Constitutional Law Notes

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Constitutional Law Notes
LAW (Ghana Institute of Management and Public Administration)
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CONSTITUTIONAL LAW: VOLUME 2

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Article
Article 1 Power exercised, to be on behalf on people
Article 2 (2): The Supreme Court shall, for the purposes of a declaration
under Clause (1) of this article, make such orders and give such
directions as it may consider appropriate for giving effect, or
enabling effect to be given, to the declaration so made.
(3): Any person or group of persons to whom an order or direction is
addressed under Clause (2) of this Article by the Supreme Court,
shall duly obey and carry out the terms of the order or direction.
(4) Failure to obey or carry out the terms of an order or direction
made or given under Clause (2) of this article constitutes a high
crime under this constitution and shall, in the case of the President
or the vice-president, constitute a ground for removal from office
under this constitution.
(5) A person convicted of a high crime under Clause 4 of this Article
shall –
(a) Be liable to imprisonment not exceeding ten years without the
option of a fine; and
(b) not be eligible for election, or for appointment, to any public
office for ten years beginning with the date of the expiration of the
term of imprisonment.
57, 58, 295 It makes it clear that the president is the government.
Article 12 .) Tells us that the human rights have not been granted by anybody.
It talks about rights and freedoms enshrined. Not claiming to be the
reason why we have these rights.
–Article 12 tells us that rights guaranteed by constitution. They are
not granted by government, by Republic of Ghana.
2.) Article 12 tells us that the rights and fluid and dynamic and not
static or absolute . If you look at Clause 2, says we have all rights
contained but subject to rights and freedoms of others etc.
Article 35 Achieve reasonable regional and gender balance in recruitment and

(6B) appointment to public offices.
Transitional Indemnity Clauses

Provisions
34, 35, 37
Article 56 What Parliament cannot do
Article 57 President is president who is head of state, head of government, and
commander-in-chief of armed forces of Ghana
Article 57(2) President shall take precedence over all the people/persons in
Ghana.

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Article 298 How to provide a lacuna without being seen as violating the rules of
the constitution.
-Where on any matter, whether arising out of this constitution or
otherwise, there is no provision, express or by necessary implication
of the 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 the matter to be
dealt with.
Article 57(4) President enjoys immunity from suits.
Article 58(1) The executive authority of Ghana shall vest in the president and
shall be exercised in accordance with the provisions of this
constitution.
Article 59 President shall give prior notification to Speaker of Parliament
before traveling.
Article 60(6)
(8) and (11)
(6) Whenever president dies, resigns, or is removed from office, Vice
President shall assume office for unexpired term of office.
(8) Whenever absent, Vice-President acts in his place
(11) When both president and vice unable to perform, Speaker of

Parliament shall perform.
Article 62 All you need to be president is to be citizen of Ghana by birth, 40

years, otherwise qualified to be a member of Parliament.
Article 94 Qualifications to be an MP
Article 64 Challenges to presidential election go to Supreme Court and should
be brought within 21 days.
Article 68 President cannot hold any office for profit, or be Chancellor of any
public university.
Article 71 Salary arrangements/allowances/remuneration packages of

President
Article 76, Appointment of Ministers and Cabinet.

77, 78
Section 13 of Reminiscent of Article 55 of 1960 constitution

Transitional
Provisions
Article 93 Shall be a Parliament of Ghana which shall not consist of not less

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than 140 elected members
Article 94 Qualification of Members of Parliament
Article 95 Speaker is not a member of Parliament.
Article 97 Circumstances in which MP shall vacate his seat.
Article 99 Election disputes of parliament go to High Court (Wolensi Case)
Article 106 Deals with lawmaking process, procedure
Article 112 It is on terms of Parliament. It is 4 years from time from which MP’s
and 113 take this oath.
Article 111 Ministers, President, Vice have right to participate, except power to
vote.
Article 115- Privileges of MP’s. Court orders cannot be served on MP’s, Speaker,
121 clerk while on way to Parliament, or coming from Parliament.
Article 122- Contempt of Parliament

