RESPONDENT IN REMOVAL PETITION CANNOT WAIVE RIGHT TO IN CAMERA PROCEEDINGS AND ALSO ANNUL PROCESS
THE RESPONDENT IN A REMOVAL PETITION CANNOT WAIVE THE RIGHT TO IN CAMERA PROCEEDINGS AND ALSO ANNUL THE PROCESS.
BY MARTIN A. B. K. AMIDU
It is interesting to hear and read a former Attorney-General, Godfred Yeboah Dame, (also known as Telephone Man) saying disingenuously and with tongue in cheek that he opposes calls for proceedings relating to the removal of his client, Chief Justice Mrs. Gertrude Torkornoo, to be held in camera on grounds of transparency due to the intense public scrutiny she has already endured as though proceedings for the removal of Justices of the Superior Courts under Article 146 of the 1992 Constitution can be held otherwise than in camera under the 1992 Constitution.
The reader ought to be reminded before proceeding further with this discourse that Article 146 (8) of the 1992 Constitution on the removal of Justices of the Superior Court and chairmen of Regional Tribunals (including the Chief Justice) unequivocally mandates that: “All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice.” Godfred Yeboah Dame (aka Telephone Man) cannot as a former Attorney-General be oblivious of the fact that the Supreme Court considered and decided on the meaning and scope of Article 146(8) of the Constitution in three previous cases the last being the case of Dery v Tiger Eye PI and Others in which the Court stated as follows:
“What is the true intent and purpose of this provision? Is it limited in its terms? What is the extent of the limitation, if any? The true intent is not in dispute, it is to protect the integrity of the judiciary, the personal reputation of the judge under investigation, and it also aims at protecting potential witnesses from some form of recrimination. The reasons for confidentiality could be endless, but integrity of the administration of justice is at the centre.”
The Supreme Court concluded after considering the two previously decided cases as follows:
“The rights of the people were merely postponed for a time lest the purpose of Article 146(8) should be defeated. We would emphasize that these clear constitutional provisions must be respected if the intent and purpose are not to be rendered nugatory, which is to keep the proceedings private and confidential.”
It is unethical and dishonourable, therefore, to reframe the clear constitutional mandate on the hearing of proceedings for the removal of Superior Court Justices to give the impression to the unsuspecting public that someone or group of persons are calling for the hearing of the petitions to remove the Chief Justice by the committee appointed by the President to inquire into the complaints in camera for political purposes while the hearing can permissibly be open to the public. The provisions of Article 146 (8) are so clear and unambiguous that the committee appointed under clauses (6) and (7) to inquire into the petitions and recommend to the President whether the Chief Justice ought to be removed from office will be violating its mandate to hold a public hearing in respect of any of the petitions pending before it. Consequently, the call by Godfred Dame, (also known as Telephone Man) can only rationally be attributed to the continuing attempt to politicize an otherwise simple constitutional process set in motion to determine whether or not the complaints contained in the petitions seeking the removal of the Chief Justice from office can be vindicated or are unmeritorious.
Citi News reported the grounds on which Godfred Dame argues for the constitutional provision to be subverted by a public hearing as follows: ‘“It cannot be a secret. There ought to be light on the proceeding because she has already been damaged in the public domain,” Dame stated, underscoring the importance of fairness and openness in the process.’ In one fell swoop Godfred Yeboah Dame, (Telephone Man) is prepared to subvert the Constitution of Ghana to score political points and is wiser than the framers of the Third, and Fourth Republican Constitutions, See Article 128 (11) of the 1979 Constitution , and Article 146 (8) of the 1992 Constitution already quoted supra in paragraph 2, respectively. The provisions of the Third Republican Constitution, 1979, which was adopted verbatim by the Fourth Republican Constitution, 1992 departed from the provisions under Article 116(4) and (5) of the Second Republican Constitution, 1969, where the mode of the hearing was not strictly circumscribed and therefore open to debate.
