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29 July 2017

Samson’s Take: Article 146 – MyJoyOnline.com

Chapter eleven of Ghana’s Constitution has an article 146 which has become very popular in the last couple of weeks after a petition for the impeachment of the chairman of the electoral commission.

This chapter is about the judiciary and the article comes under the terms and conditions for justices of the superior courts – ie High Court, Court of Appeal and Supreme Court.

But article 146 also applies to heads of Independent Constitutional Bodies including CHRAJ, NCCE, EC and the Auditor-General.

Commissioners of these bodies are generally elevated to the status of justices of the Court of Appeal while their deputies enjoy the terms and conditions of justices of the High Court.

Article 187 (13) says ‘’[t]he provisions of article 146 of this Constitution relating to the removal of a Justice of the Superior Court of Judicature from office shall apply to the Auditor-General.’’ This is repeated in articles 228 and 236 for commissioners of CHRAJ and NCCE respectively. In respect of the EC chairman and two deputy chairmen, article 44 simply stops at stating that they are entitled to the terms and conditions of justices of the Court of Appeal and High Court respectively. Well, the procedure for removal from office forms part of those terms and conditions of justices of the superior courts, so I respectfully decline the invitation to debate if these EC commissioners are subject to article 146.

The constitution invites persons who have evidence of stated misbehavior or misconduct, or incompetence or infirmity of body or mind of a justice of the superior courts (including these commissioners or Auditor-General) to submit a petition to the President. The Presidency, a post office of sorts for the petition, must deliver/forward it to the Chief Justice who shall make a prima facie determination – consider whether there is or issues the one accused must answer in investigations. It is critical to note that the Supreme Court has held that the petition must not be a mere rehash of allegations.

If the Chief Justice does not find it worthless to be trashed, the process kicks in. a committee of five – three justices of the superior courts appointed by the Judicial Council and two persons who must not be lawyers, MPs or members of the Council of State are appointed by the Council of State – is set up investigate the matter(s).

The accused or accused persons (accused used loosely) may then be suspended by the President upon the advice of the Judicial Council. He may revoke this suspension anytime, but it is expected that such revocation will follow the acquittal of the accused (here too acquittal is used loosely).

Upon completing its investigations, the committee will submit its report with recommendations to the Chief Justice. The office of the CJ now becomes a post office of sorts which must forward this report to the President. The President must act upon the recommendations.

But the constitution says article 146 process must be in-camera and the supreme court has confirmed that it is wrong to disclose the contents of the petition, and that doing so exposes one to a suit in defamation and four other potential troubles including criminal sanctions, damages for the unconstitutional disclosure or contempt of the High Court at the instance of the five-member committee. But an unconstitutional breach of the confidential process does not invalidate the petition – too bad.  

In the fourth republic, this process has, apart from judges, been used to discipline commissioners of the NCCE and CHRAJ.  

July 29, 2017

Samson Lardy ANYENINI

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