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FORMAT OF A CASE BRIEF

 SHORT TITLE / CITATION: This deals with how you can identify the case with regards to the year decided / reported etc.
 STATEMETN OF FACTS: Those understanding to the issues and holdings.
 PROCEDURAL BACKGROUND: who sued whom and in which court and what transpired after and resulted in the case being where it is
now
 STATEMETN OF ISSUE: The point of law on which the parties were on disagreement.
 STATEMETN OF HOLDINGS: The answer/ solution the judge gave to the issues. If the issuers are three, the holdings must also be three.
 STATEMETN OF THE COURT’S REASONING : The reason for the Judge’s holding
 CRITICISM: The reaction to the judgment.

NATURE AND SCOPE OF CONSTITUTIONAL LAW

Different authors have ascribed various definitions to the term ‘constitutional law’. According to Hood et al (constitutional and administrative
law, 5th edition), constitutional law is the law relating to the constitution of the state. At the center of this definition is the term ‘constitution’.

WHAT IS A CONSTITUTION

The word constitution can be used in the broader sense and in the narrower 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. 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 law: the rules or principles which judges use / enforce

Soft Law Rules though important may not be enforced

According to Marshall, the institutions of government are put in place by the Constitution. The definition also tells us that the institutions of
government are not just created but are also given power to function. It also tells us that the rules in the Constitution regulate the various
institutions. Again the Constitution provides the rules that will govern the relationship between the institution of government and the governed.
How the citizens should relate to each other is also a matter of the constitution.

The narrow definition is that : A constitution is a document or series of documents in which the rules expressed in the broad definition are
embodied.

Sir Ivor Jennings defined a constitution as the document in which are set out the rules governing the composition, powers and methods of
operation of the main institutions of government and the general principles defining the relationship between the state and the citizens. The
emphasis on a single monolithic document is apparent. Of significance is his stress on the creative and distributive role of the constitution
concerning the powers of government. The difficulty of Jennings’ definition is that it conflicts with the widely held view that the United
Kingdom’s constitution is scattered in various documents such as the Magna Carta, Bill of Rights, Act of Settlement. etc.

Munroe, notes that a constitution is the body of rules and arrangements relating to the government of a country. This definition avoids the pitifall
of limiting itself to a particular document. However written a country’s constitution may be, not all the essential rules of governance are
comprehensively spelt out in it. It is significant in this regard that the much touted locus classicus of a written constitution in the world (the
United States Constitution) contains only broad outlines of rules and regulations. On the other hand, it fully accommodates the school of thought
that the British system ahs a constitution, since by and large, the British administration is regulated by a body of rules.

The first definition(broad) tells us about the nature of the Constitution. The Second is distinguished by two forms :

 The form to which the constitution is presented as opposed to the nature

 Puts a premium on rights

According to Marshall, the writing helps us to limit the propensity of power holders to exceed their limit

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.

In almost all countries in the world except Britain , the word constitution does not consist 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
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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 principal 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 that are
laws which organize institutions , which regulate the exercise of public powers through organs which the constitution has established.

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 means that 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.

FOREIGN BROAD CHARACTERISTICS OF ANY CONSTITUTION

1. It is a product of the constituent power : In the 1992 Constitution of Ghana, Article 1-the sovereignty of Ghana resides in the people.
2. It established the state, it’s division and system of government
3. It is the law as well as the source of all legal power. These combination makes the constitution the fundamental law Article 1(2).
4. It is made up of the rules, practices etc.-Article 11

MAJOR FEATURES OF ALL CONSTITUTIONS

1. It will contain something on the ideas, aspirations and values of the society concerned –Articles 35 and 36; 27
2. The constitution should contain some information on the structure and organization of the government and some information on the
rights and responsibilities of individuals.
3. Every constitution should contain rules for its amendments depending on the history , experiences, and aspirations

CLASSIFICATION AND FOCUS OF CONSTITUTION

Constitutions are variously classified. Among these are written and unwritten , flexible and rigid, federal and unitary, monarchical and republican
constitutions

1. RIGID AND FLEXIBLE CONSTITUTION: This is based on the rules for the amendment of the Constitution. If it provides special
rules for its amendment then it is rigid if not it is flexible. Thus, whereas flexible constitutions are relatively easier to amend, rigid
constitutions involve elaborate processes for amendment which may include a popular referendum. An example of a rigid constitution
is the 1992 Republican Constitution of Ghana. The British Constitution is a flexible Constitution.
2. MONARCHICAL AND REPUBLICAN: This is based on the attributes of the head of state and it is a choice between the
Constitutions that provide for a hereditary (monarchical) and if to be elected for which is republican Constitution. The election can be
any whether direct or indirect. A perfect example of a state with monarchical constitution is England. Queen Elizabeth is a
constitutional monarch. For republican constitutions, we have the 1992 Fourth Republican Constitution of Ghana. Nigeria also has a
republican constitution.
3. PRESIDENTIAL AND PARLIAMENTARY CONSTITUTION: This focusses our mind on the relationship between the legislature
and the executive. Where the executive is answerable and controlled by the legislature then it is parliamentary and where the executive
is independent it is presidential. In Ghana, we have a presidential constitution as our president is not answerable to the legislature and
controlled by the legislature

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

4. UNITARY AND FEDERAL CONSTITUTION: This classification is based on the centralization or devolution of constitutional
powers. Netherlands and Nigeria are unitary and federal respectively. If we have the same institution of government at the centre and
also create regional government then we have a federal government. E.g. is Nigeria. On the otherhand, when all government
arrangement are put into one single structure then we have unitary Constitution.
5. SINGLE OR MULTI-PARTY CLASSIFICATION : In 1964, Ghana was declared a one party state (CPP). This looks at the root of
freedom of association within the constitution. If this freedom is relatively unrestricted then we have a multi-party constitution and
where it is severely restricted we have single or one party Constitution.
6. DIARCHICAL CONSTITUTION: Here the legislative power of the state is distinguished between the legislature and the executive /
president. Here where parliament passes law , the president is involved but when the president passes law , no one is involved. So if the
Constitution distributes power between two or more institutions then it is diarchical.
7. WRITTEN AND UNWRITTEN CONSTITUTIONS: The emphasis of this particular classification is whether the constitution can
be found in a single monolithic document or not. All constitutions have both written and unwritten parts.
8. UNICAMERAL AND BI-CAMERAL: A constitution is unicameral if it provides for only one legislature; where it provides two
chambers for the legislature then it is bi-cameral. These chambers are usually the upper house filled on the basis of other votes and the
lower house filled on the basis of lower votes.
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SOURCES OF CONSTITUTIONAL LAW

1. Organic law legislation: these are legislations 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.
2. 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

3. CUSTOMARY LAW: Here the part which deals with the institution of state or chieftaincy is critical. “the rules of law which by custom are
applicable to particular communities in Ghana”-Article 11(3)

4. Textbooks eg. Dicey; Mensah Sarbah; J.B. Danquah etc

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.

CASES:

TUFFOUR V AG: Fred Kwasi Apaloo was the Chief Justice of the Republic of Ghana before the coming into force of the 1979 Constitution of
Ghana. Mr. Apaloo was nominated by the president to be vetted and approved by Parliament. However, Parliament rejected Mr. Apaloo’s
nomination. The original jurisdiction of the SC was invoked by Dr. Amoako Tuffour for a declaration to the effect that the purported nomination,
vetting and rejection of Mr. Fred Kwasi Apaloo was inconsistent with Article 127(8) and (9) of the 1979 Constitution 1979 (see article 144(1) of
the 1992 Constitution) and should be declared null and void. The AG raised certain preliminary objections : First, was to the jurisdiction of the
court to hear the case and whether the plaintiff had the capacity to sue. The court was also called upon to determine whether the Speaker of
Parliament could be sued in the instant case.

The critical issue however was whether the Chief Justice, pursuant to Article 127(8) and (9) should be deemed appointed as Chief Justice after the
promulgation of the 1979 Constitution without prior Presidential nomination and parliamentary vetting and approval as stipulated by Article
127(1) of the 1979 Constitution or not.

HELD:

 The court held that it had jurisdiction to proceed with the case and that the plaintiff need no special interest in the case before it can sue.
According to the court, the only requirement was that the plaintiff was a Ghanaian citizen which same was proved.
 The court however upheld the AG’s objection as to the capacity of the Speaker of Parliament being a party to the suit. The court reasoned
that the business of parliament cannot be questioned by the courts and as such once parliament was done with its business, it remained a
closed book.
 Finally, in construing the prase “shall be deemed” in article 127(8), the court opted for the natural meaning of the words in the phrase and
held that it meant a thing that is said to be something else with its attendant consequences when in fact it was not. Consequently, the court
held that the phrase “shall be deemed” in Article 127(8) of the 1979 Constitution should mean that a justice of the superior court of
judicature holding office immediately before the coming into force of the Constitution should continue in office as if he had been so
appointed. It follows from this that Justice Apaloo, being the head of the superior court of judicature before the coming into effect of the
1979 Constitution became the CJ by virtue of article 127(8) of the 1979 Constitution and there as no need for him to have been vetted by
parliament for the purpose of approving him as the CJ.

Per Sowah JSC @ 636-637 :

“ 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
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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 time.

And so we must take cognizance of the age – old fundamental principle of constitutional construction which gives effect to the intent
of the framers of this organic law. Every word has an effect. Every part must be given effect. Every part must be given effect. Perhaps
it would not be out of place to remember the injunction of St. Paul contained in his First Epistle to the Corinthians, Chapter 12, verses
14-20 (King James Version):

“For the body is not one member, but many. IF the foot shall say, because I am not the hand, I am not of the body; it is therefore not of
the body? And if the ear shall say, because I am not the eye, I am not of the body; is it therefore not of the body? If the whole body
were an eye, where were the hearing? If the whole were hearing, where were the smelling…?

But now are they many members, yet but one body.” And so a construction should be avoided which leads to absurdity. And when a
particular interpretation leads to two, shall we say “inconsistent” results, the spirit of the Constitution would demand that the more
reasonable of the two should be adhered to. We must have recourse to the Constitution as a whole.”

J. H. MENSAH V AG : After the swearing in on 7th January 1997, J.J. Rawlings decided to retain some of his ministers since they had been
already approved by the previous Parliament. The minority group leader in Parliament opposed this idea and J.H. Mensah filed an instant action
before Kwame Preprah , Finance Minister, could present the nation’s budget for a declaration that on a true and proper interpretation of the
Constitution 1992, no person can act as Minister without prior approval of parliament (vetting of each nominee).

Issues : The principal issues were –

- whether a presidential nominee for ministerial appointment requires prior approval of Parliament before he can act or hold himself out
as minister or deputy minister of state
- whether the requirement of prior approval of Parliament” under the Constitution 1992 is the consideration and vetting by Parliament
of each nominee
- whether Parliament can by the manipulation of its own procedures grant “prior approval” in a manner in which the elements of
consideration and vetting of each nominee are excluded.

Held: The Supreme Court held that a nominee for a ministerial office undoubtedly requires prior parliamentary approval. Just as an incumbent
president seeking a second term of office has to obtain approval through the ballot box and after go through a swearing-in ceremony, the previous
minister who is to be retained has to obtain prior approval as provided in Article 78(1) and 79(1) of the 1992 Constitution. The court reasoned
that if the presidential candidate of the NPP or PCP had won the elections, it would be absurd to suggest that the ministers and deputy ministers
of the previous regime should be retained to avoid creating a power vacuum.

On the further issue of whether “prior approval of parliament” necessarily implied a consideration and vetting by Parliament of each nominee, the
Court made it clear that how Parliament expressed its approval was a matter for Parliament and the Court would not interfere with the internal
processes of Parliament.

MABURY V MADISON: In 1800, the Jeffersonians took control of the executive and legislative branches of the government of the USA from
President Adams’ Federalist Party. Adams who remained President of the USA, until March 4, 1801, responded to his defeat by seeking to make
new appointments with a view to taking control of the Judiciary through the appointments. On January 20, 1801, he proposed his Secretary of
State, John Marshall , as the new Chief Justice. Marshall took his judicial office in February 1801 while continuing his position as Secretary of
State until the end of President Adam’s term. William Marbury was one of those Judges who were appointed late by President Adams and Senate
completed the confirmation process of the new appointees by March 3rd 1801. Although the commission of William Marbury as a Justice of the
peace in the District of Columbia had been signed and sealed , the Secretary of State(now Madison) had not delivered it by the time that Jefferson
took office as President of the United States of America. Jefferson had no desire to correct this error, so Marbury asked the Supreme Court for a
writ (mandamus) to compel Jefferson’s Secretary of State, Madison to hand over the Commission.

In his opinion for the Court, Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully.
Mandamus , was the appropriate remedy at common law, but the question presented was whether it was available under article 111’s grant of
original jurisdiction to the Supreme Court. In order to decide that question, Marshall was required to compare the text of Article III with section
13 of the Judiciary Act of 1789, by which congress authorized the mandamus writ. 1

1
Section 13 of the Judiciary Act of 1780 authorised the supreme court to issue writs of mandamus as part of the
court’s original jurisdiction, rather than after an appeal from a lower court. However, the constitution in Article 3
specifically provides that only a small number of cases can actually begin at the Supreme Court of which a writ of
mandamus was not included.
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Finding that the statute conflicted with the federal constitution, Marshall considered it, “the essence of judicial duty” to follow the constitution.
He concluded that “ the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that Courts, as well as other departments,
are bound by that instrument”.

IN RE AKOTO [1961] 2 GLR 523: Baffour Osei Akoto and 7 others were arrested and detained under an order made by the governor general
and signed on his behalf by the minister of the interior under section 2 of the Preventive Detention Act, 1958. The PDA was enacted by
parliament in 1958 to serve during emergency times. The applicants, after they had been refused an order for habeas corpus from the High Court ,
applied for an appeal in the Supreme Court. They contended inter alia that the PDA was inconsistent with the Constitution 1960 particularly
article 13(1), captioned ‘Declaration of Fundamental Principles’. This declaration was read by the president on his assumption of office.
Held : In dismissing the appeal, the Supreme Court held that the declaration by the President on the assumption of office, was similar to the
Coronation Oath of the Queen of England and that such a declaration did not constitute a bill of rights, creating legal obligations enforceable in a
court of law. The court said , per Sir Arku Korsah CJ @ 535 :

“In our view the declaration merely represents the goal which every President must pledge himself to attempt to achieve…The declarations
however impose on every President a moral obligation, and provide a political yardstick by which the conduct of the Head of State can
be measured by the electorate. The People’s remedy for any departure from the principles of the declaration, is through the use of the
ballot box , and not through the courts.”