The framers of the three Republican Constitutions of Ghana has had also made provisions for the removal of the President from Office which show that the framers of the Constitutions purposefully used the words “the tribunal shall inquire, in camera, whether there is a prima facie case for the removal of the President” and “the proceedings in Parliament for the removal of the President shall not be held in camera except where Parliament otherwise orders in the interest of national security” (see Article 69 (4) and (12) of the Fourth Republic Constitution, 1992, for the words quoted; and Article 56(4), and (12) of the Third Republican Constitution, 1979, and Article 47(3) and (6)(b) of the Second Republican Constitution for the words in pari materia as those of the 1992 Constitution). The injunction that proceedings under Article 146 of the 1992 Constitution must be held in camera was therefore purposeful and not an omission to be filled by judicial activism.
I have been following and tracking closely the initiation of the processes to remove the Chief Justice from Office. I was definitely worried and displeased to have read a press release issued by the Minister for Government Communications on 25 March 2025 stating inter alia that: “President Mahama Consults with the Council of State on three (3) petitions to the Council of State to commence the consultative process by Article 146 of the 1992 Constitution.” I agree entirely with the riposte by Mr. Sam Okudzeto on Thursday, 27 March 2025 when he stated on Joy FM’s Top Story that:
"Let me emphasise that this should not have been publicised. When I was on the Council, we felt it was wrong for a petition of this nature to be made public when submitted to the President and forwarded to the Council of State. It is only when the Council and the President conclude that a prima facie case has been made that publicity should follow. I think this is a wrong approach."
Fortunately, the content of the petitions were not disclosed by the press statement of the Minister for Government Communications. But on the same day Thursday, 27 March 2025 the New Patriotic Party’s Member of Parliament for Old Tafo, Vincent Ekow Assafuah through his lawyers, Dame and Partners, filed an action in the Supreme Court at 09:20 am and according to the reportage of Joy FM that:
“The MP made this known on his social media platforms, sharing a copy of the writ filed at the Supreme Court on Thursday, March 27, 2025. His suit follows the president's announcement, made through the Minister of State in charge of Government Communications, Felix Kwakye Ofosu, that three petitions demanding the removal of Chief Justice Gertrude Torkornoo would be referred to the Council of State for consultation.”
Mr. Godfred Dame is the immediate past Attorney-General under whose watch Mrs Gertrude Torkornoo was proposed by the NPP Government to the Judicial Council, nominated by President Akufo-Addo, approved by Parliament, and appointed as the Chief Justice by the President. When I read the Writ filed on behalf of Vincent Assafuah by Dame and Partners I felt that a simple petition for the removal of the Chief Justice had taken a political turn by the involvement of Godfred Yeboah Dame, the immediate past Attorney-General, in the affray. The writ was immediately followed with an application for an interlocutory injunction to stop the processes brought about by the petitions for the removal of the Chief Justice.
Godfred Dame has every right theoretically to represent who he wishes after ending his tenure as Attorney-General on 6 January 2025. But every previous Attorney-General worth the name knows that public perceptions and opinions are particularly key factors to consider immediately upon leaving office into private life. When in 2001 the late Professor Kofi Awoonor came to see me in the company of the late Victor Selormey to ask me to represent him in his impending criminal trial I politely refused to do so for purely strategic and tactical reasons of my representation as a lawyer in his criminal case not having an influence on the public perception of his case as involving the NDC Government.
I had met Victor Selormey at the VVIP Lodge as his lawyer on the instructions of President Rawlings when he arrived from the United Kingdom on a British Airways flight and was arrested by the then Bureau of National Investigations (BNI) – Victor Smith initiated the call to me to speak to former President Rawlings. That was when I earned the name Shadow Vice-President, for those who remember the incident and I appreciated he wanting me to continue to represent him in Court. I did not think doing so as the immediate past Deputy Attorney-General and running mate to the NDC Presidential candidate for the 2000 elections would serve his best interest and the Government we both served. But Godfred Dame was not directly representing the Chief Justice but Vincent Assafuah, the NPP Member of Parliament for Old Tafo and the public may well understand that this was not a collusive suit with the Chief Justice lurking unseen in the background.
On the same day, 27 March 2025, the Chief Justice, Mrs Torkornoo was also reported on Joy FM as requesting a fair opportunity to respond to the allegations against her before further steps are taken, stating inter alia that:
“I am by this letter humbly and respectfully asking His Excellency the President and eminent members of the Council of State to forward the petitions against me to me, and allow me at least seven days after receipt of same, to provide my response to you, which response can then form part of the material that you conduct the consultations anticipated under 146 (6), before the possible setting up of a Committee of Inquiry under Article 146 (7).”
