Ghana Lotto Operators Association v. National Lottery Authority (Nla) 2008

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Case
GHANA LOTTO OPERATORS

ASSOCIATION
V.
NATIONAL LOTTERY AUTHORITY
(2008) JELR 68447 (SC)
SUPREME COURT · REF. NO. J6/1/2008 · 23 JUL 2008 · GHANA
CORAM
BROBBEY J.S.C. (PRESIDING), DR. DATE-BAH J.S.C., ANSAH J.S.C., ANIN-YEBOAH J.S.C.,
BAFFOE-BONNI
RULING
DR. DATE-BAH, JSC:
The original jurisdiction of the Supreme Court has been invoked in this case by a
reference made by His Lordship Justice Abada from the High Court, Accra. The
issue referred to us for determination is: “whether Act 722 violates Articles 33(5),
35(1) and 36(2) of the 1992 Constitution”. The reference is clearly made in
accordance with article 130 (2) of the Constitution, which provides that, where an
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6/4/2020 GHANA LOTTO OPERATORS ASSOCIATION V. NATIONAL LOTTERY AUTHORITY | Legal Research for Commonwealth Lawyers | JUDY
issue that relates to the enforcement or interpretation of the Constitution or to

matters arising as to whether an enactment has been made in excess of the powers
conferred on Parliament or any other authority by law or under the Constitution
arises in any proceedings in a court other than the Supreme Court, the court is
obliged to stay proceedings and refer the question of law concerned to the Supreme
Court for determination.
The background to this reference is that on 27th December, 2006, the President
gave his assent to The National Lotto Act, 2006. This Act established the National
Lotto. The National Lottery Authority was established under Part II of the Act to
conduct the National Lotto. Section 4 of the Act prohibits any person other than
the National Lottery Authority from operating any form of lottery. The second to
seventh plaintiffs are companies established under the laws of Ghana to operate
private lotto business. The first plaintiff is also a company established under the
laws of Ghana whose object is to foster a cordial relationship among private lotto
operators and to assist distressed lotto operators.
The plaintiffs’ complaint is that after the establishment of the defendant, it caused
newspaper announcements to be issued in July 2007 about its establishment.
These announcements publicised the statutory provision that a person other than
the National Lottery Authority (which will be referred to subsequently in this
opinion as “the Authority”) shall not operate any form of lottery in Ghana. The
announcements also stated that: “In view of the establishment of the Board, all
persons who before the commencement of this Act, possesses or own a machine or
equipment used for the operation of lottery of any kind, shall within fourteen days
after the commencement of this Act surrender the machine or equipment to the
Director-General by 14th August, 2007. Section 58(4)”. The plaintiffs were aggrieved
by the contents of these announcements and therefore issued a writ of summons
against the Authority on 13th August 2007, claiming the following remedies:
1. “A declaration that the directive from the Defendant to private lotto operators to
surrender machines or equipment used for the operation of lottery to the Director-
General of the Defendant by the 14th August 2007 is unconstitutional, illegal and
unreasonable.
2. An order setting aside the directive referred to in relief (1) above.

3. An order restraining the Defendant itself, its agent(s), servant(s) or any person(s)
howsoever described acting for or purporting to act for the Defendant from
unlawfully, unconstitutionally or unreasonably interfering with the property rights
of the Plaintiffs.
4. An order restraining the Defendant itself, its agent(s), servant(s) or any person(s)
howsoever described acting for or purporting to act for the Defendant from
interfering with the private lotto operating business of the Plaintiffs.
5. A declaration that the National Lotto Act, 2006 (Act 722) to the extent that it
outlaws the operation of lotto business by private lotto operators, infringes the
constitutionally guaranteed right of the private lotto operators to free economic
activity.
6. A declaration that the creation of the National Lottery Authority to take over and
monopolise the operation of the lotto business in Ghana infringes the
Constitutional injunction to the government to ensure a pronounced role of the
private sector in the economy.
7. Any further order(s) as the court may deem fit.”
After filing their writ and statement of case, the plaintiffs applied for an
interlocutory injunction to restrain the defendant from interfering with their
property rights or lotto business pending the final determination of the matters
raised in their writ. It was in the ruling of Abada J on this application that he
decided to make the present reference to the Supreme Court.
The reference
First Issue: Does Act 722 violate Article 33(5)?
Article 33(5) provides that:
“The rights, duties, declarations and guarantees relating to the fundamental

