CONSTITUTIONAL JUSTICE IN AFRICA (AN EXAMINATION OF CONSTITUTIONAL POSITIVISM,FUNDAMENTAL

LAW AND RIGHTS IN GHANA AND NIGERIA)-ATUDIWE P. ATUPARE.

CONSTITUTIONAL POSITIVISM IN CONTEXT.

CONSTITUTIONAL POSITIVISM IS A VERSION OF LEGAL POSITIVISM.ACCORDING TO DYZENHAUS, POSITIVISM IS

A RATHER THAN CONCEPTUAL STANCE CLOSELY RELATED TO THE IDEA THAT ‘JUDGES ARE COMMITTED TO
THE BY THEIR UNDERSTANDING OF THE DOCTRINE OF THE LEGISLATIVE SUPREMACY TO APPLYING THE LAW
ENACTED BY THEIR LEGISLATURES IN A MANNER TRUE TO THE IDEA THAT THE LEGISLATURE HAS A
MONOPOLY ON MAKING LAW,SO THAT JUDGES SHOULD SEEK TO UNDERSTAND STATUTES PROVIDING RULES
WITH DETERMINATE CONTENT’

IN SUCH CASES,THE EXPLICIT LAW ENACTED BY THE LEGISLATURE CONSTITUTES A DETERMINATE LEGAL NORM
APPLICABLE AT ALL TIMES UNLESS IT IS AMENDED OR REPEALED BY THE LEGISLATURE.

DYZENHAUS- IN COMMON LAW COUNTRIES LIKE GHANA AND NIGERIA,JUDGES HAVE AN INTERPRETATIVE
ROLE THAT WOULD NOT ALLOW THEM TOASSUME THE POSITION OF POSITIVISTS THAT THE LEGISLATURE’S
LAWW IS THE ONLY SOURCE OF LAW.

CONFLICT SOMETIMES ARISES BETWEEN ORGANS OF GOVERNMENT CONCERNING THE JUDICIARY’S

INTERPRETATIVE ROLE. A RESPONSE TO THIS TENSION DEFINES CONSTITUTIONAL POSTIVISM:THE JUDICIARY
IN THE POSITIVIST CONTEXT WILL ALWAYS SEEK TO YIELD TO THE LEGISLATURE’S COMMANDS

BECAUSE OF THIS TENDENCY TO SUBMIT TO THE POWER OF THE LEGISLATURE TO MAKE LAWS,THERE IS
OFTEN A STRICT INTERPRETATION OF THE LAWS SINCEE MOST OF THE TIME JUDGES WOULD SEK TO
RELAGATE THEIR MORAL NOTIONS TO THE BACKGROUND AND THIS LIMITS THE SUBSTANTIVE CONCEPTION
OF LAW AS AN ASPIRATIONAL VALUE.

BY ANALOGY, A WRITTEN CONSTITUTION DRAFTED BY A CONSULTATIVE ASSEMBLY AND ADOPTED THROUGH

A NATION WIDE REFERENDUM WILL IMPOSE A SIMILAR FORCE OF THE CONSTITUTIONAL POSITIVIST JUDGE…
THOUGH STATUTES AND CONSTITUTIONS IN THIS CONTEXT ARE BY NO MEANS THE SAME IN TERMS OF EITHER
FORM OR CONTENT,THE CONSTITUTIONAL POSITIVIST JUDGE UNDERSTANDS THEM BOTH AS EXHAUSTIVE
ACCOUNTS OF OPERATIVE LEGAL NORMS AND PRINCIPLES IN THE STATE

SUCH AN UNDERSTANDING IS INFORMED BY THE FACT BOTH DOCUMENTS HAVE BEEN DULY ENACTED BY THE
COMPETENT AUTHORITIES IN THE COUNTRY AND QUESTIONS OF MORAL BASIS FOR ENACTMENTS DO NOT
EXCITE THE POSITIVIST JUDGE.HE IS CONTENT TO FOCUS ON THE FACTUAL BASIS FOR THE ENACTMENTS AND
WILL NOT VENTURE OUTSIDE THE LEGAL TEXTS TO THE SURROUNDING TERRAIN OF POLITICAL MORALITY.
POSITIVISM WOULD SEEM TO AMOUNT TO A CRUDE SUBORDINATION OF THE JUDGE’S INTERPRETATIVE ROLE
TO THE NARROW SEARCH FOR INTENT OF LEGISLATORS OF THE WRITTEN CONSTITUTION

