The term constitutional law has been a subject of various definitions.

According to Hood et al
(constitutional and administrative law, 5 th edition), constitutional law is the law relating to the
constitution of the state.

The key features of this definition are the employment of terms such as law, state and constitution.

What is a constitution?
The word constitution can be used in a broad sense and in a narrow sense.

Using the broader sense, it can be defined as a body of fundamental rules, principles, practices,
conventions, understandings, attitudes, usages relating to the system of government of a country. This
definition defines the nature of a constitution.

The constitution is defined broadly according to Sir Kenneth Wheare as “the whole system of
government of a country, a collection of rules which establish and regulate or govern the government.”

These rules may be legal or non-legal. It may be legal in the sense that it is recognized and applied by
the courts and it is non-legal because it takes the form of usages, understandings, customs, or
conventions which the courts do not recognize.

This makes a distinction between hard and soft laws. Hard laws refer to the rules or principles which
judges’ use and can enforce in the courts. Soft laws, although important may not be enforced.

According to Marshall, the institutions of government are put in place by the Constitution. This
definition tells us that the institutions of government are not just created but are also given power to
function. The rule of the constitution regulation these institutions. It provides the rules that will govern
the relationship between the institution of government and the governed as well as the relationship
between a citizen and another citizen.

A constitution is a document having special legal sanctity which sets out the framework and the principal
functions of the organs of government of a state and declares the principles governing the operation of
those organs.

According to the narrow sense, the word constitution is used to describe not the whole collection of
rules, legal and non-legal but rather a selection of them which has been usually be embodied in one
document or in a few closely related documents. What is more, this selection is almost invariably a
selection of legal rules only. It should however be noted that most constitutions do not spell out in full,
all the powers and functions of government. The constitution merely provide for powers of the organs
of government only in broad and general terms. Indeed when we speak of the British or English
constitution it refers to the collection of legal and non-legal rules which govern the government of
Britain. The legal rules are embodied in statutes like the act of settlement which regulates the
succession to the throne, orders and regulations issued under the prerogative or under statutory
authority, may be embodied in the decisions of the courts. The non-legal rules are found in the customs
and conventions. This definition defines the form of the constitution. In the narrow definition, the
emphasis is on; the form in which the constitution is presented i.e. a document and a premium is placed
on writing.

In almost all countries in the world except Britain, the word constitution does not consists both the legal
and non-legal rules, it is rather a selection of them which are mostly the legal ones. Therefore such are
used in the narrower sense. Hence constitution in the narrow sense may be defined as a selection of
legal rules which govern the government of that country and which have been embodied in a document.
The best example is the American constitution of 1787. The constitution may establish the principle
institution of government such as the legislature, judiciary and the executive. Such important branches
of constitutional law as the regulation of the electoral system, the distribution of seats, the
establishment of government departments and others are in many countries not embodied in the
constitution itself, or if embodied, are treated only in general principle, they are dealt with by the
ordinary law. In some countries particularly U.S.A, certain of these laws are known as organic laws which
are laws which organize institutions, which regulate the exercise of public powers through organs which
the constitution has established.

Since the French revolution, a constitution, anthem and flag has been used to identify a people. The
question however arises thus; “if a society doesn’t have any of the above, can it be said to have a
constitution?”

Characteristics of a Constitution

 It is a product of the constituent power which must be external to the constitution i.e. it is made
by the people. This product might be evolving; implying changes may be effected over time.
 It establishes a state, its divisions and system of government.
 It is both law and the source of legal power.
 It contains different kind of rules, conventions, practices

Major features of all constitutions

 Contains the ideas, aspirations and values of the society concerned –Articles 35 and 36; 27

 Contains some information on the structure and organization of the government and some
information on the rights and responsibilities of individuals.

 Contains rules for its amendments depending on the history , experiences, and aspirations
When a constitution is said to be a fundamental law it implies that it is a document from which is
derived the main organs of government. Also, a constitution is said to be higher law because the law set
in them are out of reach of alteration by the legislature or capable of alteration by some solemn act
which is distinct from the ordinary one of the legislature.

Classification of constitutions

In an attempt to efficiently compare and contrast them, the constitutions of the world can be classified
in several ways. These classifications have come about because the differing constitutions of the world
have their own unique characteristics which have been shaped through certain factors such as their
history, culture the influence of other cultures and the system of control that prevails.

Firstly, constitutions have been classified into written and unwritten constitutions on the basis of
whether they have been documented and codified into a single document or not. Those that have been
documented and codified are thus termed written constitutions and those that have not, unwritten
constitutions. The classification of constitutions into written and unwritten these days has widely
become unpopular because a review of its implications has revealed that it is not a particularly useful
point on which to focus analysis. It is a largely uninformative basis for classification because almost all
countries in the world with the exception of U.K and Israel have a written constitution. There has also
been some degree of cynicism with regard to the accuracy of describing constitutions as written and
unwritten. For it has been widely argued that there is no such thing as an unwritten constitution and
that the constitution of every country has both written and unwritten components. Due to the many
controversies surrounding this system of classification it is rarely used.

Furthermore, constitutions may be classified in accordance with the ease or difficulty in which
amendments may be made. This classification, on the lines of what is termed rigid and flexible, owes its
origin to Lord Bryce. Generally where no special process is required to amend a constitution it is referred
to as flexible and where there is a special process required it is referred to as rigid. Its main disadvantage
is that, according to Sir Wheare, like the written and unwritten system of classification it places almost
all constitutions of the world into one category (rigid) and leaves the other two or so in the remaining
category (flexible) and could therefore be misleading. Yet if we pay more attention to the degree of
rigidity then it is possible to discern differences among countries with rigid constitutions. Again to regard
this system of classification mainly on the grounds of amendment would offer an implication that is not
quite exact. For it tends to suggest that the more rigid a constitution is the less frequently altered it is
which is not the case. Wheare, in his book, again suggests that this classification was not intended to
mean that the more legal obstacles a constitution has, the less frequent alterations it will have. Case in
point, the Swiss constitution which is rigid is more frequently altered than the French constitution
whose amendment requires no more than the joint meeting of the two houses, the Chamber of dispute
and the Senate. It follows, thus, to acknowledge that the frequency of alteration of a constitution is not
necessarily a matter of its ease of amendment, but to a large extent, by the will of the populace.
More so, constitutions may be classified on the basis of the system of control and government into
monarchical and republican. This classification highlights the system of political power that is peculiar to
a country as it structures the constitutional provisions in accordance with that system. Throughout
history many monarchs have wielded absolute power and sometimes were even deified as in the case of
pharaohs in ancient Egypt. This is in sharp contrast to modern day monarchs who have very limited
constitutional power. Most monarchical systems of government are gradually shifting to a more
republican type. To wit, whereas before, sovereignty rested in one person (the monarch) these days
most countries are adopting a system whereby the sovereignty rests in the people (the republic).
Consequentially, classifying constitutions into monarchies and republics is not regarded as one of
general significance as the role of most monarchs is now merely ceremonial and symbolic. Summarily,
this system of classification due to recent development has been rendered sufficiently useless because
true systems of monarchy barely exist.

Moreover, constitutions may also be classified into federal and unitary. The federal and unitary system
of classification involves distinguishing between constitutions on the basis of the system of allocation of
powers within the country. In the federal system power is allocated between the central government
and the various states that comprise the country such that both factions are to a large extent legally
independent with each having its own sphere of influence. In unitary states however, there is a
hierarchical arrangement which centralizes power in the national government. While the distinction
between federal and unitary constitutions has some value, in that it helps us to separate federal
constitutions from the rest, its value is limited. This is because the class of unitary constitutions is so
wide and so varied that one may indeed wonder whether for the purposes of classification it is of
substantive value. Another demerit of this system of classification arises from the fact that some
constitutions may be unitary on paper but in practice they may be deemed as federal. The same is true
for federal constitutions that are actually in practice unitary to a large extent. Examples of countries in
which this system operates are Mexico, Venezuela, Argentine and Brazil. Though this system of
classification gives a clear distinction there still exists certain constitutions in the world that do not show
distinct characteristics of either but rather a combination of both. Such constitutions have been
classified as quasi-federal and a typical example is the constitution of Canada.

Finally, constitutions may also be classified on the basis of the degree to which they adopt the doctrine
of the separation of powers into presidential and parliamentary constitutions. The presidential executive
constitution came about as a consequence of a belief in ability of the government to be limited through
the concept of separation of powers. In parliamentary executive ministers are required to be members
of the legislature thus expressly waiving the doctrine of separation of powers. This stark contrast
between opposites has been blurred, particularly in Africa and also in France where the president who is
elected shares power with the prime minister who has been appointed. Most African states claim to
have a presidential executive constitution when their practices reveal certain elements of a
parliamentary executive in some cases.

The present author is of the view that the best system of classification of the constitution as yet is non-
existent. Yet even though the current systems of classification have loopholes in them they may be
sufficiently useful if employed in combinations to describe the nature of the constitution in a country. To
wit, for our country Ghana we may be described as having a written, rigid, republican unitary and
presidential executive kind of constitution. Thus by this classification the nature of Ghana’s constitution
may be sufficiently understood.

Other classifications

 Single Party or Multiparty- It looks at the operation of the freedom of association in the political
arena. If the constitution in principle allows more than one political party, it’s a multiparty
constitution.

 Diarchical- It’s a constitution in which there is a distribution of governmental competence along

lines other than regional. E.g. the French constitution allows the president to pass some laws
without recourse to parliament.

 Unicameral or Bicameral- It looks at the structure of the legislature. If the constitution provides for
a single house of the legislature, it’s unicameral. If it provides for two houses of parliament, it’s
classified as bicameral

NB: a hybrid constitution is a constitution which combines both the parliamentary and presidential
element. An example is the 1969 Constitution of Ghana.

Sources of constitutional law

 Organic law legislation- these are legislation which organize institutions, which regulate the
exercise of public powers through the organs of government which the constitution has
established. E.g. the Courts Act, Electoral Commission of Ghana Act, Local Government Act.
Note however that income tax is excluded.
 Judicial decisions- these are the interpretations of the courts. These decisions are about the
constitution-where the dispute is about the Constitution. Such as TUFFOUR V. ATTORNEY
GENERAL; J.H. MENSAH V. ATTORNEY-GENERAL
 Customary law- here the part which deals with the institution of state or chieftaincy is critical
 Textbooks- eg. Dicey; Mensah Sarbah; J.B. Danquah etc.

Characteristics of constitutions
  They are endowed with a higher status, in some degree, as a matter of law, than other legal
rules in the system of government.
 Also amendment of the constitution can only take place in a special process that is different
from how the ordinary law is altered.

Why countries have a constitution?

Countries have a constitution for the very simple and elementary reason that they wanted for some
reason to begin again and so they put down into writing the main outline, at least of their proposed
system of government. Another reason is that when they unite with others they may wish to preserve
certain powers to themselves and to safeguard certain terms in the act of the union.

MARBURY v MADISON

Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of
Columbia. After the appointment document was signed by the President, the Secretary of State,
Madison failed in his duty to deliver the letter as required by law.

As such, Marbury was refused the position of the Justice of Peace because the commissions signed by
former President, John Adams were not delivered before the expiration of John Adams time in office.

Marbury brought a petition to the Supreme Court under the Judiciary Act of 1789 for an order of
mandamus to compel the Secretary of State to deliver his commission to take up the post of justice of
the peace.

Issues-

1. Whether Marbury has a right to his commission?

2. If he has a right, whether that right has been violated and do the laws of the country afford him
a remedy?

3. Whether the Supreme Court has the power to issue a writ of mandamus?

Held-The court in a unanimous decision and as read by Chief Justice Marshall held and reasoned as
follows:

1. The applicant had a right to the commission as it originated from an Act passed by Congress in
1801. Further, the court concluded that when a commission has been signed by the President,
the appointment is made, and that the commission is complete when the seal of the United
States has been affixed to it by the Secretary of State. Mr. Marbury, then, since his commission
 was signed by the President and sealed by the Secretary of State, was appointed, and as the law
creating the office gave the officer a right to hold for five years independent of the Executive,
the appointment was not revocable, but vested in the officer legal rights which are protected by
the laws of his country. To withhold the commission, therefore, is an act deemed by the Court
not warranted by law, but violates a vested legal right.

2. That, by signing the commission of Mr. Marbury, the President of the United States appointed
him a justice of peace for the County of Washington in the District of Columbia, and that the seal
of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the
verity of the signature, and of the completion of the appointment, and that the appointment
conferred on him a legal right to the office for the space of five years. That, having this legal title
to the office, he has a consequent right to the commission, a refusal to deliver which is a plain
violation of that right, for which the laws of his country afford him a remedy.

3. The court held that the writ of mandamus is the right remedy to be sought by the applicant but
it would refuse it because the law relied upon by the Applicant on the issue of the writ is in
contravention of the Constitution and as such unconstitutional. The courts can therefore not
grant the remedy.

The nature of the constitution is such that it is the highest law of a state and that any other law in
contravention with the provisions of the constitution is held to be null and void

TUFOUR v ATTORNEY GENERAL

The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General before the Court of
Appeal sitting as the Supreme Court under section 3 of the First Schedule to the Constitution, 1979, for a
declaration that: (i) on the coming into force of the Constitution, the Hon. Mr. Justice Apaloo) was
deemed to have been appointed Chief Justice and as such became president and a member of the
Supreme Court; (ii) the application of the, procedure in article 127 (1) to Justice Apaloo and his
purported vetting and rejection by Parliament were in contravention of the Constitution: (iii) Apaloo
refrained Chief Justice and thereby president of the Supreme Court. The AG argued that the process in
Article 127 was a mandatory one and Apaloo’s rejection was done in pursuant of that procedure.
Attorney General raised objections against the jurisdiction of the court as well as the capacity of the
plaintiff and the competency of the Speaker of Parliament to be sued as a defendant. On jurisdiction,
the AG argued that the Supreme Court was not properly constituted to deal with matters of
interpretation as required by Schedule 3. It was an Appeal court sitting as a supreme court. On capacity,
the AG argued that the plaintiff had no interest in the case but it was Apaloo who had an interest in the
case and he was the right person to institute the action. On the merits of the case, the AG contended
that, before the Constitution, 1979, came into force, the hierarchy of courts ended at the Court of
Appeal. No justice could therefore have held the office of a Justice of the Supreme Court. Accordingly,
the Chief Justice of that hierarchy was only a Chief Justice of the Court of Appeal. The Constitution,
however, has provided a higher court, the Supreme Court, membership of which was a prerequisite for
qualification as Chief Justice. As such the then CJ was only a transitional CJ and as such, if to be
appointed as CJ of the SC, he must go through the procedure as stated in Article 127.

Held

1. The jurisdiction of the court, as constituted, sprang from the provisions of section 3 of the First
Schedule to the Constitution. But section 3 conferred jurisdiction on the court to deal with any
issue falling within the ambit of article 118, in particular, for the purposes of the case, article 118
(1) (a). As such, the court had jurisdiction to entertain the case.

2. The Constitution, by the provisions of article 1 (3) conferred on every citizen of Ghana the right
to see to it that the constitutional order was not abolished or sought to be abolished. One
method by which it could be determined whether a person was seeking to abolish the
constitutional order, was to seek an interpretation of the Constitution as to the meaning of the
effect of a particular provision or provisions. The interest of the plaintiff was a constitutional
right exercisable by all citizens of Ghana by virtue of article 1 of the Constitution. And the
plaintiff under article 1, need not have any community of interest with any person or authority.
His community of interest was with the Constitution

3. The courts did not, and could not, inquire into how Parliament went about its business. That
constituted the state of affairs, as between the legislature and the judiciary which had been
crystallized in articles, 96, 97, 98, 99, 103 and 104 of the Constitution. Particularly Article 96
which provides that any business in parliament cannot be questioned in a court of law. The
Speaker therefore ought not be a party in the instant proceedings and the, court would
accordingly discharge him as a party.

4. The courts before 24 September 1979 derived their existence and functions from the
Constitution, 1969. The Chief Justice in that constitution had a unique personality; he was both a
member and head of that one composite institution known as the Superior Court of Judicature.
It was by virtue, of his being the head that he had been the president of all component parts in
the structure. Although the constitution was abolished, the judicial structure remained intact.
The head of the judiciary was still the Chief Justice; the Court of Appeal and the High Court
constituted one Superior Court of Judicature and the omnipresence of the Chief Justice within
the mechanism was retained. The chief justice presided over all the courts within the Superior
Court of Judicature. He was the president and member of all those courts not by reason of a
direct or specific appointment to any of them but by virtue of his status as the head of the
Superior Court of Judicature. There was no such office before 24 September 1979 known as
Chief Justice of the Court of Appeal or a transitional Chief Justice.

NOTE: According to Justice Sowah on the nature and character of a constitution,

‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a
people. It also mirrors their history. Account, therefore, needs to be taken of it as a landmark in a
people’s search for progress. It contains within it their aspirations and their hopes for a better and fuller
life. The Constitution has its letter of the law. Equally, the Constitution has its spirit. It is the fountain-
head for the authority which each of the three arms of government possesses and exercises. It is a
source of strength. It is a source of power. The executive, the legislature and the judiciary are created by
the Constitution. Their authority is derived from the Constitution. Their sustenance is derived from the
Constitution. Its methods of alteration are specified. In our peculiar circumstances, these methods
require the involvement of the whole body politic of Ghana. 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, as the body politic of Ghana itself is 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.’

J. H. MENSAH v ATTORNEY GENERAL

The first term of office of President Rawlings came to an end on 6 January 1997. However, having been
elected for a second term he was sworn into office on 7 January 1997. It was then announced that the
President had decided to retain in office some of his previous ministers and deputy ministers of state
and since they were approved by the previous Parliament of the first term of the Fourth Republic, they
would not be presented to the new Parliament for their approval. The minority group in Parliament
opposed the decision on the ground that under the Constitution, 1992 no one could be appointed or act
as a minister or deputy minister of state during the second term of the Fourth Republic without being
vetted by the new Parliament since the tenure of the ministers ended with the dessolution of the old
parliament. One of such retained Ministers, the Finance minister (Kwame Peprah) purported to present
the new budget to parliament. The parliamentary minority leader, the plaintiff, brought an action
against the Attorney-General for a declaration that: (a) on a true and proper interpretation of articles
57(3), 58(1) and (3), 66(1) 76(1) and (2) 78(1), 79(1), 80, 81, 97(1), 100(1) and 113(1) and (3) of the
Constitution, 1992, no person could after 6 January 1997 act as a minister or deputy minister of state
without the prior approval of the Second Parliament of the Fourth Republic of his appointment and that
this prior approval include consideration and vetting of each nominee for ministerial appointment by the
Second Parliament of the Fourth Republic. The AG argued that under article 81 of the Constitution, 1992
the tenure of a minister or deputy minister did not come to an end on the dissolution of the Parliament
which gave prior approval to the appointment of that minister or deputy minister. Thus unless some of
the events specified in article 81 occurred, a minister or deputy minister· would continue to be in office.

Issues

1. Did a presidential nominee for ministerial appointment require the prior approval of Parliament
before he could act or hold himself out as a minister or deputy minister of state?
 2. Does the requirement of prior parliamentary approval extend to all nominees, whether retained
or new?

3. Is “prior approval” a term of art? If so, what was its meaning?

Held

1. In articles 78(1) and 79(1) of the Constitution, 1992 it is provided that the President shall
appoint his ministers and deputy ministers with the prior approval of Parliament. Thus a
nominee for ministerial or deputy ministerial office undoubtedly requires prior parliamentary
approval.

2. Articles 78 and 79(1) of the Constitution, 1992 which provided that the President should appoint
his ministers and deputy ministers with the prior approval of Parliament did not draw a
distinction between fresh and reappointed candidates. Consequently, both a new or
reappointed candidate should obtain the prior approval of Parliament.

3. Although the expression “prior approval” was not defined in the Constitution 1992, it could not
have been the intention of the framers of the Constitution, 1992 that it should necessarily imply
consideration and vetting whenever it had been used in any provision of the Constitution
because that interpretation could not be consistently applied in all the provisions of the
Constitution where the expression “prior approval” was used. Thus the term “prior approval”
was not a term of art. But the common sense implication of the expression was to obtain a
consent of the relevant authority. Where that authority was Parliament, article 110(1) of the
Constitution empowered it by standing orders to regulate its own procedure provided they did
not infringe a provision of the Constitution. Thus the court could not under article 2 and 130(1)
of the Constitution direct Parliament on how to conduct its proceedings when granting “prior
approval” under article 78(1) of the Constitution, 1992.

NEW PATROITIC PARTY v ATTORNEY GENERAL

On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was
overthrown in a coup d’état. Subsequently, the military regime which took over the reins of
government, the Provisional National Defence Council (PNDC), declared 31 December a statutory public
holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia, by personnel of
the security forces with military parades, route marches and carnivals throughout the country. These
activities were financed with public funds. On 7 January 1993 the reign of the PNDC came to an end with
the assumption of power by a civilian government which had been elected into office under the
Constitution, 1992. When on 19 December 1993 the government announced that 31 December 1993
would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the
registered political parties in the country, claiming that the celebration would be unconstitutional,
brought an action under article 2(1) of the Constitution 1992 against the Attorney-General for a
declaration that the public celebration of the coup d’état of 31 December out of public funds was
inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly articles
3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the
celebration and refrain from carrying out the celebration with public funds.

Arguments

1. The plaintiff contended that it was clear from the relevant provisions of the Constitution, 1992
that the people of Ghana had resolved never to allow the Constitution, 1992 to be overthrown
or undermined and since the intended celebration would glorify coups d’état and in the result
would undermine the people’s resolve to resist coups, it would be unconstitutional. Accordingly,
expenditure of public funds on the celebration would constitute waste and misuse of public
funds which the Constitution enjoined the people to resist.

2. The defendant contended, inter alia, that (i) the celebration of 31 December as a public holiday
could not be said to be subverting or overthrowing the Constitution in contravention of article
3(3) as to require any defensive action by anyone under article 3(4); (ii) the Directive Principles
of State Policy contained in chapter 6 of the Constitution, 1992 were not justiciable and
therefore articles 35 and 41 which were part of the principles could not ground a cause of
action; and (iii) 31 December was a statutory public holiday by virtue of the Public Holidays Law,
1989 (PNDCL 220) and moneys were lawfully appropriated under the 1993 budget estimates
approved by Parliament for its celebration in recognition of the historical values and good works
that the revolution stood for and therefore the intended expenditure was lawful.

3. The defendant also objected to the jurisdiction of the court on the argument that the action
sought to question the legality of the coup d’état of 31 December 1981 contrary to section 34(2)
of the transitional provisions of the Constitution, 1992; and (b) the question whether 31
December should be celebrated was a political question which should be reserved to the
executive or Parliament to decide.

Issues

1. Whether the court had jurisdiction to entertain the suit?

2. Whether the Directive Principles of State Policy in the 1992 constitution were justiciable?

3. Whether the celebration of the 31 st December coup was inconsistent with the constitution?

4. Whether the use of public funds to celebrate it was inconsistent with the 1992 constitution?

Held- The court held, in a 5-4 majority decision as follows:

1. The court held that it had jurisdiction over the matter because

 The essence of the plaintiff’s action was that whatever the nature of the coup d’état of 31
December 1981, legal or illegal, its anniversary after 7 January 1993, should not be
 celebrated out of public funds and other resources and this does not relate to the
overthrow of the 3rd republican constitution.

 By virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the
constitutional right to protect the constitutional order established by the Constitution so
that it was not abolished or sought to be abolished. Because the determination of the
controversy as to whether the celebration of the 31 December revolution offended the
Constitution depended on the interpretation of the Constitution, it had jurisdiction by
Article 2(2).

 The doctrine of “political question” was inapplicable in Ghana since under articles 1, 2 and
130 of the Constitution, 1992 issues of constitutional interpretation were justiciable by the
Supreme Court.

2. The Directive Principles of State Policy contained in the constitution, 1992, chapter 6 were
justiciable because

 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.

 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 favor of chapter 6.

3. The celebration of 31 December as a public holiday with carnivals, route marches, etc. would
have the tendency to glorify the coup d’état of 31 December and it would not only be unfair to
those who were adversely affected by the coup but had become impotent to resort to court
action by reason of the indemnity provision of section 34(2) of the transitional provisions of the
Constitution, 1992 but would weaken the people’s resolve to enforce their right or perform their
duty under article 3(4), and would in the result undermine and subvert the Constitution, 1992.
Accordingly, even though the celebration might not be a violent means of subverting the
Constitution, 1992, it surely was an unlawful means under article 3(4) (a). Such conduct would
clearly be inconsistent with the duty to defend the Constitution and would be clearly against the
letter and spirit of the Constitution.

4. Since the celebration of 31 December would be unjustified, any expenditure of public funds in
that regard would be a misuse and waste of public 41(f) of the Constitution, 1992 which
imposed a duty on every citizen of the country to protect and preserve public property and
expose and combat misuse and waste of public hands and property. Accordingly, the plaintiff
was entitled to proceed under article 41(f) as a matter of duty to combat such misuse with a
view to protecting and preserving public property.
The relationship between municipal and
international law
Municipal law is a reference to the totality of laws operating in a country. At times it is referred to as
domestic law. International law is the law that has regularized the relationship among nation state.

Rules that govern the law that operate within a country and others

The relationship between municipal and international law is governed by two theories: monism and
dualism

Monists accept that the internal and international legal systems form a unity. Both national legal rules
and international rules that a state has accepted, for example by way of a treaty, determine whether
actions are legal or illegal. In a pure monist state, international law does not need to be translated into
national law it is just incorporated and have effects automatically in national or domestic laws. The act
of ratifying an international treaty immediately incorporates the law into national law; and customary
international law is treated as part of national law as well. International law can be directly applied by a
national judge, and can be directly invoked by citizens, just as if it were national law. A judge can declare
a national rule invalid if it contradicts international rules because, in some states, the latter have
priority. In other states, like in Germany, treaties have the same effect as legislation, and by the principle
of lex posterior, only take precedence over national legislation enacted prior to their ratification. In its
most pure form, monism dictates that national law that contradicts international law is null and void,
even if it predates international law, and even if it is the constitution.

Dualists emphasize the difference between national and international law, and require the translation of
the latter into the former. Without this translation, international law does not exist as law. International
law has to be national law as well, or it is no law at all. If a state accepts a treaty but does not adapt its
national law in order to conform to the treaty or does not create a national law explicitly incorporating
the treaty, then it violates international law. But one cannot claim that the treaty has become part of
national law. Citizens cannot rely on it and judges cannot apply it. National laws that contradict it remain
in force. According to dualists, national judges never apply international law, only international law that
has been translated into national law.

Article 75 of our constitution make us a dualist nation. For us the international law principle can only
apply if it is ratified as in article 75 of our constitution. However, the international body will not accept
argument based on the domestic body. KATZ V. ARMON; REPUBLIC V. DIRECTOR OF PRISONS;
BLACKBURN V. ATTORNEY GENERAL

A treaty is any formal agreement entered between two or more states. (Could be called charter,
convention etc). This could be bilateral, or multilateral. These arrangements are referred to in public
international law. It is known at times as hard law.

For the civil society organizations, they are only interested in whether the international community has
accepted and not whether it is binding or not.

Consequences of Dualist Theory

 Domestic law cannot be used to explain why a county hasn’t fulfilled its international obligations
in an international tribunal when it has signed but not ratified a treaty
 International law cannot be used to explain a position in a municipal court.
 If the provision in an international treaty is self-executing, it can be applied immediately once
it’s ratified. If it’s not self-executing, it would require further action and if that action has not
been taken, the treaty provisions cannot be accessed

Coup d’état, revolution and consequences

The life of Ghana’s constitution was interrupted by coup d’états 4 times out of which we had 6 regimes
i.e. NLC, NRC (palace coup), SMC I, SMC II (palace coup), AFRC, PNDC (revolution and later described as a
process). The Constitution changed from monarchical to republican in 1960. In 1964, the people decided
to change from a pluralist to single government by a referendum. In 1969, a new arrangement was put
in to replace the second republic. In 1972, new people came again. In 1975, there was another change
and the Supreme Military Council came. In 1979, the PNDC came.
What is the constitutional effect of these military interventions on our Country? Is every coup d’état a
revolution?

Two approaches to be used in answering the effects:

 Continuity description: This tells us that the revolutions have no effect at all

 Discontinuity : This theory says that the Coup d’état destroys completely the pre-existing
constitution

- Rules of succession of office

- Rules of competence : this tells us what you do in what position

- Rules of succession to rules : this deals with how the law is made or changed

A coup d’état can be described as a sudden violent change of government through the seizure of power
according to the Black Law Dictionary, 8th edition. Revolution on the other hand, can be described as
that which occurs when a legal order of a community is nullified and replaced by a new order in a way
that was not described by the first order. This definition was propounded by Kelsen in his book, The
General Theory of Law.

The theoretical arguments surrounding the concept of revolutions and coup d’états is based on the
theory of continuity and discontinuity. The arguments are propounded on the fact that in the case of a
revolution or a coup which occur in a country, does the new legal order tend to be abolished completely
or continue in existence. Thus, the theory of continuity propounds that in the existence of a revolution,
the legal system of a country continues to be maintained; that is to say, it doesn’t change and continues
in existence as before. The theory of discontinuity also asserts the fact that in the emergence of a
revolution or coup d’état, the legal system is abolished and it paves way for a new order.

Two people, Kelsen and Finnis have propounded theories on this concept and have received
tremendous recognition for this.

According to Kelsen, every country has a Grundnorm and that Grundnorm is the basic norm from which
all other laws derive their validity from. In his view, taking away the Grundnorm collapses the existing
order. Kelsen asserts that in every revolution there is a change in the legal order; that is the legal order
is completely nullified and is replaced by a new legal order a way not prescribed by the first. In Kelsen’s
book, General Theory of Law and State, he believes the legal structure of a country to be in a form of an
inverted collapsible pyramid of which the Grundnorm is at the base, serving as the source of validity or
the rock of all laws. When the Grundnorm is taken away or destroyed, the inverted pyramid collapses
for lack of support so all the other laws cease to exist and it paves way to a new legal order. In the
spectacles of Kelsen, the legal effect of a coup d’état is to remove the bottom rock of the collapsible
inverted pyramid and that would send the metaphysical whole structure crashing down. So in his
opinion, all coup d’états or revolutions are brought into being when the whole legal order is changed.
Finnis begs to differ to Kelsen’s view. He says that for a revolution to really occur and result in a change
in the legal order, certain salient rules must have been affected. He says that the rules of succession to
office, rules of competence and the rules of succession of rules which includes all rules which constitute
the amendment and suspension of new rules must all be affected. Finnis is of the opinion that for there
to be a successful revolution in a country all the three categories of rules must all be affected. A.W.B
Simpson’s exposition as featured in the Oxford Essays on Jurisprudence and entitled J.M. Finnis,
Revolutions and Continuity of Law, expounds his view that to Finnis even in the simplest monarchy, the
rules of succession to office may be liable to lawful alteration or change regarding the taking up of a
position by the crown and this alteration will be regulated by a rule of succession to rules which happen
to coincide with the simple rule of competence which governs the legislative authority. In effect no
revolution can effectively take place without affecting the change in the categories of rules mentioned
earlier.

Finnis argues against the notion that every illegal or unconstitutional act which is normally called a coup
amounts to a change in the constitution and as such a change in the identity of the legal order. In
essence, if the vice President assassinates the President of a country and the constitution in that term
provides that the vice President be made President when the existing President dies or is no longer in
office amount will it amount to a revolution? Finnis argues that it will not. In his view, such a situation
will not be deemed to be a revolution because there has been no violation of the constitution even
though there has evidently been an illegal change of power. Yet, Kelsen argues through his theory of
discontinuity that he includes coup d’états as revolutions as they affect the legal system of the country.
Finnis argues that unconstitutional acts involve little modification of the law without bringing to birth a
new legal system as these acts do not affect the supreme source of the country.

In SALLAH V. ATTORNEY GENERAL, there was an argument as to whether the proclamation by the
National Liberation Movement amounted to the new basic norm thereby putting aside the of the 1960
constitution. That is to say, the initial basic norm which was the 1960 constitution was abolished and
due to the coup d’état, the proclamation by the National liberation council was the new “Grundnorm”
as Kelsen would put it. This argument arose from the plaintiff asking for a declaration that his office fell
outside of the offices stipulated in the section 9(1) of the transitional provision in 1969 constitution and
as such the decree which came about asking about all public officers to vacate their offices in six
months’ time upon not being re-appointed by the government. The plaintiff argued that his office was
created by the instrument of corporation EI 203 in 1961. It was then left to the court to decide whether
the coup d'état in 1966 repudiated the previous constitution in 1960 and everything flowed from it. This
should be looked from two angles. If the coup d’état abolished everything including the 1960
constitution and everything that flowed from it then, Kelsen’s theory of discontinuity would apply and as
such the plaintiff Sallah would not be able to seek for the declaration he so desires. Also if the courts
contended that the coup d’état did not abolish the 1960 constitution and everything that comes from it
then the theory off continuity propounded by Finnis would apply and so his office would be secured. In
Justice Archer’s judgment he decided that although the argument from Kelsen’s point of view was very
sound it was not enough to describe whether the plaintiff’s office fell among the categories of offices by
the proclamation. He said the theory could also not be used because the people of Ghana had stated in
their preamble that their basic norm was traced from Almighty God from which they had their
constitution and their legal order was their constitution which had the special element of predictability
of which the proclamation did not have. The NLC proclamation did not make the theory from Kelson
applicable. The majority in court decided that the coup did not destroy the previous order which was the
1960 constitution but just changed parts of it.

In the LAKANMI CASE of Nigeria, the Nigerian courts were left to decide whether the 1963 Republican
constitution was the basic norm or the Decree No.1 which was set by the Federal Military Government
was the basic norm. This argument arose from the fact that the plaintiff’s assets had been frozen by the
military by the pursuance of Decree No. 45. Here, the republican constitution in 1963 under article 1
stated the supremacy of the constitution and as such all other laws inconsistent in the constitution
would be void. In 1966, due to disturbances and the capturing of the Prime Minister and some of his
ministers, the remaining cabinet in their attempt to restore peace and stability in the country handed
over the governance of the country into the hands of the military to form an interim government and
when peace was restored, the power would then be handed over back to the legitimate people. The
Federal Military Government in an attempt to restore peace and stability set up a Decree No. 1 which
abolished only certain parts of the 1963 Republican Constitution and the offices of the President, Prime
Minister, and the Parliament and excluded the judiciary. The plaintiff in this case went to the courts
apply an order of certiorari to remove the order made by the head of tribunal Enquiry into the Assets of
Public Officials, Chief Somolou since the order was an infringement on their right to own property and
was ultra vires to the 1963 constitution. The order was to prevent the public officers from disposing
their properties and operating their bank accounts by means of withdrawal until the military otherwise
directs. It must be noted that the Nigerian courts supported the Kelsen theory of discontinuity. If there
was actually a revolution then Article 1 of the 1963 republican constitution would cease to exist and as
such the plaintiff could not seek the relief he so requires. On the other side, if what happened in 1966
was not a coup but a mere formation of an interim government to maintain peace in the country then
the 1963 Republican constitution would still be in operation and as such the plaintiff could be granted
the relief he so wants. The courts came to a conclusion that the events in 1966 was a mere handing over
of powers to the Federal military Government to restore peace and stability. It was based on the
doctrine of necessity. They also made a statement that, notwithstanding the incidents that had
happened, they agree with the theory of discontinuity that revolutions destroy the pre-existing order
completely and as such if the events which occurred in 1966 amounted to a revolution then they would
have used the Kelsen theory and concluded that the 1963 constitution was void.

Again in the case of UGANDA V. COMMISSIONER OF PRISONS; EX PARTE MATOVU, it was up to the
courts in Uganda to determine whether the plaintiff, Matovu could be granted the habeas corpus of
which he had applied for. Uganda promulgated its first constitution in 1962 which created the offices of
President, vice President and Prime Minister. In February 1966 the prime minster announced to the
country that in the interest of national and public stability and tranquility he had taken over all the
powers of government. The constitution was temporarily suspended with some administrative organs
such as the courts, civil service, and army and police service. In March 1966, the Prime Minister vested
into himself the head of the office of the executive and annulled the positions of the President and vice
President. In March 1966, an emergency meeting of the national assembly led to the promulgation of a
new constitution. A state of emergency was declared and Preventive Detentions regulations were made
and the plaintiff Matovu was arrested in accordance with the regulations. It was due to this that he
applied for a habeas corpus on the grounds that the regulations were invalid because it was
promulgated under the 1966 constitution which in itself was invalid. It was left to the courts to
determine whether the 1966 constitution was the grundnorm or the first constitution which was set up
in 1962 was the grundnorm. If the constitution in 1962 was the valid then the plaintiff could be granted
the relief he asks for but if the 1966 constitution was the valid one which described the new order then
the plaintiff could not be granted the relief he so desired. The courts came to a decision that, the events
that happened in 1966 which adopted a new constitution amounted to a new revolution and as such the
1962 constitution was no longer valid. The courts based their decision on the principle from Kelsen that
“once a successful revolution has introduced a new constitution, it is by reference to this new basic
norm that the validity of particular norms is decided”.

Furthermore, in the Pakistani case of the STATE V. DOSSO, Chief Justice Muhammed Munir made a
remarkable statement in his judgment. In STATE V. DOSSO, the President issued a proclamation and this
ended or annulled the Grundnorm or the existing constitution and as such there was a revolution. The
Chief Justice in his statement said that “It sometimes happens, however, that a Constitution and the
national legal order under it is disrupted by an abrupt political change not within the contemplation of
the Constitution. Any such change is called a revolution, and its legal effect is not only the destruction of
the existing Constitution but also the validity of the national legal order.”  Here it is evident that
according to the CJ Mohammed Munir, a revolution is when the constitution and the national legal
order is disrupted by an unexpected and sudden political change which is not in the constitution which
then affects the validity of the national legal order.

SALLAH v ATTORNEY GENERAL

On 24th February. 1966, the armed forces of Ghana staged a coup d’état and toppled the government of
President Kwame Nkrumah. Days later, the military by a proclamation suspended the 1960 constitution,
dissolved the national assembly and established the National Liberation Council as the new sovereign
authority with power to legislate by decree. In 1969, the military rule was terminated and civilian rule
was established under a new constitution, 1969. The transitional provisions of the 1969 Constitution
provided for the termination of any office established by the NLC.

The plaintiff, E.K. Sallah was appointed in October 1967 to a managerial post at the Ghana National
Trading Corporation (GNTC), a corporation established under the Statutory Corporations Act of 1961
under E.I. 203 and when that law was repealed, it was “continued in existence” by LI No. 395 which was
passed under the authority of the new Statutory Corporations Act, 1964. On 21 st February 1970, the new
civilian government dismissed Sallah, under the transitional provisions of the 1969 Constitution. He
instituted this suit to challenge the validity of his dismissal.

Arguments
 1. The plaintiff argued that his office was not brought into existence by the law that was
overthrown in the revolution (LI No 395), rather, it was continued in force by that law, and
therefore the NLC could not claim that they had created that office. He argued that his office
was created by E.I 203 and was only continued in force by L.I 395 and as such, the new order
created by the NLC Proclamation did not affect his office to be caught by section 9(1) transitional
provisions of the 1969 Constitution.

2. The Attorney-General’s arguments were based on the Kelsenian position that in a revolution
properly so-called, the old legal order was abolished and a new one, with its own Gründnorm
was established. Thus in 1966, the old order (the 1960 Constitution) disappeared, and the new
one was established, with its new Gründnorm, which the Attorney-General identified as the
Proclamation. He argued that “establish” must be interpreted as “deriving legal validity from”.
Simply put, the Attorney-General was using Kelsen’s theory of discontinuity, and applied thus, it
meant that the LI 395 was valid by virtue of the State Corporations Act, 1964, which in turn was
validated by article 40 of the 1960 Constitution, and since the NLC had abrogated that
constitution, the old source of validity of the GNTC was gone, and the corporation was re-born
by the NLC Proclamation, and therefore the plaintiff was squarely caught by the provisions.

Issues

1. The main issue was whether the plaintiff’s office was established by the NLC Proclamation.

Held

In a 3-2 majority decision, the court held that the plaintiff’s office had not been established by or under
the authority of the NLC Proclamation, it only “continued it in existence” and therefore they were wrong
in terminating his appointment. The court rejected the Kelsenite theory posited by the AG as it
described it as foreign theories. The court, per Archer J.A declined to designate the coup d’état as a valid
revolution but rather the beginning of one and that the proclamation cannot be termed as the
Gründnorm because it was not a constitution. The majority thus held that Sallah’s office was established
in 1961 by the E.I and not by the extra-constitutional regime (L.I 395) which only continued it in force.

In his dissenting judgement however, Anin J.A adopted Kelsen’s view as contended by the AG and held
that by virtue of the coup d’état the old legal order founded on the 1960 Constitution yielded place to a
new legal order which was the proclamation. He further opined that after the coup, all offices were
deemed to be the creation of the NLC and the existed by virtue and in pursuance of the proclamation.