123
Chapter 11 (Judiciary)
Article 125 Justice emanates from the people and shall be administered
in the name of the Republic by the judiciary which shall be
independent and subject only to this constitution.
Article 127 Judicial independence
Article 159 Is the chief justice independent when he acts as an

administrator, or is he responsible to the president of the
republic?
The situation is complicated by Article 159. It says that
acting with advice of Judicial Council and upon approval of
the president.
Article 146 Removal process of Justice of Superior Court or Chairman

of Regional Tribunal
Article 146 (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 the Regional Tribunal,
he shall render the petition to the Chief Justice, who shall

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determine whether there is a prima facie case.
Article 146(4) Where the Chief Justice determines there is a prima facie
case, he shall set up a committee consisting of three justices
of the Superior Courts or Chairmen of Regional Tribunals
or both, appointed by the Judicial Council and two other
persons who are not MP’s nor lawyers.
For Chief Justice, you need 2 Supreme Court justices and 3
lay persons.
Article 126(3) All proceedings of every court shall be held in public subject
to interest of public morality, public safety, or public order.
Article 153 and 154 Judicial Council – to assist Chief Justice in the
administration of the judiciary
Implication of Article Supreme Court judge is not a judicial officer.

161
Article 157(3) No person sitting in a Superior Court for the determination
of any cause or matter shall, having heard the arguments of
the parties of that cause or matter and before judgment is
delivered, withdraw as a member of the Court or Tribunal,
or as a member of panel determining the matter (Aimed at
preventing situation in AG v. Sallah)
Article 135(1) Supreme Court shall have exclusive jurisdiction to

determine whether an official document shall not be
produced in court because its production or the disclosure of
its content will be prejudicial to the security of the state or
will be injurious to the public interest.
Article 2 and 130 Core of power of Supreme Court found there but the ‘spirit’
that Justice Sowah talks about is scattered all over the
document.
Article 21, especially NPP v. GBC

Clause 1
and
(Chapter 12 of
Constitution) –
Freedom and
independence of the
media
Articles 35-39 Duties of the state
Articles 41 Duties of the individual
Article 47 Formula for determining relative sizes of constituencies.

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Though we have principle of 1 man 1 vote, unlike U.S, it

does not mean that votes should carry some weight.
Article 50 Our constitution does not allow (Clause 3) a person to

withdraw candidacy in Parliamentary elections within 10
days of the elections.
Article 45 Functions of Electoral Commission

Article 55 Definition of a political party
State Proceedings
Section 11 Inter-plead
Section 12 On documents
Section 13 Talking about nature of reliefs against state
Section 15 Satisfaction of judgment obtained
Section 16 Enforcement of procedures
Commission/Committee of Enquiry
Passage of 2 pieces of legislation in 1964, Act 230 and 250

Act 230 Prima facie evidence of guilt
Chapter 23 Articles 278-283
Article 5(3) If president feels need to create new region, he may with advice of
Council of State, appoint a commission of Inquiry to inquire into the
need and make recommendations.
Article 278 President may inquire/appoint a Commission of inquiry into any

matter of public interest.
Article 279 (1) A commission of inquiry shall have the powers, rights and
privileges of the High Court or a Justice of the High Court at trial,
in respect of,
(a.) Enforcing the attendance of witnesses and examining them on
oath, affirmation or otherwise;
(b.) Compelling the production of documents and;
(c.) the issue of a commission or request to examine witnesses
abroad.
Article Where a Commission of Inquiry makes an adverse finding against

280(2) any person, the report of the Commission of Inquiry shall, for the
purposes of this Constitution, be deemed to be the judgment of the
High Court; and accordingly, an appeal shall lie as of right from the
finding of the commission to the Court of Appeal.

