Charlotte Osei’s Removal ‘Inconsistent’ With Law, Supreme Court Must Decide – Lawyer

A private legal practitioner, Osman Alhassan has faulted the removal of Mrs Charlotte Osei from office as the chairperson of the Electoral commission.

Mrs. Osei, together with her two deputies, Amadu Sulley and Georgina Opoku Amankwaa, were handed their dismissal letters on Thursday, June 28, 2018, following the advice of a Committee that was set up by the Chief Justice, Justice Sophia Akuffo, pursuant to Article 146(4) of the Constitution, to investigate separate complaints brought against the three persons by some Ghanaian citizens.

Mrs. Osei was investigated over six (6) separate allegations of various procurement breaches, for which a prima facie case was established.

But Mr Alhassan who passionately kicked against the decision of president Akufo-Addo indicated that the chairperson’s removal from office is “inconsistent” with the cosntitution.

His reason was that “the Supreme Court must be given the opportunity to affirm or reject are as follows:

1. Whether or not on the true and proper interpretation of article 146 of the Constitution, breaches of Law simpliciter by a Court of appeal Judge, and for that matter the EC Chairperson in the performance of their functions, amount to “misbehavior and incompetence” to ground their removal from office;

2. Whether or not the Chief Justice (CJ) and/or her Committee have the Jurisdiction to interpret the Constitution;

3. Whether or not the CJ’s Committee has the jurisdiction to recommend, after its investigation, that a superior Court Judge or the Chairperson of the Electoral Commission be removed;

4. Whether or not in the exercise of its investigative function, the CJ’s Committee has the Jurisdiction to determine breaches/violations of Law and pass judgment that can constitute grounds for the president’s removal of a superior Court Judge, and for that matter the EC chairperson, from office;

5. Whether or not the applicability of the Public Procurement Act on the functions of the EC Chairperson is Constitutional;

6. Whether or not the procurement law has been breached, and whether the breaches of Procurement Law simpliciter, if any, is weighty enough to ground the removal of the EC Chairperson.”

 

Below is exerpts of an article he wrote:

 

REMOVAL OF THE CHAIRPERSON OF THE ELECTORAL COMMISSION OF GHANA FROM OFFICE

The office of the Chairperson of the Electoral Commission in my opinion is not like any other public office. It is an office, just as those of Superior Court Judges, whose independence and tenure the constitution clearly seeks to protect. The removal of a superior Court Judge or the Chairperson of the Electoral Commission from office ought not be done in a jest. The grounds for removal must not be flimsy. It must be grave as to amount to some serious moral turpitude, dishonesty, or incapacity of the office holder to perform his or her functions. This Article is therefore seeking to excite our minds to some of the issues we might not have considered and assist in getting the supreme Court the Opportunity to make pronouncement on such issues.

On the 29th day of June 2018, I spotted a letter on social media supposedly authored by the President, removing the Chairperson of the Electoral Commission from office on the recommendations of a Committee set up by the Chief Justice under article 146 of the Constitution. This was after a petition for the removal was forwarded to the Chief Justice by the President under the same article 146 of the Constitution. It was also after the Committee had completed investigations into the allegations made by the Petitioners against the EC Chairperson. The Letter of removal and some excerpts of the Committee’s Report which are in circulation triggered arguments on various tangents.

All the allegations alleged to have been established in the excerpts of the Report against the Chairperson relate to breaches of the Public Procurement Act. The Committee concluded that the breaches amounted to “stated misbehavior and incompetence” as contemplated under article 146. It is also very apparent, though not captured in the Report in circulation, that the Committee recommended to the President that the EC Chairperson be removed from office. The president therefore issued the letter removing her for “stated misbehavior and incompetence” and that triggered the arguments I referred to, and the most popular argument I hear are on the following issues:

1. whether or not the President had any discretion in forwarding the petition to the Chief Justice;

2. whether or not the president had any discretion in removing the EC Chairperson after receiving the recommendations of the CJ’s Committee;

3. Whether or not all the findings of the Committee against the Chairperson were accurate; and

4. Whether or not the allegations established against the EC Chairperson relate to her core mandate.

Honestly, I don’t find any of the directions of the arguments very relevant. The most relevant arguments in my opinion, and which I think the Supreme Court must be given the opportunity to affirm or reject are as follows:

1. Whether or not on the true and proper interpretation of article 146 of the Constitution, breaches of Law simpliciter by a Court of appeal Judge, and for that matter the EC Chairperson in the performance of their functions, amount to “misbehavior and incompetence” to ground their removal from office;

2. Whether or not the Chief Justice (CJ) and/or her Committee have the Jurisdiction to interpret the Constitution;

3. Whether or not the CJ’s Committee has the jurisdiction to recommend, after its investigation, that a superior Court Judge or the Chairperson of the Electoral Commission be removed;

4. Whether or not in the exercise of its investigative function, the CJ’s Committee has the Jurisdiction to determine breaches/violations of Law and pass judgment that can constitute grounds for the president’s removal of a superior Court Judge, and for that matter the EC chairperson, from office;

5. Whether or not the applicability of the Public Procurement Act on the functions of the EC Chairperson is Constitutional;

6. Whether or not the procurement law has been breached, and whether the breaches of Procurement Law simpliciter, if any, is weighty enough to ground the removal of the EC Chairperson.

