CONSTITUTIONAL LAW

ONE (1)
WHAT IS A CONSTITUTION, AND ITS NATURE ESPECIALLY THE 1992
CONSTITUTION OF GHANA?
The constitution, according to the Black’s Law Dictionary, is ‘the fundamental and organic law of a
nation or state that establishes the institution and systems of government, defines the scope of
governmental sovereign powers, and guarantees individual civil rights and civil liberties’.
Simply, Constitution refers to a system of laws which regulates how a country is govern.
In relation to types of Constitution, constitution may be classified into two main types. That is:
1. Written Constitution
2. Unwritten Constitution
A Constitution is said to be a written constitution if the governance framework is in a single
document.
A constitution is said to be unwritten, not that the laws are not in writing, but the constitution is
unwritten because they are found in a different but related document. For example, the UK
constitution.
According to Sir Ivor Jennings, “if a constitution means a written document, then obviously Great
Britain has no Constitution. In Countries where such a document exists, the word has that meaning.
But document itself merely sets out rules determining the creation and operation of governmental
institution, and obviously Great Britain has such rules. The phrase British Constitution is used to
describe such rules.”
It can therefore be concluded that a constitution is used in two senses; a wider sense of a constitution
and narrower sense of a constitution. In its wider sense every constitution has a constitution.
As indicated some countries have unwritten constitution. Unwritten in the sense that the
constitution is not codified into one written document but closely related document.
According to K.C Wheare MODERN CONSTITUTION, “…the word constitution is used to describe
not the whole collection of rules, legal and non-legal, but rather a selection of them which has usually been
embodied in one document or in a few closely related document.”
It must be stated emphatically that the Ghanaian Constitution is a written Constitution. A
documental constitution reflects the beliefs and political aspirations of those who have framed it.
This is very true of the Constitutions of Ghana since independence.
It is trite learning that the 1992 constitution is a written Constitution based on which laws, and act
of persons are measured. Having considered the nature of the 1992 constitution as a written
constitution, what then are the special feature and uniqueness of the 1992 Constitution.
The Sources of laws in Ghana, as provided under Article 11, include:
1. The Constitution
2. Enactments by parliament
 3. Existing laws
4. Subsidiary legislations
5. Common law of Ghana
According to Thomas Paine, a Constitution is “a thing antecedent to a government and a
government is only the creation of a Constitution. A constitution is not the act of a government but
of a people constitution a government. A government without a constitution is power without right”.
Note that Thomas Paine’s definition is inclined to countries with written constitution.
the constitution precedes the government. Therefore, for there to be a fully functional government
a constitution must be in place or must exist.
The 1992 Constitution is a body of work which embodies the various principles by which the
government works and carries out its obligations and responsibilities. The government’s structure,
functions and powers are spelled out in the constitution.
The constitution describes and clearly defines the framework, body, operating systems and
limitations of the government, thereby controlling and regulating the affairs and activities of the
government. The arms of government which are the legislature, the judiciary and the executive
body were begotten by the constitution and abide by principles which are clearly spelled out in the
constitution examples of which are the principle of Separation of Powers and the principle of Checks
and Balances.
The executive, legislative and judiciary arms of government are defined in chapters 8, 9, and 11 of
the 1992 Constitution of The Republic of Ghana respectively. Each chapter defines the limits, roles,
responsibilities and functions of the persons who occupy positions in these three arms of
government. The extents to which their power can be used is stated and their privileges are also
made known. This makes the government purely a creation of the constitution, a system which is
brought into being by the express acts and statutes of the constitution.
According to Thomas Paine “Individuals themselves, each in his own personal and
sovereign right, entered into a contract with each other to produce a government: and this is the
only mode in which governments have a right to arise, and the only principle upon which they have
a right to exist…”

Also, the 1992 Constitution of Ghana embraces certain Doctrines or concepts such as:
➢ Separation of power (Articles 57,93,125… 78(hybrid system))
➢ Checks & Balances (Articles 75,78,69,106(7), 141, 181, 174, 2(1) &130)
➢ Rule of law (Articles 17, 23, 296, 12, etc)
➢ Judicial Review (Articles 2(1) & 130)
➢ Protection of Fundamental Human Rights (Chapter 5)
➢ Constitutionalism
➢ Constitutional Supremacy as opposed to parliamentary supremacy (Article 1(2)
Additionally, the Sovereignty of Ghana resides in the people of Ghana in whose name and for whose
welfare the powers of government are to be exercised in the manner and within the limits laid down
in this Constitution.” – (Article 1of the 1992 Constitution of Ghana).
The constitution is drafted and written by citizens of a country with the necessary legal knowledge
required to create and produce such an important, fundamental document. The 1992 Constitution
is not actually a parliamentary made law as under article 106 of the 1992 Constitution.
However, it made by the people of Ghana taken into account their Political, economic, social,
cultural, and religious aspirations.
In the celebrated case of Tuffuor v. Attornery-General [1980] GLR 637 at 647, CA sitting as
SC the court said:
“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…”
The constitution also sets up the government to be run by the people through representatives
elected or selected by a majority of the citizens of that country who are eligible to do so. The people
of a country constitute the government, that is, they possess the power and right to bring a
government into being. Sovereignty is given to the citizens of a country to decide who they want
the government of the country to comprise. For example, the executive arm of the government is
voted in power by the citizens of a country who meet the requirements of the Universal Adult
Suffrage. The parliamentary arm of government consists solely of Members of Parliament for
various constituencies who have been voted into power by the residents of those constituencies who
fit the requirements of the Universal Adult Suffrage.
The people of a country also have the right to amend or change aspects or all of the constitution if
they so wish.
In some cases, however, governments may arise by way of coup d’états or overthrows, which may
lead to military rule, a style of government in which the leader of the country arises from the military
of that country and has the power that comes with his position as leader or ruler of the country, but
has no right to exercise the power in any which way. According to the constitution, the only
legitimate way for a government to come into power is by the citizens of the country being governed
to elect or vote the party or people they want to occupy the various positions in the arms of
government. In the case of a military rule, an individual or a group of people from the military of a
state or country resort to coup d’états in order to gain power or control over the nation. In such
situations, the power that is accorded to the ruler or president of the state automatically switches to
the military ruler of the state even though he has no right according to the constitution of the land
to exercise this power. After the coup d’état, the military is faced with the issue of choosing a system
of government to use.
Therefore, this government that exists without a constitution is a power without a right because
they did not ascend into power by the rightful method (being voted into power by the eligible
citizens of the nation) and there ‘have a power without a right’ as the Citizenry may not have
exercised their Constitutional right under Article 42 of the constitution.
It is also important to reiterate that, among the laws in Ghana, the Constitution is the Supreme law
of the land. It must be stated that a constitution is a law used to govern a state, that is the relationship
between state institutions and the people.
Article 1(2) of the 1992 constitution provides that, the 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.
In the case of Tuffuor v Attorney General, [1980] GLR 637, it was held that, the constitution is
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 and of no effect.” That was the
constitutional criterion by which all acts could be tested and their validity or otherwise established.
Neither the Chief Justice nor any other person in authority could clothe himself with conduct which
the Constitution had not mandated.
Importantly, In the case of Mensima v Attorney General [1996-1997] SCGLR 676 where the
Supreme Court declared regulation 3(1) of LI 239 as null and void for contravening the Constitution,
particularly Article 21(1)(e) because it of its compulsory requirement for an applicant for a distiller’s
license to belong to a registered distiller’s cooperative, Acquah JSC said
“Article 1(2) of the 1992 constitution is the bulwark which not only fortifies the
Supremacy of the Constitution but also makes it impossible for any law or provision
inconsistent with the Constitution to be given effect to.”
From the above, it can be said that the nature of the 1992 Constitution being supreme law of the
land is important because there must be a set of rules which will provide a yardstick for which all
others laws will be measured and conform to. Also, the constitution must be the supreme law of
Ghana because it is a political duty which embodies the will of the people.
Furthermore, because of the special nature of the Constitution as embodying the will and aspiration
of the people who made, the Supreme Court adopts a special approach or principles in interpreting
any provision of the Constitution. Thus, in the celebrated case of Tuffuor v. Attorney-General
[1980] GLR 637 at 647, CA sitting as SC the court said:
“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.”
“… 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 interpretation. A
doctrinaire approach to interpretation would not do. We must take account of its principles and bring that
consideration to bear, in bringing it into conformity with the needs of the time”
Also, in the case of of New Patriotic Party v. Attorney-General [1993-94] 2 GLR 35 (31st
December case), Francois JSC noted at page
“A constitutional document must be interpreted sui generis, to allow the written word and the spirit that
animates it, to exist in perfect harmony. It is interpreted according to principles suitable to its particular
character and not necessarily according to the ordinary rules and presumptions of statutory interpretation: see
Minister of Home Affairs v Fisher [1979] 3 All ER 21, PC. This allows for a broad and liberal
interpretation to achieve enlightened objectives while it rejects hide-bound restrictions that stifle and subvert
its true vision.”

It must be stated that considering the fact that the 1992 Constitution has a unique nature as a source
of law, stringent rules have been made for it amendment, especially amendment of entrenched
provisions of the Constitution which requires a referendum to be held throughout Ghana.
Article 289 of the 1992 Constitution provides that:
(1) Subject to the provisions of this Constitution, Parliament may, by an Act of Parliament, amend
any provision of this Constitution.
(2) This Constitution shall not be amended by an Act of Parliament or altered whether directly or
indirectly unless:
(a) the sole purpose of the Act is to amend this Constitution, and
(b) the Act has been passed in accordance with this Chapter.
This means that any purported amendment of the Constitution that does not comply with Chapter
25 would be unconstitutional and of no effect.
In summary, the Constitution of Ghana can be said to be a written constitution, and is the supreme
law of the land. 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 exercises. It is a
source of strength. It is a source of power. It is a document that embodies the will of the People and
confers rights on them.
TWO (2)
AMENDMENT OF THE 1992 CONSTITUION, AND WHETHER THE 1992
CONSTITUTION CAN BE REPLACED BY ANY MEANS UNDER THE LAWS OF
GHANA.
Taking inspiration from what HLA Hart theory, there is an effective legal system if that legal system
makes room for secondary rules in addition to the primary rules. This is because the primary rules
which imposes duty and confer right is only applicable in primitive States. Therefore, Hart
recommended secondary rules to supplement the primary rules. Among Hart’s primary rules is the
secondary rule of change (amendment) since the primary rules are static. Hence, the Drafter of the
Constitution thought it wise to dedicate a whole chapter for amending the Constitution. That is
chapter 25 of the 1992 Constitution.
To examine objectively, article 289(1) of the 1992 Constitution provides that Subject to the
provisions of the Constitution, Parliament may, by an Act of Parliament, amend any provision of
the Constitution.
This means that, among the arms of Government, is Parliament that has the power to amend the
Constitution.
Article 289(2) Provides that this Constitution shall not be amended by an Act of Parliament or
altered whether directly or indirectly unless (a) the sole purpose of the Act is to amend this
Constitution, and (b) the Act has been passed in accordance with this Chapter.
This means that Constitution can only be amended by an Act of Parliament, and that Act of
parliament must be passed solely for the purpose of amending the Constitution.
Importantly, the amendment must be made in accordance with the procedure set out under chapter
25 of the 1992 Constitution, and not any other purpose.
Whether a constitution is flexible or rigid depends on the extent to which is amenable to
amendment.
What then is the procedure for amendment?
The Constitution provisions for the purposes of amendment has been classified into:
➢ Entrenched provisions; and
➢ Non- Entrenched provisions.
PROCEDURE FOR AMENDING ENTRENCHED PROVISIONS
According to article 290(1), examples of entrenched provisions are articles 1,2,3; chapter 5 &
Chapter 8 etc.
According to Article 290(2), procedures for the amendment of entrenched provisions are:
➢ A bill for the amendment of an entrenched provision shall, before Parliament proceeds to
consider it, be referred by the Speaker to the Council of State for its advice and the Council
of State shall render advice on the bill within thirty days after receiving it.
➢ The bill shall be published in the Gazette but shall not be introduced into Parliament until
the expiry of six months after the publication in the Gazette under this clause.
➢ After the bill has been read the first time in parliament it shall not be proceeded with further
unless it has been submitted to a referendum held throughout Ghana and at least forty per
cent (40%) of the persons entitled to vote, voted at the referendum and at least seventy-five
(75%) per cent of the persons who voted cast their votes in favour of the bill.
➢ Where the bill is approved at the Referendum, parliament shall pass it.
➢ Where a bill for the amendment of an entrenched provision has been passed by Parliament in
accordance with this article, the president shall assent to it.
➢ However, article 292 provides that a Bill for the amendment of the Constitution which has
been passed in accordance with the Constitution, shall be assented to by the President only
if
(a) it is accompanied by a certificate from the Speaker that the provisions of the Constitution
have been complied with in relation to it, and
(b) in the case of a Bill to amend an entrenched provision, it is accompanied by a certificate from
the Electoral Commission, signed by the Chairman of the Commission and bearing the seal of
the Commission, that the Bill was approved at a referendum in accordance with Chapter 25.

PROCEDURE FOR AMENDING NON-ENTRENCHED PROVISIONS

Article 291(1) provides that a bill to amend a provision of the Constitution which is not an
entrenched provision shall not be introduced into parliament unless:
➢ It has been published twice in the Gazette with the second publication being made at least
three months after the first, and at least ten days have passed after the second publication
➢ The Speaker shall, after the first reading of the bill in Parliament, refer it to the Council of
State for consideration and the Council shall render advice on the bill within thirty days after
receiving it.
➢ Where parliament approves the bill, it may only be presented for his assent if it was approved
at the second and third reading of it in parliament by votes of at least two thirds of all the
members of parliament.
➢ Where the bill has been passed in accordance with this article, the president shall assent to
it.
➢ However, article 292 provides that a Bill for the amendment of the Constitution which has
been passed in accordance with the Constitution, shall be assented to by the President only
if it is accompanied by a certificate from the Speaker that the provisions of the Constitution
have been complied with in relation to it.
The amendment would be taken to have been made after gazetting. Article 106(11) provides that
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.
It must be stated that there some provisions in the Constitution that cannot be amended. Section
37 of the Transitional Provision provides that notwithstanding anything in Chapter 25 of this
Constitution, Parliament shall have no power to amend this section or sections 34 and 35 of this
Schedule. This means that, sections 34, 35 and 37 of the Transition provision cannot be
amended.

