By Nana Nsiah Foster
The ongoing legal battle between Ghana’s former Chief Justice, Gertrude Torkornoo, and the state has taken a critical procedural turn at the ECOWAS Community Court of Justice, raising fresh questions about due process, judicial accountability, and the integrity of constitutional removal mechanisms in West Africa.
In a ruling that has already sparked debate among legal analysts and governance experts, the regional court granted an application by Deputy Attorney-General Dr Justice Srem Sai to regularise a defence filed out of time in a human rights case brought by Justice Torkornoo. The decision effectively allows the Ghanaian state to remain fully engaged in proceedings despite missing a key procedural deadline—an outcome that legal observers say reflects both the flexibility and tensions inherent in supranational justice systems.
A Case Rooted in Constitutional Crisis
Justice Torkornoo’s case stems from her suspension under Article 146 of Ghana’s 1992 Constitution—a provision that governs the removal of superior court judges, including the Chief Justice. She initially filed her complaint at the Human Rights Court, arguing that the removal process violated her fundamental human rights, including fair hearing, due process, and protection from arbitrary administrative action.
Following her eventual dismissal from office, she escalated the matter to the ECOWAS Court, amending her application to directly challenge the legality and fairness of her removal.
Legal scholars note that the move to the ECOWAS Court reflects a growing trend among African litigants seeking regional remedies when domestic processes are perceived as compromised or insufficient. The ECOWAS Court, headquartered in Abuja, has increasingly become a forum for human rights adjudication, particularly in politically sensitive cases involving state authority.
Missed Deadlines and Legal Maneuvering
The procedural controversy at the heart of the latest ruling revolves around the state’s failure to meet a 30-day deadline to file its defence after the ECOWAS Court granted leave for Justice Torkornoo to amend her application.
The deadline expired on March 1, 2026. However, the Attorney-General’s office failed to submit its response within the stipulated timeframe. Instead, the defence was filed late, accompanied by a request for the court to exercise its discretion and admit it.
Counsel for Justice Torkornoo strongly opposed the move, arguing that the state had not only defaulted on the timeline but had also failed to follow proper legal procedure by not filing a formal application for an extension of time.
They urged the court to strike out the defence entirely—an outcome that could have significantly weakened the state’s position in the case.
“This is not merely a technical lapse,” one member of the legal team told investigators. “It goes to the heart of procedural fairness. Rules exist to ensure equality before the law.”
State’s Defence: Lack of Notice
In response, Deputy Attorney-General Dr Justice Srem Sai argued that the delay was not deliberate. He told the court that the state had not been served with the court’s directive outlining the filing deadline and was therefore unaware of the timeline.
According to him, the defence was filed promptly once the state became aware of the order through a hearing notice. He also cited the intervention of a public holiday as a contributing factor to the delay.
He appealed to the court to prioritise substantive justice over procedural technicalities.
“The interest of justice demands that the state be heard,” he argued, according to proceedings reviewed by this publication.
Court Pushback: Questions Over Legal Practice
However, the court appeared unconvinced by aspects of the state’s explanation. Judges questioned the claim of عدم service, noting that under established common law principles, counsel present in court are deemed to have notice of orders once they are delivered.
The bench further observed that the appropriate legal step would have been to file a formal application for an extension of time before submitting the defence.
This position aligns with broader procedural standards across international and regional courts, where adherence to timelines is considered essential to ensuring fairness and efficiency in litigation.
Counsel for Justice Torkornoo reinforced this point, insisting that the Attorney-General’s representatives were present when the directive was issued, making claims of lack of service untenable.
A Strategic Concession
Despite their strong objections, Justice Torkornoo’s legal team adopted a strategic posture during proceedings. While challenging the legitimacy of the late filing, they ultimately did not oppose the granting of an extension outright.
Instead, they requested that if the court were inclined to admit the defence, their client be granted an opportunity to respond.
This calculated concession may reflect a broader litigation strategy—one that prioritises a full hearing of substantive issues over procedural victories that could later be contested.
The Court’s Decision
In its ruling, the ECOWAS Court granted the state’s request, effectively extending the filing deadline retroactively and admitting the amended defence into the record.
The court also gave Justice Torkornoo seven days to file a reply.
While the decision keeps both parties fully engaged in the proceedings, it has also ignited debate about the balance between procedural discipline and judicial discretion.
Expert Perspectives: Justice vs. Procedure
Legal experts contacted for this report expressed mixed reactions to the ruling.
A constitutional law lecturer at the University of Ghana noted that while courts often exercise discretion to prevent injustice, such decisions must be carefully calibrated.
“Admitting a late defence can be justified in the interest of fairness,” the expert said. “But it also risks setting a precedent where procedural rules are treated as optional—especially for state actors.”
Another regional human rights lawyer pointed out that the ECOWAS Court has historically leaned toward substantive justice, particularly in cases involving alleged rights violations.
“The court is less inclined to shut out a party entirely, especially a state, because of procedural lapses,” she explained. “The priority is often to ensure that all arguments are heard before a final determination is made.”
Broader Implications for Judicial Independence
Beyond the procedural dispute, the case itself raises profound questions about judicial independence and accountability in Ghana and across the region.
Article 146 proceedings, while designed to ensure accountability, have long been criticised for their opacity and susceptibility to political influence. Proceedings are typically held in camera, and details are rarely made public—fueling concerns about transparency.
Justice Torkornoo’s challenge could therefore have far-reaching implications, potentially setting a precedent for how judicial removals are scrutinised under regional human rights frameworks.
Governance analysts say the outcome of the case could influence future interactions between national judicial systems and regional courts.
“This is not just about one individual,” said a policy analyst with a West African governance think tank. “It’s about whether domestic constitutional processes can withstand external human rights scrutiny.”
ECOWAS Court Under the Spotlight
The case also places the ECOWAS Court itself under scrutiny.
Over the past decade, the court has built a reputation as a critical avenue for human rights redress in West Africa. However, it has also faced challenges, including enforcement of its judgments and tensions with member states.
By admitting the late defence, the court has signaled a willingness to accommodate procedural irregularities in the interest of hearing all sides—a stance that may be seen as pragmatic but not without controversy.
What Comes Next
With the state’s defence now formally admitted, the case moves into its next phase. Justice Torkornoo has been granted seven days to file her response—a timeline that suggests the court is keen to move proceedings forward without further delay.
Legal observers expect the substantive hearing to delve deeply into the legality of her suspension and removal, including whether the processes adhered to both Ghana’s constitutional standards and international human rights obligations.
Conclusion: A Defining Legal Moment
The ECOWAS Court’s decision to admit the late state defence underscores the complex interplay between procedural rigor and substantive justice in high-stakes human rights litigation.
While the ruling ensures that the Ghanaian state retains its voice in the proceedings, it also raises important questions about accountability, fairness, and the rule of law.
As the case unfolds, it is likely to serve as a defining moment—not only for Justice Torkornoo but for the broader landscape of judicial independence and human rights enforcement in West Africa.
For now, all eyes remain on the ECOWAS Court, where the next chapter of this consequential legal battle is set to unfold.