Honourable Court may deem fit to make”.

The Plaintiff, in its statement of claim, stated that it is a corporate citizen of Ghana, incorporated under the laws of Ghana, to, inter alia, research constitutional issues and best electoral practices, and to collaborate with academic and other Civil Society Organisations.

The Plaintiff’s in its statement of case on the issue of prima facie submitted that the determination of prima facie by the President in consultation with the Council of State before deciding whether to constitute a committee for a full enquiry into the allegations contained in a petition, is a proper enquiry that must lead to reasoned determination. Therefore a determination by the President in consultation with the Council of State without a reasoned determination is unconstitutional. The 2nd Defendant did not contest the case, and the contest is between the Plaintiff and the 1st and 3rd Defendants. The 1st and 3rd Defendants in the statement of case denied the Plaintiff’s contention. They asserted that the President, acting in consultation with the Council of State, determined a prima facie case on the petitions submitted against the 2nd Defendant in accordance with the Constitution.

The memorandum of issues filed by the Attorney-General is as follows:

“1. Whether a prima facie determination under Article 146 requires a judicially reasoned legal opinion.

2. Whether the suspension of the 2nd Defendant from the performance of the functions of the Chief Justice amounts to interference with the independence of the Judiciary.

3. Any other issue(s) that the honourable Court may deem necessary”.

The matters to be resolved before addressing the issues raised for determination in the two consolidated cases are the Plaintiffs’ capacity to maintain their respective actions and whether the writs meet the threshold for interpretation of the Constitution of Ghana, 1992, as laid down by case law. Even though the Defendants in both cases do not dispute the Plaintiffs’ capacities, capacity is fundamental in constitutional interpretation, whether raised or not.

The Plaintiff in the second case, Her Ladyship Justice Araba Esaaba Sackey Torkornoo, is a Ghanaian and brings the action against the Attorney-General, who is the principal legal advisor to the Government, whom Article 88 of the Constitution has designated to take up the responsibility for the institution and conduct of all civil cases on behalf of the State. All civil proceedings against the State shall be instituted against him. The other defendants are the members of the committee appointed by the President to inquire into the petitions submitted against her and recommended for her removal from office on grounds of stated misbehaviour.

The Plaintiff in the 1st case is a legal entity incorporated under the laws of Ghana to deepen constitutional and democratic development in Ghana. Article 2 of the Constitution of Ghana provides for those with the capacity to seek the enforcement or interpretation of the Constitution. Article 2 (1) (a) & (b) of the Constitution provides thus:

“2. (1) A person who alleges that——

(a) an enactment or anything contained in or done, under the authority of that or any other enactment; or

(b) any act or omission of any person; is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.”

The case laws on capacity to bring an action in the Supreme for enforcement or interpretation of the Constitution has been decided in several cases including Bimpong Buta General Legal Council & Another [2003-2004] SCGLR 1200, and Agyei Twum v Attorney-General and Another, supra, and the established jurisprudence from the cases are that ‘a person’ mentioned in Article 2(1) of the Constitution is referable to a citizen of Ghana both natural and artificial. The Plaintiffs in both cases are therefore competent to file their respective suits as Ghanaians.

The second matter to resolve is whether the Plaintiffs, by their respective suits, meet the threshold for the Supreme Court’s interpretive jurisdiction. Both plaintiffs in the two suits are alleging that the conduct of the President, acting in consultation with the Council of State, made a prima facie determination upon which he established a committee to inquire into the allegations made by the three petitioners against Her Ladyship Torkornoo, in which they found a conduct amounting to stated misbehaviour that resulted in her removal from her position as the Chief Justice of Ghana.

The grounds upon which the Supreme Court’s original jurisdiction for interpretation would be properly invoked was settled in the locus classicus case of Republic v Special Tribunal, Ex Parte Akosah [1980] GLR 592 where the Court of Appeal exercised the jurisdiction of the Supreme Court under the Third Republican Constitution and interpreted its article 118 which is a verbatim reproduction of article 130 under the 1992 Constitution and settled on only four grounds to prevent abuse of the Court’s original jurisdiction for interpretation. The four parameters set by the Court have been quoted with approval in almost all the cases on whether a case filed by a plaintiff before the Supreme Court meets the standard of interpretation provided by the Supreme Court. The four grounds under which one may seek constitutional interpretation are as follows:

“(a) where the words of the provisions were imprecise or ambiguous. Put in another way, it would arise if one party invites the court to declare that the words of the article had a double meaning or were obscure or else meant something different from or more than what they were said;

(b) where the litigants had placed rival meaning on the words of any provision of the Constitution;

(c) where there was a conflict in the meaning and effect of two or more articles of the Constitution and the question was raised as to which provision should prevail; and

(d) where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.

On the other hand, there is no case of “enforcement or interpretation” where the language of the article of the Constitution is clear, precise, and unambiguous… he should certainly not invoke the Supreme Court’s original jurisdiction under article 118.”

In the two consolidated cases in question, there is a fundamental question as to the constitutional requirement by the President in the determination of whether or not the petitions submitted by the three petitioners against Chief Justice Torkornoo met the prima facie standard provided by the Constitution, and whether the President was required to receive response from Chief Justice Torkornoo, evaluate the petitions and the responses and assign reasons to justify his determination. The disputants have advanced two rival meanings of what constitutes a prima facie determination by the President under the Constitution, and the Supreme Court is required to determine what is meant by prima facie determination and whether the President must evaluate the petitions and their responses and make a prima facie determination of jurisdiction.

