CONSTITUTIONAL

LAW II
Prof. Lydia A. Nkansah, Maame Efua A. Koom & Kwadwo
Agyei Bioh
THE INSTITUTIONS OF STATE

THE EXECUTIVE
 The Structure of Government

• The Executive is the government of Ghana: art 295

• “Government” means “any authority by which the Executive authority of

Ghana is duly exercised.”
 The President
• Head of State, Head of Government and Commander in Chief of the
Ghana Armed Forces: art 57(1)
• Executive authority vests in the President and is exercised in accordance
with the Constitution: art 58(1)
• Executive authority includes the execution and maintenance of the
Constitution and all laws made under or continued in force by the
Constitution: art 58(2)
• The President may perform his duties directly or by delegation: art 58(3)
 Functions of the President
• Makes appointments: arts 70, 78 & 79
• Controls the machinery of central government such through the creation,
amalgamation or abolishing of offices and department. E.g. Creation of the OSP,
creation/amalgamation and abolishing of new ministries (Office of Senior Minister by
President Akuffo Addo), etc
• Carrying out policies through the agency of a Minister E.g. Free SHS policy being
carried out by the Ministry of Education
• Presiding at cabinet meetings: art 76 & 77
• Represent Ghana in international relations; arts 73 -75
 Functions of the President
• Exercises prerogative of mercy: art 72; Montie 3 Presidential Pardon Case, See also Nkansah, Lydia
A. & Addadzi-Koom, Maame Efua. (2019). Presidential Grant of Pardon and Rule of Law: The Case
of Montie Trio. In Kusi-Appiah, F. (ed.) Ghana@60: Evolution of the Law, Democratic Governance,
Human Rights and Future Prospects -Proceedings of a Conference 9 th -10th March 2017. Glienicke:
Galda Verlag, 93-120.
• Three main issues:
• (a) whether the exercise of the prerogative of mercy extends to conviction for an offence founded on contempt of
court.
• (b) whether the prerogative of mercy is an affront to the independence of the judiciary as conceived under the
Constitution.
• (c) whether the absence of regulations disables the President from exercising the power conferred upon him by
article 72 of the Constitution.
 Per Benin JSC…
“The language used is succinctly lucid, that the independence of the judiciary relates to its core mandate, that of
administering justice, and with it its administrative support. Indeed the judicial power has been explained in article
125(4) to mean jurisdiction in all matters, civil and criminal, including matters relating to this Constitution, and such
other jurisdiction as Parliament may, by law, confer on it.
Thus it is in the course of performing this core mandate that the judiciary is completely insulated against any external
interference. In criminal matters, the process of adjudication ends in a trial court after sentence is pronounced. After the
imposition of a jail term on a person, the execution of the sentence is by executive action, and not judicial. Criminal
Contempt of court is a public wrong, in as much as high treason or robbery is, so it is unreasonable to suggest that the
people would allow the President to pardon for all criminal offences except criminal contempt of court, without using
express words to that effect. In our view if it was intended that conviction for contempt of court should be excluded,
clear words to that effect would have been employed. Under the American Constitution for instance, impeachment is
specifically excluded from the prerogative of mercy. ” [article 2 § 2 cl. 1 of the U.S. Constitution]
 Special Powers of the First President

• Section 30 of Constitution, 1992:

The power to modify existing laws
within the first 12 months after
assuming office as President.
 Qualifications of President: Art 62

• Citizen of Ghana by birth (jus sanguinis v. jus soli )

