The Supreme Court yesterday dismissed the consolidated writs of the Ghana Bar Association (GBA), Mr. Richard Sky, broadcast journalist and Mr. Kwasi Danso-Acheampong, a private legal practitioner, on the constitutionality or otherwise of the President to appoint Superior Court Judges as well as the Chairman of the Electoral Commission.
The GBA among others, sought: the following
”Whether or not the Constitutional requirement that the President of the Republic of Ghana, must obtain the advice of the Judicial Council in the process of appointing superior court Justices mean the President is bound by the advice of the Judicial Council?,
“Whether or not the doctrine of separation of powers is undermined if, the President of the Republic of Ghana is held to be bound by the advice of the Judicial Council in his appointment of Justices of the Superior Court?.
“Whether or not a holding that the President of the Republic of Ghana, is bound by the advice of the Judicial Council in his appointment of Superior Court Justices will produce absurd constitutional results?. And whether or not the advisory function of the Judicial Council invests the Council with the constitutional power to nominate persons for appointments as justices of the Superior Courts?
But the seven (7) member-panel of judges presided by Mr. Justice William Atuguba, unanimously held the view that the president could not appoint superior court judges without the advice of the Judicial Council which was made up of competent, dedicated and committed professionals of moral rectitude devoid of partisan inclination.
The court maintained that just as the president was not bound by the Judicial Council, he (president) could not also appoint anybody as a Supreme Court or Court of Appeal judge without the advice of the judicial council.
On the part of Mr. Sky and Lawyer Danso-Acheampong they wanted the court to rule on: ”Whether or not the Council of State is the proper institution to initiate and/or nominate a person for the position of an Electoral Commissioner?
“Whether or not the President is bound by the advice of the Council of State?
“Whether or not the nomination and appointment of the Chairman of the Electoral Commission and his/her Deputies should involve public/Stakeholder Consultations?
“Whether or not there is a justiceable case before the Supreme Court in Suit number JI/21/2015 and JI/22/2015?
“Whether or not upon a true and proper interpretation of Article 70 clause (2) of the 1992 Constitution, the Council of State is to initiate the process of appointment of Chairperson and other Commissioners of the Electoral Commission and advise the President on a suitable candidate to be appointed?
“Whether or not the advice of the Council of State in the said appointments under Article 70 (2) of the Constitution is binding on the President?
“Whether or not the provision of Article 70 (2) of the 1992 Constitution notwithstanding the provisions of Article 91 (4) of the 1992 Constitution?”
Mr. Justice James Dotse, who read the judgement on behalf of his colleague justices, said that, there was no case that triggered the invocation of the original jurisdiction of the Supreme Court to interprete Article 70 (2) of the 1992 Constitution.
He said that if the court went on with the case, it would only be given an advice which was not the mandate of the Supreme Court.
As to whether the president could appoint members of the EC on his own or was bound by the advice of the Council of State, Mr. Sky and Mr. Danso-Acheampong wanted the court to give once and for all interpretation on the matter to guide the appointment onto the Commission which was a very important body in the country’s democratic dispensation.
The two were of the view that appointment onto such the EC should stand completely above partisan politics to ensure that the life and work of the commission is truly an independent entity or institution.
Mr. Justice Atuguba commended the counsel for the applicants namely Mr. Thaddeus Sory, Alexander Afenyo-Markin, and Kwesi Danso Acheampong for their non-partisan stance in the submission of the memorandum of agreed issues.
The other Justices were: Anthony A. Benin, Ms. Sophia Akuffo, Mrs. Vida Akoto Bamfo, Anin Yeboah and N.S. Gbadegbe both of whom were absent but submitted their concurrence.
By Castro Zangina-Tong