The Plaintiffs in their respective statements of case have submitted that the requirement imposed by the Constitution on the President under articles 17(1) (2) and (3) on equality and freedom from discrimination, and the right to a fair hearing under Article 19(3) of the Constitution required the President to make an actual determination following the evaluation of the petitions and responses provided thereto, and not a cursory reference to such a determination. The Plaintiff in the first consolidated case, in paragraph 19 of the statement of case, stated as follows:

“The Chief Justice’s right to equal treatment under law, and freedom from discrimination pursuant to article 17(1), (2), and (3), and the right to fair hearing under article 19(13) therefore required that the alleged determination of a prima facie case should constitute an actual determination following the evaluation of the petitions and the responses rendered thereto, and not a cursory reference to such a determination.”

The Plaintiff in the second consolidated case, Chief Justice Torkornoo, in paragraphs 22 and 23, also stated as follows:

“22. It is however, respectfully submitted that the previous interpretations rendered by this Honourable Court in respect of Article 146(3), (4), (6) and (7) did not directly address the critical question of whether the determination of a prima facie case in relation to a petition for the removal of the Chief Justice necessitates the extension of the constitutional right to be heard to the Chief Justice. Nor did the Court, in its previous pronouncements, examine the standard to be applied in making a prima facie determination.

23. In the light of the fact that a prima facie determination under Article 146(3),(4), (6),and (7) is a quasi -judicial process, in our submission, such a determination at the barest minimum, (i) specify which of the charges in the petition(s) have met the yardstick of a prima facie case (ii) be accompanied by clearly stated reasons, reflecting a judicious evaluation of the matters raised. As we will demonstrate below, the need for such judicious evaluation is compelled by the very nature of allegations that may form the subject matter of Article 146 proceedings. The absence of such reasoning fundamentally undermines the fairness and transparency required by the Constitution.”

The Attorney-General resisted the meaning given to prima facie determination under Article 146 of the Constitution and concluded that such determinations are policy decisions that do not require reasons to be given, and that a determination by the President, in consultation with the Council of State, shall not be amenable to judicial review. The Attorney-General, in paragraph 17 in his statement of case, argued as follows:

“Our contention is that the substance of a decision of the Council of State, taken in accordance with established procedure, is policy-based and may not be subject to reviews by the courts. This is fundamentally, the Council of State is a body comprising elected representatives. (See Article 89(2) of the 1992 Constitution). It also comprises persons with a distinguished sense of judgment called upon by the Constitution to exercise preeminently political judgment on essential matters. The Council of State is not a judicial body”.

The Attorney General continued, in this regard, the authorities are clear that the substance of the decisions of persons and authorities mandated to exercise political judgment is not subject to judicial review. This is simply because a court of law will not substitute its preferred policy decision for the policy decision of a body which is preeminently mandated to decide on the policy in question, as Lord Bingham put it in A v The Secretary of State for the Home Department [2024] UKHL 58 at paragraph 29.

“Great weight should be given to the Home Secretary, his colleagues and Parliamentarians on this question, because they were called upon to exercise a pre-eminently political judgment… The more purely political (in a broad or a narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role for the court. It is the function of political bodies to resolve political questions”.

Even though the submission by the Attorney-General seems to be persuasive, it is my opinion that the Council of State is a political organ established to advise the President and, in some circumstances, be consulted by the President; their determination is not exempt from judicial scrutiny where the determination violates a constitutional provision, and if it is brought to the notice of the Supreme Court, it may strike it down as unconstitutional. The position in the United Kingdom regarding review is completely different from that in Ghana, by virtue of parliamentary supremacy there. In contrast, Ghana has constitutional supremacy. Where a matter is before Parliament, Executive and political bodies, such as the Council of State, the Supreme Court shall not exercise its judicial review power by virtue of the separation of powers. Still, where the decision is taken, and the Supreme Court’s judicial review jurisdiction is invoked, it shall assume jurisdiction and strike down the decision if it offends the Constitution.

The issue of political question is not known to the Constitution by virtue of articles 2 and 130 of the Constitution, which give a blanket jurisdiction to the Supreme Court to make a declaration regarding any matter brought before it in the exercise of its appropriate jurisdiction, where any act or omission of any person is inconsistent or in contravention of a provision of the Constitution. The matter of political doctrine is observed in Ghana only in a limited sense, when it is before an arm of government or a political body for consideration or determination. Still, where a determination or decision is finally taken, it becomes subject to judicial review if it is inconsistent with or in contravention of a provision of the Constitution. There are multiple of cases including J.H. Mensah v Attorney-General [1996-97] SCGLR 320, Amidu v President Kufuor and Others [2001-2002] SCGLR 86, and Sumaila Bielbiel (No. 1) v Adamu Dramani & Attorney-General (No.1) [2011] 1 SCGLR 132, where the Supreme Court has held that the jurisdiction conferred on it under articles 2 and 130 of the Constitution to ensure compliance with the provisions of the Constitution entitles it to make such orders and give such directions it may consider appropriate for giving effect, or enable effect to be given to the declaration so made, regarding any act or omission of any person which is inconsistent with or is in contravention of any provision of the Constitution, and there is no exception to it. The Constitution of Ghana is sui generis, and no country’s laws, policy, or decision can override any provision in the Constitution. Though the submission appears intelligible, it is an affront to articles 2 and 130 of the Constitution of Ghana and cannot be used to persuade the Court, in my view.

I proceed to discuss the legal effect of prima facie determination under Article 146 where the Chief Justice is required to establish a prima facie case in respect of any petition for the removal of a Justice of the Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal received by the President, or in the case of a petition to remove the Chief Justice and submitted to the President, the President in consultation with the Council of State shall determine whether there is prima facie case. If he so establishes, the President shall appoint a committee that shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed. The Plaintiffs in the two consolidated cases are of the opinion that the function imposed on the President to exercise is judicial or quasi-judicial, and that there shall be a determination in accordance with law, with reasons. The Attorney-General has also submitted that it is not a judicial hearing and does not require a determination on the record.