I therefore intend that, by the time I complete this article, the above issues must have been addressed. I must however admit that I needed to have read the full Report of the Committee before writing this article, but looking at the issues I consider most important, I am of the view that absence of the full Report will not affect the validity of the arguments I am about to make. In this article therefore, I would deal with the issues I consider most relevant, and deal with some of the popular arguments captured herein. I would discuss the issues under the following headings:

1. THE NATURE AND GRAVITY OF “STATED MISBEHAVIOR OR INCOMPETENCE” CONTEMPLATED UNDER ARTICLE 146;

2. JURISDICTION OF THE CJ’S COMMITTEE; AND

3. THE PRESIDENT’S DISCRETION UNDER ARTICLE 146 OF THE CONSTITUTION;

1. THE NATURE AND GRAVITY OF “STATED MISBEHAVIOR OR INCOMPETENCE” AS CONTEMPLATED UNDER ARTICLE 146;

Hereunder, I would deal with the issue Whether or not on the true and proper interpretation of the Constitution, breaches of statute simpliciter, by a Court of appeal Judge, and for that matter the EC Chairperson in the exercise of their functions, amount to the “misbehavior and incompetence” that is contemplated under article 146(1) of the Constitution.

For the benefit of readers who are non-lawyers, the word simpliciter mean “without any qualification or condition”. By a breach of statute simpliciter therefore, I mean breaches of statute without any qualifications at all. The relevant qualifications to the statutory breaches to be expected under Article 146, in my opinion, are breaches with evidence that the breach was ill motivated; and with evidence that it occasions a loss to the State, or has inured, or would inure to the benefit of the EC Chairperson; or with evidence of dishonesty or any other condition that negatively affects the High Standard of Morality and integrity that she satisfied before occupying the office.

For the purpose of this heading, I would assume that the breaches of procurement Laws imputed on the Chairperson of the Electoral Commission are true. The question therefore is whether such breaches are of sufficient weight or gravity as to amount to “stated misbehavior or incompetence” under article 146 of the Constitution.

I do not think breaches or incorrect application of statute simpliciter, if any, can constitute the kind of “misbehavior and incompetence” that is contemplated under article 146(1) of the Constitution to ground the removal of the Electoral Commissioner from office. I come to that conclusion on two major grounds:

1.1 the Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice; and

1.2 the nature and standard of qualifications for the office.

1.1 Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice

As already stated, the office of the Chairperson of the Electoral Commission is one of the offices clearly regarded by our Constitution as sacred, sensitive, and essential to our democracy and civilization. It is not an office that can be risked in, or allowed to yield to, vile and turbulent partisan political vendetta in such a manner as to permit, and/or make easy for any government to find grounds for replacing the EC Chairperson upon assumption of power. No! Accordingly, it is abundantly clear that our Constitution intends for such an office, a robust and an uncompromising protection both for its independence and tenure.

With regards to her independence and tenure, the framers of the Constitution by the combined effect of articles 43 (3) and 126(1) thereof, place the Chairperson of the Electoral Commission in the same category as a justice of the Court of Appeal. The Court of Appeal is, by article 126 of the Constitution part of the Judiciary and, in fact, the second in superiority within the hierarchy of Superior Courts. Article 127 provides for some of the terms and Conditions of service that I deem most relevant to this article. For the purpose of easier reference, I hereby reproduce the relevant provisions of the constitution.

Article 43(3), 126(1) and 127 provide as follows:

Article 43(3):

         The Chairman of the Electoral Commission shall have the same terms and conditions           of service as a Justice of the Court of Appeal.

Article 126(1):

               1) The Judiciary shall consist of –

              (a) the Superior Courts of Judicature comprising

            (i) the Supreme Court;

           (ii) the Court of Appeal; and

          (iii) the High Court and Regional Tribunals.

     (b) such lower courts or tribunals as Parliament may by law establish.

Article 127:

   (1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.

(3) A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power.

The above provisions spell out some of the conditions of service of the Judiciary of which the Court of Appeal is part. It must be noted that the only basis for subjecting the EC Chairperson to the procedure under article 146 of the Constitution is because she is regarded as a Court of Appeal Judge under article 43 (3). Otherwise, there are no specific provisions in the Constitution grounding the removal of the EC Chairperson.

Accordingly, the above provisions can only mean that, in addition to the other terms and Conditions of service of the superior Court judges, and by extension the Judiciary, the Constitution intends to accord the Electoral Commission’s Chairperson the same independence and protection of tenure in the performance of her function.

In my opinion, article 43(3) places greater importance to the independence of the Chairperson of the Electoral Commission than it accords the electoral Commission itself as a body or institution. It therefore elevates the independence of the Chairperson beyond the general independence guaranteed for the Electoral Commission as an institution under article 46 to that of the Judiciary. This is because the general independence of the Electoral Commission under article 46 is subject to other Laws other than the Constitution. Article 46 of the Constitution states as follows:

Article 46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority.