THE LAKANMI CASE

After the severance of ties between Nigeria and the British Colonial Government, the Constitution 1963
was promulgated. This constitution was deemed to be the supreme law of the Federation (Grundnorm).
There was a military takeover on 15 th January 1966, in which the military announced that certain
provisions of the 1963 Constitution were suspended. Also suspended were the offices of the President,
Prime Minister, and Parliament too. The Judiciary, Public Services, the Armed Forces and the Police
Service were saved. A decree, Constitution (Suspension and Modification) Decree No. 1 1966, was
passed to give effect of the above suspensions and retainments under the 1963 Constitution. Decree No.
1 further gave the military the power to make laws without any restrictions. The decree also provided
that whilst the 1963 Constitution shall have the force of law in Nigeria, it shall not prevail over a decree
passed and nothing in it shall render a decree void. On 29 th July, 1967 another coup took place, under
which Nigeria was converted from a unitary state to a federal one of twelve states. Decree No. 1
remained in force.

The Chief Justice, as chairman of the Tribunal of Inquiry issued an order freezing the assets of public
officers of the western state under an edict of the military government in accordance with section 13 (1)
of Edict No. 5 of 1967, the Investigation of Assets (Public Officers n other Persons Decree) which
prohibited the plaintiffs or their agents and other persons from disposing of any of the properties of the
plaintiffs until the Military Governor of the Western state had directed them to. The plaintiffs were not
to operate their bank accounts by means of withdrawal and the new laws said there could be no
challenge to the Chairman of Tribunal. Other laws, i.e. Decree Nos. 37, 43 and 45, were promulgated to
prohibit the judicial review of anything done under the laws.

Issues

1. Whether the events of 15th January 1966 amounted to a revolution?

2. Whether Decree 45 can validly oust the courts jurisdiction to look into the order of the Tribunal?

Held

1. The court held that the events of January 15, 1966 did not amount to a revolution but a mere
offer of invitation to the Armed Forces to form an interim Military Government, making it clear
that only certain provisions of the 1963 Constitution were to be suspended and the offer was
duly accepted by the Armed Forces. The court recognized Kelsen’s theory of revolutionary
legality as argued by the AG but it drew a distinction between that and the present case. The
court based its reasoning on the doctrine of necessity and held that necessity dictated an agreed
partial suspension of the 1963 Constitution and the formation of the interim government which
effected the transfer of power from the old to the new order.

2. The court held on this issue that the Federal Military Government assumed the continued
existence of the 1963 Constitution and in its Decree No. 1 impliedly provided for a separation of
powers between the legislatures, the executive and the judiciary as did the Republican
Constitution. Because Decree No. 45 of 1968, which sought to validate the order made by the
tribunal was a legislative act which impinged upon the sphere of the judiciary, it was an
unnecessary intrusion into the sphere of the judiciary and it is therefore void.

MADZIMBAMUTO v. LARDNER-BURKE
The British Government had granted the 1961 Constitution of Southern Rhodesia to the Colony. On 11
November 1965, Mr Smith the Prime Minister and his ministerial colleagues, issued a Unilateral
Declaration of Independence (UDI) to the effect that Southern Rhodesia was no longer a Crown colony
but was an independent sovereign State. They also promulgated a new Constitution, 1965. On the same
day, the governor issued a statement to the effect that the Prime Minister and the other persons
holding office as Ministers of the government of Southern Rhodesia or as Deputy Ministers ceased to
hold office. The Parliament of the United Kingdom also passed the Southern Rhodesia Act 1965,
declaring that Southern Rhodesia was still part of the dominions of the United Kingdom, and
Government and Parliament of United Kingdom still had responsibility and jurisdiction. Mr Smith and his
colleagues disregarded their dismissal from office, and the members of the legislature adopted the new
1965 Constitution and thereafter they and Mr Smith and his colleagues declared that the 1965
Constitution had superseded the 1961 Constitution.

Before the UDI took place however, a state of emergency had been declared by the Governor, and the
appellant’s husband had been detained by the first respondent as Minister of Justice. On the expiration
of the state of emergency in February 1966, the government continued their detention under
Regulation 47(3), which derived its authority from the 1965 Constitution. The detainees challenged the
legality of their detention and by implication, that of the UDI and the 1965 Constitution.

Held

The court held that the rebel government had not overthrown the British Colonial Government, and
therefore the 1965 Constitution was not the supreme law of the land. They held further that the rebel
government was a usurper, and not a lawful authority to make laws, and lastly, that the doctrine of
necessity could not be invoked as a means of enforcing the laws detaining the appellant’s husband. The
court applied the Kelsenite theory. The court did not declare the unilateral declaration of independence
as a revolution because the rebel government was not effective. Smith’s government was conflicting
with the colonial government, and both were making laws for the administration of the country almost
concurrently. The Kelsenian theory admits of no situation in which there are two Grundnorms, giving
validity to two different laws. Thus Kelsen’s theory prevailed, but not in favour of the rebels.

UGANDA v. COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) EA 514

After Uganda’s first post-independence elections in April 1962, two parties, the Uganda People’s
Congress led by Milton Obote and the Kabaka Yekka led by Daubi Ocheng, formed a coalition
government, but this remained unstable. On February 26, 1966, the Prime Minister, Obote, with the
support of the military assumed full powers of government, suspended the National Assembly and
abrogated the 1962 Constitution. He later convened the Assembly in April 1966, which approved a new
constitution, 1966 that provided for an executive presidency and a unitary state.

In August 1966, Matovu, a Buganda county chief was served with a detention order under provisions of
Article 31(I) of the 1966 Constitution. Matovu filed a habeas corpus application, arguing that the
detention order violated the fundamental rights provisions of the 1962 Constitution, which remained
the supreme law of Uganda.

Held- The court held, applying the Kelsenian principles that, our deliberate and considered view is that
the 1966 constitution is a legally valid constitution and the supreme law of Uganda, and that the 1962
constitution having been abolished as result of a victorious revolution in law does no longer exist nor
does it now form part of the Laws of Uganda it having been deprived of its de facto and de jure validity.
The 1966 constitution, we hold, is a new legal order and has been effective since April 1966 when it first
came into force

Constitutionalism
Constitutionalism as a theory and in practice stands for the principle that there are—in a properly
governed state—limitations upon those who exercise the powers of government, and that these
limitations are spelled out in a body of higher law which is enforceable in a variety of ways, political and
judicial. Involves a proper appreciation for the limitations of government and of requiring those who
govern to conform to law and rules. It is partly determined by whether usage and conventions operate
to strengthen or weaken constitutional limitations. Constitutional government is not the same as
government set up by a constitution. This is because a constitution could establish institutions and them
leave them to act as they please.

Constitutionalism also means government according to predetermined rules. These rules should not
only be predetermined but they should also restrain or limit governmental powers. According to
Wheare, it seeks to control the chaos resulting from the desires of many by creating a strong central
power. It seeks then to control that central powers ability to exploit by limiting its strength to act.

Before government takes any decision, there should be rules and these rules must be crafted to put
breaks on government actions. These may take several forms:

 Institutional limitations -Article 78(1)

 Procedural limitations- article 106(1), 106(3)

 Substantive limitations- articles 3(1), 78(2) 58(1), 92(2)

According to Marshall writing the limits of the constitution will tell us what the limits are and if they are
exceeded it will easily be detected.

Constitutionalism in our courts

SHALABI V AG
The plfs were brothers working in the transport sector in Ghana. They were born in the Gold Coast to
Lebanese parents in the 1930s. They held British passports until a law on citizenship in Ghana – the
Ghana Nationality Decree (NLCD 191) – was passed in 1967. This decree established different categories
of Ghanaians. A Ghanaian by birth was defined as someone born in Ghana before 6 March 1957 and
included British subjects at the time. The Decree did not describe parentage as a criterion to citizenship.
As a result of the definition of a Ghanaian in the Decree, the brothers gave up their British passports and
got Ghanaian citizenship. 2 years later, another law, the NLCD 333, was passed to amend the NLCD 191.
This time, the Ghanaian citizenship for parents and grandparents was included in the criteria to
becoming a citizen. This would have precluded the brothers from becoming Ghanaian citizens if it had
been included in NLCD 191. NLCD 333 was backdated to take effect at the same time as NLCD 191 was
supposed to take effect. A year later, a new law, Ghanaian Business (Promotion) Act 1972 (Act 334), was
passed reserving certain sectors of the economy, including the transport sector, to Ghanaians only. In
light of this new law and NLCD 333, the brothers sought clarification as to their status as Ghanaian
citizens. Their lawyers were informed that the Government did not consider them to be Ghanaians nor
British but Lebanese. As this would cause them problems with their business in light of the Act and NLCD
333, the brothers brought an action in the court for a declaration that they were Ghanaians.

Held- The constitution placed limits on the government that it could not make retrospective laws. The
NLCD 333 purported to come into effect at the same time as the NLCD 191. It was not possible for a law
amending another law to come into effect at the same time as the law it was amending. Even if the
NCLD 191 was in effect for 1 second, it’s effect was to give the plf’s citizenship and their citizenship could
only be taken away by following the corrects process laid down by the law giving them citizenship. There
is no legislative sovereignty, only sovereignty of the people. The government does not have unrestricted
power to give and take people’s citizenship at will. The government’s decisions must make sense and
take people’s rights into consideration.

EX PARTE BANNERMAN

On 18th January the National Liberation Council under power given them by section 1 of the Commission
of Enquiry’s Act 1964(Act 250), appointed a Commission of Enquiry to inquire into the management and
other matters relating to the State Fishing Corporation. This commission was to commence work from
the 10 to 28th June 1967 but on 26 th June the chairman of the Commission of Enquiry purported to
suspend Mr. Bannerman, the Distribution Marketing Manager of the State Fishing Corporation. This
purported suspension letter came from the office of the said Commission of Enquiry and it was signed by
chairman of the commission. It was stated in the letter that the applicant was relieved of his duties and
responsibilities as Distribution Marketing Manager of the State Fishing Corporation and that he was to
hand over to his most senior subordinate and advise the Chief Accountant and the Production Manager.
Copies of the suspension letter were sent to Secretary of the National Liberation Council. The applicant
upon receiving the letter initiated instant proceedings for writs of certiorari and prohibition to quash the
decision as contained in the letter and to also prevent the chairman from suspending, dismissing,
interdicting or interfering in the performance of his duties and responsibilities as Distribution Marketing
Manager respectively. The applicant sought these on grounds that the E.I. 6/7 under which the
commission worked does not permit it to suspend, dismiss, interdict or interfere with his service
contract. The second ground was that the letter was a speaking order which the chairman did not have
the power to issue, as doing that meant he had assumed the position of the service contract between
the applicant and the corporation. He also sought for these reliefs on grounds that he was not allowed
to defend himself before the said commission hence they breach the principle of natural justice.
Whether the writs were necessary was another issue to be tackled by the court.

Held- In view of the words "if the National Liberation Council is satisfied," I am prepared to hold that
conditions which may exist to enable the Council to take over the control and management of the
corporation rest entirely within the absolute discretion of the Council and the grounds of their
satisfaction are not open to question by the courts. But before the Council will be capable of appointing,
transferring, suspending or dismissing any of the employees of the corporation there must be evidence
that the Council has, in fact, in exercising its power under Part XIV of L.I. 397, taken over the control and
management of the corporation.

This calls for examination of exhibit 2 which suspended the applicant and three other officers of the
corporation. A careful examination or scrutiny of exhibit 2 does not show that the National Liberation
Council has assumed control and management of the State Fishing Corporation or any part of its affairs
by virtue of Part XIV of L.I. 397. No document in the nature of an executive instrument has been shown
to this court indicating that such assumption of control has taken place. I have not seen one either. The
assumption of control and management of the corporation by the National Liberation Council is a
condition precedent to the exercise of any of the three powers therein stated and, in the absence of any
such evidence from exhibit 2, I hold that the purported suspension of the applicant (and for that matter
the other three officers) is ultra vires the National Liberation Council which acted in excess of its power.

EX PARTE SALIFA

Salifa, a school boy, then aged fifteen years was sent to Guinea by his father in 1965 to continue his
education. In 1967 he ran away from his guardian who was allegedly maltreating him. He went to Sierra
Leone where he asked the Ghana High Commissioner to help him to return to his parents in Ghana. On
his arrival in Accra, in June 1967, he was immediately arrested by the police and detained in Ussher Fort
Prison. On 25 June 1968, Salifa's father filed an ex parte application for an order of habeas corpus on the
ground that his son's detention was unlawful. Upon a notice of motion filed on 29 June 1968, for hearing
on 2 July 1968, the Director of Prisons made a return thereto by an affidavit annexing thereto a
Photostat copy of a document, exhibit A, purporting to be a Decree signed by the Chairman of the
National Liberation Council authorising the arrest and detention of Salifa. The document was not
numbered and neither was it published in the Gazette as required by the Proclamation establishing the
National Liberation Council. In a press release dated 24 April 1968 issued by the Ministry of Information,
it was stated therein that all persons placed in protective custody since 24 February 1966 and the 17
April 1967 abortive coup had been released.

Held-

1. Even though the date of the coming into force of a Decree could be so stated in the body of the
Decree as to make the date of publication not the date of its coming into force, nevertheless,
 publication of it in the Gazette, numbering thereof in accordance with the order in which
Decrees were published, printing and publication thereof by the Government Printer, together
with its consequential purport that it was signed by the Chairman of the National Liberation
Council, could not be respectively legally dispensed with in the making and issuing of a Decree
having the force of law. Consequently since exhibit A was neither numbered nor published in
the Gazette, it could not be classified as a Decree.
2. The contention that the National Liberation Council had an unlimited power was pitched too
high - it undermined or undefined the purposes for which by the Proclamation the National
Liberation Council was established. According to the preamble to the Proclamation, it was
established in the interest of the people of Ghana, and for the provision for the proper
administration of the country and for the maintenance of law and order. In effect the
Proclamation provided for the eradication by the National Liberation Council of illimitability of
power in Ghana; for, autocracy in Ghana was given a decent burial on 24 February 1966.

2ND SALIFA CASE

Salifa, who had been detained under a National Liberation Council Decree, had appeared in habeas
corpus proceedings before Anterkyi J who had ordered his release on the grounds, inter alia, that the
Decree, being unnumbered and unpublished, was invalid. Immediately after his release, Salifa was re-
arrested without warrant and detained for suspected subversion under another unnumbered and
unpublished National Liberation Council Decree. Salifa's father filed another application for a writ of
habeas corpus for the immediate release of his son on the grounds, inter alia, that the re-arrest without
warrant was unlawful and further that the subsequent unnumbered and unpublished Decree was also
invalid.

Held- The NLC has so many powers in the sense that even though it proclaimed procedural limitations in
its making of Decrees, it also gave its power to amend, repeal or make laws. Also, a decree could be in
effect even though it wasn’t known to the public because it was not published in the Gazette. In
interpreting an Act of Parliament or a Decree, the Act or Decree should be read as a whole. The
cumulative effect of paragraphs 3 (6) and (7) of the Proclamation 1966, was that a Decree could come
into force and be operated or administered even though it had not been published in the Gazette. And
the word "issue" appearing in para. 3 (1) of the Proclamation, would in the context of the present
circumstances appear to mean the operation of the Decree even though it was unpublished.
Furthermore a Decree could come into force in some other way or mode of publication or even on some
other day than by publication in the Gazette. Thus a retrospective or prospective date could be put in a
Decree and such a Decree could not be said to have been published in the Gazette on the date of its
coming into operation. In the instant case the Decree authorising the detention of the applicant was to
operate retrospectively, consequently it could not be considered to be inoperative merely because it
had not been published in the Gazette and a number assigned to it.

RE AKOTO
Akoto and his seven friends upon their arrest and detention ordered by the then Governor- General but
signed in his stead by the Minister of Interior under section 2 of the Preventive Detention Act, 1958 (No.
17 of 1958), sent applications to the High Court for writs of habeas corpus. Their arrest was due to fact
that they consistently advocated and encouraged the commission of violence as well as associated with
persons whose interests were to use violent means in capturing political power. Their application was
refused but they later appealed to the Supreme Court. Their application for the habeas corpus was
supported by affidavit which disclosed the order for the detention, the written information furnished
with it in accordance with the requirements of the Act, written representations by the detainees to the
Governor-General and the reply of the Governor-General. To the Governor-General their detention was
in good faith and it was necessary for persons who act in a manner prejudicial to the state to be
detained.

Held- There is no constitutionalism in this case because the government was given excess power with no
limitation. The Court held that it was not required to inquire into the truths concerning grounds of
detention of the appellants because the order came from the Governor-General who had the supreme
decision to issue such an order if he deemed it necessary. Truths concerning grounds of detention could
not be questioned under Article 13 of the constitution. It was held that detention without trial was not
unlawful especially under the circumstance in which the appellants found themselves. They were
engaged in acts detrimental to the security of the state as well as the general governance of the state.
The order was made to prevent them from continuing such activities. Power was given to the governor
general to detain anyone harmful to the security of the state according to PDA. It was held that
Parliament could also pass the Prevention Detention Act during peaceful times because it derived this
right from the constitution. Also, in matters where there was a threat to society and the general
governance of the country, there was no reason why Parliament could not enact such laws to detain the
person responsible. Article 20 also made provisions for the ‘Sovereign Parliament’ to make any laws it
deemed necessary. It was however limited when it came to the entrenched clauses.

MARBURY V MADISON

Marbury was refused the position of the Justice of Peace because the commission signed by former
president John Adams were not delivered before the expiration of John Adams time in office. Marbury
was nominated and appointed by John Adams to become the Justice of Peace for the District of
Washington. After the document was signed by the president the Secretary of State failed in his duty to
deliver the commission.

Constitutionalism was practiced in this case because parliament was limited not to make laws that were
in contravention with the constitution. Also, the process by which a justices of the peace is appointed is
enunciated in the case... thus, signifying procedural limitation of the president

NPP V IGP

The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to
hold a rally at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the
police. On 16 February 1993, the plaintiff in conjunction with other political parties embarked on a
peaceful demonstration in Accra to protest against the 1993 budget of the government but the
demonstration was broken up by the police and some of the demonstrators were arrested and
arraigned before the circuit court on charges of demonstrating without a permit and failing to disperse
contrary to sections 8, 12(c) and 13 of NRCD 68. On 17 February the plaintiff was granted a permit by
the police to hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J B Danquah
but the permit was withdrawn and the rally prohibited by the police on the day of the rally. Aggrieved by
those decisions and actions of the police, the plaintiff brought an action before the Supreme Court for a
declaration that (i) sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a contravention of
the Constitution, 1992, especially article 21(1)(d) thereof, and were therefore null, void and
unenforceable; and (ii) under the Constitution, 1992 no permission was required of the police or any
other authority for holding of a rally or demonstration or procession or the public celebration of any
traditional custom by any person, group or organisation.

Held- When citizens met or processed in a public place in pursuance of their constitutional rights under
article 21(1)(d) of the Constitution, 1992 to form or hold meetings and processions, they were subject
only to the provisions of the Criminal Code, 1960 (Act 29). Accordingly, if a meeting, procession or
demonstration was being held lawfully and nothing done by persons attending such meeting or forming
the procession or demonstration contravened the provisions of Act 29, such persons should not be
guilty under section 13(a) of NRCD 68. Accordingly, the provision of section 12(a) of NRCD 68 which
conferred on a police officer or an authorised public officer unfettered, absolute, administrative powers
to stop and cause to be dispersed any meetings or processions in any public place, without ascribing any
reasons for it, abridged the fundamental human rights of the citizen under article 21(1)(d) of the
Constitution, 1992 and were therefore unconstitutional. the freedom of assembly granted the citizen
under article 21(1)(d) of the Constitution, 1992 encompassed the right of the citizens to come together
to petition for redress of their grievances or take part in processions and demonstrations in support of
or in opposition to a cause, policy or event. But the consent or permit requirements under section 7 of
NRCD 68 sought to demand leave of the Minister for the Interior for the exercise of those rights, with
the necessary implication that contrary to the provision of article 21(1)(d) of the Constitution, 1992,
meetings, processions and demonstrations were prohibited by law unless sanctioned by the minister or
anyone authorised by him. That proposition clearly violated the enshrined provision of article 21(1)(d)
because by investing the minister or other authority with unfettered discretion to refuse his consent or
permit, section 7 of NRCD 68 placed the assertion by the citizen of his constitutional rights of assembly,
procession by the citizen of his constitutional rights of assembly, procession and demonstration at the
mercy of the authorities. Since, the generality of NRCD 68 was to create a prior restraint and a clog on
the rights of the citizen under article 21(1)(d) of the Constitution, 1992 and thereby denied him those
freedoms to which he was entitled, it was inconsistent with the letter and spirit of article 21(1)(d) of the
Constitution, 1992 and accordingly unconstitutional

FATTAL V MINISTER OF INTERIOR

Two plaintiffs Lebanese by birth acquired citizenship by naturalization under the Ghana national act
1971, act 371 in 1973 and 1976. In 1978, the supreme military council passed a decree SMCD 172 which
revoked their citizenship. Deportation was issued by the minister of interior. The plaintiffs brought an
action to the Supreme Court that the revoking their citizenship without a court order was ultra vires and
contrary to the 1979 constitution. Chapter 5, 9, 12 .in a majority decision, action was dismissed with the
view that in the absence of a written constitution which delimited their power, the military government
was at liberty to do whatever it liked by decree which would have the force of the law.

Held- Since 1966, military governments in Ghana had always reserved to themselves the legislative
power to either enhance or curtail the judicial power vested in the courts. In the absence of a written
constitution which delimited the powers of the various organs of state, a military government was at
liberty to do what it liked by Decree which had the force of law. In the absence of constraints,
restrictions or limitations on the legislative power, the laws enacted by the legislature should be
enforced by the courts. The National Redemption Council by its Proclamation, 1972, made the judicial
power guaranteed by the Constitution, 1969, and indeed all other existing enactments subject to
Decrees passed by the Council. The jurisdiction of the High Court under the Ghana Nationality Act, 1971
(Act 361), s. 10 was therefore subject to Decrees enacted by the Council. And that section should be
deemed to have been amended by the Ghana Nationality (Amendment) Decree, 1978 (S.M.C.D. 172), by
virtue of the fact that section 10 conflicted with the provisions of the Decree which in the clear words of
section 3 (3) of the Proclamation, 1972, must prevail over section 10 of Act 361. It was therefore not
open to any court to declare S.M.C.D. 172 ultra vires and thus null and void.

GBEDEMAH V AWOONOR WILLIAMS

STATE V. G.O.C THE GHANA ARMY, EX PARTE BRAIMAH

The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army
authorities on suspicion of having committed the offence of stealing. The army authorities acted in
pursuance of the provisions of the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109),
which gave to the army authorities the same powers of arrest and prosecution as are vested in the
police under the Criminal Procedure Code, 1960 (Act 30), the Police Service Act, 1965 (Act 284), and the
Public Order Act, 1961 (Act 58).On 4 January 1967, the Attorney-General gave his consent in writing for
the detention of the respondent for a period of 28 days beginning from 4 January 1967. The Attorney-
General was acting under the provisions of the Criminal Procedure Code (Amendment) Decree, 1966
(N.L.C.D. 93), which amended section 15 of the Criminal Procedure Code, 1960. The period of 28 days
expired on 1 February 1967 and on that day the Attorney-General issued another consent in writing for
the [p.195] detention of the respondent for a further period of 28 days as from 1 February 1967.On 7
February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court, Accra,
for a writ of habeas corpus for the release of the respondent from custody on the ground that the
Attorney-General had no power to give consent, once the respondent had completed the original 28
days in custody, for the further detention of the respondent.
Held- Constitutionalism is practised here in the sense that even though his detainment of an extra 28
days was lawful, it was lawful only on the basis that there were sufficient facts to keep him detained.
The object in this case is to keep him away from public during investigations. This was because
investigations were still ongoing.

Things needed to ensure constitutionalism

1. Independent judiciary to guard the constitution. Article 125(1) RE AKOTO is evidence of what
happens when judiciary is not strong and independent

2. The political history & socialization of a people can by itself exert limits- or give little resistance- to
abuse. Eg in GH from Nkrumah down, abusive heads- Ghanaians tolerate rubbish from their leaders.
E.g. Muntaka-goes to see the father after scandal. British system, though Parliament sovereign, held
in check by the violent history that created that sovereignty. I.e. they beheaded a king when he
oppressed them, why would they tolerate oppressive Parliament.

3. The role of elections in constitutionalism. Even though it is not sufficient by itself, it gives immense
confidence in politicians and create a conscious demanding people who are themselves part of the
notion of constitutionalism.

4. Political party activity aids constitutionalism. This is because one serves as a watchdog over the
other.

Theories that go to secure constitutionalism.

1. Separation of powers

2. Judicial review

3. Supremacy of the Constitution.

4. Rule of law

A constant state of confusion is the relationship of constitutionalism with democracy. According to

Professor Nwabueze, ‘’ A government is a democracy if it is popularly based , rests on the consent of the
governed, which consent is given in universally free elections, and which provides a mechanism for the
governed to change the governors in the event of dissatisfaction with their performance’’. Care has to
be taken not to confuse a popularly elected and responsible government with a constitutional one.

A constitutional government in modern times may be democratic but a democratic government may not
necessarily be constitutional. The democratic institutions such as elections, parties etc. are only for
constitutionalizing a government. Constitutionalism does not merely require the existence of a
constitution. A country then, it must be understood can have a constitution without constitutionalism,
particularly in situations where the constitution is only an enabling act which sanctions government fiat.
Constitutionalism may be roughly defined as the art of providing a system of effective restrains on the
exercise of governmental power. Government is necessary for the effective running of ordered society.
There is however arbitrariness inherent in the power of government. Constitutionalism therefore
recognizes the necessity for government while seeking to curb this arbitrariness. Carl Friedrich states
that ‘’ … it embodies the simple proposition that the government is a set of activities organized by and
operated on behalf of the people , but subject to a series of restraints which attempt to ensure that the
power which is needed for such government is not abused by those who are called upon to do the
governing.

Though federal governments are considered best at entrenching the restraint principle central to the
idea of constitutionalism, it does not matter whether the government is unitary or federal. How then do
we make these restraints effective? It is in relation to this that the existence of written constitution is
pertinent to the concept of constitutionalism. Ever since the lead given by France and the United States
in the eighteenth century, the view has become firmly established that the restraints on the exercise of
government power could be effective embodied in a supreme written document, preferably
enforceable, by parties before a judiciary which is independent of the other organs of government.

In MARBURY V. MADISON , chief Justice Marshal of the J.S supreme Court pointed out that ‘’ the
limitations placed on government are known and, therefore , excursions outside these limits can be
more easily checked. It is not solely asserted that the judiciary alone sees to the ‘’policing ‘’ of the
constitution or simply by hoping that the organs of government will restrain themselves and keep within
their boundaries of constitutional powers. Some countries rely both on the judiciary and the legislative
where as others leave everything to the legislators.

An appraisal of constitutionalism in a country, either one written document called the constitution will
be sadly deficient if it only focused on the constitutional document. There must also exist in the ethos of
the particular society belief in the idea the power of government ought to be restrained.

Separation of powers
Origins of Separation of Powers

John Locke was a supporter of the events leading up to the promulgation of the Bill of Rights of 1688
and his writings in that period have been closely linked to the origins of separation of powers. According
to him, because it doesn’t take a long time to make laws, the people who make laws should not be
allowed to be in session continuously; they make the laws and separate (disperse). He recognised that
when laws are made they have to be implemented and issues arising from implementation should be
adjudicated but in his writings, those two belonged to one authority, The Prince.

Montesquieu wrote about the governance systems of the places he had visited in his travels around the
world. In his book The Spirit of the Laws he said the objective of a government dictates its structure.
Sparta’s objective was war so government was structured to promote it. China’s was to promote peace
and stability and its governing system was organised to achieve that. Only one country, England, had an
objective to protect political liberty so that no citizen need fear another citizen. Like Locke, he mentions
the legislation, executive in foreign matters and executive in domestic matters including adjudication. He
ends by saying ‘the monopoly of power is the end of political liberty’. It is this observation of his which
people use to describe dictatorship or tyranny. Montesquieu, unlike Locke, recognized the role of the
judiciary as an organ of government, having a separate function.

Generally speaking, neither Locke nor Montesquieu provided the tripartite arms of government as we
know it today. Rather they advocate that no single person should have the totality of governmental
power.

Within a system of government, there are legislative, executive and judicial functions to be performed
and the primary organs for discharging these functions are the legislature, executive and the courts
respectively. Henderson, a legal historian in his Foundations of English Administration Law has
remarked: the threefold division of labor between a legislator, an administrative official and an
independent judge is a necessary condition for the rule of law in a modern society and therefore
democratic government itself. In a mature democracy, it is important that judges are independent both
of Parliament and government, and that parliament is not merely a rubber stamp for the cabinet. Indeed
it may be argued that the essential values of law, liberty and democracy are best protected if the three
primary functions of a law based government are discharged by distinct institutions.

In the case of BLACKBURN V. AG, Lord Denning argued that the power of entering into treaties was a
responsibility that was in the hands of the crown and not the courts.

TITLE: BLACKBURN v ATTORNEY GENERAL

FACTS: The British government were to enter into the treaty of Rome to join the Common Market. The
plaintiff contended that on entry into the Common Market, signature of the Treaty of Rome by Her
Majesty's government would be in breach of the law because the government would thereby be
surrendering in part the sovereignty of the Crown in Parliament for ever. Also, signature of the treaty
would be irreversible and would limit the sovereignty of the United Kingdom. The issue before the court
was whether it can prevent the Crown from entering into the Treaty.

HOLDING: The court held, per Lord Denning that in the first place, no treaty had been signed by the
Crown as it was in the negotiation stages and that the courts will take no notice of treaties until they are
embodied in laws enacted by Parliament, and then only to the extent that Parliament tells the court.
Further, Denning held that the treaty-making power of this country rests not in the courts, but in the
Crown; that is, Her Majesty acting on the advice of her Ministers and as such the courts cannot stop the
Crown from entering into the treaty. The court can only look into the validity of the treaty if it is passed
by Parliament as an Act. Stamp L.J asserted the principles of Separation of Powers by holding that, The
Crown enters into treaties; Parliament enacts laws; and it is the duty of this court in proper cases to
interpret those laws when made; but it is no part of this court's function or duty to make declarations
in general terms regarding the powers of Parliament, more particularly where the circumstances in
which the court is asked to intervene are purely hypothetical.

The concept of separation of powers may have variety of meanings. The concept of separation of
powers may mean at least 3 different things:

 That the same persons should not form part of more than one of the 3 organs of government,
for example that ministers should not sit in Parliament-personnel separation

 That one organ of government should not control or interfere in the work of another, for
example the executive should not interfere in judicial decisions; article 107 of the 1992
constitution provides that parliament shall have no power to pass any law to alter the decision
or judgment of any court as between the parties subject to that decision or
judgment-organic/institutional separation.

 That one organ of government should not exercise the functions of another for e.g. That misters
should not have legislative powers-functional separation

In considering these aspects of separation of powers, this is neither in theory nor in practice. This is
demonstrated in the STEEL SEIZURE CASE per Justice Jackson.

Aims of Separation of Powers

 To ensure efficiency. This goal can be likened to the Smithanian principle of division of labour in
economics. Here, Adam Smith who propouded the theory of division of labour, said that, when
there is division of labour, there is maximisation of output because there is efficiency. What
proponents of separation of powers are saying therefore is that, separation of power achieves
efficiency, because separation of powers involves division of labour. Each organ is supposed to focus
on one thing, that is, the legislature is supposed to make laws, therefore, should not be bothered
about implementing the law. The executive is supposed to implement the law and likewise should
not worry about what laws to make. The judiciary are also not to be bordered about law making and
implementation because theirs is to adjudicate. In such a situation, we will have each organ being
excellent in its own field. That division encourages efficiency because there is specialisation as
opposed to generalisation

 Ensuring that laws are passed for the general good rather than the interests of a few/prevent
tyranny. Those passing the laws will themselves be subject to it. As such they will ensure that they
will make good laws because the implementation is out of their hands. This appears to be the major
goal of the principle of separation of powers. Experience in governance has shown that, immediately
a person is made too powerful, there is a tendency that the person will become a dictator.
Generally, people have the tendency to abuse, whenever they have too much power. Whenever the
same person can make the law, implement the law and administer justice, there will be no justice
 and invariably, that person will become a dictator. Therefore when there is one person who does
not combine all three functions, then, tyranny will be prevented.

 It allows for accountability. This may be to other branches of government or to the people.

Difficulties or problems

• The need to differentiate the legislative, judiciary and executive functions

• Legal incompatibility of multiple officer holders. For some it means the same person should not
belong to more than one of the three branches.

• Isolation of the different opinion from each other

• It means checks and balances to some people

Challenges of Constitutionalism

 Political Parties-Their primary purpose is to achieve governmental power. Modern power

systems are also attained by competition. Thus in a political system in which every function or
role can be assessed through competition, people of a certain political grouping can sweep
everything in theory and will run the country according to their ideologies. The legislature and
executive can therefore combine. There is even a possibility of a political party nominating
judges for election. The interest in avoiding monopolies via separation of power will therefore
be challenged.

Where the party has a strong hold on the politicians, a monopoly in the authorities might exist
e.g. Ghana and there will be no balance in the centres of power. Where the party’s hold on the
politicians isn’t strong, the likelihood of a monopoly is very low.

 Power of Judicial Review- Courts have the power to determine questions of

constitutionality/law. It enables judges to participate actively, if they want to, in policy making.
For instance the courts invalidated legislative and executive orders in the 31 st December case
and the NPP v. GBC case. The question is therefore whether this gives the judiciary dominant
power over the other centres.

 Parliamentary System- The executive is controlled by, and answerable to the legislative. There is
therefore no proper separation of powers in terms of checks and balances, rather the separation
is functional.

Forms of separation of power

Separation of power can be identified in two forms:

  Classical/strict form- In the classical or strict form of separation of powers, the various organs of
government should be kept separate from each other. This comprise organic separation,
functional separation and personal separation
 Flexible form- The flexible form is a contemporary notion of separation of power. The flexible
notion advocates what is known as checks and balances. In other words, separation of power is
always mediated by the principle of checks and balances. The simple reason is that, government
does not function in a disparate manner. Government is itself, a collection of organic entities
that collaborate and this collaboration between organic entities is designed to ensure that
government act in a coordinated manner because, government has one basic motive and this
motive is to ensure that the welfare of its people is maximised.

Under the principle of checks and balances, there is an advocacy for a relationship between the
various organs of government based on institutional corporation and collaboration, with the
view of ensuring that the organs of government function in close ties with each other. This is
designed to ameliorate the impact of the principle of separation of powers which, if carried to
its logical conclusion, will lead to a breakdown of government. The principle here is that when
government is made to function as if it were made up of organs that are strictly
compartmentalised, the government will break down.

Secondly, if organs of government are made to follow strict separation of power, there will be
conflicts. For example, when there is a strict form of separation of power, legislature can decide
that since theirs is law making, they will make any law they like. The executive may also decide
that they will not implement laws made by the legislature because they have the function of
implementation. The judiciary, likewise, may also decide to strike down laws made and
implemented as unconstitutional. To avoid these potential conflicts between the various organs
of government, it is proposed that the various organs of government rather cooperate and
collaborate. This is what the flexible form of separation of powers seek to achieve

Principle of checks and balances

Checks and balances promotes what is known as reciprocal checks, by which one organ checks or
oversees the functions of another or other organs. That is the principle of reciprocity. The principle of
checks and balances brings up two main concepts; interdependence and reciprocity

Interdependence

This concept advocates that the various organs of government and personnel operates in an
interdependent way through mutual dependence on each other’s competences or power. This implies
that, one organ depends on the functions and powers of the other for the completion or attainment of
its goals. Interdependence therefore implies cooperation or collaboration and abhors dysfunctional
separation or autonomy. It upholds functional autonomy where it is for good purposes.
Reciprocity

It reflects a “give and take” affaire. It implies that each organ checks another and another checks the
other. This is therefore known as cyclical checks because of its cyclical nature i.e. A checks B, B checks C,
C checks A, among others.

Elements of the Separation of Powers in the 4th Republican Constitution

The Constitution has three separate chapters devoted to matters concerning with the Executive (chapter
10), Legislature (chapter 11) and Judiciary (chapter 12). The tasks of each branch of power are indicated.
Article 58 has tasks of executive; Article 93 for legislature; and Article 125 has basic responsibility of the
judiciary.

The constitution makes sure one branch of government does not control the other or have the totality
of powers. It also provides mutual participation in the discharge of responsibilities. There is some
difference/separation in terms of personnel between the executive and legislature on one hand and the
judiciary on the other but it doesn’t exist between the executive and the legislature. Hence some
members of the legislature may function as members of the executive – a departure from the
arrangements under the 1969 Constitution.

The framers of the Constitution seem to not have understood that separation of powers mean having
only three centres of power. As such other institutions have been created with powers which would
normally have been under the executive in other jurisdictions e.g. CHRAJ. They must have believed that
throughout our constitutional experience, it is the executive that needs taming because it has been the
primary source of challenges to our constitution.

CHRAJ has three functions in one;

1. It’s the national agency against corruption

2. Ombudsman i.e. a mechanism available to citizens to seek redress against the public services

3. It’s our national human rights institution

CHRAJ has some investigative powers and holds hearing where people complain about their rights or
corruption of public officials. Hence, it has some quasi-judicial functions.

The New Media Consortium (NMC) is the public oversight body with responsibility to ensure the media
operates according to certain standards. Prior to the 1992 Constitution, that function was controlled by
the Ministry of Information. The NMC is independent of the other centres of power. It has some dispute
resolution function and may be said to have quasi-judicial functions.

The Electoral Commission is to conduct elections and referendums. In Francophone countries especially,
this function is performed by the executive. Not so in Ghana.
  In articles 125 and 127, the executive and legislature are restrained from exercising judicial
power and interfering with the functioning of the judiciary

 Parliament shall be involved in the appointment of ministers and also the appointment of some
judges and also the CJ. The commissions are however signed by the President with approval of
Parliament

 Parliament has the power to impeach the President and some of the senior justices of the
superior court of judicature

 The president is not part of the legislature but he participates in the legislature because the bills
passed by parliament are promulgated by the President. The President therefore has the power
to delay the promulgation, return it to parliament explaining why he does not want to
promulgate it. Parliament has a fixed time to incorporate his comments failure of which the bill
will lapse. Parliament is however free to ignore all the President’s concerns.

 Article 111 allows the Vice President, Ministers and Deputy Ministers who are not members of
Parliament to take part in the proceedings of Parliament but they can neither belong to a
committee nor vote.

 The president fixes the salary of parliament and parliament fixes the salary of the president and
retirement benefits.

 The president cannot dissolve the legislature. It automatically dissolves at the end of 4 years
after taking the oath of office. The only interference from the executive is if the country is
between parliaments and the president recalls the old parliament after its dissolution

 Parliament can censure a minister but only the president can dismiss a minister.

 The public accounts committee of parliament oversees the utilisation of funds the house has
authorised the executive to spend. It’s always chaired by a person from the minority.

 In article 127, the Constitution gives the judiciary financial autonomy

There are relationships between the various organs of government.

 Relationship between legislature and executive- President is not part of parliament but he is
expected to give sessional address yearly at the beginning and dissolution of parliament. The
President does not depend on Parliamentary support for his continuance in office, as he enjoys
certainty of tenure. President can nominate his minsters but the ministers have to be subjected
to vetting and approval by parliament- Act 78(1), J.H MENSAH PER AIKINS. Executive prepares
the budget and has to be approved by parliament.

Unlike USA, where members of Congress cannot hold Ministerial appointment, the 1992
Constitution makes it obligatory for a portion of the cabinet members to be Members of
 Parliament (see Article 78(1)).  There is thus a certain amount of fusion of legislative and
executive personnel. Treaties and loan agreements subject to parliamentary approval-Art 75
and 181 respectively. Parliament has power to bring impeachment proceedings- Art 69(1).

Parliament by its own internal procedure considers bills and may approve or reject a bill.  After
the approval of a bill it requires the assent of the president to become an Act of Parliament.
Thus an Act of Parliament is a bill that has been approved by Parliament and assented to by the
president.  The President may refuse to assent to a bill passed by parliament (veto - refer to
Article 106 for detailed legislative procedure).  Where the president refuse to assent to a bill
passed by Parliament, Parliament may by 2/3 majority vote overturn the veto. In this case, the
President shall assent- Article 106 (10)

 Relationship between legislature and judiciary- Unlike the executive and the legislature where
there is some amount of fusion of personnel, there is a distinct separation of both personnel
and functions of the Judiciary and the Legislature. However, the judiciary depends on parliament
for approval of their appointments. (Judicial review per Sowah in TUFFOUR V. AG). Though
court can review acts of parliament it cannot inquire into what happened in parliament. Even
though article 127 guarantees judiciary financial independence, parliament controls release of
money through appropriation act as provided by article 178, judiciary makes laws via case laws
and can declare acts unconstitutional.

 Relationship between executive and judiciary-CHRAJ an executive instrument performs quasi-

judicial functions; judges of superior court are nominated by executive and can also be removed
by the president on stated grounds acting upon recommendation of a committee as provided by
article 146. Prerogative of mercy-article 72

Disadvantages of Separation of Powers

Government is an organic unity. The various parts are closely interwoven. Therefore absolute separation
of powers is both impossible and undesirable. In every modern government the executive has some kind
of law making power to fill the gaps in the structure.