THE ASPIRATIONAL MORAL VALUE OF LAW COUNSELS JUDGES AGAINST THIS ENGAGEMENT AND WILL
REQUIRE OF JUDGES THAT THEY RELY ON ARGUMENTS ABOUT WHAT MORAL IDEALS THE LEGISLATURE
OUGHT TO BE TRYING TO ACHIEVE (SUCH VALUES MAY BE EXPLICIT IN THE CONSTITUTION OR DERIVABLE
FROM THE TEXT OR THE UNWRITTEN CONSTITUTION OF COMMON LAW

WHEN ITCOMES TO DYZENHAUS,THERE IS A TENSION BETWEEN LAW AS AN ASPIRATIONAL VALUE AND THAT
WHICH IS A POSITED FACT IN RESPECT OF DUALISM. IN THE PARTICULAR CASE OF DUALISM BETWEEN
DOMESTIC LAWS AND INTERNATIONAL HUMAN RIGHTS NORMS,JUDGES OF CONSTITUTIONAL POSITIVIST
LEARNINGS WILL HOLD ON TO THE CONCEPTION THAT UNLESS INTERNATIONAL H.R NORMS ARE EXPLICITLY
INCORPORATED INTO DOMESTIC LAW BY THE LEGISLATURE,SUCH NORMS ARE INAPPLICABLE AND THIS
REMAINS TRUE EVEN IF IT IS PROVEN THAT THEIR INCORPORATION WILL ENHANCE THE NORAMTIVE VALUEOF
DOMESTIC LAW. A SIMILAR CASE WOULD RESULT IF FUNDAMENTAL PRINCIPLES OF COMMON LAW CLASH
WITH CLASH WITH NORMS OF STATUTORY LAW.

