I have seen the Article written by the learned lawyer Sampson Lardi Ayenini espousing on the requirement of the President to make a prima facie determination of a petition brought before him under Article 146 for the removal a Chief Justice from office.
In that piece Sampson asserts that determination of prima facie case is a precondition for the President to forward any petition for the removal of the Chief Justice to the 5 member committee as emphasized by the Supreme Court in the Bright Akwettey case.
Here is my opinion.
First of the argument of a prima facie determination as a pre-condition for forwarding a petition is NOT grounded in law.
The Constitution under Article 146(6-10) clearly provides for the procedures petitions for the Removal of a CJ must go through and none of those processes includes a prima facie determination by the President.
The Supreme Court making a ruling in this respect do not also annul or amend the constitutional provision.
The constitution provides clearly how laws are amended.
The Supreme Court again do not also invent new laws, that is the work of Parliament.
The Supreme Court’s job is to interpret laws and even though Supreme Court rulings are also laws; mostly referred to as case laws, the Constitution again provides under Article 1(2) that… any other law found to be inconsistent with any provision of the constitution to the extent of inconsistency be void.
So as far as the Supreme Court ruling in the Bright Akwettey case was inconsistent with the explicit provisions of Article 146(6), then its void.
Again Comparing Article 146(6) to 146(3) there can be no ambiguity nor confusion on what the framers of the constitution intended to put across.
For instance in the case 146(3) for the removal of a Superior Court judge, it says when the President receives such petitions, it shall refer it to the Chief Justice who will determine whether there is a prima facie case before the committee is activated.
How can the framers of the constitution mention an establishment of a prima facie case by Chief Justice for the removal of a Superior Court judge but will omitted the establishment of a prima facie case by the President in the case of the Chief Justice and we say still that should happen?
Indeed if there is any prima facie case to ascertained as a Precondition for the process of removal of a CJ, then looking at the wording of Article 146(3) and taking a cue from it, then it should be determined by the 5 member panel and not the President.
So the argument of prima facie determination for me is moot in this regard, once the President says the processes has begun, what we understand per the provisions Article 146(6) is that the President in consultation with Council of State has referred the matter to the 5 member committee to commence investigations and as such all other processes pertaining to clause 10 of Article 146 must also kick into effect.
Executive Director, ASEPA