The Plaintiffs have based their understanding of prima facie determination on some dictionary meanings, and I will first discuss the dictionary meaning of prima facie. Merriam-Webster’s Collegiate Dictionary, Eleventh Edition, 2003, at page 985, defines prima facie as:

“1. True, valid or sufficient at first impression: 2. Self-evident: 3. legally sufficient to establish a fact or case unless disapproved.”

The Collins English Dictionary & Thesaurus, Fourth Edition, 2006, also defines prima facie at page 945 as:

“at first sight; as it seems at first.”

The two dictionary definitions do not provide for a hearing to arrive at a prima facie determination, because it is an impression formed at first sight and does not require judicial function. Still, the policy rationale behind the Constitution of Ghana is that every provision in the Constitution shall be interpreted to promote development, as the Constitution is a living instrument that requires a broader and more benevolent interpretation to keep pace with the nation’s development. Its interpretation shall not be tied down to inferior laws, including the Interpretation Act, 2009, Act 792, statutes, and dictionaries, to derogate from the Constitution’s supremacy.

Tuffuor v Attorney-General [1980] GLR 637 which was decided about 46 years ago held that the written constitution such as ours shall be construed as a living organism capable of growth to buttress the Living Constitutionalist movement approach to written constitution such as ours which holds the souls and aspirations of the citizens and should be interpreted as a living organism capable of growth to be able to address the needs of the people at any point in time taking into consideration time, circumstances, and development in the country.

The word prima facie is like a chameleon whose colour may change at any time depending on the environment it finds itself in, but its behaviour does not change. In law, the meaning of prima facie is not sacrosanct and may change depending on the law under consideration. A prima facie determination is used in injunctions, provisional measures, criminal law, and executive and administrative functions. In determining whether to grant an application for interlocutory injunction, some of the courts use a prima facie such as the House of Lords used in the case of J.T. Stratford & Sons Ltd v Lindley [ 1964] 3 All ER 102 where it held that an applicant who is seeking for an interlocutory injunction must show a prima facie case. Notwithstanding that the same House of Lords, through Lord Diplock, had proposed that an applicant who is seeking an interlocutory injunction must demonstrate a right in law or equity, prove that there is a serious issue or question to be determined by the court. A balance of convenience shall govern the court’s ruling. In Ghana, in Vanderpuye v Nartey [1977] GLR 428, it was also held that before an application for an interlocutory injunction would be granted, the applicant must establish a prima facie case. The rationale for the proposed shift from prima facie is that it removes the court’s discretion, as the court shall examine all processes filed by both parties before making a prima facie determination.

In the case of the grant or refusal of provisional measures in applications before international courts, the court need not ascertain that it has jurisdiction on the merits of the case; it need only satisfy itself that it has prima facie jurisdiction by considering the processes filed by the parties.

In the case of XYZ v Benin (provisional measures) (2021) 5 AfCLR 157, the Court in paragraph 13 stated thus:

“Under Rule 49(1) of the Rules of Court ‘The Court shall preliminary ascertain its jurisdiction… However, with respect to provisional measures, the Court does not have to ensure that it has jurisdiction on the merits of the case, but only that it has prima facie jurisdiction.”

The Court shall examine the application filed by the applicant and the respondent to establish prima facie jurisdiction.

In the case of Woyome v Ghana (provisional measures) (2017)2 AfCLR 213, the African Court held that in determining provisional measures, the Court need not satisfy itself that it has jurisdiction on the merits of the case, but simply needs to satisfy itself that, prima facie, it has jurisdiction. In determining prima facie jurisdiction, the Court notes that the rights alleged to have been violated are guaranteed under the African Charter or any other human rights instruments Ghana has ratified, and there is extreme gravity and urgency, and when necessary to avoid irreparable harm. The determination of provisional measures is governed by prima facie jurisdiction, which considers whether the right to protection is governed by a human rights treaty that the respondent has ratified, and aims to avoid irreparable harm.

In criminal law, prima facie jurisdiction is established after the prosecution has proved all the ingredients of the offence beyond a reasonable doubt. If the accused fails to raise a doubt as to the non-existence of the offence, he is liable to be convicted based on the evidence on record. In the case of Republic v Tsikata [2003-2004] SCGLR 1068, the court held that a prima facie determination is made at the close of the prosecution’s case to examine whether all the ingredients of the offence had been proved, and the credibility of the witnesses called by the prosecution has not been eroded.

In all the above cases, the determination affected rights, legal status or imposed liabilities on the respondent unlike the performance of a constitutional or executive function where the established principle is that it is not a requirement of the law for a person who is the subject of an enquiry to be given notice of the appointment of the committee to investigate him by the appointer, and of an opportunity to him to state his case as it is only a preparatory stage. The decision to appoint the committee is merely to establish a body to begin an investigation that does not determine any rights, impose liabilities, or affect the legal status of the person to be investigated, and audi alteram partem is not attached to it. The right to a hearing begins with the committee, which shall serve copies of the petition and observe all the principles of natural justice. In the case of President of the Republic of South Africa and Others v South African Rugby Football Union and Others [1999] ZACC 11; 2000 (1) SA 1; 1999 (10) BCLR 1059 where the Constitutional Court of South Africa discussed the powers of the President of South Africa to appoint a committee to investigate a body, the court held that the vesting of powers in the President to set up a committee does not in itself infringe rights or impose liabilities, but the subsequent investigation by the committee is constrained by the duty to observe audi alterem partem rule.