human rights and freedoms specifically mentioned in this Chapter shall not be
regarded as excluding others not specifically mentioned which are considered to
be inherent in a democracy and intended to secure the freedom and dignity of
man.”
The plaintiffs are not altogether explicit about how Act 722 violates Article 33(5).
Clarity requires that the plaintiffs specify what rights of theirs have been infringed
by Act 722 and which are not mentioned in Chapter 5 of the Constitution, but
which should nevertheless be regarded as fundamental human rights or freedoms.
Evidence of such rights can be obtained either from the provisions of international
human rights instruments (and practice under them) or from the national human
rights legislation and practice of other states. No such clear evidence is provided in
the Statement of Case of the plaintiffs. There is some resort to the provisions of
some international human rights instruments on the right to work. (These include
Art. 23(1) of the Universal Declaration of Human Rights; the International
Covenant on Economic, Social and Cultural Rights, which the plaintiffs claim
Ghana has signed and ratified; and the African Charter on Human and Peoples’
Rights..) The argument does not appear, however, to be made that the right to work
is what is being asserted under article 33(5) and that Act 722 is in breach of such an
imported human right which is inherent in a democracy. The core of the plaintiffs’
complaint, rather, it seems to us, relates to the allegation that Act 722 stifles private
initiative. This has more to do with article 36, whose justiciability we will be
examining below. We do not consider that the plaintiffs have made out any
legitimate case that Act 722 violates article 33(5) of the Constitution.
The right to work may be a human right that international human right
instruments recognize. For instance, Article 6 of the International Covenant on
Economic, Social and Cultural Rights, 1966 provides that:
“(1) The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this right.
(2) The steps to be taken by a State Party to the present Covenant to achieve the full
realization of this right shall include technical and vocational guidance and
training programmes, policies and techniques to achieve steady economic, social
and cultural development and full and productive employment under conditions
safeguarding fundamental political and economic freedoms to the individual.”
However, the plaintiffs do not show with any clarity the extent to which such a
right should be imported into Ghanaian law. But even assuming that a right to
work should be imported into Ghanaian law under article 33(5), would such a right
include a right to engage in the gambling business? The business of gambling is
regulated in almost all jurisdictions. Accordingly, it would be unreasonable to
construe a right to work as including a right to engage in the private lottery
business, with an unregulated right to enter the business. Governments have to be
given some space to determine how to realize the right to work under their national
conditions.
Second issue: Is Act 722 in breach of Article 35(1)?
Article 35(1) provides as follows:
“Ghana shall be a democratic state dedicated to the realization of freedom and

justice; and accordingly, sovereignty resides in the people of Ghana from whom
Government derives all its powers and authority through this Constitution.”
This is a general provision which vests sovereignty in the people of Ghana. We do

not see how Act 722 could possibly be in breach of it. The plaintiff’s statement of
case does not spell out how Act 722 breaches Article 35(1). Accordingly, we have no
hesitation in arriving at the opinion that Act 722 does not breach Article 35(1), even
if it is justiciable, which is an issue that we will consider next in connection with
the third issue set out below.
Third Issue: Is Act 722 in breach of article 36(2)(b)?
To determine this issue, it is necessary first to establish whether the provisions in

article 36(2)(b) are justiciable. Article 36 is contained in Chapter 6 of the
Constitution which has the title: “The Directive Principles of State Policy.” The text
of article 36(2) (b) reads as follows:
“The State shall, in particular, take all necessary steps to establish a sound and
healthy economy whose underlying principles shall include
(a)...
(b) affording ample opportunity for individual initiative and creativity in economic
activities and fostering an enabling environment for a pronounced role of the
private sector in the economy;”...
By way of context, it should be mentioned that the title of article 36 is: “economic
objectives” and the first paragraph of article 36 provides that:
“The State shall take all necessary action to ensure that the national economy is
managed in such a manner as to maximize the rate of economic development and
to secure the maximum welfare, freedom and happiness of every person in Ghana
and to provide adequate means of livelihood and suitable employment and public
assistance to the needy.”
The justiciability of article 36(2)(b)
An issue is justiciable if it is capable of being settled by a court. Prima facie, one

would have thought that everything in a Constitution should be justiciable. The
Constitution is a legal document containing the most important rules on political
governance. The courts have the responsibility of ensuring that these rules are
complied with. To my mind, therefore, the starting point of analysis should be that
all the provisions in the Constitution are justiciable, unless there are strong
indications to the contrary in the text or context of the Constitution. We therefore
have much sympathy with the position of Adade JSC as he then was, in New
Patriotic Party v Attorney-General (The 31st December case) [1993-94] 2GLR 35 at
pp. 65-66 when he said:
“As stated earlier, the plaintiff relies, inter alia, on articles 35 and 41 of the
Constitution, 1992. Both these articles come under chapter 6 of the Constitution,
1992 titled: “The Directive Principles of State Policy.” It has been maintained in
certain quarters that these directive principles are not justiciable, and therefore
cannot avail the plaintiff.
I am aware that this idea of the alleged non-justiciability of the directive principles
is peddled very widely, but I have not found it convincingly substantiated
anywhere. I have the uncomfortable feeling that this may be one of those cases
where a falsehood, given sufficient currency, manages to pass for the truth.
I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not
justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable document. If
any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not
seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me
that chapter 6 is not justiciable. The evidence to establish the non-justiciability

must be internal to the Constitution, 1992, not otherwise, for the simple reason that
if the proferred proof is external to the Constitution, 1992, it must of necessity
conflict with it, and be void and inadmissible: we cannot add words to the
Constitution in order to change its meaning.”
The impression that some (including Bamford-Addo JSC(infra) have that Chapter 6
is not justiciable is probably attributable to the fact that it deals with directive
principles of state policy. These principles have been treated in India as not being
in and of themselves justiciable. However, there is a good reason for this position
in Indian law. Article 37 of the Indian Constitution says, in relation to the directive
principles of state policy, that:
“The provisions contained in this Part shall not be enforceable by any court, but
the principles therein laid down are nevertheless fundamental in the governance
of the country and it shall be the duty of the State to apply these principles in
making laws.”
Thus, it contains an explicit non-justiciability provision, in contrast to the

