The Deputy National Communications Director of the New Patriotic Party (NPP), Kamal-Deen Abdulai, has questioned the clarity and application of Article 146 of Ghana’s 1992 Constitution, describing it as potentially “the most confused position” in the supreme law at the moment.
Article 146 of the 1992 Constitution outlines the procedures and grounds for the removal of justices of the superior courts and other high-ranking officials on the basis of stated misbehaviour or incompetence.
Speaking on the Joy News AM Show on Thursday, 19th February, Mr Abdulai raised concerns about what he suggested could be a selective interpretation of the constitutional provision governing the removal of certain public officers, including the Chief Justice.
“Is there a case of cherry-picking or selective application of the law here when it comes to Article 146 of the Constitution? It’s a question somebody would ask,” he said.
“Lawyers have also exposed their positions on what we heard yesterday and read. That looks like the most confused position of the Constitution at the moment is Article 146.”
Mr Abdulai noted that many legal commentators had weighed in on the matter, offering differing interpretations of what amounts to “stated misbehaviour”.
“Many people have actually been there. And some of these, when they come out, the legal pundits or legal luminaries will come out with their various angles. What actually constitutes a misbehavior is what the CJ is saying,” he stated.
Referring to a recent communication emanating from the Jubilee House, Mr Abdulai cited portions of what has been described as the “Green Letter,” which addressed a petition seeking a prima facie determination.
“That look, from what we have received and read, it is evident on the face of it that some constitutional questions were raised, administrative questions were raised, but they don’t meet the threshold to determine a prima facie case,” he said.
He added that a full publication of the reasoning behind the decision would be instructive.
“It will be interesting to have a full report. Because I know that when justices of their caliber sit, they don’t just write English. They derive their positions from laws; they derive their positions from determined cases, which are precedents. And they derive their positions from textbooks and all that.”
Mr Abdulai stressed that transparency in such high-level constitutional matters was crucial, particularly after the President had been furnished with the report.
“It’s just unfortunate what the law says. Whether after furnishing the President with it, the President would make it available for all of us to read, to get to know the ratio or the reasons behind the decision of the Chief Justice,” he said.
Quoting directly from the letter issued from the Presidency, he read, “While the allegations raised serious constitutional and administrative questions, they do not, on their face, meet the threshold required for a prima facie determination of stated misbehavior or incompetence, warranting that a committee be set up to inquire into the petition.”
“The petition largely rests on conclusions of unlawfulness and bad faith without establishing a preliminary level, clear facts, demonstrating intentional wrongdoing, or a manifest inability to perform constitutional functions,” he continued.
“Even if the commission’s actions or inactions are assumed to be erroneous, controversial, or suboptimal, such shortcomings do not automatically translate into stated misbehavior.”
Mr Abdulai argued that these conclusions had triggered broader public debate about consistency in applying Article 146, particularly in light of previous determinations by the Council of State.
“Thus, I’m saying that some lawyers, after reading this, say, At what point can a stated misbehavior actually be impugned?” he said.
“Not only lawyers, but commonsensical people would also say this. Because yesterday, we were told that same Article 146, Council of State, was able to establish, if you like, a prima facie case against not just anybody, but a certain Chief Justice.”
He contrasted the current reasoning with earlier cases where alleged breaches of administrative procedures, including travel policies, were said to have met the threshold for a prima facie case.
“And when ratios were asked to be given, we’re told that she traveled, and the travel policy was infringed upon. We’re told that there was some administrative infringement, and then if this one talks about some administrative questions and infringements, and yesterday was actually meeting the threshold of a prima facie, why not today?” he queried.
Mr Abdulai stated that his concerns were not directed at any particular institution.
“I’m not actually against the OSP or the EC, but I’m trying to say that our law should actually be so clear to us that it will not leave us in a state of confusion, as it were,” he said.
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Source: www.myjoyonline.com