In the case of Wiseman v Borneman [1971] AC 297, the House of Lords, in discussing natural justice in administrative law, established the principles that tribunals are not always mandated to apply the audi alterem partem rule at preliminary, prima facie stages of an investigation, and it has become a landmark decision on the subject. Lord Reid, in explaining why there shall be a general right to a hearing at the screening stage, states that it is very unusual for a judicial determination of a prima facie case to involve the accused party. As it is not a requirement for police or public prosecutors not to seek a suspect’s input before deciding to press charges, preliminary tribunals do not always need to hear from both sides. The Court concluded that the purpose of the Act would be defeated if the Tribunal were required to hold adversarial hearings at the initial screening stage, which is meant to be quick and does not affect a right or impose liabilities on individuals.

Lord Guest observed as follows:

“Where, however, the matter which the tribunal has to decide is a preliminary point which does not finally decide the rights of parties, then the question arises whether, and, if so, to what extent, the principles of natural justice should be followed by the tribunal. In the present case, it is common ground that the tribunal set up under section 28 of the Finance Act, 1960, is a judicial tribunal. I am not, however, prepared to accede to the extreme arguments advanced on either side of the Bar. For the revenue it was contended, first, that the terms of section 28(5) of the Finance Act, excluded the principles of natural justice in that the taxpayers are given an opportunity of stating their case. Upon the second point I can see no reason why, if the principles of natural justice have to be applied to a tribunal entrusted with a final decision, the same should not be true of a tribunal which has to decide a preliminary point which may affect parties’ rights”.

When the above case was at the Court of Appeal, Lord Denning M.R., Diplock and Edmund Davies L.JJ. decided as follows which was upheld by the House of Lords.

“that where a tribunal is simply called upon to decide whether a prima facie case exists, there is no initial presumption that the rules of natural justice must apply; that in the present case the language of section 28 in any event precluded any such presumption.”

A tribunal or a body that determines a preliminary point shall observe the rules of natural justice in cases where they take decisions that may affect the rights of the parties, but a body which is only a filter and exercises prima facie jurisdiction by appointing a committee to determine the rights of the person who is being impeached or removed from office is not required to do so.

In the case under consideration, Article 146 of the Constitution gives a discretion to the President to determine prima case in consultation with the Council of State, and if he decides that there is, he shall appoint a committee who shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office or otherwise. The President does not make any determination that affects the rights or legal status or liabilities of the Chief Justice, and what he decides is a screening stage or procedural filter. The screening text or the sifting of the petition to decide whether a petition warrant the appointment of the committee to inquire into the petition is a preparatory or threshold step that does not determine any right, and does not of itself attract the requirements of audi alteram partem. The constitutional determination by the President is an executive mandate and does not constitute judicial, quasi-judicial or administrative determination that requires him to receive representation from the Chief Justice under investigation. The constitutional provision does not require the President to receive response from the Chief Justice to begin a determination as it does not involve a hearing that may affect a right or liability to the Chief Justice.

It is my opinion that the executive role imposed on the President by the Constitution to perform on receipt of the petition to remove the Chief Justice must be interpreted purposively to mean that a prima facie decision shall be based exclusively on the petition. The Chief Justice has no right to make representations to the President as it is ex parte at the filter stage to protect judicial independence by weeding out unmeritorious petitions.

The combined effect of Article 146(6) and (7) of the Constitution are that the President does not exercise neither judicial nor quasi-judicial powers to receive response to the petitions from the Chief Justice as the decision to appoint the committee or not is exclusively based on the petition. The President may decide not to set up a committee to inquire into the petition if he is of the opinion that there is no prima facie case. The Chief Justice may not even know that a petition was presented against him which was considered to be unmeritorious.

It is my opinion that due process kicks in after prima facie determination is made and the Committee is set up, and it is from the time of the appointment of the Committee that the constitutional right to hearing of the Chief Justice to make representation to the petition. The right to determine the rights or liabilities commences from the time the committee is appointed and the committee is required to give copies of the petition, details of evidence, and adequate time to prepare his defence and legal representation.

The trite position in constitutional law is that due process is constitutionally secured at the state of the committee, consistent with the principle that the right to be heard applies where a decision affects rights, not at the preliminary level, which is the filter stage. De Smith’s Judicial Review, 8th ed., Chapter 7 on The Requirements of Natural Justice, paras 7-053-055, states that the right to appoint a committee is not adjudication but an administrative or preliminary act, and that there is no requirement for the appointer to hear the person under investigation before the appointment arises. The duty to give a hearing to the person under investigation arises once the inquiry, which is intended to determine the person’s rights or liabilities, is initiated or constituted.

The plethora of respectable textbooks, including HWR Wade & C F Forsyth, Administrative Law, (12th ed. OUP 2014 Chapter 11 p.467-469-under “Natural justice and preliminary acts”, and P Craig, Administrative Law, (9th edn, Sweet & Maxwell Chapter 12) on “Commencement of proceedings “[2021] are to the effect that prima facie determination is ex parte and does not require reasons to be assigned as it is determined based on sufficiency at first impression based exclusively on the petition.

The President of the Republic of Ghana acted within the Constitution of Ghana, 1992, by exercising preliminary rights to appoint the Committee to investigate the conduct of the Chief Justice, and did not exercise adjudicatory rights to require reasons in response to the petition and the Chief Justice’s response. Consequently, I resolve issue 1 in the first case, and issue 2 of the second case against the Plaintiffs in both cases, as the President acted in accordance with the Constitution of Ghana, 1992.

