Christian Lebrecht Malm-Hesse Esq.
Private legal practitioner, Christian Malm-Hesse, says the challenge brought by former Chief Justice Gertrude Torkornoo against her removal will be critical in finally settling long-standing constitutional ambiguities about how justices of the superior courts are appointed and removed in Ghana.
Speaking on the matter on TV3”s KeyPoints, Mr. Hesse explained that just like other superior court justices, a Chief Justice goes through a process of nomination, parliamentary vetting, and presidential appointment.
For this reason, he believes the removal process must equally follow a well-defined constitutional procedure.
According to him, Article 146 of the 1992 Constitution outlines two separate mechanisms. The first deals with the removal of justices of the superior courts, a process initiated by the Chief Justice through a prima facie determination and the setting up of a committee.
The second specifically addresses the removal of a Chief Justice. Mr. Hesse noted that the current case presents a crucial question: what happens when a sitting Chief Justice, who is already a substantive justice of the Supreme Court, is removed on grounds such as stated misbehaviour or incompetence?
“It cannot be that once the Chief Justice is removed from that administrative role, he or she also loses the primary position as a justice of the Supreme Court. The Constitution anticipates distinct procedures, and this case will help clarify that,” he argued on September 20.
The lawyer stressed that while there have been references in previous rulings touching on similar issues, none directly resolved the constitutional uncertainty. He believes this challenge will finally establish a binding precedent.
“This case will cement the law. Once the Supreme Court determines it, it becomes part of our common law. It will guide future presidents, parliaments, and the judiciary itself. For now, it remains unsettled, but this decision will be the final of the final positions on the matter,” he said.
Mr. Hesse also pointed out that the Supreme Court reserves the power to depart from its own previous decisions.
However, once a unanimous or authoritative ruling is given on this case, it will bring clarity and consistency to the constitutional process of removing a Chief Justice.
“With variant opinions always possible in constitutional law, it is important that this matter is conclusively determined. The right of any individual to challenge a decision and seek legal redress cannot be fettered,” he concluded.
Source:Lovinghananews.com
