A legal scholar and governance advocate, Professor Stephen Kwaku Asare, popularly known as Kwaku Azar, has questioned former Chief Justice Sophia Akuffo’s position on the role of the Council of State in determining whether a petition against a Chief Justice establishes a prima facie case.
He explained that the Council of State’s involvement in the preliminary screening of such petitions stems from the Supreme Court’s decision in Agyei Twum v Attorney-General.
Kwaku Azar explained that the court, presided over by then-Chief Justice Sophia Akuffo, held that before the President appoints a committee of inquiry, the President must determine, in consultation with the Council of State, whether the petition discloses a prima facie case.
“Justice Sophia Akuffo presided over the court that reached that conclusion,” Professor Asare stated in a Facebook post.
He argued that the judgment therefore gave the Council of State a significant role in the screening process, adding that it was reasonable to assume that the Supreme Court considered the Council competent to participate in that determination.
Kwaku Azar said a prima facie assessment is a limited preliminary exercise which asks whether, assuming the allegations are true, they disclose sufficient grounds to warrant a full inquiry.
“It does not decide whether the allegations are true,” the legal scholar explained.
He further rejected suggestions that the use of a prima facie test automatically makes the process quasi-criminal or exclusively judicial.
“Preliminary screening occurs in civil, criminal and administrative settings,” he wrote, adding that its use in a criminal case does not make it inherently “quasi-criminal”.
Additionally, he cited the example of grand juries, which, although legally distinct, perform a comparable screening function when determining whether there is probable cause to indict.
His comments follow Justice Sophia Akuffo’s disagreement with the Council of State’s conclusion on a petition against Chief Justice Gertrude Torkornoo.
Kwaku Azar acknowledged that Justice Akuffo was entitled to disagree with the Council’s decision, noting that 30 other members supported a finding that the petition disclosed a prima facie case.
However, he drew a distinction between disagreeing with the Council’s conclusion and questioning its competence to participate in the process.
“Disagreeing with the answer is not the same as saying the Council was unqualified to take part in answering the question,” he stated.
He said Justice Akuffo could also make a case for the Supreme Court to reconsider its earlier decision in Agyei Twum, noting that the court has the authority, in an appropriate case, to depart from its own precedent.
But he challenged her to explain what had changed if she now considers prima facie screening to be exclusively a judicial function.
“If she now believes prima facie screening is exclusively a judicial act, she should explain why the court she presided over gave that role to the President in consultation with the Council,” he said.
Kwaku Azar directly questioned the former Chief Justice over the apparent change in position.
“GOGO is confused. She had no issue in voting to assign the prima facie determination to the Council of State. What changed since Agyei Twum?” he asked.