• Attained 40 years
• Qualified to be an MP : art 94 (note the exceptions)
 Election of President: Art 63
• Universal Adult Suffrage
• Elections to be held not more than four months nor later than one month before the expiration of the term
of office of the sitting President
• Elections in any other case to be held within three months after the office of the President becomes vacant.
• A person is elected as President upon more than 50% of total votes cast in his favour
• Note the time frames for subsequent elections where no Presidential Candidate wins with more than 50%
of votes cast.
• Presidential election regulations by constitutional instrument: art 65
• See Republic v. Mrs. Charlotte Osei & Electoral Commission Ex parte Dr. Papa Kwesi Nduom Suit No.
GT/1401/2016.
 Challenging Presidential Elections
• Article 64
• Petition must be filed at the Supreme Court within 21 days after the declaration of
the election results
• See In Re Presidential Election Petition; Akufo-Addo, Bawumia and Obetsebi-
Lamptey (No. 4) vrs Mahama, Electoral Commission and National Democratic
Congress (No.4) [2013] SCGLR 73 (2012 Election Petition) where article 49 was
in contention
• See also John Dramani Mahama v. Electoral Commission and Nana Addo
Dankwa Akuffo-Addo Writ No. J1/05.2021 (2020 Election Petition)
 Term of Office : Art 66
• Two terms of four years each
• Office of the President becomes vacant upon:
• Expiration of the term of office
• Resignation by a President: art 66(4)
• The Death of a President: e.g. the Death of Prez. Atta Mills
• Removal of the incumbent President: art 69
 Conditions of Office: Art 68
• President not to hold any office of profit or emolument while in office or after
leaving his office
• Receive tax exempt salaries, allowances, facilities and gratuity in addition to
pension.
• President will be entitled to receive such tax exempt allowances, salaries and
pensions if he was removed from office as a result of his infirmity or he resigned
• Payables shall not be varied to the disadvantage of the President while in office
and during his lifetime
 Removal of President: Art 69
• Conditions for removal:
• Acting in willful violation of the oath of allegiance and presidential oath: see second schedule
• Acting in willful violation of any constitutional provision
• Conduct that brings or is likely to bring the high office of the President into disrepute,
ridicule or contempt; or prejudicial or inimical to the economy or the security of the State:
See article 284 and Ford Expedition case (In the Matter of the Commission on Human Rights
and Administrative Justice, Act 1993 (Act 456) between: The National Youth League of
Complaints of CPP, Nana Adofo Ofori, the Progressive People’s Party and His Excellency
John Dramani Mahama 2016)
• Infirmity of body or mind rendering the President incapable
 Procedure for Removal
• Initiated by notice in writing signed by not less than one-third of MPs
• Notice must indicate grounds for removal which is to be investigated
• Notice should be accompanied by statement in writing setting out the facts in detail
together with necessary documents
• Notice to be given to the Speaker who shall forward to the CJ and copy the President
• CJ by a CI immediately convenes a tribunal (four senior Justices of the
Supreme Court plus the CJ as chair) to investigate in camera a prima facie
case for removal.
 Procedure for Removal
• If on grounds of physical or mental incapacity, the CJ in consultation with
the professional head of the GHS convenes a medical board to investigate.
Art 69(5) – (11)
• Proceedings of Parliament for removal shall not to be held in camera except
where Parliament orders otherwise in the interest of national security
• President ceases to hold office on the date Parliament decides that he be
removed from office.
• Note the difference between removal and impeachment.
 The Vice President: Art 60
• The second in command: article 57(2)
• Performs functions assigned to him by the Constitution or the President
• Same qualifications for President applies to Vice President: art 60(2) & 62
• Vice President assumes office upon taking the oath of allegiance and the Vice Presidential oath.
• Takes office of the President upon the death, resignation or removal from office of the President.
• When the unexpired term exceeds half the term, the Vice President is subsequently eligible to
serve one full term as President.
• Removal of Vice President same as that of a President: art 60(14) & 69
 Absence from Ghana
• Notification in writing by President to the Speaker: art 59
• Vice President performs functions of the President upon his absence: art 60(8)
• Whether absence from Ghana implies unable to perform functions: See Asare v.
Attorney General 2 G & G 1825 (2d) 2452
• Issues arising: Does the interpretation given violate article 57(1)?
• Does the new swearing in automatically nullify the powers of the first?
