The Chief Justice is being accused of unconstitutional conduct
Chief Justice, Gertrude Torkornoo's recent recommendation to President Akufo-Addo for the appointment of five justices to Ghanas's apex court seems to be catching some criticism as she's being accused of using an unconstitutional procedure.
According to Joy News as sighted by The Accra Times, the recommendation was made in a letter dated May 30, 2024, nominating Court of Appeal judges - Justices Afia Serwaa Asare Botwe, Cyra Cynthia Pamela Koranteng, Eric Kyei Baffour, Angelina Mensah Homiah, and president of the ECOWAS Court, Justice Edward Amoako Asante.
But since the news broke, critics have accused the chief justice of unilaterally making these recommendations when the law makes that duty only available to the Judicial Council in consultation with the Council of State, despite the Chief Justice being the chairperson of the Judicial Council.
In a long piece posted on his Facebook, law professor Kweku Asare, popularly known as Kweku Azar, rebuked the actions of the judiciary's leader, saying it potentially undermines the objectivity in the selection process and many more violations.
"While the Chief Justice is the chairman of the Judicial Council that advises the President, the Council consists of various members such as the Attorney-General, Justices from different courts, representatives of the Ghana Bar Association, and other legal and non-legal members. The diverse composition of the Judicial Council is intended to ensure a balanced and unbiased approach to advising the President on judicial appointments. The Chief Justice unilaterally proposing names disrupts this balance and violates the intended collaborative decision-making process," he said.
He also raised legal and ethical issues, indicating that the Chief Justice has engaged in misconduct and unconstitutional conduct.
"The Chief Justice's action could introduce needless friction in the judiciary. Judicial ethics require judges to avoid any actions that might compromise their independence or the independence of the judiciary. Proposing nominees could be seen as engaging in political activities, which is generally discouraged, if not barred, for judges."
His arguments are somewhat steeped in concerns about the incessant packing of the Supreme Court with too many judges, especially when it's done under the tenure of a single president.
President Nana Akufo-Addo for instance, has faced allegations of packing the Supreme Court with "political judges having appointed more judges to the apex court (18) than any other president in the democratic political history of Ghana.
While judges always have a mandate to do their work impartially, there are concerns that they may sometimes act in the interest of the appointing authority, especially when those cases have political undertones.
"With the Supreme Court, having no limit means any President can keep putting as many people on the Court as he or she pleases, as long as Parliament keeps approving them. (Since the Supreme Court has held that the President need not heed the advice of the Judicial Council or Council of State in these matters, it's essentially one person's call." the Executive Director of the Ghana Center for Democratic Development (CDD-Ghana), Prof H. Kwasi Prempeh said on the matter.
However, arguments from some legal scholars have mainly been that even though the Constitution does not specifically introduce a limit to the number of judges to be appointed, the country needs more judges at the highest court given the large number of cases they are inundated with.
On Wednesday, as the hearing of the controversial anti-LGBTQ cases was being concluded, the Chief Justice made a remark which seemed to defend the argument for more appointments to the Supreme Court.
"We must thank everyone for their patience, but this is our lot. There are several cases pending, right? That is why we need more Supreme Court judges," she said.