Ghanaian Constitution, where, in the absence of such express exclusion of the
courts, any non-justiciability conclusion has to be reached by interpretation and
implication. Any such interpretation requires an assessment and determination of
the purpose of Chapter 6.
The relevant provision of the 1992 Constitution on which a presumption of

justiciability could, with some justification, be based is Article 34(1), which is in the
following terms:
“The Directive Principles of State Policy contained in this Chapter shall guide all
citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet,
political parties and other bodies and persons in applying or interpreting this
Constitution or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society.”
Is this is a sufficient basis for asserting the enforceability in the courts of the
principles? The courts have to accept the obligation of being guided by the
principles “in applying or interpreting” the Constitution. Is this equivalent to a call
on them to enforce the principles? If one is guided by the principles in applying the
Constitution, is that not equivalent to enforcing the principles? There is need to
refer for guidance to the Proposals for a Draft Constitution of Ghana of the
Committee of Experts who formulated the draft provisions on the basis of which
the Consultative Assembly formulated the 1992 Constitution. In paragraphs 94 to
96, the Committee explains its position on the directive principles as follows:
“The NCD report speaks of the need to include in the new Constitution “core
principles around which national political, social and economic life will revolve.”
This is precisely what the Directive Principles of State Policy seeks to do. Against
the background of the achievements and failings of our post-independence
experience, and our aspirations for the future as a people, the Principles attempt to
set the stage for the enunciation of political, civil, economic and social rights of our
people. They may thus be regarded as spelling out in broad strokes the spirit or
conscience of the constitution. The Committee used Chapter Four of the 1979
Constitution as a basis for its deliberations on this subject.
By tradition Directive Principles are not justiciable; even so, there are at least two
good reasons for including them in a constitution. First, Directive Principles
enunciate a set of fundamental objectives which a people expect all bodies and
persons that make or execute public policy to strive to achieve. In the present
proposals, one novelty is the explicit inclusion of political parties among the
bodies expected to observe the principles. The reason for this is that political
parties significantly influence government policy. A second justification for
including Directive Principles in a constitution is that, taken together, they
constitute, in the long run, a sort of barometer by which the people could measure
the performance of their government. In effect they provide goals for legislative
programmes and a guide for judicial interpretation.
On the basis of the foregoing considerations, the Committee proposes as follows:

The Directive Principles of State Policy are for the guidance of Parliament, the
President, the Council of Ministers, Political Parties and other bodies and persons
in making and applying public policy for the establishment of a just and free
society. The Principles should not of and by themselves be legally enforceable by
any court. The Courts should, however, have regard to the said Principles in
interpreting any laws based on them.”
It is important to note that an important element in the Committee’s

recommendation was omitted from the provisions in the Constitution on the
directive principles as ultimately adopted. There is no language in the Constitution
stating that the principles are not of and by themselves legally enforceable by any
court. The Committee put forward in Appendix D of its report specific language on
the Directive Principles of State Policy which included clause 1(2) (at p. 224 of the
Report) which provided as follows:
“The principles shall not of and by themselves be legally enforceable by any court.”
This language does not, however, appear in the final version of the 1992
Constitution. With language such as that set out above, the Committee could
legitimately assume that the principles would not be enforceable. However, with
the omission of that language in the Constitution, we do not think that it is
necessarily to be assumed that the provisions in Chapter 6 are not intended to be
justiciable. There is a significant departure from the original proposal by the
Committee.
Furthermore, even if the original intent of the Committee was that the principles
should not be justiciable, that intent, though important, is not necessarily
determinative of the outcome of the interpretation of article 34 by this Court. We
would here like to recall an argument that was made in Asare v Attorney-General
[2002-2004] SCGLR 823 (at p. 834-5) in the following passage:
“The subjective purpose of a constitution or statute is the actual intent that the
authors of it, namely, the framers of the constitution or the legislature,
respectively, had at the time of the making of the constitution or the statute.
The objective purpose is not what the author actually intended but rather what a
hypothetical reasonable author would have intended, given the context of the
underlying legal system, history and values etc. of the society for which he is
making law. This objective purpose will thus usually be interpreted to include the
realisation, through the given legal text, of the fundamental or core values of the
legal system. A poignant illustration of objective purpose is to be found in the
Australian case of Theophenous v Herald Weekly Time Ltd. (1994) 182 CLR 104. In
this case, the High Court of Australia was faced with the issue of whether the court

could construe an implied Bill of Rights into the Australian Constitution, the
Constitution being silent on a Bill of Rights. Was the intention of the original
framers of the Australian Constitution to be conclusive on the determination of
this issue? Justice Deane observed in the Theophenous v Herald Weekly Time Ltd.
case (supra) (at p 106) that:
“The present legitimacy of the Constitution as the compact and highest law of our
nation lies exclusively in the original adoption (by referenda) and subsequent
maintenance (by acquiescence) of its provisions by the people. While they remain
unaltered, it is the duty of the courts to observe and apply those provisions,
including the implications which are legitimately to be drawn from their express
terms or from the fundamental doctrines which they incorporate and implement.
There is absolutely nothing in the provisions of the Constitution which suggests an
intention on the part of the people either that the ordinary rules of construction
should be ignored or that the failure to include a detailed list of their constitutional
“rights” should be treated as somehow precluding or impeding the implication of
rights, privileges and immunities from either the Constitution’s express terms or
the fundamental doctrines upon which it was structured and which it incorporated
as part of its very fabric. That being so, even if it could be established that it was the
unexpressed intention of the framers of the Constitution that the failure to follow
the United States model should preclude or impede the implication of
constitutional rights, their intention in that regard would be simply irrelevant to
the construction of provisions whose legitimacy lay in their acceptance by the
people. Moreover, to construe the Constitution on the basis that the dead hands of
those who framed it reached from their graves to negate or constrict the natural
implications of its express provisions or fundamental doctrines would deprive
what was intended to be a living instrument of its vitality and adaptability to serve
succeeding generations.”
If one adopts an originalist approach (to borrow a term from United States
constitutional law), that is, if one looks no further than the framers’ intention, one
could make a case for the non-justiciability of the principles. This case is however
weakened by the fact that the language proposed by the framers (in this case, the
Committee of Experts) to carry out their intent was not adopted by the
Consultative Assembly. Accordingly, the inference may legitimately be drawn that
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the Consultative Assembly was of a different view. Moreover, reliance on original