Separation of powers leads to isolation and disharmony. The various branches of the government tend
to exhibit a sense of understanding and cooperation to achieve its end when they work together. But
when they are separated to carry on exclusive work of their branch they become arrogant and refuse to
work with other branches of government. This gives rise to lots of administrative complications. Every
branch suffers from the vice of exclusiveness leading to loss of cooperation and harmony producing
inefficiency of the government.

The concept of separation of powers which upholds the system of checks and balances for the sake of
equality of powers is based on wrong assumptions. It is not possible to accept the view that all organs of
government mutually check each other.
The relationship between public liberty and separation of powers is not very significant. Liberty of the
individual largely depends on the psych of the people, their outlook, the existing institutions, traditions,
customs and political consciousness. In Great Britain, the people are not less free than that of U.S.A
because there is less separation of powers in the former.

Advantages

 According to Montesquieu, separation of powers is the best guarantee of the liberty of people.

 Separation of power promotes efficiency in the administration.

Separation of powers is useful if used judiciously to bring about a balance between the vigorous action
of the welfare state and the enjoyment of the liberty of the people.

Though Ghana is claimed to be practicing separation of powers, some members of cabinet belong to the
legislature. Hence there cannot be absolute separation of powers.

Conclusion

The 1992 Constitution can be said to provide an appreciable level of separation of functions and
personnel of the three organs of government.  However, there are various provisions promoting check
and balances, ensuring co-operation and interdependence.

Finally, Edward Wiredu JSC, wrote in the case of GHANA BAR ASSOCIATION V ATTORNEY GENERAL
that; “The scope and extent of the doctrine of the separation of powers, in my respectful view, and, as I
understand it, under the Constitution, 1992 is to ensure that each arm of state in the performance of its
duties within the framework of the Constitution, 1992 is to act independently and should not be
obstructed in the exercise of its legitimate duties or be unduly interfered with [by the Constitution]. In
other words, all arms of the State are answerable or responsible to the Constitution, 1992. It is also to
ensure the smooth administration either judicial, legislative or executive governance of the State whilst
checks and balances are provided to ensure strict observance by each arm of state of the provisions of
the Constitution, 1992.”

In the case of DUPORT STEELS LTD V SIRS, LORD DIPLOCK stated that at a time when more and more
cases involving the application of legislation which gives effect to policies that are the subject of bitter
public and parliamentary controversy, it cannot be too strongly emphasized that the British
Constitution, though largely unwritten is firmly based on the separation of powers; Parliament makes
the laws, the judiciary interpret them.

Also in HINDS V R, LORD BINGHAM observed that whatever overlap there may be under constitutions
on the Westminster model between the exercise of executive and legislative powers, the separation
between the exercises of judicial powers on the one hand and legislative and executive powers on the
other is total or effectively so. Such separation, based on the rule of law, was recently described… as ‘a
characteristic feature of democracies’.
In “SEPARATION OF POWERS IN GHANA, THE ROLE OF PARLIAMENT, REVIEW OF GHANA LAW 1980” ,
Nii Josiah Aryee proposed for a system, in which the Executive and the Legislature are separate and
independent of each other, but complementary to each other and obliged to co-operate with each other
if each is to be able to perform its functions effectively.

NIXON V. SIRICA: NIXON V. UNITED STATES

Seven associates of President Nixon had been indicted following the Watergate scandal. The special
prosecutor of the District court issued a subpoena duces tecum (bring certain documents specified for
evidence) to the President requiring him to produce before the trial date certain tapes and documents
relating to the case. The president’s counsel filed a ‘special appearance’ and moved to quash the
subpoena which was accompanied by a formal claim of executive privilege, providing for an absolute
privilege of confidentiality for all Presidential communications. Counsel also argued that with the
doctrine of separation of powers, the independence of the executive branch within its own sphere
insulates the President from a judicial subpoena in an ongoing criminal prosecution and thereby
protects confidential presidential communications. The District Court denied the motion and ordered
the president to submit the subpoenaed items in Nixon v Sirica. The President appealed to the Court of
Appeal but the Supreme Court granted a certiorari before the Court of Appeal’s judgment.

Issue- Whether the doctrine of separation of powers precludes judicial review of a President’s claim of
privilege.

Held- The court held that in the performance of assigned constitutional duties each branch of the
Government must initially interpret the Constitution, and the interpretation of its powers by any branch
is due great respect from the others. The ‘judicial Power of the United States’ vested in the federal
courts by Art. III, § 1, of the Constitution can no more be shared with the Executive Branch than the
Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with
the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the
basic concept of separation of powers and the checks and balances that flow from the scheme of a
tripartite government. As such, SOP cannot preclude the court from exercising its judicial power over a
President’s claim of privilege.

RE AKOTO

An order made by the Governor -General and signed on his behalf by the Minister of Interior caused the
Appellants, Baffour Akoto and seven others to be arrested on the 10th and 11th of November, 1959 on
the ground that, they were engaging in actions dangerous to the security of the State. This order was
made under section 2 of the Preventive Detention Act 1958.

Issue-The issue pertaining SOP is whether the court can look into the grounds upon which the order for
detention of the appellants were made.

Held- the Preventive Detention Act under which the appellants are detained vests plenary discretion in
the Governor-General, (now the President), if satisfied that such order is necessary. The court could not
therefore enquire into the truth of the facts set forth in the grounds on which each appellant has been
detained. The President therefore had every right to detain them as he pleases and the court could not
enquire into that as according to the P.D.A

TUFFOUR v ATTORNEY GENERAL

The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General before the Court of
Appeal sitting as the Supreme Court under section 3 of the First Schedule to the Constitution, 1979, for a
declaration that on the coming into force of the Constitution, 1992, the Hon. Mr. Justice Apaloo was
deemed to have been appointed Chief Justice and as such became president and a member of the
Supreme Court and his purported vetting and rejection by Parliament were in contravention of the
Constitution

The AG argued that the process in Article 127 was a mandatory one and Apaloo’s rejection was done in
pursuant of that procedure. Attorney General raised objections against the jurisdiction of the court as
well as the capacity of the plaintiff and the competency of the Speaker of Parliament to be sued as a
defendant. On jurisdiction, the AG argued that the Supreme Court was not properly constituted to deal
with matters of interpretation as required by Schedule 3. It was an Appeal court sitting as a supreme
court. On capacity, the AG argued that the plaintiff had no interest in the case but it was Apaloo who
had an interest in the case and he was the right person to institute the action. On the merits of the case,
the AG contended that, before the Constitution, 1979, came into force, the hierarchy of courts ended at
the Court of Appeal. No justice could therefore have held the office of a Justice of the Supreme Court.
Accordingly, the Chief Justice of that hierarchy was only a Chief Justice of the Court of Appeal. The
Constitution, however, has provided a higher court, the Supreme Court, membership of which was a
prerequisite for qualification as Chief Justice. As such the then CJ was only a transitional CJ and as such,
if to be appointed as CJ of the SC, he must go through the procedure as stated in Article 127.

Held-The courts did not, and could not, inquire into how Parliament went about its business. That
constituted the state of affairs, as between the legislature and the judiciary which had been crystallized
in articles, 96, 97, 98, 99, 103 and 104 of the Constitution. Particularly Article 96 which provides that any
business in parliament cannot be questioned in a court of law. The court can however take judicial
notice of whatever happens in parliament. The Speaker therefore ought not to be a party in the instant
proceedings and the, court would accordingly discharge him as a party.

NPP v ATTORNEY GENERAL

On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was
overthrown in a coup d’état. Subsequently, the military regime which took over the reins of
government, the Provisional National Defence Council (PNDC), declared 31 December a statutory public
holiday. Accordingly, each year the anniversary of the coup was celebrated, inter alia, by personnel of
the security forces with military parades, route marches and carnivals throughout the country. These
activities were financed with public funds. On 7 January 1993 the reign of the PNDC came to an end with
the assumption of power by a civilian government which had been elected into office under the
Constitution, 1992. When on 19 December 1993 the government announced that 31 December 1993
would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the
registered political parties in the country, claiming that the celebration would be unconstitutional,
brought an action under article 2(1) of the Constitution 1992 against the Attorney-General for a
declaration that the public celebration of the coup d’état of 31 December out of public funds was
inconsistent with or in contravention of the letter and spirit of the Constitution, 1992 particularly articles
3(3)-(7), 35(1) and 41(f) and an order compelling the government to cancel the preparations for the
celebration and refrain from carrying out the celebration with public funds.

Held-

Rule of law
The preamble to the 1992 constitution of Ghana provides that Ghana has declared and affirmed its
commitment to the rule of law

It is a legal philosophy or political theory which lays down the fundamental requirements for law or as a
procedural device by which government should rule under law. It is also considered as a legal maxim
according to which decisions should be made by applying known principles or laws, without the
intervention of discretion in their application… in other words, it seeks to promote law and order and to
prevent disorder and tyrannical rule.

The rule of law is the principle that governmental authority is legitimately exercised only in accordance
with written, publicly disclosed laws adopted and enforced in accordance with established procedure.
The principle is intended to be a safeguard against arbitrary governance.

Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in
Lex, Rex (1644), and later Montesquieu in The Spirit of the Laws (1748).

In Commonwealth law, the most famous exposition of the concept of rule of law was laid down by
Albert Venn Dicey in his Law of the Constitution.

Dicey asserts that the Political institutions of England has been characterised by two features since the
Norman Conquest. The first of which is the undisputed Supremacy of the central government. The King
was the source of law and maintained law and order. At present, the royal supremacy has been passed
on to parliament entitling it sovereignty. The second feature is the supremacy of the law. By this Dicey
expresses that the rule of law has existed for a very long time through the history of the English.

A lot of foreign observers have noticed the peculiarity of rule of law in England far more than
anywhere else. In the English Constitution, the Supremacy or rule of law is an undisputed feature which
generally portrays three conceptions.

The first of these conceptions is that no man is punishable or can be lawfully made to suffer in body
or in goods except for a distinct breach of law established in the ordinary courts of the land. This sense
sharply contrasts government by arbitrary power. Fundamentally, it is an absolute predominance or
supremacy of regular law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of prerogative, or even the wide discretionary authority on the part of the government.
This sense of rule of law observably is prevalent in England or those countries which have inherited
English tradition. In other countries, the executive exercises discretionary which may infringe on the
liberty of individuals and this is not predominantly the case in the government of England. This has led
to a general idea held by a lot of Englishmen that whenever there is discretion, there is room for
arbitrariness.

The second conception asserted by Dicey is that whatever a man be, he is subject to the ordinary law
and pliable to the jurisdiction of the ordinary tribunals. This is basically equality before the law or equal
subjection of all manner of persons to the ordinary law of the land. This has prevailed in England to its
utmost limit where every citizen, irrespective of their responsibilities are legally equal. The Englishman
may therefore naturally think that the rule of law is a characteristic feature of all civilised societies but
this is not the case because most European countries through some sort of development have outlined
certain manner of persons like nobles, priests etc. as capable of defying the law. Even now all persons
are not considered subject to the same law in most continental countries.

The third of the conception around the rule of law is that which Dicey describes as a special attribute
to the English Constitution. This has got to do with the right to personal liberty and freedom. With the
English, the right s and liberties of the private person is a result of judicial decisions in the courts
whereas that may be determined by the general principles that are laid down in the constitution in
many foreign counties. The English Constitution does not spell out any declaration or define rights which
are the case in many foreign constitutions. The Habeas Corpus Act also declared no principle nor did it
define rights, but Dicey proclaims they are for practical purposes worth a hundred constitutional articles
guaranteeing individual liberty. Dicey evaluates that where the rights of the individual freedom is as a
result of or deduced from the principles of the constitution, the idea is readily occurs that the rights are
capable of being taken away. On the other hand, the right of the individual is part of the constitution
because it is inherent in the ordinary law of the land, the right to which can hardly be destroyed without
a thorough revolution in the institutions and manners of the nation.

The general principles of the constitution (for an example the right to personal liberty, or the right to
public meeting) are the result of judicial decisions determining the rights of private persons in particular
cases brought before the courts; According to Dicey, in English law, the fundamental rights and liberties
of citizens emanate and depended upon the ordinary laws of the land and not upon any special Bill of
Rights or other declaration in a written constitution. To Dicey the protection given to the rights of the
individual in the United Kingdom are superior to that given in countries with a special bill of rights since
if a right is infringed remedy can be given with ease as compared with resting on the content of a
declaration.

Dicey identified three principles which together establish the rule of law:

(1) The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary
power; the law must be supreme to everybody in the state and must regulate every action of individuals
in a state. Vis-a-vis the government and the law, the law is supreme and that any action of government
which is inconsistent with the law, will be null and void. This is seen in article 1(2) of the constitution.
This suggests that no man shall be made to suffer except for a breach of the law. Such law should be
certain and not such that its effects takes place retroactively. Article 19(5) of the constitution. This
contradicts with the idea of special courts which are only established after the fact.

(2) Equality before the law or the equal subjection of all classes to the ordinary law of the land
administered by the ordinary courts; No man is above the law , every man and woman , whatever be
his or her rank or condition , is subject to the ordinary law of the realm and amenable to the jurisdiction
of the ordinary tribunals. This is seen in article 17 of the 1992 constitution. Dicey was concerned with
limiting the powers of officials in favor of individual rights. According to Dicey, this is best achieved if all
are subjected to the same law administered by the ordinary courts. Dicey compared the English law to
the French law as with the French, there was a special court which dealt with disputes between citizens
and the state. These courts dicey thought would unduly favor the government as against individuals.

This is Dicey’s most controversial principle as in actual fact everyone is not equal before the law. For
example the president enjoys immunity from prosecution. One of his strongest critics, ivory Jennings,
argues that if one wants to make sense of this principle, one should rather say that among equals there
should be equality.

(3) The law of the constitution is a consequence of the rights of individuals as defined and enforced by
the courts. This is known as predictability of the law. This presupposes that the law must be made in
advance of the action or conduct that is sort to be regulated. Predictability of the law forbids
retrospective legislation. Article 19(5) of the constitution. For rights to be protected in our
contemporary world, we need effective remedies and we need institutions able to enforce these
remedies. When a citizen is wronged, either by another or by the law, he/she should have a remedy.
That remedy should be administered by individual, free and impartial judiciary in a fair and public trial.

The designs and principles of the designs of the rule of law are important; they are the values or the
pillars underpinning the constitution to which we can refer when questions arise concerning the
exercise of power/authority granted by the constitution.

Ivor Jennings-the law and the constitution

To Jennings rule of law is used to denote a society where there is law and order. It is used to distinguish
between a society of anarchy from one with law and order. To him there could be rule of law in military
regimes or in an absolute government so far as law and order prevails and that Dicey’s conception of the
rule of law was just to distinguish a democratic government from a dictatorship.

The talk at the international level has been the need to establish ‘the rule of law’. The fear that many
nations might rebel due to the fact that these nations do not obey the international law has in turn led
many other nations to incessantly add to their armaments to prepare for any warfare that might occur.
This actually in its nature is what is happening in modern states. The basic ingredient needed to warrant
the rule of law basically, is that people are law abiding. This consequently ensures law and order. The
existence of a sovereign who could make laws and ensure that those laws are obeyed promotes law and
order as advocated by Thomas Hobbes. He also prescribes the existence of authority and law as making
life better and enjoyable. The result of allowing lawless men to continue in their lawlessness without any
measure to control them is erosion of the rule of law and thus anarchy.

The rule of law if concluded the same as law and order, then it is typical of every civilised state. If
not, it is only proper to maintain Dicey’s views. Otherwise the whole notion of the rule of law becomes
inexact.

Absolutism has not had much play in the English History because the King has not had absolute
authority as a result of his authority being limited by his subjects. In the English terms, the rule of law
requires that the powers of the crown and that of the subjects shall be derived and limited by either the
legislation of parliament or judicial decisions of the independent courts. The rule of law is an expression
of liberal and democratic principles. The acts of the king are not legitimate unless they extended from
some specific rule of law. Jennings considers that the rule of law contains a conception of equality, the
scope of which is not exact just as the concept of rule of law itself. This notion of equality was used as a
principle to the unequal distribution of property. In the nineteenth century, the liberal tradition
concentrated on “equality before the law”. This concept does not imply that property be equally
distributed nor does it mean law should be applied to all persons in the same way. It is however almost
near impossible to attain a system where law applies equally to all persons because a lot of legislation
applies to certain classes leaving others. Equality before the law does not also mean political equality.
Otherwise little children should be able to vote in elections even though we know that will lead us into
doom. The conclusion here is that this concept of equality before the law is simply limited. What it
actually means is that there should be equality among equals. Even law which should be of general
application are limited in cases of incapacitation. Such areas include areas of law as contracts and of
torts. In criminal cases, the rule of law implies a combination of equality before the law and the notion
that the limits of the police should be strictly defined. But in English law, there is no satisfaction of these
rigorous rules and special exceptions may be made by Parliament.

The rule of law also suggests liberty of persons. In the French Revolution, liberty like equality was
regarded as a fundamental or natural right which had been destroyed in some states by absolutism in
governance even though these states seemed to be working for the liberties of people through the
centuries.

Dicey is not said to have declared the principle of rule of law but he analysed his view on this
principle. He first assessed that “no man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law”. It can therefore be deduced that if the government’s power is
arbitrary or even discretionary, it limits this idea. But the truth of the matter is that, there are many
discretionary powers existing around us and many of these powers form part of the law. They may also
stem from the courts. Jennings proposes that some of these powers as well as others of its kind were
passed by public authorities in 1885 and can still be exercised. According to Jennings, Dicey seemed to
have assessed that government had the function to protect the individual liberty as long as he did not
interfere with the liberties of others. Meanwhile, he leaves out the interference of the public authority
into private action. Jennings further counters Dicey that in time of emergencies, the liberties of
individuals are lost. For instance, by the Emergency Powers Act, 1920, immense powers are given to the
Parliament by which the individual’s liberties are curtailed. One factor that works against the Diceyan
notion is that Parliament can pass whatever legislation it pleases. England’s legislature for instance has
powers not limited at all as it was exercised in Defence of the Realm Act in 1922. Moreover, Parliament
is not limited by clearly stated general rules. Nevertheless dicey says that statutes passed becomes
subject to judicial interpretation but Jennings hits that Parliament can reverse the interpretation given
by the judges if it does not like it. These all exposes some unresolved weaknesses in Dicey’s concept.

Raz

However, according to Raz in his article, The Rule of Law and its Virtue, the concept does not talk about
how law is to be made: by tyrants, majority decisions, or any other way; nor does it talks about
democracy, equality, fairness, or justice… he stated emphatically that there can be an undemocratic
government without any of the so-called conditions but in principle, is based on the Rule of Law. To him,
the concept is based on the following principles:

 The law must be clear

 The law must be publicized

 The law must be stable

 The law must be prospective… must not require the impossible

 The law must not be contradictory

 The courts must be accessible

He compared the concept with a sharp knife for which he drew a conclusion that, the sharpness of the
knife does not show the use of it, it can be used in a positive manner and also negatively. This is the idea
of positivism. The concept says nothing about the ‘justness’ of the law but simply how the legal systems
operate.

International committee of jurists (ICJ) and the rule of law

After Dicey’s exposition of the concept there was a need to consider the relevance of the concept as
practiced in various countries… to do this, the ICJ, an affiliate of UNESCO held a meeting to agree on the
upon an adaptation of Dicey’s Rule of Law in New Delhi, in 1959, with the theme, ‘The Rule of Law in a
Free Society’. They came out with the following core elements:

1. That the individual is possessed of certain rights and freedoms and that he is entitled to protection
of these rights;

2. That there is an absolute need for an independent judiciary and bar;

3. That the establishment of social, economic, and cultural conditions would permit men to live in
dignity and to fulfill their legitimate aspirations.

Respect for human rights

The rule of law believes in the respect for fundamental human rights. The proponents of rule of law
advocated that, the state must respect human rights as a valued obligation. The respect for human
rights flows as a natural consequence of the obligation to rule through law. The main essence of this is
to prevent tyranny. In this respect, every state that upholds the tenets of the rule of law compulsorily
must include in their constitutions (whether in the abstract or concrete sense) real provisions that seek
to uphold and guarantee human rights.

Underlying the above elements are the following principles:

1. Right to representation

2. Effective remedy for a wronged citizen

3. Right to fair trial

4. Independence of the judiciary

5. The rights of citizens must be enshrined

Conditions ensuring Rule of Law

 Good laws- that is the laws must protect the rights of the citizens and in a way, limits the actions
of the government

 Effective remedies- that is anyone who is wronged by the government must be given
appropriate remedies as it arrives

 Professional and courageous lawyers- that is the lawyers must have courage to defend the laws
at all times and also the subjects of the states…

Enemies to Rule of Law

 Non-enforcement of Law- the more society fails to ensure that the laws are evenly enforced,
the easier it is for gov’t to become one of whims rather than one of predetermined rules;
 Less (low) quality of Law- laws are passed at every instance to deal with every problem instead
of looking at the existing laws and determining whether there are remedies already available.
Too much attention is then paid to the process of law rather than the substance
 Lack of Commitment and Devotion to the Law- leads to bigger problems in the future
 Legacy of Military Rule- there is a constant fear that peace and freedom will be set-back by
another coup d’état; lawyers and judges fear challenging the legal order because of what
 happened to those who did so in the past (the rule of law suffers because the skill and expertise
needed in the judicial system is unavailable)

Increasingly, the view is taken that the absence of specific rules does not mean that the rule of law
does not exist.

Prejudices in Rule of Law

When the differentiation is based on social status, it is generally acceptable

 Police have greater power of arrest than private individuals

 Judges have immunity while acting in their judicial capacity

When the differentiation is based on gender, religion, political belief, economic status, etc, then it is
said to be contrary to the law

IN RE M (LORD TEMPLEMAN)

The applicant M. who was a citizen of Zaire came to the united kingdom on 23 September 1990 to seek
asylum. This was based on allegation that he was a refugee within the meaning of the Geneva
Convention relating to the Status of Refugees (1959). After being interviewed, the Home Secretary
refused his claim for asylum by a letter dated 16 November 1990. M was re interviewed on 2 December
1990 and was giving an opportunity to comment on the letter of 16 November 1990 for reconsideration.
He was however disqualified for asylum under the terms of the convention by a letter dated 17
December. He was informed that he would be returned to Zaire on 1 May, 1991 .the applicant applied
for leave of review On 20 March 1991, the application was refused by Kennedy J. the removal was then
scheduled for 28 March 1991. M applied promptly to renew his application for leave before the Court of
Appeal but his solicitors not being able to file the appropriate documents resulted in his application not
being listed. New counsels were arraigned for the applicant who applied to the high court for a leave of
judicial review on new grounds on 2 May. The judge therefore indicated that the applicant’s removal be
postponed pending the consideration of the application, however the Secretary of State did not abide by
this and continued with the deportation of the applicant. Aggrieved by this, the applicant brought an
action against the Secretary of state and the Home Office for contempt of court and failing to comply
with the order made on 2 May.

Held-Per Lord Templeman

The law cannot be enforced by judges against the crown as monarch but rather as executive, hence if a
litigant complains of a breach of the law he can bring an action against the crown as executive by suing
the particular minister in his official position. Therefore injunctions can be granted against the Secretary
for Home Affairs in his official capacity.

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. v. WEDNESBURY CORP

The plaintiff-appellants owned a cinematograph in Wednesbury. They brought an action against the
defendants-respondents to obtain from the court a declaration that a certain condition imposed on
them by the defendants on the grant of permission for Sunday performances to be held in that cinema
was ultra vires. The defendants was mandated to give out certain conditions as to the performance of
cinematographs under the Sunday Entertainment Act, 1932. It was under this law that they imposed a
condition that children under 15 years, whether under an adult party care or not should be excluded
from entering the cinema. The plaintiffs saw this directive as harsh and ultra vires the functions of the
defendant.

Held- The court held, per Lord Greene that the Act deals with an executive action and not a judicial
action and that the conditions which may be imposed are in terms put within the discretion of the local
authority and the statute provides no appeal from the decisions of the local authority. The court can
only infer with an act of executive authority if it shows that the executive had not contravened the law.
Here the conditions placed by the defendants had not contravened the law anyway and as such was
lawful. It is the local authority who are put in the position to make or impose the conditions and if
they act in the four corners of their jurisdiction, it is right in the eyes of the law and the courts cannot
interfere. Here, it leads us that, there are predetermined rules in place and that any entity entrusted
in power whiles acting within its scope must give relevance to the law and must not abuse power.

Wednesbury principle- The court is entitled to investigate the action of the local authority with a view of
seeing whether it has taken into account matters which it ought not to take into account or conversely
has refused to take into account or neglected to take into account which it ought to take into account.

LAKER AIRWAYS LTD. V. DEPT OF TRADE

The plaintiff, an airline company owner wanted to start a new air service across the Atlantic from
England to the United States. In order to embark on the project (skytrain), he had to seek permission
from the authorities in England and the United States. He was given the nod in the UK but in the US, he
was given just a permit to be approved by the President. In anticipation of the president’s consent, he
incurred cost in buying the aircraft and training personnel. However his permit was annulled by the
government of the UK. The Secretary of State issued for the stoppage of the service by the issuing of a
white paper with specific instructions. He brought an action alleging that the secretary had no right to
annul his permit. The issue was whether the resignation of the permit was done in accordance with the
law.

Held- the Secretary of State did not follow according to the rules for the revocation of the permit
according section 4 of the 1971 Act. Thus, he acted according to his own whim and caprice and without
giving the plaintiff the chance to express their views. He was misdirected and if a discretionary power is
exercised under the influence of misdirection, it is not properly exercised and the court can say so.

COUNCIL OF CIVIL SERVANTS UNION v MINISTER OF CIVIL SERVICE

The Government Communications Headquarters (GCHQ) is under the Foreign and Commonwealth Office
and has the main functions of preserving the security of UK military and official communications and
providing signals intelligence for the Government. These duties involve handling secret information that
is vital to national security and is very important to the government. In 1947 staff of GCHQ were always
encouraged and allowed to belong to national trade unions. As a result, most employees are members
of the CCSU and 5 other unions. On 22 Dec 1983, the Prime Minister/Minster for the Civil Service orally
issued an instruction to the effect that GCHQ staff conditions of service should be changed to prevent
them from belonging to national trade unions except a departmental staff association approved by their
director. The applicants, a trade union and six individuals sought judicial review of the minister’s
instruction on the ground that she had been under a duty to act fairly by consulting those concerned
before issuing it and this she didn’t do.

Held- that executive action was not immune from judicial review merely because it was carried out in
pursuance of a power derived from Common Law or prerogative rather than statutory. The applicants
would, apart from the considerations of national security have had a legitimate expectation that unions
and employers would be consulted before the Minister issued her instruction and as such, it will be
unfair by reason of her failure to consult them. However, it was for the executives and not the courts to
decide whether in any particular case, the requirements of national security outweighed those of
fairness. From the facts and evidence adduced in the case, the court concluded that she has shown that
her decision had in fact been based on considerations of national security that outweighed the
applicant’s legitimate expectation of prior consultation.

RIDGE v BALDWIN

The appellant was arrested on October 25, 1957 and charged with conspiracy to obstruct the course of
justice. He was suspended from duty by the borough watch committee. He was then acquitted by the
jury on the criminal charges levelled against him but during the sentence the judge made a remark that
he was not fit to be a leader. On March 6, 1958, he was charged with corruption and was acquitted.
Remarks were made by the judge to the borough’s police force on its need of a better leader. On March
7, 1958, the watch committee met and decided to dismiss the appellant of his duties with the reason
that he was ‘negligent of his duties’. The appellant was not called to the meeting and was not given the
opportunity to defend himself.

Held- the respondents’ did not have power to dismiss the appellant without giving him the chance to
defend himself. Under the Police Act of 1882, the watch committee was bound to inform the appellant
of the grounds on which they wanted to dismiss him and also be allowed to make his defence. The
respondents claim that the appellant had the chance to defend himself during the criminal trial however
the trial was concerned with specific charges of which the appellant was found to be not guilty. This was
against the rules of natural justice.

SECRETARY OF STATE FOR EDUCATION V. TAMESIDE METROPOLITAN BOROUGH COUNCIL

The Metropolitan Borough of Tameside had for its secondary education 16 secondary, modern, five
grammar and three purpose-built comprehensive schools under construction until the local authority on
19th March, 1975 submitted to the Secretary of State for Education and Science a proposal to introduce
a scheme that brings under it all the schools into a comprehensive system which allows everyone into
school without selection by aptitude or ability. The scheme according to the proposal would provide for
three new purpose-built complex schools, 16 secondary modern schools into the comprehensive
principle and abolish the five grammar schools by turning three of them into comprehensive schools and
the two into sixth form colleges. This proposal was put before the Secretary of State and was approved
by him giving the local authority entitlement to implement it but not a duty to. The local authority went
ahead with the approval to implement the new scheme by the beginning of the new academic year in
September but before that time was up, there was a local government election which resulted in the
personnel and control of the authority. The new council that formed the authority when in opposition
preached against the comprehensive system and when they finally won and took control, they felt they
had the mandate from the electorate to allow the grammar system of education to continue. The new
council then decided not to implement the comprehensive scheme fully, but to modify it by completing
the construction of the comprehensives that were not completed and maintaining the grammar and
secondary modern school contending that to implement the new scheme in September at the beginning
of the new academic year would be of a rather hurried nature and premature. The new council then
wrote in a letter of 7th June 1976 to the Secretary of State about their plans giving reasons that there
was the need to review the scheme in the new Educational Bill which was before Parliament. The
Secretary of State and his department did not like this idea basically because of the likely difficulties they
felt would arise. Subsequently, the new council met with the department of the Secretary of State but
the result of the meeting was very conclusive. The Secretary of State held on to his opinion that there
was little time to reverse the plans of the previous council of the local authority and concluded this act
unreasonable. On 11th of June 1976, he gave a direction to the new council to implement the plans of
the previous proposal of their predecessors. The new council did not act to his direction and he applied
on 18th June 1976 for a writ of mandamus. The Divisional Court granted his order and the local authority
appealed on the 26th July 1976 and the appeal was discharged by the Court of Appeal. The Secretary of
State, with the leave of the appeal of the appeal committee of the House of Lords, appealed against the
decision of the Court of Appeal.

Held- The Secretary of State in giving his direction of 11 th June to the new council to implement the
plans of the previous proposal of their predecessors trespassed beyond the statutory limits of his
powers. The action of the new authority which the Secretary of State considers “unreasonable” is not an
action satisfactory for him to conclude “unreasonable”. The reasons were that a direction under s 68
must be justified on the ground of unreasonable action as no reasonable authority would engage in. The
new authority was not being unreasonable in planning to work out their plans within the time frame
which the Secretary of States suggests was little for any reversals to be made. The new authority cannot
be said to have been unreasonable for the fact that they ignored the persistent opposition of the
teachers’ union. The teachers are civil servants and have the responsibility for their pupils. Discretionary
powers are entrusted to the executive by statute; the courts can examine the exercise of those powers,
so as to see that they are used properly, and not improperly or mistakenly.

CAPTAN V. AG

Omar Ibrahim Captan a Lebanese citizen residing in Accra applied for naturalization in July 1968, the
application was received by the interior minister on 23 July 1968. In September 1969, the principal
secretary to the minister received a letter from the NLC that the application had been approved. The
ministry of interior sent a letter to the plaintiff exhibit B. asking him to complete the attached forms
(oath of allegiance) and complete the payment of forty new cedis being naturalization fee. Captan was
however to produce a certificate of naturalization issued under a presidential decree from the
government of Lebanon permitting him to acquire Ghanaian citizenship. And that it was only when a
certificate of naturalization has been issued that the plaintiff can become a citizen of Ghana. The letter
was dated 1 September 1969. On the same day, the plaintiff swore an oath and was issued with a
receipt. The fee showed in the receipt was for the naturalization certificate. On the same day, the
plaintiff received a letter from the Lebanese embassy signed by the ambassador and stamped with the
seal of Lebanon. He letter indicated that the plaintiff was authorized to renounce his Lebanese passport
and acquire a Ghanaian citizenship. The principle secretary refused to issue the certificate of
naturalization which remained on the file of the plaintiff at the interior ministry on the grounds that
there was no presidential decree. On 18 September, 1969 , the plaintiff received a letter signed by the
interior minister that his permit had been withdrawn and that he should leave Ghana within 24 hours
which expired by 6 pm.

Issues

1. Whether the minister in the exercise of his discretionary power to expel an alien has to give reasons
for such expulsion

2. Whether or not article 24(1) vests in an alien the right to immunity from expulsions from Ghana

Held-

1. A minister in expelling an alien from Ghana under sections 7 and 8, of the Aliens Act 1963, (Act 160)
does not exercise such a discretionary power as falls within the purview of article 173 and he is not
obliged to assign reasons.

2. Article 24 does not vest in an alien the right of immunity from expulsion from Ghana. That right is
enjoyed by a citizen of Ghana.

Judicial review
Judicial Review is used to describe two separate ideas.
 Judicial determination of constitutional validity (this is what is concerned with constitutional law).
On some issues, the law of the constitution may apply and those of other laws in the constitutional
system may also apply. Where there is a conflict between both laws on a particular subject, a
judicial/constitutional review is used to resolve the conflict.

 In administrative law the concern is whether the administration acts in tune with the law. Judicial
review in administrative law is where the judiciary is invited to determine if the administration is
conforming to the law. Here the concern is with actions which exceed the boundaries of the law or
which abuse them. In such enquiry, the validity of the law isn’t examined; it is assumed the law is
correct. In other words, it’s the action of the executive measured against the legislation.

Article 11 of the 1992 constitution arranges the laws of Ghana hierarchically and the topmost is the
Constitution, hence it is the supreme law of the country and all other laws derive their power from it.

Judicial review can be direct or indirect. A direct review involves the determination of the
constitutionality of an act or legislation. (Article 2 of the 1992 constitution) An indirect review takes the
form of the interpretation of the provisions of the constitution. (Article 130 of the 1992 constitution)

Constitutional review

A constitutional review is a power and a process either given expressly to the judiciary in the
constitution or asserted by the judiciary based on the nature of the constitution to determine questions
of constitutional validity of action based on laws of policies and any other question where the
consistency or inconsistency, conformity or inconformity of a law or a policy with the supreme law is at
issue as seen in MARBURY V MADISON. It measures a given act against the value of the constitution.

Power of Constitutional Review

1. Some legal systems vest the power of constitutional review in all the courts in the legal system e.g.
US

2. Some give the power only to the highest court of the land e.g. Ghana with the exception of issues
relating to human rights

3. Some systems create a special constitutional court outside the regular court system and it’s only this
court that can deal with the issues of constitutional review e.g. Germany

4. Some systems create a special body which sits outside the court system to determine issues of
constitutional validity. Typically the composition makes it a political body e.g. France and all its
colonies

There may be a fifth situation where each actor in the constitutional system or branch of government
makes the decision of constitutional validity for itself e.g. United Kingdom

Effect of Decisions of Courts in Judicial Review

Where a piece of legislation is found to be inconsistent with the constitution, what happens?
The legislation is unconstitutional ab initio; that is from the very day the law was made. However, some
countries draw a distinction between criminal legislation: retrospective and civil legislation: prospective.

In other countries, invalidated legislation is treated as voidable i.e. the legislation is treated as being
valid until the day it’s pronounced invalid by a court in an appropriate case.

Functions of Constitutional Review

1. It is an important instrument for social ordering. It addresses controversial issues, especially in

constitutional systems where there are elections. If everything is subjected to the vote, some social
issues may not be addressed. The issues are therefore moved to the arena of the judges who do not
depend on votes to pronounce on social, political, economic matters which are too hot for the
politicians to handle.

2. Constitutions provide for change which may take the form of total replacement or replacement of
some parts (amendment). Constitutional review allows a constitutional system to grow without
formal amendment.

3. The process gives teeth to the arrangements, the values, checks and balances, provided in the
constitution i.e. policing of the constitution.

Problems of Judicial Reviews

1. If the constitutional system gives the role of policing to the judges, who will police the judges? What
is it in the judicial character that makes us feel everyone else needs policing but the judiciary?
According to Bickel (Yale Professor), the judiciary should police everyone else because the judges are
the least dangerous because they have no real power because their respect is based on public
opinion. He says the legislature has ‘the power of the purse’ and can shut down government at any
time. The executive is equally powerful because it controls all the coercive forces of the State. The
actual utilisation of the purse is by the executive so if it decides not to spend it, a country will not
have its benefits. The policing function of the State is therefore safer in the hands of the judges.

2. Constitutional review and democracy. If elections are a major pillar of a democracy, why give so
much power to the branch of government which is not elected? Judges have enormous power which
they use. Competitive politics allows for moderation of power because they have to renew their
mandate from time to time. It’s therefore been argued that giving judges power of judicial review is
unconstitutional.

3. If the constitutional system is to maintain balance, then isn’t it unbalanced when judges are given
the power of judicial review where they get a chance to impose their views on everyone else?
Generally, lawmakers do not have the power to overturn decisions of the courts until the courts
change their own minds.
4. There is constant competition between the courts and the legislature. The legislature often tries to
take away the power of the judiciary by denying them jurisdiction (ouster clauses)

Comparative Constitutional Law

UK

Based on the Bill of Rights of 1688. In the Bill the legislature was Supreme. Judges have no power to
question legislation power. What the Judge can do is to look at the parliamentary register. Should they
appear, that will be the end. The principle is that judges do not have judicial review power.

United States of America

Constitutional review is demonstrated most actively in the US constitution. The power is based entirely
on the decision of Marshall C.J. in MARBURY V MADISON. If any court overturns that decision, the
judges will cease to have the power of constitutional review. Marshall C.J said judicial review is
predicated on 3 elements;

 Supremacy of the constitution

 Reduction of a large part of the constitution into writing which ensures the design of the
constitution is known

 Judicial oath where judges swear to administer the law to every person without fear or favour

Epochs of constitutional review

According to McCloskey, it is judicial power which has enabled the US to grow from 13 rebellious states
to 50+1 today. From 13 economically malfunctioning states to the richest, most technologically
advanced and militarily advanced country in the world. The constitution has come to acquire a special
legal sanctity in the society. He developed three epochs of the US constitutional review.

Elaboration and approval of the constitution till the end of the civil war in the 1880’s

The key issues the courts had to deal with were issues of nation building. During that period many of the
cases dealt with the power of the state v the new government (federal administration). Whether the US
should have a currency system was dealt with by the courts. The federal government had responsibility
for inter-state commerce according to the constitution. When one of the States refused to pay tax on
the Dollar and an action was brought before the SC, it was held that the responsibility for inter-state
commerce gave the federal government power to have a currency.
1880’s to the end of the depression i.e. 1930’s

The US SC dealt mainly with issues of capitalism. The contest was between free trade [liberty] and
capitalism and the emerging welfare state. Legislation establishing minimum wage was struck down as
unconstitutional. So were those protecting ‘vulnerable people’. Franklin Roosevelt proposed new
legislations which were meant to move the US from the depression to the next level. Each of the
legislations was declared unconstitutional and always by 5 - 4. He planned to include a new JSC for each
one who was over 70 years. His intention to pack the court with his cronies in order to enable him to
advance the country was rejected. However, one of the justices moved to the dissenting side and
allowed FDR to pass landmark laws on the economy.

1930’s to date

The SC moved away from economic powers during this period and on to questions of rights. Certiorari –
writ of error – allowed the judges to use their discretion to determine which cases to hear because they
realised they didn’t have the expertise to pronounce on economic matters. Four judges will listen to the
facts before deciding whether the SC will hear the case. The US SC was therefore in a position to
determine which cases it wanted to hear and which ones it didn’t. The following were some of the
landmark cases in this period;

Brown v Board of Education [doctrine of ‘separate but equal’ was held as unconstitutional]

NY Times v. O’Sullivan [it established the concept of a ‘public figure’. Where lies are told about the
public figure, the public figure should also publish his view for the public to determine which one to
believe not to bring an action in defamation]

Roe v Wade [decided on the question of when life begins in connection with State legislation on
abortions]

Baker v Carr [it came up with the ‘political doctrine rule’ which was about voting rights which the SC
held that it was a matter for the legislature to deal with]

Ashwander [Branders J. led the SC to establish fair trial rules]

The US SC will not deal with a matter which is ‘not ready’ or ‘premature’. They don’t want to offer the
arena for academic discourse. There must be an issue in which two parties have an interest. Sometimes
the party starts an action and loses interest in the matter before the court; such a case will be dismissed.

In the common law system, two people are required to bring a matter before the court. This is
evidenced in Sallah v. A-G where the A-G said he as A-G had done nothing to Mr. Sallah and he had no
interest in the matter before the court so why did he have to come before the court. The answer of the
SC was that in our legal system there is no one-sided fight; courtroom litigation is a battle between two
parties and if action is against the state, the A-G will be called (A-G is a nominal defendant). The USSC
doesn’t accept nominal defendants. There must be two aggrieved parties.
Principles Governing Judicial Reviews

 Principle of Activism- judges when exercising power should assume the posture of activist,
challenging the status quoSelf-restraint

 Self-restraint- judges should be very slow to pronounce the decisions of other players as
unconstitutional( this is the opposite of activism)

 Principle of Original Intent- Some judges see the occasion for determining constitutional validity as
an opportunity to tease out what the framers of the constitution intended when they were drawing
up the constitution. This is however problematic. Why should one generation impose its thoughts
and aspirations on another generation which has different circumstances from the generations after
it?

