Can the Special Prosecutor be impeached under Article 146 of the 1992 Constitution?

On May 23, 2024, 4:05 PM

The President of the Republic has pursuant to the receipt of a Petition, under Section 15 of the Office of the Special Prosecutor Act, 2017(Act 959), referred same to the Chief Justice, to ascertain whether there is a prima facie case, for the Impeachment of the Special Prosecutor, under Article 146 of the 1992 Constitution.

The fundamental question which arises for pertinent consideration is whether or not the Special Prosecutor, is an Office holder whose conduct can be the subject matter of Impeachment, under Article 146 of the 1992 Constitution, on the basis of a reference by the President, under Section 15 of the Office of the Special Prosecutor Act, 2017(Act 959).

I answer that question in the negative, for the simple reason that Article 146 of the 1992 Constitution, does not admit the Office of the Special Prosecutor, as one where the Special Prosecutor is amenable to the Impeachment provisions under the said Article. Section 15 of the Office of the Special Prosecutor Act, 2017(Act 959), is an illegitimate tool, which cannot be deployed, to amend Article 146 of the 1992 Constitution and that, invariably, conduct pursuant to Section 15 (supra), is a violation of Articles 289 and 290 of the 1992 Constitution.

By way of background, it is instructive to note that, the Office of the Special Prosecutor Act, 2017(Act 959) places the Office on almost the same pedestal as a Court of Appeal Judge, appointed under the 1992 Constitution. The relevant provision of Act 959(Section 13 (5)) states as follows:

“Nomination and appointment of Special Prosecutor

(1) A person is not qualified for appointment as the Special Prosecutor if that person

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(3) The Attorney-General shall nominate a person qualified for appointment as Special Prosecutor by the President, subject to the approval of the majority of all the members of Parliament.

(4) The President may delegate the power of appointment of the Special Prosecutor in writing to the Attorney-General.

(5) THE SPECIAL PROSECUTOR SHALL HOLD OFFICE ON THE SAME TERMS AND CONDITIONS OF SERVICE AS A JUSTICE OF THE COURT OF APPEAL EXCEPT THAT THE TENURE OF OFFICE SHALL BE A NON-RENEWABLE TENURE OF SEVEN YEARS. (Emphasis mine)

(6) The salary of the Special Prosecutor shall not be varied to the disadvantage of the Special Prosecutor during the tenure of office.

(7) The Special Prosecutor shall not while holding office, hold any Other public office or engage in any commercial venture.

(8) Where the Office of the Special Prosecutor becomes vacant, the President shall within six months appoint a person qualified for appointment as Special Prosecutor to that position.

(9) Before assuming office, the Special Prosecutor shall take and subscribe to the Official Oath and Oath of Secrecy specified in the Schedule.

(10) For purposes of subsection (8), vacancy includes resignation, death or vacation of post.”

The Petition calling for Impeachment is clearly being read against the background of the equivalency created under the Office of the Special Prosecutor Act (supra), which places the Special Prosecutor, on the same terms as a Court of Appeal Judge save for the limited tenure of the latter.

It is also important to note that the removal of a Court of Appeal Judge, is covered by Article 146 of the 1992 Constitution which 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 misbehaviour or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind.

A Justice of the Superior Court of Judicature or a Chairman of the Regional Tribunal may only be removed in accordance with the procedure specified in this article.

If the President receives a petition for the removal of a Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.

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.

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.

Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two Justices of the

The committee appointed under clause (6) of this article shall inquire into the petition and recommend to the President whether the Chief Justice ought to be removed from office.
All the proceedings in 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 defense by himself or by a lawyer or other expert of his choice.
The President shall, in each case, act in accordance with the recommendations of the committee.

(10) Where a petition has been referred to a committee under this article, the President may—

(a)in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice;

(b)in the case of any other Justice of a Superior Court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.

(11)The President may, at any time, revoke a suspension under this article.”

