Safeguarding Ghana’s Democracy: The Judiciary, Constitutional Integrity, and Political Accountability

Introduction

Democracy is more than periodic elections, it is about the rule of law, separation of powers, accountability, and the protection of civil liberties. The Fourth Republic has become the most stable political era since independence in Ghana. However, recent developments, particularly around the attempted removal of the Chief Justice and the resulting #SaveTheJudiciaryDemo, call into question the resilience of our democratic institutions.

Ghana’s Democratic Journey

Democracy, as defined by political theorists like Robert Dahl, is a system characterised by “polyarchy”, free and fair elections, inclusive participation, and civil liberties. According to Larry Diamond (1999), true democracy depends on “accountability, transparency, rule of law, and a vibrant civil society.” Ghana’s 1992 Constitution is the supreme legal framework guiding the democratic process. Among its democratic commitments:

Article 1(1): “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised.”

Article 3(3): Imposes a duty on citizens to resist attempts to undermine the Constitution.

Article 125: Declares the judiciary’s independence and its role in dispensing justice in the name of the Republic.

Article 146: Outlines the process for removing a Chief Justice or other superior court judges, ensuring due process and protection from arbitrary removal.

Judiciary and Its Independence under Threat

Ghana transitioned through three republics and several military coups before adopting the 1992 Constitution. The Fourth Republic has witnessed eight peaceful elections and two transfers of power between major political parties, a strong indicator of democratic consolidation. Yet, while electoral democracy has matured, constitutional democracy, characterised by strong institutions and checks on power, remains fragile.

The Judiciary is arguably the last line of defence in Ghana’s democratic system. Article 127(1) of the Constitution guarantees that:

“In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, shall be subject only to this Constitution and shall not be subject to the control or direction of any person or authority.”

Thus, any political interference, especially in the appointment or removal of the Chief Justice, undermines the independence of the judiciary and violates the principle of separation of powers.

The Removal of the Chief Justice: Legal Grounds or Political Machination?

The recent move to remove the Chief Justice has raised alarm. Though the Constitution (Article 146) permits the removal of a Chief Justice for stated misbehaviour, incompetence, or inability to perform functions due to infirmity of mind or body, the process must be initiated with due respect for:

• Independence of the judiciary
• Natural justice and due process
• Non-political motivations

Critics argue that the circumstances surrounding the petition for removal are politically motivated, driven by judicial decisions unfavourable to the government. If so, it breaches constitutional spirit and democratic ethics. Legal experts like Professor Kwaku Asare have warned against weaponising legal processes for political ends, suggesting that such acts weaken public confidence in the judiciary.

The Chief Justice of Ghana holds one of the most constitutionally protected offices in the country, and removal or suspension of a sitting Chief Justice is extremely rare. The current Chief Justice is not the first to face suspension or removal proceedings in Ghana’s judicial history. Ghana’s constitutional and political history includes a few notable instances involving top justices, though none under the 1992 Fourth Republic has resulted in a Chief Justice being fully removed through Article 146 processes. However, there are relevant historical precedents worth examining across different political eras to understand the broader context.

During the earlier republics and under military rule, the judiciary often suffered from political interference, but formal suspensions or removals of Chief Justices were not a standard occurrence. Instead, abrupt dismissals, as in the case of Ghana’s first African Chief Justice, Sir Arku Korsah, appointed in 1956 and dismissed in 1963 by President Kwame Nkrumah after the treason trial of Tawia Adamafio and others.

Whether or not the removal of Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo is legal, the entire process raises significant concerns, even if some argue that it follows the provisions of Article 146 of the 1992 Constitution. Democracy demands more than procedural compliance; it requires transparency, integrity, and fidelity to the spirit of the law.

The demonstration held on May 5, 2025, dubbed #SaveTheJudiciaryDemo, deserves commendation. It was a legitimate civic action responding to widespread fears of executive overreach and the erosion of judicial independence. This aligns with Article 21(1)(d) of the Constitution, which guarantees the right to “freedom of assembly, including freedom to take part in processions and demonstrations.”Civil society organisations and the media must also play their part by demanding clarity on what constitutes “stated misbehaviour” or “incompetence,” to prevent these terms from becoming vague or politically exploitable grounds for removing judges.

Conclusion

The ongoing controversy over the Chief Justice’s removal is a test of the Constitution’s resilience and the political commitment to democratic norms. We must all remain vigilant in defending judicial independence. The Constitution must be respected not just in letter, but in spirit. We must remember that democracy is not self-executing.