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Article The president shall, subject to Clause (4) of this Article cause to be
280(3) published the report of a commission of inquiry together with the
White Paper on it within six months after the date of the submission
of the report by the commission.
Article Where the report of a commission of inquiry is not to be published,

280(4) the President shall issue a statement to that effect giving reasons
why the report is not to be published.
Procedural Limitations
Wari v. Ofori-Atta
Human Rights – Which Court has Jurisdiction

1.) Benneh case
2.) Maikankan
3.) Edusei v. AG
Citizenship
1.) Shalabi v. AG
2.) Captan v. AG
3.) Bologun v. Edusei
4.) Lardan v. AG (Substantive Limitations)
5.) Olympio
Commission/Committes of Enquiry Cases

1.) Awoonor Williams v. Gbedemah
2.) Akainyah v. Republic
3.) Republic v. Asafu-Adjaye

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4.) Republic v. Otu & Kwapong

5.) Quayson v. AG
6.) Darkwah v. Republic
7.) Osman v. Awuku Darko
Who Has Capacity to Raise These Constitutional Issues?

NPP v. AG (C.I.B.A. case) –Article 2(1)
State Proceedings
Sallah v. AG
Tuffuor v. AG
NPP v. Rawlings
Konadu v. AG
In all these cases above, Attorney General objected to action brought against him
and Supreme Court said since no-one sided fight in our legal system and must
always be two-sided, must be brought against the Attorney General, and he is the
nominal defendant of the state.
-Constitution also brings ours in line with Nixon v. Sirica

Conway v. Rimmer
NPP v. Rawlings and Another (Rule that you cannot drag President and Vice to
court have been applied in this case.)
Ohene v Principal Secretary, Ministry of Finance

Buobuh v. Ministry of Interior
Kwakye v. Attorney General
PPP v. AG
Akuffo Addo v. Quashie Idan
Levandowsky and Another v. AG
Ex parte Abban
Mould v de Vine
Kwah v. AG
Quainoo v. AG

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Remedies
Certiorari and Prohibition
Ex parte Bannerman
Kwame Addow Case
Anisminic Case
Ex parte Kusada (Certiorari)
Ahenkorah (Certiorari)
C.I. T case (Certiorari)
Eku alias Conduah (Certiorari)
Mandamus
Mould v. de Vine
Ex parte Dizengoff
Ex parte Kludze
Ghann v. tamakloe
Ex parte Akainyah
In Re Botwe (Botwe v. Mensah)
Quo Warranto
1.) Ex parte Adu Gyamfi (Erroneous ruling of Hayfron Benjamin J.)
2.) Ex parte Baffo (erroneous ruling of Hwere J.)
3.) Ex parte Manu
4.) Ex parte Yiadom
Habeas Corpus
Re Okine
Re Akoto
Ex parte Ibrahim
Courts departed from these decisions in
Ex parte Quaye Mensa
Ex parte Oduro

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Declaration
Shalabi v. AG
Captan v. AG
NPP v. GBC
PPP v. IGP
NPP v. Rawlings and Electoral Commissioner
Sallah v. AG
Tuffuor v. AG
J.H. Mensah v. AG
Liversidge v. Anderson
Injunction
NPP v. GBC
PPP v. IGP
31st December case
Balogun v. Edusei
Lardan v. AG
Ekwam v. Pianim
Injunction Against Republic

PPP v. AG
-Article 11: Says that the existing law may be construed or modified etc. to bring
into conformity with legislation.
Ex parte Ofosu Amaah
Chieftaincy
Conduah v. Republic
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Case Issue/Holding
Ware v. Ofori Atta Procedural Limitations
Issue: Whether an Act passed in contravention of a

procedural requirement specified by the
constitution should be declared null and void and
unconstitutional by a Court of Law.
Plaintiff was chief and customary custodian of

