GhanaWeb Feature by Ishmael Batoma:
The Ghana Bar Association (GBA) has come under heavy scrutiny following the official release of its 2025 mid-year conference resolution demanding that President John Dramani Mahama revoke the suspension of the Chief Justice, Gertrude Torkornoo.
The Bar argues that the suspension of the Chief Justice by the president was unconstitutional, citing Article 296(c) of the 1992 Constitution of Ghana.
It said that the Chief Justice’s suspension is unconstitutional because no published regulation governs the president’s discretion under Article 296(c).
Other legal scholars have argued that the GBA’s declaration of the suspension as unconstitutional, based on what Article 296(C) says, is flawed.
But who is right? This GhanaWeb article looks at what the laws say about the suspension of the Chief Justice and the other laws mentioned in the discussions, as well as the opinions of some experts.
Let us start with Article 296(c):
Article 296(c):
Article 296 of the 1992 Constitution touches on the exercise of discretionary power by public authority.
The first two sections of the article talk about how discretionary power must be exercised equitably and must be void of bias.
“(a) Where in this Constitution or in any other law discretionary power is vested in any person or authority: that discretionary power shall be deemed to imply a duty to be fair and candid,
“(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law,” they read.
Article 296(c), which the GBA relied on in its resolution, speaks about the need for laid down procedures in the exercise of discretionary power.
“… where the person or authority is not a judge or other judicial officer, there shall be published by constitutional instrument or statutory instrument, regulations that are not inconsistent with the provisions of this Constitution or that other law to govern the exercise of the discretionary power,” it states.
Now, let us take a look at how Article 296(c) affects Article 146, the laws on how petitions for the removal of the Chief Justice and other Superior Court Justices work — particularly the section of the article that touches on the suspension of the Chief Justice.
Article 146(10):
Article 146(10) gives the president the power to suspend justices who are subjects of ongoing petitions, including the Chief Justice, after the determination of a prima facie case.
It states that the president can only suspend the Chief Justice upon the advice of the Council of State and not by using his discretionary powers.
“Where a petition has been referred to a committee under this article, the President may –
(a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice, (b) in the case of any other Justice of a Superior Court or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal,” Article 146(10).
The GBA, in its resolution, stated that it was calling “for the immediate revocation of the suspension of the Chief Justice, as it considers the suspension to be unconstitutional, considering the fact that the President, who is not a judge or judicial officer, exercised his discretion to suspend the Chief Justice under Article 146(10) of the 1992 Constitution in the absence of a published Constitutional Instrument, Statutory Instrument, or Regulation(s) governing the exercise of his said discretion as required by Article 296 of the 1992 Constitution.”
So, the major bone of contention is the use of the word ‘may’ in Article 146(10), which the association appears to be saying can only be exercised by the president after the enactment of laid down procedures, because the president is not a judicial officer.
What legal experts have said about the ‘may’ in Article 146(10):
While the GBA has failed to give legal precedence and argument to back its position, a number of legal experts have.
Former Director of the Ghana School of Law, Kwaku Ansa-Asare, has stated that if a committee is established to investigate the petitions for the Chief Justice’s removal, her continued stay in office could interfere with the process.
He indicated that Article 146(10) of the 1992 Constitution, even though it says the president ‘may suspend’ the Chief Justice, obliges him to suspend her.
“The moment the committee is set up, the president is then obliged to suspend the Chief Justice, and I think it is fair. While the committee is inquiring into the allegation, the Chief Justice cannot remain in office because there is a likelihood of interference, and therefore, she has to step aside,” he said.
Renowned US-based Ghanaian lawyer and scholar, Professor Stephen Kwaku Asare (Kwaku Azar), has also listed some court rulings to counter the GBA’s reasoning.
He said that the Supreme Court had already ruled that the use of discretionary power does not require prior published regulations.
“In Ransford France vs Electoral Commission (2012), the Supreme Court unanimously held that not every discretionary act requires prior published regulations,” he said.
He added that the court has ruled that Article 296(c) is not applicable in the suspension of persons who are subjects of investigation, and has warned about its misapplication.
“Justice Date-Bah warned that a literal interpretation of Article 296(c) would cause a ‘nuclear melt-down’ of government—crippling normal administration.
“The Court ruled that Article 296(c) applies only to quasi-judicial situations, not to administrative acts like suspending an official pending investigation. By quasi-judicial, the Court clarified that it involves adjudication,” he said.
Other lawyers have also argued that the GBA, by its resolution, is effectively asking President John Dramani Mahama to disregard the advice of the Council of State, which is the foremost advisory body to the president and other state institutions.
The arguments and counter-arguments and legal interpretations of the laws related to the matter continue.
BAI/AE
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