REMOVAL OF THE CHAIRPERSON OF THE ELECTORAL COMMISSION OF GHANA FROM OFFICE.

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1 REMOVAL OF THE CHAIRPERSON OF THE ELECTORAL COMMISSION OF GHANA FROM OFFICE. The office of the Chairperson of the Electoral Commission in my opinion is not like any other public office. It is an office, just as those of Superior Court Judges, whose independence and tenure the constitution clearly seeks to protect. The removal of a superior Court Judge or the Chairperson of the Electoral Commission from office ought not be done in a jest. The grounds for removal must not be flimsy. It must be grave as to amount to some serious moral turpitude, dishonesty, or incapacity of the office holder to perform his or her functions. This Article is therefore seeking to excite our minds to some of the issues we might not have considered and assist in getting the supreme Court the Opportunity to make pronounce on such issues. On the 29th day of June 2018, I spotted a letter on social media supposedly authored by the President, removing the Chairperson of the Electoral Commission from office on the recommendations of a Committee set up by the Chief Justice under article 146 of the Constitution. This was after a petition for the removal was forwarded to the Chief Justice by the President under the same article 146 of the Constitution. It was also after the Committee had completed investigations into the allegations made by the Petitioners against the EC Chairperson. The Letter of removal and some excerpts of the Committee s report which are in circulation triggered arguments on various tangents. All the allegations alleged to have been established in the excerpts of the Report against the Chairperson relate to breaches of the Public Procurement Act. The Committee concluded that the breaches amounted to stated misbehavior and incompetence as contemplated under article 146. It is also very apparent, though not captured in the Report in circulation, that the Committee recommended to the President that the EC chairperson be removed from office. The president therefore issued the letter removing her for "stated misbehavior and incompetence" and that triggered the arguments I referred to, and the most popular argument I hear are on the following issues: 1. whether or not the President had any discretion in forwarding the petition to the Chief Justice; 2. whether or not the president had any discretion in removing the EC Chairperson after receiving the recommendations of the CJ's Committee; 3. Whether or not all the findings of the Committee against the Chairperson were accurate; and 4. Whether or not the allegations established against the EC relates to her core mandate.

2 Honestly, I don't find any of the directions of the arguments very relevant. The most relevant arguments in my opinion, and which I think the Supreme Court must be given the opportunity to affirm or reject are: 1. Whether or not on the true and proper interpretation of article 146 of the Constitution, breaches of Law simpliciter by a Court of appeal Judge, and for that matter the EC Chairperson in the performance of their functions, amount to "misbehavior and incompetence" to ground their removal from office; 2. Whether or not the Chief Justice (CJ) and/or her Committee has the Jurisdiction to interpret the Constitution; 3. Whether or not the CJ s Committee has the jurisdiction to recommend, after its investigation, that a superior Court Judge or the Chairperson of the Electoral Commission be removed; 4. Whether or not in the exercise of its investigative function, the CJ s Committee has the Jurisdiction to determine breaches/violations of Law and pass judgment that can constitute grounds for the president s removal of a superior Court Judge, and for that matter the EC chairperson, from office; 5. Whether or not the applicability of the Public Procurement Act on the functions of the EC chairperson is Constitutional; 6. Whether or not the procurement law has been breached, and whether the breaches of Procurement Law simplicita, if any, is weighty enough to ground the removal of the EC Chairperson. 7. Whether or not there was a prima facie case I therefore intend that, by the time I complete this Article the above issues must been addressed. I must however admit that I needed to have read the full Report of the Committee before writing this article, but looking at the issues I consider most important, I am of the view that absence of the full Report will not affect the validity of the arguments I am about to make. In this article therefore, I would deal with the issues I consider most relevant, and deal with some of the popular arguments captured herein. I would discuss the issues under the following headings: 1. THE NATURE AND GRAVITY OF STATED MISBEHAVIOR OR INCOMPETENCE CONTEMPLATED UNDER ARTICLE 146; 2. JURISDICTION OF THE CJ S COMMITTEE; 3. THE PRESIDENT S DISCRETION UNDER ARTICLE 146 OF THE CONSTITUTION; 4. PRIMA FACIE CASE.

