On Tuesday, October 21, the Speaker of Parliament, Rt. Hon. Alban Sumana Kingsford Bagbin, read to the House a letter endorsed by Ghana’s President, His Excellency John Dramani Mahama. The letter, dated October 7, formally announced President Mahama’s nomination of Justice Paul Baffoe-Bonnie for the position of Chief Justice under Article 144(1) of Ghana’s 1992 Constitution. The constitutional provision reads, “The Chief Justice shall be appointed by the President acting in consultation with the Council of State and with the approval of Parliament.”
The nomination comes amid a pending petition seeking Justice Baffoe-Bonnie’s removal from office on grounds of alleged misconduct and follows the recent removal of former Chief Justice and Supreme Court Justice Gertrude Araba Esaaba Torkornoo.
Following the announcement in the House, Rt. Hon. Bagbin referred the nomination to Parliament’s Appointments Committee, directing it to hold a public hearing and submit a report to the House for consideration.
The petition against Justice Baffoe-Bonnie, dated October 6, was filed by Ghanaian citizen Gbande Nabin Yusif. It cites alleged “misbehaviour” under Article 146(1) of the 1992 Constitution, which provides that “a Justice of the Superior Court…shall not be removed from office except for stated misbehaviour or incompetence, or on ground of inability to perform the functions of his office arising from infirmity of Body or mind.”
Provided to JURIST.
According to Yusif, Justice Baffoe-Bonnie’s actions breached Ghana’s Judicial Code of Conduct and contravened internationally recognized principles of judicial propriety, independence, impartiality, and avoidance of conflicts of interest.
Yusif explained in a recent interview with Joy News that Justice Baffoe-Bonnie’s alleged conduct related to a pending lawsuit filed by the Ghana Law Society on September 24 against the Ghana Bar Association. He accused Justice Baffoe-Bonnie of meeting with one of the litigants and making public remarks about the ongoing case—actions Yusif argues constitute “misbehaviour” under Article 146(1) of the Constitution. He said:
…according to the recognised Bangalore Principles [of Judicial Conduct], Judicial Independence is a prerequisite of rule of law and a fundamental guarantee for fair trial, thus, by entertaining a meeting with the litigant and endorsing elements of their legal arguments, Justice Baffoe-Bonnie compromises the very independence that he is sworn to protect.
In an interview with JURIST, Yusif elaborated his position, stating, “It is within the common knowledge of every law student that a matter pending in court cannot be discussed as that can even operate as contempt to the court. Thus, a Justice going contrary to this well-known principle has fallen within the sight of misbehaviour.”
When asked about the status of his petition, Yusif told JURIST there has been no official communication from the Office of the President regarding whether the petition will be acted upon. He added:
If no feedback is given and Justice Bonnie is approved for his nominated position as the Chief Justice, it will mean that the President does not believe in the constitutionality upon which he was elected. If the President decides not to act upon the petition, or turns a deaf ear to it, then the removal of the former Chief Justice was occasioned—not based on constitutionality—but based on emotions which is not fair to the rule of law. Should the approval be completed without question into the petition’s merit, we will advise ourselves.
Former Director of the Ghana School of Law Dr. Kweku Ansah Asare disagreed, contending that the petition lacked legal merit. He argued that the acts in question arose from an administrative courtesy call paid to the Acting Chief Justice, and that he failed to see how the acts constituted judicial impropriety because they had not involved any judicial or quasi-judicial functions. He said:
I do not think that we should stretch article 146(1) to a point of absurdity, when we do that, it means all the judges can now stand and be accused of judicial impropriety. This is because, from time to time they make extra judicial pronouncement and the rule of law does not suggest that a judge is not supposed to express his views…Justice Date-Bah (as he then was) said that it is not everything that a judge does that will attract the invocation of Article 146.
He urged the President to dismiss the petition outright, stating that it fell short of the threshold required to invoke the Judicial Code of Conduct or the Bangalore Principles.
In my humbled understanding, Dr. Asare’s arguments fall within the scope of those made by former Chief Justice of Ghana Her Ladyship Sophia Akuffo—a current member of the Council of State—regarding the removal of former Chief Justice and Supreme Court Justice Getrude Torkornoo from office.
If my memory serves, Her Ladyship Akuffo asserted that the grounds for removal under Article 146(1) are vague and discretionary, as they do not specify what amounts to “misbehaviour” or “misconduct.” Likewise, some critics have shared that but for the “wilful causing of financial loss to the state” —a crime in and of itself—the other grounds on which the former Chief Justice was removed were not based on clear-cut rules that she ought to have acknowledged to guide her actions and inactions.
It is high time Ghana, as a country and a signatory to the observance of constitutionality and the rule of law, considered broad reforms that define the scope and extent of Article 146 so that the judiciary can be properly regulated. This would serve the dual purposes of establishing and maintaining the integrity of the judiciary as a system immune from political interests, while also ensuring that the judiciary and its members remain accountable.
Notwithstanding, I do believe that based on the precedent occasioned by the successful removal of Ghana’s former Chief Justice, Ghana has now reached a stage where, as a matter of fairness and justice, it is necessary for a committee to be set up for every “proper” petition—to determine not only the merits but also whether alleged misbehaviors or incompetence rightly fall within the spectrum of Article 146(1).
As the approval process for Justice Baffoe-Bonnie’s nomination as Chief Justice begins, what will happen with the petition?
Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.