CONSTITUTIONAL SUPREMACY

Constitutional supremacy means that the Constitution is supreme and that parliament can exercise its functions only within the bounds of the
Constitution. Constitutional supremacy is possible only where the constitution is written and rigid. Professor Hood Philips says that, “To say that
a Constitution is supreme is to describe its relation to the legislature’s power to alter the Constitution is either limited or non-existent.”
As a matter of fact, a constitution with constitutional supremacy not only defines the power of the legislature, it defines and establishes the
principal organs of the state. It is a source of their authority. It prescribes the manner in which their functions are to be exercised. The three
organs of the state cannot do anything beyond the constitutional limitations. If any organ does anything in violation of the constitutional
limitations then the court can declare the action null and void and of no effect and this paramount power of the court is given by the Constitution
itself. The Constitution thus has sanctity over everything in the realm.

CHARACTERISTICS OF CONSTITUTIONAL SUPREMACY

1. The Constitution is written.

2. The Constitution must be rigid.
3. There must be, in the constitution , either express or implied, a declaration that this Constitution shall be the supreme law and any
other law inconsistent with the Constitution shall be void.
4. The legislature is created by the Constitution itself and it exercises its legislative power within the bounds of the constitutional
limitations.
5. There is a distinction between constitutional law and ordinary law.

CONSTITUTIONAL SUPREMACY AND THE 1992 CONSTITUTION

By the coming into force of the 1992 Constitution, Ghana returned to constitutional rule. The 1992 Constitution is written and has a cumbersome
procedure for its amendment. It must be noted that the constitution asserts its supremacy over all institutions of the state and over all persons and
all other laws made, unlike the United Kingdom, where parliament, an institution of state is supreme.

The supremacy of the 1992 Constitution is dealt with in Articles 1(2) and 2(1). Article 1(2) enacts; “This Constitution shall be the supreme law
of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be
void.”
Article 2(1) also provides that; “A person who alleges that –

(a) An enactment or anything contained in or done, under the authority of that and any other enactment; or
(b) Any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this constitution, may bring an action in the Supreme Court for a declaration to that
effect.”

The Constitution itself establishes the various organs of government and allocates to them powers and defined scope of authority. Parliament
itself is established by the Constitution under chapter ten of the constitution, the executive under chapter 8 and the judiciary under chapter 11.
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The powers of these organs of state are all defined and must be exercised within the constitutional parameters.
The judiciary , and for that matter, the Supreme Court, has been given the responsibility, under article 2 in general to see to the enforcement of
this supreme law. By using this constitutional yardstick, the judiciary has on a number of occasions assessed the constitutionality or otherwise of
acts of the other organs of government.

THE CONSTITUTION AND PARLIAMENT

Article 2(1) provides a sharp contrast to what pertains in parliamentary supremacy where parliament cannot be questioned or their acts said to be
inconsistent with any other law. In such situations, as existing in the United Kingdom, parliament is said to have limitless legislative powers.
Article 2(1) however serves as a substantive limitation on parliament’s power to make ‘just’ any law. It must be noted that all laws made by
parliament must necessarily pass the constitutional test or else it will be void. As Date Bah JSC echoed in Adofo v Attorney General

“this constitutional provision unequivocally and authoritatively establishes a doctrine of supremacy of the constitution in the
Ghanaian jurisdiction. The doctrine implies that the supremacy of parliament is limited and that enactments by parliaments
and those of previous legislatures are subject to the supremacy of the constitution.”

The Supreme Court, also in New Patriotic Party v Attorney-General (31st December Case) Aiknis JSC (as he then was), in his opinion in
support of the majority decision was clear about legislative or parliamentary actions using the constitutional litmus test as provided under Article
1(2). He said :

“In my view, even though Parliament has the right to legislate, this right is not without limit, and the right to enact a law that
June 4 and December 31 should be declared public holidays cannot be left to linger in the realm of public policy. Such
legislation must be within the parameters of the power conferred on the legislature, and under Article 1(2) of the Constitution,
1992 any law found to be inconsistent with any provision of the Constitution (the supreme law) shall, to the extent of such
inconsistency, be void.”

In the same 31st December Case, Amua-Sekyi JSC also in support of the majority decision said :

“Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a ‘one party’ state,
or make a party leader President for life or crown him Emperor. As the fundamental or basic law the Constitution, 1992
controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies
of the State keep within their lawful bounds.”

THE CONSTITUTION AND EXECUTIVE ACTIONS

A number of executive actions have also been declared void by the Supreme Court when they were found to be inconsistent with the Constitution,
1992. This manifested itself in the case of Agyei Twum v Attorney General, where the president’s action of appointing a committee under
Article 146(6) to look into a petition brought before him under the same Article for the removal of the then Chief Justice, George Kingsley
Acquah , was said to be unconstitutional since there was no prior establishment of a prima facie case.

FACTS: Mr. Bright Akwetey, the second defendant, a lawyer and citizen of Ghana, on January 16, 2006, sent a petition, dated January, 15, 2006
to the President with a copy to the CJ. Further copies were sent to the GBA, the AG and the Judicial Secretary. The petition sought the removal of
the CJ on the grounds of judicial misconduct and abuse of power. On March 9, 2006, the President’s press secretary issued a public statement that
in compliance with Article 146 of the Constitution, the President was setting up a committee to inquire into the petition. Subsequently, the
plaintiff complained that the appointment of the committee by the President to inquire into the petition was unwarranted and unconstitutional
since inter alia no prima facie case has been established against the CJ as required by Article 146(3) and (4) which mandates the establishment of
a prima facie case prior to the setting up of a committee to investigate complaints in a petition against a justice of the Superior Court of which the
CJ was one.

Per Date Bah JSC “…the CJ must be given the benefit of a prior determination of whether a prima facie case has been established against him
before the President might lawfully establish a committee to consider a petition for his removal. Where there was substance in any allegation
levelled against a CJ in a petition, the requirement for prima facie determination would not stop the process of holding the CJ to account. The
question of the prior prima facie determination and the subsequent appointment of the committee were to be made by the President in
consultation with the Council of State. It would be prudent for the Council of state to evolve a convention by virtue of which the advice of a
reputable independent lawyer would be sought as part of the consultative process with the president.”

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.
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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 -DUALISM

A monist country depends on the constitution. This theory developed during the middle ages in Europe. The philosophy is that there is one legal
order, at the apex is the natural law which is itself a reflection of the divine. Below the natural law are the national or municipal laws and the
international law seen as part of the natural law. If a municipal law rule conflicts with the international law, the international law rule prevails if
there is a conflict between the international law and the law of a particular country, then the law of the particular country must give way.

For the dualist, law is an expression of a sovereign way. Municipal law is the expression of the will of the subject of a country whilst the
international law is manifestation of the will of the state. Hence the two systems operate in separate parallel streams.

The argument is that international law will have the effect on domestic spheres only if it is converted to domestic law. This will take the form of
the act of parliament etc. whether a country follows a monists or dualists it is a function of the constitution. If the country is a monist, the moment
it ratifies international treaties it becomes part of their laws but that does not happen in dualists.

Per Lord Denning in Blackburn v AG “ Negotiations are still in progress for us to join the Common Market. No agreement has been reached.
No treaty has been signed, it is elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are
embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us.” For full facts see ‘separation of powers.’

Art. 75 of our constitution makes Ghana a dualist nation. Article 75(2) enacts that a treaty, agreement or convention executed by or under the
authority of the President shall be subject to ratification by (a) Act of Parliament; or (b) a resolution of Parliament supported by the votes of
more than one-half of all the members of Parliament

The international body will not accept argument based on the domestic body. For us the international law principle can only apply if it is ratified
as in article 75 of our constitution.

If it is a monist country, the moment international law is settled on it becomes part of their law. If it is dualist, it needs to be ratified and in our
case it will be from clause 2 of Article 75.

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.

Customary international law is the practice individual states are under no obligation to follow. For the dualist, customary international law will be
part of their domestic law if it is incorporated in their judicial decisions-Katz v. Armon; Rep v. Director of Prisons 1973,GLR 480; Blackburn
v. Attorney General

At times part of the treaty is referred to as self-executing provision-thus a provision in a treaty which seeks to provide the benefit directed in the
citizens without any further action

Although Ghana is said by virtue of Article 75 of the 1992 Constitution to be a dualist state, in the case of NPP v. A-G where the issues in
contention were, inter alia, whether or not the UN Declaration of Human Rights and the African Charter on Human and Peoples Rights were
binding on state signatories including Ghana and whether or not Ghanaian law can overrule the provisions of the said international instruments,
Bamford –Addo JSC discarded the A-G’s argument that article 37(3) of the Constitution 1992 which states that the State shall be guided by
international human rights instruments which recognize and apply particular categories of human rights to development processes, was only
applicable when the relevant international instruments have been ratified by the State. According to the learned judge, the dictates of a
Constitution cannot be superseded by any municipal law and therefore whether or not the said instruments had been ratified by Ghana under
Article 75, the provisions of Article 37(3) must be applied by the courts in their interpretative duties. Her ruling therefore presupposes that Ghana
does not need to ratify all international treaties, agreements and conventions before they become binding so long as Ghana is a state-signatory to
those instrument which are self-executing.

Consequences of dualism include the fact that domestic law cannot be used to explain why a country which has ratified but not transformed
international law into municipal law if it does not fulfil its international obligations ( Article 27 of the Vienna Convention on the Law of
Treatise). Again, international law cannot be used to explain a position in a municipal court if the provisions in an international treaty are self-
executing , they become immediately binding, transformation or no transformation, and thus circumventing the process.
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The Republic v High Court (Comm. Div.) Accra Ex Parte ; AG ( NML Capital Ltd & The Republic of Argentina Interested parties) ;
Liberetad Case. Per Date –Bah JSC “Before entering into the full details of the facts of this case, it would thus be worth our while to examine
this question of the relationship between international law and municipal law in Ghana. Ghanaian law on this basic question is no different from
the usual position of commonwealth common law jurisdictions. It is that customary international law is part of Ghanaian law; incorporated by the
weight of common law case law…In Chung Chi Cheung v The King [1939] AC 160, the Judicial Committee of the Privy Council, speaking
through Lord Atkin, stated this common law position as follows (at p.168): “The courts acknowledge the existence of a body of rules which
nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as
incorporated into the domestic law , so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.” However,
treaties, even when the particular treaty has been ratified by Parliament, do not alter municipal law until they are incorporated into Ghanaian law
by appropriate legislation.
This position of the law is usually referred to as reflecting the “dualist” school of thought, as distinct from the monist approach followed by some
other States. Under a dualist approach, orders of the Tribunal cannot be binding on Ghanaian courts, in the absence of legislation making the
orders binding on Ghanaian courts. In any case, the orders of the Tribunal given subsequent to the orders and ruling of the High Court cannot be a
valid basis for the grant of certiorari according to the authorities governing the grant of hat remedy in this jurisdiction.”

Amon v Katz : It was held that Article 37 of the Vienna Convention on Diplomatic Relations grants immunity from jurisdiction to members of
families of diplomatic agents (article 31 grans immunity to the diplomatic agent himself). No one can waive such immunity except the sending
state per article 32(1). Thus, since Ghana is a party to the convention and same has been ratified and incorporated in her laws, the court did not
have jurisdiction to hear the matter. The writ was consequently set aside.

The Republic v. Director of Prisons , Ex Parte Allotey : Extradition proceedings were instituted against a Ghanaian and his Afro-American
wife who had sought asylum in Ghana for charges of fraud by false pretences. The crime should be punishable by both asylum state and
requesting state. It was held that the Ghanaian courts had no power to invoke criminal sanctions against Ghanaians who committed same offence
abroad except with respect to property in which the state had an interest.

Blackburn v A-G : Declaration that by signing the Treaty of Rome , the Crown would be surrendering part of the sovereignty of parliament and
since it is an irreversible action, it will be in breach of the law that previous parliaments cannot bind their successors; regulations of ECC will
become automatically binding, courts will have to follow the decisions of the European Court.

Held: No treaty has been signed but even if it has, the courts cannot take notice of it until it’s been embodied in laws enacted by parliament.
Treaty making power rests in the crown and not the courts; hence the court cannot challenge it. Legal theory does not always march alongside
political reality. Although in theory, no parliament can bind another, and that any parliament can reverse what another has done, the courts have
to wait for such a day to come before making a pronouncement.

COUP D’ETAT, REVOLUTION AND CONSEQUENCES

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, new arrangement were put in place to 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:

a. Continuity description/ theory: This tells us that the revolutions have no effect at all. There are categories of unconstitutional acts
which involve modification of the law in force without brining birth to a new legal system (mere coup detat).
b. Discontinuity Theory : This theory says that the Coup d’état destroys completely the pre-existing constitution. Thus, every illegal
change in the constitution of a state is a revolution and that a revolution overturns the entire legal order, relacing it with a new system.
The foremost proponent of this theory is Hans Kelsen. Proponents however know that in almost all cases, the content of the post-
revolution legal system is similar, if not identical, to the pre-revolution legal system. Both the general rules of law (especially private
law) and the particular rights ( contractual, real, remedial) acquired under those rules are likely to survive i.e. “the same” rules and
rights will be enforced after as before the revolution.
In order for the constitution to be discontinued, all three of the following rules prescribed in the constitution must be affected :
- Rules of succession to office
- Rules of competence : this tells us what you do in what position (government distribution of powers as between offices and states)
- Rules of succession to rules : this deals with how the law is made or changed (rules governing the amendment , suspension or
replacement of rules of each of three categories)

Article 3(4) of the 1992 Constitution, charge citizens to defend the constitution and to do all in their power to restore it when it’s been suspended,
overthrown or abrogated. It suggests therefore that the framers of the constitution did not support the Kelsen’s discontinuity theory but rather
were supporters of the continuity theory where the effect of the coup detat on the constitution is partial. In Sallah v AG for instance the judges
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treated the A-G’s arguments based on Kelsen’s discontinuity theory as being foreign and not applicable to the Ghanaian legal system.
According to the Austrian Jurist , Hans Kelsen, the judge can proceed back, via a succession of rules of succession of rules, to a historically first
constitution-the Grundnorm-which emerged without legal authority and can be regarded as the ultimate and highest posited source of validity of
the existing constitution and hence the whole legal system. A rule of succession to office cannot be violated without violating some rules of
succession of rules.

Doctrine of Necessity

It describes the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. Hence the
SC of Nigeria found that the 1966 military takeover of government was out of necessity and not a revolution.

Sallah v AG : the effect of the 1966 coup was only partial on the constitution. All laws did not derive their validity from the proclamation as
argued by the A-G. Hence, since the GNTC was set up by an EI in 1961, and where Sallah’s position existed before the NLC proclamation, his
position did not derive its validity from that proclamation. Therefore the presidential commission was wrong in dismissing him. Anin JA
dissented.

