Hot Source..In Adjei Twum v Attorney General and Akwetey
Seasoned legal practitioner, David Annan, has launched a scathing critique of the Supreme Court’s interpretation of Article 146 of the 1992 Constitution, particularly in the landmark case of Adjei Twum v Attorney General and Akwetey [2005-2006] SCGLR 732.
Annan argues that, the ruling represents a clear instance of judicial overreach, effectively amending entrenched constitutional provisions through legal reasoning rather than the formal amendment process.
In a detailed legal article sent to The Herald, Annan contends that Article 146, unambiguously outlines the procedure for the impeachment of Superior Court judges, leaving no room for alternative interpretations.
He asserts that the decision in Adjei Twum v AG and Akwetey, wrongly introduced the requirement of a prima facie case determination before the removal of a Chief Justice, a requirement that is explicitly stated for other justices but deliberately excluded in Article 146(6).
Annan highlights key constitutional provisions to support his position:
· Article 146(1): A justice of the Superior Court or Chairman of a Regional Tribunal may only be removed for stated misbehaviour, incompetence, or an inability to perform duties due to infirmity.
· Article 146(2): Such a removal must follow the procedure specified in the article.
· Article 146(3): If a petition is submitted for the removal of a justice of the Superior Court, except the Chief Justice, the President must refer it to the Chief Justice for a prima facie case determination.
· Article 146(6): If the petition concerns the removal of the Chief Justice, the President, in consultation with the Council of State, must appoint a committee to investigate the case.
Annan questions the Supreme Court’s justification for its decision, arguing that the language of Article 146(6) is clear and requires no further interpretation. He cites established legal principles that mandate adherence to the literal meaning of statutory provisions unless ambiguity exists. He references Attorney General v Mutual Tontine Westminster Chambers Association Ltd (1876) 1 Ex. D. 469, where Jessel MR held that if statutory language is clear and unequivocal, it must be enforced as written.
The legal practitioner, further criticises the Court’s reliance on the purposive approach to interpretation, which led to the conclusion that a prima facie determination was implied in Article 146(6).
Annan insists that such an approach is not warranted when the text is explicit and that the Supreme Court effectively rewrote the Constitution without the necessary constitutional amendment process.
He argues that by reading a prima facie requirement into Article 146(6), the Supreme Court not only expanded the President’s role in impeachment proceedings but also unconstitutionally involved the Council of State in evaluating the merits of a petition. He emphasises that Article 146(6) explicitly excludes Members of Parliament, lawyers, and Council of State members from serving on the committee that investigates a Chief Justice’s removal, yet the ruling allows the Council of State to assess a prima facie case.
The critique also raises concerns about the precedent set by the ruling, warning that it opens the door for further judicial activism. Annan underscores that the Constitution is the supreme law of Ghana, and any amendments must follow the rigorous process outlined in Article 290, which requires a national referendum. By adding words to Article 146(6), he asserts that the Supreme Court effectively amended an entrenched provision without following the constitutional procedure.
Annan, in conclusion, challenges the legal fraternity and policymakers to revisit the Supreme Court’s decision in Adjei Twum v AG and Akwetey, cautioning against judicial overreach that alters the fundamental structure of constitutional governance. He calls for strict adherence to constitutional text and warns that deviating from the literal interpretation of the law threatens the integrity of Ghana’s legal framework.
Below is the article by David Annan
The removal or impeachment of Superior Court judges is stated in Article 146 of the 1992 Constitution. There is nothing in the language of the entire article that warrants special or extraordinary interpretation.
Article 146(1) states that a justice of the superior court or the Chairman of the Regional Tribunal shall not be removed from office except for stated misbehaviour or incompetence or on the grounds of inability to perform the functions of their office arising from infirmity of body or mind.
Article 146(2), a justice of the Superior Court of Judicature or a Chairman of a Regional Tribunal may only be removed in accordance with the procedure specified in this article.
Article 146 (3) if the President receives a petition for the removal of a Justice of a Superior Court OTHER THAN THE CHIEF JUSTICE [caps mine] or for the removal of a Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice who shall determine if there is a Prima Facie case.
Article 146 (6) Where the petition is for the removal of the Chief Justice, the President shall, acting in consultation with the Council of State, appoint a committee consisting of two justices of the Supreme Court, one of whom shall be appointed chairman by the President, and three other persons who are not members of the Council of State, nor Members of Parliament nor Lawyers.
