The imperial Chief Justice strikes again

The Chief Justice recently (30th May 2024) sent a confidential request to the President to appoint five judges to the Supreme Court: Their Lordships Edward Amoako Asante, Eric Kyei Baffuor, and Their Ladyships Angelina Mensah Homiah, Cyra Pamela Koranteng, and Afua Asare Botwe.

According to the Chief Justice, His Lordship Asante has “provided excellent leadership as President of the ECOWAS Court and will undoubtedly be an invaluable asset to the Supreme Court.” The remaining four judges, who are currently judges of the Court of Appeal, are recommended because “their work has been distinguished by outstanding service, courage, and competence.”

Article 144(2) of the Constitution provides that 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.

This process ensures that the selection of Supreme Court Justices is collaborative and impartial, involving multiple stakeholders to preserve the independence and integrity of the judiciary. Article 144(2) does not name the Chief Justice in this appointment process. Thus, when the Chief Justice proposes names directly to the President, it undermines this process, thereby compromising the constitutional framework designed to prevent undue influence and maintain judicial impartiality.

While the Chief Justice is the chairman of the Judicial Council that advises the President, the Council consists of various members such as the Attorney-General, Justices from different courts, representatives of the Ghana Bar Association, and other legal and non-legal members. The diverse composition of the Judicial Council is intended to ensure a balanced and unbiased approach to advising the President on judicial appointments. The Chief Justice unilaterally proposing names disrupts this balance and violates the intended collaborative decision-making process.

There are several legal and ethical grounds on which the Chief Justice’s unilateral request to the President should be challenged. First, the Chief Justice’s involvement in proposing nominees could compromise the separation of powers, which ensures that the judiciary remains independent from the executive branch. The framers were justifiably concerned about direct communications between the President and the Chief Justice, as it can lead to a reciprocal exchange of favours.

Second, the Chief Justice might have biases or vested interests that could influence her recommendations, leading to questions about the impartiality of the nominees. This problem is further compounded by the unconstitutional practice that allows the Chief Justice to determine Court Panels that hear cases, including political cases, and the more recent practice of reconstituting panels that are hearing cases. The framers clearly addressed conflicts of interest in Article 284, which provides that a public officer shall not put themselves in a position where their personal interest conflicts or is likely to conflict with the performance of their office’s functions. There is no conflict of interest more glaring than a Chief Justice whose hands are in the appointment, empanelling, and reconstitution of panels for the apex court.

Third, the Chief Justice’s role is to interpret and uphold the law, not to influence the selection process of other justices of the Supreme Court. Her involvement could unduly influence the President’s decision, undermining the objectivity of the nomination process. The Constitution and established protocols dictate in very clear terms the process for judicial nominations. Any deviation from these procedures is unlawful.

Fourth, public confidence in the judicial system relies on the perception of fairness and impartiality. Public confidence is at an all-time low, according to recent surveys. The Chief Justice proposing names would only further erode this confidence.

Additionally, the process of naming some judges but not others suggests favouritism or partiality. The Chief Justice’s action could introduce needless friction in the judiciary. Judicial ethics require judges to avoid any actions that might compromise their independence or the independence of the judiciary. Proposing nominees could be seen as engaging in political activities, which is generally discouraged, if not barred, for judges.

An even more serious question is whether the Chief Justice’s action constitutes misconduct under the Constitution. Article 146(1) states that a Justice of the Superior Court or a Chairman of a Regional Tribunal shall not be removed from office except for stated misbehaviour, incompetence, or inability to perform the functions of their office due to infirmity of body or mind.

In my opinion, misbehaviour in this context includes actions that are unconstitutional, unlawful, violate ethical standards, abuse power, and compromise the independence of the judiciary.

The Chief Justice engaging in the nomination process is a clear breach of these standards, as it represents a conflict of interest and an abuse of the influence and authority vested in the position. The Constitution and the Court Act prohibit the Chief Justice from participating in the nomination process. It is the Judicial Council, not the Chief Justice, that is assigned a role in the nomination process. When it comes to the exercise of power, if it is not explicitly granted, it is forbidden. Therefore, sidestepping the constitutional scheme, as the Chief Justice has done, is a direct violation of the Constitution and constitutes misbehaviour under Article 144.

Using the position of Chief Justice to propose names for judicial appointments is an abuse of power since it bypasses the established processes for nominations that do not involve the Chief Justice qua Chief Justice. This meets the definition of misbehaviour.

By influencing the nomination process, the Chief Justice could be perceived as compromising the independence of the judiciary. This could be considered misbehaviour as it affects the integrity and impartiality of the judicial system.

Further, proposing nominees outside the legal framework could be seen as engaging in political activities, which constitutes misbehaviour because it violates the ethical standards expected of judicial officers. Judges are typically required to remain apolitical to preserve the impartiality of the judiciary.

The Chief Justice’s action clearly constitutes a conflict of interest, given the professional ties with the nominees, which compromises the fairness of the nomination process. The Chief Justice’s action could also destabilize morale in the judiciary, as it raises questions of favouritism.

To sum up, the Chief Justice proposing names to the President for Supreme Court nominations not only breaches constitutional provisions but also constitutes misconduct. It undermines the principles of judicial independence and impartiality, constitutes an abuse of power, and creates a conflict of interest. Such actions fall under the definition of misbehaviour as outlined in Article 146(1) and therefore constitute grounds for removal.

The integrity of the judicial appointment process relies on adherence to established constitutional procedures, and any deviation from these procedures by the Chief Justice should not be countenanced or treated lightly.

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