On the issue as to whether or not the 1992 constitution can be replaced by any means
under the laws of Ghana, obviously, the Constitution is silence on this question. However, as
previously stated, article 289(1) of the 1992 Constitution provides that Subject to the provisions
of the Constitution, Parliament may, by an Act of Parliament, amend any provision of the
Constitution.
This means that, among the arms of Government, is Parliament that has the power to amend
the Constitution.
Article 289(2) Provides that this Constitution shall not be amended by an Act of Parliament or
altered whether directly or indirectly unless (a) the sole purpose of the Act is to amend this
Constitution, and (b) the Act has been passed in accordance with this Chapter.
This means that Constitution can only be amended by an Act of Parliament, and that Act of
parliament must be passed solely for the purpose of amending the Constitution.
Importantly, the amendment must be made in accordance with the procedure set out under
chapter 25 of the 1992 Constitution, and not any other purpose.
For argument sake, the Constitution can be amended by adding, deleting or altering certain
provisions or chapters in the Constitution, excluding section 34,35, and 37 of the Transition
provision which cannot be amended.
That amendment would be made in accordance with chapter 25 of the 1992 Constitution. Where
even article 1 to 299 is amended, the Constitution would continue to be the 1992 Republican
Constitution of Ghana, and not changing the Constitution completely.
To have a new Constitutional order would require revolution by which the existing
constitutional order would be abolished by a proclamation and a new constitutional order would
be installed in its place.
According to Hans Kelsen, theory which was espoused in the case of Sallah v Attorney General
“…from a juristic point of view, decisive criterion of a revolution is that the order in force is overthrown
and replaced by a new order in a way in which the former had not itself anticipated. Usually, the new men
whom a revolution brings to power annul only the constitution and certain laws of paramount political
significant putting other norms in their place. A great part of the old legal order ‘remains’ valid also
within the frame of the new order. But the phrase ‘they remain valid’ does not give an adequate description
of the phenomenon. . . . The laws which in the ordinary inaccurate parlance continue to be valid are, from
a juristic viewpoint, new laws whose import coincides with that of the old laws. They are not identical
with the, old laws because the reason for their validity is different. . .Thus, it is never the constitution
merely but always the entire legal order that is changed by a revolution.”
The basic norm of the legal order whose validity, according to Kelsen, is presupposed validates the
historically first constitution which in turn confers norm-creating power.
Thus: “[T]he hierarchical structure of the legal order of a State is roughly as follows: presupposing the
basic norm, the constitution is the highest level within national law. The constitution is here understood,
not in a formal, but in a material sense. The constitution in the material sense consists of those rules which
regulate the creation of the general legal norms, in particular the creation of statutes”
Even though, Hans Kelsen’s theory has been subject to criticisms, the general norm has been that
to have a new Constitutional order would require revolution by which the existing constitutional
order would be abolished by a proclamation and a new constitutional order would be installed in its
place.
It must be stated that any such act would amount to subversion and treasonable offense.
Article 3(3) of the Constitution provides that a person who
(a) by himself or in concert with others by any violent or other unlawful means, suspends or
overthrows or abrogates this Constitution or any part of it, or attempts to do any such act, or
(b) aids and abets in any manner any person referred to in paragraph (a) of this clause, commits the
offence of high treason and shall, on conviction, be sentenced to suffer death.
Section 180 of the Criminal Offenses Act, Act 29 provides that
(1) A person who commits high treason is liable to suffer death.
(2) For the purposes of subsection (1), high treason has the meaning assigned to it by clause (3) of
article 3 of the Constitution.

From the above discussion, it can be submitted that the Constitution cannot lawfully be replaced or
changed completely under the laws of Ghana. The only means to have a completely different
constitution is through Revolutionary means which will either suspended or abrogate the
Constitution which is treasonable offense.
My recommendation is that if there are certain provisions in the Constitution which Ghanaians want
them changed, Ghanaians can call amendments proceedings to be commenced under chapter 25 of
the Constitution. This is because, in my opinion, the whole Constitution cannot be said to be
ineffective. If we are to agree that the whole constitution is ineffective, then it would mean that the
provisions on fundamental human rights and Constitutional rights which even allows Ghanaians to
call for the amendments of the Constitution would also be changed. I don’t think that’s the case. If
Ghanaians wants substantial changes to made to the constitution, the appropriate means is by
amendment of the Constitution not changing it completely.
THREE (3)
PROCEEDINGS AGAINST THE PRESIDENT (EXECUTIVE); PROCEEDINGS AGAINST
THE SPEAKER (PARLIAMENT) (IMMUNITY PROCEEDINGS); AND DOCTRINE OF
NON-JUSTICIABLE POLITICAL QUESTION.

In relation to proceedings against the President, it must be first stated that Article 2(1) of
Constitution provides that a person who alleges that (a) an enactment or anything contained in or
done under the authority of that or 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.
Any person used under Article 2(1) includes the President. By article 57(1), the president is Head of
State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana. Article
58(1) provides that the executive authority of Ghana shall vest in the President and shall be
exercised in accordance with the provisions of this Constitution.
Even though, any person used in article 2(1) of the Constitution may generally include the president,
Article 57(4) provides that the President shall not, while in office, be liable to proceedings in any
court for the performance of his functions, or for any act done or omitted to be done, or purported
to be done, or purported to have been done or purporting to be done in the performance of his
functions, under this Constitution or any other law. However, this provision is subject to the
prerogative writs.
The effect of section 57(4) is that, under the constitution and other enactments, the President has
been given certain functions. If in the course of the president performing his function he breaches
any law, the act or omission of the president can be challenged in court. However, the President
cannot be made a party to the suit. The party to sue is the Attorney General under article 88(5) of
the Constitution since the Attorney General is the lawyer for the State and the legal advisor to the
President. Therefore, under article 57(4), it is said that the President enjoys procedural immunity
but not substantive immunity.
In New Patriotic Party v Rawlings [1993-94] 2 GLR 193, and Amidu v Kuffuor[2001-2002]
2 GLR 510 , the court held that the President cannot be sued personally in court for his executive
actions and that, under article 57(4) of the Constitution, 1992 the executive actions of the President
might be challenged by an action in the Supreme Court either under article 2 of the Constitution,
1992 or by the prerogative writs but that action must be instituted against the Attorney General.
Also, Article 57(5) provides that the President shall not, while in office as President, be personally
liable to any civil or criminal proceedings in court. This provision is relation to the acts and
omissions of the President in his personal capacity nut not official capacity. Here, the Attorney
General cannot be sued since the act of the president would not be done in the name of the State.
This means that no lawsuit can be filed against the president personally as far as he continues to be
the President. Therefore, under article 57(5), the President enjoys both substantive and Procedural
immunity.
However, Article 57(6) provides that Civil or criminal proceedings may be instituted against a
person within three years after his ceasing to be President, in respect of anything done or omitted
to be done by him in his personal capacity before or during his term of office notwithstanding any
period of limitation except where the proceedings had been legally barred before he assumed the
office of President. This means that even though the President cannot be sued under article 57(5) of
the Constitution in relation to his personal criminal and civil liability, under article 57(6), civil or
criminal action may be instituted against such a person within three years after living office. Also,
no statute of limitation shall be applicable in relation to the suit against the President when he leaves
office except where the proceedings had been legally barred before he assumed the office of
President.
In the US Supreme Court case of Clinton v Jones, 520 U.S. 681 (1997), where President Clinton
fought charges of sexually harassing Mrs Jones before he became the President of the US, the court
held that, the Constitution does not protect the President from litigation involving actions
committed before he entered office. The United States Supreme Court case established that a sitting
President of the United States has no immunity from litigation against him, for acts done before
taking office and unrelated to the office.
The immunity or otherwise of the Speaker of parliament from court proceedings
Under article 101 of the 1992 Constitution, the Speaker of Parliament is the head of parliament and
he presides over all meetings in parliament and in his absence a Deputy Speaker shall preside.
Invariably, the speaker of Parliament represents Members of Parliament as their head. Therefore, if
there is any suit against parliament, the Speaker may be made a party to the suit. However, as result
of separation of powers, where each organ of government has been given separate functions,
parliamentary matters are generally immune from court proceedings so as to prevent the Judiciary
from dictating to parliament on what to do.
Article 115 of the 1992 Constitution provides that there shall be freedom of speech, debate and
proceedings in Parliament and that freedom shall not be impeached or questioned in any court or
place out of Parliament.
Also, article 116 makes a provision to the effect that civil or criminal proceedings shall not be
instituted against a member of Parliament in any court or place out of Parliament for any matter or
thing brought by him in or before Parliament by petition, bill, motion or otherwise.
In Tuffuor v Attorney General 1980] GLR 637, where the Speaker of Parliament was made a
party to the law suit, the court held that The courts did not, and could not, inquire into how
Parliament went about its business. In so far as Parliament had acted by virtue of the powers
conferred upon it by law, its actions within Parliament were a closed book. The Speaker therefore
ought not be a party in the instant proceedings and the, court accordingly discharged the Speaker
as a party.
The effect of this is that, if parliament exercises the functions and powers in accordance with law,
the Courts cannot question parliament since parliamentary proceedings are generally non-
justiciable. However, if in the case of performing their functions, they do so on a breach of the law,
then the matter becomes a legal issue to be adjudicated by the Courts. It is important to add that
the immunity granted to Members of Parliament, including the Speaker, is in relation to their official
functions related to parliamentary matters, but not their personal acts and omissions.
It is therefore concluded that the Speaker of Parliament enjoys immunity in relation to
parliamentary proceedings conducted in accordance with law.

Is there any circumstance the Court will decline jurisdiction over acts and omissions of the
Executive and legislation in relation to the performance of their functions?
This will require the discussion of the DOCTRINE OF NON-JUSTICIABLE POLITICAL
QUESTION.

A question is said to be non-justiciable, if the question is not subject to scrutiny or adjudication by

the Court.
Among the three (3) organs of government, the organs who are said to have political functions to
perform is Executive and the legislature. However, the Judiciary has been given judicial power to
check the executive and the Legislature whenever they exercise their political functions.
Based on the concept of separation of powers, there are certain acts and omissions of the Executive
or Legislature that the Judiciary would decline jurisdiction over if the question is purely a political
question but not a legal question. That is where the exercise of that executive and legislative
function does not have any infraction on the law.
The doctrine of non-justiciable political question originated from the historic American Supreme
Court case of Marbury v Madison (1803), where Chief Justice John Marshall drew a distinction
between two different functions of the Secretary of State. He opined that when the Secretary of State
was performing a purely discretionary function, such as advising the president on matters of policy,
he was not held to any legally identifiable standards, therefore some of the secretary’s actions are
unable to be reviewed by a court of law.
In the history of the Ghana legal system, there has been three main cases in which the Supreme
Court has had to consider the application or otherwise of the doctrine under the 1992 constitution;
and these are: New Patriotic Party v Attorney General (31st December case), Ghana Bar
Association v Attorney General (Abban case) and J.H. Mensah v Attorney General.
In the New Patriotic Party v Attorney General (31st December case), the Supreme Court held
that it had jurisdiction to determine political questions because in the exercise of its constitutional
obligation, of enforcing or interpreting the constitution, 1992, per articles 2(1) and 130, it might
decide cases involving political questions. The judges held that the matter at hand, whether or not
in the celebration of the 31st December coup d’état was in contravention of the constitution raised a
question which bordered on constitutional interpretation and the Supreme Court had the
jurisdiction to adjudicate. Out of the five justices who were in the majority, three of them were of
the opinion that it was immaterial whether or not the matter involved a political question; as long
as it raised an issue of constitutional interpretation, the Supreme Court could lawfully decide such a
case. The judges in the minority believed that the fixing of a date as a public holiday was a policy
decision, best left to the executive and legislature to determine, and that judging from the history
of declaration of public holidays in Ghana that right had never been interfered with by the courts.
In the Abban case, the plaintiffs brought an action for a declaration that the 2nd defendant “is not a
person of high moral character and proven integrity” per article 128(4) of the 1992 constitution and
that his appointment as a Chief Justice of Ghana was in contravention of articles 91(1and 2), and
144(1), and was therefore null and void. The defendant, in a preliminary objection, raised the issue
whether the Supreme Court had the jurisdiction to entertain a matter which the defendant argued
bordered on the doctrine of non-justiciable political question.
The court unanimously upheld the preliminary objection of the defendant on the grounds that the
principle of non-justiciable political question was applicable to the 1992 constitution and that the
principle was inherent in the concept 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 posited that, articles 91(1) and
144(1) had given the executive and legislature the mandate to appoint the Chief Justice. However,
Wiredu JSC, although concurring with the majority decision, dissented on the issue that the doctrine
of political questions was applicable to the constitution, 1992. In his opinion “…nothing done under
the constitution which is ultra vires its provisions can be justified under a plea of political immunity
and therefore privileged so as to oust the jurisdiction of the Supreme Court as the organ charged
with the responsibility to see to due compliance with the provisions of the constitution.”
In the JH Mensah case, the attorney general raised a preliminary objection, one of the grounds of
which was that the process by which parliament exercised its powers such as approval of ministerial
nominations could not be questioned by the courts under the non-justiciable political question
doctrine.
In this case the Supreme Court held that it had the jurisdiction to adjudicate any political question
provided it raised a constitutional issue that would require the interpretation or enforcement of the
constitution. Article 78 entitles parliament to give prior approval to a nominee before he is appointed
as a minister. This in itself is a delicate exercise in constitutional interpretation and it is the duty of
the court as the ultimate interpreter. In the light of the above, the courts cannot justifiably avoid its
constitutional responsibility and therefore has the duty and jurisdiction to interpret and enforce the
constitution.
This means that, if the issue before the Court is not a legal issue (alleged breach of law), but purely
political question (the exercise of political discretion) the Court will decline jurisdiction in Ghana
based on the doctrine of non-justiciable political question.