Lakanmi : The military takeover in 1966 was not a coup d’etat/revolution but a temporary transfer of power –an interim government for the
purposes of maintain law and order. Hence only parts of the constitution were set aside based on the doctrine of necessity. The 1963 Constitution
therefore was still valid and all rules obtained their validity from it. Since the constitution was still valid, any laws which contravened it were
unconstitutional and thus void as it was the supreme law of the land.
Uganda v Commissioner of Prisons Ex Parte Matovu : In April 1966, the Ugandan Parliament passed a resolution repealing the 1962
Constitution and replacing it with another. Although this was not the prescribed mode of changing the constitution, the High Court ruled that the
1966 Constitution was valid. Per Udo Udoma CJ, ‘..the act of abolishing the 1962 Constitution and replacing it with the 1966 constitution was a
revolution because it occurred contrary to the principles of legitimacy. The Prime Minister did not follow the procedure prescribed in the 1962
Constitution for the removal of the president and his vice. The 1966 Constitution therefore became the legally valid and supreme law of Uganda
and the 1962 Constitution, having been victoriously abolished, ceased to exist and no longer formed part of Ugandan law. The detention order
issued under the 1966 constitution was therefore valid and the court had no authority to inquire into its validity or otherwise as it was an act of the
legislature.

Finnis might not have considered this a revolution because only the rules of succession to office were changed unconstitutionally. Kelsen would
however have considered it a revolution because of the mere unprescribed nature of the change.

Madzimbamuto v Lardner -Burke

CONSTITUTIONALISM

Constitutionalism is the appreciation of the constitution. The concept is also described as constitutional rule; constitutional government etc.
Constitutional government means more according to the terms of the constitution. That is they are not the same according to the provisions of the
constitution.

It is also pointed out that constitutional democracy is not the same as democracy as Wheare states. To him if democracy means no more than
universal suffrage or equality of conditions then it does not follow constitutional government. It is only when democracy means liberty as well as
equality that it can be expected as constitutional government. If democratic government is to be constitutional government it must preserve
liberty.

What then is constitutionalism?

Constitutionalism means government according to predetermined rules. These rules should not only be predetermined but they should also
restrain or limit governmental powers.

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:

1. Institutional breaks/ Limitations-Art.78(1) : These are limitations that are placed on the exercise of an institution’s powers or
by one institution serving as a limitation on yet another institution’s power. This manifests itself through the principles of
separation of powers and checks and balances. A perfect example is that under Article 2(a) and (b) of the 1992 Constitution,
the Judiciary is vested with the power of Judicial Review and with this power , the Judiciary can declare null and void any action
by the Executive or the Legislature which is found to be inconsistent with any provision of the Constitution.
Another example is that Parliament is given power to vet and approve ministerial appointees made by the President and this
serves as a check on the powers of the Executive.-Article 78. The Executive President , likewise, has the power of veto, and with
this, bills made by Parliament must be signed by the President before they can become law. This also serves as one check on
Parliament.
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On the institution of chieftaincy also, jurisdiction in chieftaincy cause or matters are dealt with by the various houses of chiefs
and the SC. The High Court has no such jurisdiction as Hayfron Benjamin J as he then was purported to hold in Ex Parte Adu
Gyamfi.
2. Procedural breaks- art 106(1)- the power of parliament to make laws shall be exercised by bills passed by parliament and
assented to by the president, 106(3)-a bill affecting the institution of chieftaincy shall not be introduced in parliament without
prior reference to the National House of Chiefs.-Ware v Ofori Atta
The constitution also lays down the various procedures the president and other appointing authorities must go through before
appointments of certain public officers are made. For example, the president can only appoint someone as minister only when
the person has had a prior approval of parliament. This manifested itself in the case of J.H. Mensah v Attorney General
whereby by a unanimous decision, the Supreme Court held that for any minister to be appointed, whether new or retained, he or
she must necessarily go through parliamentary vetting approval.
3. Substantive limitations:
These are real or actual limitations that are placed on the exercise of legal powers by substantive laws of the state. They are
normally in the form of prohibitions but could also be couched in the form of mandatory injunctions. Under Articles 3(1)-
parliament shall have no power to enact a law establishing a one party state.,92(2),58(1)-the executive authority shall vest in the
president and shall be exercised in accordance with the provisions of this constitution.,78(2)-the president shall appoint such
number of ministers of state as may be necessary for the efficient running of the state. Article 1(2) also enacts that “the
constitution shall be the supreme law of Ghana and any other law that is found to be inconsistent with any provision of
this constitution shall, to the extent of the inconsistency be void”. Article 1(2) is a clear example of a substantive limitation
and with this provision , not even the law making body, Parliament, can make laws which are inconsistent with the constitution
and will stand.
NPP v AG (1993-94) 2 GLR 35 highlights on this. The facts are that , on 31 December 1981, the Government of Ghana, duly
elected under the Constitution , 1979 was overthrown in a coup d’ etat. Subsequently, the military regime which took over the
reins of government, the Provisional National Defence Council, 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’ etat 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. In giving judgment for the plaintiff, Aikins JSC , in his concurring opinion held :
Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a “one-party
state, or make a party leader President for life or crown him emperor. As the fundamental or basic law the Constitution,
1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that
all agencies of the State keep within their lawful bounds.
He said further;
In my view, even though Parliament has the right to legislate, this right is not without a limit, and the right to enact a law
that 4 June and 31 December should be declared public holidays cannot be left to linger in the realm of public policy.
Such legislation must be within the parameters of the power conferred on the legislature, and under Article 1(2) of the
Constitution, 1992 any law found to be inconsistent with any provision of the Constitution shall to the extent of such
inconsistency, be void. This constitutional criterion is what is used to test the validity or otherwise of all statutes or laws,
and it is against this criterion that PNDCL 220 must be tested.

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.

OTHER AUTHORITIES :

WARE V OFORI ATTA : The plaintiff was the Gyasihene of Ejisu. The order which gave rise to this action was made by the Minister of Local
Government under Ejisu Stool Property Order made under Statute Law, Act 1957. The plaintiff averred that the Act was passed contrary to the
Ghana Constitutional Order-in-Council which laid down procedures before a bill could be declared to have been passed by Speaker of the House
of Assembly. The Order-in-Council provided that where the bill affected the traditional functions or privileges of a chief , the Speaker was
required to refer it to the House of Chiefs of the Region before the second reading of the bill could be moved in the House of Assembly at least
three months after. This was not followed and the Governor gave his royal assent to it. Eight months later, the minister of Local government
authorized another to take possession of the stool property pertaining to Ejisu stool. The plaintiff claimed that the Statute Law ( Amendment)
(No. 2) Act 1957 was invalid as it contravened the Order in Council.

HOLDING : The court per Murphy J held that the act directly affects the traditional functions of a Chief and that the procedure laid down in
section 35 of the Constitutional Order in Council mandating it to be referred to the house of chief ought to have been followed. Since the
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procedure was not followed, the Act was invalid and it follows therefore that the Order which was made by the Minister under the Act is also
invalid.

See Article 106(3) of the 1992 Constitution “A bill affecting the institution of chieftaincy shall not be introduced in Parliament without prior
reference to the National House of Chiefs.”

Shalabi v A-G : The plaintiffs were Lebanese born in the Gold Coast and hence British subjects. They obtained Ghanaian passports in 1968 by
virtue of the Ghana Nationality Decree, 1967 (NLCD 191) when they renounced their British nationality. In 1970, the Ghanaian Business
(Promotion Act, 1970 (Act 334) was passed which sought to restrict the participation of foreigners in certain sectors of the economy. The
plaintiff therefore sought to confirm their Ghanaian citizenship in the light of NLCD 333. The Attorney General argued inter alia that the NLC,
being the sovereign body of the land could do whatever it liked including depriving persons of their citizenship, and that by NLCD 333,
paragraph 1 of NLCD 191 had been obliterated by retrospective substitution and consequently every person who acquired citizenship under
NLCD 191 ought to be deemed never to have acquired such citizenship.

Issues :

 Whether NLC as a sovereign body could legislate to take citizenship away from persons who had acquired citizenship under a different
statute
 Whether NLCD 333 could obliterate NLCD 191 by retrospective substitution

HELD:

 The NLC as a constitutional interim government has as its object according to the Proclamation to uphold the suspended constitution,
excepting for as it had to derogate from it under the doctrine of necessity, thus re-establishing the rule of law and other democratic
principles
 By the declaration, 1966, the NLC was established to provide for the “proper administration of the country” and this did not include
depriving Ghanaians of their basic right of citizenship.
 Citizenship once conferred can be lost through processes specifically stated instrument conferring that citizenship and not by ambiguity.
 It was impossible for NLCD 191 to have been amended by NLCD 333 unless NLCD 191 was in existence before NLCD 333. That no one
can substitute one thing for a thing which has never existed. The plaintiffs therefore acquired citizenship under NLCD 191 and NLCD 333
did not specifically divest those who had so acquired citizenship of their rights. By Article 5 and 6 of the 1969 Constitution, the plaintiff
remained Ghanaian citizens, and the new definition of citizen in the Ghana Nationality Act, 1971 (Act 361) is void and of no effect in so
far as it seeks to restrict citizenship within narrower limits than those prescribed in the Constitution.

Per Hayfron Benjamin JA(As he then was) “ I am of the view that the doctrine of legislative omnipotence is a logical abstraction and ought not
be applied to practical issues. I hold that the National Liberation Council was an interim government for the re-establishment of the rule of law
and other principles necessary for the proper functioning of democracy. It could therefore not purport to deprive citizens of their right of
citizenry. The backdating of NLCD 333 to take effect on the same day as NLCD 191 did not have the effect of depriving those who had acquired
citizenship under NLCD 191 of that citizenship. Rights of citizenship are not to be deprived by ambiguity or inference. NLCD 333 should as such
have been explicit because citizenship once conferred , can only be lost by processes specifically stated.”

NPP V IGP : The plaintiffs sought a declaration that sections 7,8, 12(c) and 13 of the Public Order Decree, 1972 (NRCD 68) were
unconstitutional. These sections of NRCD 68 required a prior police permit before holding any public meeting and it was an offence to hold such
meetings without police permission. In the face of this, the plaintiff contended that the sections in question were inconsistent with the
constitutionality guaranteed right of assembly and demonstration. According to the plaintiff, these Sections invested an unfettered discretion in
the police that the Constitution does not contemplate. To accept them as law would render the freedom of assembly illusory. The defendant
countered that the said provisions were a reasonable limitation on the right of assembly as envisaged by Article 21(4) of the 1992 Constitution.

HELD: The Supreme Court, composed of seven justices reached the unanimous conclusion that sections 7, 8, 12 and 13 of the Public Order
Decree were in contravention of Article 21(1)(d) of the 1992 Constitution and were therefore unenforceable. It was the expressed view of the
Court that, having regard to the spirit of the Constitution, which could be gleaned from the Directive Principles of State Policy, especially the
political objectives, and, taking cognizance also of the emerging trend on the international scene, one would frown at any suggestion that a permit
is required to assemble, go on procession or demonstration.

Justice Aikins echoed as follows “Any law that extends to give authority to any person or persons to prohibit or grant a permit to other persons to
take part in procession and demonstrations curtails the freedom of such persons and cannot be said to be justifiable in terms of the spirit of the
Constitution, 1992”. Justice Hayfron-Benjamin also observed that “an unfettered discretion is to place those who assert their constitutional right
so f assembly, procession and the demonstration at the mercy of the police.” Relying further on the framers intent, Justice Hayfron-Benjamin
held tht the Constitution was “intended that the citizens of this country should enjoy the fullest measure of responsible Human and Civil Rights.
Therefore any law which seeks to abridge these Rights and Freedoms must be struck down as unconstitutional. The requirement of a permit or
licence is one of such abridgment of the constitutional right.”
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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.

ARTICLE : KUMADO- CONSTITUTIONALISM, CIVIL LIBERTIES AND DEVELOPMENT: A CASE STUDY OF GHANA SINCE
INDEPENDENCE [UGLJ]

“A constant state of confusion is the relationship of constitutionalism with democracy. Pof. 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 puts ‘’ … 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.

It involves the idea that government must be carried out according to pre-determined rules .

which at the same time restrain governmental activity. This idea of restraints developed from medieval notions of natural law superior to
any human laws and the Christian doctrine of personality which by emphasizing the worth of the individual opposed any despotic exercise of
political authority.

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
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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.”…

“The key concern of constitutionalism is the division of governmental power in such a way that there is an effective restrain on the arbitrariness
inherent in power so that the individual society will be the beneficiary. Such a system of restrain may be embodied partly in a written document
and partly left to be enforced by tradition. It is important that these restrain be legal and the government restrain be under law and the restraints
be enforced under an independent body of arbiters in the event of a claim by an individual of their violation.

Separation of powers , rule of law and judicial review just but a few are all encompassed in constitutionalism.”

SEPARATION OF POWERS

This is the concept that embodies ideas reflecting human history. Monopoly of power takes the totality of power among several players. The
concept of separation of powers is a body of ideas based on our collective human experience as long as our thinking objective is liberty ,
freedom.

This is a body of ideas which addresses the relationship among governance.

DIFFICULTIES OR PROBLEMS

1. State the need to differentiate the legislative , judiciary and executive functions
2. Legal incompatibility of multiple officer holders. For some it means the same person should not belong to more than one of the three
branches.
3. Isolation of the different opinion from each other
4. It means checks and balances to some people
OBJECTIVES
 Avoidance of tyranny or as Montesquieu puts it political liberty
 Efficiency , thus to promote efficiency in government
 Good or just laws. Thus those who make the laws will make good laws if it affects them, vice versa. It ensures that those who make
the laws make good laws and those who interpret them are not partial.

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 labour 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. “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. When her Ministers negotiate and sign a treaty, even a treaty of such paramount importance as this proposed one, they
act on behalf of the country as a whole. They exercise the prerogative of the Crown. Their action in so doing cannot be challenged or questioned
in these courts”

Per Salmon LJ “Whilst I recognize the undoubted sincerity of Mr Blackburn’s views, I depreciate litigation the purpose of which is to influence
political decisions. Such decisions have nothing to do with these courts. These courts are concerned only with the effect of such decisions if and
when they have been implemented by legislation. Nor have the courts any power to interfere with the treaty-making power of the Sovereign. As
to Parliament, in the present state of the law, it can enact, amend and repeal any legislation it pleases. The sole power of the courts is to decide
and enforce what is the law and not what it should be-now, or in the future.”

Per Stamp LJ “…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…”

John Lock in The Second Treaties on Civil Government wrote : “The three organs of state must not get into one hand. It may be too great a
temptation to human frailty, apt to grasp at power, for the same persons who have the power making laws, to have also in their hands the power to
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execute them , whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to
their own private advantage”. Locke’s separation of powers seems to deal with regulating the exercise of legislative and executive power.
Locke’s statement shows no recognition of the judiciary’s role in the curtailment of human frailty of grasping power ie interpreting both
executive and legislative acts.