What is so ambiguous or obscure or opaque about the words I have cited above demands any other rule of interpretation than the first basic rule, which is the Literal meaning.
In ATTORNEY GENERAL V MUTUAL TONTINE WESTMINSTER CHAMBERS ASSOCIATION LTD (1876) 1 Ex. D. 469 per Jessel M R, it was stated that “ If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary natural meaning of the words and sentences”.
That is “ to intend the legislature to have meant what they have actually expressed” per PARKE J in R V BANBURY (Inhabitants)(1834) 1 A&E 136 granted that the Courts so as to justify the use of interpretation have hypocritically stated The object of all interpretation is to discover the intention of Parliament “ but the intention of Parliament must be deduced from the language used” per Lord Parker C J in CAPPER V BALDWIN [1965] 2 Q B 53.
Again the unbending unyielding position of the Law is that “ Where by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be” SEE MAGOR and ST MELLONS R D C V NEWPORT CORPORATION [ 1952]. A C 189.
Again the interpretation of a statute is …”not to be collected from any notions which may be entertained by the court as to what is just and expedient” per COLERIDGE J in GWYNNE V BURNELL (1840) 7 CL & F 572.
Can I say that the juice from a kitchen-pressed orange sold to a customer is a manufactured beverage using the principles of Secondary Meaning or the Necessarily Implied Construction or even the so-called Power of Rectification that was used in ADJEI TWUM V AG and AKWETEY [2005-2006] SCGLR P 732?
Going by the old Approaches to interpretation, the Mischief Rule and the Golden Rule, it becomes a slippery slope to perdition and confusion when these approaches are carelessly used.
The Mischief rule emanates from HEYDONS CASE in 1584, where it was resolved that “ for the sure and true interpretation of all Statutes in general 4 things were to be decided
1st, what was the Common law before the making of the Act
2nd What was the mischief and defect for which the Common Law did not provide
3rd, what remedy has Parliament resolved and appointed to cure the disease of the Commonwealth
4th the true reason of the remedy and then the office of all judges is always to make such construction as shall suppress the mischief and advance the remedy…”
So prostitutes who were standing on their balconies or windows attracting the attention of passersby were deemed to be “soliciting in a street” within Section 1(1) of the Street Offences Act 1959 in Britain.
This is the extent to which the Judiciary has gone to justify bending words to achieve a decision, and it gets worse with the Golden Rule Approach.
“ It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified to avoid such inconvenience but no further per Parke B in BECKE V SMITH (1816) 2 M & W 191
See how the Courts have been expanding their jurisdiction to depart from the common-sense approach of the Ordinary Meaning Rule in determining absurdity, repugnance, and mischief in the words of the statute, thereby allowing for whatever interpretation they wish to be the flavour of the month.
What is more absurd than determining that a person standing on her balcony is actually standing in a street?
With regard to ARTICLE 146 (6) OF THE 1992 Constitution, what is more translucent and transparent than the words within that clause? Where in that clause does it state that the Chief Justice must be given a copy of the Petition before the relevant committee is established?
Where in that clause do the words’ prima facie case’ subsist? Why are the opposition and its acolytes fervently pushing the prima facie argument? What does it even mean? The Oxford Dictionary of Law defines ‘prima facie’ as originating from the Latin’ prima facies, ‘meaning at first appearance. ‘
A prima facie case is defined by the Oxford Dictionary of Law as meaning “a case that has been supported by sufficient evidence, which is taken as proved unless there is evidence to the contrary.” ”
It is actually a function of Criminal Law where the establishment of a Prima Facie Case is one that will require the accused to open his defence or the case for the Prosecution will be taken to be proved or “ a prosecution case that is strong enough to require the defendant to answer it”
But for all the hullaballoo about the need for a prima facie case to be established against the C J our local statute, the EVIDENCE ACT 1975 ACT323 section 19 states that
“An enactment providing that a fact or group of fact is prima facie evidence of another fact creates a rebuttable presumption” and
“a rebuttable presumption imposes upon the party against whom it operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact.”
Therefore, even if the sacred prima facie case is accepted by the President and the Council of State as a precondition [which it is not] for an Article 146 (6) Petition referral, it is not an escape hatch for the respondent. It merely worsens his plight, as once so found, a defence will have to be proffered; otherwise, the grounds of the petition will be deemed automatically proved.
