By William Yaw Owusu and Richard Gould
Thursday,July 13,2006
The Supreme Court in Accra yesterday unanimously ruled that the President can not set up a committee to investigate the Chief Justice unless sufficient evidence has been established to support allegations of abuse of office and judicial misconduct brought against him.
In legal parlance, a prima facie case must be established against the Chief Justice before an investigation can be conducted.
“Upon the true and proper interpretation of article 146 of the 1992 Constitution, a prima facie case is required to be established against the Chief Justice prior to the setting up of the committee by the President,” said Ms Justice Sophia Akuffo who presided over the seven-member panel.
Other members of the panel were Justices Georgina T. Wood, Dr S.K Date-Bah, Professor Modibo Tawiah Ocran, Julius Ansah, S.O. Adinyira and S.K. Asiamah.
Frank Agyei Twum, of the Statesman Communication Limited, filed the suit at the Supreme Court to halt a petition by Mr. Bright Akwetey, a lawyer to President J. A. Kufuor, to set up a committee to investigate the Chief Justice, Mr. George Kingsley Acquah for alleged judicial misconduct and abuse of power.
The suit, which cited the Attorney General and Mr. Akwetey as defendants, sought to invoke the original jurisdiction of the highest court in the land to intervene in the matter.
Mr. Twum’s suit, filed on April 3, sought among other things for a declaration that the petition presented by Mr. Akwetey on January 13, calling for the removal of the Chief Justice was inconsistent with article 125(4) of the Constitution.
He also wanted a declaration that Mr. Akwetey was not entitled to present his petition in his personal capacity as a lawyer and officer of the court and that the appointment by the President of a Committee of inquiry into the petitioner’s claim infringed on Article 127(1) and (2) of the Constitution.
The Court said the President’s consultation with the Council of State in setting up the Committee should have been preceded by the determination of a prima facie case against the Chief Justice and added that the Committee, as it is now, is null and void.
The Court also said that communication by Mr. Akwetey of the petition to persons other than the President alone was in contravention of the rules of the Constitution.
Reading the Court’s judgement Mr. Justice S. K. Date-Bah, a panel member, said, “If you compare article 146(3) and 146(6) there is a gap in the logical sequencing in the law and the Chief Justice must be given the benefit of a prior determination of a prima facie case before the committee could start investigating.
He made it clear that the declaration granted by the court in no way diminished the accountability of the Chief Justice as a public office holder adding that, “I am in no way saying that Mr. Akwetey’s petition is frivolous.”
The court said that the administrative acts of the Chief Justice were not immune from inquiry, but added, “There must first be a prima facie case before the President can act on the petition of a citizen.”
The court said that the Constitution, as it is now, was not explicit on article 146 where a citizen could file a petition for the removal of the Chief Justice and the committee to be set up to do the investigation was also not well defined.
The court said that Mr. Akwetey had the capacity to institute the action in his personal capacity contrary to the plaintiff’s assertion that the defendant was an officer of the court and could not do that.
On the issue of how the details of the petition got into the public domain the court said Mr. Akwetey was wrong to have circulated his petition to other people other than to the President alone because “it is not safe to impugn the integrity of judges in public, especially when the allegations turn out to be false and article 146(8) strongly supports this.”
The panelists took turns to give their views on article 146. Justice Akuffo remarked: “article 146 gives too much room for personal opinions and needs to be properly reconstructed to give meaning to its constitutional outlook.”
Prof. Justice Ocran said, “We are entitled to fill any gap that is left in article 146 in order to realize the dream of the framers of the Constitution and this makes the establishment of a prima facie case more compelling before the committee described under the article can be made to work.”
Mr. Justice Asiamah said, “Without first establishing a prima facie case against a superior court judge, of which the Chief Justice is one, the President will have no power, constitutionally, to set up a committee to start investigating him straight away.”
Mrs. Justice Adinyira said, “There is no compelling reason why such procedural protection should not be accorded the Chief Justice,” and
Mrs. Justice T. Wood and Mr. Justice Ansah both concurred with the views of the other members.
The panel however expressed their misgivings about the attitude displayed by the Attorney General’s Department after they failed to file a defence in the case saying, “taking active participation could have helped our judicial jurisprudence.”
Before delivering its judgement the Court gave reasons for overruling an objection raised by Mr. Akwetey on the issue of the Chief Justice paneling members who sat on the case.
The Court said empanelling judges was CJ’s administrative duty and not a judicial duty, adding that Mr. Akwetey did not provide any evidence of the breach of natural justice that he raised.
The ruling took approximately four and a half hours to deliver.
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