Introduction:

An English legal scholar, Albert Venn Dicey defined the Rule of Law as follows: first, it
means, the absolute supremacy of regular law as opposed to the influence of arbitrary power and
wide discretionary authority on the part of the government. Secondly, it means the equal
subjection of all classes of persons to the ordinary law of the land administered by the ordinary
courts. From the foregoing, it is clear that whilst the ideal of the rule of law might not have a
stable meaning, it however entails four basic principle which include; the principle that power
may not be exercised arbitrarily, the principle of supremacy and independence of the law, the
principle that law must apply to all persons equally offering equal protection without
discrimination and finally the principles of respect for universal human rights as laid down in the
instruments and conventions accepted by the international community as a whole. The main
objective of rule of law is to provide impartial control of the use of power by the state.

This assignment seeks to assess the veracity of rule of law as defined in three major thematic
areas including; the restriction of the arbitrary exercise of power by subordinating it to well-
defined and established laws; the authority and influence of law in society when viewed as a
constraint on individual and institutional behavior and the principle whereby all members of a
society (including those in government) are considered equally subject to publicly disclosed legal
codes and processes.

Restriction of the arbitrary exercise of power:

The first strand of the definition of the rule of law emphasizes on the restriction of the
arbitrary exercise of power by subordinating it to well-defined and established laws. The rule of
law covers the fundamental principle of restricting the wide powers which legislation confers on
government authorities. The constitution being the supreme law of Ghana has relinquished
certain powers to the various arms of government and certain individuals in public offices.
However, these same powers must be exercised subject to restrictions imposed by the 1992. A
crucial component of the rule of law is that government should be conducted within the
framework of recognized rules and principles which restrict discretionary power.

Several cases epitomize the progress that Ghanaian courts have made in terms of entrenching the
rule of law by ensuring that the restriction of the arbitrary exercise of powers are subjected to
established laws of the land. In the case of J.H Mensah v. Attorney-General, the Court upheld the
rule of law when it required all government ministers holding such offices before the 1996
elections to be submitted to parliamentary vetting in accordance with the Constitution. This was
against the backdrop of the government purporting to allow such ministers to continue holding
their positions after the 1996 general elections and the subsequent swearing in and start of the
second term of office of President Rawlings. The Court, however, held that such appointees,
regardless of the similar positions they held prior to the elections, ought to be vetted again by
Parliament in accordance with the clear dictates of the 1992 Constitution of Ghana. Thus,
political impunity in the form of an abject neglect of clear constitutional provisions was halted
by the apex court of the land guided by the principle of limited government powers.

The case of Asare v. Attorney-General (citizenship case) has also demonstrated how arbitrary
exercise of powers is subjected to established laws of the land. In the instant case, the Court
struck down provisions of the Citizenship Act, Act 591of 2000, which gave the Minister of the
Interior the unfettered discretion to prescribe offices that dual citizens were not eligible to hold in
Ghana, in addition to the offices that they were statutorily barred from holding.

Authority and influence of law in society when viewed as a constraint on individual and
institutional behavior:

The effectiveness of a government in delivering and discharging its core mandate to the
citizenry cannot be realized without the existence and functioning of state agencies. Some of
these state agencies include Commission on Human Rights and Administrative Justice (CHRAJ),
Ghana Police Service, Economic and Organized Crime Office among others. These bodies are
created by Acts of Parliament where they derive their authority. These institutions and officials
are to 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. As illustrated in the case of New Patriotic Party v. Ghana Broadcasting
Corporation, the plaintiff brought an action against the state broadcaster, who had refused to
allocate it equal airtime as the government, for the purpose of rebutting the budget statement of
the government. The court held that under article 163 of the constitution, all state owned media
had to afford fair opportunities for the presentation of divergent viewpoints and, as a
consequence, Ghana Broadcasting Corporation was under an obligation to provide equal
opportunity to the opposition New Patriotic Party to present its views on issues of national
importance. The court once again stood firm and upheld the rule of law, thereby safeguarding
our democratic governance system from the whims and caprices of an “authoritarian” institution.

Also as part of the core mandate of CHRAJ, CHRAJ is supposed to pursue administrative justice
in a manner that is confidential and flexible in order to afford people with the opportunity to
complain about misconduct by public officials. The commission has performed this mandate by
investigating administrative injustice meted out to some staff by some corporate bodies. An
example is in 1994, where some Police Officers were dismissed by the Inspector General of
Police (IGP) for sums of money they could not account for while on duty at various road barriers
after an adjudicating panel of a committee of inquiry was set up to investigate the matter. The
action taken by the Inspector General of Police (IGP) was called into question when CHRAJ`s
investigation into the case pointed out that the unjust nature of the dismissals was arbitrary use of
power. The commission therefore recommended the reinstatement of the dismissed officers.

Equality before the law:

Explaining the last principle of the rule of law, Dicey states that there must be equality
before the law or the equal subjection of all classes to the ordinary laws of the land administered
by the ordinary law courts. This principle was exemplified in the case of Ahumah Ocansey v.
The Electoral Commission which centered on the right of inmates to cast their votes. The court
held the right to be registered as a voter is not a privilege but a right in the constitution for all
persons above the age eighteen (18) therefore the Electoral Commission were obliged to register
all persons who are qualified in terms of the express provisions of Article 42 and desirous of
exercising their franchise.

