The government is moving to introduce a legislative framework that will clearly define the grounds for removing Supreme Court judges, especially around the terms “incompetence” and “stated misbehaviour”, which have long lacked legal clarity.
This was revealed by the Majority Leader in Parliament, Mahama Ayariga, earlier this week. According to him, the new framework is aimed at addressing ambiguities in the current judicial disciplinary process and strengthening transparency and accountability in the judiciary.
Mr Ayariga made the remarks while speaking about recent controversies involving petitions to remove judges, including the current process concerning the sitting Chief Justice.
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“Removal of Superior Court judges, starting from the EC Chairperson when she was removed, to subsequent petitions, some of which were dismissed, and this present situation that we have of the sitting Chief Justice being taken through the process, has generated public interest and debate,” he said.
He explained that legal professionals and the wider public have all had their say on the matter and pointed out the vague language currently in use.
“Lawyers and jurists have had their bite. I, as a lawyer, have also looked at it, and there are just two key words there: stated misbehaviour and incompetence,” he noted.
Mr Ayariga said he had tried to find the exact meanings for these terms in the Constitution but found none.
“Those two words, I’ve tried to look for the meanings in the Constitution. I haven’t seen the meanings in the Constitution, and there’s no statute that really defines what it is,” he explained.
He highlighted how the Constitution currently leaves it to a five-member committee to make such determinations without a clear legal basis.
“The Constitution simply says that the five people should take a decision on what it is, and if they are satisfied that a particular conduct amounts to stated misbehaviour and a particular level of performance of one’s task can be described as incompetence,” he said.
According to him, the structure of the committee itself further complicates the issue.
“Even then, the five should not be lawyers, all of them. Two should be Supreme Court judges; the other three should not be lawyers, should not be Members of Parliament, and should not be members of the Council of State; they should be ordinary citizens,” he said.
“The Constitution leaves it in their hands to decide what stated misbehaviour and what incompetence are,” he added.
Mr Ayariga acknowledged that some have called for legislation to provide further clarification, which he believes could be useful.
“Some people have said, no, we need to legislate on that. We need to further elaborate and all that. It might be helpful to do so,” he stated.
However, he also noted that the framers of the Constitution may have intentionally left the definitions broad to allow flexibility in judgement.
“The framers of the Constitution knew exactly what they were doing when they crafted it that way,” he said.
He continued by saying that everyone now awaits a formal proposal from the Ministry of Justice.
“So let’s see what it is that the Justice Ministry thinks about it and will bring before us,” Mr Ayariga said.
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