 IN THIS WORK,IT WILL BE ARGUES THAT IN OUR INCREASINGLY GLOBALISED WORLD,A LEGAL SYSTEM
WHICH TAKES THIS PATH LOOKS SET TO REMAIN INSULAR IN UNDERSTANDING ITS CONSTITUTION
AND MAY DISDAIN CONSTITUTIONAL JURISPRUDENCE AND MAJOR INTERNATIONAL HUMAN RIGHTS
NORMS THAT ARE PART OF THE POST WAR GLOBAL HUMAN RIGHTS CONSTITUTUENCY.
 COMPARATIVE JURISPRUDENCE IS AT THE CENTRE OF SERIOUS JUDICIAL INQUIRES. AT BEST IT
NOURISHES THE PRESUMPTION THAT THERE IS A SIGNIFICANT DEGREE OF CONGRUENCE BETWEEN
PROBLEMS AND THEIR POSSIBLE SOLUTIONS ACROSS THE SPECTRUM OF COMTEMPORARY
CONSTITUTIONAL DEMOCRACIES. IN OTHER WORDS, THERE ARE UNIVERSAL CONSTITUTIONAL IDEALS
THAT LIE BEYOND THE LIMITED LEGAL JURSIDICTION OF A PARTICULAR COUNTRY. NATIONAL COURTS
ARE ENCOURAGED TO ENGAGE CONSTITUTIONAL JURISPRUDENCE OF FOREIGN COURTS IN THE
COURTS OF JUDICIAL SETTLEMENT OF CONSTITUTIONAL QUESTIONS.
 JUSTICE CLAIRE L’HEREUX-DUBE ‘JUDGES ARE NOT INTO PASSIVE RECEPTION OF FOREIGN DECISIONS
BUT IN ACTIVE AND ONGOING DIALOGUE
 DUALISM IS ONE PART OF THE GENERAL ASSAULT BY CONSTITUTIONAL POSITIVISM ON THE
CONCEPTION OF LAW AS AN ASPIRATIONAL MORAL VALUE.
 WRITTEN CONSTITUTIONAL PROVISSIONS MUST NOT BE INTERPRATED AS PROVIDING CONCLUSIVE
LEGAL MEANING ON POINTS WHERE INVOKED BUT RATHER AS A ‘MANIFESTATION OF MORE
ABSTRACT PRINCIPLES FROM WHICH UNEXPRESSED LEGALPROPOSITIONS CAN BE DERIVED. AN
EXCLUSIVE FOCUS ON BARE WRITTEN CONSTITUTIONAL INTERPRATION THAT DISDAINS THE UTILITY
OF ABSTRACT BUT COMPELLING LEGAL PRINCIPLES
 THOMAS GREY- WHEN JUDGES INTERPRET ABSTRACT CONSTITUTIONAL LANGUAGE THEY
EFFECTUATE ‘VALUES NOT ARTICULATED IN THE CONSTITUTIONAL TEXT THEREBY GIVING
EXPRESSION TO AN UNWRITTEN CONSTITUTION . IN THIS WAY,JUDICIAL INTERPRETATION SEEKS THE
VALUE OF HAVING A COMPREHENSIVE AND COHERENT CONSTITUTIONAL ORDER
 CURRENT POLITICAL AND LEGAL ISSUES CANNOT BE RESOLVED MERERLY THROUGH A STRICT FOCUS
ON TEXT. ADOPTING AS A DEFINITIVE CODE THE TEXTUAL PROVISONS OF WRITTEN CONSTITUTIONS
IS A DANGEROUS PRESUMPTION IN FAVOUR OF AN UNSUBSTANTIANED LEGAL PROPOSITION THAT
TREATS THE WRITTEN TEXTS NOT ONLY AS EXHAUSTIVE BUT ALSO COMPREHENSIVE IN ITS VALUES.
 ANY MEANINGFUL CONSTITUTIONAL DISCOURSE OR INTERPRETATION WITH THE VIEW TO ACHIEVING
A UNITY OF CONSTITUTIONAL JUSTICE MUST THEREFORE INVOLVE THE COURTS IN A THREE TIERED
APPROACH
 1. THEY MUST RECOGNISE AND APPLY THE VALUES OF LEGAL LEAGAL HISTORY AS FASHIONED BY
POLITICAL EXPEREIENCE AND THE FUNDAMENTAL PRINCIPLES OF COMMON LAW
CONSTITUTIONALISM,THEY MUST EMBRACE A PURPOSIVE-PROGESSIV INTERPRETATIVE MODEL AND
THEY MUS ADOPT A WILLING INCLINATION TO ENGAGE IN A DIALOGICAL COMPARATIVE
INTERPRETATIVE APPROACH, THIS OBJECTIVE CANNOT BE ACHIEVED BY MERE LOGICAL DISQUISITION
ON THE CONSTITUTION ALONE. THE ULTIMATE END OF THIS IS TOCONCEIVE THE CONSTITUTIONS IN
GHANA AND NIGERIAAS MORALLY IDEAL LAWS FOR THE COLLECTIVE WELLBEING OF THE PEOPLE.

CHAPTER 5
THE CHAPTER WILL EXAMINE DIFFERENT STYLES OF CONSTITUTIONSL INTERPRETATION IN GHANA
AND NIGERIA IN PARTICULAR JUDGMENTS ILLUSTRATING CONSTITUTIONAL POSITIVISM AND
JUDGMENTS ILLUSTRATING NON POSITIVIST STYLES
CONSCIENCE OF THE CONSTITUTION AND THE COURTS INTERPRETATIVE APPRAOCHES
IF THE CENTRAL AND GENRAL ASSUMPTION UNDERLYING OUR MAIN ARGUMENT IN THIS BOOK IS
THAT THE WRITTEN CONSTITUTIONAL TEXTS OF GHANA ND NIGERIA ARE NEITEHR HOLLOW HOPES IN
 THE SEARCH FOR PROGESSIVE GOALS NOR DO THEY REPRESENT AN EXHAUSTIVE ACCOUNT OF LEGAL
VALUES THAT ARE NECESSARY FOR A COMPREHENSIVE CONCEPTION OF LAW AS A MORAL IDEAL, WE
MUST BEGIN OUR ANALYSIS WITH SOME SPECIFIC ANSWERS TO SOME PRELIMINARY BUT VERY VITAL
QUESTIONS.
 WHAT DO JUDGES IN GHANA AND NIGERIA THINK “ THE CONSTITUTION” IN THEIR RESPECTIVE
COUNTRIES IS?
 HOW DO THEY GO ABOUT INTERPRETATING THEIR CONSTITUTION?

