I have just finished reading the Supreme Court of Ghana’s 84-page landmark judgment affirming the constitutionality of the procedure used in the removal of former Chief Justice Gertrude Esaaba Sackey Torkornoo. In dismissing the two suits (consolidated) that challenged the President’s actions and the Council of State’s role, the Court clarified the process, upheld the self-executing nature of Article 146, and reinforced the calibrated timing of the right to be heard. This decision not only validates the removal process but also sets a precedent for how future constitutional disputes over judicial independence and executive authority will be resolved.

The case in brief

The suits were brought by Vincent Ekow Assafuah (Writ No. J1/18/2025) and Theodore Kofi Atta-Quartey (Writ No. J1/21/2025), against the Attorney-General. The lawsuits challenged the constitutional validity of the removal process initiated against the then-sitting Chief Justice, Her Ladyship Justice Gertrude Esaaba Sackey Torkornoo. The President at the time, John Dramani Mahama, had received three petitions for her removal, forwarded them to the Council of State, determined that a prima facie case existed, suspended the Chief Justice, and appointed a Committee of Inquiry. The Plaintiffs asserted that this process was unconstitutional.

Structure of Plaintiffs’ case in brief

1. The antecedent-notification argument (Writ No. J1/18/2025)

The Plaintiff argued that the removal process violated the principles of natural justice, specifically the audi alteram partem (hear the other side) rule.

1. The core claim: The President was constitutionally mandated to notify the Chief Justice and obtain her comments/responses before initiating consultations with the Council of State or making a prima facie determination.

• The irreparable injury: Relegating the hearing to the late Committee stage causes irreparable harm to the reputation, tenure, and dignity of the highest judicial office, especially since suspension and public announcements happened prior to the inquiry.

• Reliefs sought: A declaration that failing to notify the Chief Justice beforehand violates Articles 146, 23, and 296, constituting an unjustified executive interference with the independence of the Judiciary.

2. The lack of regulation/published instrument argument (Writ No. J1/21/2025)

This Plaintiff focused on "legality through transparency".

1. The core claim: The entire removal mechanism was unconstitutional because it lacked a published Constitutional Instrument (C.I) to channel and regulate discretionary powers.

• Three loci of needed regulation: A published instrument was required to govern:

1. The President's discretion in making the prima facie determination.

1. The Council of State's role in assisting the President.

1. The proceedings, scope, and limits of the Committee of Inquiry.

• Reliefs sought: An order nullifying the entire process (the prima facie determination, the suspension, and the establishment of the Committee) for failing to satisfy Article 296(c) and Article 11(7) of the 1992 Constitution.

Structure of Defendant’s case in brief

The Attorney-General, represented by his Deputy Dr. Justice Srem-Sai, vehemently contested both writs:

1. Timing of the hearing: The AG conceded that the Chief Justice is absolutely entitled to a fair hearing under natural justice, but argued the right is explicitly fixed by Article 146(8) at the Committee stage, not at the prima facie screening stage.

1. The nature of the filter: The prima facie stage is merely a protective sieve to weed out frivolous petitions. Forcing a mini-adjudication at this stage would defeat its purpose.

1. Practice and convention: There is no constitutional sequence requiring the President to get a response before transmitting a petition to the Council of State. Past precedents (such as the 2006 Agyei-Twum case and a December 2024 petition by Prof. Azar) established a settled convention where petitions go to the Council of State first.

1. Self-executing power: The absence of a C.I does not nullify the exercise of a discretionary power explicitly granted and structured by the Constitution itself. Article 296(c) commands codification but does not strip validity from uncodified actions that adhere to due process.

• Political vs. Judicial Question: The prima facie determination by the President and the Council of State is pre-eminently a policy-based, political screening rather than a reasoned judicial decision, meaning it does not require a detailed judicial-style ruling to be valid.

The Supreme Court's decision and rationale

The Supreme Court, speaking through Justice I.O. Tanko Amadu (with Justices E. Yonny Kulendi, H. Kwofie, S. Dzamefe, H. Amaleboba, and the concurrence of Justice D. Adjei and G.S. Suurbaareh) dismissed the consolidated action in its entirety. The court's primary determinations were as follows:

1. Justiciability

The court rejected the AG's contention that the matter was a non-justiciable "political question". It ruled that whenever it is alleged that an authority has acted outside constitutional limits, the court has full jurisdiction to review it. However, the political nature of the actors scales the depth of the review, meaning the court will check for fairness and caprice but will not substitute its own policy appraisal for that of the President or the Council of State.

2. The right to be heard is calibrated, not postponed

The court held that the CJ is fully entitled to a fair hearing, but the Constitution expressly routes this right to the Committee stage under Article 146(8).

