2016
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Three consolidated suits—led by the Ghana Bar Association (J1/26/2015) and joined by actions from Richard Sky (J1/21/2015) and Kwasi Danso Acheampong (J1/22/2015)—asked the Supreme Court of Ghana to interpret constitutional provisions governing judicial and electoral appointments. The GBA sought declarations that, under Article 144(2)-(3), the President is bound by the Judicial Council’s advice, that the Council holds a trust to nominate qualified candidates, and that presidential departures from such advice are void. The Court, per Atuguba JSC, adopted a purposive approach grounded in judicial independence, holding that the Judicial Council’s recommendations operate as significant restraints but are not absolutely binding; the President cannot appoint a Justice without a Judicial Council recommendation, may reject a recommendation if it fails Article 128(4)’s standards, and is constrained by consultation with the Council of State and Parliament’s approval. The Court also upheld the established practice in which the Judicial Council recommends nominees and rejected attempts to secure advisory opinions on Electoral Commission appointments, dismissing the Sky and Acheampong suits.
JUDGMENT
ATUGUBA, JSC:
These three suits were separately initiated but by reason of certain basic commonalties between them were subsequently consolidated by this court. We now proceed to dispose of them seriatim.
Writ No. J1/26/2015
The plaintiffs by their writ dated the 30th day of June 2015 claim against the defendants as follows:
“1. A declaration that upon a true and proper construction of Article 144 clauses (2) and (3) of the
Constitution 1992 all appointments made by the president of the Republic of Ghana to the Superior Courts are valid only to the extent that such appointments are made in strict accordance with the advice of the 2nd Defendant herein, the Judicial Council.
2. A declaration that upon a true and proper interpretation of Article 144 (2) and (3) of the Constitution 1992, a constitutional trust is created in the 2nd Defendant herein, the Judicial Council, to make nominations of persons best qualified to serve as Justices of the Superior Courts of Judicature, and the 2nd Defendant is required to ensure that such nominations are actually submitted by the President to Parliament for approval after due consultations with the Council of State.
3. A declaration that accordingly, upon a true and proper construction of article 144 clauses (2) and (3) of the Constitution 1992 the Judicial Council of the Republic of Ghana has a constitutional obligation to specifically advice the president of the Republic of Ghana as to which specific person(s) is/are suitable for appointment to serve as Justice(s) of the Superior Courts of the Judicature, in accordance with which advice the President is mandatorily required to exercise his powers of appointment.
4. A declaration that an appointment or non-appointment by the President of the Republic of Ghana of a Justice of the Superior Court in a manner out of accord with the advice of the Judicial Council is unconstitutional, null, void and of no effect.”
The joint memorandum of issues of the parties to the consolidated suits, as far as relevant to this writ are as follows:
“(i) 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 means that the President is bound by the advice of the Judicial Council?
(ii) 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 Judici