By Richard Dela Sky
I. The Constitutional Crisis Before Us
Respectfully,
I have read with deep concern the views of those who – in this Court of Public Opinion – support what they call the lawful removal of Chief Justice Gertrude Araba Sackey Torkonoo from office. With profound respect for my colleagues, I cannot agree. Justice itself has suffered unfathomable violence, and a swift, just and fearless remedy is required.
On 1st September 2025, Ghana witnessed a constitutional tragedy—the purported impeachment of our Chief Justice through procedures that, whilst clothed in legal apparel, strike at the very heart of our democratic order. This is no ordinary case. We are confronted here with the removal of the most senior judicial officer in our land, the guardian of our courts, the sentinel of justice herself.
The Constitution of Ghana 1992 (hereinafter the Constitution) is not a weathervane, bending with every political breeze. It is our North Star—fixed, immutable, guiding us through storms of partisan passion. When we permit expedience to trump constitutional form, when we allow urgent trifles to override fundamental principle, we decimate not merely legal doctrine but the very idea of constitutional government.
I dissent because the path taken leads not to justice, but to a dangerous precedent that may one day consume the independence of every judge in this Republic. This dissent does not deal with the Article 146 matters that preceded 1st September 2025, the day Executive fiat decapitated Ghana’s Judiciary. I have expressed my humble views on some of those matters in an earlier opinion.
II. The Facts in Proper Light and Issues for Determination
The chronology is undisputed. President John Dramani Mahama reportedly received three petitions alleging misconduct by the Chief Justice. Purportedly acting under Article 146 of the Constitution, he established an inquiry committee led by Justice Gabriel Scott Pwamang, a senior member of the Supreme Court bench.
Others in the five-member committee were Justice Samuel Kwame Adibu-Asiedu, also a Justice on the Supreme Court bench, Mr Daniel Yaw Domelevo, a former Auditor-General, Major Flora Bazaanura Dalugo from the Ghana Armed Forces (GAF), and Professor James Sefah Dzisah, an associate Professor at the University of Ghana. After investigation, the Justice Pwamang Committee found that the Chief Justice had:
1. Violated Article 296 by transferring a judicial officer despite an internal committee’s clearance;
2. Breached constitutional procedure by recommending judges for Supreme Court appointment; and
3. Acted recklessly with public funds in overseas travels to Tanzania and the United States.
On these findings, based on only 3 out of the 21 or so allegations that make up Daniel Ofori’s petition the Committee recommended removal. The fate of the remaining two petitions have yet to be decided. Nonetheless, the President of the Republic issued his warrant forthwith, purporting to remove the Chief Justice from office. But facts, as every lawyer knows, are merely the skeleton of truth. The constitutional analysis—the sinews and flesh—tells quite a different story.
Issues for Determination
Before we wade into the murky waters of this constitutional controversy, let us first chart our course by identifying the burning questions that demand true, just and proper judicial answers:
1. Whether the Justice Pwamang Committee, in declaring that the Chief Justice acted recklessly with public funds on her overseas travels to Tanzania and the United States, has brazenly trespassed upon the sacred territory of the Supreme Court—territory marked out by Articles 2(1) and 130(1)(a) as exclusively theirs for determining violations of our financial laws, including Articles 188 and 189 of the Constitution.
2. Whether the Justice Pwamang Committee, in proclaiming like the Biblical Moses from Mount Sinai that the Chief Justice violated Article 296 by transferring a judicial officer, has usurped the Supreme Court’s exclusive constitutional preserve—the authority vested by Articles 2(1) and 130(1)(a) to interpret and pronounce upon alleged constitutional breaches.
3. Whether the Justice Pwamang Committee, in declaring with the confidence of the Biblical Solomon passing judgment that the Chief Justice breached constitutional procedure under Article 144 by recommending judges for Supreme Court appointment, has committed the constitutional sin of usurping the Supreme Court’s exclusive mandate under Articles 2(1) and 130(1)(a) to define the scope and limits of the Chief Justice’s constitutional powers.
4. Whether President John Dramani Mahama, by rushing like a man whose house is on fire to act upon these tainted findings, has himself violated the Constitution—particularly Articles 2(1), 130(1), and 146(9)—by giving executive muscle to recommendations built upon constitutional quicksand.
In my respectful view, these are not academic questions for ivory tower debates. They go to the very heart of whether we shall remain a nation governed by law or become a republic ruled by executive whim dressed up as due process.
