In Ghana’s constitutional architecture, few provisions are as frequently debated yet misunderstood as Article 296(c), which governs the exercise of discretionary power. A related provision, Article 146(10), has recently attracted public attention following the suspension of Chief Justice Gertrude Sackey Torkornoo by President John Mahama to allow investigations into petitions for her removal.
Some have questioned whether the President should have issued a Constitutional Instrument (CI) before exercising that power. The answer is to me is straightforward: no, the President is not required to do so.
Article 146(10) is a textbook example of a self-executing constitutional provision. It spells out when the President may suspend a judge (after a petition is referred to a committee) and how (by warrant and on the advice of the Council of State or Judicial Council).
It is precise, narrow, and leaves no procedural vacuum. The framers of the Constitution clearly intended to set out an internally regulated process for the suspension of superior court judges—one that does not depend on supplemental regulations.
Article 296(c) requires that when discretionary power is given to a public authority (excluding judges), that authority must publish regulations via a constitutional or statutory instrument to guide the use of that discretion. The purpose is noble: to ensure transparency, prevent arbitrariness, and anchor decision-making in clearly laid down principles.
However, the Supreme Court in France v. Electoral Commission [2012] wisely clarified that Article 296(c) does not—and should not—apply to every form of discretion. If it did, the Court warned, it would cause a “nuclear melt-down” of public administration, forcing government bodies to issue thousands of pre-emptive regulations before taking even the most routine decisions.
The Court thus limited Article 296(c)’s application to situations involving quasi-judicial discretion or where discretion is exercised without adequate constitutional guidance. Presidential action under Article 146(10) does not fall into either category.
President Mahama’s decision to suspend Chief Justice Torkornoo followed the constitutional script to the letter. He did not act alone; he acted on the advice of the Council of State. He did not suspend unilaterally; he did so after a petition had been referred to a committee. And most importantly, he did not issue a CI—because he didn’t have to.
To argue otherwise is to confuse two distinct constitutional ideas: (1) discretionary power that needs procedural rules, and (2) discretionary power that is already procedurally constrained by the Constitution itself. Article 146(10) clearly falls into the second category.
The Ghanaian Constitution does not mandate formality for formality’s sake. It demands functional fidelity to constitutional principles—fairness, accountability, and rule of law. Article 146(10) upholds all three by embedding checks and balances directly into the suspension process. Insisting on a CI under Article 296(c) would not only be legally erroneous—it would be constitutionally redundant.
Why Article 146 Should Be Revisited
Despite the above, there is reason to revisit Article 146, not to strip the President of the power to act, but to strengthen the institutional protections around the office of the Chief Justice. Currently, the Chief Justice is appointed by the President in consultation with the Council of State and with the approval of Parliament (Article 144(1)). This reflects the high level of public trust and institutional involvement in the office’s elevation. Yet, ironically, Parliament plays no role in the removal process.
This imbalance is concerning. It makes the Chief Justice vulnerable to political dynamics, especially if the executive controls the advisory bodies or if the petition process becomes politicized. In democracies where judicial independence is paramount, such vulnerabilities are addressed through multilayered safeguards.
In the United States, the Chief Justice can only be removed through impeachment by the House of Representatives and conviction by the Senate, a deliberately high bar.
Also in India, the Chief Justice of India may be removed by a two-thirds majority in both Houses of Parliament after a formal inquiry, again involving a legislative process.
South Africa is no different, the Judicial Service Commission investigates allegations, but Parliament must adopt a two-thirds resolution to remove a judge, including the Chief Justice.
These systems recognize the centrality of the Chief Justice and shield the office from impulsive or politically motivated challenges.
To make the removal of Ghana’s Chief Justice more stringent, the following reforms could be considered:
i. Legislative Ratification: Require that the final recommendation for removal be approved by a two-thirds majority in Parliament, similar to the appointment process.
ii. Enhanced Threshold for Petitions: Require petitions against the Chief Justice to be signed by a minimum number of MPs or legal professionals to prevent frivolous attempts.
iii. Public Transparency: Mandate that the proceedings of the investigative committee be made public (with exceptions for sensitive material), to discourage politically motivated removals.
iv. Fixed Timeframes and Appeal Mechanisms: Ensure that the process has a clear timeline and includes a final review by the Supreme Court (excluding the implicated judge).
The President’s compliance with Article 146(10) in the suspension of Chief Justice Torkornoo should not be in question. But this episode should spur constitutional reform. The judiciary’s independence is only as strong as the safeguards protecting its leadership.
We must preserve the balance between accountability and protection. Strengthening Article 146 to require legislative input and higher thresholds for removal would do exactly that honour the spirit of our Constitution while defending the independence of its most vital institution.
By: Fred Tettey Djabanor
Head of Current Affairs Production
Citi FM & Channel One TV