intent is a method which does not necessarily produce the right interpretative
results, as the quotation from the Theophenous case (supra) demonstrates. While
the 1992 Constitution has not yet endured for even two decades, it is nonetheless
not safe to rely on this mode of interpretation exclusively or even predominantly. A
more modern approach would be to see the document as a living organism. As the
problems of the nation change, so too must the interpretations of the Constitution
by the judiciary. Interpreting the Constitution as a living organism implies that
sometimes there may be a departure from the subjective intention of the framers of
it. The objective purpose of the Constitution may require an interpretation
different from that of the original framers of it. I think that the issue of the
enforceability of Chapter 6 of the Constitution probably illustrates the divergence
between subjective and objective purpose, if one is inclined to the conclusion that
the framers’ intent was against justiciability.
The oft-repeated words of Sowah JSC as he then was, in Tuffuor v Attorney-General

[1980] GLR 637 provide support for the living organism approach to constitutional
interpretation in this jurisdiction. He there said (at p. 647):
“The Constitution has its letter of the law. Equally, the Constitution has its
spirit....Its language, therefore, must be considered as if it were a living organism
capable of growth and development. Indeed, it is a living organism capable of
growth and development. A broad and liberal spirit is required for its
interpretation. It does not admit of a narrow interpretation. A doctrinaire approach
to interpretation would not do. We must take account of its principles and bring
that consideration to bear, in bringing it into conformity with the needs of the
time.”
The rights set out in chapter 6, which are predominantly the so-called ESC rights,
or economic, social and cultural rights, are becoming, by international practice
and the domestic practice in many jurisdictions, just as fundamental as the rights
in chapter 5. The enforceability of these ESC rights is a legitimate purpose for this
court to seek to achieve through appropriate purposive interpretation. We
therefore think that the interpretation that we give to Article 34 should take into
account this purpose of achieving an expansion of the range of enforceable human
rights in Ghana. The doctrine of a living Constitution implies, as already pointed
out above, that there is not a slavish adherence to the original subjective intent of
the framers, but rather that the interpreter takes the constitutional text as is and
interprets it in the light of the changing needs of the time. For instance, in the
United States, the living Constitution approach to interpretation had a powerful
influence during the period of President Roosevelt’s New Deal in the 1930s when
there was overwhelming public sentiment that the Constitution should be
interpreted in the light of the needs of the time. Similarly, in the light of our
history, culture and legal system, we consider the elaboration and enforcement of
ESC human rights in Ghana as a need of our time. To the extent that the semantic
possibilities of the text of Article 34 enable this need to be met, we think that this
Court should fulfil that need.
Chief Justice Aharon Barak of Israel has extra-judicially supported the view that
the subjective intent of the framers of a Constitution should not be decisive. He has
written in his book, Purposive Interpretation of Law (2005), at pp. 386-7 that:
“Subjective purpose is not decisive. Judges should not ignore it, but nor should
they give it a central role in their formulation of ultimate constitutional purpose.
Legal systems in many countries adopt this approach. Canada’s Supreme Court, for
example, accords only minimal weight to the intent of the constitutional authors in
its interpretation of the constitution. In a case discussing a provision of the
Canadian Charter providing that every person has a right to life, liberty, and
security, and that these rights cannot be denied, “except in accordance with the
principles of fundamental justice,” a question arose as to whether “fundamental
justice” is procedural (natural justice) or substantive. The court heard arguments
that the subjective intent was procedural – that the authors of the Charter, aware of
the controversy over “due process” in the United States, intentionally avoided
using the American phrase to signal their reference to procedural, not substantive,
justice. The Canadian court decided not to accord significant weight to subjective
intent, holding, in an opinion by Justice Lamer, that
Another danger with casting the interpretation of s. 7 in terms of the comments

made by those heard at the Special Joint Committee Proceedings is that, in so
doing, the rights, freedoms and values embodied in the Charter in effect become
frozen in time to the moment of adoption with little or no possibility of growth,
development and adjustment to changing social needs.... If the newly planted
“living tree” which is the Charter is to have the possibility of growth and
adjustment over time, care must be taken to ensure that historical materials ... do
not stunt its growth. Re R.C. Motor Vehicle Act [1985] 2 S.C.R. 486, 504.”
A presumption of justiciability in respect of Chapter 6 of the Constitution would

strengthen the legal status of ESC human rights in the Ghanaian jurisdiction. Of
course, there may be particular provisions in Chapter 6 which do not lend
themselves to enforcement by a court. The very nature of such a particular
provision would rebut the presumption of justiciability in relation to it. In the
absence of a demonstration that a particular provision does not lend itself to
enforcement by courts, however, the enforcement by this Court of the obligations
imposed in Chapter 6 should be insisted upon and would be a way of deepening
our democracy and the liberty under law that it entails.
In effect, one is saying that article 34 should be so interpreted as to realize the