• Presidential oath refers to elected not acting President. NO?
• Can the acting President dismiss appointees?
 Presidential Succession
• Vice President takes office of the President when the President is absent or unable
to perform his functions
• Vice President to swear the oath before assuming the office of the President where
the succession is due to the death, resignation or removal of the President
• Veep to appoint a person to the office of the Vice President once he assumes office
• Where the Speaker assumes the office of the President upon the death, resignation
or removal of the President and Vice President, there shall be a presidential
election three months after the assumption of office.
 Presidential Succession
• Categories of Succession envisaged:
• First time President
• Second time President
• Accidental President
• Presidential Transition and Midnight Actions: see Presidential Transition
Act, Marbury v. Madison. See also Addadzi-Koom, Maame Efua. (2019).
Midnight Actions During Presidential Transitions in Ghana: A Rising
Tide. African Journal of Comparative Constitutional Law, 1, 25-54.
 Liability of the President
• No liability for acts or omissions done or purported to have been done by him in
the exercise of his functions under the Constitution or any other law: art 57(4)
• Without prejudice to art 2 and 130 e.g. unilaterally passing a law (substantive immunity
exception)
• Subject to prerogative writs (substantive immunity exception)
• To be instituted against the Attorney- General: article 88(5)
• Note the difference between procedural and substantive immunity.
• See: NPP v. President Rawlings: Amidu v. President Kuffuor; Sallah v. Attorney General
 Liability of the President
• No personal liability for any civil or criminal proceedings while in office: art 57(5)
• Civil and criminal proceedings for personal acts and omissions before or during his
office may be instituted within three years after leaving office: art 57(6)
• Liability notwithstanding any period of limitation except where the proceedings had
been legally barred before he assumed the office of the President
• Question: Does the Vice-President enjoy the same immunities (procedural and
substantive) as the President under Ghana’s Constitutional order?
 The Cabinet
• Art 76
• Consist of the President (who is the Chair), the Vice President, and not
less than ten and not more than nineteen ministers of State
• Cabinet assist the President in determination of government policy.
• Meetings are summoned by the President
• Vice President chairs meetings in the absence of the President
• President appoints the Secretary to the Cabinet
 Ministers of State
• Appointment: art 78 (1) & (2)
• May not hold any office of profit or emolument except with permission of
the Speaker of Parliament: art 78(3)
• Appointment of deputy ministers: art 79
• Oaths to be sworn: art 80
 Ministers of State
• Office of the Minister becomes vacant if: (art 81)
• His appointment is revoked by the President; or
• He is elected as Speaker or Deputy Speaker; or
• He resigns from office; or
• He dies
• Vote of censure on a Minister: art 82
• Read: JH Mensah v. Attorney General 2 G &G 1825 (2d) 2218
 Council of State
• Read Chapter 9 of the 1992 Constitution
• It is the advisory board of the President: “counsel the President in the
performance of his functions”
• First created under article 53 of the 1969 Constitution
• Read on the effect of the recommendation of the Council of State: GBA v.
Attorney General ; Richard Dela Sky v. Attorney General
(Consolidated).
 Public Services of Ghana
• Read:
• Chapter 14 (Public Services); Ayine v. Attorney-General (Writ No. J1/05/2018) 13th
May 2020
• Chapter 20 (Decentralization and Local Government); and
• Chapter 24 (Code of Conduct for Public Officers)
of the 1992 Constitution
 Liability of the Government
• Art 88 of the 1992 Constitution: Read Amidu v. President Kufuor; Ayine v.
Attorney-General (Writ No. J1/05/2018) 13th May 2020
• Section 2 of the State Proceedings Act, 1998( Act 555)
• Enforcement to be made against the Accountant General (if payment of
money is involved) or the Attorney-General in any other case (s. 15 of Act
555).
 Assignment
• Answer any one question:
(1) Write a review of the decision in the Montie 3 Presidential Pardon case.
OR
(2) Write on your opinion on whether the Vice President of Ghana enjoys the
same constitutional immunities as the President.
Due date: Wednesday 2nd June 2021
See further instructions on the next slide
 Assignment Instructions
• Font size 12
• Use Times New Roman
• Double spaced
• Word Count: Between 1000 to. 1500 words.
• Properly reference all authorities cited
• DO NOT ADD A COVER PAGE!!!
• Late submission attracts ‘MINUS 5 MARKS’ with each passing day.
• Any submission which does not adhere to the above instructions will be rejected.
THE INSTITUTIONS OF THE
STATE