Indeed, the Office of the Special Prosecutor Act, 2017(Act 959), rehearses the same mechanism for the removal of the Special Prosecutor, by Section 15 in the following terms:

“Removal of the Special Prosecutor

(1) The Special Prosecutor shall not be removed from office except for

(a) stated misbehavior or incompetence;

(b) incapacity to perform the functions of the Office by reason of infirmity of body or mind;

(d) conduct which

(i) brings or is likely to bring the Office of the Special Prosecutor into disrepute, ridicule or contempt; or

(ii) is prejudicial or inimical to the economy or security of the State.

(2) A person who seeks to remove the Special Prosecutor from office shall submit a petition to the President.

(3) Where the President receives a petition for the removal of the Special Prosecutor, the President shall within seven days refer the petition to the Chief Justice who shall, within thirty days, determine whether there is a prima facie case.

(4) Where the Chief Justice determines that there is a prima facie case, the Chief Justice shall within fourteen days set up a Committee consisting of

(a) a chairperson, who is a Justice of the Supreme Court,

(b) a lawyer of at least fifteen years standing at the Bar, and

(5) The Committee shall, within ninety days investigate the matter and make its recommendation to the President through the Chief Justice.

(6) The President shall act in accordance with the recommendations of the Committee.”

It is respectfully submitted that, Section 15 of the Office of the Special Prosecutor Act, 2017 (Act 959) purports to add the Special Prosecutor to the list of persons, under the 1992 Constitution who can be removed by way of Impeachment, under Article 146 of the 1992 Constitution. This situation has arisen because, the Special Prosecutor has been placed on the same official level as a Justice of the Court of Appeal, save for the former’s limited tenure.

The 1992 Constitution does not include the Special Prosecutor as one of the Office holders, who can be removed by way of Impeachment, under Article 146 of the 1992 Constitution. Section 15 of the Act is clearly a backdoor attempt to amend the 1992 Constitution, and the same is grossly unconstitutional. Needless to say, it cannot form the basis of a Petition which has been referenced by the President, to the Chief Justice, for the consideration of Impeachment Proceedings.

I am not alone in this thinking, and in that regard, I rely heavily on the decision of the Supreme Court in FRANCIS OSEI-BONSU VRS ATTORNEY GENERAL WRIT NO: J1/18/2023, where the majority, speaking through KULENDI JSC, and addressing the amendment procedure under the 1992 Constitution, in a matter similar to the facts above, had this to say:

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“A perusal of section 16(2) of Act 591 shows that certain offices have been added to the list already provided by Article 8(2) of the Constitution as offices that cannot be occupied by persons with dual citizenship. To that extent, section 16(2) of Act 591 has invariably amended Article 8(2) of the Constitution and we so find.
Article 289 of the Constitution is clear on the nature and procedure that an amendment of the Constitution ought to take.

For ease of reference, we shall state Article 289 which provides that:

Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend any provision of this
Constitution.

This Constitution shall not be amended by an Act of Parliament or altered whether directly or indirectly unless

the sole purpose of the Act is to amend this Constitution; and

the Act has been passed in accordance with this Chapter.

Section 16(2) of Act 591 with its resultant effect of amending Article 8(2) of the Constitution therefore ought to have been passed in accordance with the mandatory procedural requirements of amending a constitutional provision as stipulated by Article 289 and 291 of the Constitution.

We agree with the Plaintiff and the Attorney General that the effect of section 16(2)(a), which restricts dual citizens from occupying the office of Chief Justice and Justice of the Supreme Court, amounts to an unconstitutional amendment of Article 128(4) as it imposes a further qualification criteria which was not contemplated or endorsed by the Constitution on persons who are serving as justices of the Supreme Court. This backdoor attempt to impose a further qualification criterion on members of the Apex falls foul of not only the principles of procedural constitutionalism by reason of the Act’s failure to be passed in accordance with the prescriptions of Articles 289 and 291; but also of the substantive text of the constitution as it is directly inconsistent with the scope of the criteria set out in Article 128(4). The qualification criteria set out in Article 128(4) is exhaustive and cannot be arbitrarily increased or reduced by Parliamentary fiat, except in accordance with the dictates of the Constitution.

