8:12, 23.May 2016
The advice of the Judicial Council and the Council of State as far as the appointment of judges to the Superior Court and the Chair of the Electoral Commission, respectively, are concerned, cannot be binding on the President, a Supreme Court panel chaired by Justice William Atuguba, said on Wednesday July 20.
As far as the case concerning the appointment of justices of the Superior Court is concerned, the Ghana Bar Association (GBA) and three others: President of the GBA, Nene Amegatcher as well as lawyers Justin Amenuvor and Mr Beecham, instituted the action in an attempt to have the advice of the Judicial Council made binding on the president in appointing justices to the apex court.
In a 66-page writ of summons and statement of case, the plaintiffs prayed the court to make the president comply with Article 144 (2) and (3) of the 1992 Constitution, which stipulates that the president seeks the advice of the Judicial Council in appointing justices to the Bench.
In the plaintiffs’ view, “since the 1992 Constitution came into force, presidents after presidents have not acted fully on the advice tendered by the Judicial Council in the appointment of Superior Court judges.”
However, the Supreme Court, according to Class FM's court correspondent Nabil Ahmed Rufai, pronounced that as far as the interpretation of article 144(2) and (3) is concerned, the advice of the judicial council in appointing justices of the Superior Court, is not binding on the President.
The suit was filed in June last year barely 24 hours after Mr Justice Yaw Apau and Mr Gabriel Pwamang were sworn into office as justices of the Supreme Court by President John Mahama.
The plaintiffs prayed the court to declare that upon true and proper construction of Article 144 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Supreme Court were valid on condition that they were made in strict accordance with the advice of the Judicial Council.
Other reliefs sought include a declaration that upon true and proper interpretation of Article 144 (2) and (3) of the 1992 Constitution, a constitutional trust had been created in the Judicial Council to make nominations of the person(s) best qualified to serve as justices of the Superior Courts of Judicature and also that the Judicial Council was required to ensure that such nominations were actually submitted by the President to Parliament for approval after due consultations with the Council of State.
The plaintiffs also wanted the Supreme Court to rule that upon true and proper construction of the Article 144 clauses (2) and (3) of the 1992 Constitution, the Judicial Council had a constitutional obligation to specifically advise the President as to which specific person(s) is/are suitable for appointment to serve as Justice(s) of the Superior Courts of Judicature, in accordance with which advice the President is mandatorily required to exercise his powers of appointment.
Additionally, the GBA and the three others prayed the court to order that an appointment or non-appointment by the President of a Justice of the Superior Court, “in a manner out of accord with the advice of the Judicial Council, is unconstitutional, null, void and of no effect”.
In the view of the plaintiffs, the Judicial Council had violated its judicial constitutional duties in either not giving advice to the President for appointments to the Superior Courts or not ensuring that the advice it offered to the President was carried out to the letter by taking steps, including court action, to counsel the President to act on its advice, which the council had failed to do.
“Since the 1992 Constitution came into force, Presidents after Presidents have not acted fully on the advice tendered by the Judicial Council in the appointment of Superior Court judges,” they argued.
A statement of case filed on their behalf by legal counsel Thaddeus Sory, noted that the meaning and effect of Article 144 Clause 2 of the Constitution was that while the power of appointment was without doubt vested in the President’s discretion to appoint Justices of the Supreme Court, he could only exercise that discretion upon the advice of the Judicial Council.
They further submitted that the President must necessarily adhere to the advice of the Judicial Council to the letter and spirit of the of the advice given in its strictest essence, adding that “the President of the Republic of Ghana cannot act out of accord with, side step, ignore or alter the terms of the advice of the Judicial Council in the matter of the appointment of Justices of the Superior Courts”.
They also argued that the independence of the Judiciary would be severely undermined if the President’s power of appointment of justices of the Superior Courts “is so interpreted as to allow the President the liberty of acting outside of the Judicial Council, which is constitutionally entrusted with the function of ensuring that the Judiciary carries out its constitutional functions efficiently and effectively for the realisation of justice”.
In their estimation, it was insufficient for the President “to merely recite in his warrant of appointment of any particular person that his appointment is on the advice of the Judicial Council, regardless of the exact nature of the Judicial Council’s advice to the President on the subject”.
In the other case relating to the president’s appointment of the chair of the EC, plaintiff Richard Sky, a broadcaster with Accra-based private radio station Citi FM prayed the court to interpret the constitution on whether the counsel offered by the Council of State in relation to the appointment was binding on the president. Mr Sky’s suit was to seek clarity on two conflicting provisions regarding that particular appointment.
In his statement of claim, Mr Sky averred that what in his view was pivotal in the determination of the suit was whether the operative phrase “acting on the advice of the Council of State” had any mandatory binding effect. “My humble view is that the use of the phrase is not accidental and, therefore, has a binding effect as used in the context of the 1992 Constitution,” Mr Sky’s statement read.
Section 2 of Article 70 of the 1992 Constitution provides that “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman and other members of the Electoral Commission”.
However, Section 3 of Article 91 of the same Constitution states that: “The Council of State may, upon request or on its own initiative, consider or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution except that the President, Minister of State, Parliament or any other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause”.
The statement contended that those provisions had brought to the fore, many divergent views on the appointment of the Chairman of the Electoral Commission vis-a-vis the role of the President and the Council of State.
Mr Sky filed the suit in May last year ahead of the mandatory retirement of Chairman of the EC at the time, Dr Kwadwo Afari Gyan. Dr Afari Gyan’s term expired on June, 18, 2015. The President subsequently appointed Mrs Charlotte Osei as a replacement.