Justice, Power, and Timing: Why the Chief Justice needn’t see petitions against her too soon

The recent controversy surrounding petitions against Ghana’s Chief Justice, Gertrude Sackey Torkornoo, has exposed a procedural tightrope our democracy must walk; how to balance due process for the accused with necessary protection for those who dare challenge power.

As the nation watches YET ANOTHER constitutional drama unfold, a question cuts to the heart of our judicial principles: At what point should the Chief Justice receive copies of petitions lodged against her?

And more pointedly: What if the allegations themselves speak to the misuse of judicial power? What if the petitioners genuinely fear retaliation? Should she be granted prior access to the allegations before their basic credibility has even been assessed?

This is no trivial concern. The Chief Justice herself has formally requested copies of the three petitions that triggered the President’s consultation with the Council of State.

Some legal minds, including the New Patriotic Party’s Kow Essuman, have sounded alarms that the Chief Justice has yet to receive these “so-called” petitions currently under prima facie consideration by the President and Council of State.

They argue this violates natural justice, citing Justice Benin’s pronouncement in the Dery v. Tiger Eye (2016) case that “the Chief Justice should at least seek a response from a named respondent before making a prima facie determination.”

This argument carries weight. After all, how can one defend against accusations one hasn’t seen? But there is an important distinction: Justice Benin was referring to instances where the Chief Justice is making the prima facie determination, not when she is the subject of it.

Yet the opposing view deserves equal consideration. To be clear: Article 146 of the 1992 Constitution does not require that the subject of a petition be notified before a prima facie determination is made, especially when that subject is the Chief Justice herself. Should the petitions allege bias, abuse of power, or retaliatory conduct by the highest judicial officer in the land, premature disclosure could endanger petitioners.

Why? Because the nature of some petitions may speak precisely to judicial overreach, intimidation, or bias. To disclose such allegations too early risks endangering petitioners and undermining the very integrity of the process. The Chief Justice wields enormous influence over courts, staff, and systems; influence that, in theory, could be misused against those who have raised concerns.

This is not speculative caution. The entire structure of Article 146 is built on the logic of procedural safeguards, first, assess the merit of a complaint before exposing the complainant. It is a firewall against power, not a courtesy delay.

The Charlotte Osei precedent is often cited, though not always accurately. Some argue that she was informed of the petition only after a prima facie case had been established and a committee formed. Others say she was notified earlier. What is confirmed is that she made a formal request for copies of the petition to the Chief Justice as per a December 2017 publication, who at the time sat on the matter. This suggests that even she was not automatically privy to the petitions in the early stage.

So, what then is the right balance?

Article 146 of our Constitution, while thorough in many aspects, leaves this critical timing question frustratingly vague. It outlines a process where petitions go to the President, who consults with the Council of State on prima facie merit before forming an investigative committee; but remains silent on when the subject of these petitions must be informed.

In an ideal world, petitioners should be protected and respondents should be informed. One possible reform would be the creation of an independent ombudsman to anonymise petitioner identities while presenting the full substance of the allegations for a fair response.

What’s clear is that natural justice is not a blunt instrument. It does not demand premature exposure to accusations before they’ve been assessed for merit. It demands fairness; and fairness, in this context, includes protecting petitioners from the possibility of judicial reprisal.

Parliament would do well to clarify Article 146 procedures, but the current sequence is not merely coincidental, it is a deliberate architecture designed to balance power with accountability and prioritises integrity of process over comfort of the accused.

Until then, we must remember that both principles—due process and protection from power—are equally vital pillars of the constitutional temple we continue to build. But fairness must cut both ways.

A process that prematurely alerts a potentially compromised authority figure about accusations of bias, without first testing those accusations, is not justice. It is self-preservation masquerading as principle.

The truth is this: justice isn’t just about being heard, it’s also about when, which fairness in sequence, not just in form. Let the process breathe. Let the Council of State advise. If a prima facie case is made, the Chief Justice will have every opportunity to respond, fully and formally. We should uphold fairness not only in substance but also in sequence.

In a true democracy, we need not sacrifice fairness for safety, nor protection for process. We must demand both, or risk undermining the very judicial values we seek to defend

The post Justice, Power, and Timing: Why the Chief Justice needn’t see petitions against her too soon first appeared on 3News.

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