The Supreme Court will on Thursday set the ground rules for the President on the appropriate way of appointing Justices of Superior Courts and Electoral Commissioners.

The landmark verdict will determine whether or not the President is bound to appoint an Electoral Commission (EC) Chairperson based on the strict advice of the Council of State, as well as appoint Supreme Court justices in strict accordance with the advice of the Judicial Council.

Martin Amidu’s Bombshell

Thursday’s verdict is crucial in view of the fact that former Attorney-General Martin Amidu accused President John Mahama of ignoring Justice Samuel Marful-Sau, who was ‘highly’ recommended by the Judicial Council for nomination to the Supreme Court and rather nominated less recommended candidates.

Mr. Amidu said Justice Marful-Sau, a Court of Appeal judge, was denied the promotion to the Supreme Court because he dismissed the state’s case against Mr. Kwadwo Mpiani and Dr. Charles Wereko-Brobby in the Ghana@50 case.

The former Chief of Staff, Mr. Mpiani, and the CEO of the erstwhile Ghana@50 Secretariat, Dr. Wereko-Brobby, had been standing trial for allegedly causing financial loss to the state.

But Justice Marful-Sau, sitting as an additional High Court judge, dismissed the case, holding the view that the findings of a Commission of Inquiry could not form the basis upon which to bring criminal charges against the two.

The Ghana Bar Association (GBA) and two others are challenging the President’s power of appointing Superior Justices without the advice of the Judicial Council.

The court consolidated the case of the GBA and that of two other applicants, Mr Kwasi Danso Acheampong, a lawyer, and Richard Dela Sky, a journalist, who had filed a separate case seeking an interpretation of Article 70 of the constitution on whether or not the President must act in accordance with the advice of the Council of State in some appointments.

According to Mr. Sky and Mr. Acheampong, the President was bound by Article 70 (2) of the 1992 Constitution to appoint an Electoral Commission (EC) Chairman based on the advice of the Council of State.

The GBA, on the other hand, is praying the court to declare that upon true and proper construction of Article 144 clauses (2) and (3) of the 1992 Constitution, all appointments made by the President of the Republic of Ghana to the Supreme Court are valid on condition that they are made in strict accordance with the advice of the Judicial Council.

Although the GBA is seeking the interpretation of a different provision under the 1992 Constitution, the binding effect is that they all border on the powers and limitations of the President.

The interpretation being sought by Messrs Sky and Acheampong arises from a friction between two constitutional provisions.

The first one enjoins the President to make such an appointment based on the advice of the Council of State.

However, another provision states that the President is not bound by the recommendations of the Council of State.

In their statement of the case, the plaintiffs averred that what in their view was pivotal in the determination of the suit was whether or not the operative phrase “acting on the advice of the Council of State” had any mandatory binding effect.

“Our humble view is that the use of the phrase is not accidental and, therefore, has a binding effect, as used in the context of the 1992 Constitution,” the statement posited.

Section 2 of Article 70 of the 1992 Constitution provides that “the President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairman and other members of the Electoral Commission”.

However, Clause 3 of Article 91 of the Constitution states that “the Council of State may, upon request or on its own initiative, consider and make recommendations on any matter being considered or dealt with by the President, a Minister of State, Parliament or any other authority established by this Constitution, except that the President, Minister of State, Parliament or any other authority shall not be required to act in accordance with any recommendation made by the Council of State under this clause”.

The statement contended that those provisions had brought to the fore many divergent views on the appointment of the Chairman of the EC vis-a-vis the roles of the President and the Council of State.

It said if that issue was not settled once and for all, it could lead to unnecessary political apprehension when eventually an announcement was made on the appointment of a new Chair of the EC.

The statement averred that it was evident, per Article 91, Clause 4 of the Constitution, that the functions of the Council of State in the appointment of the chairman and deputies, as well as other commissioners of the EC, was one conferred on the Council of State by the constitution and not one of opinion sought by the President.

“Thus, any such advice in this direction by the Council of State becomes constitutionally binding on the President. The President has no unfettered discretion to take or disregard such advice,” it said.

The purpose of GBA’s action is to bring an end to what the association termed “persistent” failure of presidents in the Fourth Republic to seek the advice of the Judicial Council before appointing judges to the Supreme Court.

In a 66-page writ of summons and statement of case seeking to invoke the original jurisdiction of the Supreme Court, the plaintiffs are praying the highest court of the land to direct the President to fully comply with Article 144 (2) and (3) of the 1992 Constitution, which admonishes the President to appoint justices to the Supreme Court upon advice from the Judicial Council.

The other plaintiffs in the case are the former President of the GBA, Nene Amegatcher, Mr. Justin Amenuvor and Frank Beecham, all legal practitioners.

The defendants are the Attorney-General and Minister of Justice and the Judicial Council.