Clearly, Article 46 is referring to the Electoral Commission as a whole. It guarantees the independence of the Commission as a body or an institution, acknowledging that membership of the Electoral Commission as a whole includes officials who rank far below the EC Chairperson herself. Hence the independence of the Electoral Commission as a body is subjected to other Laws other than the Constitution.

It is therefore my opinion that the framers of the constitution intended a greater and more uncompromising protection of the EC Chairperson’s independence and tenure, so they elevated it by the combined effect of article 43(3) and 126(1)(a) to that of the Judiciary in order to subject her independence only to the Constitution and no any other Law.

Having said that, I submit with strong conviction that article 127, especially 127(1) and (3), having been part of the conditions of service of a Court of Appeal Justice, is applicable mutatis mutandis to the Chairperson of the Electoral Commission. For readers without Law or Latin background, mutatis mutandis is a Latin expression used in Law when comparing two things. It means to make necessary alteration without affecting the main point at issue.

I say mutatis mutandis for the sake of those who might be quick to say that article 127 applies to persons exercising judicial power whilst the EC Chairperson has none. They might be tempted to come to that conclusion because of the phrase “in the exercise of judicial Power” as captured in article 127(1) and (3) of the constitution. However, the focus in my opinion should be parity of the offices compared and not exactitude of the comparing words. The phrase “in the exercise of judicial power” as captured in article 127(1) and (3) cannot be construed to exclude the independence of the EC Chairperson from the protection guaranteed under those provisions, while applying Article 146 to her removal from office. That would be absurd and highly discriminatory. The proper and Constitutionally accepted position, in my opinion, should be that, the protection of independence and tenure for all Superior Court Justices, as those in article 127(1) and (3) of the Constitution, must also be applicable to the EC Chairperson by virtue of Article 43(3).

In applying article 127(1) and (3) mutatis mutandis to the EC Chairperson therefore, the best construction of the phrase “in the exercise of judicial power” in article 127(1) and (3), in my view, would be to replace it with “in the exercise of her function”. Instead of focusing on “judicial power” the key words should be “in the exercise of functions” because exercising judicial power is all the superior Court judges do, and that is their service to the Country. For the framers of the Constitution to say a public servant whose service has nothing to do with exercise of Judicial Power should have the same terms and conditions of service with Public Servants whose function has all to do with exercise of Judicial Power, reinforces the notion that the Constitution intends parity and not exactitude when dealing with articles 43(3), 126(1)(a) and 127(1) and (3).

If Article 127(1) and (3) of the Constitution is applied mutatis mutandis to the EC Chairperson as mandated by article 43(3), it would read as follows:

Article 127(1). In the exercise of the electoral functions of Ghana, the Chairperson of the Electoral Commission, in both her electoral and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority;

Article 127(3). A chairperson of the electoral Commission shall not be liable to any action or suit for any act or omission by her in the exercise of her functions.

From the above applications of article 127 (1) and (3) to the Chairperson of the Electoral Commission, the following are abundantly Clear:

1. That the EC Chairperson’s decisions and actions in the performance of her functions is subject only to the Constitution and no any other Law (including the Public Procurement Act) and can therefore not be subjected to the control of the Public Procurement Authority under the Public Procurement Act.

2. That the EC Chairperson cannot be liable to any action or suit for any act or omission by her in the exercise of her functions.

The Committee itself has established that procurement is a necessary adjunct to the Core Mandate of the Chairperson of the Electoral Commission. Having come to that Conclusion, they ought to have realized that the Public Procurement Act would not apply to her decisions and actions in that regard.

Consequently, the issue whether or not the Chairperson of the Electoral Commission breached the Public Procurement Act in the performance of her functions, should not have arisen before the CJ’s Committee let alone amounting to “stated misbehavior or incompetence” under article 146(1) of the Constitution. The application of the public procurement Act on the EC Chairperson is therefore unconstitutional in my opinion.

         1.2 Nature and standard of eligibility for the office

The other reason that grounds my conclusion that breaches of a statute simpliciter cannot amount to “stated misbehavior or incompetence” under Article 146 of the Constitution is the eligibility requirements the EC Chairperson is required to satisfy under the constitution in order to occupy that office. In my opinion, if a breach or misapplication of any statute by the EC Chairperson leaves her initial qualification/eligibility for the office untouched, such a breach cannot be qualified as “stated misbehavior or incompetence” under article 146 to ground her removal from office.

Now let’s have a look at the qualifications. In my opinion, by virtue of article 43(3) which equates the EC Chairperson to a Court of Appeal Judge, the qualification of a judge of the Court of Appeal under Article 136(3) must, in addition to those prescribed for all members of the Electoral Commission in article 44(1), be applicable to the EC Chairperson. Article 44(1) alone, in my opinion, contains qualification meant for all members of the Electoral Commission, whilst a combination of 44(1) and 136(3) is meant for the office of the Chairperson only.

