THE SUPREME COURT AND THE INTERPRETATION OF THE CONSTITUTION   

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CHAPTER 3 THE UNDERLYING CONCEPTS OF THE FOURTH REPUBLICAN CONSTITUTION OF 1992

INTRODUCTION

There are certain fundamental concepts or principles which underlie most written constitutions. Notable among these concepts are: the doctrines of the supremacy of the constitution, of separation of powers, of non-justiciable political question and of mootness. Thus, in the case of Amidu v President Kufuor,1 Kpegah JSC in his dissenting opinion said:
“Our Constitution like the American Constitution, is a written one underpinned by the doctrine of separation of powers. And it is important to say that being a written Constitution, it has, like the American Constitution, certain fundamental or basic attributes.”
In her opinion in support of the unanimous decision of the Supreme Court in the case of Apaloo v Electoral Commission,3 Bamford-Addo JSC said: “The people of this country in 1992 promulgated for themselves a constitution, which vested sovereign power in the people and provided a democratic system of government based on certain fundamental principles, namely, political pluralism, a majority parliamentary representative rule, under which form of government, all citizens of full age and of sound mind had the right to vote during an election to choose their representatives.”
The question to be posed is: to what extent has the Supreme Court of Ghana developed or accepted these fundamental concepts or principles as applicable under the Constitutional Law of Ghana? This chapter seeks to examine seriatim the application or otherwise to the Ghana Constitutional Law of these four fundamental principles.

