Ghana’s Council of State once operated for 24 years without a former Chief Justice among its members, according to private legal practitioner Martin Kpebu.
Speaking on the current vacancy within the advisory body, Kpebu argued that the council remains fully constitutional and capable of executing its duties even when ex-officio positions remain unfilled.
"In my view, the absence of a former Chief Justice on the Council of State doesn't in any way affect its work and constitutionality," Kpebu said.
The statement comes during public discussion over the composition of the advisory council, which is established under Article 89 of the 1992 Constitution of Ghana to advise the President on national affairs.
Under the constitution, the Council of State includes a former Chief Justice who has held office, provided such a person is available and willing to serve.
The body also brings together a former Chief of Defence Staff of the Ghana Armed Forces, a former Inspector General of Police, the President of the National House of Chiefs, elected regional representatives, and presidential nominees.
Questions over the body’s constitutional validity often surface when one of these designated institutional seats remains vacant.
Kpebu pointed out that history shows the advisory council has operated through long stretches without a former head of the judiciary sitting among its members.
According to Kpebu, the council ran for 24 years without a former Chief Justice without its advice or constitutionality being overturned in court.
Ghana returned to constitutional democracy in 1993 following the adoption of the 1992 Constitution.
Since the establishment of the Fourth Republic on 7 January 1993, the Council of State has advised successive presidents on executive decisions, public appointments, and legislative matters.
Article 89 of the constitution outlines the framework for the council, designating it as a body of prominent citizens tasked with offering counsel to the head of state.
The legal architecture of the council allows it to form a quorum and carry out its constitutional mandate even when certain designated seats are unoccupied.
Kpebu stated that the work of the council depends on its collective mandate rather than the presence of any single individual or former office holder.
When a former Chief Justice is unavailable or unwilling to take up the role, the council continues to meet and advise the President.
The work of the Council of State includes reviewing legislation, considering presidential nominations for public office, and advising on national security issues.
In Ghana's governance structure, the council acts as a consultative body, providing non-binding advice to the President.
Kpebu stated that the legal precedent established across decades of Fourth Republic governance confirms that vacancies among ex-officio positions do not paralyze the advisory body.
His comments address ongoing debates among legal analysts and civil society groups regarding whether missing ex-officio members weaken the formal authority of the council.
The 1992 Constitution requires regional representatives on the council to be elected by electoral colleges formed in each region of the country.
Along with these regional delegates, the President appoints eleven members directly to serve on the advisory body during each presidential term.
The inclusion of former heads of state institutions, such as the police and armed forces, was designed to bring institutional experience to the consultative process.
However, where no qualified former official is available or willing to serve, the institutional seat simply remains vacant for that duration.
Legal practitioners frequently examine the structural mechanics of Article 89, particularly when public institutions face vacancies.
Kpebu maintains that the practical reality of 24 years of operation without a former Chief Justice demonstrates that the system functions as intended.
The duties of the council involve reviewing bills passed by Parliament before presidential assent, as well as evaluating appointments to constitutional bodies like the Electoral Commission.
It also holds authority to request briefings from ministers of state and heads of public institutions on matters of public policy.
Members of the Council of State take an oath of secrecy and an oath of office before assuming their duties at the seat of government.
Because the council acts in an advisory capacity, its formal communications are delivered directly
According to 3News.