Article 44(1) requires every member of the Electoral Commission to have the qualification of a member of Parliament. The qualifications of a member of Parliament are also spelt out in article 94 of the Constitution.

As indicated earlier, Article 136(1) on the other hand spells out the qualification of a Court of Appeal Judge. It requires a Court of Appeal Judge to have practiced Law for at least 12 years and be of high moral character and proven integrity.

Article 44(1) and 136(3) therefore imply that the EC Chairperson must not only have the qualification of a member of Parliament, but must also have practiced Law for 12 years or more and be of high moral Character and proven integrity. The provisions of the above referred Articles are quoted below.

   Article 44.

(1) A person is not qualified to be appointed a member of the Electoral Commission unless he is qualified to be elected as a member of Parliament.

   Article 94.

(1) Subject to the provisions of this article, a person shall not be qualified to be a member of Parliament unless –

       (a) he is a citizen of Ghana, has attained the age of twenty-one years and is a                   registered voter;

       (b) he is resident in the constituency for which he stands as a candidate for election            to  Parliament or has resided there for a total period of not less than five years out of         the ten years immediately preceding the election for which he stands, or he hails from         that constituency; and

       (c) he has paid all his taxes or made arrangements satisfactory to the appropriate                authority for the payment of his taxes.

         (2) A person shall not be qualified to be a member of Parliament if he –

         (a) owes allegiance to a country other than Ghana: or (b) has been adjudged or                 otherwise declared-

         (i) bankrupt under any law in force in Ghana and has not been discharged or

        (ii) to be of unsound mind or is detained as a criminal lunatic under any law in force            in Ghana; or

        (c) has been convicted –

        (i) for high crime under this Constitution or high treason or treason or for an offence            involving the security of the State, fraud, dishonesty or moral turpitude; or

          (ii) for any other offence punishable by death or by a sentence of not less than ten                years; or

         (iii) for an offence relating to, or connected with election under a law in force in                  Ghana at any time; or

         d) has been found by the report of a commission or a committee of inquiry to be                  incompetent to hold public office or is a person in respect of whom a commission or            committee of inquiry has found that while being a public officer he acquired assets             unlawfully or defrauded the State or mis-used or abused his office, or willfully acted          in a manner prejudicial to the interest of the State, and the findings have not been             set aside on appeal or judicial review; or

        (e) is under sentence of death or other sentence of imprisonment imposed on him by            any court; or #9;

         (f) is not qualified to be registered as a voter under any law relating to public                      elections;  or

        (g) is otherwise disqualified by a law in force at the time of the coming into force of                this Constitution, not being inconsistent with a provision of this Constitution.

       (3) A person shall not be eligible to be a member of Parliament if he –

         (a) is prohibited from standing election by a law in force in Ghana by reason of his               holding or acting in an office the functions of which involve a responsibility for or                are connected with the conduct of, an election or responsibility for, the compilation             or revision of an electoral register; or

            (b) is a member of the Police Service, the Prisons Service, the Armed Forces, the              Judicial Service, the Legal Service, the Civil Service, the Audit Service, the                           Parliamentary Service, the Statistical Service, the Fire Service, the Customs,                   Excise and Preventive Service, the Immigration Service, or the Internal Revenue                 Service; or

        (c) is a Chief.

       (4) For the purposes of paragraph (d) of clause (2) of this article, in the case of any              finding made by a commission or committee of inquiry which is not a judicial or                quasijudicial commission or committee of inquiry, without prejudice to any appeal              against or judicial review of that finding, the finding shall not have the effect of                 disqualifying a person under that paragraph unless it has  been confirmed by a                  Government white paper.

     (5) A person shall not be taken to be disqualified to be a member of Parliament under            paragraph (c) or (d) of clause (2) of this article if –

       (a) ten years or more have passed since the end of the sentence or the date for the            publication of the report of the commission or committee of inquiry; or

       (b) he has been pardoned.

Article 136.

(3) A person shall not be qualified for appointment as a Justice of the Court of Appeal            unless he is of high moral character and proven integrity and is of not less than                   twelve years’ standing as a lawyer.

It is my humble view that, in order to sense the gravity connoted in the words “misbehavior“ and “incompetence” in the context of Article 146(1), and to arrive at the proper interpretation of article 146(1) of the Constitution in the process of removing the EC Chairperson from office, one must not only consider the protection guaranteed for her independence and tenure as a superior Court Judge, but also, one must consider the above constitutional qualifications or conditions of eligibility that the EC Chairperson is expected to satisfy.

Now, any person who successfully occupies the office of the EC Chairperson, must be deemed to have satisfied all the above quoted conditions of eligibility and qualifications, and must also be deemed to be free from all the disqualification under the Constitution. Any allegation of wrong doing can only ground her removal from office if and only if that wrong is so grave as to deprive her of the qualifications she is deemed to have, or taint her with any of the conditions of disqualifications from which she is deemed to be free.

From the above conditions of qualifications spelt out in article 136(3) of the Constitution, the Chairperson of the EC is deemed to be of high moral character and proven integrity. In addition to that, she is also deemed to be free from all the myriads of conditions spelt out under Article 94.

