Have We Reaped the Whirlwind?

The Speaker Muse Arena
Dear Kwame Okotobrigya,

We Truly Have a History

I loved every bit of your piece including your insights into history. The interference by Kwame Nkrumah in dismissing the Chief Justice (CJ) without reason and appointing a replacement perceived to be aimed at overturning a judgement to have his opponents convicted, is undoubtedly a harrowing part of our history.

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It reminds me of the perception of President’s Kuffour’s move to appoint Justice Afreh unto the Supreme Court to overturn a ruling in favour of Tsatsu Tsikata in the Fast Track Court constitutionality case. President Kuffour was successful, his perceived hired assassin duly delivered, and the victory Tsatsu thought he had nailed was overturned. Some argue that the CJ’s hands were tied because there weren’t enough justices of the Supreme Court for a review to be considered. But one may ask, did Justice E.K Wiredu (CJ appointed by President Kuffour) have to empanel the court with nine (9) out of the ten judges of the time when he was aware of the possibility of a review process which would require two additional judges? Why did he not empanel the court with seven (7) judges with three (3) to spare for the possibility of a review?

It was bizarre and fed into public perception that J.A. Kufour was hell bent on incarcerating Tsatsu Tsikata, an ally of his predecessor, JJ Rawlings. Needless to say, there was no love lost between them. Whether true or false, just like Nkrumah, the processes were legal. When one looks back, one can’t help but agree with you that our country truly has a history.

The Answer

I do not seek to be politically correct; I seek to be true to our reality. You asked the question “Have we reaped the whirlwind?” I am sad to answer, “we have reaped the whirlwind”. And are growing it into a tsunami, tornado and earthquake all-in-one”. I dare say, it will be Covid 2.0. Get ready to stay indoors!

Na Who Cause am?

You are right when you say that today’s CJ, our Lady Gertrude, is perceived by some elements of yesterday’s opposition as an ally of the NPP. In my opinion, it is a mild representation of the facts. I believe most Ghanaians share in this belief and for which reason it is no wonder that only 13% of Ghanaians absolutely trust our Judiciary (Afrobarometer -2024) with 52% of Ghanaians supporting her removal despite no knowledge of impropriety (Global InfoAnalytics-2025).

On reflection, I can’t help but admit that she called it onto herself. First, the perception of her incestuous relationship with the Executive was widespread and for which reason she had a need to dispel the perception of biases by the balance of her speak and deeds. Unfortunately, to my utter shock, she raced to feed the perception by her handling of the Afenyo vs the Speaker of Parliament case. She empanelled the court at supersonic speed and Sua Ponte subverted settled legal principles by granting an ex parte application pending the final determination of the case. It is instructive to note that the applicants initially prayed for a ten-day interim order in conformity with standard practice, but the court unilaterally converted same into a stay of execution pending the final determination of the case. It did not help that she led the panel to maintain this position when the Speaker through counsel sought to set same aside. Indeed, it is settled law (I am educated) that an ex parte application cannot be granted pending the final determination of the case. In granting that order, the court was acting contrary to its history and past rulings. To many political observers and constitutional scholars, the CJ had become a political wind vane.

The good book she so loves to cite tells us in 1 Corinthians 10:23 that all things may be permissible, but not all things are beneficial or constructive. In other words, not all you do as a matter of right may be wise or right.

What was the value in leading the court to sidestep settled legal procedure and practice and thereby validating and entrenching public perceptions of her unholy alliance with the ruling executive of the time? I see none. If she had kept to the settled conventions, no harm would have accrued to her perceived favoured party, and no one will question the purity of her actions. Did you see the bullying Thaddeus was subjected to in the full glare of the public during the hearing? Did you hear her rant making false claims that the case was the reason for Parliament not being able to sit? I am happy Thaddeus humbly schooled her. She undisputedly and needlessly showed her hand.

You look at her mannerism at the mention of H.E. John Mahama and you wonder, what amount of dislike she has towards him to make such a public display of her condescension? Dislike so deep that an occupant of the office of the CJ cannot keep her composure? Out of respect I shall not attempt to describe that look and cringe. After all, it’s already public. Such disrespect and condescending conduct are intolerable for that high office. For god’s sake what did she expect? Confidence and love from the current government?

