CJ’s suspension: Prof. H. Kwasi Prempeh questions GBA’s interpretation of Article 296

The recent resolution by the Ghana Bar Association (GBA) regarding the suspension of the Chief Justice has sparked a thought-provoking response from Prof. H. Kwasi Prempeh, a leading constitutional law expert. In a detailed critique, Prof. Prempeh challenges the GBA’s reliance on Article 296(c) of the Constitution, raising critical questions about its applicability to presidential decisions taken under Article 146.

Unpacking the constitutional dispute

Prof. Prempeh’s central concern lies in what he describes as a misapplication of Article 296(c), which requires that discretionary power be exercised fairly and without arbitrariness. He questions the GBA’s apparent assumption that any constitutional provision using the word “may” automatically invokes Article 296.

“Is it the GBA’s position that every time we read ‘may’ in the Constitution, Article 296 is triggered?” he asks, suggesting that such an interpretation would impose an unrealistic procedural burden on elected institutions like Parliament and the Presidency.

Political Judgment vs Administrative Discretion

A key thrust of Prof. Prempeh’s argument is the need to distinguish between political judgment and administrative discretion. According to him, Article 296(c) was crafted to regulate administrative acts—not decisions rooted in political accountability.

He argues that elected officials, such as the President, exercise political judgment that is inherently subject to the electorate, not judicial scrutiny. “Is the GBA not confusing political judgment, which is not susceptible to judicial review, with administrative or executive discretion, which may be judicially reviewable?” he asks.

Referencing Legal Precedent: France v AG

To further reinforce his point, Prof. Prempeh references the Supreme Court decision in France v Attorney General, where seven justices ruled that Article 296(c) did not apply to decisions by the Electoral Commission regarding constituency demarcation. Although he personally disagrees with the ruling, he uses it to highlight the legal precedent against extending Article 296(c) to every instance of constitutional discretion.

If even a technically administrative body like the EC was found exempt from Article 296 in that context, he argues, it is even harder to justify applying it to a President’s suspension decision under Article 146—a provision devoid of any standards for judicial review.

Call for Constitutional Reform, Not Misinterpretation

In conclusion, Prof. Prempeh suggests that if the GBA believes Article 146 inadequately protects officeholders post–prima facie determination, the solution lies not in stretching Article 296 beyond its scope but in advocating for constitutional amendments.

He leaves readers with a final probing thought: “Is the President subject to 296(c) when he or she decides to veto a bill or pardon certain convicted persons?”—a rhetorical question meant to expose the logical flaws in the GBA’s stance.