The suspension or removal of a Chief Justice is without a doubt a very serious matter. It involves the intrusion into the affairs of an arm of government by another arm.
Such intrusions in a democracy have been limited as minimal as possible except in such instances as prescribed by the Constitution, and when the Constitution prescribes it, it sets a strict path to be followed.
This emphasises the principle of separation of powers and, by extension, the political question doctrine which has been affirmed by the Supreme Court in JH Mensah V. Attorney General, NPP v. IGP, Justice Abdulai v. Attorney General and other cases.
All these principles set in the above precedents emphasise the respective independence of the various arms of government— independence of functions, independence of decision and security of tenure.
Now, let us dissect the reasoning behind the security of tenure.
The framers of the 1992 Constitution envisaged that allowing the President to appoint a Chief Justice may breed a certain level of loyalty to the President and the Executive, and when that happens it will undermine the administration of justice. They, therefore, decided to cure this purported allegiance to the President by granting a security of tenure to the Chief Justice so that even after the President who appointed the Chief Justice is long gone, the Chief Justice may still be in office.
This means that unlike other governments appointments where the President can appoint and disappoint at will, without any reason or justification, the Chief Justice is not at the whims and caprices of the President.
This sort of independence was introduced by the framers of the Constitution to embolden chief justices to hold firm the administration of justice without recourse to anyone— not even the person who appointed them.
The critical question that we must all answer is that, in the presence of such protection mechanisms by the Constitution, should a Chief Justice be allowed to enjoy the security of tenure if she defies her independence and demonstrates clear partisanship or open ‘flirtations’ with the President that appointed her?
Should a Chief Justice still enjoy the benefit of security of tenure when she fails to discharge her constitutional responsibilities independently and assume partisanship colours?
I sincerely doubt that in the remotest of imaginations, that could be the intention of the framers of the Constitution.
The enjoyment of the benefit of security of tenure is inseparable from a clear demonstration of independence by the Chief Justice as required by the Constitution. The moment the Chief Justice fails to honour that constitutional requirement, they must know that they have sacrificed their security of tenure because no government will accommodate an openly partisan person in office as a head of the judiciary which is an important arm of the government.
The suspension and imminent removal of CJ Torkornoo should be a painful reminder to future occupiers of the office that a partisan CJ only undermines their own security of tenure and that once they wear partisanship colours they should not wait to be hounded out of office like CJ Torkornoo. When government changes, they should be prepared to bow out with dignity!
Mensah Thompson is the Executive Director of Alliance for Social Equity and Public Accountability (ASEPA), an anti-corruption and civil advocacy organisation based in Ghana, West Africa.
Source: Media Without Borders/mwbonline.org/Ghana