Unfortunately, and for reasons best know to the Chief Justice, she chose to copy her letter to several addressees including specifically a former Chief Justice, Sophia Akuffo, serving on the Council of State even though the Council of State as a body was copied through its chairman, and the Ghana Bar Association who would coincidentally or on the prompt later speak in her defence. The content of her letter was given wide publicity in the media. I thought she had shot herself in the foot both strategically and tactically, and I was vindicated when her request addressed to the President was acceded to and in a way undercutting whatever capital she would have gained by keeping quiet and watching how the next steps would pan out.
On 21 May 2025 the Supreme Court heard and delivered its decision in two separate cases, Centre for Citizenship, Constitutional and Electoral Systems (CenCES) v (1) The Attorney General, (2) Her Ladyship, Chief Justice Gertrude Araba Esaaba Sackey Torkornoo and (3) His Lordship Justice Gabriel Scott Pwamang, a Justice of the Supreme Court and chairman of the presidential investigative committee established by the President, and Theodore Kofi Atta-Quartey v Attorney-General brought by citizens of Ghana challenging the removal processes commenced against the Chief Justice. The Court dismissed each action or application.
The two actions were supposed to have been brought by independent citizens of Ghana vindicating their Constitutional rights under article 2 and 130 of the 1992 Constitution. However, Ghana Web reported on the same day, 21 May 2025 after the proceedings at the Supreme Court that:
‘GHOne TV captured Francis Kofi Torkornoo, who is the immediate past Chief Executive Officer (CEO) of the Narcotic Control Board (NACOB), leaving the court, which was shared on X on Wednesday.... The media house captioned the video, “CJ Torkornoo's husband and legal team leaving Supreme Court following dismissal of an application for interlocutory injunction aimed at halting hearing of three petitions against the Chief Justice.”’
Maybe, the public will understand that Francis Kofi Torkornoo’s presence at the court premises was “luckless coincidence” to use the words of someone who shares the same evangelical pastor or spiritual mentor with the Chief Justice.
On the same day, 21 May 2025 Godfred Yeboah Dame filed in the registry of the Supreme Court at 3:00 pm the Writ in the case of Gertrude Torkornoo v (1) The Attorney-General and 6 Others, and an accompanying application for interim injunction against all the five members of the committee appointed to inquire into the complaints contained in the petitions against the Chief Justice. The timing of the commencement of Gertrude Torkornoo’s action may also be a “luckless coincidence” in the public’s perception. And maybe, the public will rationally not make any connection or meaning between the President who appointed both the Chief Justice and the former Attorney-General to this strategic and tactical move in the Chief Justice filing her action in Court using the services of the immediate past Attorney-General.
The decision and conduct in the timing of the action in the court by the Chief Justice constitutes non-verbal communication and sends out a message which the public as recipients are entitled to make meaning out of, which may or may not be helpful for the cause being pursued or advocated using lawfare. It may or may not be a coded call to all the appointing President’s appointees to rally around the respondent. It may or may not have prompted the references to some of the judges appointed by former President Akufo-Addo, as NDC judges thereafter. The communicator is responsible for the meaning significant others make of his messages – simple theory of communication studies.
But let me hasten to say that when one looks at the public service and experience between the Chief Justice who was enrolled as a lawyer with number 2110 on 2 October 1987 and the former Attorney-General enrolled on the same roll of lawyers with number 3558 on 3 October 2003 any strategic and tactical credit or misjudgment in the timing and conduct of the suit must lie primarily at the feet of the supposedly more experienced Chief Justice who is still the head of the judiciary in Ghana. Discretion is the better part of valour!