3 1. THE NATURE AND GRAVITY OF STATED MISBEHAVIOR OR INCOMPETENCE AS CONTEMPLATED UNDER ARTICLE 146; Hereunder, I would deal with the issue Whether or not on the true and proper interpretation of the Constitution, breaches of statute simpliciter, by a Court of appeal Judge, and for that matter the EC Chairperson in the exercise of their functions, amount to the "misbehavior and incompetence" that is contemplated under article 146(1) of the Constitution. For the benefit of readers who are non-lawyers, the word simpliciter mean without any qualification or condition. By a breach of statute simpliciter therefore, I mean breach of statute without any qualifications at all. The relevant qualifications to the statutory breaches to be expected under Article 146, in my opinion, are breaches with evidence that the breach was ill motivated; and with evidence that it occasions a loss to the State, or has inured, or would inure to the benefit of the EC Chairperson; or with evidence of dishonesty or any other condition that negatively affects the High Standard of Morality and integrity that she was satisfied before occupying the office. For the purpose of this heading, I would assume that the breaches of procurement Laws imputed on the Chairperson of the electoral Commission are true. The question therefore is whether such breaches are of sufficient weight or gravity as to amount to stated misbehavior or incompetence under article 146 of the Constitution. I do not think breaches or incorrect application of statute simpliciter, if any, can constitute the kind of "misbehavior and incompetence" that is contemplated under article 146(1) of the Constitution to ground the removal of the Electoral Commissioner from office. I come to that conclusion on two major grounds: 1.1 the Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice; and 1.2 the nature and standard of qualifications for the office. 1.1 Constitutional parity of the EC Chairperson with a Court of Appeal or superior Court justice As already stated, the office of the Chairperson of the Electoral Commission is one of the offices clearly regarded by our Constitution as sacred, sensitive, and essential to our democracy and civilization. It is not an office that can be risked in, or allowed to yield to, vile and turbulent partisan political vendetta in such a manner as to permit, and/or make easy for any government to find grounds for replacing the EC Chairperson upon assumption of power. No! Accordingly, it is abundantly clear that our Constitution intends for such an office, a robust and an uncompromising protection both for its independence and tenure. With regards to her independence and tenure, the framers of the Constitution by the combined effect of articles 43 (3) 126(1) thereof, places the Chairperson of the Electoral Commission in the same category as a justice of the Court of Appeal. The Court of Appeal is,

4 by article 126 of the Constitution part of the Judiciary and, in fact, the second in superiority within the hierarchy of Superior Courts. Article 127 provides for some of the terms and Conditions of service that I deem most relevant to this article. For the purpose of easier reference, I hereby reproduce the relevant provisions of the constitution. Article 43(3), 126(1) and 127 provide as follows: Article 43(3): The Chairman of the Electoral Commission shall have the same terms and conditions of service as a Justice of the Court of Appeal. Article 126(1): Article 127: 1) The Judiciary shall consist of - (a) the Superior Courts of Judicature comprising - (i) the Supreme Court; (ii) the Court of Appeal; and (iii) the High Court and Regional Tribunals. (b) such lower courts or tribunals as Parliament may by law establish. (1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority. (3) A Justice of a Superior Court, or any person exercising judicial power, shall not be liable to any action or suit for any act or omission by him in the exercise of the judicial power. The above provisions are some of the conditions of service of the Judiciary of which the Court of Appeal is part. It must be noted that the only basis for subjecting the EC Chairperson to the procedure under article 146 of the Constitution is because she is regarded as a Court of Appeal Judge under article 43 (3). Otherwise, there are no specific provisions in the Constitution grounding the removal of the EC Chairperson. Accordingly, the above provisions can only mean that, in addition to the other terms and Conditions of service of the superior Court judges and by extension the Judiciary, the Constitution intends to accord the Electoral Commission s Chairperson the same independence and protection of tenure in the performance of her function. In my opinion, article 43(3) places greater importance to the independence of the Chairperson of the Electoral Commission than it accords the electoral Commission itself as a

5 body or institution. It therefore elevates the independence of the Chairperson beyond the general independence guaranteed for the Electoral Commission as an institution under article 46 to that of the Judiciary. This is because the general independence of the Electoral Commission under article 46 is subject to other Laws other than the Constitution. Article 46 of the Constitution states as follows: Article 46. Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission, shall not be subject to the direction or control of any person or authority. Clearly, Article 46 is referring to the Electoral Commission as a whole. It guarantees the independence of the Commission as a body or an institution, acknowledging that membership of the Electoral Commission as a whole includes officials who rank far below the EC Chairperson herself. Hence the independence of the Electoral Commission as a body is subjected to other Laws other than the Constitution. It is therefore my opinion that the framers of the constitution intended a greater and more uncompromising protection of the EC Chairperson s independence and tenure, so they elevated it by the combined effect of article 43(3) and 126(1)(a) to that of the Judiciary in order to subject her independence only to the Constitution and no any other Law. Having said that, I submit with strong conviction that article 127, especially 127(1) and (3), having been part of the conditions of service of a Court of Appeal Justice, is applicable mutatis mutandis to the Chairperson of the Electoral Commission. For readers without Law or Latin background, mutatis mutandis is a Latin expression used in Law when comparing two things. It means to make necessary alteration without affecting the main point at issue. I say mutatis mutandis for the sake of those who might be quick to say that article 127 applies to persons exercising judicial power whilst the EC Chairperson has none. They might be tempted to come to that conclusion because of the phrase in the exercise of judicial Power as captured in article 127(1) and (3) of the constitution. However, the focus in my opinion should be parity and not exactitude. The phrase in the exercise of judicial power as captured in article 127(1) and (3) cannot be construed to exclude the independence of the EC Chairperson from the protection guaranteed under those provisions, while applying Article 146 to her removal from office. That would be absurd and highly discriminatory. The proper and Constitutionally accepted position, in my opinion, should be that, the protection of independence and tenure for all Superior Court Justices, as those in article 127(1) and (3) of the Constitution, must also be applicable to the EC Chairperson by virtue of Article 43(3). In applying article 127(1) and (3) mutatis mutandis to the EC Chairperson therefore, the best construction of the phrase in the exercise of judicial power in article 127(1) and (3), in my view, would be to replace it with in the exercise of her function. Instead of focusing on judicial power the key words should be in the exercise of functions because exercising judicial power is all the superior Court judges do, and that is their service to the Country. For the framers of the Constitution to say a public servant whose service has nothing to do with

