Tiger Eye cannot violate Article 146(8), By Prof Kwaku Asare
In a per incuriam (i.e., careless) unanimous decision, the Supreme Court has held that "even though Tiger Eye PI did violate article 146 clause 8 of the 1992 constitution, it does not mean that the constitutional process to inquire into the petition should be declared null and void."
Advertisement
It is profoundly wrong to perpetuate this notion that the Constitution is a Compendium of suggestions and its provisions can be violated without consequences. In fact, were Article 146(8) violated, it should follow that the constitutional process to inquire into the petition is null and void!
Article 146(8) provides that "All proceedings under this article shall be held in camera, and the Justice or Chairman against whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other expert of his choice."
Tiger Eye PI cannot violate Article 146(8) because he does not control proceedings under that Article, has no ability to hold those proceedings in or out of camera and cannot deny the Chairman or Justice against whom the petition is made hearing or access to a lawyer.
The proceedings referred to in Article 146(8) occur after someone has petitioned the President who, in turn notifies the Chief Justice who then forms a Committee to investigate the petition.
Thus, Tiger Eye's intercourse with the Constitution occurred under Article 146(3) not Article 146(8). Article 146(3) provides that "If the President receives a petition for the removal of Justice of a Superior Court other than the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition to the Chief Justice, who shall determine whether there is a prima facie case."
There is absolutely no constitutional requirement for the petition to the President to be in camera. Nor does the petition constitute part of the proceedings under Article 146(8). In fact, there is no Article 146(8) proceedings unless the Chief Justice determines there is a prima facie case. Moreover, the Chief Justice's determination and composition of the Article 146(8) panel must necessarily be sunshined!
In sum, Tiger Eye has not violated (and cannot violate) Article 146(8). Were Article 146(8) violated, for instance by holding the proceedings in public or denying the Justices hearing or access to lawyers, then, in my opinion, the process would be unconstitutional, null and void!
Da Yie!