THE LEGISLATURE
 Composition of Parliament
• Legislative Powers are vested in Parliament: art 93(2)
• Consists of:
• Not less than 140 elected members: art 93(1). Currently 275
MPs
• A Speaker: art 95
• Two Deputy Speakers : art 96
 Meetings of Parliament
• Speaker presides in Parliament sittings: art 101
• Deputy Speaker presides in the absence of the Speaker: art 101
• Quorum in Parliament: One third of all MPs apart from the person
presiding: art 102
• Sessions of Parliament: art 112
• The Vice President, Ministers and Deputy Ministers who are not MPs an
participate in the proceedings of Parliament and shall be accorded all the
privileges of a member of Parliament except that he is not entitled to vote
or hold an office in Parliament. – Article 111
 Qualifications of Members of Parliament- Art 94

• Must be a citizen of Ghana

• Attained the age of 21 years
• A registered Voter
• A resident of the constituency for which he stands as a candidate for
election, or has resided there for a total period of not less than five years
out of the ten years immediately preceding the election, or he hails from
that constituency
 Qualifications of Members of Parliament- Art 94

• Has paid all taxes

• Owes allegiance to only Ghana
• Is of sound mind
• Has not been adjudged or declared bankrupt
• Has not been convicted for high crime or any other offences involving the
security of this nation or any offence punishable by death or by sentence
of not less than 10 years or any electoral offence
 Qualifications of Members of Parliament- Art 94

• Has not been found guilty by the report of a Commission or

Committee of Inquiry to be incompetent to hold public office:
Awoonor Williams v. Gbedema G &G 739
• Is not under sentence of death or other sentence of
imprisonment imposed on him by court
• Is not holding an office that consists of a responsibility to
conduct an election, the compilation or revision of an electoral
register
 Qualifications of Members of Parliament- Art 94

• The person does not belong to the:

Police Service The Audit Service
Prison Service The Parliamentary Service
The Armed Forces The Statistical Service
The Judicial Service The Fire Service
The Legal Service The Customs, Excise and Preventive Service
The Civil Service The Immigration Service
• The person is not a Chief
 Qualifications of Members of Parliament- Art 94

• Note the exceptions under article 94(4) & (5):

• The non-disqualifying effect of a report by a non-judicial or
non-quasi judicial commission
• The effect of being granted pardon
• The effect of 10 or more years period after a conviction
 Functions of Parliament

The two major functions of Parliament are:

• Law making: for the nation, professional
organizations, etc.
• Oversight responsibility
Legislative Function: Primary Legislation
• Passing of bills and assented to by the President: art 106(1)
• Except for bills relating to financial matters under article 108(a), all other
bills shall be introduced in Parliament:
• With an explanatory memorandum setting out the details of the policy and principles
of the bill, the defects of the existing law, the remedies proposed to deal with those
defects and the necessity for its introduction: and
• After it has been published in the Gazette at least fourteen days before the date of its
introduction in Parliament. (art 106(2)
Legislative Function: Primary Legislation
• A bill affecting the institution of Chieftaincy shall not be introduced to
Parliament without prior reference to the National House of Chiefs: art
106(3)
• After a Bill has been read first in Parliament, it shall be referred to an
appropriate parliamentary committee to deliberate upon and reported back
to Parliament. Thereafter, the entire House shall open the Bill for debate:
article 106 (4—(6)
Legislative Function: Primary Legislation
• After the Bill has been passed, it shall be referred to the President for his
assent. The President shall give his assent to the Bill within seven days of
presentation.
• Where the President refuses to assent to the Bill, he shall within fourteen
days of refusal state in a memorandum to the Speaker indicate the specific
provisions which he considers should be reconsidered by Parliament or
that he has referred the Bill to the Council of State to comment upon: art
106 (7) &(8)
Legislative Function: Primary Legislation

• Parliament shall reconsider the Bill taken into account

the comments of the President or the Council of State
as the case may be: article 106(9)
• Thereafter when the Bill is passed, the President shall
assent to it within thirty days after the passing of the
resolution: art 106(10)
 Residual Powers of Parliament: Art 298

• Subject to the provisions of Chapter 25 of this

Constitution, where on any matter, whether arising out
of this Constitution or otherwise, there is no provision,
express or by necessary implication of this Constitution
which deals with the matter that has arisen, Parliament
shall, by an Act of Parliament, not being inconsistent
with any provision of this Constitution, provide for that
matter to be dealt with.
 Legislative Function: Subsidiary
Legislation
• Also known as delegated legislation: art 11(1)(b) – “enactments made …
under the authority of the Parliament established by this Constitution.”
• Article 11(7): “Any Order, Rule or Regulation made by a person or authority
under a power conferred by this Constitution or any other law shall-
• Be laid before Parliament
• Be published in the Gazette on the day it is laid before Parliament
• Come into force after 21 sitting days after being laid before Parliament unless
Parliament annuls it before the days expires by a vote of not less than two-thirds of all
MPs.
 Forms of Subsidiary Legislation
• Statutory Instrument (SI)
• Section 3 of Statutory Instruments Act 1959: “Statutory Instruments Act 1959: “An
instrument made (whether directly or indirectly) under a power conferred by an
enactment shall be known as a statutory instrument.”
• Executive Instrument (EI)
• Section 5 of Statutory Instruments Act 1959 : “Statutory instruments other than
legislative instruments or instruments of a judicial character shall be known as
executive instruments.”
 Forms of Subsidiary Legislation
• Legislative Instrument (LI)
• Section 4 of Statutory Instruments Act 1959:
• “(1) The Attorney-General may by legislative instrument declare that statutory instruments made
under enactments specified therein are legislative in character and of sufficient importance to justify
separate publication.
(2) Statutory instruments made under enactments specified under subsection (1) or under powers
expressed to be exercisable by legislative instrument shall be known as legislative instruments.