The second leg of Locke’s treatise, that is, equality before the law (not allowing exemption from the law) seems similar to Dicey’s rule of law, by
ensuring that makers of the law are themselves amenable to it.

John Locke was of the view that the executive and the legislative powers should be separate for the sake of liberty. Liberty suffers when the same
human being makes the law and executed them. He asserted that in practice it does not take long to make laws and the lawmakers should meet
for a short time and disperse. This was to see that the law will be good or just. For him the legislature is the supreme power. He also recognized
the executive: the one which interprets the law and adjudicate upon disputes and the executive responsible for the maintenance of external
relations.

Montesquieu in his book “The Spirit of Laws’’ asserted that concentrated power is dangerous and leads to despotism of government. As a check
against this danger, he suggested to separate the functions of executive, legislature and the judiciary so that one may operate as a balance against
the other. Montesquieu’s view is that concentration of legislative, executive and judicial functions either in one single person or a body of persons
results in abuse of authority and such an organization becomes tyrannical. He argued that the three organs of government should be so organized
that each should be entrusted to different persons and each should perform distinct functions within the sphere of power assigned to it.
Montesquieu, unlike Locke , recognized the role of the judiciary as an organ of government, having a separate function. There is nothing to
indicate that Montesquieu, apart form separation of functions, intended separation of personnel as well. Unlike Locke , whose emphasis was on
separation of personnel, Montesquieu was more inclined towards institutional separation.

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
 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.
 That one organ of government should not exercise the functions of another for e.g. That ministers should not have legislative powers

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.

Check the constitution article75

In essence , separation of powers is not to structure the government in any particular way but an idea to prevent rivalry, competition and conflict
for the ultimate benefit of the liberty of the people.

The Supreme Court in Marbury v Madison, assumed the power to declare acts of the legislature and executive to be unconstitutional should
they conflict with the constitution. Even in the US, there is not a complete separation of powers if it means each power can be exercised in
isolation from the others. It however provides a basis for checks and balances among the various arms of government .
In France, the ordinary courts have no jurisdiction to review the legality of acts of the legislature or executive in furtherance of the doctrine of
separation of powers. The Conseil d’Etat exercises jurisdiction over administrative agencies and officials. The Conseil Constitutionnel , a recent
creation , reviews the constitutionality of new laws. Complete separation thus is neither possible in theory or practice.
In Blackburn v AG it was held that treaty making power of England rests in the Crown , the courts have no power to question it.

From the foregoing, separation of powers may be seen in two senses :

 classical / strict form

 flexible 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 personnel separation.
The flexible form is a contemporary notion of separation of powers. 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 maximized.
 PAA JOY

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 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.

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.

HOW THE CONCEPT DOES LOOKS LIKE IN ACTUAL PRACTICE?

The fact that separate articles deal with the various organs makes it to be construed that they practice them. The more flexible conception was
provided by Justice Jackson in the Steel Seizure case

IMPLEMENTATION OF THE CONCEPT IN OUR CURRENT CONSTITUTION

The 1992 Constitution reflects a flexible notion of the principles of separation of powers because it contains the broad principle of separation of
powers by establishing various organs that are separate. Under the 1992 Constitution, each of the three primary constitutional functions are vested
each, in a distinct organ :

1. Legislative power vested in Parliament comprising 275 members-Article 93(2) See Chapter 10
2. Executive power vested in the president assisted by cabinet –Article 58(1) See Chapter 8
3. Judicial power vested in the superior and other inferior courts –Article 125(3). See Chapter 11

There are various provisions in the constitution that make room for checks and balances. The various organs are separated, but the constitution
establishes one broad framework of government and in that broad framework of government, there is cooperation, collaboration, checks, and
oversight. There is an approval system which serves as oversight-where one organ must approve before the other can undertake or embark on its
duties or functions. There are therefore all kinds of collateral or reciprocal checks and balances that are designed to instill some degree of
flexibility and avoid rigidity. This flexibility is designed to ensure that, the government functions as a collective entity. There are various
provisions in the constitution that make use of the principle of checks and balances.

Relationship between Executive and Legislature

The president is assisted in his functions by a cabinet. 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.

The President and Legislature

The President is not part of parliament. He is expected to deliver a Sessional Address at the beginning of a session and on the dissolution of
parliament (Article 67). However, some members of his cabinet are also members of parliament. Bills are usually initiated by the executive.
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 refuses to assent to a bill passed by Parliament, Parliament may by 2/3 majority vote to overturn the veto. In this case, the President
shall assent (Article 106 (10)).

Legislative Control of the Executive

a. The president has the prerogative of nominating persons as ministers. However, nominees are subject to vetting and approval by
parliament. (Article 78(1)). See Mensah v Ag
b. The Executive has the power to initiate all fiscal policies, but only Parliament has power to authorize the use of money and raising of
taxes (Article 174 and 178)
c. The Executive negotiates and enter into treaties on behalf of the country. Trreaties and loan agreements entered into by the Executive
requires Parliamentary ratification, (Article 75 (treaty), Article 181 (loans)).
d. Parliament has the power to begin impeachment proceedings against the President on stated grounds in Article 69. Parliament can also
vote to censure Ministers for misconduct (Article 82)
 PAA JOY

The Judiciary and the Legislature :

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. Though the two are separate, the judiciary is dependent on the legislature for the approval of
appointments to the superior courts including the Chief Justice. Judges of the Supreme Court are appointed by the President and vetted by
parliament (Article 144). Even though the constitution guarantees the financial independence of the judiciary, Parliament controls the release of
moneys to the judiciary.

The judiciary has power to declare an Act of Parliament unconstitutional (Article 2). Also under the principle of implied repeal, the judiciary may
amend or repeal an existing law which is inconsistent with a latter one.

Judiciary and Executive:

There is separation of both personnel and functions, though with regards to functions, there are administrative tribunals and quasi-judicial bodies
that exercise some form of judicial power, eg. CHRAJ , Commission of Enquiry.

In spite of its financial independence, the executive controls the purse of the Judiciary. Judges of the Superior Courts are appointed by the
President. Judges may also be removed on stated grounds by the President acting upon a recommendation of a committee (Article 146). The
President also exercises the prerogative of mercy which is the highest form of judicial decision (Article 72).

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.”

Also, Kpegah JSC, in the same case gave an intelligent account of the history and on how the constitution reflects on the doctrine of separation of
power. He said;

“In 1960, Ghana had a Constitution, 1960 which, for the first time, introduced the American concept of the doctrine of separation of
powers as an important doctrinal underpinning of our Constitution—the separation of powers between the executive, the legislature and
the judiciary. This was also to be the case with the Second Republican Constitution, 1969; although this Constitution provided for a
ceremonial President in favour of a Prime Minister. In the case of the Third Republican Constitution, which was introduced in 1979, the
presidential system of government was reintroduced with the same concept of separation of powers underpinning it. In the Constitution,
1992 which is the fourth in our history and under which we currently operate, the presidential system of government was retained and
the framers consciously and meticulously allocated state authority among the executive, the legislature and the judiciary. The doctrine of
the separation of powers is indicated in the discrete manner each branch of government is dealt with in chapters eight, ten and eleven of
the Constitution, 1992.

This principle, as was pointed out in the Memorandum to the Draft Proposals for the 1979 Constitution of Ghana, which is still relevant,
requires that the executive, the legislative and the judicial powers of state should be assigned to separate institutions and organs with
each having power to check the power of the others in order to ensure that they do not encroach on one another's sphere of competence.
Such an arrangement is necessary so that, in the words of President Woodrow Wilson, there can be "effective check on power by
power."

In the same Memorandum on the 1979 Constitution at para 49, p 19, it was pointed out as follows:

". . . the principle does not require that the executive, legislative and judicial organs of State should operate in complete isolation from,
or open conflict with, one another. On the contrary, they are expected to work in harmony to the end that the various functions of
government will complement each other."

So a careful reading of our Constitution, 1992 reveals that the separation is not intended to be airtight; very often, there is overlapping of
powers as an aspect of check and balances. For example, the power of the Supreme Court to strike down a legislation which is
inconsistent with any provision of the Constitution; the power of the President to appoint the members of the superior courts, in some
cases, with approval of Parliament. So also the procedure for the impeachment of the President and his vice: a combination of co-
operation between the judiciary and the legislature. As to the jurisprudential implications or derivatives of the doctrine of the
separation of powers, I hope to deal with it later
 PAA JOY

The Ghanaian Constitution, 1992 has been influenced not only by our past experiences but also by thinkers like Montesquieu, in the
allocation of state power to the three branches of government—the executive, the legislature and the judiciary. The adoption of the
concept of separation of powers by the framers of our Constitution, 1992 aims not only at the prevention of the exercise of arbitrary
power with its attendant tyranny, but also aims at the promotion of efficiency and avoidance of friction or conflict between the various
arms of government. See the case of Tuffuor v Attorney-General (supra) where the Court of Appeal sitting as the Supreme Court
declined jurisdiction to examine proceedings in Parliament and consequently struck out the Speaker of Parliament as the first defendant.
And in the case of Youngstown Sheet & Tube Co v Sawyer (The Steel Seizure Case), 343 US 579 at 635 (1952), Justice Jackson said of the
concept of the separation of powers:

"While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers
into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

DISADVANTAGES

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.

Maclvet feels that this concept of 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.

However, 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.

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

ACCORDING TO KUMADO, SEPARATION OF POWERS IS A CONCEPT AND NOT A DOCTRINE AS STATED BY SOME
PEOPLE.

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 : whatever overlap there may be under constitutions on the Westminster model between the exercise
of executive and legislative powers , the separation between the exercise 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.

TUFFOUR V. AG: Chief justice Apalloo was appointed by the President as Chief Justice before the coming into force of the constitution ,
1979. During that time the highest court of the land was the Court of Appeal. Upon the coming into force of the Constitution 1979, Justice
Apalloo‘s appointment as Chief Justice and President of the Superior Court was submitted to the legislature where Apalloo was subsequently
 PAA JOY

called to be vetted by the Parliament Committee. Apalloo was subsequently denied appointment. The plaintiff Dr. Amoako Tuffour filed a
petition that the Chief Justice should remain. The respondent in the case raised a preliminary objection as to the competency of the Speaker as the
first defendant where the court held that:

It could not and cannot inquire into how Parliament went about its business. It went on further that by the provisions of the Constitution, the
freedom of speech, debate and proceedings of Parliament should not be questioned in any court or place outside parliament and that in so far as
Parliament had acted by virtue of the powers conferred upon it by the provisions of article 9(1), its actions within parliament were a closed book
and the speaker need not be a party to the case. Articles 96,97 and 103 of the constitution.

EX PARTE BANNERMAN: On 18 January 1967, the National Liberation Council (NLC) in the exercise of the powers conferred on it by
section 1 of the commissions of Enquiry Act , 1964(Act 250) , appointed by an executive instrument , a commission of inquiry to inquire into the
management and other matters relating to the State Fishing Corporation. The terms of reference of the commission were contained in E.I . 16 of
1967 , para. 3 of the Commission of Enquiry (State Fishing Corporation) instrument. During the April sittings of the commission of inquiry,
certain allegations of larceny were made against the applicant, the distribution marketing manager of the corporation. On 26 June 1967, the
chairman of the commission of inquiry (State Fishing Corporation)Mr. S.A.Wiredu wrote to the applicant Mr. V.O. Bannerman, the distribution
marketing manager of the State Fishing Corporation. Relieving him of his duties and responsibilities and a copy of this letter was sent to the
office of the N.L.C. the applicant instituted proceedings for orders for certiorari to quash the decision of the commission of inquiry and
prohibition to prevent the chairman of the commission from suspending, dismissing, interdicting or in any manner interfering with the applicant
in the performance of his duties as distribution marketing manager of the State Fishing Corporation

The court held that the commission or its chairman in suspending the applicant acted in excess of their jurisdiction having regard to the terms of
reference in paragraph 3 of the commission of enquiry (state fishing corporation), instrument, 1967(E.I6) . The purported decision to suspend the
applicant was ultra vires the commission or its chairman, .The court recognized the dual capacity occupied by the NLC in that it has powers to
enact Decrees which have the force of an Act of Parliament and it also occupies an executive position such as that of the deposed president.
Commenting on the State Fishing Corporation Instrument , 1965 (L.I. 397), part XIV which deals with the special Powers of the President
( NLC) which states “notwithstanding anything to the contrary in this instrument, the [national liberation council] may at any time, if it is
satisfied that it is in the national interest so to do , take over the control and management of the affairs or any part of the affairs of the Corporation
and may , for that purpose, reconstitute the Board; appoint , transfer, suspend or dismiss an y of the employees of the Corporation ; and do, in
furtherance o the interest of the Corporation , any other act…”, the court was of the view that the conditions which may exist to enable the
Council to take over the control and management of the corporation rest entirely within the absolute discretion ft he Council and the

STEEL SIZURE CASE: During the Korean War, in the latter part of 1951 a dispute arose between steel companies and their employees over
terms and conditions for new collective bargaining agreements; in 1952 the Steel Workers Union gave notice of a nationwide strike. The
indispensability of steel as a component of all weapons led the President to believe that the proposed strike action would jeopardize national
defence and that a governmental seizure of steel mills was necessary to assure the continued availability of steel.

A few hours before the strike was to start the President issued an executive order directing the Secretary of Commerce to take possession of most
of the steel mills and keep them open and running. He sent a message to Congress of his action.

Per Justice Jackson “While the constitution diffuses power to secure better liberty, it also contemplates that practice will integrate the dispersed
powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”

BLACK J-: ordered the president to return the steel mills to their owners. The court affirmed the decisions of the District Court as follows;

 The constitution limits the president’s function in the lawmaking process to the recommendation of the law which he thinks wise and
the vetoing of those which he thinks bad. The constitution is quite clear about who should perform the lawmaking function which the
president is merely directed to execute.
 In this respect , the only way of making the president’s action valid would be to grant congress to authorize it which he has not done
 The president as Chief Executive should see to it that laws are kept and this does not mean that he should make laws . If he wanted
any laws made, he should recommend those laws to congress , not pass them himself.
 No provision of the constitution clearly gives the president such emergency powers.

NIXON V . SYRICA: During the 1972 presidential elections campaign, President Nixon was alleged to have employed spies (the Watergate
burglars) to tape conversations of the rival Democratic Headquarters at Watergate. On 16 July 1973, Alexander Butterfield testified before the
Senate Select committee on Presidential Campaign Activities that conversation in the president’s office had been recorded automatically at the
president’s direction. The president declined to requests by Special Prosecutor Cox and by the senate Select Committee for access to certain
tapes, claiming that it was against : executive privilege (which entitles him among others to keep confidential documents), that the president is not
subject to compulsory court process and that he had absolute discretion to withhold evidence on the ground of executive privilege.
 PAA JOY

HOLDING: In view of the ease, expedition and safety with which congress can grant and has granted large emergency powers able to embrace
this crises(conventions) it need not be affirmed by this court without the benefit of statute.(because the court determines the law even if they do
not make it.)

