THE GENESIS OF THE POLITICAL QUESTION DOCTRINE AND MODERN APPLICATION IN THE UNITED STATES

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CHAPTER THREE SEPARATION OF POWERS AND THE EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN GHANA

Introduction

In most constitutional democracies, political disputes or contestations will likely end up in the courts. When this happens, judicial overreach can reasonably be perceived and judicial independence jeopardized. As one South African judge recently warned in Mazibuko, Leader of the Opposition in the National Assembly v Sisulu MP Speaker of the National Assembly351 there is a threat to judicial independence when the judiciary is drawn in to resolve political questions that are beyond its competence or jurisdiction.352 He further said that:
An overreach of the powers of judges, their intrusion into issues which are beyond their competence or intended jurisdiction or which have been deliberately and carefully constructed legally so as to ensure that the other arms of the state to deal with these matters, can only result in jeopardy for our constitutional democracy. In this dispute I am not prepared to create a juristocracy and thus do more than that which I am mandated to do in terms of our constitutional model.353
The difficulty that confronts democracies is how to jurisprudentially resolve political questions that end up in the courts while at the same time preserve the separation of powers and rule of law. In some democracies, notably Ghana, Uganda, Nigeria, United States and Israel, the judiciaries have developed what is commonly referred to as the political question doctrine to resolve political questions and define their relationship with other branches of government in relation to those questions.
This chapter examines the development and current status of the political question doctrine in Ghanaian jurisprudence. It discusses the application of the political question doctrine in Ghana with a view to drawing lessons for South Africa. It argues that while there are differences of opinion around the application of the political question doctrine, the doctrine is firmly part of Ghanaian constitutional law. The chapter observes that the differences of opinion among judges in Ghana is over the proper application of the doctrine rather than whether or not it forms part of Ghanaian constitutional law. The chapter also discusses another related issue, which is the constitutional status of Directive Principles of State Policy in chapter 6 of the 1992 Constitution of Ghana (also refered to as the Constitution 1992) and whether or not these principles are justiciable.

The application of the political question doctrine

The political question doctrine has been considered by courts in Ghana since the early 1980s.354 However, not only have courts and legal commentators disagreed about its wisdom and validity, they have also varied considerably over the doctrine’s scope and rationale.355 In fact, they have even diverged over whether or not the doctrine is applicable under Ghanaian constitutional law, given the contested case authority that adopted it.356 However, there is agreement that the political question doctrine is a function of the separation of powers principle enshrined in the Constitution 1992, and that its jurisprudential basis was influenced by case law from the US Supreme Court.357 Justice Kpegah, who was one of the strongest advocates of the doctrine on the Ghana’s Supreme Court, has offered the most comprehensive and convincing articulation of the basis of the political question doctrine under the Constitution of Ghana.
Justice Kpegah goes on to explain that while the Constitution of Ghana is expressed as the supreme law of Ghana, there is an inherent indication in the text that the policy which informs or should inform any legislation and the desire to enact such legislation are matters for the political branches of government to determine.363 On the other hand, Kpegah concedes that the interpretation and enforcement of the law passed by the legislature fall within the functions of the judiciary. In his view, the question of whether an Act of Parliament is constitutionally valid or not is not a political question and the judiciary is not barred from deciding it.364 He teaches us that when the judiciary examines whether Parliament has breached the constitutional limits on its legislative powers it is not engaging in determining political questions, because the judiciary has the power to make these determinations. For Kpegah, this distinction is important and must be maintained.365 One of Kpegah’s colleagues on the bench, Chief Justice Archer, agreed with the importance of maintaining this distinction when he said that:
The Constitution gives the judiciary power to interpret and enforce the Constitution and I do not think that this independence enables the judiciary to do what it likes by undertaking incursions into territory reserved for Parliament and the executive. This court should not behave like an octopus stretching its eight tentacles here and there to grab jurisdiction not constitutionally meant for it. I hold that this court has no constitutional power to prevent the executive from proclaiming 31 December as a public holiday.
Clearly, Justice Kpegah and other Justices of the Supreme Court of Ghana are of the view that the political question doctrine did not evolve in American jurisprudence due to the fact that the courts were not expressly endowed with the power of judicial review in the United States Constitution.367 Instead, they view the doctrine as a necessary function of the universal principle of separation of powers.368 There are at least three Supreme Court decisions and one High Court decision that either openly applied or considered the political question doctrine in Ghana.