A prima facie determination does not adjudicate rights; it merely decides if there is a "ground for proceeding." Just as a criminal defendant is called to answer at a trial rather than during initial investigative filings, the CJ's right to defend herself ripens before the Committee. Importing a mandatory second hearing prior to this filter is textually unsupported.

3. Article 146 is self-executing

The court heavily rejected the notion that constitutional powers lie dormant until subsidiary regulations are passed. Article 146 explicitly names the actors, outlines the grounds, dictates the Committee's composition, and guarantees an in-camera hearing. Allowing the absence of a C.I to paralyze this mechanism would hold the supreme law hostage to legislative or executive inaction. The court cited historical jurisprudence (such as the Article 22 spousal property rights cases) to prove that the Judiciary routinely enforces constitutional mandates despite failures to pass supplementary legislation, even where clearly mandated.

4. Mootness and subsequent events

The court noted that during the pendency of the action, the CJ was fully furnished with the petitions as a matter of executive courtesy, submitted responses, and was ultimately removed from office. Plaintiff Assafuah attempted to discontinue his writ on grounds of mootness. The court refused the discontinuance, ruling that constitutional actions brought by citizens under Article 2(1) belong to the public interest. Authoritative constitutional declarations cannot be "spirited away" at the whim of private litigants when conditions shift.

A little excursion @ pages 17-25

The Court’s strict jurisdictional limits

Before rendering it’s decision, between pages 17 and 25, the Court reinforced a foundational constitutional barrier: its absolute limitation to evaluating the structural validity of law and procedures versus the merits, facts, or political motives underlying them. The Court explicitly defined what it limited itself to, what is called upon for its determination, and what is strictly not subject to its review.

1. The boundaries of judicial review

The Court anchored its jurisdiction strictly within the textual boundaries of the Constitution:

1. Pure interpretive scrutiny: The Court limited its focus to whether the procedural steps taken under Article 146 conform to the text of the Constitution. It assessed mechanisms, such as the requirement of a published C.I or the precise timing of the right to be heard, as objective legal questions.

1. Boundaries of judicial notice: Invoking Section 9 of the Evidence Act, 1975 (NRCD 323), the Court exercised strict caution regarding what it can officially recognize without formal proof. Even if an event is a matter of public notoriety (such as the removal of an official), the detailed incidents flowing from it are not automatically subject to judicial notice.

1. The four adopted issues: The Court confined its sphere of determination strictly to the four-point memorandum of issues settled under Rule 50 of the Supreme Court Rules. It bound its own hands to answering these specific structural inquiries rather than wandering into broader administrative critiques.

1. The precedent-setting mandate: The Court limited its role to providing authoritative, future-facing constitutional clarity. It acted as a guardian of constitutional permanence, ensuring that its rulings serve as a stable roadmap for future state actors long after the original parties have exited the dispute.

2. What is called upon for determination

The Court clarified that the core of its public interest jurisdiction requires it to determine systemic, structural compliance:

1. The legal timing of natural justice: The Court was called upon to decide exactly when the right to a fair hearing kicks in during a removal process (e.g., whether it must be granted immediately upon the receipt of a petition by the President, or later during the Committee's actual inquiry).

1. Instrumental mandates: It was called upon to determine whether the establishment and operation of a Committee of Inquiry legally necessitates the formal publication of a Constitutional Instrument (C.I) to be valid.

1. Consequential nullity: It was called upon to decide whether an established procedural deviation is severe enough to render the final outcome (the removal of an official) a constitutional nullity.

3. What is strictly NOT subject for determination

The Court placed an iron curtain between proper constitutional adjudication and improper judicial overreach, noting that several matters are legally barred from its consideration:

1. Factual inquiries and internal procedures: The Court was not called upon to audit the granular facts, evidence, or specific historical occurrences that took place behind the closed doors of the Committee of Inquiry. This is because Article 146(8) mandates in-camera proceedings, those internal dynamics are explicitly not subject to judicial exposure or determination.

1. The subjective whims of litigants: The case was not subject to the private discretion, changing calculations, or formal withdrawal requests of the individual Plaintiffs. Among other considerations, when the parties have submitted their written arguments, the separate writs are formally consolidated and a date for judgment is set, the exit of one Plaintiff cannot dissolve or paralyze the ongoing legal determination of the live issues demanded by the public interest.

1. Executive courtesy vs. law: The Court cautioned that casual or courteous executive actions (such as the President voluntarily sharing a petition early) cannot be interpreted as a binding constitutional rule. The Court will not elevate administrative courtesy into a subject of strict constitutional enforcement.

The bottom-line

The actions taken by the President and the Council of State were held valid, constitutional, and fully within the procedural frameworks provided by the text of the 1992 Constitution. The case was dismissed.

This decision follows closely on the heels of the ECOWAS Community Court of Justice’s judgment delivered last week, which dismissed all seven human rights claims and a $10 million reparation claim brought by the former CJ against Ghana.

Read the full Judgment below.