GHANAIAN AND NIGERIAN LOCATE THE SOVEREIGNTY IN THE PEOPLE AND ASSUME THAT THE
SOVEREIGN WILL OF THE PEOPLE IS THE SOURCE OF THE CONSTITUTION
THE SOVEREIGN DECALRES THE WRITTEN CONSTITUTION TO BE SUPREME LAW FROM WHICH ALL
GOVERNMENTAL AUTHORITY IS DERIVED AND AGAINST WHICH ALL LAWS MAY BE MEASURED AND
JUDGED
 THE SOVEREIGN PEOPLE IN MAKING THEIR CONSTITUTION COMMITS ITSELF TO A SERIES OF BASIC
PRINCIPLES OF POLITICAL MORALITY,INCLUDING FREEDOM,EQUALITY,DEMOCRACY,JUSTICE,GOOD
GOVERNMENT AND THE RULE OF LAW AND IT IS CLEAR THAT THE PROVISIONS OF THE WRITTEN
CONSTITUTION ARE MADE TO FULFLL THESE POLITICALLY MORAL COMMITMENTS

THE WRITTEN CONST BEING A MANIFESTATION IN WRITTEN FORM OF A MORE ABSTRACT,

UNDERLYING FUNDAMENTAL LAW THAT SUPPORTS IT AND MAY IN THE RIGHT CASE,SUPPLEMENT IT.
 FRANCIS Y KPEGAH JSC- THE FRAMERS OF THE CONSTITUTION HAVE GIVEN US THE UNIQUE
OPPORTUNITY TO FASHION OUR OWN JURISPRUDENCE WHICH WILL SERVE OUR PECULIAR NEEDS
AND ASPIRATIONS AS GHANAIANS.
GHANA
AS A GENRAL OBSERVATION,IT MAY BE SAID THAT GHANAIAN JUDGES SEEM SLIGHTLY MORE OPEN
TO THE SORT OF BROAD AND FLEXIBLE READING OF THE CONSTITUTION THAT NON-POSITIVISTS
ENDORSE.
GHANAIAN JUDGES SEEM MORE WILLING TO ACKNOWLEDGE OPENLY THE NEED TO INTERPRET THE
CONSTITUTION IN LIGHT OF ITS SPIRIT
IT IS ACKNOWLEDGED THAT NATIONAL CONSTITUTION IS A REFLECTION OF THE NATION’S HISTORY
AND THE ENBODIMENT OF THE NOBLE ASPIRATIONS OF ITS FRAMERS- REPUBLIC V TOMMY
THOMPSON BOOKS LTD
IN THE INTERPRETATION OF OUR NATIONAL CONSTITUTION ONE MUST APPLY A BROAD AND LIBERAL
SPIRIT- REP V INDEPENDENT MEDIA CORP PER SOPHIA AKUFFO
A NATIONAL CONSTITUTION LIKE OURS BEING A LIVING DOCUMENT EXPECTED TO MEET THE NEEDS
AND CHALLENGES OF THE PRESENT AND FUTURE GENERATIONS OUGHT TO BE INTERPRETED
BROADLY AND LIBERALLY ACOORDING TO ITS LETTER AND SPIRIT- MENSIMA V AG
SOWAH J IN TUFFOUR V ATTORNEY GENERAL
“ A WRITTEN CONSTITUTION SUCH AS OURS IS NOT AN ORDINARY ACT OF PARLIAMENT. IT EMBODIES
THE WILL OF THE PEOPLE AND IT MIRROS THEIR HISTORY. ACCOUNT THEREFOE NEEDS TO BE TAKEN
OF IT AS A LANDMARK IN A PEOPLE’S SEARCH FOR PROGRESS. IT CONTAINS WITHIN IT ASPIRATION
FOR A BETTER AND FULLER LIFE.
THE CONSTITUTION HAS ITS LETTER OF THE LAW. EQUALLY, THE CONSTITUITON HAS ITS SPIRIT… ITS
LANGUAGE…MUST BE CONSIDERED AS IF IT WERE A LIVING ORGANISM CAPABLE OF GROWTH AND
DEVELOPMENT…A BROAD AND LIBERAL SPIRIT IS REQUIRED FOR ITS INTERPRETATION.IT DOES NOT
ADMIT OF A NARROW INTERPREATATION. A DOCTRINAIRE APPRAOCH TO INTERPRETATION WILL NOT
DO. WE MUST TAKE INTO ACCOUNT ITS PRINCIPLES AND BRING THAT CONSIDERATION TO BEAR,IN
BRINGING IT INTO CONFORMITY WITH THE NEEDS OF THE TIME.
SOWAH WOULD LATER STATE “OUR INTERPRETATION SHOULD THEREFORE MATCH THE HOPES AND
ASPIRATIONS OF OUR SOCIETY AND OUR PREDOMINANT CONSIDERATION IS TO MAKE THE
ADMINSTRATION OF JUSTICE WORK”- REPUBLIC V HIGH COURT,ACCRA; EX PARTE ADJEI
IN RE AKOTO- STATEMENTS IN THE 1960 CONSTITUTION CONCERNING HUMAN RIGHTS COULD NOT
LIMIT LEGISLATIVE SOVEREIGNTY.