SUPREMACY OF THE CONSTITUTION 

Articles 1(2) and 2(1) of the Fourth Republican Constitution, 1992 assert the supremacy of the Constitution as the fundamental law of Ghana. By these provisions, the Constitution seeks to emphasize that it provides the framework for governance. In effect, it is the Constitution that governs since it prescribes the manner and also the limits within which the powers of government may be exercised. These articles state as follows:
« 1(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void. »
« 2(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 true effect of article 1(2) of the Constitution, 1992 was determined by the Supreme Court in Mensima v Attorney-General.5 In this case, the plaintiffs, members of a registered cooperative union, broke off from the union and formed a limited liability company. The object of the company was to distil a locally manufactured gin called akpeteshie. They were prevented from distilling akpeteshie by the officers of the co-operative union; they were also harassed and their products were impounded by the officers on the grounds, inter alia, that they did not belong to any registered distiller’s co-operative union; and also for having no licence as required by regulation 3 (1) of the Manufacture and Sale of Spirits Regulations, 1962 (L I 239), which provided that: “ Every applicant for the issue of a distiller’s licence shall be a member of a registered Distiller’s Co-operative.” The plaintiffs therefore sued in the Supreme Court under article 2 (1) of the Constitution, 1992 for a declaration, inter alia, that regulation 3 (1) of LI 239, which made it mandatory for an applicant “ for the issue of a distiller’s licence” to belong to a registered distiller’s cooperative, was inconsistent with the letter and spirit of the Constitution, particularly the exercise of their fundamental right of freedom of association guaranteed under article 21(1) (e) of the Constitution. The said article 21(1)(e) provides that:
“All persons shall have the right to – (e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest.”
The defendants, however, contended, inter alia, that LI 239 and its parent Act, ie the Liquor Licensing Act, 1970 (Act 331), were existing laws within the meaning of article 11(5) of the Constitution; and that, that Act and the regulations made under it, had not been specifically repealed and must, therefore, be complied with.
That argument was rejected by the Supreme Court. By a majority decision of three to two, the court upheld the plaintiffs’ claim in relation to regulation 3 (1) of L I 239. The court declared regulation 3(1) of LI 239 as null and void for being inconsistent with the letter and spirit of the Constitution, particularly article 21(1)(e) thereof because of its mandatory requirement for an applicant for a distiller’s licence to belong to a registered distiller’s cooperative. On the specific issue of the continued application of the impugned legislation, the majority of the Supreme Court held, per Acquah JSC, that; “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. And once the Constitution does not contain a schedule of laws repealed by virtue of its provisions, whenever the constitutionality of any law vis-à-vis a provision of the Constitution is challenged, the duty of this court is to determine thd authenticity of the challenge. And in this regard, the fact that the alleged law has not been specifically repealed is totally immaterial and affords no validity to that law. For article 1(2) contains a built-in repealing mechanism which automatically comes into play whenever it is found that a law is inconsistent with the Constitution. It therefore follows that the submission based on the fact that the [refulation] 3(1)…of L I 239 [has] not been specifically repealed, and therefore valid, misconceives the effect and potency of article 1(2), and thereby underrates the supremacy of the 1992 Constitution.”
The supremacy of the Constitution, 1992 as asserted by the Supreme Court, is a carry over from the Constitutions of 1969 and of 1979.7 Under the concept, governmental powers, be they executive, legislative or judicial are to be exercised subject to the provisions and dictates of the Constitution. The concept of the supremacy of the Constitution may be contrasted with the principle of parliamentary sovereignty (or supremacy) under the First Republican Constitution of 1960. Thus article 20(2) and (6) of that Constitution provided:
« 20(2) So much of the legislative power of the State as is not reserved by the Constitution to the people is conferred on Parliament… (6) Apart from the limitations referred to in the preceding provisions of this Article, the power of Parliament to make laws shall be under no limitation whatsoever. » It was in the light of the above provisions and other provisions in article 20 of the Constitution, 19608 that Bennion wrote:9 « The real question is not whether powers shall be divided but whether any organ of the State shall be granted supremacy, and if so, which. In this matter Ghana has followed the British rather than the American model and granted supreme power to a Parliament consisting of the President and the National Assembly. This power is not absolute, since the power to repeal or alter certain entrenched provisions of the Constitution is expressly reserved to the people, but within the basic framework of the Constitution, Parliament is sovereign by virtue of its possession of unlimited legislative powers. » It should be emphasized, however, that the above observation on the doctrine of parliamentary sovereignty referred to by Bennion, no longer holds sway today even in Britain which, unlike Ghana, has no written constitution as the fundamental law of the land. As was rightly observed by Kpegah JSC, in his dissenting opinion in Amidu v President Kufuor:11 “… some of the assumptions which flow from the theory of supremacy of Parliament in British Constitutional Law, are slowly coming under stress by certain realities of the modern state and the relations between other States.”
And the inimitable Lord Denning M R was well ahead of his times when, in Blackburn v Attorney-General,12 he said:
“We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality.”13
The position today is that the concept of parliamentary sovereignty even in Britain, has now been eroded in the words of Lord Denning, “alongside political reality.” This is reflected by the interpretation placed by the courts on the UK Human Rights Act, 1998 and the European Convention on Human Rights (European Community Law within the European Union (EU)). Section 3(1) of the U K Human Rights Act states: “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention.”
Commenting on section 3(1) of the Human Rights Act, Dudley Moore said:14 “Quite simply, this [section 3(1)] means that judges must try and interpret legislation to uphold the Convention rights. If they cannot, they have the power to declare this (by a ‘declaration of incompatibility’ under section 4) and it is then the duty of Parliament to remedy the situation by way of further legislation (fast track remedial action, s. 10).”
The question is: what has been the interpretation placed by the English Courts on sections 3(1) and 4 of the Human Rights Act? The problem posed is: when can a court make a declaration of incompatibility and when to find the relevant Act “fit” or be compatible with the European Convention on Human Rights? In R v A,15 Lord Steyn expressed the view that declaration of incompatibility should be made only as a last resort and only when there was a clear limitation on European Convention Rights stated in the legislation under consideration. In the same case, however, Lord Hope gave a narrower interpretation to section 3 of the Act. He criticised Lord Steyn’s approach as allowing the judges to act as legislators.16 In his view, “… compatibility is to be achieved only as far as possible.”