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These obvious benefits notwithstanding, the Constitution’s meticulous delineation of the specific offices barred to dual citizenship holders in Article 8(2) underscores a deliberate and exhaustive attempt by the framers to limit this restriction to just those offices mentioned.

On this basis therefore, the expansion of this list by Section 16(2)(a) and 16(2) (h-1) of the Citizenship Act, 2000 (Act 591), without recourse to the due process of constitutional amendment prescribed in Articles 289 and 291, clearly contravened the fundamental principles of constitutional supremacy.

In the circumstances, we find that sections 16(2)(a) and 16(2)(h)-(1), which constituted amendments to the Constitution ought to have been undertaken through the prescribed channels of formal amendment as prescribed under Articles 289 and 291. Having failed to do this, we exercise our authority under Article 2(2) of the 1992 Constitution to strike down the said sections as being unconstitutional. Accordingly sections 16(2)(a) and 16(2)(h)-(1) of the Citizenship Act, 2000 (Act 591) are hereby struck down as unconstitutional, same being inconsistent with and contravention of Articles 289 and 291 of the Constitution.”
In a concurring opinion, Her Ladyship the Chief Justice, Gertrude Sackey Torkornoo CJ, had this to say:

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“From this premise, I am satisfied that the Plaintiff’s submission, that the introductions of new offices excluded from dual citizenship holders, could only have been done by the amendment of article 8 itself through the processes outlined in article 289 (2) is misconceived. I find it evident on the face of the Citizenship Act, 2000, Act 591, that unlike the Constitution of the Republic (Amendment) Act 1996 Act 527, Act 591 was passed to provide for matters relating to citizenship, and the power of Parliament through an Act of Parliament, to make provision for inclusion to the offices that dual citizens cannot hold, was conferred on Parliament by article 8 (g)of the Constitution.

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It is also clear that unlike article 8 (2), the Constitution makes no room for addition to the qualifications for these offices in article 128 (3) beyond the provision that creates the qualification – that is –

article 128 (4). Further, Article 128 (4) is not an entrenched provision, and could therefore be amended by an Act of Parliament in the same manner that Article 8 was in Act 527. But this has not been the case.

In the absence of an objective expression within the Constitution to allow an expansion of the qualification criteria of these offices by a means other than a constitutional amendment, and while it remains in its original and virgin form, any change to the said qualifications undeniably constitutes an amendment of the Constitutional provisions in article 128 (4) and would need to comply with article 289, article 291, and article 292.

The mandatory edict that creates the Parliament of Ghana in Article 93, is an entrenched provision, and Parliament is well guided to constantly bear in mind the provision in Article 93 (2) that 2) Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in Parliament and shall be exercised in accordance with this Constitution.”

The decision of the Supreme Court clearly shows that, the amendment procedure, contemplated under the 1992 Constitution, must at all times, be adhered to. Article 146 of the 1992 Constitution, is an entrenched provision, which does not admit of the Office of the Special Prosecutor. The removal provisions under Article 146 of the 1992 Constitution, cannot be amended or altered, by a stand-alone Act of Parliament, which has been passed without regard for the amendment procedure under the 1992 Constitution.

The list of persons listed under Article 146 of the 1992 Constitution, does not include the Special Prosecutor. It is my respectful submission that, Parliament cannot by a mere Act of Parliament, which is not geared towards an amendment of the 1992 Constitution, expand the category of persons, who can be impeached under the 1992 Constitution.

To that end, there is a need for us to question the validity of the reference by the President to the Chief Justice, for purposes of Impeachment Proceedings, against the Office of the Special Prosecutor. Perhaps, Parliament should legislate other methods for removal of the Special Prosecutor.

It is respectfully submitted that, in conclusion, Section 15 of the Office of the Special Prosecutors Act, 2017(Act 959), is a violation of Articles 289 and 290 of the 1992 Constitution. It is a backdoor attempt to amend the Constitution, and the same is wholly unacceptable.

Story By Lawyer Kwame Akuffo