 Textual Interpretation- Judges may consign themselves to the language of the constitution when
interpreting it.

 Structure of Constitution- The structure of the constitution suggests that a basic philosophy is that
public power should be subject to limitation.

 Judicial Precedent- A long-standing principle should not be lightly thrown overboard. If several
generations of judges have said that something is a principle, very rarely will that principle be
overturned. Judges are more likely to reconcile constitutional provisions

German System

It lies halfway between the American practice and the French practise. Germany has a dual court system
– a regular court and one which deals with administrative issues. Like the French, the Germans believe
that it is wrong for judges to make law and the power of constitutional review offers judges such power.
They also don’t want judges to mess around with the executive. Administrative courts are within the
executive and all matters in relation to the executive are dealt with in the administrative court.

A special federal constitutional court, outside the court system, has been set up to deal with only
constitutional validity issues. The participants are however treated as judges but they neither belong to
the regular or the administrative court. The power of constitutional review is given to the federal
constitutional court. Cases may be brought in one of the following ways;

 Constitutional complaint- Constitutional complaints are generally on human rights. It may take the
form of a letter to the court. A person does not really need the law. The court registry has enough
staff to translate the letter into a court process. A complaint may be asking that a state/federal law
should be set aside as it is in violation of certain rights.
 Request from the ordinary courts- Every court in the German constitutional system can deal with
constitutional issues. If the court decides that the legislation being challenged is constitutional, the
 court may make the determination. If the court is inclined to uphold a constitutional challenge or
hold that a law is contrary to the constitution, it is required to stay proceedings and refer it to the
constitutional court since the constitutional court is the only institution that can make declarations
on invalidity of laws.
 Petition by the federal government, a state government, a third of the lower house, local
government authorities or associations- If a state government feels a federal government has
invaded its area of authority, it may also send the issue to the constitutional court.

Approach to Judicial Review

1. It always includes some advice in its decisions. It doesn’t just say that a law is unconstitutional
but it determines what is being sought and suggests ways in which something can be
constitutionally done

2. They make admonition decisions and defer determination on constitutional validity issues. They
may say that if something is not done within a particular time frame it might become
unconstitutional.

3. Decisions of the federal constitutional court has the status of an act of parliament and are
published in the official bulletin in which legislations are published.

French System

They have a dual court system. They strongly believe in separation of powers like the Germans. They are
therefore hostile to judicial reviews, even to the German practice, because the participants in the
German federal constitutional court are judges as well. They have established a constitutional council
which may be composed of 9 members; 3 appointed by the president, 3 by the upper house of the
French legislature, 3 by the speaker of the lower house. In addition, all living ex-presidents of the
republic are members. Apart from the live members, membership is for 9 years and there is no second
term. The members may suspend their membership and contest elections. If they win the elections they
resign, if they lose, they resume their membership of the constitutional council.

Functions of the Constitutional Council

1. It supervises elections and referendums

2. Under the 5th French republican constitution, the president is given power to declare states of
emergency but he must consult the council before he makes that declaration

3. It is the body under the French constitution which deals with questions of constitutional validity.

Comparison

In France however constitutional questions are presented to the council before whatever measure on
the table becomes law. As such it’s been said that in France what they have is constitutional preview and
not review. Under Article 61 of the 5th French Constitution, the Constitutional Council is required to
pronounce the constitutionality of any bill.

The validity issue is dealt with in Germany and the US by judges; in France it’s dealt with by politicians.

Unlike the American, any individual person cannot invoke the constitution in France. This implies not
that individuals cannot invoke but rather formal.

MARBURY v MADISON

Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of
Columbia. After the appointment document was signed by the President, the Secretary of State,
Madison failed in his duty to deliver the letter as required by law. As such, Marbury was refused the
position of the Justice of Peace because the commissions signed by former President, John Adams were
not delivered before the expiration of John Adams time in office. Marbury brought a petition to the
Supreme Court under the Judiciary Act of 1789 for an order of mandamus to compel the Secretary of
State to deliver his commission to take up the post of justice of the peace.

Issues

1. Whether Marbury has a right to his commission?

2. If he has a right, whether that right has been violated and do the laws of the country afford him a
remedy?
3. Whether the Supreme Court has the power to issue a writ of mandamus?

Held- The court in a unanimous decision and as read by Chief Justice Marshall held and reasoned as
follows:

1. The applicant had a right to the commission as it originated from an Act passed by Congress in 1801.
Further, the court concluded that when a commission has been signed by the President, the
appointment is made, and that the commission is complete when the seal of the United States has
been affixed to it by the Secretary of State. Mr. Marbury, then, since his commission was signed by
the President and sealed by the Secretary of State, was appointed, and as the law creating the office
gave the officer a right to hold for five years independent of the Executive, the appointment was not
revocable, but vested in the officer legal rights which are protected by the laws of his country. To
withhold the commission, therefore, is an act deemed by the Court not warranted by law, but
violative of a vested legal right.
2. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a
justice of peace for the County of Washington in the District of Columbia, and that the seal of the
United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the
signature, and of the completion of the appointment, and that the appointment conferred on him a
legal right to the office for the space of five years. That, having this legal title to the office, he has a
consequent right to the commission, a refusal to deliver which is a plain violation of that right, for
which the laws of his country afford him a remedy.
3. The court held that the writ of mandamus is the right remedy to be sought by the applicant but it
would refuse it because the law relied upon by the Applicant on the issue of the writ is in
contravention of the Constitution and as such unconstitutional. The courts can therefore not grant
the remedy.

Comments and notes on judicial review as asserted in the case

There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court;
(2) filing in a lower federal court, such as a district court, and appealing all the way up to the Supreme
Court; (3) filing in a state court, appealing all the way up through the state's highest courts, and then
appealing to the Supreme Court on an issue of federal law. The first is an exercise of the Court's original
jurisdiction; the second and third are exercises of the Supreme Court's appellate jurisdiction.

Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court
needed to be able to exercise original jurisdiction over the case in order to have the power to hear it.
Marbury's argument is that in section 13 of the Judiciary Act of 1789, Congress granted the Supreme
Court original jurisdiction over petitions for writs of mandamus. However, Article III, Section 2, Clause 2
of the US Constitution granted the Supreme Court only the right of appellate jurisdiction over
mandamus cases.

Chief Justice Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to
give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III
of the Constitution, which defines the Supreme Court's original and appellate jurisdictions. Marbury had
argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could
add to. Marshall disagreed and held that Congress does not have the power to modify the Supreme
Court's original jurisdiction. Consequently, Marshall found that the Constitution and the Judiciary Act
conflict.

This conflict raised the important question of what happens when an Act of Congress conflicts with the
Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law
and the Courts are bound instead to follow the Constitution, affirming the principle of judicial review. In
support of this position Marshall looked to the nature of the written Constitution—there would be no
point of having a written Constitution if the courts could just ignore it. "To what purpose are powers
limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be
passed by those intended to be restrained?" Marshall also argued that the very nature of the judicial
function requires courts to make this determination. Since it is a court's duty to decide cases, courts
have to be able to decide what law applies to each case. Therefore, if two laws conflict with each other,
a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them to
uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution"
before the "laws of the United States.

BROWN v BOARD OF EDUCATION

Black children were denied admission to public schools attended by white children under laws requiring
or permitting segregation according to the races. The white and black schools approached equality in
terms of buildings, curricula, qualifications, and teacher salaries. In a class action, the plaintiffs argued
that racial segregation of schools was unconstitutional as it violated the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution. The issue before the court was whether
segregation of children in public schools solely on the basis of race deprive the minority children of the
equal protection of the laws guaranteed by the 14th Amendment?

Held- The court, in a unanimous decision held that, despite the equalization of the schools by
"objective" factors, intangible issues foster and maintain inequality. Racial segregation in public
education has a detrimental effect on minority children because it is interpreted as a sign of inferiority.
The long-held doctrine that separate facilities were permissible provided they were equal was rejected.
Separate but equal is inherently unequal in the context of public education.

BLACKBURN v ATTORNEY GENERAL

The British government were to enter into the treaty of Rome to join the Common Market. The plaintiff
contended that on entry into the Common Market, signature of the Treaty of Rome by Her Majesty's
government would be in breach of the law because the government would thereby be surrendering in
part the sovereignty of the Crown in Parliament for ever. Also, signature of the treaty would be
irreversible and would limit the sovereignty of the United Kingdom. The issue before the court was
whether it can prevent the Crown from entering into the Treaty.

Held- The court held, per Lord Denning that in the first place, no treaty had been signed by the Crown as
it was in the negotiation stages and that the courts will take no notice of treaties until they are
embodied in laws enacted by Parliament, and then only to the extent that Parliament tells the court.
Further, Denning held that the treaty-making power of this country rests not in the courts, but in the
Crown; that is, Her Majesty acting on the advice of her Ministers and as such the courts cannot stop the
Crown from entering into the treaty. The court can only look into the validity of the treaty if it is passed
by Parliament as an Act. Stamp L.J asserted the principles of Separation of Powers by holding that, The
Crown enters into treaties; Parliament enacts laws; and it is the duty of this court in proper cases to
interpret those laws when made; but it is no part of this court's function or duty to make declarations in
general terms regarding the powers of Parliament, more particularly where the circumstances in which
the court is asked to intervene are purely hypothetical.

Judicial review of administrative actions (the second sense)

Judicial review represents the means by which the courts control the exercise of governmental power.
Government departments, local authorities, administrative tribunals, state agencies exercising powers
which are governmental in nature, must exercise their powers in a lawful manner. Judicial review is
designed to ensure that public bodies which exercise law-making power or adjudicatory powers are kept
within the confines of the power conferred.
Judicial review is concerned with the legality of the decisions made, not with the merits of the particular
decision. Accordingly, a court of law is to ensure that the exercise of any power which has been
delegated to Ministers, administrative and adjudicatory bodies, has been lawful, according to the power
given to that body by the Act of Parliament.

In UK Administrative Law, two very basic constitutional principles are paramount;

 Parliamentary Supremacy- Parliamentary Supremacy implies that Parliament as the ultimate

law-making body can, in theory make or repeal any law as it wants. Judges cannot question the
validity of primary legislation, and can only challenge subordinate (delegated) legislation on
limited grounds. Thus, in UK where a primary statute creates an administrative body and gives it
wide ranging powers, the courts cannot question the validity of the body created or the purpose
for which it was created. However, they can challenge the actual operations of the agency on
grounds such as excess of jurisdiction (ultra vires) or if intra vires, acting unreasonably or against
rules of Natural justice.

 Rule of Law- In its most basic meaning, rule of law, means that everyone must act within the
confines of the law. When applied to an administrative body, it means administrative agencies
must act within the confines of its enabling Act; i.e. must not act ultra vires. Where a public
officer or an administrative body has exceeded its scope of authority (ultra vires), then judicial
review shall be given to that effect.

Among the basis or grounds by which the power of judicial review of administrative actions can be
exercised are as follows;

 Where an administrative body or person given power does not go through the right procedure
when exercising such power

 Where an administrative power was exercised by taking into account irrelevant issues.
Administrative bodies have the duty to include all relevant considerations and exclude irrelevant
things

 Where an administrative body has made an error of law or has misinterpreted the law.

 Where there has been an abuse of discretionary power- Articles 23 and 296

 Where the principles of natural justice was not observed during decision making.

There are two main limitations on the exercise of administrative authority;

 Express limits provided by an enabling or parent Act, and

 Implied limits on power, which are limits read in by the courts which could be on reasons of
unreasonableness, acting for ulterior purposes, acting in contravention of rules of natural
justice, etc.
Administrative justice in Ghana.

Unlike UK, where it is said that the exercise of the power of judicial review over administrative bodies
are discretionary, in Ghana, under Article 23 of the 1992 Constitution, administrative bodies and
administrative officials shall act fairly and reasonably and comply with the requirements imposed on
them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to
seek redress before a court of law. Thus in Ghana, administrative bodies are limited by express
provisions of their enabling Acts and rules of fairness and reasonableness.

Differences between appeal and judicial review

Appellate court has the power to review a case and to substitute its own decision for that of the lower
court. Appeal may be made on both the law and the facts of the case, so that a full re-hearing may take
place. Judicial review by contrast, is concerned solely with the manner in which the decision-maker has
applied the relevant rules. It is thus procedural in nature. It is not for the court to substitute its
judgment for that of the decision-maker to which powers have been delegated, but has kept within the
rules laid down by statute and common law or the constitution.

The idea of political question and justiciability

There are matters which the court, mindful of the doctrine of separation of powers, consider to be
purely of political nature and therefore reluctant to review. Matters such as the exercise of prerogative
of mercy or issues of national security, and matters of policy may be regarded as non-justiciable. Thus,
in the case of NOTTINGHAMSHIRE COUNTY COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT,
it was held that the court should not intervene to quash guidance drafted by the Secretary of State on
the authority of Parliament, setting limits of public expenditure by local authorities, unless and until a
statute provides otherwise, or it is established that the Secretary of State has abused his power. These
are matters of political judgment for him and for Parliament.

What is Public Law Body?

Judicial review under this category deals with public law bodies and the question has always been of
how to identify a public body. In R V PANEL ON TAKE-OVER AND MERGERS, EXPARTE DATAFIN PLC, the
body, which was subject to review exercised no statutory or prerogative powers and was not even based
on a private contract or constitution. The court held that its functions were amenable to review of the
panel’s enormous de facto power to take decisions affecting the public and crucially, the fact that there
was no other means by which those affected by the decisions of the panel could have challenged them
in the court. The decision was followed in R V ADVERTISING STANDARDS AUTHORITY LTD EX PARTE
THE INSURANCE SERVICE PLS. The ASA Ltd had investigated and upheld a complaint that the Applicant’s
insurance company’s advertising leaflets were misleading and amounted to a breach of advertising
standards. In granting the company’s application for judicial review, the court indicated that the ASA
exhibited similarities with the agency in Datafin and that though it had no statutory or common law
powers, its functions brought it under public law.

This case may be contrasted with R V FOOTBALL ASSOCIATION EX PARTE FOOTBALL LEAGUE wherein
the Football League sought to form a Premier League and introduce consequent changes to its
regulation. The Football League had a contractual agreement with the Football Association whereby it
was permitted each year to operate the league. The Football League contended that the Football
Association was amenable to review because it exercised monopolistic control over the game and
controlled rules governing it. Dismissing the application, it was held that the Football Association was
not discharging functions of a governmental nature and there was no evidence that its functions would
be exercised by a governmental body if it did not exist.

To identify a public body, you have to look for:

 Whether it has a statutory or common law duty,

 What functions does it perform and

 Inadequacy of legal controls over its actions.

Grounds for judicial review

 Breach of statutory requirements and

 Decision reached in an unreasonable manner or in disregard of the rules of natural justice.

Another ground which has recently emerged is the Concept of Proportionality, which confines the limits
of the exercise of power to means which are proportional to the objective to be pursued. This doctrine
has taken roots in the US and Canada. Even though in the matter of R V HOME SECRETARY EX PARTE
BRIND, the House of Lords was not prepared to accept that the concept represented a separate and
distinct head of judicial review. However, UK judges appear to agree that while proportionality is not
part of the English law, it may be used to determine whether a decision has been irrational or not. For
example in R V BARNSLEY METROPOLITAN BOROUGH COUNCIL EX PARTE HOOK, a market stall holder
had his license revoked for urinating in public. Lord Denning MR quashed the decision, partly on the
basis that the penalty was disproportionate to the offence.

Proving unreasonableness

 Relevant and Irrelevant Considerations- If the agency acted on the basis of irrelevant
considerations, or it can be shown that relevant considerations were ignored, then, the decision
will be unreasonable. The basic principle was stated by Lord Esher MR in R V ST. PANCRAS
VESTRY- “the decision making body must fairly consider the case before it and not take into
account any reason for their decision which is not legal. The agency takes into account matters
which the court consider not to be proper for the exercise of their discretion, then in the eyes of
 the law they have not exercised their discretion” Agencies should always bear in mind the
purpose, usually referred to as the intendment of the enabling Act from which it derives its
powers.
 Ulterior Motives- In R V HILLINGTON LBC, EX PARTE ROYCO HOMES LTD, the Respondent
authority granted outline permission for houses subject to conditions such as that the house to
be built should be occupied first by persons on the authority’s housing waiting list etc. It was
held that the conditions were imposed to suit an ulterior purpose, a purpose ulterior to the duty
of the council as a planning authority, as its authority was to ensure that if a private developer
develops its land, he should have to use it in such a way as to relieve the council of a significant
part of its burden as a housing authority. The conditions were ultra vires and brought the whole
planning permission down.

BILSON V APALOO

The plaintiff filed a writ against the then Chief Justice, Justice Apaloo for a declaration to quash
the judgment of the Court of Appeal sitting as the Supreme Court in the case of Tuffour v AG ,
on the grounds inter alia, that the five learned judges who constituted the court did not
constitutionally hold valid nominations to sit in the said suit since the Chief Justice, the
defendant, who had empanelled the court acted in contravention of articles 114(5), 121(2) and
section3(1) of the transitional provisions of the 1979 constitution and that it was judicially
improper for the five judges constituting the panel of the court appeal to accept the invalid
nomination to sit on the said suit. At the hearing counsel for the plaintiff raised a preliminary
objection to the composition of the Supreme Court on the grounds that two members of the
panel hearing the case should not sit as members of the Supreme Court since they had also sat
at the Court of Appeal in the Tuffour case. He further submitted that the natural justice rule
against bias would be infringed if the two judges sat as judges in their own case.
Held- In dismissing the preliminary objection, the court held that the rule of natural justice
(nemo judex in causa sua) also known as the rule against bias arose in two ways, firstly, where
the adjudicator was disqualified because he had direct financial or proprietary interest in the
subject-matter of the suit: and there was a real likelihood that the adjudicator would be biased
in favour of one of the parties. The court also held that in the instant case, natural justice had to
yield to necessity since otherwise it would be impossible to constitute a quorum of five justices
of the Supreme Court of the hearing of the case under Article 115(2) of the constitution. Further
the court said that apart from considerations of necessity, it was incontrovertible that the issues
raised by the parties were predominantly issues of law, the adjudication of which would not
pose any special problems for the judges of the court performing, in the words of their judicial
oath, the functions of their office without fear or favour, affection or ill-will and upholding the
constitution and the laws of Ghana.

Judicial review and military regimes

The question has been often asked whether there is the possibility of judicial review during military
regimes. Military governments, usually after assuming the reins of government suspend or abrogate the
constitution either in part or whole. However, in most cases, the judiciary is allowed to continue the
exercise of the judicial power which it enjoyed under the suspended or abrogated constitution subject
to provisions in the Establishment Proclamations of the military regimes.

The judiciary has had various opportunities in answering the above question. For instance, in FATTAL
AND ANOTHER V MINISTER FOR INTERNAL AFFAIRS AND ANOTHER, the two plaintiffs, Lebanese by
birth, acquired Ghanaian citizenship by naturalization under the then Ghana Nationality Act of 1971, Act
361 in 1973 and 1976. In August 1978 the Supreme Military Council (SMC) passed the Ghana Nationality
(Amendment) Decree, SMCD 172, which revoked the acquired citizenship of the plaintiffs. Deportation
orders were then issued for the two by the Minister for Internal Affairs. In 1980 the plaintiffs invoked
the original jurisdiction of the Supreme Court under the 1969 constitution (article 2 (1), seeking inter alia
that SMCD 172 purporting to revoke their citizenship without a court order was ultra vires the powers of
the SMC as being contrary to the National Redemption Council (Establishment) proclamation and the
1979 constitution and its continued operation was inconsistent with or in contravention of chapters 5, 9
and 12.

The court in a majority decision dismissed the action and held inter alia that since 1966, military
governments in Ghana had always reserved to themselves the legislative power to either enhance or
curtail the judicial power vested in the courts. In the absence of a written constitution that delimited
the powers of the various organs of state, a military government was at liberty to do what it likes by
Decree which had the force of law. In the absence of constraint, restrictions or limitations on the
legislative power, the laws enacted by the legislature, should be enforced by the courts. The NRC by its
Proclamation 1972, made the judicial power guaranteed by the 1969 constitution, and indeed all other
existing enactments subject to Decrees passed by the council. The Court further stated that although
SMCD 172 might appear unjust, unreasonable and even autocratic, yet it was not within the province of
the Supreme Court to strike it down merely because it was an unjust or unreasonable law. The days
when courts of law could embark on such an exercise were over. When SMCD 172 was enacted, there
was no constitution holding the legislative power in leash and no court could have declared SMCD172
invalid, null and void. The Supreme Court could nullify an existing law only if at the time it was passed it
was invalid or its continued existence conflicted with the constitution. The court was supreme only
within the bounds of the constitution. The court has not within its environment nuances of supremacy,
sovereignty or omnipotence. It could not redress injustices perpetrated by military regimes in the past
under Decrees regularly enacted by them.

In his dissenting opinion, Taylor JSC said that the Supreme Court in one single sentence of the majority
achieved a self-imposed limitation on its jurisdiction contained in the clear unmistakable and
peremptory provision of article 1 (2) when the majority held, “the court can nullify an existing law only if
at the time it was passed, it was invalid”. This is so unnecessary for the decision that it can only be
hoped that this purported restriction of the jurisdiction of the Supreme Court will, without doubt, be
studiously ignored.

Remedies given under judicial review

Remedies offered under judicial review are specified under article 33 of the constitution, 1992. These
remedies are; certiorari, prohibition, mandamus which is all termed as prerogative writs and habeas
corpus.

Certiorari

This is an order from a court requiring a decision or an action which has been taken by an administrative
body or official or a quasi-judicial body to be brought up to the court and be quashed.

Prohibition

This is an order seeking to prevent an administrative body or official or an inferior court or a quasi-
judicial body from exceeding its jurisdiction or from making a decision or taking an action which may
warrant certiorari.

Mandamus

When a public body or official or an administrative body or a quasi-judicial body are supposed to
exercise an authority or duty, but that body or official has failed to execute the authority or duty,
mandamus may be issued to that body or official compelling it to perform its function

Declaration

A statement of the legal position of the parties and is not accordingly a remedy per se. It states the
position of the law. It also clarifies and confirms the law. “A declaration order cannot be enforced on its
own but rights and remedies attendant on the declaration may be enforced through a separate action”.

The issue of capacity – Locus Standi

An applicant in an action for judicial review of an administrative decision must have a sufficient interest
in the matter to which the application relates. The justification for the requirement is to limit challenges
to administrative decision-making to genuine cases of grievance and to avoid unnecessary interference
in the administrative process by those whose objectives are not authentic.

Reference may be made to Article 2(1) of the 1992 Constitution on the enforcement of the constitution
and requirement of standing.
Natural justice
The Expression ‘Natural Justice’ can be used in two senses- Broader and narrower sense

In the wider or less technical sense, it means what is fair or what is reasonable or what is inherently
equitable in the sense that everybody can relate to. The second is used to mean certain procedures,
safeguards or principles developed by the common law imposed on persons particularly public persons
in the performance of their functions. In this sense these are more limited, specific principles developed
by the courts. Generally in the performance of their duties, such persons should follow the principles
and any decision contrary is null and void.

The term is used for two references-

 Nemo Judex in causa sua- no man shall be a judge in his own cause or the rule against partiality
or the rule that a decision maker must not be biased.

 Audi Alteram Partem- hear the other side or hear both sides. This can be examined as the
right to fair hearing.

Audi alteram partem

From the broader definition, this concept is natural to human beings. This principle can be related to the
Bible where in the creation story God asked Adam what he had done after taking the fruit. It was after
he had heard them that he proceeded to deliver judgment. This is the first principle that a person should
not be judged until he has been given a fair hearing. This principle is not western and known to the
traditional society and customary law which have expression of these. The principle is that a person who
makes a decision affecting the rights, legitimate interest of another or others, it is imposed in the
decision maker a requirement that a person affected must be heard. It focuses on certain procedural
principles and not the outcome.

BUDU v CAESAR

In October 1955, the plaintiff, Nana Kofi Budu by writ of summons issued in the Native Court “B” of
Akwamu against Francis M.K. Caesar commenced proceedings claiming declaration of title to an area of
land 2 square miles in extent, damages for trespass to the said land and injunction. He was joined by
three (3) other defendants as persons likely to be affected by any decision in respect of the land claimed
by Nana Budu. This was after an arbitration held to settle the matter between the parties. Held- that in
an arbitration, both sides must be given a fair hearing in a judicial manner. The rules which prevail at the
trial of an action in court must be effected as far as practicable. Each party must state his case fully, be
available for cross examination and tender such documents. No person shall be condemned either in
respect of his person or his property without being given a fair hearing. On the merits of the case, the
court concluded that there was no hearing of both parties in the arbitration in a judicial manner. There
was no evidence adduced at the arbitration and the arbitrators did not give judgment based on the
merits of the case. As such there was a breach of natural justice.

REPUBLIC v. DISTRICT MAGISTRATE, KETA AND ANOTHER; EX PARTE HEDO

On 25 May 1970, the District Magistrate at Keta made an order that the applicant, a judgment debtor in
a previous suit, should pay the balance of the costs in the said suit to the judgment creditors within
seven days of the date of the order and in default of payment, the judgment creditors were empowered
to imprison the applicant for 90 days. The magistrate made the order without inquiring into the means
of the applicant. On 18 May 1971, the applicant was arrested and imprisoned. His counsel applied to the
High Court for an order of certiorari to quash the order made by the magistrate. Held- where a person’s
liberty is likely to be restricted or jeopardized any failure to examine whether there was a willful refusal
to pay, is clearly a breach of the rules of natural justice. In this case no adequate opportunity of being
heard as to his means was offered the applicant. This is contrary to natural justice.

AGYEMANG v. THE REPUBLIC (NO. 2)

In an altercation between the appellant and the complainant in a house where both of them lived, the
appellant was alleged to have used force on the complainant. The appellant was tried for ordinary
assault before a district magistrate who acquitted him on the ground that the force used was justified in
order to prevent the commission of a crime in accordance with section 31 of Act 29. In the exercise of
his powers of revision of decisions of district magistrates under Act 372, the supervising High Court
judge in the area reversed, without hearing or seeing the appellant, the order of acquittal and
substituted a conviction and sentenced the appellant to twelve months’ imprisonment with hard labour.
On appeal against conviction and sentence, the main consideration of the Court of Appeal was whether
a revising judge contemplating the reversal of an acquittal and the imposition of a fresh sentence or an
increase in one already given should not hear the convicted person before so acting. Held- the revising
judge had, in reversing the decision of the trial magistrate by substituting a conviction and imposing a
sentence without hearing the appellant, performed his duty in apparent violation of an elementary rule
of natural justice. Consequently the order of the revising judge could not be allowed to stand.

Scope of the principle

Although it was introduced by the adoption of the common law, the notion is inherent in our traditional
society

QUIST v KWANTRENG

The deceased made in his will to transfer his land to some specific parties. A misunderstanding ensued
as to who should be given the land and as such, the plaintiff brought an action in that respect. Before
the case could be heard, a High court judge, Ollennu J who knew the parties volunteered to arbitrate
over the matter and solve it amicably between them but the parties refused. The case was heard by
another judge for which judgment was for the plaintiff. On appeal to the High Court, the case came
before Ollennu J and the defendant raised an objection against Ollennu presiding over the case on
grounds that he had foreknowledge of the case. Held- The court overruled the objection and held that
by Sections 84 & 85 of the Courts Act, officers of the court can ask parties to a case to settle it outside
court and if such officer oversees such settlement, he must recuse himself in case it comes before him in
trial. In the case, because Ollennu did not sit on that case and this is an appeal, and as such he can sit on
it.

KWAMI v QUAYNOR

In 1897, the elders of Osu Alata conferred a piece of land to one William Quaynor on which he held
before his death in 1953. After his death, his sons and successors erected buildings on the land. In March
1933, the Osu Mantse conferred part of the land to the appellant through a conveyance. The appellant
sent men to the land granted him but was estopped by the respondent, Quaynor. The appellant sued in
the land court for declaration of title to the land. The action came on for hearing before Ollennu J. In
giving judgment for the respondent (Quaynor), the learned Judge examined and commented on the
decision of Jackson J. in an Acquisition Enquiry which went to appeal, and on the decision of Van Lare J.
(as he then was) in the case of Danquah v. Ofei; which also went to appeal. The learned Judge had been
Counsel in both of those cases for a party claiming title upon a grant by the Alata Quarter Stool. In an
appeal in the present case, the appellant argued that Ollennu J., before trying the case, was already
seised of the facts as to Alata Quarter Stool land, its extent and claims to further extension. This
amounted to a foreknowledge of the facts which must have influenced his judgment. The issue was
whether Ollennu J had foreknowledge in the case. Held- before the decision of a Judge can be impugned
on the ground of possibility of bias, there must be substantial grounds in support of such possibility and
not mere speculations. Although Ollennu J had appeared as counsel in a similar case, the facts are
different and this does not make him biased. The mere knowledge or experience of a branch of law does
not make you have foreknowledge.

Generally it applies to public bodies. It used to be said that it applied to persons making judicial or quasi-
judicial decisions and executive or administration decisions. RIDGE V. BALDWIN;

In Ghana it has been applied to commissions of enquiry- EX PARTE BANNERMAN; INKUMSAH V. JIAGGE

REPUBLIC v. ASSUA AND OTHERS; EX PARTE BLEWEY

In 1963 the plaintiffs successfully instituted an action against the defendants at the Western Nzima
Traditional Council for the recovery of the Half Assini Divisional stool as the bona fide property of the
plaintiffs’ family. As a result of an appeal against the decision of the council, a committee of inquiry,
composed of a sole commissioner was appointed in 1965 under section 34 of the Chieftaincy Act, 1961
(Act 81), to hear and determine the appeal. The commissioner confirmed the findings of the council and
submitted his report to the National Liberation Council. The National Liberation Council by notice
published in the Local Government Bulletin, No. 16 of 1967 reversed the decision of both the traditional
council and the committee. The plaintiffs unsuccessfully applied to the High Court, Sekondi, for an order
of certiorari to quash the decision of the National Liberation Council. On appeal from that ruling to the
Court of Appeal, counsel for the appellants argued, inter alia, that the decision of the National Liberation
Council breached the rules of natural justice inasmuch as the parties were denied a further hearing.
Held- the National Liberation Council’s act in considering the report was part of the inquiry. It had
before it the whole of the proceedings of the sole commissioner and his report and probably the
proceedings and decision of the traditional council; presumably it was on these that the National
Liberation Council arrived at the decision to reject the findings of the commissioner. As it had not been
suggested that the National Liberation Council took extraneous matters into consideration in arriving at
its decision which was the final process in the inquiry, there was no need for a further hearing of the
parties so that there was no breach of natural justice.

It also applies to chieftaincy tribunals, traditional councils, and national house of chiefs- R V.
CHIEFTAINCY COMMITTEE: EX PARTE OPPONG KWAME; REPUBLIC V. ASOKORE TRADITIONAL
COUNCIL, EX PARTE TIWAA

REPUBLIC v. FREMPONG II & ANOTHER; EX PARTE ABABIO II

The applicant sought an order of certiorari to quash the decision of the respondents destooling him as a
sub-chief. He alleged that sometime in August 1972 he was summoned by the first respondent to
appear before the Nifa Traditional Council but he could not answer the call because of ill-health. Despite
the explanation for his non-appearance before the council, he was declared destooled on certain
allegations made against him by the first respondent. The council recorded reasons for destooling the
applicant but at the hearing of the application an attempt was made to rely on an affidavit sworn to by
the chief sword-bearer to the effect that the applicant’s non-appearance before the council was
deliberate. Counsel for the applicant argued that the whole proceedings before the council were unfair
and contrary to the rules of natural justice inasmuch as the applicant was denied the opportunity of
being heard. Held- when a body like a traditional council was sitting to decide matters which might
affect the rights and status of one of its members or his standing in the community, such a body was
under a duty to act fairly and if there was a failure to observe the rules of natural justice, as in the
instant case, the court would intervene and quash the decision of the council.

It applies to disciplinary bodies-RIDGE V. BALDWIN;

REPUBLIC v. GHANA RAILWAY CORPORATION; EX PARTE APPIAH

The board of directors of the respondent-corporation, acting on the adverse findings made against the
applicants by a board of inquiry set up by the corporation to investigate a certain transaction relating to
the purchase of buff envelopes imposed penalties on the two applicants by reducing their ranks.
Consequently, the two applicants instituted the instant proceedings for an order of certiorari, to quash
the penalties imposed upon them on the grounds, inter alia, that by virtue of the conditions of service
for the senior staff of the corporation, the board had no authority or right to effect a reduction in their
ranks without an proper inquiry on specific charges preferred against them. In the view of the
applicants, by refusing to do any of these, the board of directors not only breached the conditions of
service for the senior staff of the corporation but also violated the elementary rules of natural justice.
Held- the core idea implicit in the natural justice principle of audi alteram partem was simply that a
party ought to have reasonable notice of the case he has to meet and ought to be given the opportunity
to make his statement in explanation of any question and to answer any arguments put forward against
it. The principle did not require that there must be a formal trial of a specific charge akin to court
proceedings, as argued by counsel for the applicants. In commissions or boards of inquiry, the principle
of audi alteram partem would be held as having been complied with if a person suspected of any
malpractice or neglect of duty was invited to answer questions put to him by the inquirers or the
investigations. In the instant case, the allegation that the applicants were condemned unheard was
therefore unjustified as the facts clearly showed that the applicants were notified to appear before a
board of inquiry and that they knew what matter was going to be investigated. Several questions were
also put to them and they were given the opportunity to answer each of them.

It applies to the CHRAJ

It applies to the universities-GLYNN V. KEELE UNIVERSITY

It applies to district assemblies

What is the content?

It does not mean that the decision maker must operate like a court of law as in use the rules of evidence
in proceedings etc. The content is that the decision maker has a basic duty of fairness to those affected
in determining the matter.

Requirements

 Right to representation- this right includes

 The person affected should be informed of the place, date, time of hearing, it means if the
person has no adequate notice as to the date, time, place then there is a breach of natural
justice

 The person should be given adequate notice to prepare his or her case. This will depend on the
nature and complexity of the case and the question of fact for the courts. If you are not given
adequate notice and a decision is made then there is a failure to adhere to the rules of natural
justice

 The person must have access to documents he or she is relying on to make their case

 Secondly, a person who is affected who is affected in cases as like termination of appointment,
misappropriation, person must have notice of what he is charged off and particulars of the charge
so that the person can respond. What constitute adequate notice of the charge is a matter of fact
to be determined by the courts.
 Thirdly, there must be a right to legal representation. Thus if a person wants to be represented by
a lawyer, he should have the opportunity.

Nemo judex in causa sua

This means that a decision maker should not have financial interest or pecuniary or relational or
proprietary interest in the subject matter of the decision or with those affected by the decision and that
where the decision maker has a financial or relational interest with the subject matter of a party
affected, the decision maker should recuse or decline to take part and where he fails to do so, the
decision is null and void.

Pecuniary interest or financial interest

The courts have held that the decision maker should not have a financial interest and it does not matter
whether the interest is minimal, once the person has interest he should invalidate the decision.

DIMES v GRAND JUNCTION

One of the judges involved, Lord Cottenham, who in fact occupied the post of the highest judge, that of
Lord Chancellor, was also a shareholder in a company which was one of the parties to the case. The
company had bought some land in order to construct a canal. Mr Dimes, who had his interests in the
same land, had initially succeeded in recovering the property by means of ejectment. To Dimes'
detriment, however, the corporation had finally had their title confirmed in a decree issued by the late
Lord Chancellor - Lord Cottenham. Dimes appealed to the House of Lords claiming that Lord
Cottenham's decision should be voided because of the links existing between him and the company. He
claimed that the Lord Chancellor had decided this case in his own interest and this was contrary to the
principle of natural justice - no man can be a judge in his own cause. Held- The court held, per Lord
Campbell that the maxim that no man is to be a judge in his own cause should be held sacred. He
emphasized that it did not matter whether the existence of financial interest resulted in actual bias. The
mere existence of this kind of interest provided grounds for likelihood or appearance of bias which was
sufficient to disqualify a judge. As such, the earlier decision in the case was voided.

Similarly, where the decision maker has a relational interest, the decision will be void-

REPUBLIC v CONSTITUTIONAL COMMITTEE CHAIRMAN; EX PARTE BARIMAH

A constitutional committee, chaired by the respondent, Dr Degraft Johnson was set up to look into
destoolment charges preferred against the Adansihene by two complainants. After the
recommendations of the Committee, the Adansihene brought an application for certiorari to quash
them on grounds of bias. The applicant alleged that the respondent had been intimately been involved
in the dispute relating to his destoolment charges and that he had made efforts to settle the matter and
had issued threats against the applicant’s faction to persuade them to settle. The applicant further
contended that an examination of the decisions and conduct of the respondent as chairman of the
committee showed that he was interested in the dispute and was biased against the applicant. To
support the claim on bias, the applicant alleged that the respondent’s wife was related to one of the
complainants and as such, she influenced the respondent in coming to those recommendations. Held- to
succeed in an application based on bias, there must be proof of the existence of a real likelihood of bias
or interest and that mere suspicion of bias however reasonable that might appear is not sufficient. The
test of bias is objective and it is of the view that a right minded person would take if he accepted
matters of fact put forward by the applicant and the basic rule of fair and impartial administration of
justice requires that ‘Justice should not only be don but manifestly and undoubtedly be seen to be done.
From the case, the court concluded that there was no proof of a real likelihood of bias by the
respondent nor was there evidence that his wife influenced him to come to those recommendations.

ATTORNEY GENERAL v SALLAH

Before the main trial (Sallah v AG) began, the defendant raised an objection that Apaloo and Sowah be
disqualified from sitting and taking part in the hearing of the case on the basis that they may have an
interest in the case. Against Justice Apaloo, it was contended that he was a close personal friend of the
respondent (Sallah) and that the relationship between them was so intimate that it will be difficult, if not
impossible for him to decide the case impartially. Against Justice Sowah, it was contended that he was a
brother in law of one Jonas who was affected by the construction put up by government on Section 9(1)
of the Transitional Provisions. Also, Mrs Jones sought help from Sowah to have her husband reinstated
and that Sowah had mentioned this to the sector minister. Held- to qualify a person from acting in a
judicial or quasi-judicial capacity upon the ground of interest not of a pecuniary nature, a real likelihood
of bias must be shown. On the evidence, disqualification on bias cannot be sustained in the case
because it dealt strictly with the interpretation of the 1969 Constituion and not an ordinary litigation
between two private individuals in which a judge can side with either of the parties. The court further
held that there was no proof of a real likelihood of bias against the learned justices as in Ghana, there is
a chance that judges may be acquainted with people either as friends or associates and not such close to
warrant a disqualification.

REPUBLIC v. HIGH COURT, DENU, EX PARTE AGBESI AWUSU II

There was a dispute as to who was the Acting President of the Anlo Traditional council between Regeant
Togbe Sri III and Togbe Agbesi Awusu II. As a result, Togbe Sri III brought a chieftaincy suit before the
Judicial Committee for a declaration that he was the Ag head. Subsequently, Togbe Awusu convened a
meeting of the council on the very same matter. After the meeting, there was published a report on the
outcome of the meeting. Togbe Sri saw the meeting as a contempt of the Judicial Committee and
applied to the High Court, Denu for contempt against Agbesi Awusu. The court awarded the relief ought
by Sri. The applicant, Awusu brought an instant application to the SC for an order of certiorari and
prohibition against the high court on grounds of real likelihood of bias. The applicant relied on evidence
that the learned judge had attended a meeting convened by Togbe Sri on the same matter whilst the
matter was pending, thus constituting foreknowledge. Also, he had intimated to another person the
limited chances of the applicant succeeding in the case before him and as such he had already judged
the case befor its conclusion. Held- on the evidence there was proof of a real likelihood of bias which is
the test for bias. As such the judgement should be voided.

Pre-determination of the issue

This is the idea is that a decision maker should not pre-determine the issue before the issue is examined.
Where the maker has already made up the mind on the decision, it is invalid. That is the decision maker
should approach the decision with an open mind and rely only on the evidence. Thus the decision maker
should not enter into the arena of conflict. ASARE V. DIABA V. REPUBLIC; EX PARTE AGBESI AWUSU
(NO. 1).

Appeals

The decision maker should not be part of his own appeal. In this respect an appeal is differentiated from
a review. A court or judge has power to review his own decision.

Fore-knowledge

The decision maker should not have fore-knowledge of the facts of the case. Where the decision maker
appears to have such knowledge he shall recuse. EX PARTE BRAIMAH, QUIST V. KWANTRENG, KWAME
V. QUAYNOR, EX PARTE AGBESI AWUSU

How does the courts determine whether on the facts of a particular case there is bias on the decision
maker?