Ejisu Stool and Act directly affected traditional
functions of the chief and Act was invalid since
procedure wasn’t followed.
Human Rights – Which Court has Jurisdiction
Benneh case -The entry of judgment purported to be pursuant to the

provisions of the Inv. And Forfeiture Assets (NLCD 400).
-Basis of Claim: NLCD 400 was repugnant to 1969
constitution, Articles 12 and 18 and therefore void by virtue of
1(2).
-Aboagye J. dismissed claim that Supreme Court was the
proper forum to pursue it. Appellants appealed contending
that action could be brought under Article 28 and that the
Supreme Court’s original jurisdiction existed concurrently
with the original jurisdiction of the High Court. Appellant
therefore had a choice presenting his case either before the
High Court or Supreme Court.
Held: Where in an action before the High Court, any issue
arises as to whether an enactment is inconsistent with the
Court, the judge may refer to Supreme Court. In the instant
case, the legal position was different in the sense that the
nature of the constitutional issue for determination related to
the interpretation of a decree which was alleged to be in
contravention with the property rights conferred on the
appellant under Articles 12 and 18 and as such the Supreme
Court did not have any jurisdiction in the matter. Its
jurisdiction could only arise in its appellate capacity and the
question of reference therefore did not rise.
Maikankan v. -Counsel for the Republic applied that owing to

Republic complications, case should be tried without jury under
Articles 20(2) and 112(2) of the 1969 constitution.
Held: Trial by jury is compulsory for all offense other than
treason is not provided in Article 20(2).
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3 objectives,
i.) To prevent frivolous references
ii.) To guard against proceedings aimed at making nonsense of
law/constitution
iii.) To avoid delay through raising of constitutional issues
In Maikankan case, Supreme Court said it is not every time
that one says constitutional issue that judge to stay; if you
determine that claim is frivolous, you can say so. If person is
unhappy, can appeal. Supreme Court has power to do
judicial review. Through decision in Maikankan, Supreme
Court inviting lower courts to make that preliminary
determination. Our judicial review practice, through
Maikankan, assimilated to that of the U.S.
Edusei v. AG Plaintiff brought an action in Supreme Court for declaration

that Minister’s wide discretionary powers were inconsistent
with letter and spirit of Articles 17 & 21 of the constitution,
thus void and unenforceable and that as a citizen of Ghana by
birth, he had constitutional right to enter and leave Ghana
and a passport to enable him exercise and enjoy that right.
Effect of Articles 33(1), 130(1) and 140(2) of 1992 constitution

was to vest in High Court, as a Court of first instance an
exclusive jurisdiction in the enforcement of the fundamental
human rights and freedoms of the individual. The Supreme
Court has only appellate jurisdiction in such matters.
The Supreme Court’s view was that it was a human rights
issue and the place to take the matter was the High Court and
he could not wrap it up to make it seem that it was a matter of
interpretation.
Citizenship
Shalabi v. AG Citizenship once conferred can be lost through processes
specifically stated in the instrument conferring that
citizenship and not by ambiguity.
iv.) It was impossible for N.L.C.D. 191 to have been amended
by N.L.C.D 333
Captan v. AG AG denies, by virtue of paragraph 6 of Ghana Nationality

Decree, 1967 (NLCD 191), that the plaintiff is a Ghana citizen
by naturalization and therefore denies that the withdrawal of
the plaintiff’s residence permit by defendant is a violation of
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the plaintiff’s right of immunity.
Held: The issuing of a certificate is a very necessary

prerequisite to naturalization and once this had not been
issued, it lies at the discretion of the Executive to decide
whether they would issue it or not. Plaintiff is thus not a
Ghanaian citizen and must deport forthwith.
Bologun v. Edusei Deportation amounted to contempt because they interfered

with the litigant and put an end to court proceedings and
brought the administration of the law into disregard.
Lardan v. AG It was clear that primary purpose was that of impugning

order under Deportation Act. Proceedings were thus caught
by Deportation Act 57.
Olympio Ratio Decidendi: By Section 4(1) of the 1957 Act, the

plaintiff’s father was a British protected person. Thus under
Paragraph 1(a) of NLCD 191, plaintiff’s father was a citizen
of Ghana (born in Kpando). That the plaintiff’s mother was
born at Keta whose mother was also from Keta, for all
purposes under the British Nationality Act 1949, the Ghana
Nationality Act 1957 and NLCD 191 Paragraph 1(a). She was
a Ghanaian by birth.
Commission/Committee of Enquiry Cases
Awoonor Williams The Supreme Court in a majority decision held that the
v. Gbedemah defendant was caught squarely by the provision, noting that
the findings of a Commission of Enquiry were not subject to a
review by the superior courts of judicature under the
constitution. Accordingly, the plaintiff succeeded in his action.
The Court argued that the interpretation put on the words

