Nana Agyei Baffour Awuah Requires Legislation to Standardise Prima Facie Circumstances

In a significant development concerning judicial and constitutional processes in Ghana, the Minority Member of Parliament for Manhyia South, Nana Agyei Baffour Awuah, has publicly advocated for the enactment of specific legislation. His proposal aims to create a clear, uniform statutory framework for determining prima facie circumstances in proceedings, particularly those involving the removal of public officials. This call stems from observed inconsistencies in how such preliminary cases are assessed by different judicial or quasi-judicial bodies, raising fundamental questions about fairness, predictability, and the rule of law.

Introduction: The Inconsistency Dilemma

The principle of prima facie—Latin for “at first sight” or “on first appearance”—is a cornerstone in legal systems worldwide. It refers to the establishment of a sufficient case to proceed to a full hearing or trial. In Ghana, this concept is critically applied in contexts such as petitions for the removal of constitutional office holders under Article 146 of the 1992 Constitution. However, recent divergent outcomes in high-profile cases have exposed a lack of standardized criteria for what constitutes a prima facie case in these sensitive proceedings. MP Nana Agyei Baffour Awuah argues that leaving this determination to unguided discretion invites arbitrary outcomes and undermines public confidence in constitutional processes. His solution is a dedicated statute to codify the test, ensuring that similar circumstances yield similar determinations, regardless of the decision-maker or the official involved.

Key Points: The Core of the Argument

• Call for Statutory Definition: Nana Agyei Baffour Awuah urges Parliament to pass a law that explicitly defines the elements and threshold for establishing a prima facie case in removal proceedings under Article 146.
• Addressing Perceived Inconsistency: The call highlights contrasting outcomes: the recent dismissal of petitions against Electoral Commission officers versus the earlier ruling that removed former Chief Justice Gertrude Torkornoo from office.
• Risk of Discretionary Abuse: The MP warns that without clear rules, the assessment becomes a matter of personal discretion for the decision-maker (e.g., a Chief Justice or a committee), leading to potentially discriminatory standards.
• Goal of Uniformity and Fairness: The proposed legislation seeks to ensure that all public officials facing similar allegations are judged by the same, transparent legal standard, promoting equality before the law.
• Constitutional Context: The debate centers on the proper interpretation and application of Article 146, which outlines the procedure for removing the President, Vice-President, Chief Justice, and other constitutional office holders.

Background: Understanding Prima Facie and Article 146

The Legal Meaning of Prima Facie

In common law jurisdictions like Ghana, a prima facie case is not proof beyond a reasonable doubt. Instead, it is the minimum evidence required to avoid a summary dismissal of a claim. The party bearing the burden of proof (e.g., the petitioners in a removal proceeding) must present enough credible evidence on each essential element of their case to satisfy the decision-maker that, if uncontradicted, it would be sufficient to justify a full inquiry. The standard is often described as evidence that would convince a reasonable person of the allegation’s truth. However, this is a flexible, judge-made concept, leading to variability in its application.

Article 146 of the 1992 Constitution of Ghana

Article 146 provides the exclusive procedure for removing certain high office holders, including the Chief Justice, Justices of the Supreme Court, the Auditor-General, the Electoral Commissioner, and others. The process is initiated by a petition to the Chief Justice, who then constitutes a committee to inquire into the allegations of stated misbehaviour, incompetence, or inability to perform functions due to infirmity.

A critical, early step is the Chief Justice’s preliminary assessment of the petition. If the Chief Justice determines that the petition does not disclose a prima facie case, the process ends there, and no committee is formed. This gatekeeping role is immense, as it prevents a full public inquiry from ever occurring. The Constitution, however, does not define what constitutes a “prima facie case” in this specific context, leaving it to the Chief Justice’s interpretation based on general legal principles and precedents.

Analysis: The Catalysts for Change

The Two Contrasting Cases

MP Awuah specifically references two recent, divergent applications of the prima facie standard:

1. The Electoral Commission Petitions (Dismissed): In early 2025, petitions were filed seeking the removal of the Electoral Commissioner and her deputies, and the Special Prosecutor, over alleged breaches of the Constitution. The then-Chief Justice, Paul Baffoe-Bonnie, ruled that the petitioners had failed to establish a prima facie case. Consequently, no committee was empanelled to investigate the allegations fully. This decision was confirmed by the Minister of Government Communications.
2. The Removal of Former Chief Justice Gertrude Torkornoo (Upheld): Contrast this with the process that led to the removal of former Chief Justice Gertrude Torkornoo. While the specific prima facie findings in that earlier case were not detailed in the same public way, the process advanced to a full inquiry by a committee, which ultimately recommended her removal. The fact that one petition was dismissed at the threshold while another (against a Chief Justice) proceeded to a full hearing creates a perception of a shifting, unpredictable standard.

The “Discretionary Power” Problem

Awuah’s central critique is that the current system vests too much discretionary power in the office of the Chief Justice at the preliminary stage. He argues:

“Unless it is reduced into law, it becomes a discretionary power of whoever is making the decision, and this is where it is not good. Otherwise, we risk a situation where different standards are going to be applied to different people based on the disposition of whoever is exercising that discretion and what he thinks of that person.”

This discretionary power, he contends, can lead to “different principles or standards… applied to different officials holding the same or similar conditions.” The implication is that the outcome may depend less on the objective strength of the allegations and more on the subjective leanings of the sitting Chief Justice or the specific committee’s composition, which is also appointed by the Chief Justice.

Questions of Constitutional Interpretation

The call for legislation inevitably raises constitutional questions. Article 146 is part of the supreme law. Can Parliament pass a statute that defines “prima facie case” for its application? Or would such a statute be seen as an impermissible encroachment on the Chief Justice’s constitutional role as the initial gatekeeper and as the head of the judiciary, potentially compromising judicial independence?