6 exercise of Judicial Power should have the same terms and conditions of service with Public Servants whose function has all to do with exercise of Judicial Power, reinforces the notion that the Constitution intends parity and not exactitude when dealing with articles 43(3), 126(1)(a) and 127(1) and (3). If 127(1) and (3) of the Constitution is applied mutatis mutandis to the EC Chairperson as mandated by article 43(3), it would read as follows: Article 127(1). In the exercise of the electoral functions of Ghana, the Chairperson of the Electoral Commission, in both her electoral and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority; Article 127(3). A chairperson of the electoral Commission shall not be liable to any action or suit for any act or omission by her in the exercise of her functions. From the above applications of article 127 (1) and (3) to the Chairperson of the electoral Commission the following are abundantly Clear: 1. That the EC Chairperson s decisions and actions in the performance of her functions is subject only to the Constitution and no any other Law (including the Public Procurement Act) and can therefore not be subjected to the control of the Public Procurement Authority under the Public Procurement Act. 2. That the EC Chairperson cannot be liable to any action or suit for any act or omission by her in the exercise of her functions. The Committee itself has established that procurement necessary adjunct to the Core Mandate of the Chairperson of the Electoral Commission. Having come to that Conclusion, they ought to have realized that the Public Procurement Act would not apply to her decisions and actions in that regard. Consequently, the issue whether or not the Chairperson of the electoral Commission breached the Public Procurement Act in the performance of her functions, should not have arisen before the CJ s Committee let alone amounting to stated misbehavior or incompetence under article 146(1) of the Constitution. The application of the public procurement Act on the EC Chairperson is therefore unconstitutional. 1.2 Nature and standard of eligibility for the office The other reason that grounds my conclusion that breaches of a statute simpliciter cannot amount to stated misbehavior or incompetence under Article 146 of the Constitution is the eligibility requirements the EC Chairperson is required to satisfy under the constitution in order to occupy that office. In my opinion, if a breach or misapplication of any statute by the EC Chairperson leaves her initial qualification/eligibility for the office untouched, such a breach cannot be qualified as stated misbehavior or incompetence under article 46 to ground her removal from office.

7 Now let s have a look at the qualifications. In my opinion, by virtue of article 43(3) which equates the EC Chairperson to a Court of Appeal Judge, the qualification of a judge of the Court of Appeal under Article 136(3) must, in addition to those prescribed for all members of the Electoral Commission in article 44(1), be applicable to the EC Chairperson. Article 44(1) alone, in my opinion, contains qualification meant for all members of the electoral Commission, whilst a combination of 44(1) and 136(3) is meant for the office of the Chairperson only. Article 44(1) requires every member of the Electoral Commission to have the qualification of a member of Parliament. The qualifications of a member of Parliament are also spelt out in article 94 of the Constitution. As indicated earlier, Article 136(1) on the other hand spells out the qualification of a Court of Appeal Judge. It requires a Court of Appeal Judge to have practiced Law for at least 12 years and be of high moral character and proven integrity. Article 44(1) and 136(3) therefore imply that the EC Chairperson must not only have the qualification of a member of Parliament but must also have practiced Law for 12 years or more and be of high moral Character and proven integrity. The provisions of the above referred constitutional provisions are quoted below. Article 44. Article 94. (1) A person is not qualified to be appointed a member of the Electoral Commission unless he is qualified to be elected as a member of Parliament. (1) Subject to the provisions of this article, a person shall not be qualified to be a member of Parliament unless - (a) he is a citizen of Ghana, has attained the age of twenty-one years and is a registered voter; (b) he is resident in the constituency for which he stands as a candidate for election to Parliament or has resided there for a total period of not less than five years out of the ten years immediately preceding the election for which he stands, or he hails from that constituency; and (c) he has paid all his taxes or made arrangements satisfactory to the appropriate authority for the payment of his taxes. (2) A person shall not be qualified to be a member of Parliament if he - (a) owes allegiance to a country other than Ghana: or (b) has been adjudged or otherwise declared- (i) bankrupt under any law in force in Ghana and has not been discharged or