Read the recent case of JUSTICE ABDULAI v ATTORNEY GENERAL

FOUR (4)
JUSTICIABILITY OF THE DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP), AND
THE DPSP AS A TOOL FOR CONSTITUTIONAL INTERPRETATION.

A QUESTION ON THIS CONCEPT MAY BE ANSWERED IN THE FOLLOWING MANNER.

To examine objectively, Article 34(1) of the 1992 Constitution provides that “[T]he Directive
Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the
Judiciary, the Council of State, the Cabinet, Political Parties and other bodies and persons in applying or
interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the
establishment of a just and free society.” The legal effect of the above provision has been subjected to
interpretation by the Supreme Court on it justiciability. I shall herein demonstrate how the Directive
Principles of State Policy has been used as an aid or tool for interpreting the Constitution, and
importantly the justiciability of chapter is of the Constitution by reference to Supreme Court cases.
It is pertinent to reiterate that in practice; the directive principles raise inter alia two main issues
regarding:
(a)Their use as aids to statutory interpretation
(b)Their justiciability
According to Bimpong Buta, the Directive Principles of State Policy are aids to construction or
interpretation of the Construction or any other legislation per the wording of article 34(1) of the
Constitution, 1992. It must be stated that, the 1992 Constitution provided that the DPSP may be
use a guide in applying that Constitution. However, the 1992 Constitution has provided that the
DPSP shall be used a guide in
First, in the case of New Patriotic Party v. Inspector-General of Police (The Public Order Law)
[1993-94] 2 GLR 459, SC the Supreme Court held, per Hayfron-Benjamin JSC, that it was entitled
to take into consideration, the political objectives in article 35, being one of the Directive Principles
of State Policy in applying or construing article 21 (1) (d) the Constitution. That article dealt with
the enjoyment by all persons of the freedom of assembly including freedom to take part in
processions and demonstrations.
Second, in the subsequent case of New Patriotic Party v Attorney-General (Ciba Case) [1996-
97] SCGLR 729, the Supreme Court by a majority of four to one held that the Directive Principles
of State Policy had the effect of providing goals for legislative programmes and a guide for judicial
interpretation.
It is suggested that another opportunity offered itself to the Supreme Court in the case of New
Patriotic Party v. Electoral Commission [1993-94] 1 GLR 124. In that case, the Supreme Court
held that The Supreme Court held that the equitable defences of acquiescence and inaction or
conduct could not operate as a shield to prevent a citizen from ventilating and seeking the
enforcement of his constitutional rights as enshrined in article 2(1) of the Constitution; such
equitable defences would whittle down the efficacy of the provision in article 2(1). It is suggested
that the reasoning of the Supreme Court could be further supported by the application and reliance
on a provision in the Directive Principles of State Policy, namely, article 41(b) which enjoins all
citizens "to uphold and defend the Constitution and the law." Where a citizen or a statutory body
or political party has the mandatory duty to uphold and defend the Constitution in terms of article
41(b), it would be no defence to argue that because of an earlier failure or inaction to defend an
infringement of a provision in the Constitution, that person or political body is estopped from
bringing an action to enforce another provision of the Constitution in terms of article 2 (1).
In effect the courts are in practice always to be guided by the directive principles in interpretation
and where the court is faced with an interpretation of the constitution or statutory provision which
is inconsistent with the position stated in the directive principles on the one hand and an
interpretation which is inconsistent with the directive principle, the court is in duty bound to accept
the interpretation which is consistent with the directive principles.
Having demonstrated how the DPSP are used as a stool for Constitutional interpretation, the
question as to the justiciability of the DPSP shall be discussed with by reference to Supreme Court
cases.
As a matter of fact, while the authorities appear largely agreed that the DPSP can be used as aids,
there appears to be some controversy in the authorities on the question of justiciability.
The Black Law Dictionary 9th edition, defines justiciability as the quality or state of being
appropriate or suitable for adjudication by a court.
The first document in Ghana that commented on the Justiability or otherwise of the DSPS is
Committee of Experts Report which indicated that the DPSP is not justiciable. However, it must be
emphasised that the Consultative Assembly had rejected the proposal by the Committee of Experts.
Moreover, New Patriotic Party v. Attorney General (The 31st December Case) [1993-94] 2
GLR 35, which was the first Supreme Court’s decision on this matter, Per Adade JSC (as he then
was) noted inter alia that provisions such as in article 35(1) and 41(1) (b) were justiciable for the
reasons inter alia, that the constitution as a whole, including the provisions of Chapter 6 is justiciable
and that article 1 and article 2 made any law, or act or omission inconsistent with or in contravention
of any provision of the constitution null and void.
The Court held, in furtherance of the it position that the Constitution, 1992 as a whole was a
justiciable document and accordingly, if any part was non-justiciable, the Constitution itself had to
indicate it. But no provision in the Constitution had indicated that chapter 6 was not justiciable. Yet,
the evidence to establish the non-justiciability of the principles had to be internal to the Constitution
otherwise it would be in conflict with it and thus be void and inadmissible.

Furthermore, on the issue of justiciability, the Supreme court in New Patriotic Party v. Attorney
General (CIBA CASE) took a different position. In that case, the issue of justiciability concerned
inter alia the justiciability of articles 35(1) and 37 (2)(a) and (3). The SC held that the directive
principles of state policy had the effect of providing goals for legislative programmes and a guide
for judicial interpretation and were not of themselves legally enforceable by any court. The ratio
was that the DPSP were made up of both justiciable and non-justiciable provisions and those without
substantive articles in the Constitution are not justiciable.
Specifically, per Bamford Addo JSC the directive principles are guides only but nevertheless thought
that where provisions under chapter 6 of the constitution are made independent Rights either by
specific words or by necessary implication they of themselves become justiciable Rights.

Sophia Akuffo similarly expressed the view that the directive principles were only guides and that
where it is intended that the directive principles are to be justiciable they have been specifically
stipulated in other parts of the constitution as substantive categories. For example, the right to own
property, freedom of association etc as set out in chapter 5. On the other hand, some of the principles
such as those set out in article 36 (economic objectives) are in the view intended to be policy
guidelines and ultimate standards for measuring government performance.

A recent attempt was made by the highest court of the land to mitigate the uncertainty of the
justiciability of Chapter 6 of the Constitution. This attempt was made in the case of Ghana Lotto
Operators Association & Ors v National Lottery Authority .

In that case, the court did not follow the decision in CIBA’s case.

The Court was of the view that Bamford-Addo JSC failed (as do the other members of the court who
agreed with her) to consider the implication of the fact that the Committee of Experts’ proposal of
explicit language proclaiming that the principles should not be in and of themselves enforceable by
the courts was not accepted by the Consultative Assembly. In the Court’s view, omission of that
language is a strong pointer in favour of the Adade viewpoint.

The Court had this to say “As far as this present Court is concerned, we are of the view that, because there
is a conflict between two previous Supreme Court decisions, we are free either to choose between the two
decisions or to formulate a different rule that is right in our view, since there is currently no binding precedent.
We would humbly submit that that right rule is a presumption of justiciability in relation to the
provisions of Chapter 6 of the Constitution, 1992, as outlined above…

Applying this presumption of justiciability, our view is that the economic objectives laid out in Article 36 of the
Constitution are legally binding and are not merely a matter of conscience for successive governments of our
land. The objectives have, though, to be liberally construed in order not to interfere with the democratic
mandates of successive governments. Where, however, a government introduces legislation which is flagrantly
at odds with any of the objectives set out in the Article, we believe that this Court has jurisdiction to strike
down the provisions in the legislation which are incompatible with the objectives concerned. In short, article
36(2)(b) is justiciable.”

The Court was guided by the position that, considering article 1(2), and 2 (1), the Constitution, as a
whole was a justiciable document and accordingly, if any part was non-justiciable, the Constitution
itself had to indicate it. But no provision in the Constitution had indicated that chapter 6 was not
justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be internal to
the Constitution otherwise it would be in conflict with it and thus be void and inadmissible.

Therefore, considering the above discussion, it can be submitted authoritatively that the recent
position taken by the Supreme Court on the directive principles of state policy is that they are
presumptively justiciable. They are presumptively justiciable in that whenever a constitution
precedent any of them is fulfilled and a suit is brought, the court may decide whether that provision
has become justiciable or not.
FIVE (5)
CITIZENSHIP, AND QUALIFICATION TO HOLD CERTAIN OFFICES IN GHANA, &
PARLIAMENTARY ELECTION PETITIONS.

To examine objectively, citizenship is a right or entailment conferred by a State on a person based

on the laws of that state.
In Ghana, a person can become a citizen of Ghana by Birth, Adoption, Registration, and
Naturalization.
Article 6 provides that every person who, on the coming into force of this Constitution, is a citizen
of Ghana by law shall continue to be a citizen of Ghana.
Also, a person born in or outside Ghana after the coming into force of this Constitution, shall become
a citizen of Ghana at the date of his birth if either of his parents or grandparents is or was a citizen
of Ghana.
Additionally, a child of not more than seven years of age found in Ghana whose parents are not
known shall be presumed to be a citizen of Ghana by birth.
Sections 1 to 8 of the Citizenship Act, 2000 Act 591 provides further explanation on article
6(1)(2)(3).
It is important to also indicate that the 1992 Constitution allows a person to be a citizen of another
country an addition to his citizenship of Ghana. This has become known as the concept of Dual
Citizenship.
Article 8(1) of the Constitution provides that a citizen of Ghana may hold the citizenship of any
other country in addition to his citizenship of Ghana.
Similar provision has been made in section 16 of the Citizenship Act.
Article 8(2) makes provision to the effect that, without prejudice to article 94 (2) (a) of the
Constitution, a citizen of Ghana shall not qualify to be appointed as a holder of any office specified
in this clause if he holds the citizenship of any other country in addition to his citizenship of Ghana;
that is Chief Justice and Justices of the Supreme Court; Ambassador or High Commissioner;
Secretary to the Cabinet; Chief of Defence Staff or any Service Chief; Inspector-General of Police;
Commissioner, Custom, Excise and Preventive Service; Director of Immigration Service;
Commissioner, Value Added Tax Service; Director-General, Prisons Service; Chief Fire Officer;
Chief Director of a Ministry; the rank of a Colonel in the Army or its equivalent in the other security
services; and any other public office that the Minister may by legislative instrument prescribe.
(section 16 of the Citizenship Act)
In the case of Professor Stephen Kwaku Asare VRS. Attorney-General [2012] SCGLR, the
Court held that citizenship in this country is conferred by that law and that a Ghanaian can acquire
dual citizenship. The court also stated that a person who had acquired citizenship in another country
in addition to the citizenship of Ghana shall not qualify to hold certain key positions in Ghana stated
above.
The Court further subjected the Minister’s power given by the Constitution to disqualify person’s
from holding certain public offices specified by him by Legislative Instrument to questioning and
considered it as somewhat unjustifiable.
The above notwistanding, the office of an MP was not specified by Article 8 of the Constitution or
Section 16 of the Citizenship Act.
Article 8(2) provides that without prejudice to Article 94 (2) (a) of the Constitution, a citizen of
Ghana shall not qualify to be appointed as a holder of any office specified in this clause if he holds
the citizenship of any other country in addition to his citizenship of Ghana.
Article 94(2)(a) provides that a person shall not be qualified to be a citizen of Ghana if he holds
allegiance to a Country other than Ghana.
It must be noted that Article 8(2) uses citizenship and 94(2)(a) uses allegiance.
Allegiance literally means loyalty or commitment to a superior or to a group or cause.
This means that a person could owe allegiance to a country by citizenship, especially where the
citizenship is by choice being it registration or naturalization. This is because, to effectuate the
acquisition of the citizenship the person may take oath of allegiance and swear allegiance to that
particular country. Therefore, there is a rebuttable presumption that if you are a dual citizen, you
owe allegiance to a country other than Ghana, and hence you would be disqualified from being an
MP. (see Sumaila Biebiel v Adamu Dramani Sakandi, Michael Ankomah-Nimfah v. James
Quayson & EC, Assin North case)
Also, a person could owe allegiance to a country other than through citizenship. For example, if a
person is being enrolled in the security services of a country as a private agent or official agent. That
will require the person to swear allegiance to the State. This means that there is the possibility of a
person being disqualified as an MP even though he/she is not a dual citizen.
Moreover, a person may be a citizen of a particular country but would not necessarily owe allegiance
to that Country. This normally arises where a person was a citizen of a country by birth based on
certain traces to his/her grandparent or great-grandparent or ancestors and by default that person
becomes a citizen of that Country. Under this circumstance, the person may not owe allegiance to
the Country because, first no oath of allegiance is taken. Secondly, the person may not for his whole
life-time done any act that shows commitment or loyalty to that Country, but his acts show he is
committed and mostly connected to Ghana. If Ghana is to permit dual citizenship to disqualify based
on citizenship by birth through ancestral means, then most MPs will vacate their seat on the bases
of Article 94(2)(a). (see Bilson v Rawlings)
Therefore, in my humble opinion, the presumption that if you are a dual citizen, you owe allegiance
to a country other than Ghana, could be rebutted by proving the immediately preceding paragraph.

What then is the procedure, the locus standi, the grounds, and reliefs where Parliamentary
elections is being challenged.
Which Court has Original Jurisdiction over parliamentary election petitions?
In relation to matters concerning parliamentary election petitions, Article 99(1) of the 1992
Constitution provides that the High Court shall have jurisdiction to hear and determine any question
whether (a) a person has been validly elected as a member of Parliament or the seat of a member has
become vacant; or (b) a person has been validly elected as a Speaker of Parliament or, having been
so elected, has vacated the office of Speaker.
Section 16 of the Representation of the People Law, 1992 PNDCL 284 provides that
(1) The validity of an election to Parliament may be questioned only by a petition brought under
sections 17 to 26.
(2) An election petition shall be presented before the High Court for hearing.
The combine effect of article 99(1), and section 16 is that the Court with Exclusive original
jurisdiction over parliamentary election petition is the High Court. (see Michael Ankomah-
Nimfah v. James Quayson & EC, Assin North case)
Also, the means by which the jurisdiction of the High Court may be invoked is by Petition not writ
of summons.

