Abstract

This essay interrogates the constitutional and ethical architecture of Article 146 of Ghana’s 1992 Constitution, which governs the removal of superior court judges, in light of the historical precedent set by the dismissal of Chief Justice Sir Arku Korsah in 1963 by President Kwame Nkrumah. Through the recent controversy surrounding Chief Justice Gertrude Torkonoo’s removal proceedings and Lawyer Thaddeus Sory’s defense of the process, the paper argues that Ghana’s constitutional design continues to suffer from an enduring doctrinal flaw: the concentration of moral and procedural power in the executive. From a legacy-architectural perspective, the essay traces how the spirit of executive supremacy, born in the First Republic, persists within the procedural veil of Article 146.

1. Introduction

Lawyer Thaddeus Sory’s recent defense of the removal process of Chief Justice Gertrude Torkonoo under Article 146 rests on the premise that judicial independence must not be mistaken for judicial immunity, and that the constitutional procedure—though secretive—is sound and legitimate (Sory, 2025). His argument echoes a recurring theme in Ghana’s constitutional history: the tension between legal form and moral substance. Yet, to assert that “there’s something wrong with Article 146” (Owiredu, 2025) is to revisit a deeper legacy—one that reaches back to 1963, when Chief Justice Sir Arku Korsah was summarily dismissed by President Kwame Nkrumah following the treason trial of Tawia Adamafio and others. The 1963 episode remains a foundational moment in Ghana’s judicial history—a trauma of constitutional conscience.

2. The 1963 Precedent: Executive Fiat and Judicial Humiliation

Chief Justice Sir Arku Korsah, Ghana’s first post-independence head of the judiciary, presided over the trial of Tawia Adamafio and others accused of conspiracy to assassinate President Nkrumah in the Kulungugu Bomb Case. When the accused were acquitted, Nkrumah reacted with fury. Within days, Parliament passed the Special Criminal Division Act, retroactively empowering a new tribunal to retry the case—a move that directly subverted judicial independence (Austin, 1964; Boahen, 1985). Korsah, who had resisted executive interference, was summarily dismissed on December 11, 1963, by presidential fiat. No inquiry, no due process, no formal charge. The act symbolized not merely the subordination of law to power, but the erasure of procedural dignity.

3. Article 146 and the Persistence of Executive Gatekeeping

Under the 1992 Constitution, the President still occupies a pivotal role in the removal process of a Chief Justice: receiving petitions, determining prima facie merit, and appointing the investigative committee (Constitution of Ghana, 1992, Art. 146). The executive has thus remained the gatekeeper of judicial accountability. While this process appears more structured and insulated than Nkrumah’s fiat, its doctrinal foundation is strikingly similar: the executive determines whether a judge’s fate proceeds to inquiry.

4. Opacity and Ethical Blind Spots

Article 146(8) mandates that proceedings ‘shall be held in camera.’ The secrecy is defended as a safeguard of dignity, yet it effectively removes judicial accountability from public witness. During Nkrumah’s era, power was naked and spectacular—executive orders carried the force of command. In the Fourth Republic, power is veiled behind confidentiality (Ackerman, 1991). Ghana’s Article 146, by institutionalizing secrecy, inherits the ethical blind spot of its authoritarian predecessor—it replaces arbitrary dismissal with opaque ritual, but the result is the same erosion of public trust.

5. No Locus for Defense and the Legacy of Powerlessness

The denial of locus standi to a suspended Chief Justice under Article 146 mirrors Korsah’s predicament in 1963. In both cases, the individual stands defenseless before a constitutional mechanism shaped by the executive. Sory’s assertion that the accused ‘has no locus’ to contest the process (Sory, 2025) revives an old ethical question: can justice be dignified if the judge cannot defend her own dignity?

6. The Missing Ritual of Accountability

Ghana’s constitutional evolution reveals a persistent neglect of ritual clarity—the moral and symbolic acknowledgment of institutional gravity. When Nkrumah dismissed Korsah, no ceremonial lamentation marked the event; no scroll of lessons was written. The nation moved on without civic repentance. Article 146 repeats that silence, treating removal as a procedural event rather than a moment of national reflection (Gyekye, 1997).

7. From Korsah to Torkonoo: Lessons and Reforms

Both the Korsah dismissal and the Torkonoo process illuminate a recurring failure in Ghana’s constitutional journey: executive moral dominance cloaked in evolving legal forms. To overcome this historical inheritance, Article 146 should be restructured along four lines: Public hearings by default; shared oversight authority; right to contest secrecy; and ritual commemoration.

8. Conclusion: From Executive Power to Ethical Architecture

The journey from Sir Arku Korsah (1963) to Gertrude Torkonoo (2025) reflects Ghana’s constitutional paradox: progress in form, stagnation in spirit. To build a luminous constitution, Ghana must transcend legality toward ethical architecture—a constitutional order that embodies transparency, ritual dignity, and reciprocal justice.

References

• Ackerman, B. (1991). We the People: Foundations. Harvard University Press.
• Atuguba, R. (2015). “Judicial Power and Constitutional Design in Ghana.” Ghana Law Journal, 28(2), 45–68.
• Austin, D. (1964). Politics in Ghana, 1946–1960. Oxford University Press.
• Bennion, F. (1964). “The Dismissal of Chief Justice Korsah.” Modern Law Review, 27(3), 345–356.
• Boahen, A. A. (1985). Ghana: Evolution and Change in the Nineteenth and Twentieth Centuries. Longman.
• Constitution of the Republic of Ghana (1992). Accra: Assembly Press.
• Gyekye, K. (1997). Tradition and Modernity: Philosophical Reflections on the African Experience. Oxford University Press.
• Owiredu, J. (2025, October 15). “There’s Something Wrong with Article 146.” GhanaWeb Opinion.
• Rawls, J. (1971). A Theory of Justice. Harvard University Press.
• Sory, T. (2025, October 10). Interview on Okay FM’s Ade Akye Abia Morning Show. Accra.