objective purpose of Chapter 6. (See Attorney-General v Asare (supra) at p. 834 of
the Report). Since the language of the text provides the semantic basis for it, it
should be interpreted to realize the fundamental or core values of the legal system.
It is our view that the strengthening of the enforcement of fundamental human
rights is a core value of our current legal and constitutional system. Therefore, to
the extent that there is an ambiguity in the language of article 34, it should be
resolved in favour of a greater protection of fundamental human rights.
Accordingly, the provision in article 34(1) that the Directive Principles of State
Policy should guide, inter alios, the judiciary “in applying or interpreting the
Constitution”, although ambiguous, can reasonably be interpreted to mean that
the judiciary should enforce these principles.
However, it should be recognized that the enforceability of economic, social and

cultural rights need not be implemented in the same way as the political and civil
rights embodied in Chapter 5. This Court will need to be flexible and imaginative in
determining how the provisions of Chapter 6 are to be enforceable.
A view contrary to what has been elaborated above is, however, put forward by
Bamford-Addo JSCin New Patriotic Party v Attorney-General (the CIBA case).
[1997-98] 1GLR 378 at pp. 393-394., where she said:

“The question which should be posed is whether the provisions of chapter 6 have
any separate existence of their own, i.e. whether they are of and by themselves
justiciable or enforceable? Most of those provisions relate to the enjoyment of the
guaranteed fundamental rights and freedoms set out in chapter 5 of the
Constitution, 1992. As stated by the drafters of the Constitution, 1992 the directive
principles have no separate existence; they are measures by which laws are judged
for constitutionality and they afford a yardstick by which policy decisions are to be
taken and implemented for the establishment of a just and free society. This means
that until they are read and applied in conjunction with any substantive
guaranteed human rights and freedoms set out in chapter 5 of the Constitution,
1992, they remain only guidelines, and are not enforceable rights by themselves,
see Report para 96, at p. 49...
(After quoting the passage, she continues as follows:)
In general therefore it is correct to say that the directive principles are principles of
state policy which taken together constitute a sort of barometer by which the
people can measure the performance of their government. That they provide goals
for legislature programmes and a guide for judicial interpretation but are not of
and by themselves legally enforceable by any court. However, there are exceptions
to this general principle. Since the courts are mandated to apply them in their
interpretative duty, when they are read together or in conjunction with other
enforceable parts of the Constitution, 1992, they then in that sense, become
enforceable. But as clearly explained in the Report, standing independently they
are not justiciable: see also article 34 of the Constitution, 1992.”
It ought to be pointed out, first, that this view was expressed after the
pronouncement by Adade JSCof his view on the issue (supra) and therefore his
view should have been followed or the earlier case distinguished. It might be
argued that the failure in the subsequent case to follow Adade JSCs view should
bring into play issues relating to the doctrine of per incuriam. But this is not really
so. For, Bamford-Addo JSChas an explanation for her position. This is what she
says (at p. 396 -7 of the Report):
“In the case of New Patriotic Party v Attorney-General [1993-94] 2 GLR 35, SC, I
echoed the relevant parts of the Report to support my general observation that the
directive principles are not justiciable. That statement was made while considering
some articles under chapter 6 of the Constitution, 1992 which the plaintiff in that
case was relying upon in support of his case. My said statement should be qualified
to mean that in general the directive principles standing by themselves are not
justiciable as the relevant part of the Report which I quoted therein clearly state. In
that case I did not dismiss the suit but went on to consider those provisions of the
directive principles relied upon by the plaintiff, in interpreting the Public Holidays
Law, 1989 (PNDCL 220) vis-à-vis the Constitution, 1992. On that occasion
justiciability of the directive principles was not an issue for determination and was
not therefore fully argued as has been done in this case before us now. Having now
fully considered the arguments on both sides on this issue, I am of the firm view
that as stated in the Report, and quoted by me in the above mentioned case, the
principles are generally “of and by themselves” not justiciable. However, the
necessary implication in those emphasised words “of and by themselves”, as I
explained before, implies that where those principles are read in conjunction with
other enforceable provisions of the Constitution, 1992 by reason of the fact that the
courts are mandated to apply them, they are justiciable. Further, where any
provision under chapter 6 of the Constitution, 1992 dealing with the directive
principles can be interpreted to mean the creation of a legal right, ie a guranteed
fundamental human right as was done in article 37(2)(a) of the Constitution, 1992
regarding the freedom to form associations, they become justiciable and protected
by the Constitution, 1992. In conclusion, having regard to the above stated criteria
or test for justiciability of any particular provision under chapter 6 of the
Constitution, 1992 it is my view that each case would depend on its peculiar facts
and on the facts of this case article 37(2) of the Constitution regarding freedom to
form an association free from state interference is a right which is justiciable.”
On this issue of justiciability, the court was unanimous, for Ampiah, Kpegah,
Atuguba and Akuffo JSCdelivered concurrent judgments. Indeed, Akuffo
JSCexpressly adverted to the views of Adade JCAd Aikins JSCin the earlier N.P,P v
Attorney-General (31st December) case and failed to follow them. In the
Defendant’s Statement of Case filed in this reference, it purported to explain the
refusal of the later court to follow the majority view in the NPP v A-G (31st
December case) as a decision to depart from the Court’s earlier decision. Whilst the
CIBA case was certainly a de facto departure from the 31st December case, it is not
at all clear that the Supreme Court was purporting to exercise its right under article
129(3) of the Constitution to depart deliberately from its previous decision.
It will be noticed, upon reflection, that the position propounded by the Bamford-
Addo JSCin the quotation above is not vastly different from what we have
articulated above. We think that our preferred approach of a rebuttable
presumption of justiciability in relation to the provisions of Chapter 6 provides a
better framework of analysis of, and protection for, ESC rights, than the rather
relativistic, case by case approach stated by the learned judge. The two positions
are convergent in that, if a particular provision of chapter 6 does not lend itself to
enforcement by action in court, then in our preferred approach, the presumption
of justiciability would be rebutted, while, similarly, the case by case approach of
Justice Bamford-Addo would result in the court finding that the provision in
question does not create an enforceable right. The advantage of the presumption of
justiciability is that it provides a clear starting rule that is supportive of the
enforcement of fundamental human rights.
Secondly, it should be pointed out that Bamford-Addo JSCwas in the minority