Who has locus to challenge parliamentary elections?

Section 17 PNDCL 284 provides that an election petition may be presented by one or more of the
following persons:
(a) a person who lawfully voted or had a right to vote at the election to which the petition relates,
(b) a person claiming to have had a right to be elected at the election,
(c) a person alleging to have been a candidate at the election,
(d) a person claiming to have had a right to be nominated as a candidate at the election
The effect of section 17 is that only registered voters within the Constituency can submit the
petition, and in effect a person who is not a citizen of Ghana and a registered voter within the
Constituency cannot submit the petition to challenge

What is the time bound to present a petition?

Section 18(1) provides that an election petition shall be presented within twenty-one (21) days
after the date of the publication in the Gazette of the result of the election to which it relates,
but a petition questioning an election on an allegation of corrupt practice and specifically alleging a
payment of money or any other award to have been made by the person whose election is questioned
or to have been made on behalf of and to that person’s knowledge, may be presented within twenty-
one days after the date of the alleged payment.
(2) The presentation of an election petition under subsection (1) is not valid unless within the time
specified in subsection (1), the petitioner gives as security for costs an amount of money determined
by the High Court.
(3) The time limit provided by this section for the presentation of an election petition shall not be
extended

What are the grounds by which a petition may be brought to challenge parliamentary
election and same cancel or declared void?
Section 20 makes provision to the effect that he election of a candidate shall be declared void on an
election petition if the High Court is satisfied:
(a) that general bribery, general treating, general intimidation or other misconduct or
circumstances;
(b) that there has been non-compliance with a provision of this Act or of the Regulations;
(c) that a corrupt or illegal practice was committed in connection with the election by the candidate
or with the knowledge or consent of the candidate, or by an agent of the candidate; or
(d) that the candidate was at the time of the election a person not qualified or a person disqualified
for election. (kindly read the whole of article 94 to know of the grounds by which a person
would be disqualified from being a member of parliament)

What are the reliefs or orders that the Court may give after hearing a Petition?
Section 19 provides that after the hearing of an election petition the High Court may make any of
the following orders:
(a) declare that the election to which the petition relates is void,
(b) declare that a candidate other than the member whose election is questioned was duly elected,
or
(c) dismiss the petition and declare that the member whose election is questioned was duly elected.

Which Court has Appellate Jurisdiction over Parliamentary Election Petitions?

A person aggrieved by the determination of the High Court under this article may appeal to the
Court of Appeal.
In the case of In re Parliamentary Election for Wulensi Constituency, Zakaria v Nyimakan
[2003-2004] SCGLR 1, the Court held that even though there is a general provision under article
131 that an appeal shall lie from a judgment of the Court of Appeal to the Supreme court, and article
129 that the Supreme Court shall be the final court of appeal and shall have such appellate and other
jurisdiction as may be conferred on it by the Constitution or by any other law, the effect of article
99(2) is that there is no right of further appeal to the Supreme on matters relating to the validity of
election of a Member of Parliament. (The Court used the Generalia Specialibus Non Deragant
principle of interpretation.)
This mean that, the only Court with Appellate Jurisdiction over Parliamentary election petitions is
the Court of Appeal.
SIX (6)
LOCUS STANDI TO ENFORCE FUNDAMENTAL HUMAN RIGHTS; LOCUS STANDI TO
ENFORCE THE CONSTITUTION; AND THE HIGH COURT AND SUPREME ORIGINAL
JURISDICTION TO ENFORCE FUNDAMENTAL HUMAN RIGHTS, AND THE
CONSTITUTION RESPECTIVELY.
In relation to LOCUS STANDI to enforce fundamental human right, Article 140(2) provides that
the High Court shall have jurisdiction to enforce the Fundamental Human Rights and Freedoms
guaranteed by this Constitution.
Also, article 130(1) provides that subject to the jurisdiction of the High Court in the enforcement
of the Fundamental Human Rights and Freedoms as provided in article 33 of the Constitution,
the Supreme Court shall have exclusive original jurisdiction in (a) all matters relating to the
enforcement or interpretation of the Constitution.
Article 33(1) provides that where a person alleges that a provision of the Constitution on the
fundamental human rights and freedoms has been, or is being or is likely to be contravened in
relation to him, then, without prejudice to any other action that is lawfully available, that person
may apply to the High Court for redress.
The person used under article 33 has been interpreted to include Ghanaians and foreigners, and also
include both natural and artificial persons (registered association & corporate body)
The wording of article 33(1) suggests that a person will have locus to enforce human rights at the
High Court when the person alleges that his/her personal rights have been violated. This means
that if the person is suing on behalf of another person(s), the appropriate forum would not be the
High Court because the person would lack locus standi. Edusei v Attorney General.
In relation to LOCUS STANDI to enforce the Constitution at the Supreme Court, Article
130(1) provides that subject to the jurisdiction of the High Court in the enforcement of the
Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the
Supreme Court shall have exclusive original jurisdiction in (a) all matters relating to the
enforcement or interpretation of the Constitution; (b) all matters arising as to whether an enactment
was made in excess of the powers conferred on Parliament or any other authority or person by law
or under the Constitution.
Importantly, Article 2(1) provides that a person who alleges that (a) an enactment or anything
contained in or done under the authority of that or 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.
First, the person used under article 2 has been interpreted to mean a citizen of Ghana. Which means
that a foreigner cannot enforce the 1992 Constitution in the Supreme Court. Sam No.2 v AG
The person has also been interpreted to include both natural and article persons. (Ghana Bar
Association v Attorney General)
This means that every eligible citizen of Ghana who alleges violation of the constitution by an act
of any person or any law passed by parliament would have locus to enforce the Constitution,
(including chapter 5 -fundamental human right, when the person is not enforcing his personal right
but enforcing rights of others) by getting the Supreme to declare such an act or law unconstitutional.
Does the person need to have a communal or personal interest in the matter?
In the case of Tuffour v AG, and Asare v AG, the Supreme Court held that a person who seeks to
enforce a constitutional provision at the Supreme Court need NOT have any personal interest in the
matter. Such a person has locus as of right.
A person who does not have personal interest in a matter would have locus because as was held in
the case of Sam (No.2) v. Attorney-General, every citizen of Ghana is under a duty to defend and
uphold the Constitution as provided under article 3(4) and 41(b) of the Constitution.
Other useful cases on this position is the cases of Adjei Ampofo v AMA & AG, Martin Kpebu v
AG.
(Note: A person cannot enforce his personal right by commencing an action in the Supreme Court
for that purpose. The Appropriate court will be the High Court. Hence, if a person in the quest of
enforcing his personal hide behind the Supreme Court enforcement jurisdiction, and couch his claim
as enforcement of the Constitution, the Supreme court would decline jurisdiction. See Osei Boateng
v National Media Commission; Tait v Ghana Airways Corporation)

Does the Supreme court have concurrent original jurisdiction over enforcement of
fundamental human rights?
Having explained the law on locus standi, the next question is whether the Supreme Court has
concurrent original jurisdiction over enforcement of fundamental Human rights. The answer is NO.
This issue was resolved in the case of Adusei v Attorney General & another [1997-1998] 2 GLR
1.
In that case, the Supreme Court held that considering articles 2(1), 33, 130(1) and 140(2) of the
Constitution, the enforcement jurisdiction of the Supreme Court did not include the enforcement of
the provisions of the Constitution relating to the liberties of the individual as a court of first instance;
that jurisdiction had been expressly reposed on the High Court under article 33(1) of the
Constitution, 1992. That is, when it comes to person enforcing his own right, the Supreme Court
shall not have jurisdiction. The Court that has jurisdiction is the High Court.
Therefore, any contention that the Supreme Court had concurrent jurisdiction with the High Court
in the enforcement of fundamental human rights and freedoms would be inconsistent with the
exclusiveness of the original jurisdiction vested in the High Court in the main part of article 130(1)
of the Constitution, 1992. This is because article 130 (1) provides that the Supreme Court’s original
jurisdiction in the interpretation and enforcement of the Constitution is subject to the jurisdiction
of the High Court in enforcement of fundamental human rights and freedom provided under article
33 of the 1992 Constitution.
THE SUPREME COURT’S ORIGINAL JURISDICTION OF INTERPRETATION AND
ENFORCEMENT OF THE CONSTITUION.
THE DIVERGENT VIEWS OF THE SUPREME COURT AS TO WHETHER THE HIGH
COURT CAN ENFORCE THE CONSTITUTION
To examine objectively Article 125(3) makes provision to the effect that final judicial power shall be
vested in the Judiciary.
Article 126 makes provision to the effect that the Judiciary shall comprise of the Superior courts
which are the
Supreme Court
Court of Appeal
High Court and
Regional Tribunal; and any lower court as parliament may by law prescribed.

Article 140(1) is to the effect that, subject to the Constitution, the High Court has jurisdiction in all
matters whether civil or criminal.
However, Article 130(1) of the Constitution provides that subject to the jurisdiction of the High
Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article
33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in (a) all matters
relating to the enforcement or interpretation of the Constitution.
Article 140(2) of the Constitution makes provision to the effect that the High Court shall have
original jurisdiction in relation to the enforcement of fundamental human rights.
This means that it is only the Supreme court that can interpret and enforce the Constitution, except
the enforcement of a person’s personal right under article 33 to invoke the High Courts jurisdiction
under article 140(2)
Since the Supreme Court is the only Court to interpret the Constitution, article 130(2) makes
provision to the effect that whenever an issue of interpretation arises in a court below the Supreme
Court, the issue of interpretation should be referred to the Supreme court.
In the case of Republic v Special Tribunal, Exparte Akosah, the Supreme Court gave the
circumstances under the interpretative jurisdiction may be invoked, particularly under it referral
jurisdiction under article 130(2). They are:
(a) where the words of the provision were imprecise or unclear or ambiguous. Put in another way,
it would arise if one party invited the court to declare that the words of the article had a double
meaning or were obscure or else meant something different from or more than what they said;
(b) where rival meanings had been placed by the litigants on the words of any provision of the
Constitution;
 (c) where there was a conflict in the meaning and effect of two or more articles of the Constitution
and the question was raised as to which provision should prevail; and
(d) where on the face of the provisions, there was a conflict between the operation of particular
institutions set up under the Constitution
However, a lower court may apply a constitutional provision without referring the provision to the
Supreme Court, if the provision is clear and unambiguous, or the provision has already been
interpreted by the Supreme court as was held in the case of Republic v. Maikankan.

It must be stated, however, that the Supreme court took 2 different positions under it exclusive
jurisdiction under article 130 in relation to it enforcement and interpretative.
The first position was that the Supreme Court has original jurisdiction over interpretation of the
Constitution, but not enforcement of the Constitution unless the question for enforcement involves
interpretation of the Constitution. The word “or” used in article 130(1)(a) which reads “all matters
relating to the enforcement or interpretation of this Constitution” was construed to as “and” to mean
all matters relating to enforcement and interpretation. Therefore, enforcing jurisdiction of the
Constitution was to be exercised by the any court below the Supreme Court with Original
Jurisdiction as was held in the cases Republic v Special Tribunal, Exparte Akosah; and Osei
Boateng v National Media Commission. This was suggestive of the fact that the High Court can
enforce the constitution.
The second position was that the Supreme court has exclusion interpretation of interpretation or
enforcement of the constitution and it enforcement jurisdiction does not depend on interpretation,
and the word “or” makes the Supreme Court enforcement jurisdiction independent of interpretation
as was held in the case of National Media Commission v Attorney General; and Yiadom v
Amaniampong, Agbevor v Attorney General.
The position was finally settled by the case of Emmanuel Noble Kor v Attorney General, where
the Supreme Court departed from the decision in Osei Boateng v National Media Commission and
held that all cases after Osei Boateng v National Media Commission should not be followed.
In Emmanuel Noble Kor, the Supreme Court was of the view that article 2(1) which is titled
enforcement of the Constitution gives locus to citizens to enforce the constitution whenever any
person alleges that an act or a law is inconsistent with the constitution. This provision may be clear
and would not involve any interpretation of that provision.
Article 2(1) Enforcement of the Constitution
Provides that (1) A person who alleges that (a) an enactment or anything contained in or done under
the authority of that or 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 court to enforce the Constitution by a citizen has been expressly provided by the Constitution
to be the Supreme Court, and therefore taking the matter to a court other than the Supreme Court
will be wrong.
For example, if the President in appointing a minister does not comply article 78 of the Constitution,
the provision is clear and would not require any interpretation. Therefore, demanding interpretation
as a prerequisite to enforce the Constitution would render article 2(1) redundant.
Therefore, the present position of the law is that the Supreme Court’s exclusion original jurisdiction
relates to both enforcement of the Constitution, and Interpretation of the Constitution, or
interpretation and enforcement. That is, if the matter is only enforcement of the Constitution, the
Supreme Court would have jurisdiction. If it’s only interpretation, the Supreme Court will have
jurisdiction. If the matter is interpretation plus enforcement, the supreme Court will have
jurisdiction.
It can be submitted that the High Court does not the jurisdiction to enforce the Constitution
generally. The High Court’s jurisdiction is for the enforcement of fundamental human rights
provision under chapter 5 of the constitution when the action is specifically brought under article
33 of the 1992 Constitution. The Court with the exclusive jurisdiction to enforce the Constitution
generally is the Supreme Court under actions brought under Article 2(1) of the Constitution.
SEVEN (7)
PROCEDURE FOR REMOVAL UNDER ARTICLE 146 OF THE 1992 CONSTITUTION

Note that article 146 applies to the removal of:

➢ The Chief Justice
➢ A justice of the Supreme Court, Court of Appeal, and High Court
➢ The Electoral Commission, and the Deputies (Article 44)
➢ The Commissioner for CHRAJ, and the Deputies (Article 223)
➢ The Chairman & Deputy Chairman for NCCE (Article 236)
➢ The Auditor General (Article 187(13))

After an introduction, it would be appropriate to briefly discuss the creation of office, the
appointment and the functions of the office before proceeding to discuss the procedure for removing
the office holder.