8 (ii) to be of unsound mind or is detained as a criminal lunatic under any law in force in Ghana; or (c) has been convicted - (i) for high crime under this Constitution or high treason or treason or for an offence involving the security of the State, fraud, dishonesty or moral turpitude; or (ii) for any other offence punishable by death or by a sentence of not less than ten years; or (iii) for an offence relating to, or connected with election under a law in force in Ghana at any time; or (d) has been found by the report of a commission or a committee of inquiry to be incompetent to hold public office or is a person in respect of whom a commission or committee of inquiry has found that while being a public officer he acquired assets unlawfully or defrauded the State or mis-used or abused his office, or willfully acted in a manner prejudicial to the interest of the State, and the findings have not been set aside on appeal or judicial review; or (e) is under sentence of death or other sentence of imprisonment imposed on him by any court; or #9; (f) is not qualified to be registered as a voter under any law relating to public elections; or (g) is otherwise disqualified by a law in force at the time of the coming into force of this Constitution, not being inconsistent with a provision of this Constitution. (3) A person shall not be eligible to be a member of Parliament if he - (a) is prohibited from standing election by a law in force in Ghana by reason of his holding or acting in an office the functions of which involve a responsibility for or are connected with the conduct of, an election or responsibility for, the compilation or revision of an electoral register; or (b) is a member of the Police Service, the Prisons Service, the Armed Forces, the Judicial Service, the Legal Service, the Civil Service, the Audit Service, the Parliamentary Service, the Statistical Service, the Fire Service, the Customs, Excise and Preventive Service, the Immigration Service, or the Internal Revenue Service; or (c) is a Chief. (4) For the purposes of paragraph (d) of clause (2) of this article, in the case of any finding made by a commission or committee of inquiry which is not a judicial or quasijudicial commission or committee of inquiry, without prejudice to any appeal against or judicial review of that finding, the finding shall not have the effect of disqualifying

9 Article 136. a person under that paragraph unless it has been confirmed by a Government white paper. (5) A person shall not be taken to be disqualified to be a member of Parliament under paragraph (c) or (d) of clause (2) of this article if - (a) ten years or more have passed since the end of the sentence or the date for the publication of the report of the commission or committee of inquiry; or (b) he has been pardoned. (3) A person shall not be qualified for appointment as a Justice of the Court of Appeal unless he is of high moral character and proven integrity and is of not less than twelve years' standing as a lawyer. It is my humble view that, in order to sense the gravity connoted in the words misbehavior and incompetence in the context of Article 146(1), and to arrive at the proper interpretation of article 146(1) of the Constitution in the process of removing the EC Chairperson from office, one must not only consider the protection guaranteed for her independence and tenure as a superior Court Judges, but also, one must consider the above constitutional qualifications or conditions of eligibility that the EC Chairperson is expected to satisfy. Now, any person who successfully occupy the office of the EC Chairperson, must be deemed to have satisfied all the above quoted conditions of eligibility and qualifications, and must also be deemed to be free from all the disqualification under the Constitution. Any allegation of wrong doing can only ground her removal from office if and only if that wrong is so grave as to deprive her of the qualifications she is deemed to have or taint her with any of the conditions of disqualifications from which she is deemed to be free. From the above conditions of qualifications spelt out in article 136(3) of the Constitution, the Chairperson of the EC is deemed to be of high moral character and proven integrity. In addition to that, she is also deemed to be free from all the myriads of conditions spelt out under Article 94. The Question therefore is this: if assuming without admitting that the Public Procurement Act is applicable to the Chairperson of the Electoral Commission, and that she indeed violated some provision of the Act without evidence of ill motive, dishonesty, Fraud, moral wrong, financial loss, or some benefit or intended benefit for herself, would the violation deprive her of any of the qualifications she is deemed to have under Article 136(3), or make her guilty of any of the conditions of disqualification in Article 94, from which she is deemed to be free? My answer is emphatic No. the fact that section 92 of the Public Procurement Act makes the violations criminal makes no difference because even a cursory reading of the section 92 would reveal that it merely fixes what Lawyers call strict liability, thus liability for breaching