THE CONNECTION BETWEEN CONSTITUTIONAL THEORY,TYRANNY AND AKOTO WAS EXPLAINED BY

AMUA- SEKYI JSC IN NEW PATROITIC PARTY V INSPECTOR GENERAL OF POLIC. AMUA SEKYI JSC BEGAN
BY OBSERVING THAT IT WAS ASSUMED UPON INDEPEDENCE THAT “OUR FORMER RULERS LEFT US
THE KIND OF DEMOCRACY THAT THEY KNEW WHICH WAS OF COURSED BASED ON THE DOCTRINE OF
PARLIAMENTARY SOVEREIGNTY. UNDER THIS BRITISH DOCTRINE OF PARLIAMENTARY SOVEREIGNTY
( FAITH IS PLACED IN THE GOOD SENSE OF THOSE EHO FOR THE TIME BEING WIELD POWER”. IN
OTHER WORDS, IT IS A YSTEM THAT WORKS BEST “IN A SOCIETY WHERE TOLERENCE OF DIVERGENT
VIEWS IS REGARDED AS NECESSARY FOR THE WELL BEING OF THE COMMUNITY.
BUT ADHEREING TO A RIGID VIEW OF LEGISLATIVE SOVEREIGNTY, THE JUDGES IN EARLY POST
INDEPENDENT GHANA UPHELD GRACONIAN LAWS AND UNWITTINGLY LAID THE GROUNDWORK FOR
TYRANNY.
ACCORDING TO AMUA SEKYI JSC WITH THE AKOTO DECISION, “ ALL RESISTANCEE TO OPPRESSION
CAME TO AN END” AND “ WE RAMMED DOWN OUR THROATS, A CONSTITUTIONAL TYRANNY WHICH
LED TO A ONE PARTY STATE”. ALTHOUGH OUR CURRENT CONSTITUTIONS HAVE ENTRNCHED HUMAN
RIGHTS AS A WAY TO RESCUE US FROM SUCH AN ABYSS OF DESPAIR”. JUDGES ARE STILL UNSURE
ABOUT HOW TO APPROACH THE ISSUE OF CONSTITUTIONAL INGTERPRETATION.
“ LIKA A BIRD KEPT IN A CAGE FOR YEARS, WE HAVE COME TO THINK OF THE CAGE AS HOME RATHER
THAN A PRISON. THE DOOR HAS BEEN FLUNG WIDE OPEN,YET WE HUDDLE IN A CORNER AND
REFUSE TO LEAVE”
CHARLES HAFRON BENJAMIN JSC HAD STATED THAT IN ADOPTING PARLIAMENTARY SOVEREIGNTY IN
AKOTO THE JUDGES “UNDERMINED THE VERY FABRIC OF THE 1960 CONSTITUTION AND LITERALLY
PUSHED ASIDE CERTAIN PRINCIPLES AND FUNDAMENTAL HUMAN AND CIVIL RIGHTS WHICH HAVE
BECOMESA BULWALK OF THE CONSTUTION OF THE 1992 CONSTITUTION; OUR COUNTRY MEN AND
WOMEN HAVE LEARNT A BITTER LESSON FROM THAT JUDGEMENT AND NOW THE SPIRIT OR
CONSCIENCE OF THE CONSITUTION 1992 AND MUST BE OUR GUIDE”