Removal of Justices of the Superior Court and Chairmen of the Regional Tribunals
Article 146 provides as follows:
(1) A Justice of the Superior Court or a Chairman of a Regional Tribunal shall not be removed from
office except for stated misbehaviour or incompetence or on ground of inability to perform the
functions of his office arising from infirmity of body or mind.
(2) A Justice of the Superior Court of Judicature or a Chairman of a Regional Tribunal may only be
removed in accordance with the procedure specified in this article.
(3) If the President receives a petition for the removal of a Justice of the Superior Court other than
the Chief Justice or for the removal of the Chairman of a Regional Tribunal, he shall refer the petition
to the Chief Justice, who shall determine whether there is a prima facie case.
(4) Where the Chief Justice decides that there is a prima facie case, he shall set up a committee
consisting of three Justices of the Superior Court or Chairmen of the Regional Tribunals or both,
appointed by the Judicial Council and two other persons who are not members of the Council of
State, nor members of Parliament, nor lawyers, and who shall be appointed by the Chief Justice on
the advice of the Council of State.
(5) The Committee appointed under clause (4) of this article shall investigate the complaint and shall
make its recommendations to the Chief Justice who shall forward it to the President.
(6) Where the petition is for the removal of the Chief Justice, the President shall, acting in
consultation with the Council of State, appoint a committee consisting of two Justices of the Supreme
Court, one of whom shall be appointed Chairman by the President, and three other persons who are
not members of the Council of State, nor members of Parliament, nor lawyers.
(7) The Committee appointed under clause (6) of this article shall inquire into the petition and
recommend to the President whether the Chief Justice ought to be removed from office.
(8) All proceedings under this article shall be held in camera, and the Justice or Chairman against
whom the petition is made is entitled to be heard in his defence by himself or by a lawyer or other
expert of his choice.
(9) The President shall, in each case, act in accordance with the recommendations of the Committee.
(10) Where a petition has been referred to a committee under this article, the President may, (a) in
the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant
signed by him, suspend the Chief Justice; (b) in the case of any other Justice of the Superior Court
or of a Chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council,
suspend that Justice or that Chairman of a Regional Tribunal.
(11) The President may, at any time, revoke a suspension under this article.

The 1992 Constitution provides for rules of procedure that are to be followed before a justice of the
Superior Court can be removed from office. This is to ensure that allegations levelled against the
justice are thoroughly investigated and the persons, being accused, given the opportunity to state
their side of the story before any decision can be taken.
The rules of procedure governing the removal of a Justice of the Superior Court is provided for in
the 1992 Constitution, particularly article 146 of the Constitution. These stated rules of procedure
consolidate the supremacy of the Constitution, and thus no one organ of Government can purport
to arrogate itself with the powers to undertake any actions which in effect removes a justice from
office. It propagates the concept of constitutionalism. It is in that regard that Edward Wiredu, JSC
as he then was, while throwing his weight in favour of the unanimous decisions in the case of Ghana
Bar Association v. Attorney-General & Another (Abban Case) makes a similar point by stating
that ‘’….We of the judiciary have our limitations under the Constitution, 1992 and the judiciary as the
repository and watchdog of it, and enjoined to enforce and defend same, must be the first to respect the new
legal order and not to clothe itself with powers it does not possess……. We are all subject to the constitutional
supremacy. We should not by any means open the floodgate so wide as to circumvent what is not properly
cognizable in the courts under the Constitution. We as judges must not arrogate to ourselves powers we do not
have. We must however jealously guard against any attempt to erode the powers constitutionally vested in the
court by any person. We should recognize the limitations imposed on our powers by the Constitution, 1992.’’
The article 146(1) of the 1992 Constitution provides that a Justice of the Supreme Court cannot be
removed from office except for a stated misbehavior or on grounds of inability to perform the
functions of his or her office arising from infirmity of body or mind. As to what constitute ‘stated
misbehavior’’ is not provided for by the Constitution or that the Constitution does not provide a list
of behaviors that constitutes the ‘’stated misbehavior.’’
It must first be noted that the Constitution, as by article 146 considers, differently the removal of a
Chief Justice from the other Justices of the Superior Court or the Chairman of the Regional Tribunal,
even though the Chief Justice is a Justice of the Superior Court under the combined reading of
articles 128(1), 136(1)(a), 139(1)(a) and 146(6) of the Constitution. And so for the purposes of this
discussion we shall first take the rule of procedure involving the removal of a justice of the Superior
Court or the Chairman of the Regional Tribunal other than the Chief Justice.
In the case of removal of a Justice of the Superior Court other than the Chief Justice, the procedure,
in accordance with article 146(3), commences with a petition, involving the removal of that Justice,
to the President. The Supreme Court in Agyei Twum v. Attorney-General & Akwetey held that
the right to petition the President for the removal of any Justice of the Superior Courts is guaranteed
for every Ghanaian citizen [2005-2006] SCGLR 732. The constitutional framework provides that
the President upon receiving a petition for the removal of a Justice of a Superior Court shall refer
the petition to the Chief Justice, who shall determine whether there is a prima facie case.
Article 146(4) provides further that where the Chief Justice decides that there is a prima facie case,
she is mandated to set up a committee consisting of 3 Justices of the Superior Courts or Chairmen
of the Regional Tribunals or both, appointed by the Judicial council and two other persons who are
not members of the Council of State, or members of Parliament, or lawyers, and who are appointed
by the Chief Justice on the advice of the Council of State. It is important to note that article 146(8)
of the Constitution, 1992 provides that the proceedings of the committee appointed to deal with any
such petition "shall be held in camera" It is in this regard that Date Bah, JSC in Agyei Twum v AG
& Akwetey (2005-2006) SCGLR. 732 stated that ‘’the publication of the petition by the second
defendant to persons other than the President Contravened Article 146(8) of the Constitution, which
provides that all proceedings relating to the removal of a Justice of the Superior Court shall be held
in camera.’’ The Justice or Chairman against whom the petition is made is entitled to be heard in his
defence by himself or by a lawyer or other expert of his choice. By article 146(5), the Committee
appointed by the Chief Justice is mandated to investigate the complaint involving the removal and
shall make its recommendations to the Chief Justice who shall then forward it to the President. The
President is required to act in accordance with the recommendations of the committee
So also in this case, the Chief Justice can only be removed in accordance with the provisions of article
146 of the Constitution, 1992. The case of the removal of the Chief Justice, as by article 146(6), also
commences with a petition sent to the President for same to be done. The Supreme Court has been
very instrumental in determining whether a prima facie case must be established in the case of a
removal of the Chief Justice in the case of Agyei Twum v AG & Akwetey (2005-2006) SCGLR. 732.
Here, the second defendant, who is a lawyer and a citizen of Ghana, on 16th January 2006 sent a
petition, to the President, with a copy to the Chief Justice. Further copies were also sent to the
Secretary of the Ghana Bar Association, the Attorney-General and the Judicial Secretary. The
petition sought the removal of the Chief Justice on the grounds of judicial misconduct and abuse of
power. On March 9th 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. The Plaintiff complains that the appointment of a committee by the President to
inquire into the petition is unwarranted and unconstitutional on grounds that article 146(6) of the
Constitution must concurrently with Article 146(3) and (4) which requires 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.
The Court held that upon a proper purposive construction of the whole of article 146 in the context
of the Constitution viewed in its entirety, the Chief Justice must be given the benefit of a prior
determination of whether a prima facie case has been established against him before the President
may lawfully establish a committee to consider a petition for his removal. This prima facie
determination is to be made by the President in consultation with the Council of State.
The article further provides that where the petition is for the removal of the Chief Justice, the
President is mandated, by acting in consultation with the Council of State, appoint a committee
consisting of two Justices of the Supreme Court, one of whom shall be appointed Chairman by the
President, and three other persons who are not members of the Council of State, nor members of
Parliament, nor lawyers. Under article 146(7), the Committee appointed is mandated to inquire into
the petition and recommend to the President whether the Chief Justice ought to be removed from
office. The President shall, in this case too, act in accordance with the recommendations of the
committee.
Under article 146(10) where a petition has been referred to any of the Committee for the purposes
of the removal of a Justice of the Superior Court, the President may, in the case of the Chief Justice,
acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the
Chief Justice, and, in the case of any other Justice of the Superior Court or of a Chairman of a
Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice
or that Chairman of a Regional Tribunal.
NUMBER 8
To what extent is the jurisdiction of the Courts in Ghana in cause or matters affecting
chieftaincy limited?

This may be a guide if a question on Chieftaincy matters and the Jurisdiction of the Courts
in Ghana.

In Ghana, the institution of chieftaincy, together with its traditional councils as established by
customary law and usage is guaranteed as expressly provided by Article 270 of the 1992
Constitution. Parliament shall have no power to enact any law which confers on any person or
authority the right to accord or withdraw recognition to or from a chief for any purpose whatsoever;
or in any way detracts or derogates from the honour and dignity of the institution of chieftaincy. In
furtherance to that, the Jurisdiction of some Courts in Ghana have been ousted in respect of Cause
or matters affecting chieftaincy, and this essay shall highlight the extent to which the jurisdiction
of Courts in Ghana cause or matters affecting chieftaincy limited.

In relation to what is a cause or matter affecting chieftaincy, Section 76 of the Chieftaincy Act 759,
and section 117 of the Courts Act states that a "cause or matter affecting chieftaincy" means a cause,
matter, question or dispute relating to any of the following:
(a) the nomination, election, selection or installation of a person as a chief or the claim of a person
to be nominated, elected, selected or installed as a chief,
(b) the deposition or abdication of a chief,
(c) the right of a person to take part in the nomination, election, selection or installation of a person
as a chief or in the deposition of a chief,
(d) the recovery or delivery of stool property in connection with the nomination, election, selection,
installation, deposition or abdication of a chief, and
(e) the constitutional relations under customary law between chiefs.
In the case of Osei v Siribour II, it was held that the issue as to whether not a person is a member
of a royal family is NOT a cause or matter affecting chieftaincy.
Also, in the case of Republic v National House of Chiefs, Exparte Kokuroko, Interested party
Enimil, the act of inserting or deleting a chief’s name in the Register of Chief by the Registrar is an
administrative act, and it is NOT a cause or matter affecting chieftaincy.

WHICH COURTS HAVE JURISDICTION OVER CAUSE OR MATTERS AFFECTING

CHIEFTAINCY?
Articles 125(3) of the 1992 Constitution makes provision to the effect that, the judicial power of
Ghana shall be vested in the Judiciary.
Additionally, Article 126 provides that (1) The Judiciary shall consist of (a) the Superior Court of
Judicature comprising,
 (i) the Supreme Court,
(ii) (ii) the Court of Appeal, and
(iii) (iii) the High Court and Regional Tribunals;
(b) such lower courts or tribunals as Parliament may by law establish.

It must be added that section 39 of the Courts Act provides that the lower courts in Ghana,
shall include:
1. The Circuit Courts
2. The District Courts
3. Juvenile Courts
4. The various Judicial Committees of the Traditional Council & the Houses of Chiefs.
These Court exercise their Judicial power through Jurisdiction. Jurisdiction is the power or
competency of a body to decide or determine or adjudicate over a particular matter.
The Jurisdiction that a court may have includes:
a) Exclusive Original Jurisdiction
b) Original Jurisdiction
c) Appellate Jurisdiction
d) Supervisory Jurisdiction
e) Review Jurisdiction
f) Inherent Jurisdiction
g) Concurrent Jurisdiction
As a general position, Article 140(1) of the Constitution makes provision to the effect that the High
court has jurisdiction in all matters whether civil or criminal. However, in the case of Ghana Bar
Association v Attorney General, the Court held that since the High Court’s jurisdiction in all
matters is subject to the Constitution, the High Court’s original jurisdiction in all matters does not
include cause or matters affecting chieftaincy.
Section 57 of the Courts Act makes provision to the effect that the Court of Appeal, the High Court,
the Circuit Court, and the District Court do not have original and appellate Jurisdiction over causes
or matters affecting chieftaincy.
If these courts do not have Original or Appellate jurisdiction, then which Courts do?
To the extent that the laws of Ghana has given exclusive original jurisdiction to the chiefs over
causes or matters affecting chieftaincy, Courts, in the form of Judicial Committees have been
established under the Chieftaincy Act by parliament, and by section 39 of the Courts Act, these
Judicial committees are part of the lower Courts in Ghana.
Particularly, Section 29 of the Chieftaincy Act, provides that a Traditional Council has exclusive
jurisdiction to hear and determine a cause or matter affecting chieftaincy which arises within its
area, not being one to which the Asantehene or a paramount chief is a party, and that Jurisdiction
shall be exercised by the Judicial Committee of the Traditional Council.
Section 26 also provides that a Regional House has original jurisdiction in matters relating to a
paramount stool or skin or the occupant of a paramount stool or skin including queen mothers to a
paramount stool or skin, and that jurisdiction shall be exercised by the Judicial Committee of the
Traditional Council. See also Article 274.
In relation to the Judicial Committee of the National House of Chiefs, Section 22 provides that the
National House of Chiefs has original jurisdiction in a cause or matter affecting chieftaincy,
(a) which lies within the competence of two or more Regional Houses,
(b) which is not properly within the jurisdiction of a Regional House, or
(c) which cannot be dealt with by a Regional House.
See also article 273(5) of the 1992 Constitution.
A party who is aggrieved with a decision of the Judicial Committee of the Traditional Council, may
appeal to a Regional of chief with further appeal to the National House of Chiefs and further Appeal
to the Supreme Court with either the leave of the National House of Chiefs or the Supreme Court.
Among all the Traditional and normal courts in Ghana, it is only the Supreme Court that has
appellate jurisdiction over cause or matters affecting chieftaincy. Article 131(4).
Generally, the High Court by section 57 of the Court Act does not have original and appellate
jurisdiction over cause or matter affecting chieftaincy. However, according to article 141 of the
Constitution and specifically section 43 of the Chieftaincy Act, the High Court has supervisory
jurisdiction cause or matter affecting chieftaincy, and in particular over the Adjudicatory authorities
established under the Chieftaincy Act. Therefore, if the Judicial committees of the traditional council
or various houses of chiefs determines a matter and there is a breach of the rule of Natural Justice
or any of the grounds of judicial review is triggered the aggrieved party may apply for judicial review
at the High court.
Apart from breach of the rule of natural justice, one of the circumstances under which judicial review
may be triggered is where there is lack of jurisdiction. Thus, the matter may be a cause or matter
affecting chieftaincy but was determined by a judicial committee which does not have jurisdiction.
Also, there may be lack of jurisdiction if the matter was taken and dealt with by a Divisional council
or Traditional Council, or the House of chiefs but not their judicial committee. Mandamus will also
lie against the registrar of the Judicial committees.
The High Court in the exercise of its supervisory jurisdiction which is in the form of judicial review
may grant reliefs in the form of certiorari, mandamus, quo warranto, & prohibition.

