CJ removal: Lawyer Thaddeus Sory reacts

A constitutional test: The removal of CJ

On the evening of Tuesday, March 25, 2025, social media outlets reported that His Excellency, the President of the Republic of Ghana, had taken a significant step by forwarding three petitions for the removal of the Chief Justice to the Council of State. This action came in accordance with the requirements of Article 146(6) of the 1992 Constitution of Ghana, which stipulates that the President, in consultation with the Council of State, must establish a committee to investigate such a petition.

This procedural move represents a constitutional safeguard, ensuring that the removal of a high-ranking judicial officer is carried out with transparency and appropriate due process. It marks the beginning of a legal journey that raises fundamental questions about constitutional interpretation, procedural fairness, and the relationship between the President, the Council of State, and the judiciary.

A challenge to the constitutionality of the process

Just two days after the President’s referral, at 9:20 AM on Thursday, March 27, 2025, Hon. Vincent Ekow Assafuah of Old Tafo, Kumasi, filed a petition at the Supreme Court challenging the President’s actions. Mr. Assafuah argues that the President violated the Constitution by failing to consult the Chief Justice before referring the petitions to the Council of State. According to Assafuah, the President is constitutionally required, under various sections of the Constitution, to notify the Chief Justice and obtain her comments before any petition for her removal is presented to the Council of State.

His petition raises critical issues, including whether the Chief Justice was properly consulted before the petitions were forwarded and whether there was a constitutional breach in the procedure. These questions open up a broader debate about the interpretation of the law and the necessity of adhering to every procedural detail prescribed by the Constitution.

Key constitutional questions and legal interpretations

Several intriguing legal questions emerge from Assafuah’s petition:

1. How did Mr. Assafuah ascertain, within a mere day, that the Chief Justice had not been consulted before the petitions were referred to the Council of State?

2. Was there any direct communication from the Chief Justice to Assafuah confirming she was not consulted?

3. Did any media outlets report that the Chief Justice was bypassed in this process?

These questions point to a deeper inquiry into how information about legal procedures is disseminated and whether individuals can challenge constitutional actions without clear evidence of a breach.

The role of Article 146(6) in the process

Article 146(6) is the cornerstone of this legal dispute. It explicitly states that when the petition pertains to the removal of the Chief Justice, the President must act in consultation with the Council of State. The law is clear: the President must initiate the process with consultation, not unilateral action.

However, the focus on whether the Chief Justice’s comments should be obtained before the referral misses a broader point. The referral to the Council of State is the first step in the process of investigating the petition. At this stage, the President is not making a final determination but is instead engaging the constitutional body that is entrusted with the responsibility to ensure that any potential removal is legitimate and substantiated.

The Agyei Twum case and the need for a Prima Facie case

In the case of Agyei Twum v. Attorney General & Akwetey, Justice Date-Bah clarified that, like other judicial officers, a prima facie case must be established before a committee is empaneled to investigate a petition for the removal of a Chief Justice. However, the case did not specify how this prima facie determination should be made, leaving room for interpretative flexibility.

What is certain, though, is that the President must first consult with the Council of State, as mandated by the Constitution. The referral of the petitions to the Council of State, therefore, aligns with the constitutional requirement and does not, as some might claim, amount to an unjust determination of the Chief Justice’s fate.

The questions that unveil the challenge

Mr. Assafuah’s legal challenge seems to raise more questions than it answers. The Constitution’s explicit language leaves little room for ambiguity: the President is required to consult with the Council of State when handling petitions related to the Chief Justice’s removal. So, is it unconstitutional for the President to refer the petitions to the Council of State as the first step in this process?

Furthermore, does referring the petitions to the Council of State prematurely imply a prima facie determination? And, importantly, does such a referral prevent the Chief Justice from providing her comments on the petitions at a later stage in the process? These questions suggest that Assafuah’s case may be based on a misunderstanding of the Constitution’s intended process.

The CJ’s belief in the law

Throughout this dispute, the Chief Justice has consistently demonstrated faith in the legal process. She has no need for presumptive protection because, as a staunch advocate for the law, she believes that the legal system will follow its course in the proper manner. Her trust in the law is indicative of the confidence that every Ghanaian should place in the judicial system, even when faced with challenging circumstances.

As the process unfolds, it remains essential to remember that the law mandates the President to consult with the Council of State. This consultation is ongoing, and the respected legal minds within the Council will ensure that the law is followed without bias or haste.

A Biblical lesson for the petitioners

To those who challenge the President’s referral, Thaddeus Sory offers a timeless lesson from the Bible. In Acts 5, the apostles faced persecution and intimidation, yet they continued their mission without resorting to legal measures. When confronted by the High Priest, the wise counsel of Gamaliel suggested that if the apostles’ mission was of divine origin, no human force could thwart it.

This advice, Sory contends, is relevant to the current situation. The petitioners, like the apostles, should be left to pursue their cause. If their actions are based on sound principles and justice, the law will uphold them. If not, their efforts will ultimately falter.

Let the Law Work

In the end, the law must run its course. The President has followed the constitutional procedure in referring the petitions to the Council of State, and the process of consultation is now underway. While challenges may arise, they must be weighed against the constitutional requirements and the broader principles of justice. Let the law work, and let it lead to the truth.