10 a law with or without necessarily being at Fault or being guilty of any moral wrong. Mere evidence of breach of such Statutes without more would normally suffice for the prescribed penalty under the Law. Such provisions are meant to encourage compliance and deter infractions. Breaches of such Statutes cannot be what is contemplated by our Constitution to constitute grounds for the removal of a Superior Court Judge and for that matter the Chairperson of the Electoral Commission. If mere infraction of Law were to amount to misbehavior and incompetence as contemplated under Article 146 of the Constitution, most Superior Court Judges would not qualify to remain in office. This is because more often than not, they assume jurisdiction in breach of statute or even the Constitution sometimes and their decisions are often overturned by a higher Court on account of such breaches, yet they remain in office. On account of the above, it is my view that the Public Procurement Act does not apply to the EC Chairperson in the first place, but if it even does, breaches of its provisions or the provisions of any Statute simpliciter cannot measure to the gravity of the kind of stated misbehavior or incompetence that is contemplated under Article 146 of the Constitution for removing a superior Court Judge and for that matter the Chairperson of the Electoral Commission from office. That would not accord to the sanctity, the nature, and purpose of the protection that is guaranteed for the tenure and independence of our Superior Court Judges and the Chairperson of our Electoral Commission. Accordingly, I am of the view that the Chairperson of the Electoral Commission cannot be removed from office for merely breaching laws of procurement or statutes in the course of performing her functions. 2.0 JURISDICTION OF THE COMMITTEE Under this heading, I would discuss three issues, namely: 2.1 jurisdiction to interpret the Constitution 2.2 jurisdiction to determine violation of Law generally;and 2.3 jurisdiction to recommend the removal after investigation 2.1 Jurisdiction to interpret the Constitution Here, we must first deal with the issue, whether or not the CJ and the Committee have actually interpreted article 146(1) of the Constitution. I answer that in the affirmative, and here is my reason: Article 146 (1) states as follows: A Justice of the Superior Court or a Chairman of the Regional Tribunal shall not be removed from office except for stated misbehavior or incompetence or on ground of inability to perform the functions of his office arising from infirmity of body or mind

11 In the second paragraph of page 48 of the excerpts of the report that are in circulation, the Committee quoted with approval and perhaps with reverence, the CJ s statement in her determination of prima facie case as follows: The Committee after copiously quoting the CJ in the above terms, it went further and state in paragraph 5 of page 51 of the Report as follows: From the above exposition on what constitutes misbehavior and the implication of such conduct pertaining to an office such as the Chairperson of the electoral Commission we cannot but agree with the opinion expressed by the chief Justice and conclude that the Conduct of Mrs. Charlotte Osei that violated the Public Procurement Act as demonstrated in this Report constitute misbehavior At page 40 of the report, the Committee also stated thus: the non-compliance of the Public Procurement Act for procurement activity funded by donor agencies by the Chairperson can only be explained in terms of her incompetence in understanding the Grant Document she executed with officials of USAID and the Ministry of finance and provisions of the public procurement Act. If the what the CJ and the Committee did as quoted above does not amount to interpretation of article 146(1) and consequently an interpretation of the Constitution, I wander what that is, and what interpretation of the constitution could be. In my view, the above quoted statements and conclusions are undoubtedly interpretation of the Constitution. It is my humble opinion that the CJ s Committee lacks the jurisdiction to determine what constitutes stated misbehavior or incompetence under article 146 of the Constitution. Determining what constitutes misbehavior and incompetence under 146(1) in my view amounts to determining the meaning of the provision; and determining the meaning of the provision amounts to interpreting the Constitution. However, article 130(1)(a) of the Constitution exclusively reserves interpretation of the Constitution to the Supreme Court and the Supreme Court only. Article 130(1)(a) of the Constitution provides as follows: Article 130. Article 130. (1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and freedoms as provided in article 33 of this Constitution, the supreme Court shall have exclusive original jurisdiction in- (a) all matters relating to the enforcement and interpretation of this Constitution. (2) Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme

12 Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court. From the above provision, it is abundantly clear that no person or group of persons, or authority, or agency can interpret the constitution except the Supreme Court as duly constituted. By article 128(2) of the Constitution, the Supreme Court shall be duly constituted for its work by five (5) Supreme Court Justices or more. Article 133(2) provides an exception to 128 (2) but only in matters where the Supreme Court is reviewing its own decision. Only in that case, the constitution requires that the Supreme Court would be duly constituted by seven (7) justices of the Supreme Court or more. This clearly tells us that no individual Supreme Court Judge or even the Chief justice or a group of Supreme Court Judges who have not been duly constituted to perform the function of the Supreme Court have the jurisdiction to interpret the Constitution or any provision thereof. But does the mandate of the CJ s Committee as stipulated in article 146(4) imply any jurisdiction concurrent with that of the Supreme Court to interpret the Constitution? My answer is No. this is because, article 130 (2) of the Constitution provides that where an issue relating to a matter or question of interpretation of the Constitution arises in any proceedings in a Court other than the Supreme Court, that Court shall stay the proceedings, and refer the question of interpretation to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the supreme Court. In my opinion, Court here include any other adjudicating body or authority; or anybody or authority purporting to adjudicate. It is therefore my opinion that the role or mandate of the Chief Justice to establish prima facie case under article 146(4) does not confer on her a concurrent jurisdiction with the Supreme Court to interpret the Constitution and tell us what article 146(4) of the Constitution mean by stated misbehavior or incompetence. Neither is her duty to set up a Committee nor her duty to forward the Petition to that Committee confers on her the authority to usurp the Supreme Court s jurisdiction to interpret the constitution. In the same vein, the duty of the Committee to investigate the petition and make recommendations to the CJ does not by any stretch of the imagination confers on the Committee a jurisdiction to interpret the Constitution, and tell us that breaches of Procurement law by the EC Chairperson in the performance of her function, is what or part of what article 146(1) mean by stated misbehavior or incompetence. It is my humble Opinion that, the issue: whether breaches of procurement law, or any Statute at all, by a superior Court judge or the EC Chairperson for that matter, in the exercise of their functions, amount to the stated misbehavior or incompetence contemplated under article 146(1) of the Constitution for their removal from office requires interpretation of the Constitution, and the Committee should have referred that question to the Supreme Court