NOT SLL JUDGES SEEM TO HAVE SEEN THE LESSON OF AKOTO IN THE SAME WAY. THE CASE OF
AMIDU V PRESIDENT KUFFOUR& OTHERS IS ILLUSTRATIVE. HERE, A DECALRATION SOUGHT THAT THE
APPOINTMENT BY THE PRESIDENT OF GHANA OF CERTAIN OFFICIALS WITHOUT CONSULTING THE
COUNCIL OF STATE VIOLATED PROVISONS OF THE CONSTITUTION. ONE ISSUE FACING THE COURT
WAS WHETHER THE PRESIDENT WAS THE APPROPRIATE DEFENDANT,GIVEN THAT ARTICLE 57(4) OF
THE CONSTITUTION GIVES THE PRESIDENT IMMUNITY FROM THE SUIT FOR THE PERFORMANCE OF
HIS PRESIDENTIAL FUNCTIONS. IN THE COURSE OF CONCLUDING THAT THE PRESIDENT COULD NOT
BE SUED IN THIS CASE , ATUGUBA JSC STATED
“THE PROPER CONSTRUCTION OF THIS PROVISION IS QUITE VEXED. IMUST CONFESS THAT IF IT WERE
OPEN TO ME TO SO HOLD,I WOULD HAVE EARGERLY HELD THAT THE PRESIDENT COULD BE SUED IN
THE PERFORMANCE OR PURPOTED PERFORMANCE OF HIS FUNCTIONS UNDER THE CONSTITUTION
SINCE THAT WOULD ADVANCE CONSTITUTIONALISM,THE RULE OF LAW AND THE NEGATION OF THE
NEGATION OF THE BEMOANED DAYS OF IN RE AKOTO. BUT AS WAS APTLY PUT BY SMITH J IN
BALOGUN V EDUSEL “THE COURTS OF JUSTICE TO FULFILL,NOT TO DESTROY THE LAW”
CRITICISM
IN FACT, ARTICLE 57(4) IS OPEN TO A DIFFERENT INTERPRETATION FOR ON ITS OWN TERMS IT IS TO
OPERATE “ WITHOUT PREJUDICE” TO ARTICLE 2 OF THE CONSTITUTION, WHICH PROVIDES FOR
DECLARATORY ACTIONS OF CONSTITUTIONAL INCONSISTENCY. SO IT IS HARD TO SEE WHY IT WAS
NOT OPEN TO THIS JUDGE TO READ IMMUNITY PROVISON NARROLY SO THAT A DECLARATORY
ACTION COULD BE BROUGHT AGAINST THE PRESIDENT UNDER ARTICLE 2 AND THE IDEALS OF
CONSTITUTIONALISM AND THE RULE OF LAW THEREBY ADVANCED.
IT IS ALSO UNCLEAR WHY THIA JUDGE THOUGHT THAT ADVANCING THE RULE OF LAW,WHICH IS
ARGUABLY A PRECONDITION FOR THE LAW ITSELF,MIGHT SOMEHOE BE INCONSISTENT EITH
LAW,THST IT MIGHT DESTROY THE LAW UNLESS OF COURSE HE ACCEPTED THE CONSTITUTIONAL
POSITIVIST VIEW IMPLICIT IN AKOTO.
ATUGUB