(3) Legislative instruments shall be published by the Government Printer and, if a legislative
instrument is published otherwise than in the Gazette, a notice of its publication shall be inserted as
soon as may be in the Gazette.”
 Forms of Subsidiary Legislation
• Section 1 of Interpretation Act 2009. An executive instrument
is:
• An instrument specified by an Act of Parliament as an
executive instrument; or
• A statutory instrument which is of an administrative
character or of an executive character and is not an
instrument:
• Of a judicial character, or
 Forms of Subsidiary Legislation
• Constitutional Instrument (CI): e.g. electoral rules (art 51), sessions of parliament (art 112),
creation, alteration and merger of regions (art 5), terms and conditions of officers in the
parliamentary service (art 124); rule of court(art 33(4))
• Read also:
• Baffour Osei-Akoto v. The Attorney General Supreme Court Civil Appeal No. J1/16/202
• Amegacjer v. Attorney General Suit No J1/8/2016
• Republic v. Minister for Interior, Ex parte Bombelli [1984-86] 1 GLR 204
• On the status of Executive Instruments: Whether an EI is an order in the form of rules and
regulations or an order as in commands issued by Members of the executive.
• Note also the noscitur a sociis principle used by Korateng Addo in Ex parte Bombelli.
 Limitations on Legislative Powers
• It cannot pass any law to establish a one party state: art 3(1)
• It cannot pass a law with retrospective effect: art 107(b). Note the exception
under articles 178-182
• It cannot make law to change the decision of a court between the parties
subject to that decision: art 107(a)
• Laws enacted should promote all basic human rights and freedoms: art 37
• It cannot amend sections 34, 35 and 37 of the Transitional provisions: s. 37
of the First Schedule to the Constitution.
Parliament Oversight over the Executive

• Parliamentary oversight refers to “the review,

monitoring and supervision of government and public
agencies, including the implementation of policy and
legislation”.
• An effective tool for holding government accountable
 Key Functions of Parliamentary
Oversight
• To scrutinize and publicize instances of executive malfeasance. At the core of this
function is the protection of the rights and liberties of citizens ;
• To hold the government to account in respect of how the taxpayers’ money is used. It
detects waste within the machinery of government and public agencies. Thus it can
improve the efficiency, economy and effectiveness of government operations ;
• To ensure that policies announced by the government and authorized by parliament
are actually delivered. This function includes monitoring the achievement of goals
set by legislation and the government’s own programmes
• To improve the transparency of government operations and enhance public trust in
the government, which is itself a condition of effective policy delivery.
 Tools for Oversight Functions

• Parliament can simply ask the government for information.

• Parliament can ask the government for public clarification
of policy.
• Parliament can obtain information from sources outside the
government.
• Parliament can express its views to the government and the
public.
 Oversight Functions in Practice
• Power of the purse: the authorization or approval of major policy
decisions of the executive e.g. the budget under article 179
• Vetting and approval of key government ministers and other appointees:
Art 78 & 79
• The use of parliamentary committee system to scrutinize and investigation
executive actions: Art 103. Note: Such committees have some powers of
the powers for limited purposes only. The committees are never a High
Court for all purposes ( art 103(6))
 Oversight Functions in Practice
• Subjecting the executive plans, policies and actions to public debate or
parliamentary questions to members of the Executive
• Getting the executive out of power: See art 69 on the role of Parliament in
the removal of the president.
• Consider the following:
• Can Parliament exercise oversight over the judiciary in view of article 127?
• How effective is parliamentary oversight vis-à-vis the hybrid structure of
government under the 1992 Constitution?
 Parliamentary Immunities
• Freedom of Speech and of Proceedings: art 115
• Based on article 115 could a public litigant sue the 8th Parliament of the 4th Republic for the chaos in
parliament on the evening of 6th January and the early hours of 7th January 2021?
• Immunity from Proceedings for acts in parliament: art 116; See Tuffuor v. Attorney
General on whether the Speaker of Parliament can be sued.
• Immunity from service of process and arrest: art 117
• Immunity from witness summons: art 118
• Immunity from service as juror: art 119
• Immunity for publication of proceedings: art 120
Privileges of Witness