dissenting group in the earlier 31st December case (supra). Her view that the
justiciability of chapter 6 was not an issue for determination is thus a controversial
one. The majority, for whom Adade JSCspoke, considered that the justiciability of
Chapter 6 was an issue in that case. Certainly, the editor of the Ghana Law Report
was of the same view since he formulates the second holding in the case as follows:
“(2) The Directive Principles of State Policy contained in the constitution, 1992, chp
6 were justiciable because:
(a) the Constitution, 1992 as a whole was a justiciable document and accordingly, if
any part was non-justiciable, the Constitution itself had to indicate it. But no
provision in the Constitution had indicated that chapter 6 was not justiciable. Yet,
the evidence to establish the non-justiciability of the principles had to be internal
to the Constitution otherwise it would be in conflict with it and thus be void and
inadmissible. Dicta of Lord Halsbury LC in Hilder v Dexter [1902] AC 474 at 477, HL
and of Lord Wright in Assam Railways and Trading Co Ltd v Commissioners of
Inland Revenue [1935] AC 445 at 458, HL approved;

(b) articles 1(2) and 2(1) of the Constitution, 1992 which rendered any law,
enactment or anything done under its authority, any act or omission of any person
inconsistent with any provision or a provision of the Constitution null and void
and empowered the Supreme Court so to declare, did not express any exception in
favour of chapter 6; and
(c) the provision in article 34(1) of the Constitution that the directive principles
should guide the judiciary "in applying or interpreting" the Constitution obliged
the Supreme Court to apply the directive principles to assist or facilitate the
performance of a citizen's duty or the enforcement of his rights under the
Constitution.”
Indeed, Adade JSCconsidered the issue in great detail before reaching his
conclusion. The following passage from his judgment shows the meticulous
attention to detail that he applied in reaching his result (see p. 69 of the Report):
“I concede that in its report, the Committee of Statutory Experts appointed in 1991
by the PNDC to make proposals for a draft Constitution did say at p 49, para 95
that: "By tradition Directive Principles are not justiciable." (The emphasis is mine.)
The committee did not say what that tradition was or is. That statement could,
unintentionally, be misleading.
In the Consultative Assembly, it was recognised that the Constitution, 1979 was the
first of our several Constitutions in Ghana (1957; 1960 (amended in 1964); 1969) to
introduce the idea of directive principles. Both the Committee of Statutory Experts
and the Consultative Assembly relied almost entirely on chapter 4 of the
Constitution, 1979 for the debates on, and form of, the directive principles
contained in chapter 6 of the Constitution, 1992. The Committee of Experts
acknowledged this much at p 49, para 94 of their report: "The Committee used
Chapter 4 of the 1979 Constitution as a basis for its deliberations." From which
acknowledgement, it would appear that the tradition the committee had in mind
was that commenced by or traceable to the Constitution, 1979.
If the committee contemplated any other tradition, it did not indicate it. In any
case, as at the time the committee was appointed in 1991, Ghana had, in this
respect, a tradition, in the Constitution, 1979, it is legitimate to conclude, in the

absence of contrary evidence, that the committee meant the Ghana tradition. By
that tradition, viz in the Constitution, 1979, the directive principles were
justiciable, which clearly contradicts the committee's statement. There was
nothing in the Constitution, 1979 which said they were not. For purposes of
confirming this interpretation, reference may be made to the parliamentary
history of the chapter, which is a permissible practice.
The question of the justiciability of the chapter on the Directive Principles of State
Policy was debated at length in the 1979 Constituent Assembly. At its twentieth
sitting on Friday, 2 February 1979 the assembly expressly resolved to make the
chapter justiciable:
"MR. CHAIRMAN [Justice VCRAC Crabbe]: Now I am going to put the question.
And the question is the amendment as proposed by Mr. Zwennes that we should
make chapter four non-justiciable be accepted by the house."
The question was then put. The result of the exercise was: "Question put and
negatived." Therefore the house rejected the idea that the directive principles
should be non-justiciable. In other words, that they should be justiciable. Given the
importance of the subject to the assembly a member after the voice vote, asked for
a head-count, and then a recording of names. In both, the justiciable group
defeated the non-justiciable group: see sheets 64-67 of the manuscripts of the
Official Report of the Constituent Assembly Debates of 2 February 1979, from the
Archives of Parliament. A member then tried to get the whole chapter removed
from the Constitution, 1979. That attempt was also defeated.
The debates confirm the interpretation that in the absence of anything in the
Constitution to the contrary, chapter 4 (The Directive Principles of State Policy) of
the Constitution, 1979 was justiciable. By the same yardstick chapter 6 of the
Constitution, 1992 is also justiciable.
The 1992 Consultative Assembly, obviously misled by the Committee of Statutory,