I address issue 2 in the second case that questions whether an Article 146 Committee hearing may be held publicly at the instance of the Plaintiff alone. The Plaintiff submitted that despite the fact that the Constitution provides that all proceedings under Article 146 shall be held in camera, it can be waived by her by the fact that the in camera hearing is designed to safeguard the integrity of the Judiciary by insulating it from unnecessary public spectacle from unmeritorious petitions presented to remove the Chief Justice or a Justice of the Superior Court from office. The Plaintiff further submitted that Article 146(8) in camera hearing shall be read in conjunction with Articles 19(14), 23, 281, and 296 to give the person under investigation the right to waive in camera hearing and request for public hearing. Article 19(14) of the Constitution provides that except as may be ordered by an adjudicating authority in the interest of public morality, public safety, or public order, proceedings by any adjudicating authority shall be in public. Article 23 of the Constitution on administrative justice enjoins administrative bodies and officials to act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by their decision shall have the right to seek redress before a court or other tribunal.

Article 281 of the Constitution provides that proceedings of commissions of enquiry shall be held in public except otherwise provided by the Commission in the interest of public morality, public safety or public order. Article 296 on the exercise of discretionary power shall imply a duty to be fair and candid, and shall not be arbitrary, capricious, or biased on any basis, and such discretion shall be exercised in accordance with law. The Plaintiff submits that the combined effect of all the constitutional provisions mentioned above, gives her the right to opt for a public hearing.

The Attorney-General in response submitted that in camera hearing under Article 146 (8) of the Constitution is a mandatory provision that cannot be waived by the person under investigation. The Attorney-General refers to such cases, including the Ghana Bar Association v Attorney-General and Another [1995-1996] 1 GLR 598, Paul Uter Dery v Tiger Eye PI & Others, (Writ No. JI/ 29/2015, and Agyei-Twum v Attorney-General [2005-2006] SCGLR 732 and concluded that a Chief Justice or a Superior Court Judge who is being investigated under Article 146 cannot waive in camera hearing.

The Article 146 (8) of the Constitution on in camera hearing provides thus:

“All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.”

The Chief Justice made reference to Articles 19(4), 23, 281, and 296 to support her position on waiver of in camera hearing. The first response to the right to waive the in camera hearing stems from the fact that the Plaintiff seeks to compare the hearing by adjudicating authorities and administrative justice to a special provision provided to deal with the removal of Justices of Superior Courts and Chairmen of Regional Tribunals. The two important maxims, namely, lex specialis derogat legi generali and generalia specialibus non derogant, which are two sides of the same coin, but used differently, shall be used to address the ground before resorting to some respectable decisions from the Court.

Lex specialis derogat legi generali means that where special law is in conflict with a general law, the specific law overrides the general law, and that general law is displaced for that specific case. Article 146 deals with a specific subject, while Articles 19(4), 23, 281, and 296 deal with general matters concerning adjudicating authorities, administrative justice, inquiry procedure, and discretionary powers, respectively. In the International Court of Justice case of Gabcikovo-Nagymaros Project (Hungary v Slovakia), Judgment, 25 September 1997, ICJ Reports 1997, page 7, the World Court, in applying lex specialis derogat legi generali in paragraph 40, held thus:

“… the protection of the environment is likewise a vital part of contemporary human doctrine… However, it must be borne in mind that the 1997 Treaty was the treaty for the construction and operation of a system of locks … the obligations contained therein are lex specialis in relation to the more general obligations of environmental protection.”

In effect, the Court held that environmental law and the law of treaties must be applied together, but whenever there is a conflict between the two, the specific treaty obligations prevail over the general rules. The Article 146 provision is specific and unique and therefore overrides all the general provisions referred to by the Plaintiff. The European Court of Human Rights (ECtHR) in the case of Klass v Germany (1978) 2 EHRR 214 where Article 8 (1) of the European Convention on Human Rights gives general right to privacy and correspondence, and Article 8 (2) provides specific exceptions for national security, prevention of crime and order, the Court held that the general right in Article 8(1) cannot be used to invalidate the detailed surveillance scheme in Article 8(2). It is my opinion that this Court shall not let the general right to public hearing be read so broadly that it makes the specific in camera hearing under Article 146(8) exceptions meaningless.

I will further address the same issue generalia specialibus non derogant which means that general provisions do not derogate from special provisions, and general laws shall not be used to wipe out special ones, and when both special and general law apply, the special part controls in its area. In most cases, some decisions treat generalia specialibus non derogant to cover lex specialis derogat legi generali even though the latter covers a larger scope than the former. The articles quoted by the Plaintiff are general provisions and cannot derogate from Article 146 provisions, which are special and concern only the removal of Justices of the Superior Courts and Chairmen of Regional Tribunals.

The decisions of this Court have categorically stated that constitutional rights are meant to protect the integrity of the judiciary, the personal reputation of the judge under investigation, and the witnesses to be called from discrimination.

In the case of Ghana Bar Association v Attorney-General, supra, the Supreme Court speaking through Adjabeng JSC in page 660 of the record held thus:

“It is important to note that Article 146(8) of the Constitution, 1992 provides that the proceedings of the Committee appointed to deal with any such petition ‘shall be held in camera’ it is mandatory that such proceedings be held in private, not in public or open as has unfortunately been done in this case.

The reason for this important provision is obvious. It is to preserve, protect and safeguard the authority, dignity and independence of the Judiciary.”

Justice Kpegah in the above case also discussed the importance of in camera hearing as follows:

“The Judiciary is 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.”

In the case of Agyei-Twum v Attorney-General, supra, the Supreme Court speaking through Date-Bah explained the importance of the confidentiality of the processes and proceedings before the Committee and held thus:

“The constitutional requirement that the impeachment proceedings he 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.”

