A celebrated Ghaianin law professor based in A the USA, Prof. Stephen Kwaku Asare has said the inability of the Chief Justice to establish a prima facia case in more than 100days amounts to dereliction of her constitutional duty.
“Surely, if the CJ has not acted in 100 days, then there is a prima facie case that the CJ is violating the constitution and is holding the petitioners, respondents and the country to ransom” – Prof. Asare said in an article
[ads1]Prof. Asare explained that in the case of the petitions filed for the removal of the Chairman of the Electoral Commission, Mrs. Charlotte Osei and her two deputies, “a petitioner is justified in bringing a petition to remove the Chief Justice for misbehaviour or incompetence in handling her duties under Article 146(4)” for her failure to determine the prima facie case in 100 days.
His comment is coming in as pressure mounts on the Chief Justice to disclose as to whether she has established any prima facie case for the petitions brought before her.
Civil society groups, including the Africa Centre for International Law & Accountability – ACILA and a pro-NPP Let’s My Vote Count Alliance have raised a red flag on the issue with ACILA’s Executive Director, Mr. William Nyarko suggesting that it is high time the Constitution is amended to provide a time frame for the Chief Justice when establishing whether a prima facie case exists in respect of a petition to remove an Article 146 officer holder.
Mr. Nyarko emphasized that Ghana is a democratic state so it is important that time lines are provided on some key decisions of significant public interest.
Providing a comparative analysis of time lines in three cases, Mr. Nyarko explained that in the case of the former Commissioner of the Commission on Human Rights and Administrative Justice (CHRAJ), Mrs. Lauretta Lamptey, it took the former Chief Justice Mrs. Theodora Georgina Wood fifty-one (51) days to establish a prima facie case against the former CHRAJ Boss and later removed from office.
Explaining the issues further, Prof. Asare said, though the constitution of Ghana did not provide any specified time limit for the CJ to act on such petitions, “in reality it does”. In his view, “any public officer who is tasked with a constitutional duty must not only perform it but do so within the time period fixed by the constitution or where no such time period is specified do so within a reasonable time”
“What is a reasonable time will, of course, vary by tasks but generally it refers to the amount of time that is fairly required to do whatever is required to be done conveniently under the prevailing circumstances” – Prof. Asare argues.
According to the man who is being celebrated for winning the legal battle against the General Legal Council on the issues of conduct of entrance examination into the Ghana Law School, the CJ’s role under “Article 146(4) is to determine whether the evidence on the face of the petition, unexplained or uncontradicted, is sufficient to maintain the proposition that the person named must be removed from office”
“Like the President, the Chief Justice does not have to immediately drop everything she is doing to make the prima facie determination. Further, it does not take much analysis to conclude that the task here is more complex than just conveying information and therefore requires more time to complete. Of course, requiring more time to complete does not mean the task should be completed in an unreasonable time.What it means is that the prima facie determination must be made within the time that is fairly required to do whatever is required to be done conveniently under the prevailing circumstances” – he added
Read his full article posted on his Facebook page:
Article 146(4) provides that “If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”
While it appears that this Article does not impose any time limits on either the President or Chief Justice to perform their assigned duty, in reality it does.
Any public officer who is tasked with a constitutional duty must not only perform it but do so within the time period fixed by the constitution or where no such time period is specified do so within a reasonable time.
What is a reasonable time will, of course, vary by tasks but generally it refers to the amount of time that is fairly required to do whatever is required to be done conveniently under the prevailing circumstances.
So under Article 146(4), where the President, in the vivid words of Justice Sai, acts as a conveyor belt of the petition, a reasonable time is in days, perhaps no more than a handful of days. The President does not have to immediately drop everything he is doing to convey such a petition when received, but most reasonable people will be justified to accuse the President of dereliction of a constitutional duty if he has not forwarded such a petition in 7 days.
What about the Chief Justice’s determination of a prima facie case? Initially, it must be made clear that the Chief Justice is not asked to investigate or otherwise determine the merits of the petition. That function is assigned to a body to be constituted but if and only if the CJ determines that there is a prima facie case.
The CJ’s sole Article 146(4) task is to determine whether the evidence on the face of the petition, unexplained or uncontradicted, is sufficient to maintain the proposition that the person named must be removed from office.
Like the President, the Chief Justice does not have to immediately drop everything she is doing to make the prima facie determination. Further, it does not take much analysis to conclude that the task here is more complex than just conveying information and therefore requires more time to complete.
Of course, requiring more time to complete does not mean the task should be completed in an unreasonable time. What it means is that the prima facie determination must be made within the time that is fairly required to do whatever is required to be done conveniently under the prevailing circumstances.
The test requires us to do a mental excursion into courtrooms to discover how long it takes judges to make prima facie determinations. Such an excursion will not yield a precise estimate but will show that the task should be completed in a handful of weeks.
Further, most reasonable judges or trier of facts will be justified to accuse her of dereliction of a constitutional duty if he has not made that determination in 30 to 60 days.
Surely, if the CJ has not acted in 100 days, then there is a prima facie case that the CJ is violating the constitution and is holding the petitioners, respondents and the country to ransom.
In fact, on these facts (i.e., failing to determine the prima facie case in 100 days), a petitioner is justified in bringing a petition to remove the Chief Justice for misbehaviour or incompetence in handling her duties under Article 146(4).
Da Yie!
Source: Awake Newspaper | Page 10 | Tuesday, November 14, 2017