•Read Article 121

 Tenure of Office of Members: Art 97
• A Member of Parliament vacates his seat in the following circumstances:
• Upon a dissolution of Parliament
• If he is elected as Speaker
• If he is absent from parliamentary sittings without permission in writing to the
Speaker or unable to give reasonable explanation for his absence for 15 sittings of a
meeting of Parliament during any period that Parliament has been summoned to
meet and continues to meet
• If he is expelled from Parliament after having been found contemptuous of
Parliament
 Tenure of Office of Members: Art 97
• If any circumstances occur which would disqualify him from becoming a Member
of Parliament
• If he resigns his office as a Parliamentarian
• If he leaves the party on whose ticket he stool for election: Note the exception under
article 97(2).
• Consider the instance of Hon. Andrew Amoako Asiamah, MP for Fomena, whose seat
was declared vacant by the Speaker of Parliament for the 7 th Parliament under the 4th
Republic. Was the declaration constitutional?
• If though having been elected as an independent candidate he joins a political party
 Determination of Membership: art 99
• High court is the proper forum for challenging election of MPs and by a
petition:
• See Yeboah v. JH Mensah [1998-99] SCGLT 492
• Right of further appeal from the Court of Appeal to the Supreme Court:
• In re Parliamentary Election for Wulensi Constituency; Zakaria v Nyimakan
[2003-2004] SCGLR 1.
 Contempt of Parliament
• Article 122:
• “An act or omission which obstructs or impedes Parliament in the performance of its
functions or which obstructs or impedes a member or officer of Parliament in the
discharge of his duties, or affronts the dignity of Parliament or which tends either
directly or indirectly to produce that result, is contempt of Parliament.”
• Article 123:
• “Where an act or omission which constitutes contempt of Parliament is an offence
under the criminal law, the exercise by Parliament of the power to punish for
contempt shall not be a bar to the institution of proceedings under the criminal law”
 Miscellaneous Provisions
• Emoluments of Members: art 98
• Oath of Members: art 100
• Voting in Parliament: art 104 & 105
• Dissolution of Parliament: art 113
• Gratuities for Members of Parliament: 114
INSTITUTIONS OF THE STATE

THE JUDICIARY
 Composition of the Judiciary: Art 126
• The Judiciary consists of:
• The Superior Courts of Judicature:
• The Supreme Court
• The Court of Appeal
• The High Court and Regional Tribunals
• Such Lower Courts or tribunals as Parliament may by law establish:
• Circuit Court
• District Court
• Judicial Committees of the National House of Chiefs
 The Judicial Power of Ghana-Art 125
• Justice emanates from the people and is administered independently by the Judiciary in
the name of the Republic.
• Citizens may participate in the administration of justice through popular participation
• Judicial power is vested in the Judiciary. Accordingly neither the President nor Parliament
nor any organ or agency of the President or Parliament shall have final judicial power.
• Judiciary has jurisdiction in all matters both civil and criminal and such as other matters
as Parliament may by law determine
• The Chief Justice is the administrative head of the Judiciary and the supervising judge of
the Judiciary
 Mode or Exercise of Judicial Power
• Superior courts are courts of record.
• Superior courts have the power to commit for contempt unto themselves
• Court proceedings are generally public unless otherwise stated by the
Constitution or by law: see art 135(3); divorce and other matrimonial
causes are also held in camera.
• Issuance of such order and directions as may be necessary for the
enforcement of any judgments, decrees or orders.
 Independence of the Judiciary: Art 127
• The Judiciary is not subject to any form of control by any person or authority in the exercise of
its judicial and administrative functions
• Neither the President nor Parliament nor their representatives can interfere with the Judiciary in
the exercise of their judicial functions
• A Judge shall not be liable for any act or omission done by him in the exercise of his judicial
functions
• The administrative expenses of the Judiciary shall be charged on the Consolidated Fund
• The salaries and allowances of the judicial officers shall not be varied to their disadvantage
• Monies voted by Parliament or charged on the consolidated funds shall be released to the
judiciary on quarterly basis.
 The Supreme Court: Composition and
Qualification – Art 128
• Comprises the Chief Justice and not less than nine other Justices of the
Supreme Court
• Not less than five Justices can sit on a case. Note the exception in cases of
review (Art 133) and single justices (art 134)
• Chief Justice presides over the sitting of the Supreme Court. In her
absence the most Senior Justice at the bench presides
• Qualification: High moral character; Proven Integrity; and not less than 15
years standing as a lawyer
 Jurisdiction of the Supreme Court