Justice Benin also justified the bases for in camera hearing in the case of Paul Uter Dery v Tiger Eye PI & Others, supra thus:

“What is the true intent and purpose of this provision? Is it limited in its terms? What is the extent of the limitation, if any? The true intent is not in dispute, the personal reputation of the judge under investigation, and it also aims at protecting potential witnesses from some form of discrimination. The reasons for confidentiality could be endless, but integrity of the administration of justice is at the centre.”

The Plaintiff could not explain to the Court why it should depart from its rich established jurisprudence on in camera hearing but invited the Court to consider other provisions of the Constitution which are not persuasive to depart. Article 129 (3) of the Constitution provides thus:

“The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”

The Supreme Court shall depart from its previous decision only when it appears to it right to do so, and not without any justification. The Plaintiff has not demonstrated to the Court the justification to depart from its previous decisions and hold otherwise, and the invitation is declined.

There is no doubt that confidential investigation and proceedings for a removal of a Superior Court Justices or a Chairmen of the Regional Tribunals serve as salutary purposes to encourage the filing of petitions in appropriate cases; protect judges from unwarranted petitions that will be in the public space; maintain confidence in the judiciary by preventing frivolous, groundless, unmeritorious information which are premature to flood the public space; give the members of the Committee the flexibility to accomplish its mandate without social media pressure based on the information contained in the petition, give the President the free opportunity to decide whether to make prima facie case and appoint a committee to investigate the judge or to dismiss it as failing to disclose prima facie case without the public to maintain the integrity of the judiciary which will have serious repercussions on the country if it is eroded on groundless petitions; and finally to protect the petitioners and witnesses in the case from discrimination.

The Plaintiff’s position is not supported by law, and the Constitution does not give the Chief Justice the right to waive an in camera hearing and opt for a public hearing. The Constitution does not provide a right for waiver of in camera hearing regardless of the type of interpretation being purposive, literal, textual, or intentional that would be given to Article 146(8) of the Constitution.

I note that the second issue raised in the first suit is whether the suspension of the 2nd Defendant from the performance of the functions of the Chief Justice amounts to interference with the independence of the Judiciary.

The Plaintiff erroneously submitted that the determination made by the President, in consultation with the Council of State, amounts to the exercise of a quasi-judicial function. That issue has already been exhaustively addressed in the resolution of the first issue.

Indeed, all the submissions made by the Plaintiff are intrinsically linked to the contention that the prima facie determination made by the President, in consultation with the Council of State, amounts to the exercise of a quasi-judicial function. The Plaintiff further contends that such a determination violates the Constitution and has serious implications for the independence of the Judiciary. It is on that basis that the Plaintiff argues that, because the Judiciary is an arm of Government that must remain independent and non-political, greater constitutional protection ought to be afforded to the Chief Justice, Justices of the Superior Courts, and Chairmen of the Regional Tribunals in the process of their suspension or removal from office.

The Plaintiff in the second case submitted that the Bangalore Principles of Judicial Conduct and the Commonwealth (Latimer House) Principles on the Accountability and Relationship between the Three Branches of Government (“Latimer House Principles”) establish the threshold of misconduct that may warrant the impeachment of judges and provide that the grounds upon which a judge may be suspended or removed shall be based solely on incapacity or misbehaviour that clearly renders the judge unfit to discharge his or her duties. The Plaintiff further contended that the President’s power to suspend a judge may be abused to penalise or intimidate judges as a means of controlling the Judiciary.

The Plaintiff further argued that Article 146(1) of the Constitution sets out only three grounds upon which a judge may be removed from office, namely, stated misbehaviour, incompetence, or inability to perform the functions of his or her office arising from infirmity of body or mind. According to the Plaintiff, these are the only grounds upon which a judge may be removed or suspended following the appointment of a committee to investigate the allegations against the judge.

Admittedly, the independence of the Judiciary must be maintained to prevent executive domination. However, where a petition is made against a judge alleging any of the grounds for removal from office, the provisions of Article 146 of the Constitution must be religiously observed and monitored to protect the Judiciary, as an independent arm of the State, from executive control.

The Constitution is the supreme law of Ghana, and the people of Ghana, in whom the sovereignty of Ghana resides, have made the Supreme Court the watchdog against any violation or infraction of the Constitution. Accordingly, any infraction of the Constitution, particularly of Article 146 relating to the removal of judges from office, must be jealously guarded against and prevented by the Supreme Court.

The Plaintiff in the second case has submitted that the grounds upon which a judge may be removed from office or suspended must conform to the Bangalore and Latimer House Principles. Where there is a conflict between the Constitution and those two principles, the Constitution, as the supreme law of Ghana, shall prevail. This is because judges, upon assuming office at every level of the judicial hierarchy, take the Judicial Oath to uphold, preserve, protect, and defend the Constitution and the laws of Ghana at all times.

However, in this case, it is my opinion that there is no conflict between the Constitution and the two principles governing the removal and suspension of judges. Rather, the Plaintiff’s interpretation of the expression “stated misbehaviour” stretches its meaning beyond its proper bounds. Neither the Constitution nor the two principles defines what constitutes stated misbehaviour, as the conduct capable of amounting to stated misbehaviour is not exhaustive and may arise in a variety of circumstances.

The courts across the globe have cited provisions of the Bangalore Principles and the Latimer House Principles, and both sets of principles have become part of the common law in many jurisdictions through judicial precedent and recognised standards. However, they remain subordinate to the ordinary laws of the land and cannot be equated with, or placed above, the 1992 Constitution.

The Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence were adopted on 19 June 1998 at a meeting of representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Lawyers’ Association, and the Commonwealth Legal Education Association. Similarly, the Bangalore Principles of Judicial Conduct were adopted in 2001 by the Judicial Group on Strengthening Judicial Integrity and were subsequently revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, on 25–26 November 2002. Both have become part of the common law through judicial recognition and application.

