Jonathan Alua: Lawyer writes open letter to GBA over resolution on CJ suspension

RE: Suspension of the Chief Justice of Ghana — A Reaction to the GBA’s Communique

Dear GBA Executives,

The Ghana Bar Association (GBA) has faced criticism for its silence. This is concerning because the GBA plays a crucial role in democracy. Historically, it has provided leadership during national crises. With new leaders, members expect the GBA to be a strong voice.

However, this does not mean we should become partisan advocates. I write this out of frustration. The GBA's recent actions have created confusion and indecision among members.

I want to address the resolutions from the Mid-Year Conference and explain why they are misguided.

A. Revocation of the Suspension

The GBA calls for the immediate revocation of the Chief Justice's suspension. It claims this suspension is unconstitutional since it was made by the President without proper regulations.

However, the GBA lacks authority to demand such a revocation. Using our voice to urge action from other government branches seems futile. This makes us appear powerless and shows poor judgment.

The GBA should speak on national issues as stated in Article 2 of our Constitution. However, we must avoid making statements lacking legal or moral basis.

We owe a duty to both the public and our profession. While some may disagree with the Chief Justice’s suspension, that decision rests with the President and Council of State.

I firmly believe that once a prima facie case is established, suspension becomes mandatory under Article 146(10). This interpretation prevents undue influence on judges involved in such matters.

Even if one disagrees with my view, it remains clear that discretion lies with the President. The GBA misapplies legal arguments regarding Article 296 and fails to recognize its flaws.

Prof. Samuel Date-Bah provides guidance in Ransford France v. Electoral Commission & Attorney-General. He warns against invalidating discretionary acts simply due to lack of accompanying regulations.

He states that reasonable actions taken without malice do not invalidate legality despite missing regulations.

B. Enactment of Regulations

Does Article 146 require additional regulations? Perhaps, but context matters here too. If processes are fair and transparent, extra regulations may not be necessary.

Could they help? Yes, but they aren't essential for procedural fairness under current provisions.

C. Release of Prima Facie Determination

This demand raises concerns for me as a legal practitioner. Article 146(8) states all proceedings must be held in camera until after a prima facie determination is made.

Citing past practices like Charlotte Osei's removal is misleading; those disclosures may have been unauthorized and do not set precedent.

D. Other Comments

I find it puzzling that the GBA suggests an attack on the Judiciary exists now. A lawful process is underway overseen by Supreme Court judges who understand their responsibilities well.

Claiming an attack while questioning judicial oversight creates contradictions in our stance as guardians of law.

We should avoid issuing statements that undermine constitutional processes we are sworn to uphold.

There is only one Bar; let us act accordingly.

Signed,
Jonathan A. Alua