The Question therefore is this: if assuming without admitting that the Public Procurement Act is applicable to the Chairperson of the Electoral Commission, and that she indeed violated some provision of the Act without evidence of ill motive, dishonesty, Fraud, moral wrong, financial loss, or some benefit or intended benefit for herself, would the violation deprive her of any of the qualifications she is deemed to have under Article 136(3), or make her guilty of any of the conditions of disqualification in Article 94, from which she is deemed to be free?

My answer is emphatic “No”. the fact that section 92 of the Public Procurement Act makes the violations criminal makes no difference because even a cursory reading of section 92 would reveal that it merely fixes what Lawyers call strict liability, thus liability for breaching a law with or without necessarily being at Fault or being guilty of any moral wrong. Mere evidence of breach of such Statutes without more would normally suffice for the prescribed penalty under the Law. Such provisions are meant to encourage compliance and deter infractions. Breaches of such Statutes cannot be what is contemplated by our Constitution to constitute grounds for the removal of a Superior Court Judge and for that matter the Chairperson of the Electoral Commission. If mere infraction of Law were to amount to misbehavior and incompetence as contemplated under Article 146 of the Constitution, most Superior Court Judges would not qualify to remain in office. This is because more often than not, they assume jurisdiction in breach of statute or even the Constitution sometimes and their decisions are often overturned by a higher Court on account of such breaches, yet they remain in office.

On account of the above, it is my view that the Public Procurement Act does not apply to the EC Chairperson in the first place, but if it even does, breaches of its provisions or the provisions of any Statute simpliciter cannot measure to the gravity of the kind of “stated misbehavior or incompetence” that is contemplated under Article 146 of the Constitution for removing a superior Court Judge and for that matter the Chairperson of the Electoral Commission from office. That would not accord to the sanctity, the nature, and purpose of the protection that is guaranteed for the tenure and independence of our Superior Court Judges and the Chairperson of our Electoral Commission. Accordingly, I am of the view that the Chairperson of the Electoral Commission cannot be removed from office for merely breaching laws of procurement or statutes in the course of performing her functions.

2.0 JURISDICTION OF THE COMMITTEE

Under this heading, I would discuss three issues, namely:

        2.1 jurisdiction to interpret the Constitution

       2.2 jurisdiction to determine violation of Law generally; and

      2.3 jurisdiction to recommend the removal after investigation

 

2.1 Jurisdiction to interpret the Constitution

Here, we must first deal with the issue, whether or not the CJ and the Committee have actually interpreted article 146(1) of the Constitution.

I answer that in the affirmative, and here is my reason: Article 146 (1) states as follows:

A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

In the second paragraph of page 48 of the Report, the Committee quoted with approval and perhaps with reverence, the CJ’s statement in her determination of prima facie case as follows:

The crucial importance of the standard prescribed by the Act is seen in the fact that, by virtue of section 92 thereof, contravention of the Act is an offence attracting a penalty of a fine not exceeding one thousand penalty units, or a term of imprisonment not exceeding five years or to both the fine and imprisonment, consequently, breach of the requirement of the Act is serious enough, in my view, to amount to misbehavior under Article 146.

The Committee after copiously quoting the CJ in the above terms, went further and stated in paragraph 5 of page 51 of the Report as follows:

From the above exposition on what constitutes misbehavior and the implication of such conduct pertaining to an office such as the Chairperson of the electoral Commission we cannot but agree with the opinion expressed by the chief Justice and conclude that the Conduct of Mrs. Charlotte Osei that violated the Public Procurement Act as demonstrated in this Report constitute misbehavior

At page 40 of the Report, the Committee also stated thus:

the non-compliance of the Public Procurement Act for procurement activity funded by donor agencies by the Chairperson can only be explained in terms of her incompetence in understanding the Grant Document she executed with officials of USAID and the Ministry of finance and provisions of the public procurement Act.

If the what the CJ and the Committee did as quoted above does not amount to interpretation of article 146(1) and consequently an interpretation of the Constitution, I wander what that is, and what interpretation of the constitution could be. In my view, the above quoted statements and conclusions are undoubtedly interpretation of the Constitution.

It is my humble opinion that the CJ’s Committee lacks the jurisdiction to determine what constitutes “stated misbehavior or incompetence” under article 146 of the Constitution. Determining what constitutes misbehavior and incompetence under 146(1) in my view amounts to determining the meaning of the provision; and determining the meaning of the provision amounts to interpreting the Constitution.

However, article 130(1)(a) of the Constitution exclusively reserves interpretation of the Constitution to the Supreme Court and the Supreme Court only. Article 130(1)(a) of the Constitution provides as follows:

Article 130.

       (1) Subject to the jurisdiction of the High Court in the enforcement of the                           Fundamental Human Rights and freedoms as provided in article 33 of this                         Constitution, the supreme Court shall have exclusive original jurisdiction in- (a) all              matters relating to the enforcement and interpretation of this Constitution.

Article 130.