I believe it was the fact that Godfred Yeboah Dame exercised his acclaimed theoretical right as a lawyer to represent whom he may after leaving public office that generated public comments necessitating his having to grant the interview to Citi News’ Hanson Agyemang on 22 May 2025 in which he asserted, inter alia, that the hearing by the committee appointed by the President to inquire into the complaints against his client, the Chief Justice cannot be held in secret – : “It cannot be a secret. There ought to be light on the proceeding because she has already been damaged in the public domain.” He was also reported to have said that: “On the contrary, the conduct of the government so far, together with what has been witnessed in the whole of proceedings, will rather require that it ought to be in the public.” The Writ which the Chief Justice caused Godfred Dame to file on her behalf on 21 May 2025 seeks to vindicate his assertions in the Supreme Court and to invalidate the whole processes leading to the appointment of the committee and to disqualify all the members of the committee from proceeding with their constitutional duty to hear the complaints of the petitioners who initiated the petitions under Article 146 of the Constitution.
Chief Justice Gertrude Torkornoo and her lawyer have an uphill task in view of the binding decisions of the Supreme Court in Ghana Bar Association v Attorney-General, Agyei-Twum v Attorney-General, and Dery v Attorney-General. The Supreme Court in Dery v Attorney-General which reconciled the previous two cases decided that the annulment of the petition is not a remedy available to a respondent to the petition and concluded as follows:
“From the moment the President accepts the petition, the process of impeachment has commenced. And that process cannot be truncated except in terms as clearly expressed in Article 146. And there are only two situations in which this can occur, firstly where the Chief Justice decides that there is no prima facie case under clause (3) and secondly, after the committee set up to investigate the complaint has submitted its report. Apart from these two modes of terminating proceedings commenced under Article 146 which are expressly provided for, it is impermissible to import any other mode into the Article to truncate the process.”
The Court emphatically concluded that:
“Finally the attempt to abort the proceedings also brings it in conflict with the provisions of Articles 128(4), 136(3) and 139(4) of the Constitution which require that only persons of higher moral character and proven integrity shall be appointed to the various branches of the superior court bench, read side by side with Article 146(1) which requires, inter alia, that when a judge is alleged to have fallen short of the qualities for which he was appointed he should be investigated. It is also a matter of public policy that allegations of misconduct or misbehaviour against a public official, including a judge, should not be swept under the carpet. Indeed the very integrity of the Judiciary is at stake if such allegations are unexamined and found to be false.”
Despite the decision of the Supreme Court in the Dery case, many unscrupulous Ghanaians have for political and selfish reasons made it their forte to leak unauthenticated contents of the petitions allegedly submitted to the President for the removal of the Chief Justice in the name of freedom of speech contrary to prohibitions by the Constitution. Indeed, the responses of the Chief Justice to the petitions also found their way into the media. The law provides a remedy to the committee as well as a party affected by an unconstitutional disclosure for bringing such unscrupulous citizens and media to book without aborting the removal processes initiated by the petitioners (see Dery v Attorney-General).
The Chief Justice and the immediate past Attorney-General have filed a motion at the Supreme Court seeking an interlocutory injunction to halt the proceedings of the committee investigating the petitions for her removal. The Statement of the Plaintiff’s Case was not filed on 21 May 2025 and it is difficult to conjecture how it supports the Writ and the interim application. But every vigilant citizen knows that the Supreme Court rendered two decisions on 21 May 2025 which ruled against injuncting the committee. Maybe, the Writ and particularly the Statement of the Plaintiff’s Case when filed and made public will be weighty enough to support the application for interlocutory injunction filed by the sitting Chief Justice as Plaintiff to convince the Court to overrule itself, grant the application for the interim injunction and ultimately depart from its previous decisions to abort the pending petitions. We are in unchartered waters and all eyes must be on the Supreme Court.
Every patriotic citizen has an obligation to defend the 1992 Constitution without considerations of any other form of loyalty to substructures existing and enabled by the Constitution. The patriotic citizen’s utmost fidelity is to the Republic of Ghana as established by the Constitution. The Judiciary is the least dangerous branch and the citizen’s hope for freedom and justice. Consequently, we must channel our efforts to defending Article 146 of the Constitution and produce cogent evidence when we allege it is being subverted by any person or group of persons. In the absence of any concrete evidence of impropriety on the part of the petitioners, the public has a vested interest in knowing the outcome of the removal process begun by the petitions submitted to the President. Caesar’s wife must be above suspicion! That is the only rational way to protect and defend the judiciary and administration of justice under a regime of laws and not of men demanded by the 1992 Constitution.
Martin A. B. K. Amidu
25 May 2025