III. The Constitutional Architecture
The Constitution, while not perfect, is a marvel of democratic engineering. Like the great cathedrals, every arch supports every other, every pillar bears its appointed load. Remove one stone carelessly, and the entire edifice may tremble.
The Foundation Stones
Article 2 grants every citizen the right to seek constitutional interpretation from the Supreme Court. Article 130 vests in that Court exclusive original jurisdiction over constitutional matters. These are not mere legal niceties—they are constitutional ramparts protecting democracy from arbitrary rule.
Article 146 establishes procedures for removing superior court judges. Though inelegantly drafted, it creates a semblance of balance, no matter how questionable: presidential initiation, independent investigation, factual findings, and recommendations. Nowhere—and I emphasise with all the force I can summon—nowhere does it authorise constitutional interpretation by a presidential committee, however distinguished.
The framers knew well the dangers of unconstrained power. They divided it, limited it, and channelled it through proper forms. To ignore those forms is to court constitutional chaos (as pertains in the present case).
IV. The Fatal Flaw: Adjudication Disguised as Investigation
The Fundamental Principle
The gravamen of this dispute lies not in the Committee’s industry or integrity, because those do not fall for determination here, but in the limits of constitutional authority. The 1992 Constitution, by Articles 2(1) and 130(1)(a), vests in the Supreme Court alone the exclusive jurisdiction to interpret and enforce constitutional provisions. That jurisdiction is absolute. No committee, no administrative body, not even Parliament may pronounce with binding effect upon the Constitution’s true and proper meaning.
Fact-Finding Is Not Adjudication
Committees under Article 146 perform investigative functions. They may gather facts, weigh evidence, report findings. But they may not—the Constitution forbids them—transform facts into binding constitutional pronouncements.
In my respectful view, there is a profound difference between fact-finding and constitutional adjudication. Facts may be established by evidence; law must be declared by courts. To blur that line confounds constitutional order with administrative enthusiasm—a path our Constitution prohibits.
Guidance from Our Own Courts
In Samuel Attah-Mensah v Attorney-General, where allegations of “high crime” were levelled against Parliament’s Speaker, the Supreme Court declined jurisdiction over criminal aspects of the case, holding that criminal liability fell within the Attorney-General’s province. As Gbadegbe JSC observed, even constitutional questions must respect boundaries between interpretation and prosecution.
Similarly, in Afenyo-Markin v Speaker and Another, when Speaker Alban Bagbin declared parliamentary seats vacant after what was called a “factual, constitutional, and statutory assessment,” the Supreme Court was unsparing, holding this constituted a “grievous and veritable overstep of constitutional authority” because it strayed into the Court’s exclusive interpretive jurisdiction.
The Present Case
What the Speaker could not lawfully do in Afenyo-Markin, the Pwamang Committee could not do here. Its remit was investigative, not interpretive; factual, not judicial. By purporting to find violations of Articles 296, 144, and 188-189, it committed the same constitutional trespass condemned in Afenyo-Markin.
The principle is simple yet unyielding: no body may usurp the Supreme Court’s exclusive power to interpret the Constitution.
V. The Committee’s Constitutional Trespasses
A. The Justice Pwamang Committee declared: “the travel expenses with the Chief Justice heaped on the judicial service… constitute unlawful expenditure of public funds. It cannot be justified in law or policy. Those acts constitute avoidable and reckless dissipation of public funds.”
In my respectful view, the determination of whether any act of a state official constitutes “unlawful expenditure” falls squarely within the constitutional mandate of the Auditor General, not an Article 146 committee. Where disputes arise concerning particular expenditures—such as state-sponsored foreign trips of the Chief Justice’s close family members—such matters are reserved exclusively for the Supreme Court under Articles 2 and 130 for proper judicial determination.
This principle finds clear expression in the Supreme Court’s decision in Kwame Baffoe v. Attorney-General (J1/12/2021) [2024], where the Court declared that “the positions of the first and second ladies of Ghana do not fall under the category of Public Office holders enumerated in Article 71(1) and (2)” as to benefit from payments from the national purse. This demonstrates the Court’s exclusive jurisdiction to determine the scope and application of the relevant constitutional provisions.
The Committee’s use of terms such as “unlawful expenditure,” “cannot be justified in law,” and “reckless dissipation” represents legal adjudication, not factual reporting. By employing this language, the Committee pronounced with judicial finality that specific expenditures violated the Public Financial Management Act 2016, the Audit Service Act 2000, and Articles 188-189 of the Constitution.