  (2) Where an issue that relates to a matter or question referred to in clause (1) of this          article arises in any proceedings in a court other than the Supreme Court, that court          shall stay the proceedings and refer the question of law involved to the Supreme Court       for determination; and the court in which the question arose shall dispose of the case in    accordance with the decision of the Supreme Court.

From the above provisions, it is abundantly clear that no person or group of persons, or authority, or agency can interpret the constitution except the Supreme Court as duly constituted.

By article 128(2) of the Constitution, the Supreme Court shall be duly constituted for its work by five (5) Supreme Court Justices or more. Article 133(2) provides an exception to 128 (2) but only in matters where the Supreme Court is reviewing its own decision. Only in that case, the Constitution requires that the Supreme Court be duly constituted by seven (7) justices of the Supreme Court or more.

This clearly tells us that no individual Supreme Court Judge or even the Chief justice or a group of Supreme Court Judges who have not been duly constituted to perform the function of the Supreme Court have the jurisdiction to interpret the Constitution or any provision thereof.

But does the mandate of the CJ’s Committee as stipulated in article 146(4) imply any jurisdiction concurrent with that of the Supreme Court to interpret the Constitution? My answer is ‘No’. this is because, article 130 (2) of the Constitution provides that where an issue relating to a matter or question of interpretation of the Constitution arises in any proceedings in a Court other than the Supreme Court, that Court shall stay the proceedings, and refer the question of interpretation to the Supreme Court for determination; and the Court in which the question arose shall dispose of the case in accordance with the decision of the supreme Court. In my opinion, Court here include any other adjudicating body or authority; or anybody or authority purporting to adjudicate.

It is therefore my opinion that the role or mandate of the Chief Justice to establish prima facie case under article 146(4) does not confer on her a concurrent jurisdiction with the Supreme Court to interpret the Constitution and tell us what article 146(4) of the Constitution mean by “stated misbehavior or incompetence”. Neither is her duty to set up a Committee nor her duty to forward the Petition to that Committee confers on her the authority to usurp the Supreme Court’s jurisdiction to interpret the constitution.

In the same vein, the duty of the Committee to investigate the petition and make recommendations to the CJ does not by any stretch of the imagination confer on the Committee a jurisdiction to interpret the Constitution, and tell us that breaches of Procurement law by the EC Chairperson in the performance of her function, is what or part of what article 146(1) mean by “stated misbehavior or incompetence”.

It is my humble Opinion that, the issue: whether breaches of procurement law, or any Statute at all, by a superior Court judge or the EC Chairperson for that matter, in the exercise of their functions, amount to the “stated misbehavior or incompetence” contemplated under article 146(1) of the Constitution for their removal from office requires interpretation of the Constitution, and the Committee should have referred that question to the Supreme Court for determination. Having failed to do so, and having determined the meaning of article 146(1), the determination of the CJ and the Committee was done in excess of their jurisdiction and is therefore void.

2. 2 jurisdictions to determine violation of a statute and pronouncement guilt or otherwise

interpreting and/or determining statutory violations and passing judgment when controversies arise, or pronouncing guilt or otherwise, is an exercise of judicial authority.

Black Law dictionary defines “judicial power” as the authority both Constitutional and legal given to the Courts and its Judges to:

1. preside over and render judgment on Court worthy cases;

2. enforce or void statutes or Laws when scope or Constitutionality are questioned;

3. interpret statutes and Laws when disputes arise.

In Akainyah and another v. the republic [1968] GLR 548-566, (which would be discussed in detail later) Our Court of Appeal, which was then the highest Court in Ghana adopted the American and Australian Courts’ definition of judicial power/authority which are as follows:

American: the power of a court, to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision Or the right to determine actual controversies arising between adverse litigants duly instituted in courts of proper jurisdiction.

Australian: the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.

From the above definitions, two things are clear, namely who or what is usually given judicial power, and how judicial power is exercised. From the definition, Courts and judges are usually given judicial Power and judicial power is exercised by presiding over cases meant for Court and rendering Judgment; interpreting statutes and Laws when disputes arise between parties; and enforcing or voiding statutes or Laws when their scope or constitutionality are questioned. It is not the place of any Commission or Committee of inquiry to pass judgment on violations of criminal or any other Law from which a penalty can directly flow without any intervention of the Courts.

For anybody of persons or authority to make a binding pronouncement of breaches or otherwise of a statute and pronounce guilt on a person based on such determination of breaches, that body exercises judicial power and must accordingly have, or must have been given judicial authority.

The question to be answered hereunder therefore, is whether or not the CJ’s Committee exercised judicial power, and whether or not it had the judicial authority to do so.

In my opinion, no scintilla of doubt can be cast on the fact that the CJ’S Committee exercised judicial authority. By interpreting provisions of the Public Procurement Act and pronouncing guilt on the EC Chairperson from which a penalty on the EC chairperson flowed, they have clearly exercised Judicial authority.

As to whether it has or has been given judicial Authority can be gleaned from the Constitution and judicial precedence.