13 for determination. Having failed to do so, and having determined the meaning of article 146(1), the determination of the CJ and the Committee was done in excess of their jurisdiction and therefore void jurisdictions to determine violation of a statute and pronounce guilt or otherwise interpreting and/or determining statutory violations and passing judgment when controversies arise, or pronouncing guilt or otherwise, is an exercise of judicial authority. Black Law dictionary defines judicial power as the authority both Constitutional and legal given to the Courts and its Judges to: 1. to preside over and render judgment on Court worthy cases; 2. to enforce or void statutes or Laws when scope or Constitutionality are questioned; 3. to interpret statutes and Laws when disputes arise. In Akainyah and another v. the republic [1968] GLR , (which would be discussed in detail later) Our Court of Appeal, which was then the highest Court in Ghana adopted the American and Australian Courts definition of judicial power/authority as: American: the power of a court, to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision Or the right to determine actual controversies arising between adverse litigants duly instituted in courts of proper jurisdiction. Australian: the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. From the above definitions, two things are clear, namely who or what is usually given judicial power, and how judicial power is exercised. From the definition, Courts and judges are usually given judicial Power and judicial power is exercised by presiding over cases meant for Court and rendering Judgment; interpreting statutes and Laws when disputes arise between parties; and enforcing or voiding statutes or Laws when their scope or constitutionality are questioned. It is not the place of any Commission or Committee of inquiry to pass judgment on violations of criminal or any other Law from which a penalty can directly flow without any intervention of the Courts. For anybody of persons or authority to make a binding pronouncement of breaches or otherwise of a statute and pronounce guilt on a person based on such determination of breaches, that body exercises judicial power and must accordingly have or be given judicial authority. The question to be answered hereunder therefore, is whether or not the CJ s Committee exercised judicial power, and whether or not it had the judicial authority to do so.

14 In my opinion, no scintilla of doubt can be cast on the fact that the CJ S Committee exercised judicial authority. By interpreting provisions of the public Procurement Act and pronouncing guilt on the EC Chairperson from which a penalty on the EC chairperson flowed, they have clearly exercised Judicial authority. As to whether it has or has been given judicial Authority can be gleaned from the Constitution and judicial precedence. By Article 125(3) of our Constitution, the Judicial Authority of Ghana is vested in the Judiciary, and the judiciary is clearly defined by Article 126(1) of the same Constitution. Article 125(3) goes further to categorically and expressly deprive the President, Parliament and any organ or agency of the President or Parliament of judicial Power and proscribes the giving of final judicial power to them. Article 125(3) of the Constitution provides as follows: Article 125. (3) The judicial power of Ghana shall be vested in the Judiciary, accordingly, neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power. As if to clear any doubt and avoid any possibility or likelihood of usurpation of Judicial power, the Constitution, immediately after Article 125 follows with Article 126(1) which clearly define what it means by Judiciary. Article 126(1) provides as follows: Article 126. (1) The Judiciary shall consist of - (a) the Superior Courts of Judicature comprising - (i) the Supreme Court; (ii) the Court of Appeal; and (iii) the High Court and Regional Tribunals. (b) such lower courts or tribunals as Parliament may by law establish. From Article 125(3) and 126(1) therefore, Judicial Power are vested in the supreme Court, the Court of Appeal, the High Court, and such lower Courts established by Law. Some of these lower Courts have been established by the Courts Act, 1993 (Act 459) and they include the Regional Tribunals, the Circuit Court, and the District Magistrate Courts. In effect the above Courts and tribunals for now, are the only institutions with authority to exercise judicial authority. This means that, they alone can preside over Cases and pass judgment; interpret statutes, pronounce on statutory breaches, and pronounce guilt or otherwise on a person. The express exclusion of Committees of inquiry from the Judiciary as defined by article 126, clearly demonstrates that such Committees do not have judicial authority unless otherwise expressly provided in the Constitution.

