On Tuesday, Deputy Attorney General of Ghana Justice Srem-Sai shared a post on social media saying that Chief Justice Getrude Torkornoo had filed a lawsuit against the Republic of Ghana at the ECOWAS Community Court in Abuja, Nigeria on July 4. The court of justice of the Economic Community of West African States has jurisdiction over alleged human rights infractions by state members.

In his post, Justice Srem-Sai stated that Her Ladyship Getrude Torkornoo alleged that her suspension and removal from office violated her human rights because she was “removed from her official capacity without a final determination, impairing her right to function and serve in a position she was constitutionally appointed to.”

The lead-up to the chief justice’s suspension and removal began in March, when an official from President John Mahama’s office reported receiving three separate petitions and submitted them to the Council of State requesting her removal. In April, President Mahama suspended the Chief Justice, appointing a Committee of Inquiry to investigate the merits of the petitions.

In Vincent Ekow Assafuah vs. The Attorney General, the Accra Supreme Court upheld Her Ladyship Gertrude Torkornoo’s suspension, ruling that the underlying issue prompting the plaintiff’s injunction request was moot.

On May 21, Her Ladyship Gertrude Torkornoo filed an injunction application with the Accra Supreme Court against the Attorney General and the Committee of Inquiry, arguing that her suspension was unconstitutional, as the April 22 letter from President Mahama’s office did not constitute a valid determination of a prima facie case. She further claimed that the determination of a prima facie case required a judicious evaluation that would result in a reasoned decision.

In her application, the Chief Justice raised the issue of personal interest regarding the two justices and questioned whether the other three committee members appointed by the president were qualified to investigate the petitions’ merits for her removal. In addition to filing a substantive writ, the Chief Justice also filed an injunction application to halt her suspension, and to block the committee from investigating the petitions.

In a unanimous ruling, the Accra Supreme Court dismissed the injunction application, reasoning that the application failed to meet the threshold required to obtain an injunction against the exercise of a constitutional duty. In the court’s opinion, an applicant in a public law suit must: (1) sufficiently demonstrate prima facie that the court’s failure to grant an injunction would likely cause irreversible prejudice or injury to the seeking party; or (2) would irredeemably jeopardize the very subject matter of the case before a final determination.

On June 25, Her Ladyship addressed the nation regarding her ongoing suspension and removal proceedings, stating that the primary reason for her address was the unprecedented nature of the situation in that there had never been a removal hearing for a chief justice in Ghana’s 68-year history. She added that if such a process becomes necessary, it could promote good governance and establish a valuable precedent for nation-building. Her Ladyship argued that the entire removal process broke every rule as to how justice should be administered within the country. For this reason, she said she wanted to draw the nation’s attention to this issue because her removal proceedings pose a threat to Ghana’s democracy.

Her Ladyship concluded her speech by reiterating that her suspension was unconstitutional:

On my part, I chose to respect His Excellency the President’s warrant of suspension, even though it was clear to me that it was not supported by the prima facie determination required by the Constitution and decisions of the Supreme Court. I have chosen to honour the process set in place to hear the petitions. But I do not choose to hide from the nation that [the] perversion of law, rules, and due process, as we all know it, are driving the proceedings and this renders the proceedings unconstitutional.

That same day, the president’s spokesperson, Felix Ofosu, held an emergency press briefing stating that the president honoured and acted in accordance with the Constitution by respecting its spirit and letter. Felix Ofosu also emphasized that no one could point to any specific provision under Article 146 of Ghana’s 1992 Constitution that the president had breached.

Judicial independence is as much a matter of fact as it is of law. The question, then, is how practical Ghana’s judiciary independence truly is when moments like this arise.

Ghana is not the only country grappling with issues of judicial independence. In a recent interview with JURIST Associate Editorial Director Alanah Vargas, US District Judge Esther Salas of New Jersey spoke about a recent wave of unfounded personal attacks on American judges by state leaders.

An independent judiciary is the foundation of the rule of law and should never be undermined by the very laws it is meant to uphold. While Ghana’s president claims to adhere to the letter of the 1992 Constitution, there must still be some judicial mechanism to prevent the judiciary from being subsumed under a political arm of government. In light of the substantive application filed by Her Ladyship, and the ongoing hearings by the committee established to examine the merits of the petitions, isn’t injunctive relief appropriate pending the outcome of the substantive suit?

The Chief Justice’s application to ECOWAS could set a precedent that inspires constitutional reform, safeguards judicial independence, and shapes the future of Ghana’s democracy. However, a recent ECOWAS Court decision raises the risk of dismissal on admissibility grounds, as the Chief Justice’s substantive case is still pending before Ghana’s Supreme Court.