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A legislative decision to declare a public holiday

The first Ghanaian case that considered the political question doctrine was New Patriotic Party v Attorney-General.369 The plaintiff in this case was the New Patriotic Party, the main opposition political party at the time. It brought a law suit seeking a declaration pursuant to section 2(1) of the Constitution 1992 that the planned public holiday and celebration of the coup d’état in Ghana on 31 December 1981 was in conflict with the Constitution 1992. In its defence the government invoked the political question doctrine as articulated in Baker v Carr to bar the Supreme Court from adjudicating the matter. It argued that the question of whether or not 31 December should be declared a public holiday was a non-justiciable political question.
In a five to four decision, the majority of the Supreme Court led by Justice Adade rejected the government’s argument. It reasoned that since the « … Constitution, 1992 itself was essentially a political document because every matter of interpretation or enforcement which may arise from it was bound to have political dimension, »370 which fact cannot be a basis to deprive the Supreme Court of its judicial powers. Further, it explained that the Supreme Court has jurisdiction to determine political questions in exercising its constitutional duty of enforcing or interpreting the Constitution under articles 2(1)371 and 130.372 According to the Supreme Court, the question whether the celebration of the 31 December seizure of power from the then Government of Ghana was in conflict with the Constitution 1992 and required an interpretation of the Constitution, which the Supreme Court had jurisdiction to determine. It held that the political question doctrine was not applicable in Ghana because the Supreme Court, as the ultimate interpreter of the Constitution 1992 pursuant to articles 2(1) and 130, may lawfully decide controversies of a political nature. There is a general agreement among commentators that nothing prevents courts from deciding political controversies; however, cases that are too political fall within the political question doctrine.

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CHAPTER ONE: INTRODUCTION AND CONCEPTUAL OVERVIEW OF THE STUDY
1.1 Introduction
1.2 Theoretical framework
1.3 Existing literature on the political question doctrine
1.4 Significance and originality of the study
1.5 Research questions and objectives
1.6 Methodology of the study
1.7 Synopsis of chapters of the study
CHAPTER TWO: THE GENESIS OF THE POLITICAL QUESTION DOCTRINE AND MODERN APPLICATION IN THE UNITED STATES
2.1 Introduction
2.2 Early application of the classical political question doctrine
2.3 Early application of the prudential political question doctrine
2.4 Survey of US Supreme Court cases applying the political question doctrine post Baker v Carr
2.5 A survey of federal courts’ application of the political question doctrine
2.6 A survey of the application of the political question doctrine by state
2.7 What is left of the political question doctrine? Zivotofsky v Clinton
2.8 Conclusion
CHAPTER THREE: THE APPLICATION AND EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN GHANA
3.1 Introduction
3.2 The application of the political question
3.3 A legislative decision to declare a public holiday
3.4 The appointment of a chief justice
3.5 Dismissal of a cabinet minister
3.6 A legislative decision to retain a member of parliament
3.7 The justiciability of directive principles and state policy
3.8 Conclusion
CHAPTER FOUR: THE APPLICATION AND EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN UGANDA
4.1 Introduction
4.2 Constitution- making
4.3 Are military matters political questions?
4.4 Internal affairs of parliament
4.5 Are maternal health matters political questions?
4.6 Conclusion
CHAPTER FIVE: THE APPLICATION AND EVOLUTION OF THE POLITICAL QUESTION DOCTRINE IN NIGERIA
5.1 Introduction
5.2 Impeachment proceedings
5.3 Political party primaries
5.4 Application of the political question during the second republic1979-1983
5.5 The political question post 1999
5.6 Conclusion
CHAPTER SIX: THE DEVELOPMENT AND APPLICATION OF A COMPREHENSIVE POLITICAL QUESTION DOCTRINE IN SOUTH AFRICA
6.1 Introduction
6.2 Effects of constitutional principles iv and vi
6.3 The emergence of the political question doctrine
6.4 Political question doctrine or mere deference: jurisprudence from the constitutional court
6.5 Foreign affairs as non-justiciable questions: a high court perspective
6.6 Challenges with the implementation of the political question doctrine
6.7 The limits of the political question doctrine
6.8 Justifying the necessity of a political question doctrine
6.9 Reinforcement of the political question doctrine: political accountability provisions
6.10 Responding to opponents of the political question doctrine
6.11 Conclusion
CHAPTER SEVEN: CONCLUSION AND RECOMMENDATIONS
a. Concluding remarks
b. Recommendations…
c. Effects of failure to implement recommendations
BIBLIOGRAPHY
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