Stated Misbehavior Under Article 146 Is Not a Bogeyman
“Stated misbehavior” is not a novel constitutional creation. It is rooted in the common law and has long been used in Commonwealth jurisdictions to justify the removal of public officers whose conduct undermines the integrity of their office.
The Supreme Court in Agyei-Twum v. Attorney-General [2005–2006] SCGLR 732 interpreted “stated misbehavior” broadly to include corruption, abuse of office, bias, or other conduct that undermines public confidence in the judiciary.
Importantly, the Court rejected the idea that administrative acts of the Chief Justice fall outside Article 146. As the Court explained:
“… the Plaintiff’s argument on this issue is founded on the fallacy that a Chief Justice’s conduct in the administration of the Judiciary can never ever be construed as a ‘stated misbehaviour’ or ‘incompetence’ within the meaning of Article 146 of the Constitution… As far as the Chief Justice is concerned, I think it is reasonable to link his conduct of his administrative responsibilities with his position as a Justice of all the Superior Courts. Justices of the Superior Courts are required to adhere by certain judicial ethics which can be infringed by the conduct of a Chief Justice in the performance of administrative acts. It is therefore unacceptable to exclude, a priori, all administrative acts of the Chief Justice from scrutiny as possible evidence of stated misbehaviour in his capacity as a Justice of the Superior Courts.”
This passage affirms that administrative conduct is not immune. Where the Chief Justice abuses transfer powers, manipulates case assignments, or misuses administrative discretion, such actions may properly constitute stated misbehavior under Article 146.
It is therefore clear that stated misbehavior is more than casual misconduct. It requires:
1. Specificity – the acts must be clearly alleged and capable of proof.
2. Seriousness – trivial mistakes, errors of judgment, or mere disagreements do not suffice.
3. Connection to judicial office – the conduct must relate to judicial functions, the exercise of judicial power, or the administration of justice.
Applying this definition and the guidance in Agyei-Twum, the following allegations, if proven, fall squarely within the constitutional meaning of stated misbehavior:
1. Financial impropriety: This implicates integrity and honesty, both central to judicial office. Misuse or mismanagement of funds erodes public confidence and constitutes classic misbehavior.
2. Interference and tampering with judicial proceedings: This goes to the heart of judicial independence. Any manipulation of proceedings violates due process and undermines the rule of law.
3. Abuse and misuse of transfer, dismissal, and case assignment powers: This illustrates arbitrariness and administrative abuse. If exercised for improper motives, such powers become tools of intimidation and bias, contrary to Articles 125–127 on judicial independence.
4. Contemptuous disregard for judicial process and the judicial power of the courts: This constitutes insubordination to the very judicial authority the officer is sworn to uphold. It undermines the legitimacy of the judicial system.
5. Capricious and arbitrary fixing of cases for hearing: Case management powers must be exercised fairly. Arbitrary scheduling prejudices litigants and weakens faith in judicial impartiality.
6. Undermining the independence of the judiciary: This is probably as serious as it gets. Judicial independence is a constitutional value under Articles 125–127. Any conduct eroding it, such as circumventing established processes for nominations and directly lobbying the President, amounts ipso facto to misbehavior under Article 146.
We must not lower the bar so far that misconduct is excused under the guise of discretion. Regardless of who is accused, and no matter the spin, ask yourself these questions.
If the answer to any is yes, then the conduct, if proven, amounts to misbehavior under Article 146:
1. Integrity – Did the act involve dishonesty, corruption, or financial impropriety?
2. Judicial Function – Did it interfere with the fair administration of justice or tamper with proceedings?
3. Abuse of Power – Was authority exercised capriciously, arbitrarily, or for improper motives?
4. Respect for Process – Did the conduct show contempt for established judicial procedures or the authority of the courts?
5. Judicial Independence – Did the act compromise the autonomy of judges or the independence of the judiciary as an institution?
Judges, by the power vested in them, can do more harm to the polity than any other public officer. As a result, they must be held to a higher standard, never a lower one as is being advocated by some.
The Agyei-Twum Court also addressed the concern of executive interference in the removal process. It clarified that the President’s role in initiating Article 146 proceedings by constituting a committee does not in itself undermine judicial independence:
“Moreover, the fact that it is the President who establishes a Committee under Article 146 to investigate an allegation that a Chief Justice has been guilty of such misfeasance of his administrative responsibilities as to bring him within the meaning of ‘stated misbehaviour’ under Article 146(1) does not necessarily imply Executive interference in the affairs of the Judiciary.”
Thus, the President’s role is procedural, not substantive, and the safeguard lies in the independence of the committee process itself.
*The attempt to spin Article 146 proceedings as executive interference must therefore be firmly rejected.*
*PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.*
*Da Yie!*