The power to legislate for emergencies belongs in the hands of congress, but only congress itself can prevent that power from slipping through its
fingers. (This was said in relation to the argument that in the WW2 a similar situation happened and the president undertook similar actions and
congress was silent).

With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the executive
be under the law and that the law be made by parliamentary deliberations.

ASARE V. ATTORNEY-GENERAL : On 21st February 2002 the President of the Republic wrote to the Speaker of Parliament informing the
Speaker that the President would be travelling to Australia to attend the Commonwealth Heads of Government Meeting, scheduled to take place
from 2nd to 5th of March 2002 and that he would be away from Ghana from 24 February until 10th March. He further informed the Speaker that
during that period, because the Vice President would also be absent from the country from the 24 to 27 February, the Speaker was pursuant to
article 60(11) of the constitution to act as President for those four days. Accordingly, on 24 February, the Speaker swore the Presidential oath and
acted for the President from the 24 to 27 February. The plaintiff filed a writ at the Supreme Court seeking inter alia a declaration that on a true
and proper interpretation of article 60(11) of the 1992 Constitution of Ghana the purported swearing –in of the Speaker of Parliament of Ghana is
inconsistent with or in contravention of the Constitution and therefore unconstitutional , void and of no effect.

The plaintiff argued that merely because the President is away from Ghana does not necessarily mean that he is unable to perform the functions of
his office, particularly, in the light of modern technological developments in the area of telecommunications and also because of his authority to
delegate power to appropriate subordinates.

HOLDING :( PER DATE- BAH JSC)

 It would seem that the drafters of the constitutions of Ghana since 1969 have taken the view that the absence of a President or in his
absence, the Speaker is to exercise his functions whilst he is thus disabled.
 The period during which the Speaker will ordinarily be required to act for the President will be short. In this present case, it was for
only four days. Accordingly such short periods of the executive power being exercised by the presiding officer of the legislature are
unlikely to impair the long-term underlying balance of the Constitution. Moreover, in spite of the headship of the executive and the
legislature devolving on one person, the legislature, as an institution, and the executive as an institution will each maintain their
distinct and separate zones of authority. In this regard it would be desirable for a convention or practice to be observed whereby when
the Speaker is performing the functions of President he does not at the same time exercise the powers of the Speaker and he devolves
his presiding and other roles to a deputy.
 Where both the President and the Vice-President are absent from Ghana, they are to be regarded as “unable to perform the
functions of the President” and thus the Speaker is obliged to perform those functions. …the purpose of the framers of the
Constitution was to ensure that whoever exercises the functions of the President is physically present in Ghana.

 GHANA BAR ASSOCIATION V ATTORNEY-GENERAL (ABBAN CASE) [1995-9] 1 SCGLR 598 ; [2003-2004] SCGLR
250 : The plaintiffs sought a declaration , inter alia, that the second defendant, Mr. Justice I K Abban “is not a person of high moral
character and proven integrity” in terms of article 128 (4) of the Constitution, 1992 ; and also a further declaration that the
appointment on 22 February 1995 by the President of the second defendant as the Chief Justice, as well as the advice of the Council of
State and the approval by Parliament of his nomination , were done in contravention of articles 91(1) and (2), 128(4) and 144(1) of the
Constitution, 1992 and were therefore null and void.
The defendants raised a preliminary objection to the assumption of jurisdiction by the Supreme Court which they founded, inter alia,
on the defence of non-justiciable political question. The defence contended that the issue of the appointment of the second defendant
as the Chief Justice by the President, acting in consultation with the Council of State and with the approval of Parliament, was a non-
justiciable question specifically committed by the Constitution, articles 91 (1) (1) and 144 (1) to the President, the Council of State
and parliament. In reply , counsel for the plaitniffs argued that having regard to the provisions of articles 125(3) and 295(8) of the
Constitution, the doctrine of non-justiciable political question was inapplicable to the 1992 Constitution.
The Supreme Court (per Kpegah JSC, Bamford –Addo and Charles Hayfron-Benjamin JJSC concurring) held that the principle of
non-justiciable political question was applicable to the Constitution, 1992 ; that the principle was inherent in the concept of separation
of powers where certain functions were committed to a specific branch of government; that in such a situation a political question
could not evolve into a judicial question determinable by the Supreme Court. The court further held that the Constitution had, under
articles 91(1) and 144(1) specifically committed the appointment of the Chief justice to the executive and the legislature.
 On the substantive claim to remove the Chief Justice, the court held on a preliminary objection to its jurisdiction raised by the
defendants that applying its earlier reasoning in Tuffour v AG and Yiadom I v Amaniampoing, that the reliefs claimed by the
plaintiffs, would have the effect of indirectly removing the second defendant as the Chief Justice without complying with the
mandatory special procedure for removing the Chief Justice under article 146 of the Constitution. Thus, the SC by that decision was
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asserting that no procedure other than that laid down by the Constitution in term of article 146 for removing Justices of the Supreme
Court would be resorted to and enforced.
 Per Wiredu JSC (As he then was) “The scope and extent of the doctrine of separation of powers…under the Constitution 1992 is to
ensure that each arm of state in the performance of its duties within the framework of the Constitution is to act independently and
should not be obstructed in the exercise of its legitimate duties or be duly interfered with. In other words , all arms of the State are
answerable or responsible to the Constitution, 1992. It is also to ensure the smooth administration of the 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”

RULE OF LAW

It’s concerned with the values underpinning the constitution i.e. the pillars of the constitution in relation to the use and exercise of public power.
It is based on the recognition that the points occupied by each person in the legal system is what will ensure whether we are a society based on
rule of law or otherwise. In a formal sense, every society is governed by rules of law but it doesn’t mean that every society lives under the rule of
law. As an ideology, it’s about those institutions, processes, roles which allow us to live our lives in peace, security and dignity.

A.V. DICEY-INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION

Dicey had three main interpretations to the rule of law:

 No man can be punished or can be lawfully made to suffer a body or good except for a distinct breach of law established in the
ordinary legal manner before the ordinary courts. Dicey was distinguishing the rule of law from arbitrary governments and the
exercise of wide discretionary powers. Dicey was also talking about the certainty and clarity of the law. Dicey was of the view that if
wide discretionary powers are given to the authority, the individual may not know the rights he has and also retroactive legislation if
imposed will place the individual in a situation where his act at a time was lawful and at a later time unlawful.-Articles 19(5) & 19(11)
 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. -17(1). Dicey was concerned with limiting the powers of officials in
favour 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 favour the government as against individuals.
Dicey’s second point thus, is based on the different treatments that are given to people. That is the concentration should be on the
nature of the different treatment. They are different between citizens and military, police officers and civilians, students and their
teacher. Therefore there is a problem of saying all should be equal before the law. If the differentiation is based on the nature of the
person’s function then it is contrary to the rule of law. Eg. Judges enjoy immunity as opposed to others.

When the differentiation is based on factors such as gender, political belief, religion , then people will say it is contrary to the rule of law as there
is no justification for it . Art{17}. Thus the rule of law means there should be unequal treatments based on unacceptable factors as seen from
above.

The Supreme Court of Ghana had the occasion to interpret Article 17(1) of the 1992 Constitution in the case of Nartey v Gati [2010] SCGLR
745, the supreme court speaking through Date-Bah JSC held at page 754 that “ …the concept of equality embodied in article 17 is by no means
self-evident. To our mind, it is clear what article article 17 does not mean. It certainly does not mean that every person within the Ghanaian
jurisdiction has, or must have , exactly the same rights as all other persons in the jurisdiction. Such a position is simply not practicable. Soldiers,
policemen, students and judges, for instance, have certain rights that other persons do not have. The fact that they have such rights does not mean
that they are in breach of article 17. The crucial issue is whether the differentiation in their rights is justifiable, by reference to an object that is
sought to be served by a particular statute, constitutional provisions or some other rule of law. In other words, article 17(1) is not to be construed
in isolation, but as aprt of article 17. This implies that het equality referred to in article 17() is in effect freedom from unlawful discrimination.
Article 17(2) makes it clear that not all discrimination is unlawful. It proscribes discrimination based on certain grounds. The implication is that
discrimination based on other grounds may not be unlawful, depending on whther this Court distils from article 17(1) other grounds of illegimtate
discrimintation which are not expressly specified in article 17(2) Thus, for instance, in India, the Supreme Court has there held that mere
differentiation or inequality of treatment is not per se equivalent to discrimination within the proscription contained in that country’s equal
protection clause. That clause, which is article 14 of the Indian Constitution, reads as follows:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
 PAA JOY

The Supreme Court of India has said in relation to this clause that:

“When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for
determination by the Court is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable
relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection
clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary, that it does
not rest on any rational basis having regard to the object which the legislature has in view.” (See K. Thimmappa v Chairman, Central Board of
Directors AIR 2001 SC 467. Quoted in Jain, Indian Constitutional Law,(LexisNexis Butterworths Wadhwa, 2009, 5th Ed.) p. 858.)

This approach is a reasonable one and flows from the obvious fact that no two human beings are equal in all respects. Accordingly, if the law
were to treat all human beings rigidly equally, it would in fact result in unequal outcomes. Rigid equal treatment would often result in unfair and
unequal results. Accordingly, it is widely recognized that equality before the law requires equal treatment of those similarly placed, implying
different treatment in respect of those with different characteristics. In simple terms, equals must be treated equally, while the treatment of
unequals must be different. The law must be able to differentiate between unequals and accord them the differentiated treatment which will result
in enabling them, as far as practicable, to attain the objective of equality of outcomes or of fairness. In effect, equality of opportunity will often
entail the law treating people differently in order to give them a fighting chance of attaining equality of outcomes or of fairness. If the
differentiated legal rights arising from such an approach to the law were to be struck down as not conforming with the constitutional prescription
that all persons are equal before the law, it would be thoroughly counterproductive.”

 The general principles of the constitution (as for example the right to personal liberty, or the right to public meeting ) are with us 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.

As Kumado suggests, there should also be effective judicial remedy rather than looking at the value of the rights . i.e. effective judicial remedy
protect the people better than the rights of articles in 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.

For Jennings the rule of law embodies the notion that all government power, save those of the legislature be distributed and determined by certain
precise laws. For instance, before a King or a person acting on behalf of the state exercise power, he must point to a particular law which
authorizes his act.

Ivor Jennings in criticizing dicey’s second concept was of the view that saying ‘’all are equal before the law’’ could be misleading but rather it
should be ‘’among equals there should be equality’’. His reason was that there were certain people such as the President who enjoys immunity
from prosecution by the courts.

The whole concept of the rule of law can therefore be summarized into five main headings:

1. Supremacy of the Law : The law must be supreme to everybody in the state and must regulate every action of individuals in a state. Vis-à-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.
Article 1(2) of the 1992 Constitution provides thus “ This Constitution shall be the supreme law of Ghana and any other law found to be
inconsistent with any provision of this Constitution shall, to the extent of the inconsistency , be void.”

2. Equality before the law : There must be equal treatment to all persons by the law. It implies two things :

* All persons are under the law

* There is an avoidance of discrimination (i.e. treating similarly situated people differently on the basis of race, colour, ethnicity, religion, gender
etc.)

For this reason, article 17(1) (2) and (3) provides :

(1) All persons shall be equal before the law

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(2) A person shall not be discriminated against on grounds of gender , race, colour , ethnic origin, religion, creed or social or economic
status
For the purposes of this article, “discriminate” means to give different treatment to different persons attributable only or mainly to
their respective descriptions by race, place of origin, political opinions, colour, gender, occupation, religion or creed, whereby persons
of one description are subjected to disabilities or restrictions to which persons of another description which are not granted of persons
of another description are not made subject or are granted privileges or advantages which are not granted to persons of another
description.”

3. 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 1992 Constitution stipulates “ A person shall not be charged with or
held to be guilty of a criminal offence which is founded on an act or omission that did not at the time it took place constitute an offence.”

4. Certainty of the law : This presupposes that the law must be easily ascertained. This simply means that laws must be published after they
have been passed, laws should be written with reasonable clarity to avoid unfair enforcement and also laws must avoid contradictions. With the
certainty of the law, people may not be punished arbitrarily since they can easily access the law to know whether their conducts fall within the
confines of the law. In this regard , the 1992 Constitution of Ghana has provided some articles to achieve the aim of certainty of the law. An
example is Article 106(11) which provides ;

“Without prejudice to the power of Parliament to postpone the operation of a law, a bill shall not become law until it has been duly passed and
assented to in accordance with the provisions of this Constitution and shall not come into force unless it has been published in the Gazette.”

As part of the factors inhibiting the effective realization of certainty of the law is the ambiguity and legalistic language of the law thereby making
its understanding difficult even sometimes to persons of legal background.

Case law also dilutes the certainty of the law since under the guise of interpretation, the judiciary may in substance change some clear elements of
the law. An example is the case of Adjei Twum v. Attorney General and Akwetey , where a prior establishment of a prima faice case was not
provided under Article 146(6) as a prerequisite for a committee to be established to start the impeachment process of the Chief Justice.

CASES:

AMIDU V PRESIDENT KUFUOR [2001-2002] SCGLR 86 Per Adjabeng JSC “ It must be noted that our 1992 Constitution has firmly
established the rule of law in the country. The Constitution makes it clear that everybody in this country, including His Excellency, the Presdient,
is under the Constitution and the law. This is clearly what we mean by the rule of law…And I have no doubt that adherence to this policy will
indeed bring about real democracy…and therefore real freedom, justice and prosperity.”

IN RE M : 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.

HOLDING-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 for going contrary to the law.

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V. WEDNESBURY (LORD GREENE) :Section 1 of The Sunday Entertainments
Act, 1932 legalized the opening of entertainments on Sundays and gave the local authority the power to impose conditions which it thinks fit to
impose. The defendant, Wednesbury Corporation imposed a condition preventing any child below the age of 15 years from any entertainment
whether in the company of the parents or not. The plaintiffs who were proprietors of a cinematograph theatre in Wednesbury, sought for a
declaration that the imposition of the condition was ultra vires the defendant .

HOLDING : The court in dismissing the appeal held that it could only interfere with an act of an executive authority only if it could be showed
that the authority has contravened the law. The court was of the view that the local authority had been given the power by the Act and so far as it
exercised their authority within the jurisdiction as the Act says so, the court could not interfere with the legislation by Parliament.

The court reasoned that to have the right to intervene, the court would have to form the conclusion that :
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 the corporation, in making that decision, took into account factors that ought not to have been taken itno account, or
 the corporation failed to take account factors that ought to have been taken into account or
 the decision was so unreasonable that no reasonable authority would ever consider imposing it.