By Article 125(3) of our Constitution, the Judicial Authority of Ghana is vested in the Judiciary, and the judiciary is clearly defined by Article 126(1) of the same Constitution. Article 125(3) goes further to categorically and expressly deprive the President, Parliament and any organ or agency of the President or Parliament of judicial Power and proscribes the giving of final judicial power to them. Article 125(3) of the Constitution provides as follows:

Article 125.

(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither            the President nor Parliament nor any organ or agency of the President or Parliament            shall have or be given final judicial power.

As if to clear any doubt and avoid any possibility or likelihood of usurpation of Judicial power, the Constitution, immediately after Article 125 follows with Article 126(1) which clearly define what it means by Judiciary. Article 126(1) provides as follows:

Article 126.

(1) The Judiciary shall consist of –

     (a) the Superior Courts of Judicature comprising –

      (i) the Supreme Court;

      (ii) the Court of Appeal; and

      (iii) the High Court and Regional Tribunals.

      (b) such lower courts or tribunals as Parliament may by law establish.

From Article 125(3) and 126(1) therefore, Judicial Power are vested in the supreme Court, the Court of Appeal, the High Court, and such lower Courts established by Law. Some of these lower Courts have been established by the Courts Act, 1993 (Act 459) and they include the Regional Tribunals, the Circuit Court, and the District Magistrate Courts.

In effect, the above Courts and tribunals for now, are the only institutions with authority to exercise judicial authority. This means that, they alone can preside over Cases and pass judgment; interpret statutes, pronounce on statutory breaches, and pronounce guilt or otherwise on a person. The express exclusion of Committees of inquiry from the Judiciary as defined by article 126, clearly demonstrates that such Committees do not have judicial authority unless otherwise expressly provided in the Constitution.

But does any provision of the Constitution other than Article 126 confer on the CJ’s Committee, either directly or by necessary implication, the authority to exercise judicial power?

To answer this question, we would look at the provision on the CJ’s Committee in particular, and the provisions on Commissions of inquiry generally.

Article 146(4) of the Constitution is the source of the CJ’s Committee. The primary mandate of the Committee under that provision is to investigate Complaints in petitions presented for the removal of Superior Court Judges and recommend to the Chief Justice. the controlling words in the Committee’s enabling provisions are investigate and recommend. Article 146 (4) provides as follows:

Article 146.

(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a          committee consisting of three Justices of the Superior Courts or Chairmen of the                Regional Tribunals or both, appointed by the Judicial council and two other persons           who are not members of the Council of State, nor members of Parliament, nor                    lawyers, and who shall be appointed by the Chief Justice on the advice of the Council          of State

        (5) The committee appointed under clause (4) of this article shall investigate the                    complaint and shall make its recommendations to the Chief Justice who shall                       forward it to the President.

It is evident that the mandate or authority of the Committee is limited to investigation and recommending.

The term investigate, as defined by the Oxford Dictionary is to:

carry out a systematic or formal inquiry to discover and examine the facts [my emphasis] of (an incident, allegation etc.) so as to establish the truth.

The Cambridge dictionary also defines investigate as:

to examine something carefully, especially to discover the truth about it.

From the definitions above, there is no doubt that the term investigate refers to fact finding and establishment of truth, which does not involve or connotes the exercise of Judicial Authority in any manner. The meaning of the term investigate would be dealt with later in the context of Judicial authorities.

Accordingly, the mandate of the CJ’s Committee under Article 146 (1) is purely that of fact finding and has nothing to do with interpretation of Law, pronouncement of statutory breaches, and issuing verdicts of guilt on persons appearing before it. That is exclusively the preserve of the Courts and tribunals established under the Law.

I therefore come to the only Conclusion that, Article 146 (5) of the Constitution does not confer judicial authority on the CJ’s Committee.

But it can also be said that the CJ’s Committee is a committee of inquiry, and a Committee of inquiry by Article 295(1) of our Constitution is the same as a Commission of inquiry. Article 295 provides thus:

Article 295.

(1) In this Constitution, unless the context otherwise requires- …”commission of                     inquiry” includes a committee of inquiry.

To attain a more comprehensive understanding of the authority of the CJ’s Committee therefore, we might want to go beyond Article 146 to look at the general powers of Commissions of inquiry under Chapter twenty-three of the Constitution, specifically Articles 279. Article 279 provides as follows:

Article 279.

(1) A commission of inquiry shall have the powers, rights and privileges of the High Court or a Justice of the High Court at a trial, in respect of –

(a) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise;

(b) compelling the production of documents; and

(c) the issuance of a commission or request to examine witnesses abroad.

….I am of the opinion that, even if there is credence in the general understanding that Article 146 (9) of the Constitution deprives the President of any discretion in the Matter, I dare say that it does not do so in the case of recommendation submitted by the Chief Justice Committee. This is because the Chief Justice’s Committee as stated above can make any recommendation that is relevant under Article 146(5) except a recommendation that the Superior Court Judge or the EC Chairperson be removed from office. That is a recommendation in excess of their jurisdiction in my opinion, and if that recommendation was not submitted to the president, he cannot be bound by it.