Therefore, the extent to which the Jurisdiction of the Courts in Ghana is limited in
Chieftaincy matters are that:
1. The Supreme Court does not have original jurisdiction over chieftaincy matters. It has
appellate jurisdiction
2. The High Court does not have original and appellate jurisdiction over chieftaincy matters. It
only has supervisory jurisdiction.
3. The Court of Appeal does not have any jurisdiction over chieftaincy matters.
4. The Circuit and District courts do not have any jurisdiction over chieftaincy matters.
 5. The courts that have original jurisdiction over chieftaincy matters is the judicial committees
of the various houses of chiefs and traditional councils. They also have appellate jurisdiction,
except the Judicial committee of the Traditional council.

To conclude, it must be submitted that there is a practical and legal sense in leaving the original
jurisdiction over matters affecting chieftaincy to the Chiefs since they have relative knowledge over
the applicable tradition, custom, and usage that affects a particular stool or traditional area and they
would capable of effectively and completely determining all matters in controversy.

The above brief suggested answer is without prejudice to your own additions and
subtractions based on your own research.
Dated: 28th August 2023

DENNIS
QUESTION 9
JUDICIAL REVIEW
The systems of Judicial review in Ghana are, 1, the power of Judicial review of the Supreme Court
under Article 2(1) & 130 of the Constitution on Constitutional matters. 1, Judicial review by the
SC & HC over Adjudicatory bodies. 3. Judicial Review by the HC over Administrative Bodies.

JUDICIAL REVIEW OVER ADJUDICATORY AND ADMINISTRATIVE MATTERS

These questions may be asked as an essay question or may come in the form of a problem type
question.
What is judicial review?

Firstly, it connotes the power of the supreme court under article 2(1) and 130(1) of the Constitution,
1992 to review laws passed by parliament, and actions by person in relation to their consistency or
otherwise with the constitution and to declare those laws or actions which are inconsistent with the
constitution void to the extent of its inconsistency.

Secondly, it connotes the power of a court to exercise its supervisory jurisdiction to review decisions
by courts, adjudicatory authorities or acts and omissions of administrative bodies or officials and to
give public law remedies/prerogative remedies (certiorari, mandamus, Quowarranto, Habeas
Corpus, Prohibition, declaration) when those decisions or actions do not conform with law.

In this context, the discussion is in relation to the later form of judicial review, that is where a court
exercises its Supervisory jurisdiction.

Which Courts in Ghana have Supervisory Jurisdiction?

According to the 1992 Constitution of Ghana, the Supreme Court, and the High Court have
Supervisory jurisdiction under articles 132 and 141 respectively.

Article 132 provides that, the Supreme Court shall have supervisory jurisdiction over all courts and
over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders
and directions for the purpose of enforcing or securing the enforcement of its supervisory power.

Article 141 provides that, The High Court shall have supervisory jurisdiction over all lower courts
and any lower adjudicating authority and may, in the exercise of that jurisdiction, issue orders and
directions for the purpose of enforcing or securing the enforcement of its supervisory powers.

The above provision means that the Supreme Court has supervisory jurisdiction over the Court of
Appeal, the High Court, the lower courts and lower adjudicatory authorities. Republic v High
Court, Kumasi Exparte Appiah & others [1997-98] 1 GLR
However, the High Court has supervisory jurisdiction over the lower courts, and lower adjudicatory
authorities only.

According to section 39 of the Court’s Act 1993 Act 459, the lower courts include

(a) Circuit Courts; (b) District Courts; (c) Juvenile Courts; and

(d) the National House of Chiefs, Regional Houses of Chiefs and every Traditional Council, in
respect of the jurisdiction of that House or Council to adjudicate over a cause or matter affecting
chieftaincy.

(Thus the judicial committees of the various Houses of Chiefs) Note that, it is the Judicial
Committee that is the court, but not the Traditional council or the Regional or National
House of Chiefs. A Traditional Council per se lacks jurisdiction over Causes or matters
affecting Chieftaincy)

The above discussion suggests that the Supreme Court and the High Court have concurrent
supervisory jurisdiction over the lower courts and lower adjudicatory authorities.

However, paragraph 6 of the Practice Direction [1981] GLR 1 provides that where both the
High Court and the Supreme court have concurrent supervisory jurisdiction over lower adjudicatory
bodies and the lower courts, the jurisdiction of the High Court should be invoked first.

This means that where a party wants to apply for judicial review of decision of an adjudicatory
authority or a lower court, the High Court is the proper forum. However, if the decision which is
the subject of review is a decision by the High Court or the Court of Appeal, then the proper forum
is the Supreme Court.

It must be noted therefore that, apart from the Supreme Court, all other courts including the Court
of Appeal, High Courts, the lower Courts under section 39 of the Courts Act, Commission of enquiry,
CHRAJ, Disciplinary Committees, Administrative bodies, and administrative officials (article 23),
are amenable Judicial review.

The Republic v Committee of Enquiry into Nungua Traditional Affairs

NOTE: Private bodies/ persons such private companies, private schools, private individuals,
individual groups etc are not amenable to judicial review. This is because the Prerogative writs such
as certiorari, mandamus, prohibition etc are public law remedies and cannot be ordered or directed
against private bodies. If it’s a private body, the remedy available to the aggrieved party would be
to issue a writ at the appropriate court.
Therefore, it can be said that for a body to be amenable to judicial review, such a body should be a
public body created by a Statute.

Enekwa & Others v Kwame Nkrumah University of Science and Technology [2009] SCGLR

Who can apply for judicial review?

The persons who are eligible or have capacity or locus standi to apply for judicial review are:

➢ Persons whom the orders or actions of the adjudicatory body was directed against.
➢ Persons whose rights have been infringed upon by the order or action.
➢ Persons who had any other legally recognizable or substantial interest in the order.

Read State v Asantehene’s Divisional Court B, Exparte Kusada [1963] GLR 238

However, there are only in exceptional cases that a person not affected by the order or action may
apply for judicial review; for example, in cases of certiorari.

Republic v High Court Denu, Exparte Agbesi Owusu

What are the grounds upon which a person may apply for Judicial Review?

The grounds upon which a person may apply for judicial review are:

➢ Lack of jurisdiction
➢ Breach of rules of natural justice
➢ Error of law patent on the face of the record
➢ Breach of the wednesbury principles (illegality, procedural impropriety,
irrationality/unreasonableness) Associated Provincial Picture Houses Ltd v Wednesbury
Corporation

Republic v High Court, Cape Coast, Exparte John Bondzie Sey .. SC 12 February 2020

The first three grounds stated above are invoked for judicial review of Adjudicatory matters.
However, the last ground which is breach of the wednesbury principles are for Administrative
matters.

What is the rule of Natural Justice?

the rule of natural justice encompasses two rules; namely the rule to hear the other side; that is
the audi alteram Partem rule, and the rule against bias; that is nemo judex in causa sua.
The rules of natural justice are common law rules – although, in many instances, their
requirements may be made statutory. The fundamental dictate of justice is that those affected
by decision makers should be dealt with in a fair manner. In order for this to be achieved, there
may be several requirements which must be fulfilled.

Alteram Partem rule

In relation to the audi alteram Partem rule, it is a fundamental requirement of justice that, when
a person’s interests are affected by a judicial or administrative decision, he or she has the
opportunity both to know and to understand any allegations made, and to make representations
to the decision maker to meet the allegations. By way of example, a fair determination of a case
may involve one or more of the following:

(a) the right to being given notification of a hearing;

(b) the right to be given indications of any adverse evidence;

(c) the right to be given an opportunity to respond to the evidence;

(d) the right to an oral hearing;

(e) the right to legal representation at a hearing;

(f) the right to question witnesses.

The basic requirement is that – irrespective of the decision making body, whether ‘judicial’,
‘quasi-judicial’ or ‘administrative’ – the individual should be treated fairly in the decision making
process.

Thus, in the case of Aboagye v Ghana Commercial Bank (2001-2002), where the appellant
who was a senior manager of the Ghana commercial bank answered to queries received from the
disciplinary committee of the bank in connection with some payments made by him without
going through due process had his salary reduced and further dismissed for gross misconduct
without being given the opportunity to be heard, the court held per Bamford Addo that:

“Just as in a civil proceeding, proper service of notice on a defendant is a condition precedent to

fair trial, so also in this case, a proper notice to the plaintiff is sin qua non to fair hearing of the
case against him. If this is neglected to be done, a final decision will be declared a nullity. . . The
rules of fair trial include the audi alteram Partem rule, which implies that it is the authority
exercising disciplinary power which ought to afford the plaintiff the opportunity of being heard
and he should be informed of the charges and the date and the place of trial. Furthermore, a
query is not the same thing as a disciplinary charge or notice of an ongoing disciplinary
proceedings”.

Republic v State Fishing Corporation Commission of Enquiry (Chairman); Exparte

Bannerman [1967] GLR 536

The above notwithstanding, if person has been given opportunity to be heard, but that person
does not make good use of the opportunity or does not even attend the hearing at all after he has
been given notice of the hearing, he cannot subsequently challenge the decision of the body on
the grounds that he was not given fair hearing. This position of the law was stated in the case of
Accra Heart of Oak v Ghana Football Association (1982-83) GLR 11.

In the celebrated case of Republic v High Court (fast Track Division); Ex parte State
Housing Co. Ltd. (No. 2) Koranteng Amoako Interested Party, [2009] SCGLR 185 at page
190 the Supreme Court, per Wood C. J. stated authoritatively as follows:

“A party who disables himself or herself from being heard in any proceedings cannot later turn
round and accuse an adjudicator of having breached the rules of natural justice.”

Note: If during proceedings a party authorised an agent to represent him during the
proceedings, either through power of attorney or otherwise, such a party cannot later on allege
that he wasn’t heard or given the opportunity to heard. The representation by the agent is as
good as the party himself being present in the proceedings. State v Asantehene’s Divisional
Court B, Exparte Kusada [1963] GLR 238

Nemo judex in causa sua.

The rule against bias is strict, and it is not necessary to show that actual bias existed, the merest
appearance or possibility of bias will suffice. justice should not only be done but should manifestly
and undoubtedly be seen to be done. The suspicion of bias must, however, be a reasonable one.
Both financial or personal interest in a case may disqualify a person from adjudicating.

In Rex v Sussex Justices, Ex parte McMarthy [1924] 1 KB 256, held that “not only must
justice be done; it must also be seen to be done”

In Akosua Bedaabuo v Yaa Hima (1948-51) DC Land 232, there was a land dispute between
two women, which was held by a panel of five members which gave judgement for the defendant.
After the judgement was given, the president of the panel married the defendant. the plaintiff
appealed against the judgement. The court which heard the appeal ordered that, a different
panel should hear the matter again because the court was of the view that there was a real
likelihood of bias.

This rule simply means that, a person sitting to decide a dispute should be independent, neutral
and what is more important, he should not have any interest, however slight it may be, in the
outcome of the case. The following factors may be taken into account in decided whether there
is a real likelihood of bias by the person sitting on the matter.

• Where one of the parties is a very close relative and is related by blood to the judge, or where
the judge has financial interest in the matter,

• Very close friend

• Bitter enemies

NOTE: There have been decisions by the courts which suggest that there may be an exception
to the rule against bias where a person is performing a statutory duty. Thus, where a statute
imposes an obligation on a particular person/official to exercise certain functions, that person
may go ahead to exercise those function regardless of the issue of likelihood of bias. Agyei
Twum v Attorney General & Akwetey.

Thus, the decision in Rex v Sussex Justices, Ex parte McMarthy [1924] 1 KB 256, that “not
only must justice be done; it must also be seen to be done” does not apply when it comes to
complying with Statutory requirements.

This position was clearly stated in Akufo-Addo & ors. v Quashie-Idun & ors. (1968) GLR
667 where the court stated: “where a statute clearly enjoins a person to perform an act, he has to
do it even if its performance is incompatible with the strict rules of natural justice.”

For example, if the chief justice is required by statute to empanel Justices to sit on a matter, that
function must be exercised regardless of the fact that the chief justice may have interest in the
matter.

Importantly, if any of the above rules is breached, it becomes a ground for judicial review. This
will give right to the parties affected by the decision to apply to the High Court for the court to
exercise its supervisory jurisdiction and nullify or quash the decision of the body by the order of
certiorari.
 Thus, in the case of Enekwa & Others v Kwame Nkrumah University of Science and
Technology (2009) SCGLR 245 where the university set up a committee which took a decision
and made a recommendation after an investigation without giving fair hearing to Erekwa and
the others who were affected, the Supreme Court quashed the decision of the university by
certiorari for a taking a decision affecting the appellants without given them fair hearing.

You may read the case of Republic v High Court, Cape Coast, Exparte John Bondzie Sey ..
SC 12 February 2020 since is more recent on natural justice.

NOTE: You may come across a question where you may be examined only on the rule of Natural
Justice without the examiner requiring the candidate to talk about judicial review. SEE 2015
GHANA SCHOOL OF LAW ENTRANCE EXAMS- SECTION B, QUESTION ONE (1).
PLEASE KINDLY CHECK …….

What are the remedies under judicial review?