The courts have held that the test is an objective one and not subjective. That is whether a reasonable
person ceased with all the facts will conclude that the decision maker is biased. There need not be
actual bias. Whether there is a real likelihood of bias. In both AG V SALLAH, and EX PARTE BRAIMAH it
was held that there was no real likelihood of bias. This is the test in Ghana. It has been suggested in
England that the test is whether there is a real danger of bias or a real likelihood of bias. EX PARTE
MCCARTHY. SALLAH V. AG IN AG V. SALLAH, EX PARTE BARIMAH, EX PARTE AGBESI AWUSU

ADZAKU v GALENKU

In an action for damages, the defendant in cross-examination, suggested to the plaintiff's witness that
he, the witness, had previously spoken to the trial magistrate about the case. This allegation was denied
by the witness. The defendant did not call any admissible evidence on the issue but applied to the trial
magistrate to stop hearing the case and refer it to another magistrate for hearing as to the truth or
otherwise of the allegation. After reviewing the evidence, the trial magistrate concluded that there was
no foundation in the allegation and therefore dismissed the application. The defendant was
subsequently found liable. On appeal, the defendant contended that the whole trial was a nullity and
unsatisfactory because on the basis of the allegation, and from the facts the trial magistrate had
exhibited violent temper in the course of the trial, and had said many unpleasant things about him and
as such, the trial magistrate was biased. Held- to disqualify the trial magistrate and to invalidate his
decision, the allegation of bias must be supported by evidence. A mere or reasonable suspicion of bias
was not enough; the law recognised not only actual bias but that interest, other than interest of a direct
pecuniary or proprietary nature, which gave rise to a real likelihood of bias. Without more, the conduct
of the trial magistrate could not support the charge of bias and since there was no foundation in the
allegation of bias, the trial magistrate was right in dismissing the application

Who has the responsibility of meeting this standard or test?

AG V. SALLAH, EX PARTE AGBESI holds that the onus is on the person alleging bias. In Sallah, the court
called the government in calling witnesses alleging bias. In TSIKATA’S CASE there was a mere allegation
that the judge was discussing the case but a mere allegation will not hold. In doing this the courts have
held that the standard to be reached are-

 Proof on balance of probability (civil standard)

 Proof beyond reasonable doubt (criminal). The Supreme Court established that the standard
proof of balance of probabilities as against that of Ex parte Braimah. EX PARTE BRAIMA, EX
PARTE AGBESI AWUSU,

Exceptions to the rule

 Where there is a statutory duty- where a statute or constitutional duty is imposed on the
decision maker or office holder, then the rule will not apply. By the constitution or statute, it is
the Chief Justice who is to empanel the court – AGYEI TWUM V. AG AND AKWETEY.

AKUFFO ADDO v QUARSHIE IDUN

The defendants (Akuffo Addo, then CJ, the Judicial Secretary and the General Legal Council)
issued certain circulars to judicial officers to deny right of audience to any lawyer without a
solicitor’s licence and that they should not grant an adjournment in a case solely on the ground
that the lawyer required time to take out a solicitor’s license. The plaintiffs brought an action
against the defendants for an injunction to restrain the adherence of the circular. The plaintiffs
contended that they, as lawyers are vested with the legal right of audience in the courts,
without taking a solicitor’s licence and that by the law, to practice as an advocate, it is not
necessary for a lawyer to get a licence. The injuction application was dismissed by the trial court
and the plaintiff appealed to the CA. At the CA, the plaintiff raised an objection to the CJ
empanelling the bench of the CA to hear the matter since he was a party to the suit. They
deemed this to be a breach of Natural Justice. Held- where a statute enjoins a person to
perform an act, he has to do it even if such performance contradicts with the strict rules of
Natural Justice. It is the primary duty of the CJ to invite judges to the CA and as long as he
remained in office, he must perform it. Apart from him being ill, no one is entitled by law to
perform this function.

However where the chief justice is sitting on the case he could be disqualified-DIMES V. GRAND
JUNCTION

 Necessity- In MARBURY V. MADISON, Marshal was the secretary of state then before the
hearing. The principle is that where insisting on the rule means that the case can’t be heard then
the principle against bias will not be insisted upon

 Acquiescence- the idea is that the principle against bias may be waived by a party and that he
party should raise the objection in relation to bias at the first opportunity after he or she
becomes aware of the facts.
Refer to Articles 14 [right to liberty], 19 [fair hearing], 69 [removal of president], 146 [removal of
judges] and 296 [exercise of discretionary power] of the 1992 Constitution
 SECOND SEMESTER

The traditional constitutional process-

chieftaincy law
Before the advent of colonialism we had our own governance system. If we were not taken over by
colonial powers each of us would have been operating within our individual constitutional powers. The
truth is that each one of us operates within two constitutional environments thus the traditional and
Ghanaian constitutional environment. At times religion may be added.

These multiple characters create difficulty sometimes. These can be traced to different rules we have to
respect. The traditional process is characterized by diversity and has various ethnic groups, each with
the political system. These can be grouped into two categories. Some are well developed
administratively in governance arrangement. Others are not well organized with one centralized
governance system. These can be seen in the churches for instance the Roman Catholic Church which
has the head to be the pope. But the same cannot be said about other churches like the Methodist,
Anglican etc.

These are reflected in our traditional set up. For instance the Asantehene is the overlord of the Ashanti
kingdom of which everybody pays allegiance to. The same cannot be said of the other tribes like the
Kokombas. For the modern state of Ghana each small chief in a village calls himself a paramount chief.
Whether the traditional process is one of centralized or not, two things are noticed.

First leadership is recognized at different levels at all ethnic groups, the traditional constitutional process
revolves around the institution of chieftaincy. Note that chieftaincy is not a traditional constitutional
process, but it revolves around it and it is also a system. There are various leadership levels. The head
chief, there are a number of divisional chiefs, town chiefs, village chiefs and within that system we may
have heads of lineages, clans or families and leaders who are known as elders. Elder is not a position
that is heritable. It is based on personal achievement, integrity etc.

Two things can be noted. One is hierarchically structured, and secondly the leadership positions are
gender neutral, thus not only man. So the chiefly position may be occupied by males or females.

The hierarchical structure created some challenges with the colonialists when they first came, especially
with the centralized system, everything was stated in the name of the chief.

We run two parallel governmental systems in our modern state. One presided over by the chief and the
other by the president. Though different they act in active completion for the loyalty for the people.
That of the chief seems more loyal as to that of the president. The system presided over by the
president has been subjected by all kinds of blows and interruptions unlike the relative stability with the
chiefs. Though there are chieftaincy disputes, this is because of the importance of the position. For
instance the people in Kumasi understand the governance system of which the Asantehene is the
overlord.
Chieftaincy is about politics (the chiefs are politicians) and economics (many of the chiefs sit on lots of
wealth and even if the chiefs do not control the wealth the management of this wealth is controlled by
the chiefs). In politics we are able to live at peace because of chiefs, since law and order is maintained by
chiefs. For instance there are 49000 communities of which 12000 are of the modern government and so
it is the chief who maintains law and order in the rest (2000).

Chiefs have skills, expertise, influence, experience, and many belong to professions. The chiefs are also
seen as the religious leaders of their people, thus the belief that the chief has some magical religious
powers. Read chiefs as a judge. Chieftaincy is the embodiment of our cultural heritage. Thus it is the
institution that maintains its richness.

Before independence in the name of the chief was exercised the executive, legislative and judicial leader
of his people. That position is one of the aspects of the institution in conflict with our modern
government.

In colonialism the chief was used indirectly to rule-Dr. Lucy Mair in Native Policies in Africa defined
indirect rule as “the progressive adaption of native institutions to modern conditions”. Kumado
simplifies it as ruling through indigenous agencies. This made the traditional leaders part of the
functionaries of the modern state. Because the colonial power found the traditional power useful, they
made various researches and writings about the institution.

Role of chiefs in the modern state

Since independence, we can break this role into two , one what the law says, thus they are supposed to
contribute to the houses of chiefs, various district assemblies, adjudicate to chieftaincy matters,
arbitration is conducted by then which is backed and enforced by the law, they maintain they are
responsible for peace, law and order in their communities.

In general we can say the chiefs continue to provide welfare for their people for in fact even strangers or
non-nationals who happen to be in their mist. The chiefs act as spokes persons for their people.

They continue to act as assistants of central government and participants of central administration. They
operate as conveyor belt for development in our contemporary world. So many traditional areas have a
minister for development, eg. Is the Nk)so)hene in Ashanti.

Finally we try to use the institution as stabilizers in the modern state. As soon as the nation is confronted
with home challenges the individual or major chiefs are called to intervene. That is in itself recognition in
the modern state and shows that the institution is capable of promoting peace and order.

Some of these roles in the modern state have some challenges. For instance a chief was lynched
because of the way he dressed in public

The structure
 Divisional councils- Section 17 of the chieftaincy Act recognizes that these councils may be
established but provides no answer as to who does the establishment. Article 270.
 Traditional council- This is provided for in section 12. It says there shall be a traditional council in
each traditional area. Article 270 guarantees the institution together with its traditional council.
Traditional Council is used in the sense of the state council. In TOKU, ALIAS AKOA, the principal
question was whether the establishment of the Supreme Court ordinance abolished the role of the
traditional council. State council is defined as the highest body in a traditional area under the
administration of a paramount chief. Section 76 of the act gives the definition of a paramount chief.
But the definition given is of little meaning. Thus if you are installed as a paramount chief then it
means you are a paramount chief. Section 12 provides that there will be a traditional council and the
president in section 13 is the paramount chief. The CONDUA CASE tells of what a traditional area is
and says it is a territorial area under a Paramount chief or territorial area controlled by paramount
chief and Paramount chief is defined as the head chief and the head chief is defined as the chief who
at custom does not own allegiance to another chief.
 Regional houses of chief- Section 6 of the act and article 274. The act says the Regional House of
Chiefs are successors to the provisional council under the 1925 constitution. These provisional
councils were created as instruments in which the government will incorporate the traditional
government into the modern government. The act treats this as if when the provisional council was
established it covered the whole geographical areas as some area were not covered like that of the
Ashanti. Mostly the regional house of chiefs are created by statutes. In Asante there is the Asante
regional house of chiefs and the Asante man council. The Asanteman Council is a customary
institution and the Regional House of Chief is a statutory institution. In Asante custom, they always
have a gathering of all the Amanhene which does not happen in other areas. Section 13 of the act
says the paramount chief of the traditional are or in the case of the Kumasi traditional area shall be
president of the council (traditional council).
 National house of chiefs- The national house of chiefs is the successor to the joint provisional
council created by the Alan Burns constitution of 1946, section 1. This is also clearly a statutory
decision. Therefore the participation of the national house of chiefs as well as membership could be
by statute.

At the local level of our modern government two governments are present .the government presided
over by the chief and the other by the assembly member, district chief executive, and the Member of
Parliament. The arrangement give us four strong leaders, the chief, the District chief executive, the
presiding member and the Member of Parliament is the fourth. They compete to be responsible and
instead of working together, work independently which creates a mess.

Nature of the chieftaincy institution

It is conciliar. Thus it is of two councils with the highest being the chiefs and the council. In the CONDUA
CASE there was a decision whether the head of the fishing community was a chiefly position.
The decision position is said to be by consensus. This distinguishes it from adversarial, or where the
parties see themselves as adversaries. This is a major characteristic of chieftaincy in traditional Africa as
a whole

Definition of a chief

Article 277 of the constitution and section 57(1) of the chieftaincy act defines a chief as a person, who,
hailing from the appropriate family and lineage, has been validly nominated, elected or selected and
enstooled, enskinned or installed as a chief or queen mother in accordance with the relevant customary
law and usage.

 Firstly it is gender-neutral. There are female chiefs who are not queen mothers. Because in the
case where there is vacancy, both males and females can compete.
 Appropriate family- thus you must come from the appropriate family
 Appropriate lineage- So if you are from the appropriate family but not from the lineage, you
will not be eligible
 Validly nominated, elected and selected-In EX PARTE ADUGYAMFI, the various process are spelt
out. The word validly concerns the person who should be doing the election.
 enstooled, enskinned or installed as a chief-These are the traditional symbols of the office of
the chief. Thus if the traditional symbol is enstool, then the chief cannot be enskinned vice
versa. And this is done by the queenmother. Thus for some the symbol is a stool where as
others it is a skin.
 Accordance with the relevant customary law and usage- the word relevant means that the
procedure may be different from community to community. For instance if you are from the
right family and lineage but if by custom the lineage rotates, you will not be eligible if it is not
your turn.

Looking at the chieftaincy act and the Constitution there are certain ideas:

The definition as is in accordance with article 270, section 2 of the Act lists the disqualifications of a
chief. The offences listed there appears to be offences against the governing state and not that against
the customary state.

Subsection 5 of section 57 states that a person shall not be considered to be a chief for the performance
of a function under this Act or any other enactment, unless that person has been registered for the
performance of that function in the
National Register of Chiefs and that person's name has been published in the Chieftaincy Bulletin. The
constitution was aimed at cutting the government from the processes to be a chief.

In the definition we don’t have the word ‘elevated’. So what about those chiefs who have been elevated
by another chief? So if there is elevation by the Asantehene, there is still a distinction between them, it
seems the law maker recognizes the Asantehene to be more than a paramount chief, however if a
paramount chief elevates a divisional chief to be paramount, then they remain the same.
Categories of chiefs -section 58

 The Asantehene and paramount chiefs- the law maker sees the Asantehene to be other than the
paramount chief
 Divisional chiefs
 Sub divisional chiefs
 Adikorofo
 Other chiefs recognized by the national house

EKU ALIAS CONDUA III v ACQUAAH

The Appellant and the Respondent were both members of the Aboadzie fishing community of the shama
state in Western Region. In 1958, a dispute arose between them as to the headship of this fishing
community and as to the right to collect tolls from the fishermen who constituted the community. The
appellant’s claim at High court was dismissed for lack of jurisdiction. The appellant then caused a writ of
summons to issue from the Shama State council against the respondent for a declaration that, he was
the headman of the community and the proper person to collect fishing tolls. The council dismissed the
appellant’s claim and found for the respondent. The appellant appealed to the Court of Appeal
Commission who dismissed the appeal. The appellant filed an application in the High Court, Sekondi, for
an order quashing the decision of the Shama State Council and the Appeal commission on grounds that
the Shama State Council had no jurisdiction because the suit was not of constitutional nature but rather
the right to collect fishing tolls.

Held- the jurisdiction of state councils was limited to determination of disputes of a constitutional
nature. Also, the state council had a traditional jurisdiction to determine a dispute relating to the
appointment or dismissal of a headman inasmuch as a headman occupied a traditional constitutional
and political office.

Jurisdiction in chieftaincy matters

The jurisdiction provided for chieftaincy matters provides for what are chieftaincy matters as seem in
section 76

Constitutional relation under customary law between chiefs- If a statutory position is at variance with
the customary position, then the position of the law is that the customary position prevails. FRIMPONG
V. REPUBLIC-the institution of chieftaincy is not a statutory matter it is a customary matter.

In terms of structures or institutions our law provides a court system for dealing with causes or matters
concerning chieftaincy. They are the Supreme Court, National house of chiefs, Regional house of chiefs,
Traditional councils, and Divisional council.

The jurisdiction is distributed according to the status of the stool. Thus if it concerns a non-paramount
stool, then the original jurisdiction is within a traditional council. Appeals go to the regional house of
chief of the region the stool is located, then to the national house of chief then finally to the Supreme
Court.
If the stool concerns a paramount stool then the regional house of chief of the region, then to the
national house of chiefs to the Supreme Court.

Where the regional house of chiefs may not be appropriate, thus where it is inappropriate, or where the
matter concerns two paramouncies, then the national house of chief has the original jurisdiction and
appeals lie to the Supreme Court.

These structures are supposed to be provided with lawyers

Miscellaneous

Under some institutions a chief can be destooled. Under others destoolment does not prevail. The belief
is that the community suffers more than the chief

If u look at section 72 of the Act, it states that a provision of this Act does not prejudice a right of
allegiance to which a chief in one region is entitled to from a chief in another region or a right of a stool
in one region to property movable or
immovable in another region.

Article 276

The institution of chieftaincy is protected under our constitution and wisely kept out of the arena of
partisan politics so our chiefs can counsel , admonish and encourage our people and their elected
leaders.-Otumfuo Osei tutu , article “ Stop, look and listen, daily graphic , 22 nd may 2013

BOAMPONG v ABOAGYE

The defendant was the Konongohene whiles the plaintiffs were the abusuapanin, obaapanin and the
linguist. A misunderstanding arose between them and the matter was reported to the Juabenghemaa. In
the course of the delibrations, the defendant in a fit of anger pulled off his sandals. Sensing this, the
plaintiffs claimed that the defendant had abdicated his stool and consequently perfrmed such rights to
that effect. The defendant then sent a case to the Juaben Traditional Council where he was not given
judgment. On appeal to the Ashanti House of Chiefs, the judgment of the Juaben Traditional Councilwas
upheld. On further appeal to the National House of Chiefs, he was further denounced. He then brings an
appeal to the SC as the appellant. The issue was whther the defendant had validly abdicated his stool.

Held- although the defendant had voluntarily removed his sandals, it does not constitute a valid
abdication. For there to be a valid abdication, there must be five conditions present.

1. Voluntary renunciation of the stool by the occupant

2. Acceptance by the stool elders and kingmakers
3. Performance of the requisite rites and formalities
4. Publicity

Based on this, the court held that the alleged abdication of defendant was not accepted by the elders of
Konongo as their consenct and concurrence was absent. Secondly, the necessary customary rites were
not performed as the abusuapanin was incompetent to perform this. Moreso, the abdication was not
done in public as the alleged removal was done at the house of the Juabenhemaa. Public here means in
a palace or ‘dwabrem’. Further the defendant did not voluntarily renounced the stool as the removal of
the sandal was in frustration which arose as a result of a fit of anger.

Cases

ESSILFIE v ANAFO IV

In the Nsona family, there are two sections; the Moree Dominase and the Efutu section. The defendant
was the chied of Nkanfua. A complaint was lodged at the Oguaa Traditional Council for inter alia the
destoolment of the defendant by the plaintiff. Judgment was given for the defendant. An appeal to the
Central Regional House of Chiefs by the plaintiffs was allowed. The defendant, dissatisfied, appealed to
the National House of Chiefs for which he was given judgment. The present case is an appeal by the
plaintiffs of the judgment of the National House of Chiefs. The issue was whether the court can grant an
order for the destoolment of the defendant.

Held- there cannot be a declaration for the destoolment of the defendant as a chief because there
plaintiffs had not adduced enough reasons to warrant the destoolment of the defendant. Moreover,
even if there were enough evidence, the court has no power to destool a chief as this task is only
within the ambit of the kingmakers of the community or town.

IN RE WENCHI STOOL AFFAIRS: NKETIA v SRAMANGYEDUA

After the death of the Paramount chief of Wenchi, Nana Abrefa Mobore Bediatuo VII, the Wench stool
became vacant. The Kingmakers approached the queenmother of Wenchi, the Nana Sramangyedua II for
her to nominate a person to be installed as the new chief, for which she asked for time. However, the
kingmakers did not give the considerable time demanded and went ahead to the Obaapanin of the
Wenchi Stool, Obaapanin Abena Frema Atuahene, for her to act in the stead of the queenmother to
nominate someone as chief, for which Kwadwo Nyam Nketia was nominated and installed. The
queenmother, together with three chiefs, lodged a complaint with the Judicial Committee of the Brong
Ahafo Regional House Chiefs for a declaration that the purpoted nomination and installation of Kwadwo
was void on grounds that it can only be done by her, as queenmother. Their petition was dismissed and
they appealed to the NHC where they were dismissed. This is an appeal to the SC

Held- that there had been no valid nomination and therefore the installation of the chief was void. In
giving his judgment, Brobbey JSC asserted that the person who was required, under customary law, to
nominate a person as chief was the queenmother and as such the purported nomination by the
obaapanin was invalid. He stated that so far as there is a queenmother, she is the only one to make the
nomination and any other person who purport to make will be voided. Un the case, all the parties
alluded to Nana Sramengyedua as the queenmother and as such, it was her duty to nominate. On the
allegation of delay, the court held that the request of the queenmother was reasonable as she sought
for time to consider all canditates she deemed fit to the position.
REPUBLIC v ADANSI TRADITIONAL COUNCIL; EX PARTE NANA AKYIE

There was a misunderstanding as to the person to take over the vacant New Edubiase stool. The
plaintiffs sent the matter to the Adansi Traditional Council on grounds that the defendant was not a true
royal of Edubiase and cannot be the chief. The council commenced sitting on a 21 member panel with
the Adansihene as chairman. Later, the panel was reconstituted and it became seven to which the
parties agreed. After the hearing, judgment was given to the defendants. The plaintiffs, not satisfied
with the judgment sent an action in the high court for an order of certiorari to quash the proceedings of
the Council on grounds of lack of jurisdiction. The order was not granted. This is an appeal.

Held- it was incontrovertible that the proper quorum for adjudicating a cause or matter affecting
chieftaincy under the Chieftaincy Act was a membership of not less than half of the total number of
members of the traditional council present. In the instant case the full membership of the council was
21; consequently at least eleven members of the present council would constitute a competent body to
hear and determine a matter affecting chieftaincy and since the membership of the reconstituted
committee of the Adansi Traditional Council heard the appellants’ case, there was lack of jurisdiction in
the committee and the sittings, proceedings and judgment of that committee were therefore null and
void and of no effect whatsoever.

REPUBLIC v. PRESIDENT OF GBI TRADITIONAL COUNCIL; EX PARTE TOGBE KWASI BUAMI VII

The respondent is the Paramount Chief of Gbi Traditional Area and also the president of the Gbi
Traditional Council. He was required under Act 370 to swear in chiefs within the Gbi Traditional Area
into the Council. The applicants were not sworn in as prescribed by law on grounds that they were not
registered by the National House of Chiefs list. The applicants brought an action for an order of
mandamus to compel the respondent to swear them into the Council.

Held- before a chief can be sworn into a traditional council, he must be registered as a chief and such
registration gazetted. The applicants were not enrolled in the register and as such cannot be part of the
new council.

TOBAH v KWEKUMAH

There was a misunderstanding as to who to occupy the stool of the Agona division and the plaintiff
brought an action to the High Court for a declaration that the defendant cannot install any chief.
Meanwhile, the case was pending in the judicial committee of the Ahanta Traditional Council. The
plaintiffs were given judgment. The defendant appealed for which they were dismissed on grounds that
the High Court had jurisdiction to hear the case. NB: There was an issue as to whether the High Court
has original jurisdiction as Section 14 of the Courts Act clothed it with Jurisdiction in all chieftaincy
matters and Section 52 however limited the High Court’s original jurisdiction in chieftaincy matters to
only grant of prerogative writs.
Held- There was no conflict between the provisions of sections 14(1)(a) and 52 of Act 372. The trial
judge had misled himself by ignoring the first part of section 14(1)(a) which made the original
jurisdiction of the High Court "subject to the provisions of the Constitution and any other enactment."
Section 14(1)(a) qualified the original jurisdiction of the High Court "in all matters." The "all matters" in
section 14(1)(a) was subject to the provisions of the Constitution and any other enactment such as
section 52 of Act 372 and section 15 of Act 370. In other words, section 14(1)(a) provided the
foundation by the use of the words "subject to..." for the limitation placed on "all matters" and
permitted no conflict whatever. Consequently, only the judicial committee of the Ahanta Traditional
Council had the exclusive jurisdiction to deal with the matter. It was therefore wrong for the High Court
to have assumed jurisdiction to hear the matter.

ANNIN v ABABIO

The plaintiff was the past chief of Benchem but abdicated from the stool. The first defendant was sworn
in as the new Bechemhene. The plaintiff brought an action for a declaration that certain properties were
his personal properties and not stool properties. After evidence had concluded, the first defendant
moved the court that it had no jurisdiction to hear the matter because it was a chieftaincy matter.

Held- the court it had jurisdiction to hear the case and gave reason that although the case had arisen out
of the abdication of the plaintiff, there is no issue raised for the recovery or delivery of the properties in
connection with his abdication or the installation of the defendant as chief. Thus the matter at hand
does not relate strictly to a chieftaincy matter.

REPUBLIC v KOMENDA TRADITIONAL COUNCIL; EX PARTE PRAH

The respondent, Kwasi Essiah was removed from his post as the Ebusuapanin of the Nsona Stool family
of Dominase by the defendant, Nana Kwaku Prah, Dominasehene. As a result, Essiah brought an action
before the Judicial Committee of the Kemoneda Traditional Council for a declaration that his purpoted
removal as family head was null. The defendant applicant brought the instant action in the High Court
for an order of prohibition to stop the hearing before the KTC on grounds that the respondent was not a
chief and that the KTC lacked jurisdiction.

Held- from the Chieftaincy Act, the categories of chiefs are spelt out; Paramount Chiefs, Divisional
Chiefs, Sub-divisional chiefs, Adikrofo) and any other such chiefs recognized by the National House of
Chiefs LI 798 precluded family head as chiefs in light of the last category and restricted them to be only
chiefs if their positions were analogous to stool fathers obaapanin and ohemaa. Moreso, the respondent
was not recognized by the National House of Chiefs as a chief. Due to this, the KTC lacked jurisdiction as
its jurisdiction is only restricted to chiefs.

OSEI v SIRIBUOR

The appellant claimed he was part of the royal family of Juaben. As a result, he, together with some
elders, approached the respondent to be recognized as such. The respondent accepted him. However,
at a later date, the appellant realized that the respondent no longer accorded him the royal status. As a
result, he filed a case un the Ashanti Regional House of Chiefs for a declaration that he was a royal of the
Jubeng Stool. The issue was whether the Regional House of Chiefs had jurisdiction over the matter.

Held- that the House of Chiefs have jurisdiction only on matters relating to chieftaincy. The appellant
asserted that the case at hand related to chieftaincy because being a royal, one stands a chance of being
nominated as a chief. However, the court debunked this assertion ad held that the appellant had his
eyes only on being a royal and not becoming a chief and thus, ruling that it had no jurisdiction.

REPUBLIC v NATIONAL HOUSE OF CHIEFS; EX PARTE KUSI APEA

The appellant was the chief of Wenchi until he was removed in 1958 for which the respondednt was
installed as new chief. However, in 1966, the appellant was reinstated as the chief by virtue of the
Chieftaincy (Amendment) Decree, 1966 (NLCD 12), for which he ruled for seven years until the Decree
was repealed by the SMC through the Wenchi Paramount Stool Affairs Decree, 1976 (SMCD 64). The
respondent was reinstalled under SMCD 64 but the appellant alleged that NLCD 12 was repealed by an
AFRC Decree and not SMCD 64 and as such he was still the chief. He thus brought this action in the High
Court fpr a mandamus to compel the National House of Chiefs to register his name as the chief of
Wenchi.

Held- that the remedy of mandamus cannot be granted because the appellant had to institute
proceedings at the RHC to be restored and mandamus cannot lie from a court where there are other
remedies existing.

REPUBLIC v. AKIM ABUAKWA TRADITIONAL COUNCIL; EX PARTE SAKYIRAA II

The kingmakers of the Akim Abuakwa Traditional Area who had approved the nomination of Dr. Alex
Fredua Agyemang as Okyenhene, met to elect and install him as the new omanhene. On three
occasions, the applicant, the queenmother of the traditional area was sent for by the Okyeman Council
to attend the council meeting, but she refused as she did not approve of the nomination, and as a result
she was declared summarily destooled. She therefore brought the present application for an order of
certiorari to quash the decision of the Okyeman Council which resulted in her destoolment. The
respondents opposed to the application on grounds, inter alia, that since the applicant was not a chief in
accordance with Akim Abuakwa custom her destoolment could not be governed by the provisions of the
Chieftaincy Act, 197. The issue was whether a queenmother can described as a chief within the meaning
of the Chieftaincy Act.

Held- the queenmother of Akim Abuakwa was a chief within the meaning of a chief as defined by
section 48 (1) of the Chieftaincy Act, 1971 (Act 370), and that being the case, her destoolment being a
cause or matter affecting chieftaincy should have complied with the Chieftaincy (Proceedings and
Functions) (Traditional Councils) Regulations, 1972 (L.I. 798). But since there was no evidence that the
purported destoolment complied with the provisions of the regulations stated, the respondents’ order
of destoolment was made without jurisdiction.

NYAMEKYE v. TAWIAH
In an appeal to the National House of Chiefs in a chieftaincy dispute arising from the rotational right of
three houses to nominate a candidate for the stool by turn, it was submitted inter alia to the house that
whatever defects there might be in the trial tribunal’s judgment, its holding in favour of rotation must
be right and should be left undisturbed. The house rejected this submission holding that, “A plaintiff
succeeds on the strength of his own case and not on the weakness of the defendant’s case. The onus of
proof always lies on him who alleges a certain fact, and unless this proof is made, the plaintiff cannot
succeed . . .” The house therefore reversed the judgment of the Central Regional House of Chiefs, which
was the tribunal of fact. This is an appeal.

Held- the policy reason underlying the statutory conferment of both original and appellate jurisdiction in
chieftaincy disputes on traditional tribunals, was that the personnel of those courts were, by reason of
their background and training knowledgeable in indigenous law and custom to competently determine
those matters. When they sought to resolve issues which demanded the application of customary law by
resort to the subtleties of English common law their expertise was doubtful and as this case showed,
they foundered in the result. A party could prove his case by admissions from the mouth of his
opponent or his adversary’s witness and in holding otherwise the house offended both principle and
authority.

Constitutional evolution
General overview

There were four types of overseas dependencies known to the British Empire

- Those attained through settlement

- By conquest
- Through the extension of protection or protectorate
- Through trust arrangement with international agencies

Modern Ghana is made up of all four types of overseas dependencies which were known to the British.
There were certain colonies of the coastal areas 1844, a conquest of the middle belt of Ashanti 1901,
protectorate of the northern territories which were in 1901 and trust territory of
Togoland(arrangement between France and Britain after the treaty of Versailles).

Because of the peace meal in nature of the process through which these four were glued together, we
can see that we did not have one governance system of the modern state until the 1940s. When we
trace the constitutional history of the country and refer to the constitutive instrument, the scope of the
instrument was limited because of the small part of the modern Ghana. Thus the institutions of
governance which were put into place were institutions which did not have representatives.
The early contacts with the modern Ghana by external forces were commercial ventures with the
coastal people. There are some visible reminders of these, forts which served as trading posts, schnapps,
and these contacts were mainly to the coastal people, and some of the instrument of cooperation was
between the Fanti leaders and the merchants.

Between the years 1800-1826, the administration of British interest in the Gold Coast was in the hands
of the merchants and the introduction of British laws was confined to the merchants. In 1821, the British
government decided to take direct control and administer these settlements until 1830 largely because
of coastal interaction between the British and the Ashanti in which they fought two major wars. In 1821
where the head of the British administration led the war effort against the Ashanti’s.

When the British decided to have direct administration in the Gold Coast in 1820, there were two major
wars in 1821, thus the governor was killed. In 1824, the British fought back in the battle of Dodowa
where the Ashanti’s were defeated.

By the 1830s, the British were about to sell, and the merchants could see some future; according to the
history between 1830 and the 1840s the British interests were administered by the merchants. The
merchants set up a committee headed by Captain Mclean. It appears they did a wonderful job but in the
process incurred the resentment of the native rulers (at this point they were mainly Fanti chiefs)

There were two main reasons for the resentment:

By this point in time, the slave trade had been abolished and so the revenue coming to the traditional
leadership from the sale of slaves had dried up. And also from the administration of justice, thus loss of
court revenue.

As a result of the victory of the British over the Ashantis at the battle of Dodowa, the British refused to
pay on the lands and others where they built saying , they had become free from any obligation to pay
ground rites. So the traditional leaders sent a delegation to Britain to protest. –refusal to pay ground
rites.

Following these kinds of resentments the traditional leadership would have organized military against
the British but they sent a petition rather. This too is a process which involves the visible use of lawyers
like Mensah Sarbah.

A committee was appointed to look into their complaints and the committee came to the Gold Coast.
They recommended that the complaints were well founded and that the illegal administration of
McLean should be regularized. This was to be done through the signing of treaties. These brought two
pieces of legislation both in 1843: the British settlement act and the foreign jurisdiction act.

The foreign jurisdiction act empowered any possession of a foreign country as if that possession was
acquired by conquest and the British settlement act enabled laws, ordinances and orders in council to be
made.
The British government also assumed direct administration which saw to the end of the merchant
administration. This led to the appointment of a new governor (at this time the colony included Lagos as
well)

One of the pieces of legislation the British Settlement Act; the new governor proceeded to what was
called finishing treaties…they enter into 11 and because they were too many, they entered into one
composite agreement on the 6 of March 1844, thus the bond of 1844. Most political commentators
believed we lost our freedom on this day.

The legal effects of the bond:

- They agreed that the jurisdiction of McLean illegally extended should be regularized
- The British undertook to respect the traditional authority and jurisdiction of the chief and the
native rulers in turn undertook guarantee in human rights especially property rights.
- The native rulers agreed to abolish barbarous and obnoxious customs especially pannyaring
which was at its peak (where if an individual is being sought and is not found, a close relative
was taken).
- The chiefs agreed that in order to modernize their justice system and make them attractive to
the people they would allow the British officials to help them in the trial of serious crimes such
as murder and robbery.

There is nothing in the bond about political power. Our traditional rulers lost their political power to the
British colonial rulers because the British were bound by certain superior power.

In 1850, they established the first legislative institution and they organized the judiciary and McLean was
appointed as the first judicial assessor, (Chief Justice).

Note what took place during these periods very well: 1821, 1830, 1843, 1844, and 1850.

From the 1800 to this time, as part of the British possession of the West Africa, Sierra Leone was the
capital. In 1874, the colony of the Gold Coast was established according to British law. Thus the Gold
Coast was formally separated and constituted into a country by itself on 24 July 1874. From that date,
the evolution story can be traced

Bennion
- Position of Ghana-bounded by French Territories
- From 1821 to 1874 British possessions on the Gold Coast. This is different from the period of
1850 to 1866 (where they were treated as a separate entity) under the control of the governor
of Sierra Leone.
- Sir Charles McCarthy- to take charge of the properties...Battle of Nsamankow-killed – 1831
The relationship between the British Government and the colonized subjects was spelt out by the
Parliamentary Select Committee to not be one involving the allegiance to subjects but rather of a
weaker power deferring to a stronger one whose protection and counsel they seek and to whom they
are bound certain defined obligations.

- Ghana to become a republic-1 July 1960.

- Shows how republican system really resembles the former constitutional system of colonialists
- The Assumption of British Jurisdiction by the Crown began in 1821.
- The governor of Sierra Leone, Sir Charles McCarthy –came to GC in 1822-was killed in battle with
the Asantes.
- The British were originally traders and missionaries- slave trade inclusive.
- The British possessions on the Gold Coast were in the care of the governor of Sierra Leone-then
the Committee of Merchants took over.
- Slave trade was abolished- the committee became useless.
- Committee abolished- funds were inadequate+ failed to prevent illicit slave trading- Act passed
to dissolve company.

-Reign of Captain George Maclean-1830- as President of the Committee of Merchants. they fought with
the Asantes to give up suzerainty over the states because the unrest they were causing was disturbing
trading activities and as President of the committee of Merchants he was obliged to do something about
it.

- Actually it so happens that the first governor of the GC was Commander Hill

- Mclean made Judicial Assessor.

- Mclean exercised an irregular judicial jurisdiction and not a political one….but it was the Acts and not
the Bond that gave political jurisdiction…

-1831- Treaty of Fomena - Battle of Dodowa( 1826)- Asantes gave up suzerainty of coastal tribes.

-British began to take colonial control- as Crown was pressed by Parliamentary Select Committee that
the dependence on the Governor of Sierra Leone should cease instead the GC was to have its own
Governor.

-The Troublesome acts of 1843;

 British Settlement Act-to establish laws and institutions necessary for Crown governance +
Foreign Jurisdictions Act-to exercise political powers over territories that were not under the
Crown’s jurisdiction.

The Bond of 1844

Apparently these are the features

  The first object of law was to recognize the protection of individuals and of property. the chiefs
recognized the power of the British Jurisdiction-that’s what Kumado refers to as recognizing the
illegality of British Jurisdiction and validating it. It was actually McClean’s initiative and instead of
shooing it they hoorayed it….instead of punishing him for his illegal usurpation of jurisdiction
they “saw that it was good” and called black white.

 Said human sacrifices, panayarring-taking hostage of the loved ones of a wanted person and
torturing said one in hopes that the wanted one will return and give himself in… and other
barbaric acts should be stopped. Natives submitted themselves for punishment as it concerned
certain grievous crimes. It served as an avenue for the British to mold the country according to
the general principles of British law.

 The customs of the country were to be “molded in accordance with the general principles of
British law.

When the Gold Coast was separated from the management of the British through
the Governor of Sierra Leone
This marked a considerable constitutional advance, with the Gold Coast being given its own Governor
and both a Legislative Council and an Executive Council… Thus institutions were set up which, over a
period of a hundred and ten years, were to evolve into the President, National Assembly and Cabinet of
today... The Change was effected by a Royal Charter dated 24th January, 1850, and made under the
British Settlements Act

6 years later…

The constitution of 1850 was promulgated.

- Legislative Council: Governor+ 2 others as designated by Royal Instructions or warrants.
- They were charged with the duty of making law for peace, order and good governance.
- Governor was given the power to withhold assent to any ordinance which was repugnant to any
Act of Parliament, Royal Charter or Royal instructions,
- No law was to be passed or discussed unless proposed by the governor
- Some members of the Executive council at the time- Judicial Assessor, Collector of Customs( to
be replaced in 1853 by the colonial Secretary) as well as the Governor.
- The governor had the power to disregard the advice of the Executive Council.
- The Government was empowered to grant Crown land for public purposes, to appoint judges,
remit punishment and grant pardon.

The Sagrenti war opened more territories for the expansion of the British + the drawing up of the treaty
of Fomena in 1874

The SCO 1876 became the basic framework for the development of a legal system in the GC
The weakening of the Asante territory opened more ways for the British to acquire more territories in
the GC.

Poll tax ordinance (1852)

-yield from tax would be minimal unless corporation from chiefs is gained.

Chiefs and headmen summoned by Commander Hill- meeting called Legislative Assembly –it’s almost as
though they were just giving them the post to butter them up… I mean they already had law-making
power.

 The Supreme Court was established by the ordinance of 1853 that allowed the
protected territories to take up their case with the British in all civil and
criminal matters without the co- operation of any chief or local gov’t …
 It was to be presided over by a CJ.
 The first attempt at municipal government was by Sir Benjamin Pine- 10th May 1858
 The Executive Council was to consist of the Judicial Assessor and the Collector of Customs who
was later replaced in 1853 by the Colonial Secretary
 In both the Leg and Exec councils no matter could be discussed unless it had received approval
from the Governor although the other members could require the points they wished to make
to be added to the minutes of the meeting

The Constitution of 1866-GC, Sierra Leone, Lagos, Gambia, united under the
government of our West African settlement
SC was abolished in 1866 replaced by Court of civil and criminal Justice-presided over by a chief
magistrate

The Dutch were causing difficulty- they were not obeying the laws…so the British trigged a deal with
them transferring their territories to the east of Cape Coast to the Dutch and on the west of Cape Coast
the Dutch to the British- the transfers took place but led to much unrest- the Fantes drew up some
ambitious scheme that the British quashed because they did not like.

Treaty of Fomena – defeat by the Ashantis, Asantehene-renounced his claim to Elmina- and coastal
territories... July 24, 1874-signed Royal Charter that had the effect of separation the Gold Coast and
Lagos from Sierra Leone. The Gold Coast and Lagos together constituted a separate colony under the
title of the Gold Coast Colony.

The British began to assume territories

Constitution of 1874
Royal instructions to Governor could in no way fetter his power to assent to litigation

The Supreme Court was re-established by the SCO of 1876

Ordinance- district commissioners- were ex officio commissioners of the SC- CJ and not more than four
puisne-judges

SC was to promote reconciliation of differences among persons over whom it had jurisdiction-
Ordinance also abolished post of judicial assessor- and the transferred his powers to the SC.

 The chiefs were also given the power to settle civil and criminal cases in
which debt damage did not exceed seven ounces of gold or 25 pounds
sterling.

 They were also given power to make bye laws.

 They were also given certain ministerial powers as conservators of the

peace.

 The Governor could dismisses or suspend any chief who had abused his
power or was otherwise unfit for office.

 Governor began to issue certificate to chiefs when satisfied that they had
been properly enstooled-. Though a mere proof of installation it gave the
government a powerful instrument of control over the chiefs and in time it
came to be used as such.

A civil police force- established by Police Ordinance 1894- erstwhile police duties carried out by military
detachments

Town Council Ordinance- Another attempt was made to establish local government in
the townships
Duty of the council consisted regulation of activities as such acts as may be necessary for the
conservancy of town and the preservation of public health there in.

Concessions Ordinance- to check the indiscriminate- granting of land to expatriates-

enacted in 1894- vested all waste lands in the Crown.

The first African member of the Legislative Council was Sarbah who was appointed
in 1888

The defeat of the Asantes in 1874 led to a breakdown of the Asante confederacy.
The British were sort of pressured into seeking the rapid extension of the colony-especially where the
Asantes were concerned because the French were rapidly expanding their territories. The British offered
to sign a treaty with the Asantes which they refused.-1890

In retaliation for their refusal (I guess) the British seized their Asantehene, Prempeh I, and some
important princes of the Golden Stool and took him to Seychelles in 1896.