Political Agenda?

Of the eight Chief Justices appointed under the 1992 constitution, the NDC inherited one from the PNDC era and appointed one as a government. Its last appointed CJ, Isaac Abban JSC, retired 3 months into the NPP’s first government of H.E. J.A Kufour. All other six CJs were appointed by the NPP. In this period the NDC won two elections and successfully, worked with these NPP appointed CJs without the drama of promoting any attempt to remove the CJ. I do not hold the opinion that the NDC has a default penchant of ousting CJs they did not appoint. The evidence vindicates them.

The first politically motivated use of Article 146 to remove officers of our independent constitutional bodies was under the Akufo-Addo government (NPP) in respect of Charlotte Osei. The previous use of Article 146 in the case of Lauretta Lamptey and others before can in no way be said to be politically motivated.

I was present in various conversations with many NPP bigwigs prior and post the inauguration of Nana Akufo Addo in which many argued that the Electoral Commissioner (EC), Charlotte Osei, had to be removed by hook or crook. The passion and anger were deep. I did agree that some of her posturing as EC was dismissive and left much to be desired but could not justify the desperate need to oust her after delivering an election that gave the NPP its biggest win. In fact, the 2016 election had a public approval of 87% according to the Afrobarometer report. I cautioned that we will be setting a very bad precedence and shattering the holy grail, but as is customary of most of my politician friends, they said, I don’t understand politics. I agree I may not understand politics, but I respect my policy depth. Prior to Charlotte’s removal, many senior The Future

I see a bleak and dark future if we do not revise our constitution. We cannot nurture nationhood by making heads of our independent constitutional bodies coterminous with the tenor of political governments. So, after every change in Government, we change the EC and the CJ? That will be our end. Justice will be determined by our party colouration and our elections will not be trusted. Ghana will go up in flames. Forget it. It is not an option.

Our problems are rooted in the unmeritocratic and non-consensual nature of appointment and removal. If we (ruling governments, opposition and citizens) could all share in the decision of who becomes CJ, EC or heads of our independent constitutional bodies, we will have less acrimony and find joint ownership of the decisions.

A Way Forward for Us

Depoliticise the Judiciary

To entrench the independence of the Judiciary from the Executive, the authority to appoint members of the judiciary from the lower courts to the appeals court must be made the exclusive preserve of the Judicial Council, which should be required to adopt an open and public evaluation process. Nominations to the supreme court, and for the Chief Justice should equally emanate from the Judicial Council but be subject to the approval of two-thirds of the members of Parliament. I believe this will force consensus and make both the majority and minority in parliament co-own confidence in the Judiciary. It will also disincentivize potential political activism from the bench, a situation that erodes confidence in the judiciary and the very core of our values- freedom and justice. I will recommend that the Judicial Council be reconstituted to, in addition to the president’s and institutional nominees, include nominees also from the opposition. The independent and professional institutions must, however, dominate the council and must not be subject to the direct or indirect influence of the Executive. There must be a Fit and Proper criteria for nominees who serve on the Council.

Depoliticise our governance and democratic institutions

These institutions comprising NCCE, CHRAJ, the National Media Commission and especially the Electoral Commission, among others, are core to the sustenance of our democracy. I recommend a more consensual process that shall have the President still nominate commissioners for the approval of parliament by a two-thirds majority. I also believe our constitution should place a demand on the Presidency to adopt an open and public process requiring a recruitment process that includes interested persons to apply for the respective roles with public interviews. The demand for a two-thirds majority shall significantly ensure a process owned by the key political parties and shall minimise potential partisan activism from aspiring commissioners. These proposals serve as a basis for reshaping removal processes.

My Closing

The holy grail is shuttered, and the future is bleak; we cannot continue to do things the same way and expect a better outcome. We need a more consensual, politically inclusive and relatively meritocratic model for appointing and removing our Chief Justices and heads of our independent constitutional bodies. Our best shot is to have a framework that will make the opposition comfortable. For every ruling government will someday become an opposition.

Signed

Senyo K. Hosi
Minority Leader of the Muse Arena
PS: When we fail to be true to our reality, our reality becomes an absurdity.
Senyo Kwasi Hosi