• General jurisdiction: art 129

• Final arbiter
• Binding effect of Supreme Court decisions on itself and
lower courts
• General judicial powers, authority and jurisdiction vested in
any court established by the Constitution or any other law
 Jurisdiction of the Supreme Court
• Original Jurisdiction: Art 130 (1)
• Exclusive original jurisdiction in matters of interpretation, enforcement or
constitutionality of any action by Parliament or such other authority
• A person bringing and action under article 2 need not demonstrate any
personal interest in the outcome of the case. That he is a citizen of Ghana is
enough: Tuffuor v. AG [1980] GLR 637; Sam (No. 2) v. AG [2000]
SCGLR 305
• Person refers to both natural and corporate bodies: NPP v. AG (CIBA Case)
[1996-97] SCGLR 729
 Jurisdiction of the Supreme Court
• Original Jurisdiction subject to the High Court’s exclusive original jurisdiction
under article 33: Edusei v. AG [1996-97] SCGLR 1; Edusei (No. 2) v. AG
[1998-99] SCGLR 753; Adjei-Ampofo v. AG [2003-2004] SCGLR 411
• Issues arising should be strictly matters of interpretation and enforcement and
not issues clothed as such. That is issues that are not exclusively determinable
by the Supreme Court but fall within a cause of action cognizable by any other
court or tribunal of competent jurisdiction: Bimpong Buta v. GLC 2003-2005] 1
GLR 738 ; Yiadom I v. Amaniapong [1981] GLR 3; GBA v. AG (Abban Case)
[2003-04] SCGLR 250; Edusei (No. 2) v. AG [1998]99]; Aduamoa II v. Twum
II [2000] SCGLR 165
• Exclusive jurisdiction in the production of official documents: art 135(1)
 Jurisdiction of the Supreme Court
• Reference Jurisdiction: Art 130(2)
• See the Maikankan Principle in Republic vrs. Maikankan & Others [1971] 2 GLR 473
:
• “if in the opinion of the lower Court the answer to a submission is clear and unambiguous
on the face of the provisions of the constitution or laws of Ghana, no reference need be
made since no question of interpretation arises and a person who disagrees with or is
aggrieved by the ruling of the lower court has his remedy by the normal way of appeal, if he
chooses to interpret the provision of article 106(2) of the constitution in any other way may
entail and encourage references to the SC of frivolous submissions , some of which may
intended to stultify proceedings or due process of law and may lead to delays such as may
in fact amount to denial of justice…”
 Jurisdiction of the Supreme Court
• The Supreme Court can suo motu invoke its reference jurisdiction
• See Republic v. High Court; Ex part Dr. Zanetor Rawlings Civil Appeal No.
J5/19/2016
• Where the Supreme Court stayed the proceedings of the High Court and referred to
itself the question for interpretation: “When can it be properly said that a Ghanaian
citizen is by reason of non registration as a voter not qualified to be a member of
Parliament under article 94(1)(a) of the 1992 Constitution?”
• Reference Jurisdiction for production of official document: art 135(2)
Appellate Jurisdiction of the Supreme Court:
Art 131
• Appeal as of right
• Appeal with the leave of the Court of Appeal. The test for the leave is “the
case involves a substantial question of law or in the public interest”.
• Special leave of the Supreme Court: art 131(2)
• Appellate jurisdiction from the High Court to the exclusion of the Court of
Appeal in cases of high treason: art 131(3)
• Appellate jurisdiction from the Judicial Committee of the National House of
Chiefs: art 131(4); 273(1)& (2)
 Supervisory Jurisdiction of the Supreme
Court: Art 132
• Supervisory jurisdiction over all court and other adjudicating authorities
• Judicial tools for supervision include:
• Orders and directions for the enforcement of its securing power
• Conventional writs: certiorari, mandamus, prohibition, etc –art 161
• Powers under article 129(4)
• See: Holding 3 of Republic v. High Court (Commercial Division); Ex parte
Attorney General (Balkan Energy Ghana Ltd. & Other Interested Parties . See
also British Airways v. AG [1996-97] SCGLR 547
 The Court of Appeal: Composition and
Qualifications. Art 136
• Comprises the Chief Justice and not less than 10 other Justices of the Court of
Appeal
• Other Justices as the CJ may determine in writing for a period on a cause or matter
• Not less than three Justices can sit on a case. The most senior presides.
• Qualification: High moral character; Proven Integrity; and not less than 12 years
standing as a lawyer
• Bound by its decisions. Its decisions are binding on lower courts subject to the
overriding decisions of the Supreme court under article 129(3)
 Appellate Jurisdiction of the Court of
Appeal: Art 137
• Hears appeals from the High court and such other appeals as the
Constitution provides
• Appeal to the Court of Appeal from the High Court are generally as of
right unless otherwise provided
• Note the appellate powers, authority and jurisdiction of the Court of
appeal is proportional to the powers, authority and jurisdiction of the court
from which the appeal is brought: art 137(3)
• Note the powers of a single justice of the appeal court: art 138
 The High Court- Composition and
Qualification: art 139
• Comprises the Chief Justice and not less than 20 other Justices of the High Court
• Other Justices as the CJ may determine in writing for a period on a cause or matter
• High Court is duly constituted in the following circumstances:
• Single Justice of the High Court;
• Single Justice of the High Court and a jury;
• Single Justice of the High Court with assessors;
• Three panel court in cases of high treason or treason