➢ Certiorari
➢ Mandamus
➢ Prohibition
➢ Quo warranto
➢ Declaration
➢ Habeas Corpus

See Article 161 of the 1992 Constitution,

In the case of Republic v High Court, Accra- Commercial Division, Exparte Papa Kwasi
Ndoum, interested EC, the Court held that the remedies that may be granted in an application for
judicial review are not limited to the Prerogative Writs, but that give other orders or directions to
give effect to its decision. See article 132, and 141 of the 1992 Constitution.

DENNIS DENNIS DENNIS

 JUDICIAL REVIEW OVER ADMINISTRATIVE BODIES OR OFFICERS
In this context, judicial review connotes the power of a court to exercise its supervisory jurisdiction
to review acts and omissions of administrative bodies or officials and to give public law
remedies/prerogative remedies (certiorari, mandamus, Quowarranto, Habeas Corpus, Prohibition,
declaration) when those decisions or actions do not conform with law.
According to the 1992 Constitution of Ghana, the Supreme Court, and the High Court have
Supervisory jurisdiction under articles 132 and 141 respectively. However, the position of the law
is that if the decision sought to be reviewed is s decision of a lower court or lower adjudicatory
authority or administrative bodies then the jurisdiction of the High court must be invoked first.
Hence, the Court with jurisdiction is the High Court. See article 23 for administrative justice.
The grounds upon which a person may apply for judicial review are:
➢ Lack of jurisdiction
➢ Breach of rules of natural justice
➢ Error of law patent on the face of the record
➢ Breach of the wednesbury principles (illegality, procedural impropriety,
irrationality/unreasonableness) Associated Provincial Picture Houses Ltd v Wednesbury
Corporation
Republic v High Court, Cape Coast, Exparte John Bondzie Sey .. SC 12 February 2020
When it comes to administrative bodies, the ground of judicial review which is invoked is the Breach
of the wednesbury principles.
Under the Concept of reasonableness, the exercise of discretionary power is only deemed to be
valid and lawful if it is deemed to be reasonable. Thus a decision maker must reach a conclusion that
could be deemed to be reasonable by another competent decision maker in that same position and
having to make the same decision.
By "illegality" as a ground for judicial review, it means that the decision-maker must understand
correctly the law that regulates his decision-making power and must give effect to it. Whether he
has or not is par excellence a justiciable question to be decided, in the event of dispute, by those
persons, the judges, by whom the judicial power of the state is exercisable.
Procedural Impropriety is where the exercise of the discretion is not in accordance with due
process of law, or a procedure required to be followed in taking that decision was not duly followed.
To begin with, article 23 provides that 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 or other tribunal.
One of the requirement imposed on administrative bodies and officials is the manner in which they
are to exercise of their discretionary power as provided under article 296.
Article 296 provides that where in this Constitution or in any other law discretionary power is
vested in any person or authority,
(a) that discretionary power shall be deemed to imply a duty to be fair and candid;
(b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by
resentment, prejudice or personal dislike and shall be in accordance with due process of law; and
(c) where the person or authority is not a Justice or other judicial officer, there shall be published by
constitutional instrument or statutory instrument, Regulations that are not inconsistent with the
provisions of this Constitution or that other law to govern the exercise of the discretionary power.
Under Article 23, if a parson alleges that an administrative official or body did not act in accordance
with, for example Article 296 and such a person is affected, the person can seek redress at the Court.
See Michael Genaku & others v AG & GLC
NOTE: There are instances where there may be a clause in a particular regulation or an arbitration clause
that the decision of an adjudicatory body “shall be final”. Granted that the law permits the postponement of
the jurisdiction of the court, the supervisory jurisdiction of the High Court cannot be ousted since it would
be against law and public policy to oust the supervisory jurisdiction of the High Court. This means that even
though, there may be a clause that the decision shall be final, the aggrieved party may apply for judicial
review where there is breach of the rule of natural justice.

MANDAMUS
Normally, the remedy a party may sought under this circumstance may take the form of
Quowarranto or Mandamus.
MANDAMUS, literally means a public officer should perform his duty imposed by law.
Mandamus lies from the High Court to compel negligent or recalcitrant public officers or inferior
courts" to perform duties imposed upon them by law.
Mandamus is, in effect, very similar to the mandatory injunction; the latter however is also operative
in private law, whereas the former is a typically public law remedy.
The nature and purposes of mandamus have been succinctly stated in an English case of R. v.
Metropolitan Commissioner; Exparte Blackburn [1968] 1 All E.R. 763 as, "mandamus is a very
wide remedy which has always been available against public officials to see that they do their public duty. No
doubt the party who applies for mandamus must show that he has sufficient interest to be protected and that
there is no other equally convenient remedy; but once this is shown the remedy of mandamus is available”
The Essential requirements for the grant of Mandamus were highlighted in the case of Republic v
Chieftaincy Secretariat; Ex Parte Adansi Traditional Council) (1968) GLR 736 where the
Court held that generally, an order of mandamus did not lie against the State or servants of the State
acting as such to carry out duties laid on the State. Where, however, a person, whether holding office
as a State servant or not, had a statutory duty of a public nature towards another person, an order
of mandamus would lie to compel performance of the duty at the instance of a person aggrieved by
the refusal to perform that duty unless another remedy was indicated by the statute. But before a
court would make such an order of mandamus the applicant must satisfy four main conditions,
namely:
(a) that there was a duty imposed by the statute upon which he relied,
(b) that the duty was of a public nature,
(c) that there was a right in the applicant to enforce the performance of the duty, and
(d) that there had been a demand and a refusal to perform that public duty enjoined by statute.
In the case of Republic v High Court, Koforidua; Ex Parte Affum, it was established that the
refusal to act could either be express or constructive in the form of conduct.
The above notwithstanding, it must be acknowledged and noted that there is another school of
thought that is of the opinion that the precondition for a mandamus application is that there must
be a demand to perform and a refusal to perform it should not be applicable in certain cases
particularly where the applicant is invoking Article 23 of the 1992 Constitution.
The catch word in Article 23 is “shall have a right”. Article 23 is not premised on any precondition
of “demand and refusal”, which is a common law principle in mandamus applications and therefore
should not be used to govern the constitution. The SC in the case of Larbie Mensah IV alias Aryee
Addo-Quaye v National House of Chiefs has justified this school of thought.
NOTE: that the case of In re Botwe v Mensah, the Court held that mandamus will not lie to compel
a police officer to effect an arrest because it is part of their duty to do investigation before effecting
n arrest, and if the investigation has not been, they cannot be compelled by the Court with
Mandamus to effect an arrest.

NOTE: There are instances where there may be a clause in a particular regulation or an arbitration clause
that the decision of an adjudicatory body “shall be final”. Granted that the law permits the postponement of
the jurisdiction of the court, the supervisory jurisdiction of the High Court cannot be ousted since it would
be against law and public policy to oust the supervisory jurisdiction of the High Court. This means that even
though, there may be a clause that the decision shall be final, the aggrieved party may apply for judicial
review where there is breach of the rule of natural justice.

NUMBER 10

PRINCIPLES, RULES, & THEORIES FOR CONSTITUTIONAL INTERPRETATION

HLA Hart argued that primary rules such as a Constitution which impose obligation and confer
rights and privileges is not efficient and there should be the need for secondary rules which include
secondary rules of adjudication to make the legal system effective. Therefore, the 1992 Constitution
may not be completely effective unless it is interpreted and enforced.
To examine objectively, Article1(1) of the 1992 Constitution provides that ‘the Sovereignty of Ghana
resides in the people of Ghana in whose name and for whose welfare the powers of government are to be
exercised in the manner and within the limits laid down in this Constitution.’
Also, 1(2) of the constitution provides that ‘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.’
To ensure the efficiency of the 1992 Constitution, the Constitution grants citizens the rights, and
the Court with the power to see to the interpretation and enforcement of the Constitution.
Thus, Articles 2(1) provides that ‘ A person who alleges that (a) an enactment or anything contained in
or done under the authority of that or 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’
Additionally, Article 130(1) provides that ‘Subject to the jurisdiction of the High Court in the enforcement
of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme
Court shall have exclusive original jurisdiction in (a) all matters relating to the enforcement or interpretation
of this Constitution; (b) all matters arising as to whether an enactment was made in excess of the powers
conferred on Parliament or any other authority or person by law or under this Constitution.’
The constitution granted the Supreme Court the jurisdiction to interpret the Constitution but it
however failed to provide for rules or principles that are to guide the supreme Court in interpreting
the Constitution, apart from article 34(1) of the constitution which provides that the Directive
principle of state policy may guide the judiciary in applying or interpreting the Constitution.
Article 34(1) provides that, the Directive Principles of State Policy contained in this Chapter shall
guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political
parties and other bodies and persons in applying or interpreting this Constitution or any other law
and in taking and implementing any policy decisions, for the establishment of a just and free society.
The above notwithstanding, the Supreme Court in it guest to promote constitutional development
has developed the following principles and approaches to guide it whenever there is the need to
ascertain the intention of the drafters of the constitution.

First, a national constitution must be given a benevolent, broad, liberal and purposive construction
so as to promote the apparent policy of its framers. In effect, a strict, narrow, technical and legalistic
approach must be avoided. See Tuffuor v Attorney-General [1980] GLR 637, SC per Sowah
JSC at 647-648.
Second, a constitution must be construed as a political document capable of growth. See: Tuffuor v
AttorneyGeneral [1980] GLR 63 per Sowah JSC
Third, a national constitution is a document sui generis and must therefore be interpreted according
to principles suitable to its character and not necessarily according to the ordinary rules and
presumptions of statutory interpretation. See: Republic v High Court, Accra; Ex parte Adjei
[1984-86] 2 GLR 511 per Sowah JSC at 518-519,SC; Kuenyehia v Archer [1993-94] 2 GLR
525 at 561-562 per Francois JSC-citing Minister of Home Affairs v Fisher [1979] 3 All ER
21 at 26

Fourth, the court must avoid importing into the constitution what does not appear therein. In other
words, the constitution must be interpreted in the light of its own wording and not on the basis of
words found in other constitutions. The court must therefore generally recognise that judicial
pronouncements in other common law jurisdictions founded on the wording of their constitutions
are not likely to be of assistance. This is especially so where passages are lifted out of context. Thus,
in the South Africa case of Qozeleni v Minister of Law and Order, the court warned on the danger
of relying on comparative foreign law because of the differing contexts with which foreign
constitutions were drafted and operated; and also on the danger of unnecessarily importing doctrines
associated with these constitutions into an inappropriate South African setting.
 Fifth, the court may have to take into account the spirit of the constitution as a tool for
constitutional interpretation. See Francois JSC in NPP v Attorney-General [1993-94] GLR 35
at 79 and 86,
Sixth, the provisions of the Interpretation Act, may be relevant in construing the provisions of our
national constitution.
Seventh, the court may resort to the Directive Principles of State Policy embodied in chapter 6 of
the Constitution, 1992 as a tool for constitutional interpretation as was held in the case of New
Patriotic Party v Inspector-General of Police [1993-94] 2 GLR459, SC, New Patriotic Party
v Attorney-General (Ciba Case)
Eighth, the court must ascertain the intention of the framers of the constitution as collected or
gleaned from the provisions of the constitution and once ascertained, it is the duty of the court to
give effect to that intention.
Ninth, in construing a constitution, the court must look at all the provisions thereof as a whole. In
the words of Acquah JSC, in delivering the leading opinion of the Supreme Court in National Media
Commission v Attorney-General: “in interpreting the Constitution, care must be taken to ensure
that all the provisions work together as parts of a functioning whole.
Tenth, the Supreme Court has held, per Bamford-Addo JSC, in New Patriotic Party v Attorney-
General (Ciba Case) that in testing any law for unconstitutionality, the court should not concern
itself with the propriety or expediency of that impugned law but what the law itself provides. It was
therefore held that “the highest motives and the best of intentions are not enough to displace
constitutional obstacles”.

Moreover, in construing the Constitution, one must not be oblivious of the core values that
complement the text. One must in addition also be aware that the core values of today may change
tomorrow as the dynamism of society shows. The core value of the Constitution includes:
➢ Supremacy of the constitution,
➢ Rule of law,
➢ Sovereignty of the people,
➢ Separation of powers,
➢ Independence of the judiciary,
➢ Protection of fundamental human rights, and
➢ Democracy

In addition to the above, the Memorandum to the interpretation Act, part (IV) indicates that the
Courts in the commonwealth have now moved to Purposive Approach of interpretation, and Judges
have abandoned the strict constructionist View of interpretation.
See Also, section 10(4)(d) of the Interpretation Act, Act 792.
The Purposive approach gives meaning to the words according to their ordinary meaning within
the context in which it is used. It takes into account the language, context, and scope, and to some
extent the background.
In a like manner, the Supreme Court has adopted a Modern Purposive Approach (MOPA) to
constitutional interpretation based on theories developed by some theories.
Among the theorist that developed the modern purpose approaches to constitutional interpretation
is Bennion, and Aharon Barrak.
Bennion uses a two -stage approach. That is, the Court should first consider the legal text in the
ordinary meaning, taking into account the purpose of the text, which he terms as purposive literal
meaning. It is when the first stage leads to an absurdity, ambiguity, incongruity, anomaly, that the
Court moves to the second stage.
At the second stage, the Court can resort to a broader concept of subjective and objective purpose
and can depart from the ordinary meaning of the text. This is what Bennion Purposive Strain
meaning or construction. The purpose for which the text was created must be known. The purpose
of the text should be revealed within the context.
Aharon Barak stipulates that the aim of interpretation in law is to realise the purpose of the law;
the aim of interpreting a legal text (such as a Constitution) or a statute is to realise the purpose for
which the text was designed. Law is thus a tool designed to realise a social goal.
Barak adopts an integrative approach to interpretation which permitted the court to move freely
between what he terms the subjective or the objective purpose of a text at all stages of the
interpretation process.