Experts, assumed wrongly that the "Directive Principles of State Policy are
traditionally non-justiciable." (Observe the similarity in language). Apparently not
satisfied with the perceived character of the directive principles, the assembly
endeavoured to upgrade them to what they termed "a higher moral level" to make

them "imperative", which everybody is "required mandatorily to observe." This was

on a motion to change "are for the guidance of" in the original draft of article 34(1)
to "shall guide" as we now have it: see the Consultative Assembly Debates, 22
January 1992, col 1593. It seems clear that but for the statement of the Committee
of Statutory Expects, different considerations might have prevailed in the
Consultative Assembly.
In any case, even if the debates in the Consultative Assembly may charitably be
interpreted as exhibiting some intention to make the directive principles non-
justiciable, that intention was not carried into the Constitution, 1992. The debates
themselves are inadmissible to contradict the language of the Constitution. That is
not permissible.”
The next point we wish to stress is that Bamford-Addo JSCfails (as do the other
members of the court who agreed with her) to consider the implication of the fact
that the Committee of Experts’ proposal of explicit language proclaiming that the
principles should not be in and of themselves enforceable by the courts was not
accepted by the Consultative Assembly. We think the omission of that language is a
strong pointer in favour of the Adade viewpoint.
As far as this present Court is concerned, we are of the view that, because there is a
conflict between two previous Supreme Court decisions, we are free either to
choose between the two decisions or to formulate a different rule that is right in
our view, since there is currently no binding precedent. We would humbly submit
that that right rule is a presumption of justiciability in relation to the provisions of
Chapter 6 of the Constitution, 1992, as outlined above.
Applying this presumption of justiciability, our view is that the economic

objectives laid out in Article 36 of the Constitution are legally binding and are not
merely a matter of conscience for successive governments of our land. The
objectives have, though, to be liberally construed in order not to interfere with the
democratic mandates of successive governments. Where, however, a government
introduces legislation which is flagrantly at odds with any of the objectives set out
in the Article, we believe that this Court has jurisdiction to strike down the
provisions in the legislation which are incompatible with the objectives concerned.
In short, article 36(2)(b) is justiciable.
Does Act 722 in fact contravene Article 36(2)(b)?
Given our view that article 36(2)(b) is justiciable, the next step is to determine
whether in fact the provisions of Act 722 infringe that constitutional provision. An
indication of the nature of the plaintiffs’ case on this issue can be gleaned from the
following paragraphs from their statement of claim before the trial court:
21. “The Plaintiffs also aver that insofar as the National Lotto Act, 2006 (Act 722)
seeks to restrict the Plaintiffs in the exercise of their economic rights, it is
inconsistent with the provisions of the 1992 Constitution.
22. The Plaintiffs further asseverate that insofar as the National Lotto Act, 2006
(Act 722) seeks to stifle private individual initiative and creativity in economic
activities, as well as to create a reduced role of the private sector in the economy, it
is inconsistent with the provisions of the 1992 Constitution.”
Also, in paragraphs 5.14 to 5.16 of the plaintiffs’ statement of case filed with this
court, they argue that:
“5.14 Unfortunately, Parliament seeks to subvert these constitutional orders by

taking away the right of lotto operators to carry on their trade of lotto and also
removing the opportunity for individual initiative and creativity in lotto business,
and abolishing the environment for a pronounced role of the private sector in lotto
business, a sector of the Ghanaian economy.
5.15 Parliament through sections 1, 2 and 4 of Act 722, is subverting the

constitutional order by abolishing private lotto business thereby providing a state
monopoly of lotto business. This state monopoly of lotto business created for the
NLA takes away the work of the Plaintiffs and this has the tendency to push them
into a state of indignity.
5.16 Several persons including the Plaintiffs will be reduced to live a life of
indignity having lost their work, the directing minds and employees of the Plaintiff
companies will lose their ability to fend for their families, educate their children
and provide shelter among other basic needs.”
Sections 1, 2 and 4 of Act 722 of which the plaintiffs complain provide as follows:

“Establishment of National Lotto
1. There is established by this Act National Lotto.
Objects of National Lotto
2. (1) National Lotto shall be conducted for the purpose of raising revenue for the
nation and for other purposes stated in this Act.
(2) The National Lottery Authority established under Part II shall be the institution
to conduct National Lotto.
(3) There shall be conducted as part of the operation of National Lotto, a lottery
with the object of providing care and protection for the physically or mentally
afflicted, the needy, the aged, orphans and destitute children.
(4) The Authority may, in consultation with the Minister, operate any other game of
chance or enter into collaboration, partnership or joint venture with any person,
society, association or corporate entity, to operate a game of chance in accordance
with existing laws, but losses from the game of chance, the collaboration,
partnership or joint venture shall not be compensated for by the State or from the
Lotto Account provided for under section 32.
Prohibition of lottery
4. (1) A person other than the Authority shall not operate any form of lottery.
(2) A person who contravenes subsection (1) commits an offence and is liable on
summary conviction to a fine of not more than two thousand and five hundred
penalty units or imprisonment for a term of not more than three years or both.”
Do these provisions of Act 722 infringe article 36(2)(b) of the Constitution? To use a
hackneyed expression, we think that the plaintiffs are crying wolf! If the above
provisions were an infringement of article 36(2), it would imply that the
government had virtually no regulatory authority over private enterprise. The
licensing regime over banks and insurance companies, for example, would be
unconstitutional! That would be an absurd result, if ever there was one. To afford
the citizens and residents of Ghana an opportunity for individual initiative and