Although both have been cited in numerous judicial decisions across the globe, neither can be equated with the Constitution of a sovereign state such as Ghana, nor should either be interpreted in a manner that contradicts the Constitution of Ghana.

The International Instruments on the Independence and Accountability of Judges, Lawyers and Prosecutors which contains the standards for judges, lawyers, and prosecutors for United Nations, other global standards including the Bangalore Principles of Judicial Conduct, Council of Europe, Inter-American System, African System, European Union, Asia-Pacific, Commonwealth on Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, and International Humanitarian Law, in one document, each instrument provides for the grounds for removal and suspension of judges from office in accordance with law. Paragraphs 3(p) and (q) of the African System provide thus:

“(p) Judicial officials may only be removed or suspended from office for gross misconduct incompatible with judicial office, or for physical or mental incapacity that prevents them from undertaking their judicial duties.

(q) Judicial officials facing disciplinary, suspension, or removal proceedings shall be entitled to guarantees of a fair hearing including the right to be represented by a legal representative of their choice and to an independent review of decisions of disciplinary, suspension or removal proceedings.”

All the international instruments on the conduct of judges provide for the removal and suspension of judges in accordance with law, and it is a misapprehension of law to state that the suspension or removal of judges constitutes an encroachment on judicial independence. The grounds for removal of judges contained in both Principles discussed above in substance cover the three grounds provided for by the Constitution and it is the procedural fairness and strict adherence to the procedure provided by the Constitution which must be jealously protected to avoid executive control.

The composition of the Committee, with two judges of the Supreme Court and chaired by one of them, is to guard against groundless petitions and executive control, as the judges are regulated by their judicial oath to truly and faithfully perform their judicial functions without fear or favour, affection or ill will and at all times uphold, preserve, protect and defend the Constitution and the laws of the Republic of Ghana.

The Plaintiff has submitted that the requirements for impeaching a judge under the Constitution are more liberal than the requirements provided by the Bangalore Principles and the Latimer House Principles, and that the requirements under the two Principles should be preferred because of their universal application. However, a careful reading of the two Principles and the Constitution discloses that the substance is the same. Assuming that the Plaintiff’s assertion is true, and that some of the provisions of the two Principles are found to be in conflict with the Constitution, the latter shall prevail in accordance with Article 1(2) of the Constitution, which provides thus:

“This Constitution shall be the Supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void”.

The President complied with Article 146 (10) (a) of the Constitution to suspend the Plaintiff from discharging her functions as the Chief Justice. It provides thus:

“10. Where a petition has been referred to a committee under this article, the President may —

(a) in the case of Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice”.

In my opinion, the President acted within his powers under the Constitution to suspend the Chief Justice and cannot be said to have suspended her in violation of the Bangalore Principles and Latimer House Principles, as both recognise the circumstances under which a judge may be removed or suspended, and, in substance, the grounds are the same as those in the Constitution. There is no provision that runs contrary to any of the constitutional provisions under Article 146. In my opinion, the President, in merely performing his constitutional role under the Constitution in consultation with the Council of State, cannot be said to have acted contrary to the Constitution. The President, on assumption of office, takes the Presidential Oath administered by the Chief Justice before Parliament to protect and defend the Constitution and is duty-bound to act upon receipt of petitions submitted to him for the removal of judges and to act accordingly to ensure that he does not act contrary to the Presidential Oath he has sworn.

Issue 2 of the first case is therefore resolved against the Plaintiff, as the suspension of the Chief Justice from the performance of her office was made in accordance with the Constitution and does not amount to interference with the independence of the Judiciary.

I address issue (3) of the second case, which concerns the disqualification of Justice Gabriel Scott Pwamang, who was appointed as the chairman of the committee by the President to investigate the petitions submitted for the removal of the Plaintiff.

The two allegations made against the judge are that he gave judgment in favour of Daniel Ofori, one of the petitioners, in an appeal brought before the Supreme Court. It is argued that, it is completely incongruous and unconscionable for the same judge to chair a committee that was set up based on a petition submitted by that same person against the Chief Justice, and by Ayamga Akulgo, another petitioner who alleged that the Chief Justice was discourteous to him in a case before the Supreme Court, in which the same judge was on the panel. According to the Plaintiff, Justice Pwamang also made certain comments that supported her position against the conduct of the petitioner.

Allegations of bias against a judge must establish a real likelihood of bias, and the standard burden of proof required is the same as in civil matters, namely, proof on a preponderance of probabilities. At both national and international courts, allegations of real likelihood of bias must be established before a judge will be required to vacate his judicial seat, which he has sworn to occupy and discharge without discrimination on any grounds.

In the case of Sallah v Attorney-General [1970] DLSC11217, Amissah JA, held thus:

“We do not think that the courts should be reduced to the position in which parties before them may assume the competence of judges to decide in their favour but their incompetence to decide against them. And that is why the allegations of facts when challenged must be proved.”

“And we think that the proof should reach at least that standard which is required in civil cases. We are of the view that the ‘real likelihood of bias’ is the proper test to apply in these cases, and we adopt that test. And, indeed, the Attorney-General eventually conceded that this should be the test.”

An allegation seeking the disqualification of a judge from presiding over a matter before him or her must not be frivolous or groundless. Otherwise, it would encourage litigants with weak cases to adopt tactics aimed at disqualifying judges from performing their judicial functions, thereby affording them the opportunity to engage in forum shopping or frustrating litigants with meritorious cases from obtaining justice.

