On September 1, 2025, the President of the Republic signed a warrant removing the then suspended Chief Justice, of the Republic of Ghana, Her Ladyship Gertrude Araba Esaaba Sackey Torkoono. Her removal has triggered a plethora of legal opinions as to the legality or otherwise of the proceedings.
Article 146, of the Constitution 1992 has become the “chewing stick” in the mouths of Ghanaians who have interest in one way or another ranging from legal luminaries, political actors, civil society activists, traders, mechanics through to “pocket lawyers” either arguing for or against the application of Article 146 of the Constitution, 1992. In my earlier article, I explained why it was not legally possible for the now removed Chief Justice to go back to sit and work as a Justice of the Supreme Court.
This article will explain why a citizen of Ghana who is elected as an Assembly Member, is safer, secured and well protected in law than the Chief Justice who is the head of the Judiciary (the third arm of Government). Now I shall proceed to argue my views.
Enshrined in Article 146 (1) of the Constitution 1992 is the provision that regulates the removal of the Chief Justice and all superior Court judges. It provides as follows:
“A Justice of the superior court or a chairman of the Regional Tribunal shall not be removed from office except for stated misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind”.
Article 146 (6) of the Constitution 1992, also provides that; “where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with council of state, appoint a committee consisting of two Justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of Parliament, nor lawyers.
Article 146(7) of the Constitution, 1992, states “The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
Again, clause 9 of Article 146 provides that, the President shall, in each case, act in accordance with the recommendations of the committee.
From the Constitutional provisions Supra, once the President receives a petition from a citizen, he only acts as a conveyor belt, ie just to push the petition to the council of state for them to establish a prima facie, then once it is established, the President shall proceed to set up the committee as enshrined in the constitution. It is worthy to note that the president is obliged to act strictly on the recommendations made by the committee. On the contrary, an elected assembly member can only be removed from office after going through the provisions of Section 10 of the Local Governance Act, 2016 (Act 936). For emphasis Section 10 of Act 936, provides: “Revocation of mandate of a member (Section 10 of
Local Governance Act 2016 (Act 936)
Section 10.
(1) The mandate of an elected member of a District Assembly may be revoked by the electorate.
(2) For the purpose of revoking the mandate of an elected member, twenty-five per cent or more of the registered voters in the electoral area may petition the Electoral Commission for a recall of that member from the District Assembly.
(3) The Electoral Commission shall conduct a referendum to decide whether or not the member must be recalled
(4) The issue at the referendum shall be decided if at least
(a) forty per cent of the registered voters in the electoral area vote on the issue; and
(b) sixty per cent of the votes cast are in favour of the recall of the member.
Drawing inferences from Section 10, Supra, a citizen will have a “herculean” task to remove a “common assemblyman”. This is so because the law seems to give adequate protection to the Assemblyman by making it difficult for his removal. For instance,
How do you even get signatures of 25% of the voters in your electoral area to petition the Electoral Commission?
Will the Electoral Commission be willing to even conduct the referendum? Who will sponsor the referendum? At whose interest?
Looking at the voter turnout trend for District level elections in Ghana, it is practically difficult to get 40% and more voters turning out to vote at a referendum. Furthermore, after achieving the 40% turnout, the law states that, at least 60% of the voters at the referendum should vote in favor of the removal of the Assemblyman.
Juxtaposing the processes in Article 146 of the Constitution 1992 and that of Section 10 of the Local Governance Act of 2016, (Act 936), I am of the firm view that the laws of Ghana, consciously gives more protection to an elected assembly member in respect of his/her removal than the fragile protection enshrined in Article 146 of the constitution, 1992. The Chief Justice and all superior court justices are at the mercies of the president and therefore any President can use the law as a weapon against the judiciary and indirectly interfere and control the third (3rd) arm of the state. This, if not amended or changed to make it more cumbersome and rigid, the story of judicial control by the executive will continue unabated.
Another concept worth exploring is that our political system is streamed on a duopoly. This gives the impression of continuous division on political lines when such matters as judicial appointments and disappointments arise for public discussions.
I conclude as I began by stating that, in Ghana, you are more secured and safer as an assemblyman than a Chief Justice.
Clement Opoku Gyamfi is a private legal practitioner, football administrator and an activist.