The issue of whether the provisions of European Community (E C) Treaty (Community Law) should prevail over English legislation, arose in the case of Factortame Ltd v Secretary of State for Transport (No 2).17 In this case, the Secretary of State promulgated the Merchant Shipping (Registration of Fishing Vessels) Regulations, 1988 for a new register of British fishing vessels, in the exercise of his powers under the Merchant Shipping Act, 1988. The applicant fishing company complained that they could not apply for registration under the regulations because the majority of their directors and shareholders were not British but Spanish nationals. They sued by way of an application for judicial review to challenge the validity of the legislation on the grounds that the English legislation had the effect of depriving them of their European Community Law rights. The Divisional Court (High Court) granted the applicants an injunction restraining the Secretary of State from enforcing the regulations under the Act. The court also ordered that the operation of Part II of the 1988 Act and the regulations made thereunder should not be applied against the applicants pending the determination of the substantive claim impugning the validity of the Act. The English Court of Appeal allowed the appeal of the Secretary of State against those orders. The applicants appealed to the House of Lords which allowed the appeal and restored the orders made by the Divisional Court. It held that the applicants had a strong case to present to the European Court of Justice of the European Communities and that the evidence presented by the Secretary of State was not sufficient to outweigh the obvious and immediate damage which would continue to be caused to the applicants if no injunction was granted in their favour. The House of Lords, in effect, held that European Community Law could not be overridden by United Kingdom legislation.
The inescapable conclusion is that the doctrine of parliamentary sovereignty, as earlier indicated, no longer holds sway even in the UK.18 Not surprisingly, the authors of Wade and Bradley: Constitutional and Administrative Law,19 after detailed examination of the concept of parliamentary sovereignty or supremacy in chapter 5, concluded:20
“The view taken in this chapter has been that Parliament’s legislative authority includes power to make new constitutional arrangements under which future Parliaments would not enjoy legislative supremacy. Those who would adhere to the doctrine of legislative supremacy at all costs must be prepared to demonstrate that the political system provides adequate safeguards against legislation which would be contrary to fundamental constitutional principle or the individual’s basic rights.”21
In Ghana, like most developing countries with a written Constitution as the fundamental law, the doctrine of parliamentary sovereignty has no application at all. The supremacy of the Constitution prevails as asserted by the Supreme Court in cases such as Mensima v AttorneyGeneral (supra). There is therefore no doubt that the principle of constitutional supremacy under the Constitution, 1992 as opposed to the principle of parliamentary sovereignty under the Constitution, 1960 is one of the distinctive developments of Ghana Constitutional Law. Thus, in his opinion in support of the majority decision of the Supreme Court in New Patriotic Party v Attorney-General (31st December Case)22 Aikins JSC said:23
« In my view, even though Parliament has the right to legislate, this right is not without limit, and the right to enact a law that June 4 and December 31 should be declared public holidays cannot be left to linger in the realm of public policy. Such legislation must be within the parameters of the power conferred on the legislature, and under article 1(2) of the Constitution, 1992 any law found to be inconsistent with any provision of the Constitution (the supreme law) shall, to the extent of such inconsistency, be void.”
In the same case, the 31st December Case, Amua-Sekyi JSC also in support of the majority decision said:24 « Parliament now has no uncontrolled right to pass laws on public holidays, any more than it has to declare a ‘one party’ state, or make a party leader President for life or crown him Emperor. As the fundamental or basic law the Constitution, 1992 controls all legislation and determines their validity. It is for the courts, as the guardians of legality, to ensure that all agencies of the State keep within their lawful bounds.”
We may also underline and adopt the words of Edward Wiredu JSC (as he then was), in Ghana Bar Association v Attorney-General (Abban Case),25 where he said:26
“The Constitution, 1992 has established a new legal order for this country. Ghana is now in an era of constitutional supremacy as opposed to parliamentary sovereignty as it exists in Britain …In Britain, no policy of the government or legislation …can be questioned in any of the British Courts… In this country, however, under the new order of constitutional supremacy, the Constitution has vested the power of supervising and the enforcement of the Constitution in the Supreme Court, the judges of which have sworn to uphold and defend its provisions without fear or favour. Parliamentary sovereignty as practised in Britain is alien to our new legal order. The Constitution has vested the power of judicial review of all legislation in the Supreme Court. It has done away with either an executive or parliamentary sovereignty and subordinated all the arms or organs of State to the Constitution. »
In the case of Ghana Bar Association v Attorney-General (Abban Case)27 the President of the Republic, on 15 February 1995, acting in pursuance of articles 91(1) and 144(1) of the 1992 Constitution, nominated, in consultation with the Council of State, Mr Justice I K Abban, a Supreme Court Judge, for approval by Parliament as the new Chief Justice of Ghana in succession to Mr Justice Archer, who was soon to retire as the Chief Justice of Ghana. Parliament granted the approval under a certificate of urgency and Justice Abban was duly appointed by the President on 22 February 1995. Subsequently, the Ghana Bar Association, the plaintiffs, brought the instant action against the Attorney-General as the first defendant, and Justice Abban as the second defendant, in the Supreme Court – invoking its original jurisdiction under articles 2(1)(a) and (b) and 130(1) of the Constitution for four reliefs, namely:
« (1) a declaration that on a true and proper interpretation of articles 2(1)(a) and (b) 91(1) and (2), 128(4) and 144(1) of the Constitution, the President of the Republic should not have nominated and appointed the second defendant Mr Justice Isaac Kobina Abban, to the Office of Chief Justice since he is not a person of high moral character and proven integrity; (2) a declaration that the appointment on or about 22 February 1995 by the President of the second defendant, Mr Justice Isaac Kobina Abban, as Chief Justice as well as the advice by the Council of State and the approval by Parliament of his nomination to such office were each made in contravention of articles 91(1) and (2), 128(4) and 144(1) of the Constitution, and are therefore null and void; (3) an injunction restraining the second defendant from acting or purporting to act in the office of Chief Justice of Ghana; (4) a declaration that the warrant of appointment of the second defendant by the President is null and void, and an order that the second defendant deliver up same to this honourable court for cancellation and that the same be duly cancelled. »
The claim was unanimously dismissed on a preliminary objection to the jurisdiction of the court raised by the defendants. The court held, applying its earlier reasoning in Tuffour v Attorney-General28 and Yiadom I v Amaniampong,29 that the reliefs claimed by the plaintiffs, would have the effect of indirectly removing the second defendant as the Chief Justice without complying with the mandatory special procedure for removing the Chief Justice under article 146 of the Constitution. In other words, the Supreme Court, by that decision, was asserting that no procedure other than that laid down by the Constitution in terms of article 146 for removing Justices of the Supreme Court would be resorted to and enforced. In support of the unanimous decision, Bamford-Addo JSC said