In Ghana, judges, lawyers, and other citizens often attend the same schools and belong to the same social circles. To disqualify a judge merely because he or she knows one or more of the parties would be a dangerous practice that could, in time, undermine the administration of justice. A judge should only be disqualified where the relationship with a party gives rise to a real likelihood of influencing the judge’s conduct or compromising his or her impartiality. In such circumstances, the judge should recuse himself or herself in order to uphold the judicial oath and preserve public confidence in the administration of justice.

In the case of Quist v Kwarantreng and Others [1961] GLR 605, the Court in discussing bias held that:

“Nor is the fact that a judge knows one or other of the parties’ sufficient reason which why he should be debarred from hearing their case. If that were so very few cases can be heard by judges born and bred in Ghana”.

In international courts, an allegation of bias is not taken with a pinch of salt, and the courts require the person objecting to demonstrate a real likelihood of bias and a higher probability that it would erode the judge’s neutrality. In the case of Woyome v Ghana (merits and reparations) (2019) 3 AfCLR 235 §128 &129, Woyome made an allegation of bias against one of the Supreme Court Judges who sat on his case on review submitted to the African Court on Human and Peoples’ Rights that his right to a fair hearing was violated before the domestic court in Ghana. The majority of eight to two dismissed the allegation of bias and held thus:

“128. The Court considers that, to ensure impartiality, any court must offer sufficient guarantees to exclude any legitimate doubt.

However, the Court observes that the impartiality of a judge is presumed and indisputable evidence is required to refute the presumption. In this regard, the Court shares the view that ‘the presumption of impartiality carries considerable weight, and the law should not carelessly invoke the possibility of bias in a judge’ and that ‘whenever an allegation of bias or a reasonable apprehension of bias is made, the adjudicative integrity is not only of an individual judge but the entire administration of justice is called into question. The Court must, therefore, consider the matter very careful before making a finding.

129. In the instance case, the Court notes that Judge…statements were made on the basis of his assessment of the facts of the matter.

The Court is of the view that, although the said statements were unfortunate, and went beyond what can be considered as an appropriate judicial comment they however did not give impression of preconceived opinions and do not reveal bias.”

The allegations against Justice Pwamang are remote, do not constitute a real likelihood of bias, and there is no evidence to support them. Furthermore, the Plaintiff failed to provide sufficient evidence to rebut the presumption of a real likelihood of bias against the Judge, thereby disqualifying him from serving as the Chairman of the investigation committee.

Issue 4 is also an allegation of bias made against Justice Samuel Kwame Adibu Asiedu, who was accused of having sat on an interlocutory application brought by the Applicant in the case of Assafuah v Attorney-General (Supreme Court Suit No. J1/18/2025). It is noted that there is a ruling of the Supreme Court which established that Justice Asiedu did not sit on the interlocutory application. I am therefore satisfied that the allegation is not supportable. However, assuming that Justice Asiedu had sat on the interlocutory injunction application and had been appointed as a member of the Committee to investigate the Chief Justice, that would not, in my view, have constituted a real likelihood of bias unless it could be proved that he made a prejudicial comment or demonstrated preconceived opinions showing that he could not be fair to the Plaintiff. The link between the Judge’s participation in the hearing of the application for an injunction before the Supreme Court, brought by a citizen of Ghana, and his appointment as a member of the investigation committee is too weak and remote to constitute judicial bias. The Plaintiff failed to establish a real likelihood of bias against Justice Asiedu, and the issue is resolved against the Plaintiff.

The fifth issue is that the other members of the committee appointed by the President were not judges and did not subscribe to an oath before assuming office as members of the committee, and that their participation should render the proceedings null and void. The Attorney-General denied the Plaintiff’s assertion, which the Plaintiff failed to prove. The Attorney-General further submitted that it is not in all cases where an act performed by a public officer, which ought to have been preceded by the taking of an oath, but was not, will be rendered invalid. Counsel referred to section 4(2) of the Oaths Act, 1972 (N.R.C.D. 6).

I will not spend much time on the interpretation of the Act, as the Plaintiff, who made the allegation, failed to prove it. Section 4(2) of the Oaths Act, 1972 (N.R.C.D. 6) does not automatically invalidate an act performed by a public officer who did not subscribe to an oath, even where the taking of an oath is required for the exercise of his mandate. Where public officers, such as the other Defendants, in the discharge of their duties as members of the investigation committee, failed to take the required oath, such failure to take the oath or make the required affirmation as public officers shall not invalidate the proceedings. Issue 5 is therefore also resolved against the Plaintiff.

After resolving all the issues raised in both cases, it is my conclusion that both cases are unmeritorious and are accordingly dismissed.

(SGD.) D. ADJEI

(JUSTICE OF THE SUPREME COURT)

COUNSEL

JACOB ACQUAH SAMPSON ESQ. FOR THE PLAINTIFF IN WRIT NO. J1/20/2025 WITH GEORGE ANNANG PRAH ESQ. AND PHILIPPINE ADASE ESQ.

DR. JUSTICE SREM SAI (DEPUTY ATTORNEY-GENERAL) FOR THE 1ST & 3RD DEFENDANTS IN WRIT NO. J1/20/2025 AND FOR THE 1ST, 2ND ,3RD,4TH,5TH & 6TH DEFENDANTS IN WRIT NO. J1/22/2025 WITH FAFA KPODO (CHIEF STATE ATTORNEY), REGINALD NII ODOI (STATE ATTORNEY) AND GIFTY DUMELO (ASSISTANT STATE ATTORNEY)

KWABENA ADU KUSI ESQ. FOR THE 2ND DEFENDANT IN WRIT NO. J1/20/2025 AND FOR THE PLAINTIFF IN WRIT NO. J1/22/2025 WITH EMILY QUAYE ESQ.