In 1900, Sir F. Hodgson demanded the golden stool. He had declared war without knowing it. Yaa
Asantewaa instigated the men in the Asante Kingdom to fight. The effect of the Ashanti Order in council
was to make the Ashanti a British Crown Colony.

In order to speed up the colonization process they started with order in councils. So to take control over
the Ashanti, there was the Ashanti Order in Council. There was also the Northern territories Order in
Council which was made under the Foreign Jurisdiction Act and converted that area into a protectorate.

Constitution of 1901

The Gold Coast Order in Council, 1901, which was made under the royal prerogative, for the first time
laid down the geographical boundaries of the Colony and declared annexed such of the territories
included in the new boundaries as did not already form part of His Majesty's dominions.

Sir Hugh Clifford was appointed governor of the colony in 1912

The Colonial Government of 1914-1945- why didn’t it end at 1957 and start at 1844?

The 1916 Clifford constitution

Sir Hugh Clifford was appointed governor of the Gold coast in 1918- wanting to familiarize himself with
the locals he was to discover that there was hope for the country in the cocoa industry. His most
significant contribution as yet in the way of constitutional law was to enlarge the legislative council.

The Clifford constitution of 1916 established a legislative council that was dominated by official
members, all of whom were Europeans. So was the executive council, which was headed by the
governorship. The legislative council comprised five official and four unofficial members. The unofficial
members comprised 2 Europeans and 2 Africans. The governor had two important powers: veto power
and the power to reserve legislations. The governor had the power to veto legislations. Secondly, if the
governor thought it inappropriate to veto, he would reserve it for the colonial government to veto so
Secretary of State for Colonies would veto so that the governor would not be linked with the matter.

In his address to the legislative council of 1916, Governor Clifford indicated that the constitution he
envisaged for the colony was that which will be paternal rather that democratic in character.

This constitution proved dissatisfactory to the people. This then generated negative reactions towards
the constitution. Two significant factors or reasons influenced this state of affairs. These are:
 1. Demands for more representation. This was aptly captured in the maxim-taxation must go with
effective representation.

2. Demands for responsible government in the sense of being answerable to the people.

These dissatisfactions compelled governor Guggisberg to initiate fresh attempt at constitutional

advancement in 1925.

Under his reign the membership of the GC was increased from 9 to 22

The constitution for the 1st time added three paramount chiefs to represent for the first time the major
ethnic groupings in the country as far as possible.

He was succeeded by Sir Gordon Guggisberg who ruled the Gold Coast from 1919-
1927.
The Guggisberg constitution of 1925 was written in reaction to increasing dissatisfaction with the Clifford
constitution of 1916. This constitution represents an early attempt to curve out a system of government
that is representative of the people of the Gold Coast. This will seem to coincide with the determination
of governor Guggisberg to facilitate economic developments in the Gold Coast. It was contained in
three (3) separate documents.

a. Royal patents establishing the offices of the Governor General and the commander in chief.

b. Royal instructions.

c. Gold Coast colony (legislative council) Order in Council of April, 1925.

This constitution contained nothing on the judiciary because the passage in 1876 of the Supreme Court
Ordinance created a kind of court system as well as the applicable laws therein.

Under this constitution, the membership of the legislative council was increased to 30 comprising the
governor, 15 official and 14 unofficial members. The official members were further divided into ex
officio members of whom there were 13, and one nominated official member. Significantly, the official
membership of the council was expanded. Under this constitution, municipal councils were created for
the municipalities of Accra, Cape coast and Sekondi-Takoradi with representations on the legislative
council. Since the African membership of the legislative council was by election, it is noteworthy that
the constitution introduced the elective principle for the first time in the constitutional history of the
Gold Coast. The Governor however retained his veto power to block legislations as well as his reserved
powers. The reserved powers of the Governor were a power reserved to the governor to pass
legislations, which have otherwise been rejected by the legislative council.

Under section 15 of the Order in council, persons who were recognized by the Governor as head chiefs
of the three provinces of Accra, Cape coast and Sekondi-Takoradi mainly dominated the provincial
councils. The introduction of the elective principle was treated with such importance that section 37 of
the order-in-Council dealt with such matters as cheating, inducement etc during elections. It is
important to mention that Ashanti was not covered by this new legal dispensation but continued to be
administered as a separate entity from the colony.

Also, the order in council, contained issues relating to qualification and disqualification: the
disqualifications include electoral malpractices, offences such as impersonation, treating, bribery, undue
influence- R V KOJO THOMPSON. Qualifications were introduced for those people who were elected and
two of those to be qualified to be elected to must:

-be certified by the governor to be competent in the English language

-own property on a certain farm or who pay taxes: thus because if you had nothing, you don’t care
whether the state survived or not, as those who had will also lose if the state does not survive.

Weaknesses

1. The domination of the chiefs in the provincial councils was heavily criticized by the educated
elites of the cities. Among others, it was argued that, that flouted traditional protocol, which
forbids a chief from openly speaking in public without the aid of a linguist.

2. Another notable flaw in the constitution was the maintenance of official majority. In the
estimation of the indigenous Africans, this contradicted their desire for self-government.

3. Further to this is the fact that it is only the Governor who could effectually promulgate laws.
This was ensured through the medium of the veto wielded by the Governor. This invariably
frustrated the efforts of the Africans who felt they could never influence legislative policy as
long as there exists the Governor’s veto power.

4. Again under this constitution it was only the governor who could initiate financial legislation.
(Compare this to the financial provisions in the constitution, articles 174 et seq). Perhaps, it was
feared that the Legislative Council would be imprudent in fiscal matters. Under today’s
government only government can initiate policies that have financial implications. Only the
government can introduce bills to Parliament.

5. Finally, the policy of indirect rule that was vigorously pursued by the Guggisberg constitution led
to the creation of chieftaincy positions and titles where there was hitherto none. This was
particularly true of the acephalous non-centralized states of the north. The gross effects of
these weaknesses were to generate disenchantment with this piece of constitutional advance
thereby leading to calls for improvements especially in the representations of African interest in
the colonial administration.
The 1925 Guggisberg constitution was significant in the annals of the history of the Gold Coast
particularly because, it introduced the elective principle leading to a partly elective, partly nominated
legislative council as well as the introduction of the provincial councils.

He contributed to the introduction of Provincial councils.

It was during his reign that the British and the French made an agreement to share Togoland-

He caused the enactment of the Natives Administration Ordinance so that he can further indirect rule.
The Native Administration Ordinance made relevant contributions to the institution of chieftaincy

a) It provided detailed instructions on the election and the destoolment of chiefs.-as if there were
no detailed instructions before.
b) It protected the office of a chief making it an offence to undermine or try to usurp the
jurisdiction of a chief.
c) Restore the state council and gave the SC the power to determine chieftaincy issues.
d) The law removed the Governor’s power to depose a chief for misconduct
e) The provisions for recognition of installation and destoolment were modified.

The West African Court of Appeal was an improved judicial facility established in 1838 to support the
sick and the needy. This means that appellate jurisdiction by leave of the SC does not go to the Privy
Council but now to the WACA.

The law on sedition (a rebellious act against a public officer)…

The restoration of the Asante and Northern Territories

The result of all of this is that these major constitutional changes consolidated the government
arrangement by the Executive. The 1925 Constitution lasted for a reasonably long time till the beginning
of 1940’s when far from litigation going down; it resulted in intensification for reform largely because
the twin questions of responsibility and accountability had not been addressed. We did not have yet had
what will be called a representative government. The 1925, Constitution was the longest lasting
Constitution as it lasted for 21 years. The changes put the Gold Coast Colony far ahead. The questions of
representativeness and accountability were still not addressed. The leaders thought the chief were
profiting from where they were not supposed to.

Sir Alan Burns succeeded him in 1941…

Increased political agitations from bodies such as the National Congress of British West African (NCBWA)
led to pressure on the British government to augment the constitutional development of the Gold Coast.
On 29th March, 1946, the Burns constitution came into effect. Inception of this constitution marked a
significant watershed in the constitutional development of the Gold Coast. Notable, Ashanti was
included in this constitutional arrangement. There was radical restructuring of the composition of the
legislative council. The elected members were increased from eleven to eighteen, whiles the ex officio
members were reduced from thirteen to six and the nominated members were increased from two to
six. The elected members therefore had a majority of six over the official and nominated members.
Section 14 and 15 of the Order in Council introduced some qualifications: one which qualified every
person who owed allegiance to a foreign power will not be a member of the legislative council

This development though significant prima facie, it was largely impotent in influencing legislative policy.
This was because the Governor still had his reserved powers by which he could pass into law any bill or
motion, which failed to pass the legislative council where he deems same to be expedient in the interest
of public order, public faith or good governance.

Ashanti was given its own representatives in the legislative council for the first time. To be a
representative of Ashanti, you must be a person who owed allegiance to the golden stool. The
significant point is that the main leaders of the constitutional reform were from the south and
prominent were the Fanti professionals

The large proportion of the legislative council had their election based on the Electoral College. The
elected members comprised nine (9) provincial members elected from the Eastern and Western
provinces, and four members from Ashanti, elected by the Ashanti confederacy council. There were five
municipal council members of whom 2 were elected from Accra, and one each from Cape Coast,
Sekondi-Takoradi and Kumasi. The ex officio members were the; Colonial Secretary, Chief
Commissioners of the colony, Ashanti and the northern territories, Attorney General and Financial
Secretary. Of the six nominated members, 3 were Africans totalling 21 African members out of 30. The
term of office of the elected members was four years. The Order in council prohibited the consideration
of any matter, which would dispose of public funds without the sanction of the Governor.

On the other hand, the Executive council for the first time had African representation on it. Three
members were appointed onto it. The Executive Council was responsible to the Governor and not to the
Legislative Council.

It is curious to learn that the years following this major constitutional step were marked by violence and
instability. In 1948, the Gold Coast was rocked by riots-an occurrence, which was to awaken the colonial
powers from the constitutional slumber in which they seemed to have fallen. The riots left 29 dead and
237 injured. A Commission of Inquiry under the chairmanship of Aiken Watson K. C. found a number of
social, political and economic causes for the disturbances. The Aiken Commission found that the Burns
constitution though well-intentioned was conceived in the light of pre-war conditions and was out of
date before it was promulgated –“outmoded at birth”

The Watson commission made the following recommendations:

1. An expansion of the African presence in the legislative council

2. That the executive should be made accountable to the majority in the legislative rather that the
Governor.

3. A strengthening of the local government system.

The British government accepted these recommendations and consequently put in place an all-African
constitutional committee under the chairmanship of Sir Henley Coussey to draft a new constitution. This
resulted in the enactment of the 1951 constitution.

Basically, Coussey reported or recommended that the legislative council should be enlarged further

Second that the executive committee should also have an African executive here is what the African
mean ministerial appointment in that the most should be Africans

Thirdly, Local government should be modernized

Fourthly, the legislature should be bi – cameral.

Agreement for administration of British Togo as trust territory- as approved by the UK General Assembly

In 1943 incom et ax was introduced to the GC for the first time. The indigenes objected this claiming that
there should be no taxation without full electoral representation. Nonetheless the Income tax Ordinance
of 1943 has been re-enacted.

The UGCC was formed in 1947 to fight colonialism.

Kwame Nkrumah arrived and the momentum he generated seemed unstoppable. There were 2
slogans-“Self-government in shortest possible time,” and “Self-government now.” It remains a problem
today the use of catchy language to procure votes. Rawlings is good at this.

The Constitution of 1951

- Formed based on the proposals of the Coussey committee( though significantly criticized)
- The main instrument was the GC OIC,1950- which for the first time applied uniform
constitutional provisions to all territories
- The Legislative Council made way for a Legislative Assembly, almost entirely consisting of
elected Africans; the four territories- the Asante Colony, The Northern Protectorates, The
Southern States, British Togoland-chk
- The Executive council was accordingly designated as the principal instrument of policy.
- The Governor was to act in accordance with the executive council-except where expressly
empowered to act in its own discretion.
- But council was still answerable to him. The British government justified this position on the
ground that the ultimate responsibility of the administration rested with Governor. The
executive council consisted of the Governor, as president and a number of ministers. There
were three ex officio Ministers, namely the Chief Secretary, Attorney-General, and Financial
Secretary and not less than 8 representative Ministers appointed by the governor from among
the members of the Legislative Assembly. The Executive council was required to elect one of
their numbers to be leader of Government Business in the Legislative Assembly.
- The executive council consisted of the governor as President and the ministers- the first time
this term had been used in Ghana.
- Each ministry had an official head called the Permanent Secretary
 - The Legislative Assembly consisted of the Speaker and three ex-officio ministers-three
representatives of chambers of commerce, three reps of chamber and mines and seventy five
elected members
- The Governor with the advice and consent of the legislative council was given the power to
make laws for the peace order and good governance of the Gold Coast-but the power was
limited.
- Committee set up to advise the governor on appointments, promotion, discipline and other
matters.
- The Legislative Council had 75 members.
- Dr. Kwame Nkrumah, who became the leader of government business and later Prime Minister
kicked against this constitution describing it as bogus and fraudulent. Following the visit of the
secretary of state for the colonies in 1952, Dr. Nkrumah stated in the legislative council that, if
the Gold Coast were to attain full self-government, the Gold Coast government must take the
initiative and lay before the British government proposals worked after consultations with the
chiefs and people. This led to the adoption of the 1954 constitution.

The United Gold Coast convention was founded in 1947

Local Government
The recommendations of the Coussey Committee were implemented by the Local Government
Ordinance i.e. those that concerned local government.

The power to levy rates was given without financial limit.

The Minister of the Local Government was appointed to supervise the ordinance

The Local government finally began to reach the point of stabilization in the Gold Coast.

The ordinance also created the trans- Volta Togoland region

Creation of the office of Prime Minister-1952

-the office of the Prime Minister was created as substitution for the Leader of the Government business

- He was proposed by the governor and approved by the Assembly

-He was member of the Executive Council (Cabinet)

Discussions on the Constitutional Reform

- In 1952, the then PM said that if the GC wanted to obtain full self-government then they must
take the initiative and lay out proposals after consultations with the chiefs and the people.
- To this effect, he invited people to submit their views.
- The results of the invitation were used as a basis for framing government proposals in the
reform of the constitution- they did not however adopt the majority opinion in favor of creating
a second chamber for legislation.
 - Kwame Nkrumah – 1st PM proposed that we prefer self-government with danger to servitude in
tranquility

The Constitution of 1954

The principal changes to the 1951 constitution are as follows;

- The governor ceased to be a member of the executive (Cabinet) and was made responsible to
the Assembly which consisted of not less than 8 members appointed on the advice of the Prime
Minister.
- Cabinet could not exercise functions in relation to defence + internal security-those powers
were reserved to the governor
- Though the governor was not part of cabinet he could at his discretion call a special cabinet
meeting.
- The Governor had power to insist on the introduction of any Bill, and retained his reserved
powers in cases where a Bill was not passed
- The AG ceased to be a minister- his responsibilities were laid down by the constitution
- The restriction on the introduction of Bills affecting chieftaincy was removed.
- BUT a similar restriction was placed Bills concerning external affairs.
- The judicial service commission was set up consisting of the chief Justice and two other judges,
the AG and the Chairman of the Public Service Commission.
- A judge of the Supreme Court was not removable except on an address of the Assembly, carried
by not less than two-thirds of the members, praying for his removal on the ground of
misbehaviour or infirmity of body or mind
- For the first time issues concerning the judiciary and public finance were inserted into the
constitution
- The legislative Assembly consisted of 104 members

Questions on federacy and legislation…

- Whether the independence constitution was to be federal or unitary- the Asante wanted a
federal constitution because they wanted some measure of autonomy especially with regards to
their resources; cocoa-gold…- They claimed that there was not enough consciousness of
national identity to establish an efficient unitary government, so we were not to concentrate
power but to retain a substantial part of them in component territories.
- In September 1954, the NLM was launched in support of the Asanteman Council and nearly all
the opposition parties.
- The reasons the committee selected by the government to investigate the issue of federacy gave
for rejecting federacy in favour of unitary government
- Again the upper chamber idea was rejected
The invitation of constitutional expert- Sir Frederick Bourne

The Bourne Proposals-failed in the most important aspect of his mission i.e to
reconcile the opposing views of government and the opposition.
Bourne did not receive co-operation from the NLM to do his work so a substantive part of it was not
effected. But he still made some relevant contributions;

1. The boundaries of the regions should be clearly marked out and must not be changed if the
locals there do not agree.
2. The establishment of a Regional Assembly.
3. Set out objectives for the Regional Assembly
4. No bill affecting the traditional functions of chiefs should be passed without their consent.
5. The Regional Assemblies were to receive advice from chiefs in the region.

The Achimota Conference-conference to consider the Bourne proposals-

Recommendations;

1. That there be a regional house of chiefs in each region

The Togoland plebiscite- 9th May, 1956

Gold Coast general election- July, 1956.-resulted in a decisive victory for the CPP.

The Ghana Independence Act, 1957, received Royal assent on 7 th February, 1957.

The Constitution of 1957(Independence constitution) - 7 th February 1957 the Ghana

Independence Act received Royal Assent.
The independence constitution was contained in 4 instruments;

 order in council
 Ghana Independence Act,1957
 (Ghana) Office of Governor General Letters Patent
 Royal instructions (Ghana), all these were dated on the 6 th March 1957.

Certain general observations can be made

Constitutional arrangements at independence are influenced by political developments in the Gold

Coast between 1954 and 1957. By independence, our constitution had reached a stage where major
institutions of government had matured

The pre-eminent position of the Executive is one of the observations you can make and the
independence constitution is the closest we have come to a Westminster type of constitution. It was a
monarchical kind of constitution so that our head of state was a monarch and was represented in Ghana
by a Governor – General. The governor general was the head of state (strictly this was the queen). The
day to day government was administered by the prime minister. The governor general could exercise
powers only on the advice of the cabinet.

The independence constitution introduced cabinet government and this has been maintained ever
since. This was imported into the constitution together with the principle of collectivity. The day to day
administration under the independence constitution was carried out by the Prime Minister and the
cabinet as compared to the 1992 Constitution where the day to day is in the hands of the president.

With the legislature, the independence constitution was the first to introduce the word “Parliament”
which was in 1951 Legislative Assembly. The parliament had two parts; the queen and the national
assembly. The National Assembly passes the bills and the Queen promulgates it into laws. These parts
were retained till the 1992 Constitution where the President is no more part of the parliament although
he contributes to law making. After independence however, the queen was part of the parliament.

The independence Constitution put certain restrictions on the legislature, this was to prevent the fears
for federalist or bicameral constitution.

There were three kinds of limitations

Institutional limitations- These established two institution, Regional Assemblies and Regional House
of Chief, these were contained in the proposals of Sir Frederick Bourne, which was part of his
recommendations , for devolution of authority to regions. These institutions were evolved mainly to
the amendments to the constitution.

Procedural limitations- for any amendment of the constitution to be valid had to be supported by two
thirds majority by the national assembly and a simple majority by the regional Assemblies , where the
government makes any legislation affecting chieftaincy in a particular region the bill has to be referred
to the regional house of chief of the region it is located after it has been introduced into the national
assembly and then published in the gazette for three months before the second reading.

WARI V. OFORI ATTA

Substantive limitations- The constitution prohibited racial discrimination law. Roughly by 1920’s there
was some indication that race would become a critical factor in our politics. Legislation which affects
freedom of conscience and other human rights issues, it also protected rights to property. The state
could acquire property compulsorily if only it provided for compensation to be paid promptly and
adequately.

LARDAN I, LARDAN II.

Larden was believed to be from the Danquah-Busia tradition. He (appellant) was the subject of a
deportation order made on 30th July, 1957, under the provisions of the Deportation Act, 1957. On 31st
July, he filed a writ seeking a declaratory order to the effect that he was a citizen and was not within the
ambit of the Act. He also moved ex parte for an interim injunction and supported this with an affidavit
that he was born in Kumasi and his mother (unnamed) in Krachi. Judge could not write the declaration
he was asking for because facts that he based on that he was a Ghanaian, was only contained in a bare
affidavit and Court thought should be more substantive. He could not be granted injunction against
deportation order. The case was adjourned and while still pending, Parliament quickly passed another
piece of legislation. Objective was clearly titled – “Deportation of Lardan v. Ahmadu Baba”. It stated that
all actions pending to grant injunction had been terminated. Lardan went back to Court. Lardan said he
was not challenging deportation but was establishing his nationality and secondly, basing his case on
race discrimination. Court said there was nothing to show that he was being deported because of race.
There is a distinction between challenging your deportation and establishing your nationality. Judge said
if this new legislature, used power it had to interfere with judicial proceedings, the future of the country
was bleak. This judge qualified to be a prophet.

BOLOGUN V. EDUSEI

Abdul Wahabi Balogun and three others were on 17th October, 1958 served with deportation orders
issued by the Minister of Interior (Mr. Krobo Edusei). At the time of issuing the orders, the Minister
simultaneously authorized the Acting Commissioner of Police, Mr. Madjitey, to arrest the four without
warrant and fly them to Nigeria (1958). The four men were arrested accordingly on Saturday October
18th, 1958. Writs of habeas corpus were filed that they were citizens and not subject to deportation.
Notice of the motion was ordered to be given to respondents and the four men were however flown
later. It wasn’t until the next day notice ordered by Court was served upon respondents. Appellants later
filed notice that respondent be committed for contempt of court.

Issues

i.) Whether notwithstanding the non-service in habeas corpus proceedings, despite the Contemnor’s
knowledge of the order, he was still liable.

ii.) Whether the action of the Minister, the Commissioner of police and Director of Prisons, did
constitute contempt of court.

Held-

i.) The fact that the court has made an order for service on the respondent known to them, actual
service of the order isn’t necessary.

ii.) Deportation amounted to contempt because they interfered with the litigant and put an end to court
proceedings and brought the administration of the court into disregard.

Judiciary

Before independence under the Supreme Court Ordinance of 1876, we had the High court and appeals
from there lied to the West African Court of Appeal, then to the Judicial Committee of the Privy council
(the main job was to advice the queen as queen over the British empire (the council had a judicial
committee which acted as a court of last resort for all the colonies. After independence, it was seen that
it was no longer appropriate for appeal to the West African court so this led to the creation of the Court
of Appeal. Still the Privy Council remained court of last resort since the queen was still the head of State.

The constitution at the beginning of its rise tried to provide the judges independence. This was done in
two ways: Independence from the executive and the legislature and that was achieved by providing the
judges with security of tenure, thus the judges could not be removed anyhow. Impartiality. That is an
internal character. These two things are supposed to enable the judges to perform their works. This
security was secured by a formula introduced in 1688 in England in the Bill of Rights which was an
instrument which established the respective between the monarchy, commoners and the aristocrats. A
judge was removed only by legislation passed by the legislature based on infirmity of body and mind
(both physical and mental), stated misbehavior

The Judicial Service Commission was also established- this is the body responsible for protecting the
independence of the judges. In 1959 however, this commission was abolished and all appointments at
the senior level were to be made by the Prime Minister. The Chief Justice was the administrative head.
In exercise of this, he had to consult with the judicial council and with the approval of the president.
When the chief justice was made administration head, and to run the judicial service with the head of
government, there were problems.

STATE V. OTCHERE

Upon the coming into effect of the 1957 constitution, the Colonial Laws Validity Act (1865) ceased to
apply to any law passed after the appointed day…- the effect of this was to establish that no law made in
Ghana after the appointed day was to be rendered inoperative if it is found to be repugnant with the
law of England and Ghana had the power to repeal or amend any other pre-existing law of the nature.

In many ways it repeated the provisions of the former constitution but very important new features
were added;

1. The Governor was replaced by a Governor- General

2. The executive power of Ghana was vested in the Queen or by the Governor- General as her
representative
3. Cabinet was charged with the general administration of Ghana and responsible to Parliament.
4. If the Assembly passed a motion of no confidence the Governor- General was required to
dismiss the Prime Minister.
5. The term Parliament until then has not been used in relation to Ghana
6. No Bill for the amendment of the constitution was to become law unless supported by two-
thirds of the majority in Parliament.

Independence Act provided that;

 No Act of the UK passed after independence will apply in Ghana unless we said so
 The Crown was to have no responsibility for the government of Ghana
  As from the appointed day, 6 th March the provisions of the First Schedule of this Act shall
have effect with respect to the legislative powers of Ghana.
 The Regional Assemblies;- Ghana was divided into five regions- British Togoland, Trans/
Volta, Northern , Eastern, Ashanti

The only effective act achieved by the Regional Assemblies was the giving of approval to a bill and
abolishing restrictions on the amendment of the constitution.

The AG be considered as a non-political figure…he was in effect to be regarded as a public officer

vested with the responsibility of initiation, conduct and discontinuance of prosecutions for criminal
offences… His office was also to be made independent such that the relationship between a minister
assigned to them was to be one restricted to governmental supervision and not professional
interference.

The Governor’s reserved powers were removed and the legislative Assembly was enlarged- 104.

Constitutionalism began to creep in when the legislative was given restrictive limits to the effect that
no bill could become law unless two- thirds thought so.

In 1958 the legislature passed and the cases show that the purpose of the legislation was never left
in doubt. The national assembly passed the repeal legislation, 1958. They were intended to satisfy
those who were afraid of having no voice if the constitution was unitary.

Then there was some dissatisfaction with the fact that we had a monarchical constitution. Our
independence was considered incomplete if the queen or British monarchy was still the head of
state. While the governor was away, the national assembly passed the Constituent assembly and the
plebiscite Act. This piece allowed the national assembly to convert itself from time to time into a
constituent assembly with full powers to draft the new constitution. This legislation also did away
with the requirement of the assent of the queen of the bills passed by the national assembly to
become law. The national assembly passed various chapters to become the 1960 constitution
without necessary assent of the queen.

The chieftaincy institution was guaranteed+ introduction of Regional House of Chiefs. The regional
house of chiefs was to consider any matter usually one concerning customary law referred to it. The
provision that a bill concerning chiefs should be referred to them first was continued in effect.

The arrival of independence made necessary the new concept of Ghana citizenship- Although
persons born in the colony were normally citizens it ceased to be so. The Ghana Nationality and
Citizenship Act provided for citizenship by birth, descent, registration and naturalization and
contained transitional provisions spelling out how persons born in Ghana before citizenship were to
acquire citizenship.

The introduction of the Regional Assemblies was one of the major attempts to satisfy the
Federalists.
 Concerning the common wealth-On the attainment of independence Ghana gained full membership
and in their constitutional proposals government had indicated that this would be sought.

Amendments to the 1957 constitution

The abolition of the Regional Assemblies;

The law requiring that notice be given to chiefs before a bill concerning chieftaincy is made law was
repealed. Nkrumah said it was unnecessary

Rules concerning the disqualification for the membership of the National Assembly were amended such
that one would be disqualified if subjected to preventive detention.

Rules concerning the dismissal of a minister were such that a resignation will not be effective unless
accepted by the Prime Minister.

The creation of the republic

 Ghana was the first member of the Commonwealth to provide herself with a republican
constitution.
 Burma became a republic overnight through a treaty signed with the British government
 It is important that the constitution be included in the schedule to the Act that brings it into
force.

Per the republican constitution the Colonial Laws Validity Act could not apply to laws made by the
parliament of Ghana

The validity of the constitution was determined in a referendum. Which was coupled with the
contesting of the presidency, between Kwame Nkrumah and J.B Danquah in which Nkrumah won
overwhelmingly and became first president under that constitution.

The new constitution was moving us away from the monarchical constitutional hierarchy to the
republican constitution hierarchy. In 1960 vast majority of people voted for the new constitution to
become the first republican constitution of Ghana. The governor general left and Nkrumah as first
president assumed full control of the administration.

Constitution of 1960-the republican constitution

It was not just meant for the people of Ghana but as a symbol of African Unity and Liberation as can be
seen from the preamble.

It introduced the concept of people’s power. It established that sovereignty rested neither in Parliament
nor in the people. Sovereignty rested in the people.

It eliminated the monarchical element of the 1957 head of state and removed the Queen from that
position. By that constitution Ghana became a republic.
The office of the President was established and he was considered as the fount of honour and the
commander in chief.

The President was to act in his own discretion and shall not be obliged to follow advice tendered by any
person-article 8(4). This implies the president was not bound by the advice. The choice of an executive
president in 1960 was notably debated.

Some felt the President was going to have too much power and would be tyrant. Others thought we
needed a strong clear-headed leader who would drive us. We needed a leader that was clear-cut, a
strong willed person having fingers on totality of powers. After the overthrow of Nkrumah, those who
said too much power would result in a tyrant claimed victory and would result in 1969, the splitting of
powers between a ceremonial head of state and a Prime Minister.

The first president was also given power in article 55, where he was given an independent legislative
authority to make law. This power is spent at the end of the tenure of the first president. This was due
to the fear that the president might be denied the legislation that he needs to carry out his task by a
hostile legislature which will fail or deny him. In that case this power was given him to pass the
necessary laws. This power however was never used by President Nkrumah. RE AKOTO represents
biggest landmark of Rule of Law in this country. It was about scope and extent of legislative authority.

The constitution also provided two types of presidential commission. The first one was to be appointed
by the president when he is travelling abroad, to discharge functions of the president, those functions
he could not discharge when out of the country; and the presidential commission appointed by the
cabinet when a president resign from office or dies until new president is sworn in.

The 1960 constitution continued with the composition in independence. The parliament was made up of
the national assembly and the president. The President’s role was to implement what the national
assembly passed. The national assembly was elected by universal suffrage. The National assembly was
made up of 104 persons who were elected for the republican constitution. Their mandate was
continued from the independence Constitution. That is the body which converted itself from time to
time into the constituent assembly provided by law to elect 10 women members. In the end the
parliament was made up of the president, speaker, 104 members continued from the national assembly
and 10 women members.

The margin of article 20 deals with the legislature which describes the legislature as sovereign. A
sovereign parliament is one which is unlimited in its powers. If the legislature has monopoly over
government then it is legislatively sovereign, when it does not only have monopoly over government but
has unlimited powers then we say that legislature is sovereign.

Judiciary

The constitution ensured security of tenure, power of judicial review, but the president had been given
power to appoint and dismiss judges. The fortunes of the Chief Justice were tied to the fortunes of the
executive. There was a Supreme Court as well as a High Court and the appellate jurisdiction that was
previously exercised by the judicial committee of the Privy Council after the West African Court of
Appeal had been abolished. Article 42(2) gave the Supreme Court the power of judicial review. It is
interesting to note the decision of the Supreme Court in RE AKOTO concerning the power of judicial
review.

In 1964, there was a one party state. The ideology of the CPP was spread brutally through the use of
the PDA in 1958. Fortunately the one party state did not last for long. For the first time the military as
an institution intervened in the administration of our country in 1966.

The second Republican Constitution-1969

On 22nd august in 1969 the second republican constitution was promulgated. This continued the
structure of the country as a republic and established and vested the executive authority of the state in
the president –article-37- the president was not an executive president. The 1969 constitution was
supposed to be a reaction to the 1960 constitution.

If u read the Akuffo Addo proposal, it will tell you that the one summit which seem to have impressed
many Ghanaians was the structure of the executive in the new constitution. Thus the position of the
head of state and the head of government was combined. In the 1969 constitution, there was a split
executive. The executive was vested in the president but the executive power was exercised effectively
by the Prime Minister. The President was the head of state, but the effective executive power was in the
Prime Minister. It does not mean that the president was a ceremonial president in the second
republican constitution. The people did not want a ceremonial head of state.

The president was given some direct executive power such as the power to appoint people in the public
service although the power was exercised effectively by the prime minister. A number of what became
known as buffer institutions were established. Among them are the council of state, national Security
Council and, the armed forces council, the public services commission, the police council, the prisons
service board, the judicial council and the Ombudsman (this is the Scandinavian invention of the public
and complaint mechanism which the citizens can turn when they are victims of maladministration in the
public service). This is continued as can be seen in the CHRAJ. The reason why they are called buffers
was to make these institutions have smooth relationship with the executive.

Legislature

The second republican constitution continued the formula in the first republican constitution: they had a
parliament made up of the president and the national assembly (minimum of 140 MPs and maximum of
150 MPs). Since about 1916, the numbers have been increasing in the composition of the legislative
branch of government apparently because in terms of our constitutional expectations, we have been
using it for the government to be representative. There were provisions for disqualifications in article
71. One of such including disqualifying anyone whom adverse findings have been made by a commission
of enquiry as could be seen in Gbedemah’s issue. Also in article 82, if you have an interest in
government contract and you are a member of parliament, you need to disclose that interest and you
cannot take part in discussions relating to such interest.
The 1969 constitutions also contained a number of limitations. Perhaps the most interesting one was
the provision which disabled parliament from amending some parts of the constitution. This is in article
169(3). Articles 127,149,153 could never be amended by parliament. Presumably the people could have
the power. And also those in chieftaincy matters such that issues relating to them should be sent to the
appropriate regional house of chiefs. The president had the power to delay the legislation.

Some privileges were provided for the members of parliament to make it possible to carry out their
functions freely, articles 91, 97- provisions which assured them of complete freedom of speech.

The constitution also changed the relationship between the executive, the legislature and the judiciary
as seen in articles 2 and 106. Article 2 provided a general power of review given to the Supreme Court
for the first time. To some extent this review power meant that the legislature did not have the final say
on the constitutionality of its actions. Members of Parliament were also required to declare their assets.
This was to ensure some degree of integrity in the public administration.

Judiciary

In the first republican, there were two superior courts- the Supreme Court and the High Court. And in
the 1969 constitution they were 3- High Court, Appeal court and the Supreme Court.

The security of tenure of judges of their tenure were secured in articles 115 to 117. The judicial council
was to assist the chief justice in the administration of the judiciary. In the independence constitution,
the judge could only be removed on the two thirds majority. This provision was repeated in the 1969
constitution- stated misbehavior, infirmity of body and mind…however, the constitution established a
system of two tribunals: A five-member tribunal for the removal of the chief justice and a three person
tribunal for the removal of the judge.

REPUBLIC V. MAIKANKAN

Ten persons were committed to the High Court for trial on charges, none of which carried the death
penalty. At the trial, counsel for the Republic applied that owing to the complicated nature of the case,
the trial judge should try the case without a jury. One of the defense counsels objected to the
application on grounds that the interpretation being placed on Article 20(2) of the 1969 Constitution
was wrong and that by virtue of Section 204 of the Criminal Procedure Code 1960 (Act 30), the trial
couldn’t be conducted without a jury.

Held- article 20 (2) (a) of the Constitution, 1969, does not provide that a trial by a judge with a jury is
compulsory for all offences other than treason, but rather makes it mandatory in trials of persons
charged with offences punishable with death or imprisonment for life, other than those persons charged
with treason, which is also punishable with death, but for which special provision is made in article 20
(2) (h) of the Constitution for trial by the "High Court duly constituted by three Justices thereof." There
was no support for the argument that offences the accused persons were charged with must be tried by
judge and jury.
The 1979 constitution

The constitution came into force in 14 September, 1979. The 1979 constitution is founded on the 1969
constitution. In paragraph 26 of the Mensah constitutional proposals, they made a point not to bring a
fresh constitution but to build on the strength of the 1969 constitution. They admitted that the 1979
constitution is essentially the 1969 constitution with some changes. It had 217 articles.

Article 1

Introduced the idea of protecting the constitutional order – even with our own lives.

There was also the requirement that certain office holders be appointed within a certain period. In 1979,
those appointees had to be in place within 6 months.

Clause 3 of article 1, prevented military interventions.

The constitution came into force in 14 September 1979

It also contained some interesting things, the position of the head of state and the head of government
was combined. Thus the executive was returned. There were pure separation of powers. Part of the
integration took different terms for the executive and the legislature. The president had a four year term
and the legislature had a five year term.(to show that they were separate).

Also the constitution implemented the part of separation of power, thus it contained the principle of
incompatibility of multiple office holders. Thus a member of parliament could not be appointed
ministers.

Article 2- grave consequences for disobedience of orders of the Supreme Court.

Article 2(4) – failure to obey or carry out the terms of an order or direction made or given under clause
(2) of this article constitute a high crime under this constitution and shall in the case of the president or
the vice president constitute a ground for removal from office under this constitution.

There were adequate controls in article 214 over the exercise of governmental power and the system of
public accountability all public holders were to declare their assets.

The constitution also introduced a system of grass root democracy. This is through representative local
government system.

It also guaranteed media freedom, establishing a press commission, and now there is the national media
commission.

There were two chapters of human rights issues, chapters 4 and 6.

The constitution tried to make the judiciary autonomous financially. The judiciary proposed its financial
budgets directly to parliament and so they were not under the ministry of justice. This made it possible
for the judiciary to retain 15 % of the revenue they generate to the state
The idea of keeping the executive under check by establishing buffer intuitions was continued. They
included the council of State, Press Commission, Electoral Commission, Ombudsman etc.

One interesting distinction between the 1969 constitution and the 1979 constitution was that some
provisions in the 1969 constitution could never be amended and this was criticized however under the
1979 constitution. Every part could be amended as seen in article 210(1) in where the principle that
part of the constitution cannot be amended was avoided

In article 270(1) the institution of chieftaincy was guaranteed. Chieftaincy was returned fully to its
traditional roles. The process of holding chiefly office was left to custom and usage.

It contained transitional provisions. The most celebrated case under this was TUFFOUR V. ATTORNEY
GENERAL. (Capacity to bring Action). In 1979 we reformed those provisions so that the coming of the
new constitution will not affect the positions of people as seen in SALLAH V. ATTORNEY GENERAL and
the TUFFOUR V. ATTORNEY GENERAL

We have had 4 successful coup d’états but 5, you could almost say 6. The first and probably the most
controversial occurred in 1966. Regime was established on 24 th February through the NLC proclamation.
The proclamation was made on 26th but given retrospective effect from 24 th February. The NLC that was
established run affairs until October 1969.

The structure of government that the NLC proclamation introduced will be more or less reintroduced by
all subsequent regimes. You would have the NLC which was made up more or less of people that plotted
and executed coup. Executive power of the state was vested in the Executive Council of NLC. The
Legislature was the National Liberation Council. Executive was the Executive Council plus Ministers of
state, that they called Secretaries.

The Judiciary continued with same powers, composition and structures as under the 1960 constitution.
There was the power to reorganize the judiciary-NLC Decree 84. The Supreme Court was abolished and
offices of judges and magistrates dissolved. Through NLC Decree 84, a fresh set of courts was set up and
new judges were appointed to those courts. Those identified with the CPP were not reappointed. One of
continuing problems of a legal nature- one issue that came up almost immediately would be extent of
legislative authority of NLC and would come up in 2 SALIFA CASES, EX PARTE BANNERMAN, and
AWOONOR WILLIAMS V. GBEDEMAH. You find the judges more or less divided. One camp led by
AWOONER WILLIIAMS V. GBEDEMAH is that during that period of NLC, Courts did not have power to
examine legislative power of the state.

TITLE: BENNEH V. THE REPUBLIC

FACTS: The defendants served the plaintiff with an entry of judgment which was alleged to have been
obtained pursuant to N.L C.D. 400. The plaintiff claimed that the decree was repugnant to articles 12 and
18 of the Constitution, 1969, and therefore void under article 1(2). The court was asked to issue an
injunction to restrain the defendants from carrying out any of the provisions of N.L.C.D. 400. With
respect to the question of jurisdiction which was raised by the court the plaintiff submitted that under
article 106 (1) of the Constitution the High Court had the power to declare the decree void since the suit
arose under articles 12 and 18 which are in turn covered by article 28 which gives the High Court
concurrent jurisdiction with the Supreme Court.

Held- article 2 of the Constitution stipulates that it is the Supreme Court that must determine whether
another enactment is inconsistent with the Constitution. The High Court did not have jurisdiction to
entertain the suit.

On 13th January 1972 another coup occurred. This established by proclamation, National Redemption
Council was announced, there was a major murmur that ethnic groups were not represented so the
Council expanded to balance ethnicity , to satisfy complaint of ethnic balance. Today we talk about
regional balance. Concern about representation was a major talking point for agitators of constitutional
reform.

NLC Proclamation also established an Executive Council made up of all members of NRC, Executive
Commissioners and Secretary of NRC.

NRC Decree 101- Abolished the Supreme Court and the Court of Appeal became the highest court in the
land. Judiciary was once again reorganized. These arrangements operated until 9 th October 1975.

On 9th October, National Redemption Council made its last decree, Decree 360. This decree reorganized
the administration. It abolished the National Redemption Council and established the National Supreme
Council. It abolished Executive Council and established National Redemption Council.

The people who claimed responsibility for the 1972 coup saw it as demotion and resigned. Some argue
that what happened in 1975 is an in-house coup d’état.

Decree 360 stated that in exercise of Executive power, will act on advice of SMC wherever practicable.
Decree setting up NRC posited that the leader is depository of power and acts on advice of SMC. He
appoints members of the SMC-the IGP etc.

REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH

The applicants, together with other persons, were charged with certain offences under the Subversion
Decree, 1972 (N.R.C D. 90), and tried before a military tribunal appointed under the said Decree. The
tribunal by their decision convicted them and then sentenced the first applicant to death which was
later commuted to life imprisonment whilst the second applicant was sentenced to life imprisonment.
The applicants, in the instant application, sought an order of certiorari to quash the proceedings and the
decision of the tribunal. In raising a preliminary objection to the jurisdiction of the court to entertain the
application, the respondent contended that the military tribunal appointed under N.R.C.D. 90 was not
an inferior court because only superior courts had power to pass death sentences and since the tribunal
also had power under section 1 of the Decree to impose a death sentence in respect of certain offences
triable by that tribunal, the said tribunal was not inferior to the High Court.
Held- that the provisions mentioned were of general application and applied to every offence created by
the enactment. Consequently, by virtue of those provisions, the prosecution could add a conspiracy
charge to any offence and jurisdiction was given to any court to try a conspiracy charge so far as the
court had jurisdiction to try the substantive offence on which the said conspiracy charge was based. The
words “notwithstanding any law to the contrary” preceding Section 1 of NRCD 90 were not intended to
exclude any particular enactment. All that these words meant was that even if the conduct, acts,
omissions listed under the said Section might not be regarded as offences under the existing law, they
should nevertheless ne regarded as offenses punishable under the Decree.

SMC II

NRC Decree 360 was subsequently amended by SMCD 168. SMCD 168 tried to establish a collective
government. It is also this fundamental change in structure that allows people to talk about SMC II. It is
the closest we have come to in an illegal government.

With SMC as the legislature, when it passed laws, the Decree would have to be promulgated by
Chairman but 168 was signed by all SMC members except the Chariman. SMC II was thus illegal military
intervention.

AFRC

It was established by the Armed Forces Revolutionary Council, 4 th June 1979. Legislative authority was
vested in the AFRC, courts continued with the same composition but this time there was some confusion
about the position of the Executive.

KWAKYE v. ATTORNEY-GENERAL

The plaintiff was listed in a press statement issued by the Armed Forces Revolutionary Council (A.F.R.C.)
as one of 51 persons who had been tried and sentenced in absentia by the special court established
under the Armed Forces Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3). The plaintiff
therefore issued a writ invoking the original jurisdiction of the Supreme Court and seeking a declaration
that he was never tried, convicted or sentenced by any special court established under A.F.R.C.D. 3 and
that the purported sentence of 25 years’ imprisonment imposed upon him as published in the national
press was an infringement of his fundamental human rights, inconsistent with chapter 6 of the
Constitution, 1979, void and of no effect. The defendant raised a preliminary objection to strike out the
plaintiff’s claim on grounds that the plaintiff failed to give them mandatory one month prior notice
under the State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352) before filing the suit and that the
court had no jurisdiction because of the Transitional Provisions of the 1979 Constitution.

Held- the State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352), was ineffectual where a person
sought to invoke the original jurisdiction of the Supreme Court on a complaint founded on article 2 (1) of
the Constitution, 1979. The Decree was plainly inconsistent with that article and was clearly voided by
article 1 (2). Whereas under N.L.C.D. 352 no action was to be brought against the Republic until one
month’s prior notice had been given to the Attorney-General, a true construction of article 2 (1) of the
Constitution, 1979, however, entitled an applicant to invoke the jurisdiction of the Supreme Court as
soon as the act complained of was committed or even threatened.

Provisional National Defence Council (PNDC)

It was brought into being by the PNDC Proclamation 41. The Proclamation established PNDC. Legislative
authority was vested in PNDC originally, and where the previous regimes made decrees, they changed
‘Decrees’ to ‘Law’.

The court was continued with same powers as under 1979 constitution. PNDC was made up of 11
members and for the first time the Council was to exercise all the powers of government, to be
explained in PNDCL 42, which led Chief Justice Apalloo when opening the Law Students Union Week to
say that the management was contrary to traditions of this country, and unprecedented in the world-
where totality of state said to be vested in one group of people.

Because of arguments over nature of legislative authority under previous regimes, PNDC decided that
PNDC laws will come into force on the date they are made. They announced that it would be published
as soon as possible. The PNDC also presented the judiciary with strongest challenge it has ever had since
McClean’s time. The existence of this rival judicial mechanisms, posed the biggest constitutional and
legal challenges. The killing of judges also denied the judiciary the chance to appoint experienced legal
practitioners.

Legal effects of military intervention

 Absence of Formal Constitutional guarantees by which regimes are established

 Issues relating to extent and nature of legislative authority under the military period.

1992 constitution

The constitution came into force on 7th January, 1993. The records shows that the constitution came as
a result of development or steps in Ghana:

Introduction of constitutional governances- these reforms were said by the government to have been
the outcome of a desire to achieve three objectives

 Decentralization
 Democratization
 District expansion

At the beginning of the reforms, Ghana was divided into 64 districts. At the end, the districts have been
expanded to 110. That was a massive piece of societal engineering. These reforms concerned the lower
ends of the government machinery. The reforms also presided in the period of regeneration of
worldwide constitutional government.

You can count both internal and external factors accounting for the Constitution. External factors-
constitutional development happening around the world. Internal- debates and the like

The NCD helped televise consultations around the country. The one significant finding of interest about
the NCD in its consultations was that the people of Ghana wanted a pluralist constitutional
environment.

On receiving that report, the government set up a committee of experts under PNDC LAW 252 chaired
by Professor S.K Asante which examined the reports and opposed the draft constitution. When it
received the report on July 1991, under the law, consultative assembly was established to do the actual
drafting. So we can say that the interest of the PNDC was to get committee of experts to make a draft
and then the draft was to be done by consultative assembly. Since 1960 we have been hearing
constituent assembly.

The committee of experts was to act as consultants. At the very first meeting, they informed the
chairman of the committee of experts that they didn’t need them and that if they needed them they
would send for them.

The committee and consultative assembly, were required to take account of their works of the previous
Constitutions – 1957 – 1960 -1969 – 1979 – this is important because it means the PNDC did not expect
them to start from scratch and that the PNDC did not think that they cannot borrow from those old
constitutions. The Consultative Assembly therefore did not struggle. These kinds of matters are
important for us because the understanding of provisions in the Constitution will require an
understanding of the previous Constitutions.

The work of the Consultative Assembly was put in the Referendum in 1992. This was the fourth time in
the history of Ghana that the final document will be put into a referendum. First time was 1960, 1964
and the third was for union government proposals.

The Constitution that was put to the referendum, had 37 sections and 299 Articles and the transitional
provisions.

Preamble

IN THE NAME OF THE ALMIGHTY GOD

We the People of Ghana,

IN EXERCISE of our natural and inalienable right to establish a framework of government, which shall
secure for ourselves, and posterity the blessings of liberty, equality of opportunity and prosperity;

IN A SPIRIT of friendship and peace with all peoples of the world;

AND IN SOLEMN declaration and affirmation of our commitment to;

Freedom, Justice, Probity and Accountability;

The Principle that all powers of Government spring from the Sovereign Will of the People;

The Principle of Universal Adult Suffrage;

The Rule of Law;

The protection and preservation of Fundamental Human Rights and Freedoms, Unity and

Stability for our Nation;

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Article 1 has interesting parts. The first legal effect is the acknowledgement that the power belongs to
the people of Ghana. This means that the power does not emanate from Government, from Parliament
and not even the Constitution of Ghana but rather the People.

The second implication is that the government established under the constitution is to be a
representative government. That is why we have something like the powers should be exercised in the
name of the people and in their welfare. No one will exercise this power according to his whims and
caprices. If the power that is exercised is not for our welfare it will be void under article 1.

The third implicational find is that the government established under the constitution is intended to be a
constitutional government. Constitutional government means government limited by the terms of the
constitution. You can see it in the terms of Article 1- power of government will be exercised in the
manner and within the limits laid down in the Constitution.

That article also tells us that the Constitution as a whole is the fundamental law of Ghana. Accordingly,
any law, action or decision which is in conflict of any provision of this Constitution is void.

- Article 1 of the constitution is protected by article 2,

- Article 2 protects the supreme character of the constitution

The decision in TUFFOUR V. AG, on the point of capacity, though this was a dispute under another
constitution. When you bring an article 2 action, all you need is to be a citizen of Ghana. You don’t need
to have a special interest. The case said that the plaintiff’s interest was with the constitution. It limited
such right to nationals.

There is Article 3 which prevents those who want to subvert the Constitution.

The other protection of the Constitution is by the media – chapter 12 – the media is supposed to hold
the government to be accountable to the people.
The constitution also establishes a number of institutions that have come to be known as the arms of
government – legislature, executive and judiciary.

This constitution also continues with what was introduced by the 1969 constitution by taming the power
of the executive with Buffer Institutions

- Council of state

- National media commission

- Lands commission

- Armed forces council

- Police council

- Office of the auditor general

-CHRAJ

-National commission on culture

Often referred to as independent institutions. They are independent of the executive. This is because
they are assigned to roles that were normally that of the executive

The constitution also guarantees the existence of political parties. Political parties are treated in this
constitution as organs of the constitution. For examples, political party must be national in character
rather than sectional.

The constitution continued the local government reform as can be seen in chapter 20.

One of the challenges past constitutions have suffered with is military intervention. The constitution
does not say much about the role of the armed forces except that the armed forces council is to advice
the president on the defence of the country. The main function of the armed forces is to prevent the
state sovereignty against external challenges and the administrative and operational control of the arm
forces is placed under the chief of defence staff. Act 526 security and intelligence agencies act. The
President apart from being the commander in chief is to appoint officers of the Armed forces, grant
commission of the armed forces and appoint persons to hold offices on the advice of the Armed forces
council. Apart from the defence of Ghana, the President may also join the Arm forces and assign to them
any other functions.

The Constitution devotes two chapters 5, and 6 to human rights issues. In the human rights discourse, it
is usual to talk about civil and political rights (first generation rights), and economic, social and cultural
rights (which some refer to as second – generation rights). Chapter 5 under the heading natural rights,
the last part of what may be considered in economic social and cultural rights is dealt with in chapter 6
which has the title directive principles of state policy. The question has come whether the rights
contained in chapter 6 are justiciable. In the 31 December case Bamford Addo argued succinctly that
chapter 6 of the constitution is not justiciable whereas justice Adade asserted that he does not subscribe
to the view that chapter 6 of the constitution is not justiciable. Firstly he says the constitution as a whole
is a justiciable document and so if any part is not justiciable, the Constitution will say so. Finally he
asserts that the very tenor of chapter 6 of the constitution supports the view that it is justiciable.

There can be no argument about whether human rights are justiciable today. Those provisions have
produced two most important decisions in the Supreme Court since 1992, NPP v GBC, which addresses
the place and importance of freedom of expression.

The plaintiff was a registered political party while the defendant is a statutory corporation established
by the Ghana Broadcasting Corporation Decree, 1968 (NLCD 226) with the mandate to educate, inform
and entertain the citizens of the country. On the presentation of the 1993 budget by the government,
there were severe criticisms of its provisions by several persons including the plaintiff. In response to
those criticisms the Minister of Finance appeared on radio and television for over two hours to defend
the budget proposals. The plaintiff therefore applied to the defendant to be given time on radio and
television to also express its views on the budget proposals. The defendant however refused its request.
Consequently, the plaintiff brought an action against the defendant for (a) a declaration that under
articles 55(11) and 163 of the Constitution, 1992 the defendant, a state-owned media, had a duty to
afford the plaintiff fair opportunities and facilities to present its views on the budget especially as those
views diverged from those of the government or of the National Democratic Congress, the party which
formed the government and which sponsored the appearance of the Minister of Finance; and (b) an
order directing the defendant to afford the plaintiff equal time on television to present its views on the
1993 budget.

Held- the object of Article 55(11) was the provision of fair opportunity to all political parties to present
their programmes to the public, and the means of achieving that was by ensuring that each party had
equal access to the state-owned media. “Equal access” meant the same or identical terms and
conditions for gaining entry into the state-owned media for the purpose of presenting their political,
economic and social programmes to the electorate and persuading them to vote for them at elections.
But this rights were not rights which were enjoyed by the people only when elections were to take
place. Article 163 of the Constitution, 1992 also set out the duties of the state-owned media in
promoting free expression of views by obliging the state-owned media to grant fair opportunities and
facilities for the presentation of divergent views and dissenting opinions. The word “fair” meant “free
from bias” or “equal”. Accordingly, the combined effect of articles 55(11) and 163 of the Constitution,
1992 obliged the management and editors of the state-owned media to be impartial, showing neither
affection for, nor ill-will towards, any particular group in the community, be it political, economic or
social; their facilities being national assets, should be available to all. Accordingly, since the defendant
gave the National Democratic Congress two hours to air its views on the budget, the defendant was
required by articles 55(11) and 163 of the Constitution, 1992 to grant the plaintiff equal time on radio
and television to set forth its divergent views. Further. The court held that the rights conferred by article
163 of the Constitution, 1992 on the people were subject under article 164 of the Constitution, 1992 to
laws that were reasonably required in the interest of national security, public order and public morality
and for the purpose of protecting the reputations, rights and freedoms of other persons. Since the
defendant had not relied on any such laws to justify its refusal to grant the plaintiff fair opportunities
and facilities for presenting its views on the budget, it had breached the provisions of the Constitution,
1992 by its refusal.

The other one also by the NPP this time with the IGP. These two cases were the most important
advancing human rights. One opened the space for expression, the other took away what was the most
potent instrument in the hands of the government about expression. Before 1993 the public order was
that you seek order from the police before you can go on public demonstration. Usually the government
felt you are going to make trouble so the police would refuse the permit. The NPP brought an action
under article 21 of the Constitution claiming that the legislation requiring for public permit was contrary
to the constitution. The Supreme Court interestingly agreed to the NPP that the legislation requiring
public permit for people demonstration was indeed contrary to the Constitution. However the Supreme
Court had ordered the IGP to post the order at all police stations to bring it to the attention of all. What
the government did was to pass the public order Act 1994, Act 491. Parliament therefore had no choice
but to stipulate anyone who wanted to go on demonstration was to notify the police at least 5 days
prior. The rational was that the police was to maintain law and order. What the government did was to
get as close to the old law. So if you inform the police naturally and the day is not convenient to them,
then the police can ask you to suspend, but this is just an advice and if you persist , then the police can
go to the court for a restraining order. This act was served to put restraint on the ruling of the Supreme
Court.

The CHRAJ, NCCE, Electoral Commission on electoral rights, National Media Commission are the four
bodies for the protection of these rights. Other rights are contained elsewhere, like the right to vote in
article 42.

The Constitution has no definition for the word “media”. By looking at the places and context of the
constitution where the word media appears, it seems that the Constitution talks about the institution for
mass communication for evolution as well as the people who work in these institutions and organization
and disseminate information to the population at large.

Chapter 12 was designed to protect the media as well as to establish an 18 member National Media
Commission to protect the media from others and to act as a buffer between media, population and
others. The clause also provides that there shall be no law requiring any person to obtain a license as a
prerequisite to establish or operate a newspaper or journal or other media for mass communication or
information.

In article 120, the media is given the responsibility of holding the government accountable to the
people. All state-owned media are to afford fair opportunities and facilities for the presentation of
divergent views and dissenting opinions.

The constitution places a limit on the media in article 164 which provides that the provisions of articles
162 and 163 of this Constitution are subject to laws that are reasonably required in the interest of
national security, public order, public morality and for the purpose of protecting the reputations, rights
and freedoms of other persons.

Chapter 12 gives the functions of the media commission. One of the functions of the media commission
under article 167(c) is to insulate the media commission from the state owned media.

NMC v. AG

The National Media Commission (NMC), a constitutional body set up under article 166 of the
Constitution, 1992 to, inter alia, promote and ensure the freedom and independence of the media for
mass communication and information, observed around 1994 and thereafter that the President,
purportedly acting in consultation with certain authorities, was appointing chairmen, chief executives
and other members of the governing bodies of public corporations managing the state-owned media.
The President was alleged to be exercising such powers of appointment under article 195(1) of the
Constitution, 1992. The National Media Commission which took the position that it was the proper
authority to make such appointments in consultation with the President, submitted a memorandum to
the Attorney-General protesting at the appointments made by the President. The Attorney-General
made it clear that he did not share the views of the commission and invited the NMC to take a second
look at article 195 of the Constitution, 1992 in relation to the provisions of article 167 and 297(a).
Thereafter, the President made further appointments to the state-owned media. Whereupon the NMC
issued a writ in the Supreme Court for a declaration inter alia that: (1) on a true and proper construction
of the Constitution, 1992 and specifically of articles 168 and 195(1) thereof, the power to appoint the
chairmen and other members of the governing bodies of public corporations managing the state-owned
media including the chief executives who were members at such governing bodies, was vested
exclusively in the NMC acting in consultation with the President and not in the President, either acting
alone or in consultation with any other person or authority.

In his response to the plaintiffs case, the Attorney-General contended, inter alia, that the four subject
public corporations managing the state-owned media were public corporations established as
commercial ventures under article 190(4) of the Constitution, 1992 and were consequently outside the
purview of article 195(1) and 168 of the Constitution.

Held- on a true and proper interpretation of the provision of article 168 of the Constitution, 1992 the
authority to appoint the chairmen and other members of the governing bodies of public corporations
managing the state-owned media, including the chief executives who are members of such governing
bodies, was exclusively the National Media Commission acting in consultation with the President. The
language of article 168 was so plain and unambiguous that it meant nothing more than what it said.
Further, the provision accorded with the overall objective of securing the independence and freedom of
those public corporations from governmental control, and to interpret it otherwise would not only be
doing violence to the language of the article but also subverting the intentions of the framers of the
Constitution, 1992.

Article 56 provides that Parliament shall have no power to enact a law to establish or authorize the
establishment of a body or movement with the right or power to impose on the people of Ghana a
common program or a set of objectives of a religious or political.

The constitution also continues the plan of returning the institution of chieftaincy to its traditional
status. The constitution provides that the institution of chieftaincy together with its traditional council is
guaranteed.

The amendment process allows us to say in the language of classification that the 1992 constitution is
rigid. In chapter 25 there are three levels:

 The first level is articles like 299 which tells us which provisions of the constitution cannot be
amended at all
 The second level are those provisions which require a referendum to amend and those which do
not require a referendum,
 The third and last is that the amendment process will involve the council of state. The proposed
amendment will be submitted to parliament and the speaker will refer it to the council of state,
then it will be read for the first time. There will be a referendum. For the referendum to be valid,
40% of the registered voters must participate in the referendum and 75% of the 40 must vote in
favor of the referendum. It then goes back to parliament and when passed by parliament needs
the presidential assent. If the minority is not interest the amendment would not be passed.

The executive

Article 57 states that there will be a president who will be head of state, head of government and
commander in chief of the arm forces of Ghana. Also covered are people functioning in other
institutions. It says the president will take precedent over all people in Ghana. Some people interpret
this to say the president is the first person in Ghana and the first lady being the properly married woman
of the president. The vice president is the second, the speaker is the third and the chief justice is the
fourth…therefore these people should be acknowledged in that order when it comes to protocol.
However if for instance the Chief Justice is in the chair, she should be addressed first.

Clause 3 requires the president before assuming office take the oath of allegiance and the Presidential
oath before Parliament. The oath is taken with parliament duly in session and the speaker presiding. The
only time the speaker would not be part is where the speaker is being elected and the other two
deputies and invite the president to take the oath. The Constitution contemplates the situation where
you are president but cannot function unless you take the oath as seen in clause 3. The Constitution says
that the term of the president begins that on the day he is sworn into office. The president elect cannot
function as president until he is sworn in. Clause 4, 5 and 6 gives the president immunities. Clause 5
gives him immunity from suit for his official actions subject to two exceptions: article 2, an article 2
action can be brought against the president while in office-NPP V. RAWLINGS. The other exception
relates to prerogative writs-a process which has been inherited from the state practice in England. They
are certiorari, quo warrranto, mandamus, habeas corpus…etc. The President or the Vice President are
not personally liable for any civil or criminal actions. The plea which may be applied in international
criminal law will not apply in this case. Clause 6 says those personal actions have to be brought within 3
years if the president leaves office. Thus if the President is sued before going to office, then you can’t
sue him. After three years, the action becomes statute barred. This is not under the statute of limitation.
The whole point of the President not being liable relates back to the president as head of state who is
the embodiment of the country as a whole. The courts belong to the state and if the provisions were not
so, then the state is being driven to the court in its own cause. In TUFFOUR V. AG, in interpreting article
88, the Supreme Court decided that in all those cases, while President cannot be challenge in his official
position, actions can be brought against him on behalf by the Attorney General. The constitution draws a
distinction between president as head of state and as head of government –where his actions can be
challenged but rather brought against the Attorney General.

Article 58 vests the executive authority in the president. The executive authority shall extend to the
execution and maintenance of the constitution and all laws made after or continued in force by the
constitution-58(2). Under article 295, clause 1 you will find that government means any authority by
which the executive authority of Ghana is duly exercised. The word government is not a reference to the
executive, legislature and the judiciary but a reference to the executive.

The president is under no obligation to appoint ministers. The ministers are his servants. The word
minister means servant in Latin.

Article 59, Where the President and the Vice-President are both unable to perform the functions of the
President, the Speaker of Parliament shall perform those functions until the President or the Vice-
President is able to perform those factions or a new President assumes office, as the case may be. The
only question is whether the president must deliver the letter himself or he can send a messenger. So
what is meant by prior notification? In ASARE V. AG, the court held that the President must be physically
present in Ghana in order to discharge his duties and hence the swearing in of the speaker is in
conformity with the spirit of the Constitution.

Under article 60, the President must choose a vice president. There is no provision for what happens
when the vice president dies. It has been said or argued that Parliament should use its residual power in
article 298 to fill that gap.

A distinction must be made between clause 6 and 8. Under clause 6, there is no mention of the vice
president taking a presidential oath before assuming office. However in clause 8. The vice president and
speaker of parliament are required to take the presidential oath before assuming office when the
president is absent.
Article 62 talks about qualifications to be a president. To be a citizen of Ghana by birth. Till no one has
been asked to prove, it is just assumed by people. You must be 40 years. If you are a person qualified to
be Member of Parliament. When you read Article 94 on qualifications to parliament, our Constitution
has a spent disability, the idea is that someone who has a problem with the Criminal justice system
should not be made to carry his liability for life. So after the period, you can become a member of
parliament. But as far as the president is concerned you are not to have any blemish for people to be
pointing fingers at you that I was gay with that man.

Apart from age and nationality and character, to borrow the words of Asiedu Nketia, ‘any idiot can offer
himself as president of Ghana’. There is no requirement that you should go to school, or to be able to
read and write.

The constitution has some interesting things concerning the requirement that your nomination has to be
supported by two persons who are registered voters, etc. It contains rules on nominations and elections.
A person is elected outright on an election if he gets 50 percent of the valid vote cast plus one otherwise
the contest will continue between the two who had the highest votes till a president is elected.

In Article 64 only a citizen of Ghana can challenge the election of a president. The election petition has
to be filed within 21 days from the declaration of the results.

Article 66 gives the President 4 year term, starting from the day he is sworn into office. The article says
provocatively in clause two that a person shall not serve for more than two terms. The understanding is
that you can only do a total of 8 years.

Article 67 should be taken with 34(2), article 67 requires the president to do a sessional address, thus
every session the president must address parliament, this takes place on the sitting and resolution. This
is different from the State of the Nation Address which is seen in article 34(2).

Article 68 states that the president cannot be the chancellor of any of the public universities. Clause 5
gives the benefits attached to the presidential office. You retire on your salary tax free.

Article 69 is about removal of a President. A president shall be removed upon willful violation of his
oath, conduct which bring the presidency into dispute, ridicule or contempt, conduct which is prejudicial
or inimical to the economy or security of the state, disobeying an order of the Supreme Court giving
under article 2, and inability to perform his function by reason of infirmity of the mind or body. If the
removal is on physical or mental incapacity, then the President is examined by the medical board. A
petition for removal goes to a tribunal chaired by the Chief Justice and four of the most senior. For the
other grounds, the proceedings of the tribunal must be in camera. And the president is entitled to his
lawyers. And the proceedings are sent to the Speaker. The President is removed if two thirds majority is
achieved in parliament.

In article 70 the President appoints certain office holders. In article 71, the president determines the
named people’s salary and they also determine that of the president.
Article 72 talks of the prerogative of mercy. The president may forgive them on condition, or not
conditionally, partially or wholly. Therefore an action of defamation can be brought against a person
who calls you an ex-convict when you are forgiven.

With the prerogative of mercy, there is an argument about whether the president can use the power
before a person has been tried. It does not mean there is no separation of powers or the president is
sitting on top of the Supreme Court. The only problem is whether the President is doing so to prevent
the person from being tried. The aggrieved party with respect to any crime is the state.

The cabinet

Articles 76 and 77 talk about the cabinet which must be a minimum of 10 and a maximum of 19. The
critical clause is 2. Thus the cabinet shall assist the president in the making of decisions. Ministerial
appointment is found in article 78. Sometimes it is appointment by prior approval and others it is by
approval.

Article 78 does not tell us how many ministers we can have. Kuffour criticized Rawlings’ ministers that
they were too many, and he realized later that his is also too many. The other controversy is the
requirement that the majority of the ministers should come from Parliament. If Parliament is left with a
pool of idiots, the president still has to appoint the majority from Parliament. So it affects the president
more than parliament.

There can be no deputy minister for a ministry which has no minister. So with the appointment the
president has to appoint the minister.

As a check, Ministers of State shall be appointed by the President with the prior approval of Parliament
from among members of Parliament or persons qualified to be elected as members of Parliament. That
the president appoints ministers with the prior approval of parliament could take two forms. So here the
President can send Parliament names only with no indication of office or send parliament their names
indicating the office. In the 1969 Constitution, those operating the constitution choose the second
option.

Those who operationalized article 78 always gave parliament the idea of convention. In JH MENSAH V.
ATTORNEY-GENERAL the Supreme Court decided that Parliament was only required by the constitution
to approve and not to threat anybody.

In Article 82 Parliament may, by a resolution supported by the votes of not less than two-thirds of all the
members of Parliament, pass a vote of censure on a Minister of State.

In Article 111, the Vice President, deputy ministers who are not Members of Parliament as well as
ministers have rights to participate in the business of Parliament the only thing is that they cannot vote.
Legislature

The main matters concerning the legislature will be find in chapters 6, 13, and 10. Article
174,184,108,22,28,56,298, examine the amendments contained in act 527.

Functions of the legislature

The principal function of any legislature is to make laws as seen in clause of article 93. The important
reason why people view the making of law as the most important function of the legislature is because it
offers the legislature the most important opportunity to examine what is happening in the
administration and to have an input. Invariably, the immune policy requires stages in the law, and
therefore the legislature gets the chance to be informed by the administration of the policy the reasons
for its introduction and the benefits designed to bring to the populace. In a constitutional democracy
parliament shares the blame with the executive as far as policy failure is concerned.

The second function of the legislature is raising of money. This is principally made through practices,
where taxes are imposed by the legislature. Thus the power to impose tax is one of the most important
functions of the legislature- article 174.

Related to this is the power to spend or authorize the spending of money. The authority to spend the
money and what it can be spent on is normally one of the functions of the legislature. It is parliament
which provides approval of budgets. In article 181, when the state wants to raise money or make a grant
on loans, it needs the approval of parliament.

The fourth general function is the evaluation of government performance. This may take the form of for
example a statement by a member of the floor, relating to the condemnation or approbation of
government performance.

Generally speaking parliament is seen as a permanent inquiry into the business of government. This is
mostly seen in the parliamentary questions which are asked ministers in order to get their concern on
matters. Many often parliamentarians do this to get their people to know that they are performing.
Sometimes the Members of Parliament are not many which may make this problematic. Sometimes
they are paid to ask the question and so may be seen as corruption.

Parliament is a platform for debate in the great issues of concern. From the evolutionary story one way
for the colonial government to ensure that the government was accountable to the people was to
establish a legislative council to discuss the day-to-day administration of the government. Therefore
parliament is a good platform for debating great issues of concern to the nation. This takes place in two
situations: Sessional addresses under article 67-that the president at the beginning of each session of
parliament and the dissolution of parliament deliver a message to Parliament on the state of the nation
and the state of the nation address under clause 2 of article 34-the President shall report to Parliament
at least once a year all the steps taken to ensure the realization of the policy objectives... For instance
when Rawlings was said to have received a bribe of 5 million dollars from Abacha, it became an issue
between the minority and the majority on whether to debate the issue or not. Finally it led to voting and
the majority did not want to debate the issue.

The last one perhaps we can say, some people say that parliament is an important part of our dispute
resolution mechanisms. If you have a problem, one of the best people to help is your Member of
Parliament. If you want to bring a complaint to the attention of the government, parliament individually
and collectively is an important institution to see to that.

The language policy for parliament is important, it is provided for in our constitution that for a person to
qualify as a Member of Parliament, he has to be a person who is competent in the English language. The
idea was that our Parliament will equip itself with the necessary machinery and staff.

Part 1 of article 92 provides that –there shall be a parliament. That parliament is to be made up of at
least 104 members but there is no upper limit.

Two things from the evolution story, it can also be observed –the speaker is not a member of
parliament. The deputy speakers could be members of parliament but the speaker is not. Secondly, the
president is also not a member of parliament.

In the course of development of our National Constitution, Parliament has had itself interrupted several
times. It has been the institution for the people’s quest for representation and accountability.

The legislative has limited power as its acts are subject to the constitution.

Article 94 talks of qualifications to be Member of Parliament. Clauses 1 and 2 deals with qualification
issues and clause 3 deals with eligibility issues. The thing that will render you unqualified in parliament is
permanent forever but that which can make you ineligible is temporary. For example the provision
about chief is eligibility. Hence you can abdicate your stool to become eligible. Also you must be a citizen
of Ghana. With this there is nothing you can do about it as well as you must be 21 years of age and so if
you are not of age say you are 19 , you have to wait till you are of age thus 21.It does not say you should
be a citizen by birth but rather be a Ghanaian. This means that what is required here is one who is a
Ghanaian, whichever way you obtained this citizenship is not in controversy but what is relevant is for
you to be a Ghanaian which can be obtained by birth, naturalization or other means of obtaining
citizenship. And it also says you must be a registered voter. Act 527 makes it possible for our people to
have multiple nationality. Before Act 527, our law provided only for Ghanaian nationality.

Under 94(1) (b) the person must have resided there for at least 10 years to qualify. The person must also
pay his taxes. A person with dual citizenship cannot be a Member of Parliament. Under clause 2(b) a
person adjudged or declared to be of unsound mind or bankrupt under any law in Ghana is not qualified.
The new element which has been added is a person who has acted in a manner which is prejudicial to
the state

Article 94(5) makes it possible for people who are disqualified under 2c to be eligible to become a
Member of Parliament if ten years have passed before the end of the sentence or the person has
obtained pardon.
In accordance with article 95 although the speaker must be a person who has qualification to be a
member of parliament, he is not a member of parliament, he has no vote either original or customary.
Generally speaking if there is a draw, the presiding person has no casting vote or original vote. Voting for
his election or for his removal is done by a secret ballot. He is the embodiment of the legislature and if
you want to challenge a decision of parliament then the speaker is the person to sue.

Article 97 talks about the loss of office of a member of parliament. A member of parliament can lose his
seat by the dissolution of parliament, election as speaker of parliament or absent without permission
and reasonable explanation from fifteen sittings

Decision making in parliament

Quorum

The normal quorum is in article 102 and it should be one-third of the members. One – third is all you
need for a quorum. For actual decision making, it should be half of the members. Once they have one-
third they can start their business. They can do their talk but if they want to make a decision then they
need 50% thus half of the number. If the number falls below one-third, they cannot have business. Once
they have the quorum it doesn’t matter when the number becomes less in the course of the business
unless somebody raise it up. Once they have 50%, the decision will be valid by a simple majority.

The Constitution provides for election petition. So election results can only be challenged by petition not
by writ. Article 99 says it should be filed within 21 days from the publication of the results. The
jurisdiction will lie in the High Court. In the case of the President it is also 21 days but this is from the
date of the declaration of the results.

One of the responsibilities of our parliament is to keep watch of the executive. As found in Article 103.
There are also some committees, the standing committee which cover one ministry or a number of
ministries.

The procedure to lawmaking is contained in article 106. The power to make laws is to be exercised by
bills and assented to by the president. The bill must be accompanied by an explanatory memorandum.
The constitution requires that the memorandum should explain the state of the law at the time and the
benefit. So if you introduce the bill without an explanatory memorandum it will not be processed. The
bill goes through three stages:

The first reading. The constitution says after the first reading the bill must be submitted to the
appropriate quarters to consider and make the report to parliament

Secondly is where parliament examines in detail section by section and where amendments were
proposed, those not part could also participate.

The introduction of the bill is very formal. When the bill is introduced in committee, it must not stay
there for more than 3 months. When the bill is passed by parliament for the president to assent to, the
president has the choice to sign it within seven days or state his refusal in accordance with article 106.
The third option is where the bill is returned to parliament by the president

Article 107 present us with matters on which Parliament is prohibited. So Parliament cannot change the
decision in any court and Parliament cannot make retrospective legislation unless on financial matters.
107 is related to 108, which is a reenactment in the Guggisberg Constitution where only the governor
could introduce legislation on financial matters thus any bill concerning financial matters cannot be
passed by parliament unless introduced by the President.

Clause 2 of the article states that if in the opinion of the person presiding, the bill does not achieve what
the action is about, then it needs not be introduced by the President or the members of Parliament.

The duration of parliament is four years from its first sitting, however this can be extended in times of
war by the passing of a resolution with at least 2/3 majority vote. However, the extension may not
exceed four years.

Article 115 provides the privileges and immunities parliament enjoys. There is freedom of speech and
debate. Court processes cannot be served on a Member of Parliament, a Clerk or Speaker when he is on
his way to Parliament in accordance with article 117.

In article 119, parliamentarians, Speaker and the Clark are excused from jury service.

Articles 120 and 121 offers protection to the media of their reports in Parliament as long as the report is
an accurate one.

Articles 122 and 123 are intended to enable Parliament to retain its dignity. An act or omission which
obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a
member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or
which tends either directly or indirectly to produce that result, is contempt of Parliament.

The decision in WARE V. OFFORI ATTA is reproduced in article 106, so if the bill affects the function of a
chief, then parliament cannot consider that bill unless referred to the house of chiefs.

Under article 112, 15% of the number can petition the speaker to convey a meeting.

Clause 5 of 181 requires agreements relating to international al transaction requires Parliamentary

approval. Look at the decision in ATTORNEY GENERAL V. BALCON ENERGY

Under article 210 clause 2, nobody can establish Armed forces in Ghana without parliamentary
approval.

KUENYEHIA AND OTHERS v ARCHER AND OTHERS

On 23 and February 1993 the Chief Justice administered the oath of allegiance and the judicial oath to
justices of the Supreme Court and the Court of Appeal respectively who continued in office after the
coming into force of the Constitution, 1992. Subsequently the plaintiffs, all high officers of the Ghana Bar
Association acting upon the mandate of the association, filed suit in the Supreme Court for declarations
inter alia that by the combined effect of article 156(1), (2) and (3), section 4 of the Schedule I and
Schedule II of the Constitution, 1992, the President was the proper person to administer the oath of
allegiance and judicial oath to judges of the superior courts who continued in office after the coming
into force of the Constitution, 1992 and that the purported administration of the oaths to those justices
by the Chief Justice was null and void.

MAJORITY HOLDING PER FRANCOIS JSC

The constitution as it stands must not be interpreted by a narrow point of view as seen in the case of
tuffuor v. attorney general. It must be interpreted with a broad and a liberal spirit. In its interpretation
what is not recorded in the article must not be imputed there. The constitution would have stated
explicitly if the article 156 affected judges who were continuing in force as well. It is clear on the face of
it that it only affected the freshly inducted judges, thus the defendant cannot be said to have
contravened that article. Their validity stems from section 4 of the transitional provisions. From the
oaths decree, NRCD 6, judges upon the coming into force were not to be sworn into office as was done
under the 1992 constitution thus if this provision is to be fully relied upon then the judges were not to
be sworn into power at all since they have sworn the oath already. However section 25 of the
transitional provisions allows it to be construed with such modifications and amendments and in line
with the constitution. Section 4 stresses on the swearing in of the judges and the question are who
swears them? Since it has been established that the validity of these judges are not from article 156,
and section also does not provide who should swear them in, then a recourse is made to the OATH’S
DECREE. This decree allows the chief justice in swearing in justices. The second schedule which involves
the oath allows that it shall be sworn by the president, the chief justice and any other person designated
by him. This provision cannot be described as a mere footnote. Article 57(3) and 60(5) allows the
president and the vice president to be sworn in and the person who swears them in is provided under
the presidential and the vice presidential oaths respectively. These are adhered to without saying that
there are merely footnotes, thus the footnotes bits must be discarded. Since the constitution allows that
power to be delegated, and there is evidence that the president delegated that power, then the CHIEF
JUSTICE did not act unconstitutional at all.

DISSENTING OPINION BY ADADE JSC

The chief justice under article 156 had the power to only swear into power, those in (3)(b). The
constitution expressly gives him the power to do so or to designate the power to those specified in the
provision such as the JUSTICES of the superior courts. Thus per the constitution the powers of the
president in 3(a) cannot be designated to the chief justice and the chief justice cannot make the
president perform his functions under 3(b). The defendants argued that 156 relates to new justices and
judges since it states that, upon coming into office and that these judges were old and SECTION 4 of the
transitional provisions is to be applied and that provision did not state who should swear them in thus a
resort to the OATH DECREE, NRCD 6. The learned judge held that that was erroneous since the
transitional provisions are in line with the constitution. The use of the words shall be deemed or as if,
are legal fictions and these make us call what is not as though it is. The position of the article assures us
that it must be assumed that these justices have through the procedure laid down in article 144 and
156. The SUBSECTION 2 of the transitional provision adds that as all these have been done, there must
be a swearing in. since it is deemed, they have gone through the whole process as laid down in the
constitution then they must be sworn in, as in accordance with the constitution. Thus the CJ has no
power in swearing in the JUSTICES of the superior courts of judicature. The NRCD 6 cannot aid the
defendants since from section 25 of the transitional provisions, the OATH DECREE must be read in
accordance with the constitution. If it will be employed then it must be subject to the constitution. The
decree provided that the oath doesn’t apply to those already sitting as judges, but in applying this to the
constitution, you will realize that it will contradict. Thus the reading of it with the constitution will take
us back to article 156. The judge also held that from the reading of article 144 and 153, you will realize
that it is the president who appoints the JUSTICES OF THE SUPERIOR COURT OF JUDICATURE and the
chief justice appoints the others, thus we may presume that he who appoints, INDUCTS INTO OFFICE!

The invoking of article 297, cannot favor the defendants since in article 297, a person who succeeds a
person in an office continues to perform the functions of the fellow. The CHIEF JUSTICE has in no way
succeeded the president thus it cannot be held that he should perform the functions of the president. It
must be noted however that from the reading of articles 60(1)(6)(8)(11), the vice president or the
speaker of the parliament may perform the functions of swearing in the JUSTICES under peculiar
situations and not the CHIEF JUSTICE.

NEW PATRIOTIC PARTY v THE ELECTORAL COMMISSION

Before the Constitution, 1992 came into effect there were in existence district assemblies which had
been established under the provisions of the Local Government Law, 1988 (PNDCL 207). That Law had
subsequently been amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272)
which extended the term of the assemblies from three to four years. A later Law, the Local (Government
(Amendment) Law, 1993 (PNDCL 306) had empowered the district assemblies to continue in existence
until such time as new assembly members were elected. However, article 242 of the Constitution, 1992
provided for the creation of district assemblies under the Constitution and article 243 empowered those
district assemblies to elect district chief executives for the district assemblies. At a time when the district
assemblies had not been elected under article 242 of the Constitution, 1992 the Electoral Commission
directed the existing district assemblies to hold elections in order to elect district chief executives for
each district assembly in accordance with article 243 of the Constitution, 1992.

The plaintiff, a registered political party, then brought an action against the Electoral Commission and
the Attorney-General for a declaration that the proposed election of district chief executives was illegal
and a contravention of the Constitution, 1992 and sought an injunction to restrain the conduct of the
election. In support of its action the plaintiff contended that since the assemblies provided for by article
242 of the Constitution, 1992 were different entities in their character, composition and terms from
those established under PNDCL 207, the intended election was a violation of the letter and spirit of the
Constitution, 1992 and therefore unconstitutional, illegal and unenforceable.

However, in their defence and in support of the proposed election the defendants contended that (a)
the combined effect of PNDCL 306, article 11(4) and section 31(2) of the transitional provisions of the
Constitution, 1992 was to make the assemblies in existence before the coming into force of the
Constitution, 1992 continue in existence with the powers and functions envisaged under the
Constitution, 1992 until elections were held under article 242, and (b) since the plaintiff had not made
any effort to prevent the district assemblies from electing their representatives to the Council of State
under article 89(2)(c) of the Constitution, 1992 it was estopped by inaction and acquiescence from
challenging the competence of the existing district assemblies to elect district chief executives under
article 243 of the Constitution, 1992.

