Can President Mahama Remove Chief Justice Torkornoo? Everything You Need To Know

President John Mahama is facing increasing legal challenges following his decision to forward petitions seeking the removal of Chief Justice Gertrude Sackey Torkornoo to the Council of State for consultation. The announcement, made last Tuesday, March 25, by Felix Kwakye Ofosu, the President’s Spokesperson and Minister of Government Communications, has ignited significant controversy within Ghana’s political and legal circles.

The statement explained that President Mahama’s action was in accordance with Article 146 of the 1992 Constitution, which outlines the procedures for the removal of Justices of the Superior Courts, the Chief Justice, and individuals holding analogous positions, such as the Chairpersons and Deputy Chairpersons of the Electoral Commission and Commissioners and Deputy Commissioners of the Commission on Human Rights and Administrative Justice.

However, the move has sparked debate, with some Ghanaians, including online commentators and members of the political establishment, expressing concerns that it is politically motivated and undermines the independence of the judicial system. Members of the New Patriotic Party (NPP), the main opposition party which appointed the current Chief Justice, have also strongly criticized the move, with some taking legal action.

Two Lawsuits Filed to Block President’s Actions

So far, two separate lawsuits have been filed seeking to halt the removal process:

• Vincent Ekow Assafuah’s Suit:

The Member of Parliament (MP) for Old Tafo, Vincent Ekow Assafuah, has filed a lawsuit at the Supreme Court requesting a declaration that President Mahama’s decision to forward the petitions to the Council of State is null and void. The MP’s lawyer, Godfred Yeboah Dame, the immediate past Attorney-General (A-G), filed the writ against the current Attorney-General (A-G).

In addition to the main suit, Counsel for the Old Tafo MP has also filed a motion seeking an interlocutory injunction to restrain the President and the Council of State from proceeding with consultations for the removal of the Chief Justice under Article 146 until the Supreme Court has made a final determination on the action. The application for the interlocutory injunction is scheduled to be heard on Wednesday, April 2, 2025.

• Ebenezer Osei-Owusu’s Challenge:

A new legal challenge has been initiated by Ebenezer Osei-Owusu, a private citizen, contesting the procedure currently being used in the efforts to remove Chief Justice Gertrude Torkonoo from office. Osei-Owusu argues that the process violates the Chief Justice’s constitutional right to a fair hearing. He contends that certain steps taken by the relevant authorities fall short of due process and pose a threat to the independence of the judiciary. A key point raised in the case is the requirement for the Chief Justice to be served with the petition(s) for her removal and allowed the opportunity to respond before any prima facie determination is made by the President in consultation with the Council of State.

This case also challenges the legitimacy of the removal process, asserting that it is politically influenced and aimed at undermining judicial independence. Osei-Owusu is requesting the court to invalidate or withdraw any petitions forwarded by the President to the Council of State regarding the removal of the Chief Justice. He is also seeking any further orders or directions the court deems necessary to uphold his claims.

Chief Justice Torkornoo Demands Access to Petitions Ahead of Council of State Consultations

Chief Justice Gertrude Torkornoo has formally requested copies of the petitions seeking her removal from office, which have been submitted to President Mahama. The Chief Justice’s request is aimed at ensuring her right to respond to the allegations before any conclusions are reached following consultations between the President and the Council of State, as stipulated under Article 146(6) of the Constitution.

Justice Torkornoo’s request is firmly grounded in the common law principle of natural justice, specifically audi alteram partem, which guarantees a defendant the right to be heard before a decision affecting their rights is made. “Respectfully, as you are no doubt aware, it is the most fundamental precept of the common law and our constitutional dispensation ingrained into the justice delivery process, that no consideration that affects the rights of a defendant can be made unless the defendant has been given notice of the contents of a charge, and an opportunity to respond to them,” the Chief Justice wrote in her letter to the President.

The Chief Justice also emphasized that her request is consistent with the fundamental rights of citizens enshrined in Articles 19, 23, and 296 of the 1992 Constitution, as well as established precedents in Ghana’s legal jurisprudence.

“Up to date on 27th March, 2025, I have not been shown the three petitions mentioned in the communication of 25th March, 2025 or given an opportunity to respond to them, which material is expected to form the premise for the consultations between the Council of State and His Excellency the President under Article 146 (6), as to whether there is a need to set up the Committee of Inquiry described in Article 146 (6) and 146 (7) for the trial of any issues raised,” Justice Torkornoo submitted.

The Chief Justice elaborated on established procedures for handling petitions for the removal of Superior Court Judges, emphasizing that the first step of due process is to bring the petition to the attention of the judge in question and solicit their response. “In my time as Chief Justice, I have handled five such petitions for removal of superior court judges, and heard from them before determining whether a prima facie case has been made against them to merit the setting up of the investigative committee provided for under Article 146 (4),” she stated.

Justice Torkornoo explained that it is the combination of the evidence presented in the petition and the judge’s response that guides the Chief Justice in determining, under Article 146 (3), whether a prima facie case exists to warrant the establishment of an investigative committee to examine the complaint against the judge.

“Respectfully, in the case of the Chief Justice, please allow me to submit that it is the combination of the evidence in the petition and the response of the Chief Justice that provides the material for consultation between His Excellency the President and eminent members of the Council of State under Article 146 (6),” she argued.

Justice Torkornoo maintains that both the petitions and her response are essential to determine whether a prima facie case has been established, such that a Committee of Inquiry should be established under Article 146 (7) to determine whether the Chief Justice should be removed from office, citing the direction of the Supreme Court in the case of Agyei-Twum v Attorney-General and Akwettey (2005-2006] SCGLR 732.

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Impeachment Process: Can The President Remove The Chief Justice?

This brings us to the Constitutional Process for Removing a Chief Justice.

According to Article 146 of the Constitution, a Justice of the Superior Courts can only be removed from office for;

• Specified misbehavior
• Incompetence, or
• Inability to perform their duties due to physical or mental infirmity.

In light of the Supreme Court’s ruling in *Frank Agyei Twum vs. Attorney-General*, if a petition is filed for the removal of the Chief Justice, it is first submitted to the President. The President then forwards the petition to the Council of State for consultation regarding the establishment of a prima facie case.

Specifically, Article 146(6) states that if the petition involves the Chief Justice, the President, in consultation with the Council of State, must appoint a committee. This committee will include two Justices of the Supreme Court—one of whom will be designated as chairman by the President—and three additional individuals who are neither members of the Council of State, Parliament, nor legal practitioners. This committee will investigate the petition and recommend to the President whether or not the Chief Justice should be removed from office. The President is obligated to follow the committee’s recommendations in their decision-making process.