LAKER AIRWAYS LTD. V. DEPT OF TRADE :The appellant Laker wanted to start an air service project ‘’skytrain’’, and on 18 October
1972 t he Civil Aviation Authority in England granted him a license for ten years , from 1 January 1973 to 31 December 1982 for the route
Stansted to New york under the Civil Aviation Act 1971 . However, the Civil Aeronautics Board in the United States decided to issue him a
permit but will take effect after the approval by the president of the United States . whilst lying in wait, Laker purchased three jumbo jets and the
training of crew and staff to run them. He spent almost seven million pounds on the project. On 29 July the Secretary of State of the United
Kingdom informed the House of Commons that Skytrain would not start and followed this by the issue of a White Paper entitled ‘’Future Civil
Aviation Policy Guidance’’in February 1976 withdrawing the license of skytrain. Laker aggrieved by this issued a writ claiming that the
secretary of state was acting unlawfully and was ultra vires. The declaration was granted in his favour whereupon the Secretary of State also
appealed.

HOLDING-PER LORD DENNING :The court in dismissing the appeal held that since the old policy had been laid down by an Act of
Parliament, in order to reverse it therefore, the secretary of state should have introduced an amending bill and got parliament to sanction it.

RIDGE AND BALDWIN :The appellant, Ridge in 1956 was appointed chief constable of the County Borough of Brighton. The appellant and
two of his colleagues were arrested on an allegation that they had conspired to obstruct public justice and were tried afterwards. The watch
committee being the police authority decided to suspend him from his duty on October 29, 1957 of which he would be given certain suspension
allowances in accordance with regulation 15. On February 28 the appellant was acquitted after a trial which lasted for 19 days but his two
companions were imprisoned. Again, the appellant was charged with corruption and was arraigned for trial on March 6, 1958. He was acquitted
on the grounds of no evidence. The next day, the appellant was notified by a letter from the watch committee that he had been dismissed because
he had been negligent in executing his duties.

HOLDING :The court by a majority ruling was of the view that the appellant should have been given the chance to be heard by the watch
committee. According to the court, the appellant was entitled to and did not receive natural justice by the watch committee. This therefore made
the allegations against the appellant by the respondents invalid.

CAPTAN V. AG : Omar Ibrahim Captan, the plaintiff a Lebanese Citizen was granted a residential permit in Ghana for a stated period of time.
Acting under the Aliens Act, 1963(Act 160), ss. 5, 7 and 8 , the defendant revoked the residence permit before it had run its course and without
assigning any reasons for the revocation.

ISSUES

 Whether the minister in the exercise of his discretionary power to expel an alien has to give reasons for such expulsion
 Whether or not article 24(1) vests in an alien the right to immunity from expulsions from Ghana
HOLDINGS
 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.
 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.

“The aliens Act, which regulates the exercise of the state’s power over aliens, provide for revocation of a residence permit ‘at any time’ (section
7), and it does not provide for anything like a quasi-judicial enquiry or some form of adjudication as a prelude to revocation of residence permits
such as would give the courts the power of judicial review over the Minister’s decision , and the courts cannot impose judicial intervention wehre
the law has not provided for it. The Act does not require the Minister to assign any reasons for revoking an alien’s permit. Indeed according ot the
principle of international law governing an independent country’s jurisdiction over aliens only the home country of an expelled may demand
reasons which the expelling country is not obliged to give. The matter is one that is dealt with entirely by diplomatic intercourse, and it is wholly
outside the purview of judicial intervention Any suggested amelioration of any severities found to be attendant upon the operation of the Aliens
Act must be sought in political action not in judicial initiative.”

RE AKOTO : Baffour Osei Akoto and 7 others were arrested and detained under an order made by the governor general and signed on his behalf
by the minister of interior under section 2 of the PDA, 1958. The PDA was enacted by parliament in 1958 to serve during emergency times. 2 The
applicants after they had been refused an order for habeas corpus from the High Court, applied for an appeal in the Supreme Court. They

2
The PDA empowered the executive to arrest and detain without trial, people whose acts were considered
prejudicial to the state. It was alleged by the appellants that this Act contravened Article 13 of the 1960
Constitution which stated unequivocally the rights of the citizen including their right to access courts of law.
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contended inter alia that the PDA was inconsistent with the constitution 1960 particularly article 13, captioned ‘Declaration of Fundamental
Principles’ this declaration was read by the president on his assumption of office.

However it was decided by the court that Article 13 of the 1960 Constitution was similar to the coronation oath sworn by the Queen, a moral
aspiration and not a justiciable right to be granted by the court.

JUDICIAL REVIEW

Judicial Review is used to describe two separate ideas:

 Judicial Review in relation to the constitution : This is a constitutional arrangement in which the judiciary has been given power to
review the actions of the other organs of government to ensure that they stay within their limits.
 Judicial review in relation to administrative actions: This is the procedure by which the courts are given the power to determine
the legality of decisions made by administrative bodies.

In the second sense , judicial review properly comes within the ambit of administrative law. In Awuni v WAEC, the Supreme Court quashed an
administrative decision by WAEC to cancel the entire results of Awuni and others who sat for the SSSCE examination because the decision was
not fair and there was a breach of the audi alteram partem rule of Natural Justice. Again, in Republic v Fast Track High Court, Ex – Parte
CHRAJ (Richard Anane interested party), the Supreme Court held that CHRAJ could not commence investigations into abuse of power
without formal complaint.

FUNCTIONS OR IMPORTANCE OF JUDICIAL REVIEW

1. According to Justice Sowah in Sallah v AG, the power of judicial review is the fertilizer which allows the constitution to grow. For
instance, Constitutions provide for change which may take the form of total replacement or replacement of some parts (amendment).
Constitutional review thus allows a constitutional system to grow without formal amendment.
2. The power of judicial review enables judges to participate in the implementation and formulation of decisions.
3. The process gives teeth to the arrangements, the values, checks and balances , provided in the constitution. Thus policing of the
constitution.

TWO WAYS OF MANIFSTATION

Judicial review manifests itself either through a direct or indirect review.

1. Direct review: This takes the form of the challenge of constitutionality of something. This mostly invalidates a legislation. The
general direct review power is under Article 2 of the 1992 Constitution. This is clearly intended to protect Article 1.
2. Indirect Review: This takes the form of interpretation of provisions in the Constitution. It is a regular , on-going matter which takes
place all the time in the legal system. See Article 130 of the 1992 Constitution.

CONSTITUTIONAL VALIDITY

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 supreme law is at issue [Marbury v Madison]. It is measuring
a given act against the values of the constitution.

Some legal systems vest the power of constitutional review in all the courts in the legal system Eg. US. Some also vest the power in only the
court of last resort (The highest court of the land). Eg. Ghana save issues relating to human rights. Some systems create a special constitutional
court outside the regular court system and it is only this court that can deal with the issues of constitutional review. Eg. Italy, Germany and
Netherlands. Some systems also create a special body which sits outside the court system to determine issues of constitutional validity. Typically,
the composition makes it a political body. Eg. France and all its colonies

ARGUMENTS AGAINST JUDICIAL REVIEW BEING DEMOCRATIC

1. People argue that judicial review is not democratic since judges are not elected.
2. They also argue that the power given to judges are subversive to the peoples vigilance ( that is the people think that the judges are
doing all the policing)

WHY PEOPLE SAY JUDICIAL REVIEW IS DEMOCRATIC

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1. They say the judges have no power

2. There is nothing in democratic institutions that everybody who makes important decisions in the state should be elected

WHAT IS THE EFFECT OF A DECISION THAT A COURT WHICH HAS A POWER THAT A CERTAIN PIECE OF
LEGISLATION IS UNCONSTITUTIONAL

1. The invalidation takes effect at the time the ruling is made

2. Some countries draw a distinction between criminal legislation: retrospective and civil legislation : prospective

THEORIES IN DETERMINING ISSUES OF CONSTITUTIONAL VALIDITY

1.
Activism: Judges when exercising power should assume the posture of activist, challenging the status quo.
2.
Self-restraint: Judges should be very slow to pronounce the decisions of other players as unconstitutional( this is the
opposite of activism).
3. Original Intent theory: Where the judges depend on what the framers of the constitution had. It is not easily to determine
the intention of the founding fathers. Their intentions could vary what has been used in the constitution.
4. Language of the text of the constitution: Here judges may consign themselves to the language of the constitution when
interpreting it. This has the same problem like the original theorem because language is dynamic.
5. Structure of the constitution: This is the organization of the articles of the Constitution. It suggests that a basic
philosophy is that public power should be subject to limitation
6. 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.
THE OPERATION OF JUDICIAL POWER IN FOUR CONSTITUTIONAL SYSTEM

THE UNITED KINGDOM

Based on the Bill of Rights of 1688. In the Bill the legislature was Supreme. Judges have no power to question legislative 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

Judicial review is not explicitly stated in the United States Constitution. However, it was implied by the United States Supreme Court and this
came about in the famous Marbury v Madison case. In this case, Chief Justice Marshal in his logical and contextual analysis, held that, it was
within the thinking of the framers of the constitution (the federalist) that the United States Supreme Court should have the power of judicial
review.

In the United States however, unlike Ghana, Judicial review can be exercised by even the lower courts (what is known as the circuit courts) but
its decision will have effect only at that level. Most of the important constitutional pronouncements are made by the Federal Supreme Court and
have effect over the whole country or federation.

Because the power of judicial review in the United States is implied, to prevent a confrontational cause between the executive and the legislature
on one side, and the judiciary on the other side, it made sense for the judiciary not to abuse this power in other to avert a constitutional crisis
where the other organs may decide not to comply with the decision of the courts. The Supreme Court, in order not to abuse the power of judiciary
review, placed restraints on the exercise of this power.

Some of these restraints are :

 Locus standi (standing or the capacity to bring an issue to court) : Before one can bring an application to the US Supreme Court
for judicial review, the person must have an interest in the case or the person must be the one affected by the decision of the organ that
the suit may be against.
 Also they developed the principle of ripeness or the principle of mootness, where the subject matter of the complaint must have arisen.
 The political question doctrine, that is, the courts will avoid all invitations to enquire into matters which are within the exclusive
preserve of the other arms of government.

According to Kumado, the US makes the best judicial review. From the beginning to the end of the civil war in 1786, all the decisions were on
nation building. Before then each state had its own currency [M’cullurck v. Maryland]. From the end of the war till about 1937, (thus after the
giant depression) the judicial review was of mainly economic. In the U.S , certiorari is not used rather writ of ERROR.
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SeeUS v. Caroline Products 304 US 114(1938)

From 1948 till date, the Judicial Review Powers of US is on human rights.

Brown v. Board of Education; New York Times v. US; Baker v. Carl

Mabury vrs Madison :In 1800, the Jeffersonians took control of the executive and legislative branches of the government of the USA from
President Adams’ Federalist Party. Adams who remained President of the USA, until March 4, 1801, responded to his defeat by seeking to make
new appointments with a view to taking control of the Judiciary through the appointments. On January 20, 1801, he proposed his Secretary of
State, John Marshall , as the new Chief Justice. marshall took his judicial office in February 1801 while continuing his position as Secretary of
State until the end of President Adam’s term. Wiliam Marbury was one of those Judges who were appointed late by President Adams and Senate
completed the confirmation process of the new appointees by March 3rd 1801. Although the commission of William Marbury as a Justice of the
peace in the District of Columbia had been signed and sealed , the Secretary of State had not delivered it by the time that Jefferson took office as
President of the United States of America. Jefferson had no desire to correct this error, so Marbury asked the Supreme Court for a writ to compel
Jefferson’s Secretary of State, Madison to hand over the Commision.

In his opinion for the Court, Marshall held that Marbury was entitled to his commission and that Madison had withheld it from him wrongfully.
mandamus , was the appropriate remedy at common law, but the question presented was whether it was available under article 111’s grant of
original jurisdiction to the Supreme Court. In order to decide that question, Marshall was required to compare the text of Article III with section
13 of the Judiciary Act of 1789, by which congress authorized the mandamus writ.

Finding that the statute conflicted with the federal constitution, Marshall considered it, “the essence of judicial duty” to follow the constitution.
He concluded that “ the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed
to be essential to all written constitutions, that a law repugnant to the Constitution is void, and that Courts, as well as other departments,
are bound by that instrument”.

FRENCH PRACTICES

Until the mid-20th century, the supreme law was not the constitution (the constitution was seen as a document for political operation) but the civil
codes.

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. The legal system provides for
two sets of courts.

Regular Courts: these courts have jurisdiction in every matter in the judicial system unless those in which the administration is involved.

Administration Courts: The French saw the judicial review process as political rather than legal. The French call it preview rather than review.
Constitutional preview in is exercised by a body called the Constitutional Council. The Constitutional Council handles legislative matters.
Those of executive and administration are outside their scope. The Constitutional council has 9 members. 3 appointed by the President, 3 by
upper house of the French legislature and 3 by the Speaker of the lower house. In addition, all living ex-presidents of the republic are members.
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. Apart from the life members, membership is for 9 years and there is no second(2 nd) term. Questions are
presented before the council before they are even made into law.

FUNCTIONS OF THE CONSTITUTIONAL COUNCIL

1. The conduct and supervision of elections, declaration of results and resolve the disputes after election.
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.

It can be invoked by:

1. President
2. Senate
3. Speaker
4. Since 1965, any 60 members of the National Assembly.
5. Unlike the American, any individual person cannot invoke the constitution in France. This goes to formalities and not to
suggest that no individual can invoke.

ISSUES OF CONSTITUTIONALITY IS IN THREE WAYS

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Under Article 61 of the 5th French Constitution, the Constitutional Council is required to pronounce the constitutionality of any bill. Or before it
passes any bill, the Constitutional Council must determine whether it is constitutional.

Under Article 41, whether the proposed bill is on the subject matter whether it follows the legislative remit.

GERMANY

Whereas the American passes the bill before determining its constitutional validity and have courts to do so, the French treat matters of
constitutional validity as political and as such have special bodies to do so. The German give the business to a special court whose members are
not part of the regular courts (thus the Federal Constitutional Court of Germany). 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.
Courts cannot ever pronounce on matters affecting 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 Germans fit themselves between the French and
the Americans by not given power to the political or regular court. The power of constitutional review is given to the federal constitutional court.
The decision of the German Constitutional Court has the same Status as a Statute.

WAYS OF DETERMINIG CONSTITUTIONAL VALIDITY IN GERMANY

1. Constitutional Complaint: A claim of the violation of human rights as enshrined in their constitution. 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
2. A request from the ordinary courts: If for instance the tax court sees that an issue conflicts with the constitution it is not allowed to
say so but refer it to the special court. However where it is in conformity, it proceeds
3. Petition by the federal government, a state government, a third of the lower house, local government authorities or associations :
Petitions may be sent by the federal government in respect of constitutionality of decisions arising from the exercise of its authority.
IF a state government feels a federal government has invaded its area of authority, it may also send the issue to the constitutional
court.
 It always includes some advice in its decisions. It does not just say that a law is unconstitutional but it determines what is being sought
and suggests ways in which something can be constitutionally done.
 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.
 Decisions of the federal constitutional court have the status of an act of parliament and are published in the official bulletin in which
legislations are published.