So why is a criminal standard of proof being referred to in a civil matter of impeachment?
Because Article 146(3) states so, with reference to Superior Court Judges other than the Chief Justice.
And because it was so decided in ADJEI TWUM V AG and AKWETEY [2005-2006] SCGLR P 732.
This is the case that the opposition and a few others have held up as the Holy Grail to defeat any attempt to impeach the Chief Justice when it never said so.
To be clear, in my humble view. ADJEI TWUM V AG and AKWETEY [2005-2006] SCGLR P 732 was wrongly decided and is a prime example of Judicial Activism of Judicial Overreach and Judicial Militancy.
This case is very interesting and it is the reason why I detailed the aspects of Interpretation above for the layman to follow why I say it is a classic example of Judicial Activism. It was not even the concern of Adjei Twum, since 1993 when the Constitution came into effect. until 2006 when the Esteemed Mr BRIGHT AKWETEY Esq sent a petition dated 15/1 2006 to President Kufour on 16th January 2006 seeking the removal of Chief Justice George Kingsley Acquah on the grounds of Judicial Misconduct and Abuse of Power and copied the Chief Justice, the Ghana Bar Association, the Attorney General and the Judicial Secretary.
The plaintiff suddenly emerged from obscurity seeking inter alia among six reliefs “ that Article 146(6) of the Constitution should be construed concurrently with Article 146 (3) and (4), which required the establishment of a prima facie case prior to the setting up of a committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice was first and foremost a Justice of the Superior Court.”
Adjei Twum, who was represented by Messrs Kofi Asante and Nana Asante Bediatuo, also sought “that by virtue of such construction, the consultation of the President with the Council of State in respect of a committee to inquire into a Petition for the removal of the Chief Justice should first determine whether the said petition had disclosed a prima facie case before the committee was appointed.”
In stating the various rules of construction above, I left out the current rage among the latter day Jurists, which is the Modern Purposive Approach to interpretation, which demands that when construing a Document or Statute, the purpose of the maker of the document or the intent and purpose for which the Statute was made in the context, should be the reason for arriving at any interpretation of words and phrases and the tools to deconstruct this purpose and intention are the Basic Rules.
These rules are the Ordinary Meaning Rule, the Secondary Meaning Rule, the Necessarily Implied Construction Rule and the Power of Rectification, so stated in order of radicalism and noncompliance with the Ordinary Meaning Rule.
Apart from the first basic rule, the rest require some level of Absurdity or Ambiguity and Context if the first basic rule is not applied. The Ordinary Meaning in the context or the Literal Meaning must, therefore, be departed from to cure the mischief the plaintiff or defendant has identified.
The Supreme Court granted the relief that “that Article 146(6) of the Constitution should be construed concurrently with Article 146 (3) and (4), which required the establishment of a prima facie case before the setting up of a committee to investigate complaints in a petition against a Justice of the Superior Court because the Chief Justice was first and foremost a Justice of the Superior Court.”
Because the Supreme Court held that “the purposive approach to interpretation of the 1992 Constitution required that in the context of the instant case, implicit words be read into the Constitution to avert a manifest absurdity. Thus, there was room for the unwritten in a written Constitution…Thus, a comparative examination of the relevant provisions dealing with the petitions for the removal of other Superior Court Justices in articles 146(3) and 146 (4) would reveal an omission in the plain language of article 146(6) … which could not have been intended by the framers of the Constitution. The omission to provide for a prior determination of a prima facie case would lead to a manifest absurdity which the court had the power to avert. In effect, there was a logical gap, an inadvertent mistake in article 146(6), which the court should correct by interpretation… The authority of the courts to imply such an implicit provision through purposive interpretation was not a licence for judges to rewrite the Constitution…
“ The courts would, therefore, declare that upon a proper purposive construction of the whole of Article 146 (6) in the context of the 1992 Constitution viewed in its entirety, the Chief Justice must be given the benefit of a prior determination whether a prima facie case had been established against him before the President might lawfully establish a committee to consider a petition for his removal.”
This is the rationale for the hue and cry about President Mahama having to wait for a determination of the prima facie case in the three petitions to remove the current Chief Justice because the Chief Justice was first and foremost a Justice of the Superior Court” before any subsequent committee was set up ie The Agyei Twum case. But I respectfully believe that the case was wrongly decided.