15 But does any provision of the Constitution other than Article 126 confer on the CJ s Committee, either directly or by necessary implication, the authority to exercise judicial power? To answer this question, we would look at the provision on the CJ s Committee in particular, and the provisions on Commissions of inquiry generally. Article 146(4) of the Constitution is the source of the CJ s Committee. The primary mandate of the Committee under that provision is to investigate Complaints in petitions presented for the removal of Superior Court Judges and recommend to the Chief Justice. the controlling words in the Committee s enabling provisions are investigate and recommend. Article 146 (4) provides as follows: Article 146. (4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee consisting of three Justices of the Superior Courts or Chairmen of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are not members of the Council of State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on the advice of the Council of State (5) The committee appointed under clause (4) of this article shall investigate the complaint and shall make its recommendations to the Chief Justice who shall forward it to the President. It is evident that the mandate or authority of the Committee is limited to investigation and recommending. The term investigate, as defined by the Oxford Dictionary is to: carry out a systematic or formal inquiry to discover and examine the facts [my emphasis] of (an incident, allegation etc.) so as to establish the truth. The Cambridge dictionary also defines investigate as: to examine something carefully, especially to discover the truth about it. From the definitions above, there is no doubt that the term investigate refers to fact finding and establishment of truth, which does not involve or connotes the exercise of Judicial Authority in any manner. The meaning of the term investigate would be dealt with later in the context of Judicial authorities. Accordingly, the mandate of the CJ s Committee under Article 146 (1) is purely that of fact finding and has nothing to do with interpretation of Law, pronouncement of statutory breaches, and issuing verdicts of guilt on persons appearing before it. That is exclusively the preserve of the Courts and tribunals established under the Law.

16 I therefore come to the only Conclusion that, Article 146 (5) of the Constitution does not confer judicial authority on the CJ s Committee. But it can also be said that the EC s Committee is a committee of inquiry, and a Committee of inquiry by Article 295(1) of our Constitution is the same as a commission of inquiry. Article 295 provides thus: Article 295. (1) In this Constitution, unless the context otherwise requires- "commission of inquiry" includes a committee of inquiry. To attain a more comprehensive understanding of the authority of the CJ s Committee therefore, we might want to go beyond Article 146 to look at the general powers of Commissions of inquiry under Chapter twenty-three of the Constitution, specifically Articles 279. Article 279 provides as follows: Article 279. (1) A commission of inquiry shall have the powers, rights and privileges of the High Court or a Justice of the High Court at a trial, in respect of - (a) enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise; (b) compelling the production of documents; and (c) the issuance of a commission or request to examine witnesses abroad. The issue here is whether or not Article 279(1) if Applicable to the CJ s Committee (and I have not been able to convince myself why it should not) confers on it Judicial Authority. Again, I answer this issue in the negative. This provision does not at all confer Judicial Power. It only allows Commissions of inquiry to adopt some fact-finding procedures of the High Court. it confers on a Commission of inquiry powers, rights and privileges of the High Court only in respect of limited activities which, in themselves, do not amount to exercise of judicial authority as defined above. The limited activities are: enforcing the attendance of witnesses and examining them on oath, affirmation or otherwise; compelling the production of documents; and issuing commission or request to examine witnesses abroad. These are methods and procedures for investigating facts and establishing truth, which are relevant to any fact-finding mission. The rights, privileges, and powers conferred on a commission of inquiry to adopt such procedures therefore does not amount to conferment of Judicial authority on such Commissions. With this, I also come to the conclusion that

17 Article 279 does not confer Judicial Authority on Commissions of inquiries and by extension the CJ s Committee. It must however be noted that the issue of whether or not Commissions of inquiry should exercise Judicial Authority is not a novelty in our Jurisprudence. Attempts have been made and carried out by Commissions of inquiry to usurp Judicial Authority in the past, and our apex Courts have overturn purported judicial decisions of such Commissions of inquiry and condemn all usurpation attempts in no uncertain terms. For instance, in 1968, there was in force the Corrupt Practices (prevention) Act, 1964 (Act 230). Under this Act, a Commission of inquiry was established and Chaired by the erudite Justice Ollenu of blessed memory, who was then a justice of the High Court. Like any other Commission of inquiry, the mandate of the Ollennu s Commission was to investigate allegations of Corrupt practices and report to the then National Liberation Council. Section 5 (2) of Act 230 provided as follows: 5. (2) Notwithstanding the provisions of section 1 of the Criminal Procedure Code 1960 (Act 30), the findings of the Commission shall be prima facie evidence of the facts found, and the accused shall be called upon to show cause why he should not be sentenced according to law for the commission of the offence charged. In Akainyah and another v. the republic (supra) the Court of Appeal gave a definition of Judicial Power and went ahead to determine whether or not the corrupt practices (prevention) Act conferred Judicial Power on justice Ollennu s Commission of inquiry; and whether or not the Act contravened article 41 of the 1960 Constitution (the equivalent of article 126(1) of the 1992 constitution) if it did. In that case, as a result of adverse findings made against the Appellants by the Ollennu Commission appointed under the Corrupt Practices (Prevention) Act, the two appellants were prosecuted on various counts. Availing himself of the power conferred on him by subsection (1) of section 4 of the Act, the Attorney-General preferred charges against the appellants in the High Courtt on the basis of the findings made against them by the Commission. the learned judge proceeded to convict each appellant of the counts on which they were charged, and imposed on them various terms of imprisonment. The Appellants therefore appealed to the Court to Appeal and, among others, raised the following grounds: that: (a) By article 41 of the Constitution, 1960, the judicial power of the State was conferred on the courts. Therefore nobody [p.553] other than a court may exercise judicial power without infringing the Constitution. (b) Any legislation which purports to confer judicial power on a body other than a court must be unconstitutional unless the legislation is a proper amendment of article 41.