COMPARISON

In France , constitutional questions are presented to the council before whatever measure on the table becomes law. As such it has been said
that in France what they have is constitutional preview and not review.
The validity issue is dealt with in Germany and the US by judges; in France, it is dealt with by politicians.

In Germany constitutional validity issues are dealt with by judges of specialized courts. In the US, these issues are dealt with by judges of
regular courts.

JUDICIAL REVIEW IN GHANA

Judicial review has explicitly been provided for in the 1992 Constitution under Articles 2(1) and 130. Unlike the United States, there are no
huddles towards the invocation of the power of judicial review located or vested in the Supreme Court.

In NPP V Attorney General (1997-1998) 1 GLR 378-461 (CIBA CASE),the plaintiff, a political party registered as a body corporate, in an
action against the Attorney-General invoked the original jurisdiction of the Supreme Court under article 2(1) and 130 of the Constitution, 1992
for a declaration that the Council of Indigenous Business Associations Law, 1993 (PNDCL 312) was inconsistent with and a contravention of
articles 21(1)(e), 35(1) and 37(2)(a) and (3) of the Constitution, 1992 and consequently void. The Attorney-General, however, raised a
preliminary objection to the action on the grounds that only a natural person could bring an action under article 2(1) of the Constitution; and
articles 35(1) and 37(2)(a) and (3) which were part of the provisions of the Directive Principles of State Policy under chapter 6 of the
Constitution, 1992 were not justiciable. Furthermore, the Attorney-General contended, inter alia, on the merits that since PNDCL 312 had been
enacted upon the petition of the associations specified in the schedule to the Law to enable them to freely operate under the umbrella of a council
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similar to the Trades Union Congress, it was not in breach of their right to form or join any association of their choice under articles 21(e) and
37(2)(a) of the Constitution.

Commenting on the issue of locus, Bamford Addo, JSC as she then was held;

“It is evident from this passage that a very wide effect was intended to enable all persons to resort to judicial review for the
enforcement of the Constitution, 1992. Therefore under article 2(1) of the Constitution, 1992 other than the citizenship
requirement, no limitation is placed on the nature of persons who may invoke the original jurisdiction of the Supreme Court.
If this be the case then it seems to me that there would be no logical reason for restricting the resort to the original jurisdiction
of this court to only natural persons. On the contrary, it would be more beneficial and in accordance with the intention of the
framers of the Constitution and in the public interest to open the door widely to permit both natural and legal persons, like the
plaintiff, access to the court. I would think that corporate bodies by reason of their important place in society are most suited
both financially and otherwise to undertake the defence of the constitutional order by resort to judicial review when the
constitutional order is being threatened.”

There is also no requirement of proof of existence of personal interest. Judicial review can be requested even where the applicant does not have
an interest in the case (i.e. there is no locus standi).

In the case ofAgyei Twum v Attorney General (2005-2006) SC GLR 732, the plaintiff was a private Ghanaian citizen who was not related in
any way to the Chief Justice, George Kingsley Acquah and was not affected in any way by the president’s inaction but in the interest of justice
sued under article 2 (1) of the constitution, 1992.

In Tuffour v AG the SC held that a party coming under Article 2(1) need not have any personal interest for the said party’s interest is with the
constitution 1992.

See also Sam (2) v Attorney General (2001) SC GLR 305 : In this case, the plaintiff, who was a Ghanaian citizen, brought action in the SC
against the AG for a declaration that section 15 of the Divestiture of State Interests (Implementation) Law, 1993 was inconsistent with particular
provisions of the 1992 Constitution and therefore void. When the AG raised a preliminary objection to the plaintiff’s action on the ground that the
plaintiff had no personal interest in the outcome of the case, the SC dismissed his objection.

The Court drew a distinction between actions to enforce the Constitution under article 2(1) and actions under article 33(1) for redress in relation
to a contravention of a fundamental human right or freedom. It held that in actions under article 2(1) , the plaintiff did not need to show a
personal interest. All citizens of Ghana were under a duty imposed by articles 3(4) and 41(b) to defend and uphold the Constitution. Accordingly,
when a citizen brings action to challenge the constitutionality of any act or omission or enactment under article 2(1), he or she is merely fulfilling
an obligation placed on him or her by the Constitution.

“To sum up, the general rule is that any person, natural and artificial, may sue and be sued in the courts under article 2(1) f the
Constitution, 1992 but they must be citizens who are seeking the interpretation of the Constitution 1992 and its eventual enforcement, as
plaintiff is seeking to do in this case.”

The SC’s view of standing to sue under article 2(1) was explained in the following terms by Justice Ocran in Agyei Twum v Ag :

“The purpose of the provisions in article 2(1) of the Constitution is to inculcate in the citizens of the country, an interest in the enforcement of the
Constitution, by sparing them the traditional technicalities as to who could bring a suit.”

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;

1. Express provisions of their enabling Acts and

2. Rules of fairness and reasonableness.

DIFFERENCES BETWEEN APPEAL and JUDICIAL REVIEW:

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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 (1986) AC 240, 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 (1989) The Times 14th July. 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 (1993) 2 All ER 833 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:

a. Whether it has a statutory or common law duty,

b. What functions does it perform and
c. Inadequacy of legal controls over its actions.

GROUNDS FOR JUDICIAL REVIEW:

There are 2 main grounds namely

1. Breach of statutory requirements and

2. 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(1991) 1 AC 696, 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 (1976) 1
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WLR 1052, 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 (1890) 24 QBD 371

“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:

R v Hillington LBC, ex parte Royco Homes Ltd (1974) QB 720, 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.

In Bilson v Apaloo (1981) GLR 15, 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 (1980) GLR 637, 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.

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.

See also Akuffo-Addo v Quarshie-Idun (1968) GLR 667 at 674.

Ridge v Baldwin

Council for Civil Service Union v Minister of Civil Service

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Inkumsa v Jiagge (2 G&G) 313

Darkwah v the Republic

JUDICIAL REVIEW AND MILITARY REGIMES

The question has been often asked whether there is the possibility of judicialreview 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.
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 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 a sense that everybody can relate
to. The second is used to mean certain procedure, 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 otherside or hear both sides. This can be examined as the right to fair hearing.

AUDI ALTERAM PARTEM

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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 is under a duty to give a hearing to the affected person.

WHAT KINDS OF BODIES OR PERSONS SHOULD FOLLOW THIS PRICNPLE OR THE SCOPE THE PRINCPLE RELATES TO

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 –police constable was prosecuted and acquitted on charges of corruption. Police service dismissed
him without a hearing. It was held hat he had a right to be heard; Durayappah v. Fernando;Cooper v. Wandsworth board of Works

In Ghana it has been applied to commissions of enquiry- Ex parte Bannerman; Inkumsah v. jiagge

Ex Parte Bannerman: A commission of inquiry was set up to inquire into the management of the State Fishing Company. During its sittings
allegations of larceny were made against Bannerman. Subsequently, the commission, based on these allegations suspended Bannerman.

Held: It was held that the Commission’s decision to suspend Bannerman without giving him an opportunity to defend himself was in breach of
the audi alteram partem rule and therefore void.

Inkumsah v Jiagge Commission : Here the Jiagge Commission charged Inkumsah with perjury and subsequently passed a sentence of twelve
months imprisonment with hard labour on him.

The Court held that that decision to sentence him was null and void ni the absence of the application of the audi alteram partem rule. Ollenu
JA(As he then was) held that the principle f our law is that a person should not be condemned in any civil or criminal cause without being given
opportunity for a hearing. In giving his judgment, he said “It is a well settled rule of procedure of the common law as well as our customary law,
that no person shall be condemned without being given the opportunity to answer any complaints made against him. The customary law principle
in this regard is embodied in the Akan adage, Tieni mienu, meaning hear both side; and the Ga affirmation Ke anuu mo gbeianshishi le agbee le;
meaning never condemn any one to death whose explanation you have not heard; and the Ewe adage, Ela manotsia awede menuneo; meaning
literally, an animal is neve killed without being offered water to drink. The principle laid down in each of those sayings in short is, that it is unjust
to decide a matter against a person without first hearing what that person has to say in explanation to allegations made against him.”

It also applies to chieftaincy tribunals, traditional councils, national house of chiefs-R v. Chieftaincy Committee: Ex parte Oppong Kwame;
Republic v. Asokore Traditional Council, ex parte Tiwaa

In Ex Parte Tiwaa, queen-mother Tiwaa was destooled in absentia by the Asokori traditional council, without being given any opportunity to
defend herself or know of the reason/crime behind her destoolment. Furthermore, the traditional council had formulated no charges against Tiwaa
for which she ought to have been tried.

Held: It was held that this breached the right to a fair hearing rule and failure to adhere to the rules of natural justice, made the decision by the
Asokore traditional council void.

It applies to disciplinary bodies-Ridge v. Baldwin; Republic v. Ghana Railway Corporation: Ex parte Appiah

Ridge v Baldwin : Ridge was appointed as Chief Constable of the County Borough of Brighton. Subsequently, he was arrested, tried on the
charge of conniving with other to obstruct the course of justice and acquitted. He was later indicted on the charge of corruption and acquitted.
Soon after the watch Committee of the Brighton, corporation being a disciplinary body as well as a quasi-judicial body regarding the police,
dismissed him from office under the municipal corporation Act 1882, without giving him a hearing.

Held : The majority held that Ridge’s removal from office without giving him a hearing was a breach of natural justice and therefore void.

It was stated per Lord Reid that , “that a decision given without regard to the principles of natural justice is void…The body with the
power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his
case.” And per Lord Morris of Borth –Y-Gest that “It is well established that the essential requirements of natural justice at least include
that before someone is condemned he is to have an opportunity of defending himself and in order that he may do so that he is to be made
aware of the charges or allegations or suggestions which he has to meet.”
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It applies to the CHRAJ

It applies to the universities-Glynn v. Keele University where the plaintiff was fined a sum of 10 pounds and suspended from residential
accommodation as a sanction. The sanction was in response to an event early on, where the plaintiff among others were identified as being part of
an incident on 19th June 1970 where some undergraduates of the university chose to either stand or sit naked on the university campus. The
plaintiff then appealed for an injunction restraining the university from excluding him from residential accommodation on the grounds that hews
not given a hearing before the sentence was passed on him. The appeal was dismissed but the court noted that the rules of natural justice should
have been applied.

It applies to district assemblies and a range in whether to fight for a permit etc.

WHAT IS THE CONTENT

It does not mean that the decision maker must operate like a court of law. Eg. Rules of evidence proceedings etc. The content is that the decision
maker has a basic duty of fairness to those affected in determining the court. Good management, speed and efficiency, level of injustice that has
been suffered and on the basis the court determine what the fair hearing implies based on the circumstance.

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 of het rule of
natural justice
 The person must have assess to documents he or she is relying on to make their case

Secondly, a person who is affected who is affected in those cases as like termination of appointment, misappropriation, then the person must have
notice of what he is charged of 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.

OTHER CASES :

COOPER V WANDSWORHT BOARD OF WORKS : The plaintiff’s building was demolished without being given any notice. He should
have notified the board but he did not and the board was not bound to inform him per the statute. It was held that although the constitution did not
expressly say so, he should have been given a chance to be heard.

ABOAGYE V GHANA COMMERCIAL BANK (2001-2002) SCGLR 797 : The plaintiff was a senior manager of the defendant bank.
Following some routine checks by the inspection / audit division of the bank, the plaintiff was given two queries relating to two separate sums of
money paid into the bank accounts for two customers of the bank. In response , the plaintiff admitted that he had authorized the payments in
the course of his statutory duties. The bank nonetheless considered the said authorization fraudulent, and accordingly suspended the plaintiff. In
the meantime, the disciplinary committee of the bank initiated disciplinary action against the plaintiff. In the course of the proceedings, the
plaintiff was neither serviced with notice nor the charges of the proceedings. Yet the committee recommended to the executive committee of the
bank that the plaintiff be warned for negligence of duty and his salary be reduced by one notch. Upon further consideration, the executive
committee increased the punishment of the plaintiff without giving him a hearing. Instead of one notch of salary reduction, the executive
committee recommended four notches to the board of the bank, the disciplinary authority. The worst happened when the board ignored the
previous recommendations and dismissed the plaintiff on grounds of “gross misconduct.” This was done without notice or a hearing to the
plaintiff. The plaintiff whose petition against the dismissal was turned down, went to the High Court for a relief against unlawful dismissal. This
was upheld but reversed by the Court of Appeal.

On further appeal to the Supreme Court it was unanimously held that fair hearing and notice of disciplinary charges and proceedings are
constitutional requirements for adjudicating authorities and administrative bodies. Justice Bamford – Addo explained this to mean that the
plaintiff “should in the course of fair trail have been served with proper disciplinary charges and given adequate notice of the date of the hearings
as well as be given the opportunity to be heard.” A ‘proper notice to the plaintiff is a sine qua non to fair hearing of the case against him.’ The
Court was of the opinion that giving queries to the plaintiff does not exonerate the defendant from applying natural justice rules of fair hearing or
the bank’s disciplinary rules.
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See also Awuni v WAEC :

In the case of Accra Heart of Oak v Ghana Football Association (1982-83) GLR 11, the audi alterim partem rule (i.e. hear the other side) came to
play. The brief fact of this case is that after a football match played between Accra Hearts of Oak and Dumas on Sunday 29 March, 1981, some
spectators who were at the stadium expressed their dissatisfaction with the referee's handling of the match by indulging in acts of hooliganism which
resulted in a considerable damage to property at the stadium.

Although there was no evidence that the wanton acts of hooliganism and destruction were committed by supporters of Hearts, the Ghana Football
Association, in a press release, decided to ban Hearts from playing any "home" match at the Accra Sports Stadium until further notice. And further,
that the Ghana Football Association would decide the venue at which Hearts would play their "home" matches from time to time. Hearts brought this
action for an injunction to restrain the defendants from acting upon the said press release on the ground that they were not heard before the decision to
ban them was taken. The defendants conceded that the plaintiffs were not heard before the punishment was imposed. They contended, however, that
the plaintiffs had not disclosed any proprietary interest in the stadium which ought to be protected by the grant of an injunction.

On granting the application for an interim injunction, Korsah J (as he then was) held;

“Counsel for the plaintiffs has reminded me that the rule that no condemnation should be pronounced behind the back of a
man who has had no opportunity to appear and defend his interest either personally or by his proper representative dates
from the time of Adam. He says, God asked of Adam: "Where art thou? Has thou eaten of the tree whereof I commanded thee
that thou shouldst not eat?" And the same question was put to Eve also. We are not told whether any question was directed to
the serpent. But then it was not a man and the rules of natural justice probably did not apply to it.