In Agyei-Twum v AG & Akwetey [2005-2006] SCGLR 732, the Supreme Court considered the
importance of the purposive approach to interpretation. However, the adoption of the purposive
approach to interpretation does not mean discounting the text. Thus in any constitutional
interpretative dispute involving the use of ordinary words or expressions, where no technical words
or expressions of art have been employed, and where the Constitution is silent on the meaning to be
assigned to those words or expressions, the first rule to be invoked is the ordinary meaning or plain
meaning. If such interpretation substantially advances the purpose, the matter ought to end there
because where the purposive approach itself work injustice or lead to absurd, weird or extraordinary
results, the rule must altogether be avoided.
Thus, it is only when the court determines that slavish application of the literal meaning will lead
to absurd results that it may adopt the purposive approach. When adopted, the purposive approach
allows implicit words to be read into the Constitution to avert manifest absurdity. See: per Date-
Bah JSC at pp 756-763.
See Asare v Attorney Genersal and Date-Bah JSCs discussion on both the objective and subjective
purpose:
“What I have stated above has been merely to emphasise that I consider the purposive approach to be more
likely to achieve the ends of justice in most cases. It is a flexible approach which enables the judge to determine
the meaning of a provision, taking into account the actual text of the provision and the broader legislative
policy underpinnings and purposes of the text. Judicial interpretation should never be mechanical”.
The above notwithstanding, Georgina Wood CJ in Republic v Fast Track High Court Accra ex
parte CHRAJ (Dr Anane’s Case) [2008] 4 GMJ 1 at 45:, had this to say:
“The purposive rule is not a carte blanche for rewriting legislation, let alone our Constitution, and should
never be used as a ruse, a cloak or guise to do so. The function of the court is to interpret legislation and give
effect to it; even if where the terms appear unpalatable. Care must therefore be taken to avoid legislating under
the guise of interpretation”
To conclude, there is no doubt, as demonstrated by the discussion herein, that the Supreme Court
has made a very distinctive contribution to the important and crucial question of the interpretation
of a national constitution such as the Ghana Fourth Republican Constitution of 1992. It is suggested
that the greatest achievement that the Ghana Supreme Court would be proud of and thus justify its
indispensable role as a constitutional court is to live up to expectation by construing the constitution
as a living document capable of growth, and at the same time, giving due recognition to the present
needs and aspirations of the people. Such an approach would create the peaceful and congenial
atmosphere for national development in all its facets.
It could also be said that a distinctive contribution of the Ghana Supreme Court to the development
of Ghana Constitutional Law, is its recognition that there might be occasions, such as seen in the
Ex parte Adjei case where given the context of the constitutional provision, the court might apply
the ordinary rules of statutory interpretation and presumptions so as to effectuate the apparent
intention of the framers of the Constitution. It also seems clear that the principles of constitutional
interpretation, such as the need for a benevolent, broad, liberal and purposive construction of the
1992 Constitution as a political document, sui generis and capable of growth (as stated by the
Supreme Court in cases such as Tuffuor v Attorney-General139), would very much assist the
Supreme Court in the exercise of its interpretative and enforcement jurisdiction under articles 2 and
130(1) of the 1992 Constitution.
NUMBER 11

WEAKNESSES IN THE CONSTITUTION/AMENDMENTS TO BE MADE TO THE

CONSTITUTION/REFORMS TO BE MADE TO THE CONSTITUTION, AND WHY.

To begin with, HLA Hart has argued that primary rules only imposed duties and confer rights. Therefore, to
have an effective legal system, there must be secondary rules. Among the secondary rules is the secondary
rules of change. That, there must be amendment to these primary rules. Hence, the drafter of the Constitution
has introduced amendment provisions in chapter 25 of the 1992 Constitution. This is because, the drafters of
the Constitution envisaged that there could a time where it would be necessary to amend certain provisions of
the Constitution due to development and dynamism of society.
The formulation of the Constitution dates back to 1992, and was influenced by the political, social, cultural,
and democratic values that existed then. However, the changes in society and political aspiration of Ghanaians
require certain amendments or reforms to be made to the Constitution.

In my opinion, the following provisions shall be recommended for amendment.

The qualified age of a President.

To examine objectively, I shall start with the executive. To begin, Article 295 provides that “Government”
means an authority by which the executive authority of Ghana is duly exercised.
The executive authority of Ghana shall vest in the President and shall be exercised in accordance with the
provisions of this Constitution.
The combine effect of the article 295 and 58 suggests that among the arms of government, it is the executive,
and specifically the President that exercises the governmental function.
Therefore, article 57 provides that There shall be a President of the Republic of Ghana who shall be the Head
of State and Head of Government and Commander-in-Chief of the Armed Forces of Ghana.
In relation to who can qualify to be a president, Article 63 provides that A person shall not be qualified for
election as the President of Ghana unless he is a citizen of Ghana by birth; he has attained the age of forty
years; and is also a person who qualifies to be elected as a member of parliament.
I believe the drafters of the Constitution chose 40 years because, a person needs the requisite expertise and
know how to manage the country social and economic development. I however, hold the view that the age of
40 years is so high. This because the president does not work alone and take decisions alone. The president
takes decisions based on the advice of Cabinet, Council of State, ministers, and committees etc. Therefore,
pegging the age at 36 years, which is 15 years above that of a member of parliament, which is 21 years would
have been appropriate.
Term of office of a President
In relation to the term of office of the president, Article 66(2) provides that a person shall not be elected to
hold office as President of Ghana for more than two terms.
Also, Article 60(6) provides that whenever the President dies, resigns or is removed from office, the Vice-
President shall assume office as President for the unexpired term of office of the President with effect from
the date of the death, resignation or removal of the President.
Moreover, Article 60(7) where the unexpired term served by the Vice-President under clause (6) of this article
exceeds half the term of a President, the Vice-President is subsequently only eligible to serve one full term as
President. This will have the effect of a person holding office as president for more than 8 years
I recommend that Article 66(2) be amended to make it clear that a person who has been President for two
terms of four years shall not quality to stand for re-election as President. Where the President serves for only
one term of 4 years, he is allowed to contest for another 4-year term after an interval, but he may not serve for
more than 8 years in total. This recommendation is necessary because as it stands now, the position of the law
allows a person to be a president for more than 8 years which will be more than the 2 terms.

Salary and allowance of the President being exempted from tax

By Article 68 of the 1992 Constitution, the salary and allowances of the president is exempted from tax the
salary, allowances, facilities, pensions and gratuity are exempted from tax.
Article 68(3) provides that the President shall receive such salary, allowances and facilities as may be
prescribed by Parliament on the recommendations of the Committee referred to in article 71 of this
Constitution. Clause (4) provides that, on leaving office, the President shall receive a gratuity in addition to
pension, equivalent to his salary and other allowances and facilities prescribed by Parliament in accordance
with clause (3) of this article.
Interestingly, clause (5) provides that, the salary, allowances, facilities, pensions and gratuity referred to in
clauses (3) and (4) shall be exempt from tax.
This in my opinion goes against rule of law which requires that every person shall be equal before the law. I
recommend that the President should pay tax on his salary and emoluments as an example to the rest of the
citizenry. This will also be a reflection of the principle of equality before the law and in accord with the rule
of law.

President, and the Political party on whose ticket the President stood for elections
The 1992 Constitution is silence on whether the President can continue to be President if he leaves the Political
party on whose ticked he stood for elections. This has the effect of allowing the President and the Vice
President to leave the political party on whose ticket they stood for elections.

Therefore, I recommend for an amendment of the Constitution to prevent the President and Vice President
from defecting from the party on whose ticket they run for office.
It can also be noted that the option of resignation from the office of President is expressly provided for under
Article 66(3) (b), and assumed for the Vice-President under Article 60(13). However, I recommend that there
should be a specific provision requiring the Vice-President to resign, as is the case for the President under
Article 66(3) (b).

Appointments by the President under Article 70 of the 1992 Constitution.

In relation to appointment powers of the President, it worth noting the appointment by the President under
article 70 is made without approval by parliament.
In my opinion, those appointments by the President should be made subject to the prior approval by
parliament.
In my view, this is necessary because those offices ae very key and important offices which forms the pillars
of the 1992 Constitution and therefore, it is necessary for personnel heading those offices to be vetted.

Succession to the office of the Presidency

In relation to the situation where the president is unable to person the functions of the President, Article 60 of
the Constitution provides that the Vice President should act, and when both are unable to act, the Speaker of
Parliament should act.
In the case of Asare v Attorney General, the Court held that when both the President and the Vice President
are outside the Country they are unable to act. This called for public discussion among legal thinkers
considering global technological development.
I recommend that that the current constitutional provisions which allow the Vice President to act in the absence
of the President and to assume the Presidency when it becomes vacant be retained.
However, I recommend that as far as is practicable the President and the vice President should not both be
outside the country at the same time. Where by necessity, they are both outside Ghana, the Speaker of
Parliament should be deemed to have been sworn into office as President. A situation where the Speaker of
Parliament and in turn the Chief Justice has to act as President be avoided as far as it is humanly possible to
do so.
Importantly, I also recommend that Article 60(8) should be amended by the deletion of “absent from Ghana”
to enable the President or Vice president to act as such although either may be outside Ghana.

In relation to the tenure of the Office of the President, article 60 provides that where the Speaker of Parliament
assumes the office of President as a result of the death, resignation or removal from office of the President
and the Vice-President, there shall be a presidential election within three months after his assumption of office.
Also, the provisions of article 69 of this Constitution shall apply to the removal from office of the Vice-
President.
The Constitution is silence on how the office of the Vice President shall be filed.

Therefore, therefore, I recommend that Article 60 of the 1992 Constitution be amended by the insertion of a
new clause to read as follows: “Where the office of the Vice President becomes vacant by death, resignation
or removal of the Vice President, the President shall within a period of 14 days and with the approval of
Parliament, appoint a person qualified to hold office as Vice President; except that no such appointment shall
be made when there is a period of 30 days or less to the holding of the Presidential election.”

Appointment of Minister under Article 78 of the 1992 Constitution

Additionally, article 78 of the Constitution gives powers to the President to appoint majority of ministers from
parliament. It has been argued that provision be amended since it affects the effective check and scrutiny by
parliament over the activities of the Executive. This is because, the same members of Parliament exercise
check on themselves in another capacity. It has further been argued that that provision violates the doctrine of
separation of powers.
I recommend that even if Ministers would be appointed from parliament, the Constitution be amended to give
the President the discretion to appoint Ministers, not necessary majority from Parliament.

Subsidiary legislation
Article 11 of the 1992 Constitution provides that the sources of law in Ghana include any Orders, Rules and
Regulations made by any person or authority under a power conferred by this Constitution.
Article 11(7) provides that any Orders, Rules or Regulations made by a person or authority under a power
conferred by this Constitution or any other law shall, (a) be laid before Parliament; be published in the Gazette
on the day it is laid before Parliament; and (c) come into force at the expiration of twenty-one sitting days
after being so laid unless Parliament, before the expiration of the twenty-one days, annuls the Orders, Rules
or Regulations by the votes of not less than two-thirds of all the members of Parliament.
This is known as subsidiary legislation. The uncertainty was whether orders of executive and Administrative
nature was a subsidiary legislation which must be placed before parliament. It was held in the case of Republic
v. Minister of Interior; Ex-parte Bombelli [1984-86] 1 GLR 204-219, that those orders are not subsidiary
legislations which must be placed before parliament for 21 sittings days.
Therefore, I recommend that the Constitution should clarify that Orders, Rules and Regulations of a legislative
nature (those which lay down the law) will need to be approved by Parliament, whilst those of an Executive
and Administrative nature do not need to be approved by Parliament.
I also recommend further that Article 11 be amended to require that Orders, Rules and Regulations of a
Legislative nature should be read for the first time only in Parliament and approved by simple majority of
Parliament present and voting.
Immunity of Members of Parliament
Article 117 of the 1992 Constitution provides that Civil or criminal process coming from any court or place
out of Parliament shall not be served on, or executed in relation to, the Speaker or a member or the Clerk to
Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament
I recommend that Article 117 be amended to allow civil or criminal processes coming from outside Parliament,
to be served on the Speaker, Deputy Speaker or Members of Parliament through the Clerk of Parliament and
on the Clerk through any Deputy Clerk of Parliament when Parliament is in Session. Where Parliament is not
in session, Members of Parliament may be served in the ordinary way. This is because, serving an MP a Court
process when attending parliament or returning from Parliament does not in any way frustrate parliamentary
business.

Parliamentary Election Petitions

Article 99(1) of the Constitution provides that the High Court shall have jurisdiction to hear and determine
any question whether (a) a person has been validly elected as a member of Parliament or the seat of a member
has become vacant; or (b) a person has been validly elected as a Speaker of Parliament or, having been so
elected, has vacated the office of Speaker.
Article 99(2) of the Constitution provides that a person aggrieved by the determination of the High Court
under this article may appeal to the Court of Appeal.
Considering article 129 of the Constitution which makes the Supreme Court the Final Appellate Court, the
confusion was whether the Court of Appeal is the final appellate court over parliamentary election petitions.
The case of In re Parliamentary Election for Yulensi Constituency, Zakaria v Nyimakan held that the
Court of Appeal should be the final appellate court over parliamentary election petitions.
It is my recommendation that Article 99 be amended to make it clear that the Court of Appeal is the final
appellate Court over Parliamentary election petitions. This is because in Article 48 (2) where a similar appeal
to the Court of Appeal is allowed, it is expressly stipulated that the decision of the Court of Appeal shall be
final. To ensure consistency therefore, constitutional amendment is required to make the decision of the Court
of Appeal final.
Also, the Constitution is silence on the duration by which the Court will consider parliamentary election
petition. I recommend that a petition challenging parliamentary elections should be disposed -off within 12
months. This is because even the CI 99 made it possible for presidential election petition to be disposed -off
in less than 6 months.
The above, among other provisions, are the few weaknesses in the Constitution which need necessary
amendment by means of deletion, alteration and additions. Most of the Provisions are entrenched provisions
in the Constitution and would require a referendum to be held as provided under chapter 25 of the 1992
Constitution.

NOTE: The above recommendations were also made by the Constitution Review Commission set up under
the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64, to ascertain from the people of
Ghana, their views on the operation of the 1992 Fourth Republican Constitution and, in particular, the
strengths and weaknesses of the Constitution; to articulate the concerns of the people of Ghana on amendments
that may be required for a comprehensive review of the 1992 Constitution; and to make recommendations to
the Government for consideration and provide a draft Bill for possible amendments to the 1992 Constitution.

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