A well-drafted law could argue it is not removing discretion but structuring it, providing mandatory factors for consideration (e.g., specificity of allegations, quality of evidence attached, requirement for sworn statements) to ensure consistency. It would aim to regulate the *process* of the preliminary determination without dictating the *outcome* in any specific case. The legal debate would center on whether this is a legitimate “procedural” law or an unconstitutional interference with a constitutional function.

Practical Advice: Pathways to Legislative Reform

For policymakers, legal scholars, and civil society supporting this reform, the path forward requires careful navigation:

1. Drafting the Statutory Framework

The proposed legislation—perhaps an “Article 146 (Prima Facie) Act” or an amendment to the existing Courts Act—must precisely define the threshold. It could include:

• A non-exhaustive list of evidentiary requirements for a petition to disclose a prima facie case (e.g., detailed factual allegations, corroborating documents, sworn affidavits from credible witnesses).
• A mandate that the Chief Justice’s determination must be accompanied by a brief, written ruling outlining the reasons for finding a prima facie case (or the lack thereof).
• Provision for a limited, expedited appeal or review of the “no prima facie case” decision to a panel of Supreme Court justices, to check potential arbitrary dismissal.

2. Building a Consensus

Such a law requires broad political and judicial buy-in. The Minority MP’s advocacy is a starting point. The process should involve:

• Parliamentary Committee Hearings: The Justice Committee or a special ad-hoc committee should hold public hearings with legal experts, former Chief Justices, attorneys-general, and civil society to gather diverse perspectives.
• Judicial Input: The Council of State and the Chief Justice’s office should be consulted formally to address concerns about judicial independence and the practical impact on the docket.
• Public Engagement: Educating the public on what “prima facie” means and why standardization matters for accountability and fairness.

3. Comparative Perspectives

Ghana can learn from other jurisdictions. For example:

• United Kingdom: In judicial review and some disciplinary contexts, the threshold for granting permission to proceed is explicitly set by statute or civil procedure rules, emphasizing the need for an “arguable case” or “real prospect of success.”
• South Africa: Their constitutional framework for removing judges includes a clear process with an independent judicial service commission playing a key role, providing a more institutionalized check than a single individual’s discretion.
• United States: Impeachment processes in Congress, while political, have developed historical precedents and rules that guide the initial inquiry, though they remain highly discretionary.

While Ghana’s system is unique, the global trend is toward minimizing unguided discretion in high-stakes removal proceedings to bolster legitimacy.

FAQ: Common Questions Answered

What exactly is a “prima facie case”?

A prima facie case is the minimum amount of evidence needed to justify taking a dispute to a full hearing. It is not about proving the case outright but about showing that there is enough substance to the allegation that it should not be dismissed outright without a proper inquiry. In the context of removing a public official, it means the petition must contain credible, specific facts that, if true, could justify the official’s removal.

Why is the Chief Justice’s role so powerful in Article 146 proceedings?

The 1992 Constitution vests the initial screening power in the Chief Justice to act as a filter against frivolous, vexatious, or politically motivated petitions that could destabilize state institutions and waste public resources. The idea is to protect officials from baseless harassment. However, this gatekeeping power is immense because a negative determination ends the process entirely, with no opportunity for the accused to defend themselves publicly.

Is this just political maneuvering by the Minority?

While the call comes from an opposition MP, the issue transcends partisan politics. It touches on the fundamental legal principle of legal certainty and equality before the law. Any government or opposition official could potentially face such a petition. A clear, predictable standard protects everyone—incumbents and petitioners alike—from arbitrary decision-making. The argument is about improving the system, not targeting any individual.

Would a law defining prima facie infringe on judicial independence?

This is the key constitutional tension. The argument against the law is that it could micromanage the judiciary. The argument for it is that it would merely set procedural guardrails for a specific, constitutionally mandated preliminary assessment, not dictate how a full trial is conducted. A carefully worded statute focused on process and transparency—not outcome—would be more defensible. Ultimately, the Supreme Court would have the final say on the law’s constitutionality if challenged.

What is the practical impact of inconsistent prima facie standards?

Inconsistency breeds perceptions of bias and unequal justice. If two petitions with similar factual patterns—one against an electoral official and another against a chief justice—are treated differently at the prima facie stage, it erodes trust in the neutrality of the process. It can also encourage forum shopping or strategic petitioning based on who the current Chief Justice is perceived to be. Consistent rules enhance the legitimacy of outcomes, whether they lead to a full inquiry or a summary dismissal.

Conclusion: Towards a Rule-Based System

The call by Nana Agyei Baffour Awuah for legislation to standardize the determination of prima facie circumstances in Article 146 proceedings is a serious and substantive contribution to Ghana’s constitutional discourse. It addresses a genuine and observable risk: that a vital check on public power—the ability to hold top officials accountable—can itself become a tool of arbitrary discretion if its gateway criteria are vague. While the Constitution entrusts the Chief Justice with an initial screening function, it does not preclude Parliament from prescribing the standards and procedures for that screening to ensure uniformity, transparency, and fairness.

Moving forward, the debate must focus on crafting a law that respects judicial independence while eliminating capriciousness. Such a law would not guarantee any particular outcome in any specific petition, but it would guarantee that all petitions are measured by the same, publicly known yardstick. This is a cornerstone of a mature democracy: the rule of law requires not just powerful institutions, but predictable and impartial processes. Standardizing the prima facie test is a step toward ensuring that Ghana’s constitutional removal proceedings are seen as a fair arbiter of conduct, not a discretionary lottery.