Though the Committee’s report makes no direct mention of these constitutional provisions and statutes, in proclaiming “unlawful expenditure,” it ventured to interpret them. In my respectful view, no presidential committee may don the Supreme Court’s robes, even where some members are distinguished justices.
The Constitution provides specific remedies: Articles 188-189 vest auditing functions in the Auditor-General and Parliament respectively; the Public Financial Management Act establishes procedures for addressing irregularities; the Audit Service Act creates investigation mechanisms. Nowhere do we find authority for an Article 146 committee to adjudicate financial law violations.
The Committee therefore usurped the Auditor-General’s functions, bypassed parliamentary oversight, and arrogated judicial powers over financial legislation. Constitutional governance demands that each institution operate within its prescribed boundaries—a specialized function that cannot be usurped by bodies lacking the requisite mandate.
Consequently, the Committee’s conclusions on the Chief Justice’s alleged financial misconduct are null and void, and the President’s removal warrant, resting on this unconstitutional foundation, falls like a tree rotten at its roots.
B. The Article 296 Interpretation
The Committee’s treatment of Article 296 equally reveals brazen usurpation of Constitutional authority. It declared: “The Committee states without fear or favour that the Chief Justice unjustifiably breached the provisions of Article 296(a) and (b).”
Furthermore, the phrase “without fear or favour” betrays the Committee’s misunderstanding of its role. These are words used by courts pronouncing legal conclusions, not investigators reporting facts. On the facts, the Committee interpreted Article 296’s provisions and pronounced definitively they were breached—precisely the constitutional interpretation forbidden by Articles 2 and 130.
C. The Article 144 Adjudication
Most tellingly, the Committee pronounced: “the Chief Justice, qua Chief Justice, cannot lay claim to ignorance of the nomination process… Therefore, to seek wittingly to outwit this known process… amounts to misbehaviour.”
Notice the methodology: the Committee interpreted Article 144, applied case law (most likely Ghana Bar Association/Richard Sky vrs Attorney-General), determined the Chief Justice’s state of mind (“wittingly”), and reached legal findings (“amounts to misbehaviour”).
In my respectful view, this represents constitutional interpretation in its purest form. Though the Committee’s report, quoted by the President’s letter to the Chief Justice, makes no mention of Article 144, any lawyer with average diligence would see that its assertion—that the Chief Justice flouted appointment rules—rests on interpreting Article 144 and its case law. Yet the Committee has no business with the Constitution’s meaning—a function Articles 2 and 130 reserve exclusively to the Supreme Court.
VI. Presidential Action and Constitutional Compliance
The Committee concluded: “the Committee recommends to the President in accordance with Article 146(7)… that the Chief Justice be removed from office.” But this recommendation rests entirely upon constitutional interpretations the Committee was never empowered to make.
I respectfully submit that the President’s role under Article 146 is not mechanical. He must act “in accordance with the provisions of this Constitution.” Article 58(2) gives him “executive authority” to execute and maintain “this Constitution and all laws made under… this Constitution.” Thus, where a Committee’s findings rest upon jurisdictional usurpation, the President may not blindly give them effect. To do so validates unconstitutionality through executive action.
It follows that by acting upon findings rendered coram non judice—before a body lacking jurisdiction—the President lent executive force to what was constitutionally stillborn. In my respectful view, executive implementation cannot confer legitimacy upon unconstitutional recommendations.
VII. The Proper Constitutional Path
It must be understood that the foregoing conclusions do not suggest any judge stands above the law. The Constitution provides clear mechanisms for addressing judicial misconduct, but they must be followed scrupulously. They were not properly followed in the present case.
If allegations suggest constitutional violations, Article 2 provides remedy: any citizen may approach the Supreme Court for interpretation. If criminal conduct is alleged, the Attorney-General may prosecute. If human rights violations are claimed, the High Court provides relief under Article 33, or the Commission on Human Rights and Administrative Justice under Article 218.
But we cannot allow an executive committee to usurp judicial power and pronounce constitutional violations without judicial oversight. That pathway leads to constitutional anarchy.
VIII. The Question of Unseemly Haste
The speed with which the President acted compounds the irregularity. Within hours of receiving the Committee’s report, he signed the removal warrant. Such haste suggests not constitutional consideration but predetermined political calculation.
In my respectful view, constitutional government requires deliberation, not precipitous action. The President might have sought legal advice on the Committee’s findings, referred constitutional questions to the Supreme Court, or paused to consider the consequences.