TABLE OF CONTENTS
Abstract
Table of cases
Table of enactments
Table of abbreviations
Bibliography
Acknowledgments
CHAPTER  I: GENERAL INTRODUCTION AND CENTRAL  THEME OF THE DISSERTATION
(i) Statement of the central theme
(ii) Meaning of constitutional law
(iii) Importance and meaning of democracy and  good governance
(iv) Different meanings of democracy
(v) Meaning of good governance
(vi) Methodology, work division and scope of the dissertation
(vii) Conclusion
CHAPTER II:  HISTORICAL BACKGROUND: CONSTITUTIONAL EVOLUTION AND THE LEGAL SYSTEM IN GHANA  
PART A: CONSTITUTIONAL EVOLUTION IN GHANA
PART B: GHANA LEGAL SYSTEM
(i)  Sources of Law
(ii) The judicial system in Ghana (the past and present)
(iii) Independence of the judiciary
(iv) Composition of the Supreme Court
(v) Qualifications for appointment as Chief Justice or Justice of the  Supreme Court
(vi) Jurisdiction of the Supreme Court
CHAPTER III:  THE UNDERLYING CONCEPTS OF  THE CONSTITUTION, 1992 
(i)  Introduction
(ii) Supremacy of the Constitution
(iii) Doctrine of separation of powers
(iv) Doctrine of non-justiciable political question
(v) Doctrine of mootness
(vi) Conclusion
CHAPTER IV:  THE SUPREME COURT AND THE INTERPRETATION OF THE CONSTITUTION   
Introduction
Rules  applicable in construing a national constitution:
(i)  General principles of constitutional  interpretation
(ii) need for benevolent, broad, liberal and purposive  construction of a   national document
(iii) Benevolent construction on provisions on the right to vote
(iv) national constitution to be viewed as a document  sui generis to be construed not necessarily according to ordinary rules and presumptions of statutory interpretation
(v) National constitution to be construed as political document  capable  of growth
(vi) Role of Directive Principles of State Policy as tool for  constitutional interpretation
(vii) Role of the spirit of the Constitution as a tool  for interpretation  Conclusion
CHAPTER V: THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW OF LEGISLATIVE  ACTION
(i) general introduction
(ii) Ambit of judicial review of legislative action
(iii) Ouster clauses and judicial review of legislative action
(iv) Legality of coup d’etats and judicial review of  legislative action
(v) Constitutionality of the Fast Track High Court
(vi) Conclusion
CHAPTER  VI:  THE SUPREME COURT AND THE POWER OF JUDICIAL REVIEW OF EXECUTIVE ACTION 
(i) Introduction
(ii) The Supreme Court and challenge to executive action  relating to compulsory retirement of public officers
(iii) Challenge to executive action relating to local  government administration  introduction
(iv) Can the President be sued personally in the exercise  of executive functions?
(v) Conclusion
CHAPTER VII: THE SUPREME COURT AND THE ENFORCEMENT OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS
Introduction
PART A
1.  Historical background to enjoyment of fundamental human rights  and freedoms
2. Enjoyment of fundamental human rights before the coming into force of Constitution, 1992
3.   Enjoyment of fundamental human rights under the Constitution, 1992
4.  Fundamental human rights distinguished from Directive Principles of State Policy
PART B
1. General Fundamental Human Rights and Freedoms
2. Limitations on  freedom of speech and expression
CHAPTER VIII:  THE SUPREME COURT AND THE  ENFORCEMENT OF THE CONSTITUTION, 1992
1. Introduction
2. Evolving principles pertaining to the enforcement  of the Constitution
CHAPTER IX: GENERAL CONCLUSIONS  AND RECOMMENDATIONS

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