Held-

1. By virtue of the provisions of article 11(4) of the Constitution, 1992 the Local Government Law,
1988 (PNDCL 207), the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) and the
Local Government (Amendment) Law, 1993 (PNDCL 306) all formed part of the existing law.
Thus as provided by PNDCL 306, until new assemblymen were elected under article 242 of the
Constitution, 1992, the members of the district assemblies at the time the Constitution came
into operation continued as assemblymen to perform the functions which had been clearly spelt
out in section 6 of PNDCL 207. However, under PNDCL 207, the district assemblies were not
empowered to approve candidates for appointment district chief executives to be appointed
under the Constitution, 1992. Furthermore, the district assemblies established under PNDCL 207
were completely different bodies and entities from the district assemblies to be established in
the future under article 242 of the Constitution, 1992. Accordingly, the district assemblies as
presently constituted could not take a decision on a matter specially reserved for the differently
constituted district assemblies envisaged under article 242 of the Constitution, 1992. In the
circumstances the district assemblies established under PNDCL 207 were not competent to hold
elections for the purpose of approving candidates for appointment to the office of district chief
executives. Accordingly, the conduct of the Electoral Commission in attempting to hold elections
in the district assemblies as presently constituted for the purpose of approving candidates for
appointment as district chief executives was contrary to the letter and spirit of the Constitution,
1992 and was unlawful and unconstitutional.

2. Article 2(1) of the Constitution, 1992 empowered every citizen to bring an action to enforce any
infringement of any provision of the Constitution, 1992. Accordingly, if the failure of a citizen to
bring an action in the Supreme Court when a particular provision of the Constitution was
violated could constitute an estoppel against that citizen and every other citizen in bringing an
action in respect of any subsequent violation of that provision or another related provision of
the Constitution, estoppel would have been allowed to operate as a shield to prevent citizens
from ventilating and enforcing their constitutional rights under article 2(1) of the Constitution,
1992. The equitable defences of acquiescence, inaction or conduct therefore had no place when
it came to the interpretation and enforcement of the Constitution, 1992. Accordingly, the failure
of the plaintiff to question the propriety of the action of the district assemblies established
under PNDCL 207 in electing representatives to the Council of State under article 89(2)(c) of the
Constitution, 1992 could not prevent the plaintiff from seeking in the court the correct
interpretation and enforcement of the provisions of the Constitution, 1992 which related to the
 district assemblies. The unlawful conduct of the Electoral Commission could therefore not be
validated by the equitable doctrine of estoppel.

BILSON v. ATTORNEY-GENERAL

The plaintiff brought an action against the Attorney-General for, inter alia, a declaration that section 34
of the transitional provisions of the Constitution, 1992 which had granted indemnity from liability and
prosecution for all the legislative, executive and judicial acts and omissions done by and under the
authority of the military regimes which overthrew the elected governments of the First, Second and
Third Republics of Ghana and suspended and/or abrogated the Constitutions of 1960, 1969 and 1979
was unconstitutional and unlawful because it infringed the fundamental rights of all persons in Ghana to
seek redress before the courts for their grievances.

The AG argued that the plaintiff does not have a cause of action as none of his rights have been
infringed.

Held- the Supreme Court had jurisdiction to interpret the provisions of the Constitution, 1992 in the
context of disputes. It had no jurisdiction to tender advice to prospective litigants. Accordingly, the
plaintiff could only seek an interpretation of section 34 of the transitional provisions of the Constitution,
1992 if his action was against a particular person in respect of an act or omission of that person, and
that person had for his defence sought shelter under section 34. It was only under those circumstances
that it would be profitable for the court to determine whether the defendant or his act or omission was
covered by section 34 of the transitional provisions of the Constitution, 1992. Since on the pleadings, the
plaintiff was seeking a declaration in a vacuum, his writ had not disclosed any cause of action.
Accordingly, it would be dismissed.

ROSEMARY EKWAM V. KWAME PIANIM

The defendant, a founding member of NPP had been slated to contest the party’s impending election.
The plaintiff, an NPP member, contended that the defendant had been convicted by a public tribunal of
the offence of preparing to overthrow the PNDC Government in 1982 contrary to Public Tribunal Law,
1982 (PNDCL 24). She brought an action in the Supreme Court for a declaration that the defendant’s
action constituted an offence intending to disrupt the peace and security of the State.

Held- the defendant was disqualified from standing for the election for the office of the President under
Article 94(2)c(i) of the 1992 Constitution for the reasons that acts aimed at overthrowing the
government of a state were necessarily aimed at endangering the security of that state. Consequently,
the defendant’s conviction by the Public Tribunal constituted an offence involving the security of the
state under Article 94(2)c(i) of the 1992 Constitution.

CITIZENSHIP
We can assume the question who is a national of any country is for many people in that country the
most important question. There are many benefits that come with being a national as well as
disadvantages that come with not being a national and for that reason many countries try to make
this part of their law as simple and possible. With the national and those public agencies whose work
depends on separating nationals from non nationals . for example has to do is, if in this country you
start working at the lands commission and as document for legislation appearing to a conveyance of
an interest in land and it has to do with a lease hold, it will have to do whether the proposed lessee is
a national or not a national. According to the constitution non national s can hold up to 15 years
interest in land and not beyond . However if a person is a national , their interest is any and if a
leasehold, 50 years it can be of any position..

So you as the official working at this department, one will not think your business has to do with
nationality

Starting from chapter 3 article 6. Clause 1 says every person who on the coming into force of this
constitution is a citizen of Ghana by la0w shall continue to be a citizen of Ghana. So the constitution
has the period up to the coming to force of the constitution and the period after . these were 7
January 1993 whether after or before . note that the critical thing therefore is either on that day by
law you were a citizen of Ghana. This is an area of our national constitution where legislation is never
dead. Legislation once repealed becomes deadlock but for nationality as clause 1 says it isn’t.

Secondly, the clause doesn’t tell us anything about what class of citizenship will be and as our laws
provide for categories of citizenship before, we have to assume that clause 1 just retains whatever
category of citizen we had by that date.

The people who were born after 7 January 1993 are provided for by clause 2 of article 6 . clause 2
doesn’t say they are Ghanaian but says subject to the provision of this constitution…….it adds
something which says at the point of your birth you become a citizen if one of your parents or
grandparents was a citizen of Ghana. Critical point is if one of your parents or grandparents is or was
a citizen of Ghana. So you have to find out your parentage and if that does not help you then you go
down to your grandparents and if that fails then under our law you are not a Ghanaian. Basically, if
you are more than two years s old then may be article 6 of the constitution doesn’t help you

you must also note the tendency to assume that citizenship is a matter of law but this might probably
be incorrect as ours has something to do with history, geography it has something to do with ethnicity
so the fact that we were former British colony would have been an important consideration in the
determination of whether we are Ghanaian and our relationship; with the status we would have had
under British colonial law may have determine our …an observable fact of our geographical existence
as a nation is that the boundaries of Ghana sometimes cut through ethnic communities. Example
some Moshi are inside the boundary of Ghana and others are inside that of Burkina Faso. The one
inside the Ghana boundary belong to the northern protectorate and the one outside it belongs to the
French colony so the fact that the person is a Moshi by itself will not make that person a Ghanaian.
Kokumba also is divided into the republic of Togo and that of Ghana so the fact that the person is a
kokumba does not mean the person is a Ghanaian.

The length of your stay in our country has no bearing of whether you are a national or not. Apart from
this we are also members of the commonwealth , a body that brings together the colony of great
British. So the citizen of any commonwealth country in 1961 is a citizen of Ghana. So that’s why the
enforcement of the aliens Act might have made a good number of them show that they were
Ghanaian. Since independence , in the context of our law , no attorney general has been able to apply
a nationality law correctly.

Partly because of our previous colonial character, for some to show that you are a Ghanaian, you have
to show especially that you were born before 6 march 1957 their parents and grandparents would
have been born before 6 march 1957. You will then have to show what category of British category
they were under the British nationality law of 1948. This provided for three categories:

A citizen of the united kingdom, a colony

A British protected person

A British subject

The funny part of our nationality law is most of us often claim we are Ghanaians by birth and we are
the one to be caught by the complexity and the ones we don’t respect as of naturalization and
registration, etc. might not have problems as they only have to produce their certificate of
naturalization or that of registration.

Apart from naturalization and registration , our law seems to have ..for children, . so a child under 7
years found anywhere in Ghana of unknown parents is treated under our law as a Ghanaian by birth-
6(3).

Our law also allows for persons to become Ghanaians through adoption-6(4). If you look at the law
closely, the law seems to say that if you or your parents are not Ghanaians and you are adopted by a
Ghanaian then you become a Ghanaian. I don’t see why the law should make a distinction because
the assumption is that if your parent is a Ghanaian then you are already a Ghanaian and so the
adoption should not have been there.

The reason why our nationality law seems to be complex is because there are two basic principles
that inform nationality laws around the world. Most countries choose one principle or the other but
we have a mixture of the two. These are birth and descent.

The first is the place of birth. So your nationality law is either LEX SOLI-principle of place of birth or
LEX SANGUINIS -decent…so once your parents gave birth to you in U.S then you are an American
citizen. So if you are an American citizen and not born on U.S soil you cannot be a president.
Shalabi case

Some countries base their nationality on lex sanguinis principle of descent . so it does not matter
where you are born but a descendant . In that mixture our nationality gives prior importance to
descent . That is the reason why if you are born in Ghana and your parent or grandparent has no
connection ,then under our nationality law you are not Ghanaian. Because we are a country made up
of ethnic groups. sometimes for some of us we have to establish that we have been admitted into one
of the ethnic groups. That gets complicated as some are based on matrilineal and patrilinial
relationships. So for some of those ethnic communities to be considered a national will require
adoption, so if for instance your mother is an Anlo and your father is a Scottish and so you are
disqualified. The only circumstance is where your father is not known and your mother’s father or
brother not too sure can adopt you. Because the Anlo is based on clanship.

Our law accords nationality to people born out of wedlock. In some countries only the females can
transmit nationality and others only the male. Ours does not however make a distinction. In many
countries, unless the parents get married or after his death. This is what the English call bastards.

Until act 527 , the amendment to the constitution, our law did not allow dual nationality so you could
not combine the nationality of Ghana to any other the only is may be If at birth you had both, the law
allows you to keep the nationality and after attaining the age of nationality, 18 years then after a
reasonable time may be after 10 years, the law require you to renounce that nationality or you lose
both. The law did not allow you to reenter the nationality only if the other nationality by operation of
law, but if you lose that nationality , then automatically you become a Ghanaian nationality. What act
527 did was to change it small. It says a Ghanaian can hold a nationality of another country-8(1)
amended. Thus it opens for a Ghanaian to have multiple nationality. This law has however been
understood.

Our law also ,….so as one is born in an aircraft , you become a citizen of that country the air craft is
heading towards.

For the current law , chapter 3 as amended by act 527, and act 591, the citizenship act 2000, act 591.
Note from the long title of Act 591. The short title is the citizenship act and the long title is: an act to
consolidate with the amendments the law relating to citizenship of Ghana; to state in respect of
citizenship by birth the legal conditions applicable at the given points in time; to bring the law in
conformity with the Constitution as amended and to provide for related matters.

Section 2 of the act says for ease of ascertaining the law on Ghanaian citizenship by birth , the
applicable provisions are in this part restated……it is to let us know that parliament is not saying that
act 591 is a refreshing but it is a restatement of the law. For that purpose, act 591 constitute the
current law.
note the following pieces in relation to who is a citizen, the Ghana nationality and citizenship act
1957, the Ghana nationality Act of 1961 act 62 , Ghana Nationality Act 1967 NLCD 911, decree Ghana
Nationality amendment decree NLC decree 33 ,Ghana nationality Act 1971 act 361, Ghana nationality
amendment decree134, provisional national defence council establishment proclamation law PNDC
law 42 especially section 54 of paragraph 41 not too sure

Chapter 3 of PNDCL 42 . subsection 2 of section 24 –a reference in this act to Ghana in relation to the
birth of residence before 6 march 1957 shall be …as a reference to the territory, parliament
recognized that the concept of Ghana is very recent. It is saying that this is by reference to the place of
your birth if the birth occurs before the 6 of march 1957.this creates complexity because they know
that the geographical space of Ghana was not complete till 1956 of the plebiscite, the gold coast
colony is a settled colony and Ashanti was by conquest. So if you say for purposes of nationality
reference to Ghana depend on the part of Ghana .. then you create a problem-note the practical
implication of this sub section; and subsection 3 of section 24 for your interest as well

SECTION 3 OF ACT 591

The act has put together all the provisions in the existing law which has been repealed by this act and
merely restatement. In the restatement, the act provides the law in time frames revolving around our
constitution since independence.

Section 3(1) SAYs a person born before 6 march is a citizen of Ghana by birth. The constitution talks
only about citizen but the act is precise by stating that by birth. So the act provides for all types of
citizens:

Birth

Naturalization

Registration

Adoption

OF these four, the law clearly is that citizen by birth and adoption is the most important. Thus it
cannot be taken away from you. But with registration or naturalization it can be taking away from you
for instance if you acquired it through fraud.

Section 3 provides separate rules for those born in Ghana and those outside Ghana. So if you are born
in Ghana and at least one of your parents or grandparents was also born in Ghana then you are a
Ghanaian by birth.

The difference between section 3 (a) and b is that: Whereas a person born in Ghana before 6 march
can become a Ghanaian by either one of the parent being a Ghanaian or the grandparent, the person
who is not born in Ghana is not same in that, with that person, it is only one of the parent who has to
be a citizen of Ghana and not the grandparent as well.
Ghana is defined in section 24(2) that : the territories comprised in Ghana on that day ( before 6
march 1957)

Section 3 also says , generally speaking the determination of a person’s citizenship is determined on
the point of birth so if you were born before 6 march 1957 outside Ghana and one of your parents was
born in Ghana you are a Ghanaian by birth or if you were born before 6 March 1957 in Ghana and at
least one of your parents or grandparents was born in Ghana, you also a citizen by birth.

SECTION 4

Section 4 is addressing the people who were born between 6 march 1957 and the coming into force of
the 1969 constitoin. so if you were born on or after 6 march 1957, and before the 22 nd of august 1969,
you are a citizen whether born in or outside Ghana if either of your parents and also one at least of
your grandparents or great - grandparents was born in Ghana. This will help you if your parents do
not make it possible for you , you can call on your grandparents and if not great grandparents. This
however is so if one of your parents or grandparents are Ghanaians.

You are a citizen if you are born between 6 march 1957 and 22 nd august 69. If you were born in
Ghana then you see that hence those born outside are not part.

It tries to explain that a person is not a citizen of Ghana for the purposes of sub section 1 of this
section if at the time of your birth your parents, grandparents or great-grandparents through whom
the citizenship is claimed has lost his citizenship ….it means that if you were born between , and one
of your parents or grandparent was born in Ghana but just before your birth they change their
nationality , then you do not become a citizen of Ghana.

Section 4 (3) a . and b. are dealing with the children of registered and naturalized Ghanaians. So if you
were born between 6 march 1957 and 22 nd august 69 and one of your parents is a citizen of Ghana by
registered or naturalized then you are a citizen of Ghana . though your parents may be deprived of
their nationality you cannot be deprived because at this circumstance you are a citizen by birth. If you
are born outside both parents must be registered or naturalized unlike if you were born inside Ghana
where you will need only one of your parents. If you were born outside Ghana and one of your
parents is a citizen by birth and the other by registered then you are a citizen by birth. One who is
born outside Ghana must behave both parents being registered or naturalized.

If the issue of discriminatory arise , the article 17.

SECTION 5: If you were born on or after 22 nd august 1969 and before 24th September 79, and at that
date either of your parents was a citizen of Ghana, then you are a citizen of Ghana. This does not
distinguish the type of citizen of the parent, thus whether by birth or by naturalization. Hence all you
need is that one of your parents should be a citizen of Ghana.
Section 6 : those born between the third republican constitution and the commencement date of the
fourth republican constitution, thus persons born on or after 24 September 1979. If you were born in
Ghana and at the time either of your parents or grandparents is a citizen of Ghana. Here too there is
no type of citizenship stated. or if you were born outside Ghana and either of your parents is a
citizen. Here the only thing you will lose is that your grandparents is not part.

Section 7: this is talking about those born on or after 7 January 1993-Constitution 1992. provided that
at the time of their birth either of their parents or grandparents was a citizen of Ghana, then such a
person is a citizen by birth.

SECTION 8: the law calls them as FONDLINGS . thus persons under the age of 7 who are found in
Ghana and whose parents are not known are presumed to be a citizen of Ghana by birth.

SECTION 9 : to qualify for the nationality to adoption , so if you are not more than 16 years and your
parents are not Ghanaians and you are adopted by a Ghanaian then you are a citizen.

SECTION 10 ,11 AND 12: provides for citizenship by registration .there are two ways

The president is supposed to write a list of countries which shall be called approved countries. So if
you come from one of those countries then you can apply to be registered as a Ghanaian if you satisfy
the condition that : you are a person of good character , that you are an ordinary resident in Ghana,
and that you are a resident for a period of 5 years , and you can speak and understand and indigenous
language of Ghana , the earlier was that you can speak and understand a Ghanaian language and
there was dispute as to whether English was one.

The second possibility is through marriage. so if you are a non-Ghanaian and you marry a Ghanaian
then you become a citizen . But if the minster suspects that the marriage was because of the
acquisition of citizenship then the citizenship may be renounced.

The commencement date of the nationality by registration and the commencement date of
nationality by naturalization is the date on which the person takes the oath. The commencement date
is the date which is supposed to be stated in the certificate and this was changed from the time
Captan v. Ag was decided since at that time the commencement date was the date the certificate was
handed-section 12

The qualification for naturalization is contained in subsection 1 of section 14

You must be in Ghana for a period of 7 years

For the 7 years you must have lived in Ghana for a cumulative period of 5 years

Evidence that you have not been sentence

You are able to speak and understand an indigenous language….it does not say you are able to write

You should be a person who has made or capable of making a substantial contribution to the progress
or advancement in any area of national activity

You must have been assimilated in the Ghanaian way of life

You have decided to reside in Ghana permanently

You possess a valid residence permit

What is in 14(3) are the requirement relating to language which the minister cannot waive it

SECTIO N16 is about dual citizenship..: A citizen of Ghana may hold the citizenship of any other
country in addition to his citizenship of Ghana…this is from act 527 , the amendment , so since from
2001 ,you can hold another citizenship

16(3,4 and 5) : tells us something about the situation at the point in time when others did not allow
dual nationality, so if you lost your nationality by the acquisition of the citizenship of another country
but if you are a Ghanaian and acquire the nationality of another country then you must register with
the minister of interior

SECTION 17: the law allows you to give up your Ghanaian nationality. Some countries do not allow
this if you acquire the nationality of another country through marriage and that marriage is dissolved
you retain the nationality of the country. However if the marriage is annulled you lose it since in law
where marriage is annulled , then it is deemed to have never took place. For purposes of nationality
dissolution is assumed that the marriage was validly acquired but annulment is different.

SECTION 18: talks about loss of citizenship. This only applies to Ghanaians by naturalization or
registration. It is at the instance of the attorney general. He is the one who tells the authority to bring
an application before the high court for you to be stripped off. If your activities are inimical to the
security of the State or prejudicial to the public morality or public interest or the citizenship was
obtained by fraud, misrepresentation or any other improper or irregular practice.

Subsection 4 of section 24 , the age of majority is 18 for nationality.

C.E.K KUMADO-WHO IS A GHANAIAN (BRIEF)

Our open door policy towards dark-skinned people has in part contributed to the lack of interest in
ascertaining who a Ghanaian is. The question has to be dealt with because of the new voters
registration exercise.
Our citizenship laws suggested by some people as a legal matter is not so. It is a mixture of history and
law. Thus a person has to research into our statute laws as well as our history books with some
amount of geographic work.

Three categories of citizen are provided for by our nationality law

Citizenship by birth

Citizenship by naturalization and

Citizenship by registration

Any child under seven found anywhere in Ghana of unknown parents is presumed by our law to be a
citizen of Ghana by birth.

Our laws accord citizenship to adopted children . Though citizenship by birth is the most secure of the
categories, it is easier for those who acquired citizenship by naturalization or registration since they
just have to produce the naturalization or registration certificate.

The first thing to note is that , most countries base citizenship on either birth or descent . Ours is a
mixture of both. Thus the fact that a person is born in or outside Ghana does not determine whether
he is a Ghanaian.

Secondly, the concept of Ghanaian is a recent development though the process by which our various
ethnic groups were brought together to form one unitary state began in the seventeenth century. So
it must be that one is a Ghanaian because the person is a Ga, Asante, etc . it follows prima facie that
anyone who is Yoruba whether he was born here or lived here for whatever length of time is not a
Ghanaian.

Thirdly, our citizenship laws have been affected by the fact that we were once a British colony since
we have to establish the claim that our parents or grandparents were Ghanaian and this is so if we
can prove that the people through whom we are claiming have some British connection . thus to show
that such a person was a citizen , you have to go back to the English legislation namely , the British
Nationality Act of 1948 to find out whether a person was a citizen of the U.K. and colonies , a British
protected person or a British subject. Further with people born in 1919 , it may be necessary to
consult the common law rules on nationality .

The result is that a Moshie whose parents hailed from the French section of Moshie-land (i.e. Upper
Volta) is presumptively an alien ; similarly , an Ewe whose parents hail from the French section of
Ewe-land(i.e Togo) is presumptively an alien. Thus the fact that you belong to a tribe which straddles
both modern Ghana and another country does not mean that you are a Ghanaian.

Fourthly, our law accords citizenship to children born out of wedlock if either parent is a Ghanaian. In
some countries however, it is only the female parent that can transmit the citizenship. the male
cannot unless he marries the mother . eg.Q, a Ghanaian woman gives birth out of wedlock to X. but
the father is a Sri Lankan Engineer working in Ghana. X is a Ghanaian at birth and vice versa. Note
however that if under Sri Lankan law , X is also a citizen of Sri Lankan, then he can only remain
Ghanaian if when he is 21 years old, he renounces the Sri Lankan citizenship. So a lot of bastards
posing themselves as Ghanaians are not .

Fifthly, the law allows men and women married to Ghanaians to be registered as Ghanaians . The only
difference is that the case of a man married to a Ghanaian woman, the marriage must have existed for
5 years before the application for registration , and must have been contracted under a monogamous
system of marriage . this citizen (both husband and wife) loses the citizenship when the marriage is
dissolved .

Our law also permits citizenship by naturalization if certain conditions are satisfied.

COMMISSIONS AND COMMITTEES OF ENQUIRY

Commission of enquiry is a mechanism under our constitution for investigation any matter of public
interest .

 Commission of enquiry should be distinguished from department of enquiry

Commission of enquiry is used in matters of national interest and government by some legislation
before independence. Before independence it was regulated by the Commission of Enquiry Act CAP
249 which gave the governor General the power to appoint commission of enquiry in any matter. an
example is the Gawa commission : Gawa was an international expert on company law appointed to
examine the law and practice operating in Ghana with the view to make recommendation to make it
flexible in Ghana , and brought a report which was accepted generally as the most competent
commentary on the act (Company act). Essentially we can say that commission of enquiry or
committee of enquiry is a fact finding body put in place to inquire in to some matter which is
determined to be beneficial to the public interest or public welfare . In the beginning , they were ad
hoc and sometimes looked like the permanent one’s like the Anini’s Commission of bribery and
corruption , we never finished , the chairman died and so the committee also died.

It was given heighten attention by the passage in 1964 of two pieces of legislation

 Act 230: Corrupt Practices and prevention act 1962 together with its pieces of ..LI 571

 Act 250: Commission of Enquiry Act 1954

Under Act 230 , the committee was required to independently report to the appointing authority , this
was normally the president. They were also required to submit a copy of the report independently to
the attorney general and anyone it made adverse findings against. The submission to the attorney
general is t o enable the a f to determine wither it is in the public interest to prosecute . if he decided
to prosecute , then the report of the commission operated as prima facie evidence of the case of the
offence. What it means is that the act treated the findings in the report as if in a normal criminal trial .
the prosecution has completed its case against you and you have made a submission of no case which
has been turned down by the court . this drastic outcome undermines an important constitutional
principle , namely nobody is accused before the enquiry . and anyone who appears is as a witness. So
it was a drastic curtailment to people’s rights to fair trial . people therefore started taking the
business of the commission or committee of enquiry far more serious. The high court is not allowed to
question the report which was a prima facie evidence the only business of the court was to proceed to
sentence you . and on conviction you will be given a minimum sentence of 3 years. Akainya v.
republic : akainya was a high court judge accused of corrupt practices ,republic v. Asafu – Adjaye .

Then came our first coup when the commission mechanism began to be used , or was put for the first
time to another kind of rules to investigate key officials of the government which has been
overthrown with a view to finding either that they acquired assets which could not be financed form
their own legitimate sources of income and in some way to legitimize the coup. after the first coup the
mechanism used entered into a different dimension. For that reason the rights of the persons who
appeared before the commission did not count because the commission mechanism itself did not
adhere to a fair trial because the commission was not a trial since everybody who appeared was as a
witness to help the commission to unearth its findings.

Since 1969, there was an additional consequence that if the commission made adverse findings
against you, then you were disqualified from participating in the political arena. Nobody wanted to
appear before the commission. However it did not change the following:

 That the commission of inquiry is not part of our judicial system, it was not a court
  It did not exercise judicial power , although for it to effectively investigate what it is expected
to do, some of the powers of investigation , are extended to a commission of enquiry

 It does not make final findings and authoritative decisions

 It finds facts and makes recommendations to the appointment authority

 The appointment authority could reject the recommendations.

Historically, when it is a sole commissioner, the person has been a lawyer and if it is a panel, then the
person is a judge. It is conducted as if it is a trial.

Out v. Kwapong, the high court in this case said that in the circumstances in which they found
themselves, they were right to remain silent.

One of the most important safeguard in our criminal trial is not to deny people the right to say
anything. In theory, the answer you give will not be used against you.

Our constitution framers agitate overtime about how to use the mechanism without some of the
acceptable consequences . our current constitutional arrangement has benefited from the provisions
of 69 and 79 and can be found in article 278 , chapter 22 of 1992 constitution. Some of the matters
were played our not so long ago , in the Ghana at 50 enquiry chaired by an appeal court judge to
investigate the worth of the people. Ghana at 50 instrument appointed a commission of enquiry .

In the constitution there is a rule of court committee : to prepare and formulate rules for procedure
before constitution of enquiry

THE PROVISIONS IN ARTICLE 278 AND 279 CAN BE SUMMARISED AS FOLLOWS

 The power to set up a committee of inquiry or commission of inquiry is vested in the

president.

There are three circumstances in which the president may set up a commission of inquiry:

 When he concludes that it is in the public interest

 If the request comes from council of state or the council of state advices the president that the
commission be appointed to investigate some matter

 Where parliament by resolution requires investigation into some matter.

Article 259 defines a commission of inquiry as including a committee of inquiry . this clarification is
rooted in our constitutional history. After the disqualification of K A Gbedemah , the main parties
PP ,and NAL (led by K A Gbedemah) . the NAL found their leader disqualified from parliament so they
were also finding people in the PP to be disqualified. They found Bossman . the court of appeal which
was at time performing the function of the supreme court , said that you were disqualified if there
were adverse findings by a commission of inquiry and not a committee of inquiry. Read Bossman v.
….in G& G.

The commission according to the constitution can be made up of a sole commissioner or two or more
persons. To be qualified to be appointed by the president,

 You must be a justice of the superior court of judicature: high court 10 years, 12 years court of
appeal , supreme court 15 years. Or formal justice. you must be of good character

 Or you must have special qualification or knowledge in the subject matter. For instance if it
involves an accounting issue , then a charted accountant will be right to be appointed

The commission of enquiry has powers of the high court in certain areas. it does not imply that the
commission is a high court. The commissioner(s) have the same constitutional immunities as the
judges have under our constitution. The obligation of the commission is to make a full and impartial
report. it must be also report in writing and also it must support the conclusions that it arises at and
the recommendations based on this conclusions with reasons. It must be noted that what happens to
the report is what the appointing authority chooses to do. The authority or president can choose to
accept it wholly, partially or even reject it. There is no finality in the report and its report does not
even bind the authority . however if adverse findings are made against to the commission of inquiry,
( in the Gbedemah case that you have no right of appeal, this what influenced Azu Crabbe in his
dissenting Judgment in Awoonor v. Gbedemah- Contribution of Awoonor Williams and gbedemah to
the Constitution making in Ghana.)

In the constitution if adverse findings air made against you, and the constitution says the adverse
finding is to be taken as a judgment of the high court, the constitution gives you a right of appeal to
the court of appeal.

Functions of the commission

Article 280.

 Make a full , faithful and impartial inquiry into any matter specified in the instrument of
appointment

 Report in writing the result of the inquiry and

  Furnish in the report the reasons leading to the conclusions sated in the report.

The report however is seen as a judgment of the high court and appeal lies to the court of appeal.

Government is required to publish a white paper within 6 months of receiving the report and if they
don’t , the president is supposed to say so and why. If it is no published within this six months ,then it
means the adverse findings cannot be used against you, because you will not have the right to appeal.
…if it does , there is 3 months within which you have to file your appeal. If though you appear before
the commission as a witness, the constitution allows you to appear with a lawyer.

The principle that Justice Archer laid down in Out and Kwapong has now been laid down in article 19
do our current Constitution 1992. – I will not open my mouth because when I open my mouth
whatever I say will be used against me.

CIVIL PROCEEDINGS INVOLVING THE STATE

The law makes it possible for actions to be brought against the republic. The law treats itself as if it is
a private individual. The law is not exactly the same. The law is now enacted in article 293 of the
Constitution and the state proceedings act 1998, Act 555, relevant is article 88 and 125 of the
constitution. The law contained here was developed at common law .

At common law the state enjoys absolute immunity from legal process. so it was not possible to bring
an action against the state or the monarch who was the representative of the state at common law.
the reasons are in two maxims:

SUBSTANTIVE: the king or the monarch can do no wrong AND PROCEDURAL: the monarch cannot be
sued in his or her own cause . this is because the person will be presiding over his court. The effect is
that the state enjoys absolute immunity from legal process at common law .

the effect for example if you entered into a contract with the state and the state breaches, you can’t
bring an action for breach of contract . the area it hurts most was during war times.

Over time, equity arms was extended to private law and not public law remedies. Though you
couldn’t sue, the administration , an administrative reverse mechanism developed known as the
petition of rights , which was based on the fiat of the lord chancellor. So the Lord Chancellor advised
the monarch whether to pay the rent in full or the rent on petition on the advice of the contractor.
This administrative redress system allowed the person with the claim against the state to petition the
state for redress the success depended on the fiat of the Lord Chancellor. So if the lord chancellor on
reading the petition puts on the petition fiat justitia –let justice be done, then it implies the state
should pay. the petitioner was known in law as suppliant(begger) and so the petitioner should know
that he is like a begger, and the lord chancellor uses fiat justitia to clear the way. One weakness of the
petition of rights process , apart from the fact that it merely say that you should be paid or makes a
declaration that you should be paid, it didn’t bind the state. And if the lord chancellor refused, the fiat
, there was no appeal. The other limitation

 The mechanism was only available for contract , not tort.

 The petition of rights was also available for the recovery of lands and chattels for quasi and
contractual liabilities.

HUMAN RIGHTS AND DUTIES

Human rights issues are to be treated at three levels:

 International level-mechanism under the umbrella of the united nations and its

 Regional arrangements –in the case of Africa under the African charter

 Domestic level

Sub-regional level-interest the international , regional and sub-regional levels are merely
complementary and the basic for human rights is at the domestic level.

In human rights discourse , we have soft and hard law –the standards obtained in those instruments
which have a binding character mainly entered into by states, mostly described as
conventions ,treaties ,charters-in the UN Charter or the African Charter on Human and Peoples Rights.
Those instruments establish binding standards and laws

The soft law usually is the first stage towards maturing a standard or norm into hard law. The most
famous soft law instrument is the Universal Declaration of Human Rights. It is referred to as
declarations , resolutions, principles, recommendations.

The state generally gives treatment to the soft law principles whilst accepting that they are bound by
the hard law. Individual society mostly do not draw the distinction. They are mostly concerned with
advocacy .

 Universal

 Inter related

 Interdependence

 Indivisible
In the human rights discourse there is no acceptance that some rights are not important than the
others. That is why the title in chapter 5 of the constitution …that answers the question why the
constitution covers the fundamental human rights.

Finally, in the human rights discourse there is some sort of generation of rights. This is a catchy
phrase.

First generational rights

Second generational rights

Historically human rights issues have been of interest to our constitutional arrangements since the
earliest beginning of our modern constitution. Starting g from the bond of 1844, it did not contain
many elaborate principles however two main rights; property and freedom of conscience and
religion. In the language of Dicey , human rights was left to the function of the regular law as the
protector of rights. To him constitutions are basically political documents which contain principles of
politics. The rights are legal matters. So if you want to protect the rights it should be by the regular
law: contract , etc. Diceys attitude is that that action is more effective than any statement or principle
stated in the constitution.

Attorney general v. Otu and kwapong..

In the 1960 constitution where we have clause 1 of article 13 , which appear to have departed from
the previous constitution which provide a long list of constitutionally protected rights. Re Akoto.
Those did not constitute a set of justiciable rights eventhough the president was required on assuming
office…we can tell that after the overthrow of the Nkrumah regime there were many who traced the
bringing of the planning of the society by the decision in the Akoto case . As the judicially clearly
showed that they will not interfere in the executive action. Since that time , the framers have ensured
that that decision will not be given again. So the turning point is the 1969 constitution. It supplement
the protection through the regular law to protection in the constitution. In doing so the framers
cannot be accused of introducing any foreign …in the constitutional arrangement.

If you examine the grounds on which chiefs are destooled , it will be found that invariably the chiefs …
so in using the constitution to struggle the human rights protection as in the regular law the
Constitution article 69.

THE 1992 CONSTIUTON

The current constitutional arrangement provide for

 Individual rights- Some provisions begin with a person. Starting with article 12 which opens
with chapter 5, we find the phrase every person in Ghana…Article 13 says no person…14 says
every person…etc.
These are individual rights.

 Group rights.: clause 3 of article 21 all citizens shall have the rights and freedoms to form or to
join political parties and to participate in political activities….

These individual and group rights relate to civil and political rights as in Article 21 and economic and
social rights as in article 24 and 26. So the constitution provisions on rights covers the full range of
rights as recognized everywhere in contemporary society.

The preamble sets the tone about rights as contained in the constitution. The preamble paragraph
identifies and also stipulates our aspirations. So at various places it talks about , universal adult
suffrage , protections of fundamental human rights and privilege. Sometimes people are talking of
human rights , civil rights as seen in America , liberties , constitutional rights. Basically whatever the
language is the reference is to those identifiers which set us apart as human beings in recognizing our
human character. The preamble sets the tone of our rights.

Two chapters 5 and 6 are devoted . Note that other rights are also scattered throughout the
constitutional document eg. The right to vote in article 42 and not in the two chapters..

The opening article of chapter 5 give us a number of messages :

(1) The fundamental human rights and freedoms enshrined in this chapter

shall be respected and upheld by the Executive, Legislature and Judiciary

and all other organs of government and its agencies and, where applicable

to them, by all natural and legal persons in Ghana, and shall be

enforceable by the Courts as provided for in this Constitution.

(2) Every person in Ghana, whatever his race, place of origin, political

opinion, colour, religion, creed or gender shall be entitled to the

fundamental human rights and freedoms of the individual contained in this

Chapter but subject to respect for the rights and freedoms of others and for

the public interest.

It carries a number of messages:

 The first is that the rights are guaranteed by the constitution and not granted by the
constitution . so we do not impose the rights on the constitution.
  The rights so guaranteed are free and dynamic and not absolute or static. Some argue that if
these rights are the attributes or the identifying rights of human beings then they have to be
absolute. This actually informs those who are against the death penalty since they see the
rights to life as absolute. Some are also in the ranks of those against abortion. So if the right to
life is absolute then the right to life to the unborn child is also absolute. So the question is
when does life begins? That informs the decision of the U.S Supreme Court in …v. Ray …where
the court found that there is no unanimity of civil right in the society…some see it that life
begins at conception. Amnesty International is one of the leading organization against the
death penalty . The criminal justice system reflect the human being and the human being is an
imperfect entity. However interesting the arguments may be article 12 makes it clear that the
philosophy of the rights under the constitution is a non-absolutist conception. We can find
that in the clear message which article 12 gives us namely-all rights in Ghana , whatever the
nature of the rights, the right should be subject to two limitations: respect for the rights of
others and respect for the public interest. Clearly our human rights regime is not founded on
absolutist thinking .

 Article 12 shows also that the rights are enforceable in the courts: Akoto said the enforcement
mechanism is not through the court but politics. Article 12 makes it clear that the rights
guaranteed under the constitution are enforceable through the courts.

 Article 12 also shows that the rights rare values or claims which we hold not only the
government but our fellow human beings as well as our artificial persons, in that perspective
one can say that government though the main abuser but not the only abuser.

 Chapter six, the title of chapter six tends to make some people think the content of that
chapter is not justiciable. They are also enforceable either in their own rights or by reason of
article 32(5) or by reason 1(2) or because of the rights in chapter six and part of treaties.

 In addition of the two limitations, clause 5 of article 33 provides 3 other limitations

 The limitations must be prescribed by law: thus what is contained in article 11

 Should be shown to be reasonable

 Necessary and free and democratic for the society. Thus the limitations in those circumstances
are valid. This cuts the whole point that no rights is absolute.

The constitution also contains some innovations. Article 26 clause 1 and 2 …( note the spelling of
practice there it is ‘se’ not ‘ce’) . On the one hand , we are entitled to enjoy any culture but practices
which dehumanize or are injurious to the future ….

There is also 27…special care must be …it says facilities shall be provided for …so the men are free by
the constitution from taking an interesting. It does not say who is to provide the facilities.
29 also says disabled persons have the right to live with their parents…shall not be subjected to ta
differential teratemetn…the law does not say who a disable person is …the American passed a
legislation in 1970 ;American Disability act…people who were disabled were intervened on behalf of
the state.

Article 30 (4) no ..shall be deprived by any other person , medical treattement by reaosnaon only of
any…a person who by reason of sickness….24 gives the sampleof the innovations that we have
introduced (3) and (4) –every worker has the right to form trade union of his hcoiece… some suggest
that provisions like thishas something to do with the industrial arrest that we have

25- every person has the right to …private schools..at its own expense …sometimes the private
universities want to benefit from GETFUND because the y argue that their students are also citizens.

25(1) says all persons shall have the right to equal education….basic education shall be free…higher
education shall be made ….

Clause 2 of article 26…

Constitution also transform some family law issues into constitutional law 22(1) a spouse
….parliament shall as soon as possible …the …to achieving …spouse shall have. Mensah v. Mensah…
parliament will explain what is meant by jointly acquired. Now when you acquire property in the
marriage then the spouses have joint interest.

The Constitution also contains some normal rights that you will find in many Constitutions.

Article 13: it says no person shall be deprived of his life internationally…whether abortion violate this
act?

14 talks about personal liberty. It guarantees to us personal liberties and gives to us personal liberties.

15 , the dignity of all persons shall be inviolable…the provision talks about the physical integrity of the
person….no person shall…so what does that mean ….this language is taken from the un something
not too sure ….or any the condition that is

A person who is convicted as a criminal …

The question arises to house maids. Thus servitude.

Article 17 …all person shall be equal…this is important to the concept of the rule of law. . this is clearly
not true as some of the rights in the Constitution are reserved for citizens… persons shall not be
discriminated in terms of race , colour religion . etc.

In article 94, among the conditions we have to qualify for parliament …clause 3 of article 17 means all
persons do not have equal treatment

Clause 4 says if the policy is ….so if there is evidence that there is imbalance it does not violate article
17
Article 18 for the first time privacy rights. Something which was mentioned in Anthony v. University of
Cape Coast

Is it general privacy rights or what are stated there?

Article 19 provides some fair trial rules

Article 20 provides first for the compulsorily acquisition of private property for …..first question is: Is
that article retrospective or prospective -thus form 7 january 1993, when the original owners have the
rights of first refusal , can they institute an action of returning the compensation or the
value…..Supreme Court has decided that article 20 is prospective. Third question is does it mean that
the development must be done by state funds ,or private partnership is possible ?

21 (a) freedom of press and expression and freedom of the press…NPP V. GBC

Freedom of assembly …NPP v. IGP. those two were the most important given by the supreme court
since 7 January 1993..afte r the NPP v. IGP case ,the government introduced the Public Order Act.

Finally the Constituton provides an enforcement machinery …one promotion involving the Electoral
Commission, CHRAJ, Media Commission , and enforcement by which are the 33(1), CHRAJ and
National Media Commission have some quasi-judicial powers

The Constitution provides some duties, it is generally said that African philosophy…Article 41 follows
mainly article 27 and 29 of the African Charter that you must pay your taxes and some other things

Article 51 says the human rights should remain intact as far as possible even in state of emergency.

Section 34 , 35 and 37 …read Kumado’s article -forgive us our trespasses-an examination of the
indemnity clause in the 1992 constitution.

We can say the framers of the Constitution have laid the foundation for our rights to be respected but
the viability of this provision depends on how we will respect the other.

Freedom of speech has never meant freedom to destroy or defame without a just cause-Otumfuo Osei
Tutu in his article Stop, Look and Listen , daily graphic Wednesday 22 may 2013.