Again in 2018, an Accra High Court ordered the Ghana Fire Service to pay GH¢100,000 as
compensation to two former women employees who were dismissed for getting pregnant within
three years of their appointment. In the landmark judgment that ensured gender equality in the
country’s fire service, the judge averred Regulation 33(6) of the Fire Service Conditions of
Service as discriminatory and in direct contravention with article 17 (1) and (2). The regulation
provided that a female employee shall not be dismissed on the ground that she is pregnant
provided she has served the first three years. Thus women employees of the National Fire
Service must defer their pregnancies until after three years of being employed.

Assessment and Conclusion:

In examining how the rule of law has fared Post-independence era, it becomes obvious
that the various democratic government of Ghana had no interest in upholding the rule of law.
This stems from the fact that its legislative agenda betrayed some of the fundamental tenets of
the rule of law. For example, in 1958 Parliament enacted the Preventive Detention Act, which
sought to detain persons whose future actions were deemed likely to be prejudicial to the security
of the state. In the infamous Re-Akoto case, if the decision had gone the other way, the political
and constitutional development of Ghana would have been different. ‘Different’ in the sense that
respect for individual rights and the rule of law might well have been entrenched in our land.
However, the failure of the courts to clearly protect human rights was a blow in the face of the
rule of law.

Another case that laid the foundation for executive impunity during the Post-independence era
was the case of Lardan v. Attorney-General. This case concerned a deportation order made
pursuant to the Deportation Act of 1957, which sort to deport the plaintiff from Ghana as it was
alleged that his continuous presence was not conducive to the public good. He brought an action
seeking a declaration to the effect that the order was invalid by virtue of the fact that the Act was
not applicable to him since he was a Ghanaian citizen by birth. While the matter was pending in
court, Parliament enacted the Deportation Act of 1957 which gave power to the Minister of the
Interior to specifically deport the two individuals from Ghana. Furthermore, this Act sought to
terminate any proceedings in any court instituted for the purpose of challenging the validity of
any deportation order made against the persons affected by the Act. Although Ghana was
operating under a written constitution at that time, the Judge erroneously relied on the British
parliamentary system where supremacy of Parliament operates to give his judgment.

A number of cases aside the Re-Akoto and Lardan v. Attorney-General case upon careful
examination reveal the extent of the disregard for the rule of law in Ghana in the immediate
aftermath of independence.
The Post-independence era (1957-1966) of the rule of law as exemplified in the Re-Akoto and
Lardan case among others was heavily criticized by all as being a complete fetter on the very
ethos of the concept of the rule of law. In our current dispensation, the rule of law has gained
much recognition under the 1992 constitution as it is been upheld and practiced by the various
arms of government who wield such powers enshrined in the 1992 constitution. The 1992
constitution of Ghana which ushered in this new era of rule of law can be illustrated per articles
1(2) and 2(1) of the Fourth Republican Constitution, which asserts 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.

The true effect of article 1(2) of the 1992 constitution which establishes the supremacy of the
constitution was determined by the Supreme Court in the case of Mensima v. Attorney- General,
where the court declared regulation 3(1) of LI 239 which mandated all applicants for a distiller’s
license to belong to a registered distiller’s operative as null and void for being inconsistent with
the letter and spirit of the constitution, particularly article 21(1)(e) which guarantees that all
persons shall have the right to freedom association. Also in the case of Amidu v. President
Kuffuor, Adjabeng JSC in his dissenting opinion said ‘the constitution makes it clear that
everybody in this country; including His Excellency the President is under the constitution and
the law. This clearly is what we mean by the rule of law’.

In conclusion, Ghana has had varied history in its quest for the rule of law. As has been
demonstrated, the early days of independence showed how the judiciary failed to defend and
protect the citizenry when the executive systematically detained and oppressed the population.
However, the subsequent years witnessed a plethora of cases where the courts stood up to the
executive and legislative bodies to ensure that the abuse of power is curtailed.

Critical assessment of the three aspects of rule of law translates into how it has been a necessary
good to our country, thereby driving home the point that the existence of rule of law is a truism
and not just a fallacy in relation to Ghana. These advantages include how it has promoted the
freedom of the judiciary, entrenched the freedom of individuals in the country, and preserved our
constitution as well as preventing arbitrariness and dictatorship. The preamble of our constitution
has fortified the view on rule of law in Ghana. Ghana as a democratic nation will not farewell
without rule of law. Evidence of it being existent in the various affairs of our nation has been
duly highlighted above in the cases of J.H Mensah v. Attorney-General (supra), Asare v.
Attorney-General (citizenship case) (supra), New Patriotic Party v. Ghana Broadcasting
Corporation (supra), Ahumah Ocansey v. The Electoral Commission (supra), Mensima v.
Attorney- General (supra) and Amidu v. President Kuffuor (supra). However, it is noteworthy to
mention that some may dispute this notion. Their argument may be summarized as though it
exists but not entirely absolute.

We however accept the assertion that rule of law being defined as “the restriction of the arbitrary
exercise of power by subordinating it to well-defined and established laws” and alternatively
explained as "the authority and influence of law in society, especially when viewed as a
constraint on individual and institutional behaviour; … the principle whereby all members of a
society (including those in government) are considered equally subject to publicly disclosed legal
codes and processes” is a true statement in relation to the Ghanaian context.