To me, the law is clear and unambiguous; all judgments, even foreign judgments of a country which permit condemnation
behind the back of a man, when repugnant to this rule of natural justice, cannot be enforced in Ghana. Where, however, a
man has been given the opportunity to appear and answer charges against him, and does not avail himself of the opportunity,
he cannot be heard to plead a breach of this rule.”

He held futher;

“In my judgment, an act or decision consequential upon a contravention of the audi alteram partem rule may be restrained by
prohibition or an injunction or set aside by certiorari.

By far the most persuasive argument pressed upon me by the defendants is that the courts are ill-suited for proceedings of this
nature. But where the principles of natural justice are breached, there is no forum superior to the courts where redress can be
sought.”

REP. V. HIGH CORUT DENU, EX PARTE AGBESI AWUSU II (NO.2 (2003-2004) SCGLR 907

FACTS:

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 or 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, the decision will be invalidated - Dimes v. Grand Junction : In this case, the Chief Justice , Lord Cottenham unknown to him
owned shares in Grand Junction Canal Ltd, against which he granted an injunction. It was held that his owning shares in the company was
equivalent to him having a pecuniary interest in the case. The decision was therefore set aside and declared void.

Similarly, where the decision maker has a relational interest will be void-A-G v. Sallah ; Republic v. Constitutional Committee Chairman, Ex
parte Braimah; Rep . High Court Denu, Ex parte Agbesi Awusu II; Republic v. High Court Denu, Ex parte Agbesi Awusu II (No.2)

Ag v Sallah : Both Sowah and Apaloo JSCs were said to have a relational interest in the Sallah v AG case. Apaloo was said to be an intimate
friend of Sallah, that at times Sallah would reserve goods for purchase for Apalloo, hat the two on several occasions were head to be speaking in a
strange language and in very familiar tone. On one occasion they were even purported to have been seen having a meal of pork together at a
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restaurant by two musims on their way to hajj. For Sowah, it was said that his brother in law was part of the category of public officers whose
appointments had been terminated by the provisions of section 9(1) of the transitional provisions of the 1969 constitution that not withstanding he
had on the behalf of his in-law and sister spoken to a higher authority to have his in-law reinstated.

Ex Parte Agbesi Awusu 1: torgbi Sri and Torgbi Agbesi were in dispute as to who was the acting president of the traditional council. While the
dispute was unresolved, Agbesi convened a meeting with the Anlo traditional council to settle who the acting president of the council was and
subsequently published the results of the meeting. Torgbi Sri then brought an action for contempt against Torgbi Agbesi at the Denu high court.
While the action was pending in court, Judge Woanyah , travelled to Keta to attend a meeting on the issue of who was to be the acting president
of the Anlo traditional council. And though he was unable to attend, he later met with the DCE of Keta and expressed his doubts over Agbesi
wining the case. Agbesi then petitioned to have the case transferred, which led to an outpour of abusive language no him and his counsel by
Justice Woanyah in court. In a second suit, which sought a motion for the recusal of Judge Woanyah, Judge Woanyah without giving Agbesi a
hearing dismissed the suit. Agbesi then filed for an order of certiorari to quash the decision of Judge Woanyah in the SC on the grounds that the
principles of natural justice had been breached since Judge Woanyah not only aligned himself with the other party, but also because he had
demised the second suit without giving Agbesi a hearing.

In ex parte Barimah, Barimah sought for the decisions of the Constitutional committee headed by Mr. DeGraft Johnson to be quashed on the
basis of bias. Barimah’s allegations were based on the fact that Mr. DeGraft’s wife was closely related to the first complainant and the queen
mother of Fomena who were rooting for his destoolment. Plus DeGraft had in the past tried to settle the matter and had even on one occasion
threatened the Barimah and his group. furthermore DeGraft was the sideo fh te sect rooting for Barimah’s removal, was a clasoe friend of a
former occupant of the Adansi stool and had some involvement with the Fomena Elders.

The court in all three cases held that a suspicion of bias would not suffice as a real likelihood of bias unless proved by the party alleging
the likelihood of bias. That the test to use in such situations was the test of the real likelihood of bias, where the facts would be viewed
using the objective test, i.e. whether a reasonable observer from the facts of the case would conclude that there was a real likelihood of
bias. So while in Ex parte Barimah and AG v Sallah, the courts held sufficient evidence was not tendered to prove a real likelihood of
bias, they held in Ex parte Agbesi that there was a sufficient evidence to prove a real likelihood of bias.

PRE-DETERMINATION OF THE ISSUE

Asare v. Diaba v. Republic; Ex parte Agbesi Awusu Ii(No. 1). 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 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.

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.

The decision maker should not have fore-knowledge of the facts of the case. Where the decision maker appears to have such knowledge he hall
recuse. Ex Parte Braimah, Quist v. Kwantreng, Kwame v. Quaynor, Ex parte Agbesi Awusu

In Kwame v Quaynor, counsel for the appellant argued that the Judge was counsel for four cases, each concerning the Osu Alata lands and had
recent information on the judgment in Danquah v Offei which had facts similar to the case at hand. It was held that what Ollenu J as he then was
had was a foreknowledge of law not facts, that a foreknowledge in law was not equal to a foreknowledge of facts whci made his decision
voidable.

In Quist v Kwantreng, it was argued that since Ollenu J, as he then was had sat on the case previously, he had a foreknowledge of which meant
that he could not sit on the appeal since he was likely to be baised. It was held that this principle would not lie should the judge be one who on the
previous case had tried or encouraged the litigants to settle their matter out of court.

HOW DOES THE COURTS DETERMINE WHETHER ON THE FACTS OF A PARTICULAR CASE THERE IS BIAS ON THE
DECISION MAKER

In AG v. Sahllah, Ex parte Barimah, Ex Parte Agbesi Awusu, 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. The
test in Ghana however is whether there is a real likelihood of bias. Sallah v. AG

WHO HAS THE RESPONSIBILITY OF MEETING THIS STANDARD OR TEST

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AG V. Sallh, 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 Tsigata’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). Ex parte Braima, Ex parte Agbesi Awusu, the Supreme Court established that the standard proof of
balance of probabilities as against that of Ex parte Braimah which is not used

EXCEPTIONS TO THE RULE

 Where there is a statutory duty: where by statute or constitutional duty is imposed on the decision maker or office holder, then the rule
will not apply. When a statute enjoins you to perform a particular administrative duty. By the constitution or statute, it is the Chief
Justice who is to empanel the court –Akuffo Addo v. Quarshie-Idun, Agyei Twum v. AG and Akwetey. However where the chief
justice is sitting on the case he could be disqualified-Dimes v. Grand Junction
Akuffo-Addo v Quarshie-Idun : The General Legal Council issued a directive that a person who is not a licensed lawyer cannot
argue a case in court. The Chief Justice was part of the Gneeral Legal Council.The plaintiffs argued that the bench had been
empaneled by the Chief Justice who was a party in the suit, and therefore was likely to have selected his favourites to hear the case.
The court held that since it was a duty imposed on him by law and exercisable by him alone, in a conflict between the principles of
natural justice and statute, statue will prevail
Tsikata v Ag : Tsikata sued CJ. Argued that the practice direction of empaneling judges by the CJ in this instance is not correct and as
such he should allow the most senior to empanel. But court held otherwise that the duty to empanel is the reserve of the CJ.
Agyei Twum v AG: A petition for the removal of CJ Acquah. Acquah was same person who empaneled the justices.
 Necessity: 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
BILSON V APALOO [1981] GLR 15 : The plaintiff filed a writ against the Justice Apaloo, the CJ , before the SC for a declaration
to quash the judgment of the CA sitting as the SC in the case of Tuffour v AG on the grounds, inter alia that (a) the five judges who
constituted the court did not constitutionally hold valid nominations to sit in the said suit since Justice Apaloo , who had empaneled
the court acted in contravention of articles 114(5), 121 (2) and section 3(1) of the transitional provisions of the Constiution , 1979; and
(b) it was judicially improper for the five judges constituting the panel of the CA to accept the invalid nominations to sit on the said
suit. At the hearing, counsel for the plaintiff raised a preliminary objection to the composition of the SC on the grounds that two
members of the panel hearing the case should not sit as members of the SC since they had also sat as members of the CA in Tuffour v
AG and that it was their judgment which was now being sought to be quashed. He further submitted that the natural justice rule
against bias would be infringed if the two judges in their own cause. Counsel contended that there was a real likelihood that the two
named justices would be biased in favour of the defendant.
Held: Nemo judex in causa sua arose in two ways : (i) where the adjudicator was disqualified because he had direct financial or
proprietary interest in the subject –matter of the suit; and (ii) there was a real likelihood that the adjudicator would be biased in favour
of one of the parties. There were however three situations where the presence of any of the said disqualifying elements under the rule
would not render the adjudicator incompetent to sit: (a) it was always open to the parties, on their being apprised of the disqualifying
elements to wavie their rights to object to the adjudicator sitting in the particular case; (b) an enactment might permit an adjudicator to
sit or might save the adjudication from invalidty; and (c) an adjudicator who might be otherwise disqualified would be nevertheless
eligible and indeed obliged to sit if there was no other competent tribunal or if the quorum wouldn to be formed without him. The
policy reason being that justice should be dispensed even by a “disqualified” judge than there should be a failure of justice or that the
machinery of justice should grind to a halt in a particular case. 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 SC for the hearing of the case under Article
115(2) of the Constitution , 1979.
“The present composition of the SC is the CJ(who has been sued herein as the defendant) and six other Justices …[which]
represented the minimum number prescribed by article 115(1)(b) of the Constitution. Should the two named justices excuse
themselves from sitting…, there would be a total of only four justices of the SC left, that is, one short of the stipulated
mandatory minimum quorum of five under Article 115(2) …That being so, the grant of the plaintiff’s counsel’s request and
the withdrawal of the two named justices would automatically result in a failure of justice and in the inability of the SC as duly
constituted to hear and determine the plaintiff’s suit…This is a proper occasion calling for the invocation of the doctrine of
necessity to prevent a failure of justice, the allegation of bias against the two justices notwithstanding…”
 Acquiescence: the idea is that the principle against bias may be waived by a party and that the party should raise the objection in
relation to bias at the first opportunity after he or she becomes aware of the facts. Thus if you are aware of the facts indicating bias,
and you do not object and you go through it you will soon as possible after the hearing of the facts indicating bias

HUMAN RIGHTS

AFRICAN CHARTER ON HUMAN & PEOPLES RIGHTS (ACHPR)

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The African Charter on human and People’s Rights was adopted in Narobi Kenya in June 1981 and came into force on October 21 1986. It
attempts to protect human rights taken into consideration the African-socio-economic situation.

The charter is unique as it tries to expound an African conception of human rights, taking into account African culture while complementing it
with other universal (conventional) norms. The charter contains both civil and political rights as well as economic, social and cultural rights. Its
uniqueness is clearly sen in the way it provides for both the duties (obligations of individuals) and rights.

PRINCIPAL FEATURES

1. It proclaims not only rights but also duties : The charter imposes duties on individuals towards other individuals , families , societies,
communities and the international community. This is provided for under Articles 27, 28 and 29. An individual has a duty to another
individual to respect and consider them without discrimination. Individual duty to a family is to endeavor to preserve their harmonious
development and work for its respect and cohesion. Individual owes a duty to the state not to compromise the state’s security, to
guarantee its national independence and territorial integrity and also to pay taxes. Individuals are also under a duty to serve their
community by placing their physical and intellectual abilities at its service.
2. It codifies individuals as well as peoples rights : Under Article 20(1) and (2), the people’s rights protected are that : All persons are
equal and there shall be no domination by a person by another. People’s rights thus include the right to self-determination and the
freedom from the bond of domination by colonized or oppressed people. Under Article 21, the people have a right to permanent
sovereignty over and free use of their resources so as to take full benefit of their resources rather than being subjected to the foreign
and economic exploitation of international monopolies. Also under Article 22, the people have a right to the equal enjoyment of the
common heritage of mankind, Article 23 gives people right to national and international peace, security , solidarity and friendly
relations.
3. The Charter also protects economic, social and cultural rights: This can be seen in Article 14-18, which provides for the right to
property being guaranteed and could be only encroached in the case of public need or by appropriate laws (14); the right to work
under equitable and satisfactorily conditions (15); the right to enjoy medical attention hence the health protected (16); the right to
education (17); every individual shall have the right to take part in the cultural life of his community 17(2); protection of the family,
women , children, aged and physically challenged (18)
4. The Charter contains what is referred to as ‘claw-back clauses’: These are clauses that permit a state to restrict its treaty obligations or
the rights guaranteed by the Charter. The net result is that various national laws have primacy over the Charter. The Charter forbids for
example, in article 6 arbitrary arrest and retroactive legislation provided it is not contrary to a domestic law. On individual’s right to
receive information and disseminate views , Article 9(2) provides that “Every individual shall have the right to express and
disseminate his opinions within the law. Article 11 also provides that every individual shall have the right to assemble freely with
others. The exercise of this right shall be subject only to necessary restrictions provided for by law in particular those enacted in the
interest of national security, the safety , health, ethics and rights and freedoms of others”. Another claw-back clause is found in
Article 13(1) which stipulates that “every citizens shall have the right to participate freely in the government of his country, either
directly or through freely chosen representatives in accordance with the provisions of the law.” By permitting national laws to
supersede the Charter, it may permit the perpetration of human rights violations in various states.
5. The Charter places emphasis on African traditions as is seen from the preamble
6. The African Charter on Human and People’s Rights lacks a coercive and enforcement mechanism to ensure compliance with its
provisions. The Charter establishes an African Commission on Human and People’s Rights within the OAU (now African Union) “to
promote human and people’s rights and ensure their protection in Africa”.
7. The Charter did not start with a court system because African nations were not ready for it. They feared that the whole exercise would
be rejected. Again in traditional Africa, the Court system was not part of the scheme of things. Finally, there was a problem with
resources.

INDIVIDUAL COMMUNICATIONS

Per Article 55, communication could emanate from aggrieved individuals or on their behalf. There are however strict admissibility
requirements found in Article 5:

1. The communication must not be anonymous [but a person may request anonymity after the communication has been submitted
2. It must be compatible with the Charter of the AU and the African Charter itself
3. It must not be insulting
4. Not based on information exclusively disseminated through the mass media
5. Must have exhausted local remedies (however where it is clear that going through the whole process of exhausting the local remedy
will be useless, this requirement may be bypassed)
6. Submitted within reasonable time
7. Should not have been dealt with by another body of equal stature.
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THE INFORMATION GIVEN IS WITHOUT RESPONSIBILITY ON MY PART. DO WELL TO VERIFY AND MAKE THE
NECESSARY MODIFICATIONS!!!