creativity in economic activities does not imply the denial to the Ghanaian State of
the normal regulatory authority exercised by democratic states the world over. The
plaintiffs’ claim in effect is that they have an untramelled right to operate their
private lotto business, free from any licensing regime established by Parliament.
The argument against this position is put thus in the defendant’s statement of case
(at para. 13):
“My Lords, a person has no fundamental human right to carry on private lotto or
for that matter a fundamental right to carry on a particular business of his choice.
Lotto is a form of gambling and there is also no right at common law or anywhere
else for any person to engage in gambling. It is a state regulated business and one
can only participate at the mercy of the state. The plaintiffs were allowed to
participate in private lotto by the passage of the PNDCL 223. That did not elevate
the right to a fundamental human right, which cannot be interfered with.”
This analysis by the defendant is largely correct, except that the plaintiffs are not at
the mercy of the State in seeking to participate in the state regulated lottery
industry. The licensing regime has to conform to the standards set in article 296 of
the Constitution. The National Lottery Authority has a duty to be fair and candid
in allocating licences to those who wish to participate in the lottery business. It
also has to publish regulations governing the exercise of its discretionary power.
Conclusion
In conclusion, therefore, we wish to state in response to the reference by the

learned trial judge that Act 722 is not in breach of Articles 33(5), 35(1) and 36(2) of
the 1992 Constitution.
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME COURT
S.A. BROBBEY
J. ANSAH

ANIN-YEBOAH
P. BAFFOE-BONNIE
APPEARANCES
AURELIUS AWUKU FOR THE PLAINTIFF,KIZITO BEYUO FOR THE DEFENDANT.

Ghana Lotto Operators Association v. National Lottery Authority (Nla) 2008

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6/4/2020 GHANA LOTTO OPERATORS ASSOCIATION V.

NATIONAL LOTTERY AUTHORITY | Legal Research for Commonwealth Lawyers | JUDY

HIGH L IG HT COMM E N T +FOL D E R SHAR E FIND 100 DOWN LOA D

GHANA LOTTO OPERATORS

SUPREME COURT · REF. NO. J6/1/2008 · 23 JUL 2008 · GHANA

DR. DATE-BAH, JSC:

issue that relates to the enforcement or interpretation of the Constitution or to

2. An order setting aside the directive referred to in relief (1) above.

7. Any further order(s) as the court may deem ﬁt.”

First Issue: Does Act 722 violate Article 33(5)?

Article 33(5) provides that:

“The rights, duties, declarations and guarantees relating to the fundamental

Second issue: Is Act 722 in breach of Article 35(1)?

Article 35(1) provides as follows:

“Ghana shall be a democratic state dedicated to the realization of freedom and

This is a general provision which vests sovereignty in the people of Ghana. We do

Third Issue: Is Act 722 in breach of article 36(2)(b)?

To determine this issue, it is necessary ﬁrst to establish whether the provisions in

The justiciability of article 36(2)(b)

An issue is justiciable if it is capable of being settled by a court. Prima facie, one

that chapter 6 is not justiciable. The evidence to establish the non-justiciability

Thus, it contains an explicit non-justiciability provision, in contrast to the

The relevant provision of the 1992 Constitution on which a presumption of

On the basis of the foregoing considerations, the Committee proposes as follows:

It is important to note that an important element in the Committee’s

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https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 10/23

the Consultative Assembly was of a diﬀerent view. Moreover, reliance on original

The oft-repeated words of Sowah JSC as he then was, in Tuﬀuor v Attorney-General

Another danger with casting the interpretation of s. 7 in terms of the comments

A presumption of justiciability in respect of Chapter 6 of the Constitution would

In eﬀect, one is saying that article 34 should be so interpreted as to realize the

However, it should be recognized that the enforceability of economic, social and

https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 13/23

(After quoting the passage, she continues as follows:)

Secondly, it should be pointed out that Bamford-Addo JSCwas in the minority

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https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 17/23

The 1992 Consultative Assembly, obviously misled by the Committee of Statutory,

https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 18/23

them "imperative", which everybody is "required mandatorily to observe." This was

Applying this presumption of justiciability, our view is that the economic

Does Act 722 in fact contravene Article 36(2)(b)?

“5.14 Unfortunately, Parliament seeks to subvert these constitutional orders by

5.15 Parliament through sections 1, 2 and 4 of Act 722, is subverting the

https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 20/23

“Establishment of National Lotto

1. There is established by this Act National Lotto.

Objects of National Lotto

https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 21/23

In conclusion, therefore, we wish to state in response to the reference by the

DR. S.K. DATE-BAH

JUSTICE OF THE SUPREME COURT

JUSTICE OF THE SUPREME COURT

https://www.judy.legal/case/ghana-lotto-operators-association-v-national-lottery-authority-8df0d?q=ghana lotto operators et al vs. national lottery aut… 22/23

JUSTICE OF THE SUPREME COURT

JUSTICE OF THE SUPREME COURT

JUSTICE OF THE SUPREME COURT