18 (c) Act 230 was not an amendment of article 41 because article 41 was an entrenched proviso and amendment of it must conform to the protective provision of article 20 which the passage of the Act did not follow. (d) Yet the Act conferred judicial power or at least part of it on a non-judicial body, namely, the commission, the commission as such, was not a court. The Court of Appeal, per APALOO, LASSEY AND AMISSAH JJ.A. after considering various judicial definitions given to the term judicial power by the American and Australian courts held as follows: The construction which the Australian, American and English courts put on the words "judicial power" is not binding on us but it provides us with useful guidance being a consensus of the views of the highest tribunals of these common law countries on the meaning of "judicial power." Having given the matter the best consideration we can, we think that view of the matter is right, and we propose to construe that term in our own Constitution in the same sense. On that basis, it seems to us manifest that neither the whole nor indeed any part of the "judicial power" of this country was conferred on a commission by the Act in question. [my emphasis] As it appears to us, all that a commission appointed under section 1 of the Act is empowered to do is to inquire into the truth of allegations of corruption and thereafter to submit a report in a manner required by section 3 of the Act. Although it may make adverse findings against any person, not only is that finding not binding on that person but the commission is without power to enforce its decisions. No liability to suffer any penalty attaches to any person against whom the commissioner makes adverse findings until the Attorney-General, in exercise of the power conferred on him by section 4 of the Act, invokes the judicial power of the courts and procures a conviction. We are not of course unmindful of the fact that the commissioner conceived himself as conducting "a trial of specific accusations of corruption" and he put this as his view in paragraph 7 of the report, exhibit A. We are unable to subscribe to this view. If the commissioner was conducting a criminal trial into specific accusations of corruption, then his must be a peculiarly impotent tribunal. Indeed, it must be an odd court which can adjudge guilt but is entirely powerless to impose punishment of any sort. The truth of the matter, as it seems to us, is that a commission appointed under section 1 of the Act not being a court, is wholly bereft of judicial power. From the above decision the Court of Appeal came to the conclusion that the corrupt practices Act, 1964, Act 230 did not contravene, or was not inconsistent with Article 41 of the 1960 Constitution because the Act did not confer judicial power on the Ollennu s Commission. This can be interpreted to mean that the highest Court would have voided Act 230 if they had concluded that it conferred judicial Power on the Commission.

19 The terms of section 5(2) as captured above gave justice Ollennu the impression that his Commission had Judicial Authority akin to that of the High Court, so, again, in 1968, allegation of Corrupt practices and irregularities were made to the Ollennu s Commission against one Mr. Asafo-Adjei. With the impression that he wields judicial authority, the learned Justice Ollennu stated in his report as follows: A finding which the Commission makes against any person is equivalent to a verdict of 'guilty' returned by a jury, or of a Court of summary trial or at trial with assessors. In determining the scope of the inquiry under Act 230, the commissioner considered his functions under the Act as being divided into two processes which he enumerated as: (i) (ii) an inquiry into general allegations, and trial of specific accusations of corruption made against individual persons. Based on the Commission s Report, the Attorney-General preferred charges against Mr. Asarfo-Adjei, in accordance with the provisions of section 5 (2) of Act 230. Mr. Asarfo-Adjei was brought before the High Court, Accra, to show cause why he should not be sentenced according to law for the commission of the offences charged. The High Court, acquitted and discharged the Accused person and the Attorney-General Appealed to the Court of Appeal. It must be noted that in 1968, the Court of Appeal was the highest Court of the Land just as today s Supreme Court. The Court of Appeal in the Republic V. Asafu-Adjaye (No. 2) [1968] GLR allowed the Appeal, but in commenting on the position taken by Justice Ollennu as to his jurisdiction as the Chairman of the Commission of inquiry, took pain to clarify for the second time that a Commission of inquiry was just a fact-finding body and therefore wields no judicial Power. They sated as follows: With respect to the learned commissioner, we do not think that there was any need for him to tie himself down to such a rigorous partition of his labours. In our view, the inquiry is from first to last a fact-finding inquiry. The fact that a finding of his may ground a criminal conviction is only a peculiar characteristic of the Act which in his own words "was intended to meet extraordinary situations" and it is no ground for treating the inquiry at any stage as a criminal trial properly so called; indeed the very nature of the inquiry does not admit of such a treatment, for no one is ever prosecuted at such an inquiry, that is there is no prosecutor or a defendant; all who appear at the commission do so as witnesses who are themselves free to call any other witnesses whom they may examine and cross-examine in a manner not ordinarily permissible at a criminal trial. The above decisions clearly show that the Highest Court of our land has already defined the powers of Committees or Commissions of inquiry and bereft them of any Judicial Power. therefore, the CJ s Committee in the case of Madam Charlotte Osei in interpreting Statutes; determining violations of such statutes; and passing judgment from which serious