Accordingly, in the case of removing a superior Court Judge or the EC Chairperson, the President would have the discretion to determine whether or not to remove the Superior Court Judge or the EC Chairperson based on the facts that the CJ’s Committee has established. So even in the strict view of interpretation applied on Article 146(9) by most Lawyers I listened to, the President would still have a discretion in the case of removing a superior Court judge or the EC Chairperson from office.”

Secondly, I am of the view, that those saying the President has no discretion in the matters under Article 146 in general are being too strict with Article 146(9) of the Constitution. Constitutional interpretation needs a broad and wholistic approach. I however do not fault them because those are the express words of Article 146(9) of the Constitution.

Article 146(9) is as follows: Article 146.

(9) The President shall, in each case, act in accordance with the recommendations of the committee. In each case in the provision means either in the case of removing a Chief Justice or Superior Court Judge. They say the President has no discretion because of the word shall in the provision.

It is true that the interpretation Act, 2009, (Act 792) provides that the word Shall is mandatory, but I dare say that the interpretation Act can only be a guide in interpreting the constituion.

Its provisions are not binding when it comes to the interpretation of the Constitution. To hold otherwise, is to indirectly say that Parliament, instead of the Supreme Court can interpret the Constitution, when, by Article 1(2) of the Constitution, the Constitution is the highest Law of the land and any Law that is inconsistent with it shall be to the extent of that inconsistency void. Accordingly, I do not think any provision in the interpretation Act can strictly hold us to a certain meaning of any word in the Constitution. At all times, the meaning of words in the Constitution must be determined by the Supreme Court and not Parliament or anybody else. Having said that, I think we should adopt a liberal approach in interpreting Article 146(9) of the Constitution, and construe it not as an isolated provision, but in the context of the whole Constitution.

In so doing we have to Consider Article 58 which confers all executive Authority on the President and the extent to which that Executive Authority can be restrained. It must be noted that the dispute about the meaning of the word shall in the context of our Constitution is not a novelty either. The Supreme Court has had the opportunity to interpret the word shall in various constitutional provision and I would like to focus on the two most recent ones.

In Kor v. Attorney-General [2015-16] SCGLR 114 @ 132-133 the Supreme Court was called upon to declare that the President has no discretion to vary the recommendations of the Emolument Committee under Article 71 of the Constitution.

The Constitution provides in Article 71(1) that some emoluments of some Public officers, being expenditure charged on the Consolidated Fund, shall be determined by the President on the recommendations of a committee of not more than five persons appointed by the President, acting in accordance with the advice of the Council of State.

The President varied some recommendations of one of such Committee, and the issue was whether or not the president had the discretion to vary same. The determination of the matter turned on the interpretation of the words shall be determined by the President on the recommendations of a committee. And the issue was whether the President was bound by those recommendations. The Supreme Court held that the President could vary the recommendations under certain conditions.

In that case GBADEGBE JSC in delivering a concurrent opinion stated as follows: In my view, it is unreasonable to contend that, the President in whom the executive power is vested, cannot after appointing the Committee specified in Article 71(1), vary, alter or modify the recommendations, but is obliged to give effect to them. That contention seem to undermine the Authority of the President and leaves in the hands of an unaccountable body …the sole responsibility of determining the emolument of Article 71 employees.

Pausing here, I wish to say at once that, in my view, the version of the matter pressed on us by the plaintiff is unreasonable as it seeks to recognize the position of the President as the one in whom by Article 58 of the Constitution the executive power of the state is vested, and yet seek to withhold from him the means by which he can give effect to such power. Again, in Ghana Bar Association v. the Attorney General (unreported) the Supreme Court was again called upon to declare that, the failure of the President to appoint all the justices recommended to him by the Judicial Council for appointment to the supreme Court, was in contravention of Article 144(2) of the Constitution. Article 144(2) provides that The … Supreme Court Justices shall be appointed by the President acting on the advice of the Judicial Council, in consultation with the Council of State and with the approval of Parliament. The issue again was whether the President had the discretion to appoint some and leave out some of the justices recommended to him by the Judicial Council.

The determination of the matter again turned on the interpretation of the phrase shall be appointed by the President acting on the advice of the Judicial Council, and whether the President was bound by the recommendations of the Judicial Council. In that case, the Supreme Court per Atuguba JSC held to the effect that, Article 144(2) of the Constitution should be construed along with Article 128 which stipulates the qualifications of a Supreme Court justice. That although Article 144(2) in the interest of check-andbalances seek to restrain the appointment authority of the President, if the President for the purpose of consulting the Council of state unearth something that unsettles the Judicial Council’s recommendation in terms of Article 128 requirement, then he could exercise that discretion.

In the light of these Authorities, I am of the view that the discretion of the president in removing a justice of the superior Court or the Chief justice is not completely taken away. There must be some circumstances under which he can exercise some discretion.

CONCLUSIONS:

I am of the opinion that the removal of the EC Chairperson is inconsistent with the Constitution, and that the EC Chairperson should be retained in office while the High Court and the supreme Court are given the Opportunity to decide on the issues before the appointment of a new Chairperson of the Electoral Commission, if need be.

 

OSMAN ALHASSAN ESQ.