A Matter of Public Interest: President Mahama Must Release CJ Report

Yesterday, Ghana witnessed a significant constitutional precedent: President John Dramani Mahama, in accordance with Article 146(9) of the Constitution, removed Her Ladyship Justice Gertrude Araba Sackey Torkornoo from office as Chief Justice and Justice of the Supreme Court. This marked the abrupt end of a long and distinguished judicial career. Though the President’s action was constitutionally mandated: once the committee established under Article 146(6) recommends removal, the President has no discretion, the political and legal ramifications have been immediate. Public discourse has been rife with mixed reactions, with many questioning the fairness of the process and the independence of the Judiciary in the current constitutional climate.

Indeed, from the outset, the Article 146 process has been fraught with legal challenges, procedural irregularities, and public concern. Several suits are pending before the Supreme Court and the High Court, challenging the constitutionality of the proceedings initiated against the Chief Justice. In the wake of the removal, there have been growing calls for transparency, calls which must not be ignored. Interestingly, the Minister for Government Communications is reported to have said that the report of the Committee will not be made public. That position is not only erroneous but constitutionally indefensible. It is for this reason that this article seeks to correct the record and affirm the public’s constitutional right to know.

In any constitutional democracy, transparency and accountability are not optional virtues; they are binding obligations. The people of Ghana, as sovereign stakeholders in the governance of this Republic, are entitled to know how decisions are made, particularly where such decisions touch and concern the sanctity and independence of the Judiciary, the third arm of government.

It is for this reason that the President of the Republic must, without further delay, release the full report of the Committee constituted under Article 146(6) of the Constitution to investigate the petitions filed for the removal of the Honourable Chief Justice, together with all associated proceedings and documents, namely, the petitions and the Chief Justice’s responses, the prima facie consultations with the Council of State, the full record of witness testimonies, and the committee’s findings and conclusions.

Article 146(8) of the Constitution requires that proceedings of such a Committee be held in camera. However, the Supreme Court has authoritatively clarified that this requirement of confidentiality is limited in scope and duration. Once the work of the Committee is concluded, and its report submitted to the President, Article 146(8) ceases to operate.

This was emphatically stated in Dery v. Tiger Eye P.I. & Others [2015–2016] 2 SCGLR 812, where the Supreme Court held that:

“Once the Committee’s work is concluded and it has submitted its report, the constitutional injunction no longer applies… There would be no proceedings pending as to be protected by the Constitution after the Committee has concluded its work and its report has reached the President.”

The Court was unequivocal that the public’s right to know, although temporarily deferred in the interest of fair proceedings, is not extinguished. In the words of the Court:

“The curtailment of free speech is not a permanent act. The public is not completely denied the right to know, but certainly not before a prima facie case has been made by the Chief Justice or the committee has completed its work and submitted its report, whichever of these terminates the proceedings. The rights of the people were merely postponed for a time lest the purpose of Article 146(8) should be defeated.”

Accordingly, once the proceedings are completed, as they now are, the constitutional obligation to maintain confidentiality dissolves, and a countervailing obligation to disclose arises in the interest of transparency, public accountability, and the constitutional right of Ghanaians to access information on matters of public importance.

Indeed, Constitution does not, in any of its provisions, expressly prohibit the President from releasing the report and proceedings of a committee established under Article 146. Nowhere is it stated that the report must be kept confidential after the conclusion of the inquiry. On the contrary, the Supreme Court has affirmed that once the Committee’s work is completed, the constitutional obligation of confidentiality under Article 146(8) ceases to apply, thereby permitting, and indeed encouraging, disclosure in the interest of transparency and public accountability.

It has been widely reported in the media that several eminent Ghanaians, including former Chief Justices Sophia Akuffo and Kwasi Anin Yeboah, legal luminaries such as Nana Dr. S.K.B. Asante, Mr. Sam Okudzeto, and Mr. Justin Amenuvor, among others, appeared before the Committee to testify in defence of the Chief Justice. Given the gravity of the issues, the calibre of witnesses, and the far-reaching implications for the independence of the Judiciary, it is imperative that the Ghanaian public be fully apprised of what transpired during the proceedings and the evidentiary basis upon which conclusions were drawn.

This is not merely a matter of curiosity. It is a matter of constitutional principle. Indeed, transparency in this matter would help safeguard the reputation of both the Judiciary and the Presidency, assure the public of the integrity of the process, and deter frivolous or politically-motivated petitions against high judicial officers in the future.

There are commendable precedents. In Martin Amidu v. Special Prosecutor, following the determination by Chief Justice Gertrude Torkornoo that no prima facie case was disclosed in the petition against the Special Prosecutor, the petitioner, himself a former Attorney-General and Special Prosecutor, wrote to the President requesting a copy of the report. In keeping with the constitutional principles established in Dery v. Tiger Eye P.I., President Akufo-Addo, acting transparently, released the full report to the petitioner.

Again, in the SML audit matter, President Akufo-Addo released the full KPMG report to the public, citing transparency and public accountability. During his administration, all prima facie determinations made in response to petitions filed under Article 146, including those relating to three separate petitions against Chief Justices, were made public in full.

These examples underscore a consistent and commendable commitment to transparency which must now be emulated.

President Mahama must demonstrate fidelity to the Constitution and uphold the principles of transparency and accountability by promptly releasing:
• The full report of the Committee constituted under Article 146(6);
• The full records of proceedings, including witness testimonies;
• The petition(s) and responses submitted by the Chief Justice; and
• A record of the President’s consultations with the Council of State in making the prima facie determination, including the prima facie determination made by the President.

These records are no longer shielded by Article 146(8), and any attempt to withhold them would be inconsistent with the decision in Dery, a decision which remains binding constitutional precedent.

In a democracy, public confidence in the administration of justice depends not just on outcomes, but on the openness and fairness of the process. The people of Ghana deserve to know how decisions about the removal of the head of the Judiciary were made. Releasing these documents is not just a matter of legal obligation; it is a moral and democratic imperative.

Lastly, let me state that transparency is not a threat to justice. It is its lifeblood. Let the truth come to light.

By *Kow Abaka Essuman*
*Former Acting Secretary to the President and Former Legal Counsel to the President*