Ghana Chief Justice: SOE Visits Unconstitutional, Sparking Debate

• Ghana's Chief Justice has been visiting State-Owned Enterprises (SOEs) to assess their performance, sparking constitutional debate.
• Critics argue these visits are unconstitutional, exceeding the Chief Justice's mandate under Article 125(4) of the 1992 Constitution, which limits duties to judicial administration.
• The engagements are seen as an ultra vires act, encroaching on the executive's role in supervising SOEs and violating the separation of powers.
• Concerns are raised that the Chief Justice's involvement with frequent litigants compromises judicial independence and the appearance of impartiality.
• The visits are also criticized as political work, potentially blurring the lines between judicial and executive functions and undermining public trust.

When the Chief Justice engages in assessing the performance of entities that are frequent litigants before the courts, it creates a perception of bias.

Ghana's Chief Justice has recently undertaken visits to various State-Owned Enterprises (SOEs) with the stated purpose of assessing their performance. These engagements have sparked significant debate, with critics contending that such actions fall outside the constitutional remit of the judicial office and raise serious questions about the separation of powers in Ghana.

The visits have drawn particular attention due to the nature of the entities involved, which include major public corporations like GRIDCo, COCOBOD, TOR, ECG, and Ghana Water Company Limited. The Chief Justice's direct involvement in evaluating these executive commercial entities has been characterized by some as an overreach, blurring the lines between the judiciary and the executive branches of government.

Concerns have been amplified by comments reportedly made by the Chief Justice during these visits, which some interpret as venturing into political commentary. The perceived shift from a purely judicial role to one resembling a governmental oversight function has ignited a discussion regarding the appropriate boundaries of judicial authority and the potential for compromising the judiciary's neutral standing.

The 1992 Constitution of Ghana precisely defines the functions of the Chief Justice, primarily outlining two core responsibilities. According to Article 125(4), the Chief Justice serves as the Head of the Judiciary, tasked with its administration and supervision. Additionally, Articles 128(1) and 128(3) establish the Chief Justice as a Justice of the Superior Courts, responsible for presiding over sittings of the Supreme Court.

This constitutional framework is designed to uphold the principle of separation of powers Ghana, explicitly insulating the judiciary from executive and legislative interference. Article 125(3) underscores this by stating that neither the President, Parliament, nor any of their associated organs or agencies shall possess or be granted final judicial power. By extension, this principle implies that the judiciary should not assume executive or legislative functions, maintaining distinct roles for each branch of government.

State-Owned Enterprises, in contrast, are established under statute, as stipulated by Article 190 of the Constitution, and fall squarely within the executive arm of government. Their oversight and supervision are constitutionally assigned to the President, operating through entities like SIGA and relevant sector Ministries, as well as to Parliament through its oversight functions, and the Auditor-General. The Chief Justice's administrative mandate, as defined by Article 125(4), is strictly limited to the judiciary itself.

Critics argue that the Ghana Chief Justice SOE visits are unconstitutional, specifically contending that they constitute an ultra vires exercise of power, exceeding the Chief Justice administrative mandate. The administration and supervision of the judiciary, as outlined in Article 125(4) of the Ghana 1992 Constitution, cannot legitimately be expanded to include the inspection or assessment of commercial entities that are part of the executive branch. Such an interpretation, it is argued, stretches the constitutional provision beyond its intended scope.

This alleged overreach is seen as constitutional officiousness, where the judicial head assumes responsibilities that are not only outside their defined role but are explicitly assigned to other governmental bodies. The argument posits that an SOE like GRIDCo or COCOBOD is not a division of the Judicial Service, nor are entities such as TOR, ECG, or Ghana Water Company Limited under the Chief Justice's supervision as part of the judiciary. Therefore, these visits lack a constitutional basis and are deemed unwarranted.

A significant concern arising from the Chief Justice's visits to SOEs is the potential erosion of the appearance of judicial independence Ghana. Article 127(1) of the Constitution mandates that in the exercise of judicial power, the judiciary must be subject only to the Constitution itself, free from the control or direction of any person or authority. When the Chief Justice engages in assessing the performance of entities that are frequent litigants before the courts, it creates a perception of bias.

Many SOEs, including ECG and COCOBOD, are regularly involved in legal disputes. By actively touring and evaluating these organizations, the Chief Justice risks transforming from an impartial arbiter to an interested party, thereby compromising the judiciary's perceived neutrality. This involvement could lead to questions about the fairness of proceedings when these entities appear before the courts, potentially undermining public confidence in the judicial system's ability to render unbiased judgments. The actions are seen as a form of political work, where the judicial robe is perceived as a political jersey, further complicating the notion of ultra vires judicial power Ghana.

Lawyers should be aware of potential challenges to judicial impartiality in cases involving State-Owned Enterprises, given the Chief Justice's direct involvement in assessing their performance, which could be argued as exceeding constitutional mandate and compromising judicial independence. This could impact litigation strategy or arguments concerning judicial bias in such matters.

Source: Original reporting via Ghanaian news outlet