Article 146 Now Probably the Most Complicated Provision Within the Constitution—Kamal-Deen Abdulai

Introduction

Recent public discourse in Ghana has turned a spotlight on Article 146 of the 1992 Constitution, with legal experts and political commentators debating its clarity and application. Kamal-Deen Abdulai, Deputy National Communications Director of the New Patriotic Party (NPP), has raised serious concerns about the interpretation and enforcement of this constitutional provision, describing it as potentially “the most confused position” within Ghana’s supreme law today.

Key Points

Background

Article 146 of Ghana’s 1992 Constitution establishes the procedures and grounds for removing justices of the superior courts and other high-ranking officials. The provision specifically addresses situations involving “stated misbehaviour” or incompetence, requiring a formal process that includes petitions, prima facie determinations, and potential investigations.

The current controversy stems from recent applications of Article 146, particularly concerning petitions against the Chief Justice. These cases have highlighted significant variations in how different bodies interpret the threshold for establishing a prima facie case of misbehavior or incompetence.

Analysis

The “Green Letter” Controversy

Abdulai referenced a communication from the Jubilee House, often referred to as the “Green Letter,” which addressed a petition seeking a prima facie determination. This letter stated that while the allegations raised critical constitutional and administrative questions, they did not meet the threshold required for establishing a prima facie case of stated misbehavior or incompetence.

The letter’s reasoning emphasized that 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.”

Selective Application Concerns

A central concern raised by Abdulai involves the apparent inconsistency in applying Article 146. He pointed to previous cases where similar allegations, particularly regarding administrative procedures and travel policies, were deemed sufficient to establish a prima facie case. This contrast has led to questions about whether cherry-picking or selective application of the law is occurring.

Legal Interpretation Challenges

The debate surrounding Article 146 highlights fundamental challenges in constitutional interpretation. Legal commentators have offered varying perspectives on what specifically constitutes “stated misbehaviour,” creating uncertainty about the provision’s practical application.

Abdulai noted that “many legal pundits or legal luminaries will come out with their various angles” on the matter, demonstrating the complexity and subjectivity inherent in interpreting constitutional language.

Practical Advice

For Legal Practitioners

1. **Thorough Documentation**: When preparing petitions under Article 146, ensure comprehensive documentation of alleged misbehavior, including clear evidence of intentional wrongdoing or manifest inability to perform constitutional functions.

2. **Precedent Research**: Carefully examine previous Article 146 cases to understand how similar allegations were treated and what thresholds were applied.

3. **Clear Factual Basis**: Focus on establishing preliminary, clear facts rather than relying on conclusions of unlawfulness or bad faith alone.

For Public Officials

1. **Administrative Compliance**: Maintain strict adherence to administrative procedures and policies to minimize vulnerability to Article 146 proceedings.

2. **Transparency**: Where possible, voluntarily disclose relevant information and reasoning behind decisions to promote transparency and public trust.

3. **Legal Counsel**: Seek comprehensive legal advice when facing potential Article 146 proceedings to ensure proper understanding of rights and obligations.

FAQ

Conclusion

The controversy surrounding Article 146 of Ghana’s 1992 Constitution underscores the critical importance of clarity and consistency in constitutional provisions. As Kamal-Deen Abdulai has highlighted, the current ambiguity and apparent selective application of this provision create significant challenges for the rule of law and public trust in constitutional processes.

Moving forward, Ghana may need to consider legislative or judicial clarification of Article 146 to establish clearer standards for determining “stated misbehaviour” and ensure consistent application across similar cases. Until such clarification is achieved, the provision will likely continue to generate debate and uncertainty regarding its proper interpretation and enforcement.

The situation also emphasizes the broader principle that constitutional provisions must be sufficiently clear and consistently applied to maintain their legitimacy and effectiveness in governance. As Ghana continues to develop its democratic institutions, addressing these constitutional ambiguities will be crucial for strengthening the rule of law and public confidence in the judicial system.

Sources

– Joy News AM Show interview with Kamal-Deen Abdulai (February 19, 2026)
– Presidential correspondence regarding Article 146 petitions
– Ghana’s 1992 Constitution, Article 146
– Legal commentary from various Ghanaian legal experts and practitioners
– Multimedia Group Limited publications on constitutional matters