• Chief Justice may create such divisions as is necessary in the High Court.
• Qualification: High moral character; Proven Integrity; and not less than 10 years standing
as a lawyer
 Jurisdiction of the High Court
• General & Original Jurisdiction: art 140(1) & (2)
• Jurisdiction in high treason or treason cases limited to such matters only: art 140(3)
• Note the appellate powers, authority and jurisdiction of the High Court is proportional
to the powers, authority and jurisdiction of the court from which the appeal is brought:
art 140 (5)
• Appellate Jurisdiction: art 140(1). Note:
• The jurisdiction to hear and determine appeals in civil cases from the Circuit Court lies with the
Court of Appeal not the High Court- See sections 11(3) and 11(4) of Courts Act (Act 459)
• Supervisory Jurisdiction: arts 141 & 161
 Appointment of Justices of Superior Courts:
Art 144
• Chief Justice: appointed by President in consultation with Council of State and
parliamentary approval
• Justices of the Supreme Court: appointed by President on the advice of the Judicial
Council in consultation with Council of State and parliamentary approval
• Justices of the Court of Appeal and High Court: appointed by President on the advice
of the Judicial Council
• In the absence of the Chief Justice, the most senior at the bench of the Supreme Court
acts.
• Also not the rules for filling vacancy for a High Court Judge.
 Removal of Justices of Superior Courts: Art
146
• Grounds for removal:
• Misbehaviour: See the example of defaulting judges in the Judiciary Corruption Scandal in September
2015
• Incompetence
• Inability to perform functions
• Removal of Justice other then Chief Justice
• Petition to the President
• President refers petition to CJ to determine prima facie case
• If prima facie case established. A Committee of five is set up to conduct investigations
• Recommendations of the committee are given to the CJ who forwards it to the President.
 Removal of Justices of Superior Courts: Art
146
• Removal of Chief Justice:
• Petition to the President
• President in consultation with the Council of State sets up a committee of five.
• Committee make recommendations to the President based on their investigations
• Removal proceedings are held in camera.
• Justice against whom petition is filed has the right to be heard
• The President is obliged to act on the recommendation of the committee
• The President may during the period while the matter is pendig before the committee
suspend the Justice in question and revoke the suspension at any time
 Retirement & Resignation of Justices of
Superior Courts: Art 145
• Voluntary Resignation: Justices of the Superior Court may retire at any time after 60
years.
• Mandatory Resignation:
• Supreme Court and Court of Appeal: 70 years
• High Court: 65 years
• Justice may resign upon writing to that effect addressed to the President
• Six months post retirement age grace period: art 145(4)
• Question: In your opinion, should the tenure of Justices of the Supreme Court
remain as it is or be amended to be ‘for life’ as is the case in the USA?
 Judicial Council: Art 153 & 154

• Composition: art 153

• Function : art 154
 Miscellaneous Provisions
• Appointment, retirement and removal of judicial officers: arts 148-151
• Retiring awards of Superior Court Justices: 155
• Judicial Oath: 156
• Rules of Court: 157
• Other Officers and employees of the court: 158
• Regulations of Chief Justice: 159
• Fees of Court to form part of the Consolidated Funds: art 160