Allow constitutional process to work: It is rule of law

As a country that professes rule of law, those who exercise state power must always show fidelity to the laws of the country irrespective of who is involved. 

When powers are allocated in the Constitution, there are also safeguards for the exercise of the power.

The safeguards manifest in procedural and other forms of limitation. A disregard for clearly defined constitutional process threatens the democratic order.

Ghanaians, including the President, have made a solemn declaration and affirmation of their commitment to the Rule of Law (ROL) under the preamble.

This is part of the preamble to the Constitution.

Those who exercise state power should act in accordance with pre-determined rules and take actions in accordance with the rules unless authorised under specific conditions not to.

ROL is an antithesis to arbitrary rule. Not even the President can exercise powers anyhow he wants unless in respect of those questions falling within political questions or non-justiciability.

The preamble to the Constitution gives a snapshot of the virtues or values we cherish as a country.

The President, who is the head of the Executive arm, exercises executive powers /authority under Article 58 of the 1992 Constitution.

Executive authority

The executive authority, according to the Constitution, “shall extend to the execution and maintenance of this Constitution” and all laws made under or continued in force by this Constitution.

It is clear from the Constitution that the heads of the various arms of government can be removed on certain grounds.

The President himself, apart from being voted out, can, while in office, be removed under Article 69 of the Constitution.

Some of the grounds for removal of the President are: if he is found to have acted in “willful violation of the oath of allegiance and the presidential oath set out in the second schedule to, or in willful violation of any other provision of, this constitution among others.”

To remove the President under 69 (1) (a), therefore, the President should have violated the oath of allegiance and the presidential oath under the second schedule.
As noted, there are other grounds.

The Speaker of Parliament can be removed through a process under article 95(2), and so can the Chief Justice, who is head of the Judiciary, be removed.

It is not only the Chief Justice who can be removed under the Constitution.

Constitutional duty

The President has a constitutional duty and failure to perform a clear constitutional duty has serious legal implications for the execution and maintenance of the Constitution, which is his executive authority.

While the President, before taking office, swears the oath of allegiance and presidential oath, this article focuses on the presidential oath in which the President swears to do a number of things; In relevant part, the President swears as follows; “that I will at all times preserve, protect and defend the Constitution of the Republic of Ghana;”.

Reconciled with the nature and scope of the President’s executive authority under Article 58, it is obvious that the President must at all times defend the Constitution.

Defending the Constitution means carrying into effect its clear terms and a failure can lead to the removal of the President himself.

The presidency announced in May 2025 that the President had received three petitions for the removal of Chief Justice Gertrude Torkornoo of Ghana.

Since this announcement, there have been several attempts by groups and individuals, not only to stampede the process but also to truncate it prematurely.

Vincent Ekow Asafua sued in the Supreme Court claiming that the President did not notify the CJ when he received the petition, although, from the text of Article 146 (6), that is not required.

There was an injunction filed subsequent to the issue of the writ, which is yet to be heard to restrain the President from performing his constitutional function pending final determination of the suit.

While there is no precedent in Ghana for a successful removal of a CJ, the President has a constitutional mandate to perform if he must not be accused of violating the Constitution, which he has vowed to defend.

Had it not been for the Supreme Court decisions in Adjei Twum vs. AG and Bright Akwettey (2005/2006), the process under Article 146 (6) when it comes to the removal of the CJ, would have been simple.

It would have been unfortunate to remove the head of another arm in such a simple manner.

The cases of Adjei Twum introduced a step, which was only stated to apply to the removal of superior court justices other than the CJ, who is also a Superior Court justice.

Per Adjei Twum, the President would have been required under 146 after he had received a petition to appoint a committee in consultation with the Council of State.

However, post Adjei Twum would require that the President, upon receiving a petition, send it to the Council of State and use its consultation with the Council of State as a means to establish a prima facie case before setting up a committee to inquire further into the allegations.

The Constitution provides for the establishment of a prima facie by the CJ before constituting a committee to inquire into the matter against a justice of the SC.

This is how the Adjei Twum court, per Date–Baah extended the prima facie process to the removal of the CJ. This will remain the law until such a time that the same court departs.

Argument

The argument that the President should stay his hands because of a pending application for injunction is not the position of law when it comes to the performance of a constitutional or statutory duty.

Meanwhile, Article 146 does not give timelines for what the President must do regarding the process of removal.

It is also the general law that when there is no time limit to do an act, it must be done within a reasonable time period, taking into account the specific circumstances.

The President is not enjoined to wait.

Any attempts to stop the President by the judicial process would be undermining and intruding into the constitutional space of the President.

Again, a failure by the President to act within reasonable time regarding the removal of the CJ (despite no time limit) could be read as a failure by the President to execute and maintain the Constitution or defending it, a situation that will violate Article 58 and 146 of the Constitution and the presidential oath.

What is important, however, is to guarantee a fair process.