President John Dramani Mahama has received 10 separate petitions calling for the removal of four officials appointed under Article 70 of the Constitution. The petitions target leadership at the Electoral Commission (EC) and the Office of the Special Prosecutor (OSP).
Seven of the petitions seek the removal of EC Chairperson Jean Mensa and her two deputies — Dr. Bossman Eric Asare, who heads Corporate Services, and Samuel Tettey, responsible for Operations. The remaining three petitions demand the removal of Special Prosecutor Kissi Agyebeng.
All petitions have been forwarded to the Chief Justice, Justice Paul Baffoe-Bonnie, for consideration.
Article 70(2) stipulates, “The President shall, acting on the advice of the Council of State, appoint the Chairman, Deputy Chairmen, and other members of the Electoral Commission.”
The EC Chairperson and deputies enjoy the same conditions of service as Justices of the superior courts, with the Chairperson’s terms aligned to those of a Court of Appeal Justice and the deputies aligned to High Court Justices.
Removal process for EC leadership
Under Article 146 of the 1992 Constitution, a Justice of the Superior Court or a Chairman of a Regional Tribunal “…shall not be removed from office except for stated misbehaviour or incompetence or on the ground of inability to perform the functions of his office arising from infirmity of body or mind.”
Once the President receives such a petition, Article 146(3) requires that it be referred to the Chief Justice, who must determine if a prima facie case exists.
The Constitution provides, “If the President receives a petition for the removal of a Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case.”
If a prima facie case is established, the Chief Justice sets up a committee comprising three Justices of the Superior Courts or Chairmen of Regional Tribunals, and two additional persons who are neither members of the Council of State, Parliament, nor lawyers.
The committee investigates the matter and submits its recommendations to the Chief Justice for onward transmission to the President.
Clause 9 emphasizes, “The President shall, in each case, act in accordance with the recommendations of the committee.”
All proceedings are held in camera, and the affected official is entitled to mount a defence personally or through a representative.
Removal of the Special Prosecutor
The dismissal of the Special Prosecutor is governed by Section 15 of the Office of the Special Prosecutor Act, 2017 (Act 959), which states that the SP: “…shall not be removed from office except for
(a) stated misbehaviour or incompetence;
(b) incapacity to perform the functions of the Office by reason of infirmity of body or mind;
(c) wilful violation of the Official Oath or Oath of Secrecy; (d) conduct which
(i) brings or is likely to bring the Office of the Special Prosecutor into disrepute, ridicule or contempt; or
(ii) is prejudicial or inimical to the economy or security of the State.”
Once a petition is submitted, the President must refer it to the Chief Justice within seven days. The Chief Justice has 30 days to determine whether a prima facie case exists.
If a case is established, a committee — similar in composition to that used for constitutional office holders — is set up within 14 days to investigate the matter.
The committee has 90 days to complete its work and submit its recommendations through the Chief Justice to the President, who is constitutionally bound to act on the committee’s findings.