First, there was no basis for the Supreme Court to abandon the Literal Approach or the Ordinary Meaning Rule [which I have explained above] because the language in Articles 146(3) (4) and (6) is plain and unambiguous, requiring no special interpretation to understand.
Secondly, the defect in the Supreme Court’s justification for departing from the first basic rule [even within the Purposive Approach], by finding an omission in Article 146 (6) is the fact that Article 146(3) contains the deliberate inclusion of the words “other than the Chief Justice which means the words in Article 146(3) and (4) are to relate to only Superior Court Judges OTHER THAN THE Chief Justice.
Where the framers of the Constitution and the Constituent Assembly, and subsequently the People of Ghana, have by design excluded the Chief Justice from the application of a clause by express words, that is the only Intention and Purpose of the makers of the Document or Statute. How, then, can the Supreme Court, in the face of such naked intent, declare an omission in Article 146(6) [ because of Article 146 (3)] when Article 146 (3) is not supposed to apply to it?
Thirdly the provisions of Article 146(3) dictate that it is the Chief Justice who determines if a prima facie case has been established in the case of a petition for the removal of a Superior Court Judge. So if there is an omission in Article 146(6) so that Article 146 (3) must be applied, is the same Chief Justice the one to sit on her own case and decide the prima facie case ?
Because that is what Article 146 (3) requires.
That is the real absurdity in applying Article 146(3) to Article 146(6), so to avoid this clear incongruous interpretation, the Supreme Court then inserted a completely new state of facts in to the 1992 Constitution, drafted a new situation and course of action by reading into Article 146 (6) that;
“ The question of the prior prima facie determination and the subsequent appointment of the committee were to be made by the President in consultation with the Council of State.”
The problem with this is not so much the insertion of the President in to the scheme of influencing the outcome of the petition if he so , he already picks the Committee that will make the final determination but the role of the Council of State in determining the prima facie case.
The problem is because Article 146 (6) in mandatory language states that the composition of the Committee should not include Members of Parliament, Lawyers or Members of the Council of State [so if the council of State is not to partake in assessing the merits of a petition] how can they evaluate a petition to determine if a prima facie case exists given the definition of a prima facie case stated above as” “A Case that has been supported by sufficient evidence for it to be taken as proved should there be no evidence to the contrary. ”
The Council of State can hardly evaluate a petition to decide if there is a prima facie case without examining the grounds and weight of it, thereby assessing the merits by default, which they are not authorized to do because that is the work of the Presidential Committee, which they are not part of.
Fourth, the Council of State’s only previous function with regard to the removal of the Chief Justice was to advise on the establishment of the Committee to decide the merits of the petition; however, now, thanks to ADJEI TWUM V AG and AKWETEY [2005-2006], SCGLR P 732. They must be consulted on the evaluation of the Prima Facie case
Finally, it is worth noting that the Attorney General in 2006 did not appear at the Supreme Court, nor was any representation for him present in the ADJEI TWUM V AG and AKWETEY case. Therefore, Mr. Bright Akwetey had to shoulder the burden alone but fought valiantly.
The gravity of the act by the Supreme Court in using both the two most radical rules of interpretation simultaneously, the NECESSARILY IMPLIED CONSTRUCTION RULE and THE POWER OF RECTIFICATION, is not only to ignore the sanctity of Constitutional provisions because the Constitution is the fundamental law that gives the Presidency the Legislature and even the Supreme Court their Powers and Function so must not be tampered with at all which fact is acknowledged by Justice Date Bah in his lead judgment, BUT to ignore the fact that Article 146 as a whole, the entire Article 146 is an ENTRENCHED PROVISION which means to amend it you need a referendum with forty per cent of the electorate voting and seventy-five per cent of the forty per cent voting to approve the amendment.
By reading in words and by adding words to Article 146 (6) as to a prima facie case being required using the NECESSARILY IMPLIED CONSTRUCTION RULE and THE POWER OF RECTIFICATION, the Supreme Court amended the Constitution, altering the original wording and construction in breach of Article 290 (2),(3) (4) (5) and (6) which respectfully is unconstitutional.
But hey, who is really complaining? After all, ADJEI TWUM V AG and AKWETEY [2005-2006] SCGLR P 732 have increased the role of the President and given him the power to determine the prima facie case with the Council of State only as a consultant, a power he did not have before.
DAVID ANNAN
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