Instead, it does seem that he acted with dispatch rather than gravity. This appears to betray a troubling Presidential casualness towards an important constitutional process.
IX. The Precedent We Establish
Today’s decision echoes beyond this case. We establish precedents for future generations, principles shaping our Republic’s destiny.
The question is: Do we establish that executive committees may interpret the Constitution? Do we declare speed trumps process? Do we proclaim factual findings may masquerade as legal conclusions without judicial oversight?
If the answer to all the above questions is “YES,” we diminish not only the Chief Justice’s office but every judge who may decide cases displeasing the powerful. We create a climate where judicial independence exists only at government’s sufferance.
The Constitution, respectfully submit, deserves better. The Republic deserves better. Our children deserve better.
X. The Duty to Dissent
William Shakespeare wrote: “Be not afraid of greatness: some are born great, some achieve greatness, and some have greatness thrust upon them.” Today, constitutional greatness is thrust upon us.
I choose to embrace it through dissent—not obstruction’s dissent, but principle’s dissent. Not partisanship’s dissent, as the unsophisticated would have the uninitiated believe, but constitutional fidelity’s dissent.
Indeed, beyond legal technicalities lies deeper truth: constitutions embody moral commitments, promises between generations, covenants between governors and the governed. When we allow those promises to break, we betray not only legal principle but moral obligation.
As Edmund Burke observed: “The only thing necessary for the triumph of evil is for good men to do nothing.” Today, I refuse to do nothing whilst a constitutional principle is desecrated in a manner that unleashes and encourages partisan evil to thrive. And so I dissent.
XI. Conclusion: Why the Chief Justice Remains
After wrestling with the facts, grappling with the law, and searching my constitutional conscience, I reach conclusions as clear as crystal and as firm as granite:
First, the Justice Pwamang Committee exceeded its constitutional authority when it purported to interpret Articles 296, 144, and 188-189 of our Constitution. Like actors who have forgotten their parts and begun reciting from Shakespeare whilst performing an Anlo village play about “Ayiyi”, they stepped far beyond their investigative role into the Supreme Court’s exclusive constitutional domain.
Second, I declare their constitutional findings null and void—not from any desire to protect misconduct, but from constitutional necessity. Their interpretive conclusions possess no more legal authority than the opinions of any learned gathering of lawyers in any Accra chambers.
Third, the President’s removal of the Chief Justice, founded solely upon these constitutionally invalid findings, was itself a constitutional nullity. Like a house built upon sand, it cannot stand when constitutional storms arise.
As I have explained earlier in this opinion, this outcome protects not the Chief Justice from accountability, but ensures accountability operates within constitutional bounds. If evidence suggests transgression, the Republic must use proper constitutional procedures, not executive committee usurpation of judicial power.
May I remind the Republic and all those who call it home that the Constitution demands vigilant guardians, faithful servants, courageous defenders willing to protect it from those who would abrogate or suspend it, whether violently or through false due process. Today, I stand in that ancient tradition of dissent preserving constitutional government through darker hours than these.
Let it be recorded that in President Mahama’s time, when constitutional principle suffered violence, one voice rose for the Constitution itself. Let generations yet unborn know that when evil’s icy hands sought to freeze Ghana’s constitutional order, good men stood firm and did not surrender the rule of law without loud protest.
Many on this Court of Public Opinion have spoken. Time will judge whether their words carried any discernible trace of wisdom. On my part, I can do no other than dissent, with respect for colleagues but deeper devotion to constitutional principle.
THE HOLDING
For the reasons exhaustively canvassed above, I hold—and hold with unshakeable conviction—that Chief Justice Gertrude Araba Sackey Torkonoo remains the lawful Chief Justice of the Republic of Ghana. Her purported removal, being founded upon constitutionally invalid findings rendered by a committee lacking jurisdiction to make constitutional determinations, is null, void, and of no legal effect whatsoever.
The President’s warrant of removal, however elegantly drafted and however swiftly executed, cannot derive constitutional authority from a source that itself possesses none. Just like a stream that cannot rise higher than its source, executive action cannot acquire constitutional legitimacy from recommendations that were constitutionally stillborn from their very inception. It follows that Chief Justice Torkonoo continues to hold her office with all the constitutional authority and dignity that attended her original appointment, and any contrary assertion or action lacks the force of law.
In humble service to the Constitution and the Republic it governs.
-rD.s
Source: newsthemegh.com