The ECOWAS Community Court of Justice has dismissed an application by the Former Chief Justice, Gertrude Araba Esaaba Sackey Torkonoo, challenging her removal from Office as Chief Justice.
The Court further affirmed that there were no violation of her rights in the processes leading to her removal and the subsequent dismissal by the President of Ghana.
The Court outlined seven issues for determination from the application and the arguments in response by the Government of Ghana provided by the Deputy Attorney General on behalf of the Republic.
The Court dismissed all reliefs sought by the Applicant and determined all seven issues in favour of the respondent, Ghana.
Below is a summary of the judgement of the ECOWAS Community Court of Justice:
1. Whether the prima facie determination violated her right to fair hearing under article 7 of the ECOWAS Charte.
The Court held that the right to be heard crystallizes when petition is presented to the 5 member committee. The prima facie is a filtering mechanism and not the actual hearing. Applicant admit she was given petitions and was heard in full by the Committee.
Respondent fulfilled its obligation.
2. Whether contrary to article 7 of the Charter, the Committee was bias and improperly constituted on the basis that Justices Pwamang and Asiedu had participated in adjudicating similar cases by same petitioners and also that the Committee didn’t take the judicial oath before beginning its work.
Court held that the Applicant did not demonstrate that the issues before the ECOWAS Court were similar or substantially the same as those previously before those two Justices. It will be far fetched to impugn bias merely because they have participated in other matters by the petitioners in their official duties as judges. Also, matters of composition, competence, rules of procedure for judicial and quasi judicial bodies including legal consequences of judicial oaths belong to the court of Ghana and not the ECOWAS Court.
3. Whether the findings of the Committee are supported by evidence or not and therefore rendering the decision of the Committee invalid.
Court says it declines to review the evidentiary findings of the Committee as same is not before them
4. Whether Applicant’s removal as CJ was unlawful as violating her right to work under article 15 of the Charter
The Court held that the test is whether the suspension and removal was arbitrary, punitive and imposed without lawful procedure. Suspension and dismissal was made pursuant to clear procedure under article 146 of the 1992 Constitution. The Court is persuaded by the Respondent’s submission which gives the Ghanaian constitutional position on this issue
5. Whether the Applicant was subjected to indignity under article 5 of the Charter during the proceedings with the allegations that her husband was excluded from the hearings, she and all participants were searched before entering the venue, venue was specifically selected to traumatize her because it is linked to the murder of her uncle, petitions were leaked to the media
Court held that these measures were reasonable and proportionate in view of the sensitivity of the proceedings. On choice of venue, no evidence submitted by applicant that her uncle was murdered there and that her mere discomfort with the choice of venue is not enough legal ground to constitute violation of her right to dignity
With allegation on media leaks the Court reasoned that proceedings involving the highest judicial officer will undoubtedly attract high public scrutiny and attention.
6. Whether the Respondent violated the principle of lis pendes by proceeding to suspend and remove her despite she filing an application at the ECOWAS Court seeking provisional measures
The Court reasoned that the pendency of an application for provisional measures does not preclude a Respndent state from going ahead with regular proceedings in the absence of a binding order. Restraint is only desirable and not a legal obligation.
7. Whether or not the Applicant’s right to information under article 9 of the Charter was violated by Respondent’s failure to give her a report on the primary facie determination and the full report of the Committee’s work
Court held that right to information is guaranteed under the Charter but subject to necessary qualifications. Respondent state exercised valid and lawful discretion within those qualifications.
By Laud Adu-Asare
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