“adjudged or otherwise declared,” for if the constitution had
contemplated a formal judgment or declaration by a court, it
would not have provided that the disqualification shall be
operative from the date of the publication of the report.
Akainyah v. Corrupt Practices (Prevention) Act, 1964 (Act 230), Akainyah

Republic was prosecuted on various counts of offering bribes to
influence a public officer, accepting bribes to influence a
public officer, and conspiracy with a public officer to commit
extortion and corruption.
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Commission had no power to pronounce guilt or acquittal. All

that it did was to investigate allegations of corruption and it
was purely fact finding function even though the Act provided
that findings against person was prima facie evidence of guilt.
Although it may make adverse findings against any person,
not only is that finding not binding on that person but the
Commission is without power to enforce its decisions. No
liability whatsoever attaches to any person against whom the
Commission makes adverse findings until the Attorney
General in exercise of the power conferred on him by Section
4 of the Courts Act invokes the judicial power and procures a
conviction. If the Commission were a Court, it would be an
odd court since after having adjudged guilt it would be
entirely powerless to impose punishment of any sort.
Republic v. Asafu Charges were preferred against the accused as a result of

Adjaye adverse findings made against them by the Ollenu
Commission.
The Court held that the jurisdiction of a judge before

whom a person is brought under Act 230 to show cause why
he shouldn’t be sentenced is analogous to that of an appellate
tribunal called upon in an appeal against conviction to review
the facts upon which the conviction is based.
Akuffo-Addo J. Section 5(2),

An adverse finding constitutes a prima facie case against the
person concerned and the finding assumes that character only
when the Attorney General in his discretion decides to prefer
a charge against a person about whom an adverse finding has
been made. Without any such charge being preferred by the
Attorney General, the finding remains a bare finding of fact.
Republic v. Otu Section 7 of the Commission of Enquiry Act, 1965 (Act 250)
had been read to them. It read,
“It shall be an offence punishable if a person summoned
under this Section before a Commission refuses to attend,
refuses to take an oath, refuses to produce any document, or
refuses to answer any question or does anything which would
if the commission had been sitting as a court, have been
contempt of the court.”
Held: The unwillingness/refusal of the respondent to take the

oath to give evidence can’t amount to contempt in the special
circumstances of this case.
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Quayson v. AG Held: The statement in the White Paper was opposed to the
clear and unambiguous language of the report. Even though
government wasn’t bound by Commission of Enquiry’s
findings and recommendations, it wasn’t permissible in law
for the government to purport to act on a finding when none
existed and so it would be discriminating to refuse to restore a
public officer to his former post if the recommendation of the
Commission of Enquiry that led to his forced removal was set
aside as being wrong in law.
Darkwah v. Rep.
A committee of inquiry, like a commission of inquiry, was a
fact finding tribunal, not a criminal trial. Its work implied the
discovery of truth which ought to be balanced against the
interest s of the individual.
ii.) Court held that the power conferred on the AFRC and the
IGP by Section 1(1) of AFRCD 12 was dependent on the
existence of a recommendation made by the committee and
that the recommendation having been set aside, there was no
longer any legal basis – justifying the dismissal of the
appellant from the Police Force.
Osman v. Awuku- Perpetual injunction to restrain the defendant from sitting in

Darko the deliberations of the National Assembly. By Article 71(2)(b)
(ii), the constitution disqualified from being a member of the
National assembly, those who’d been adjudged or otherwise
declared by Commission of Enquiry to be incompetent to hold
public office. A preliminary objection is however raised
contending that the Committee of Enquiry will not be the
same as the report of a Commission of Enquiry envisaged by
the said article.
Held: The term Commission of Enquiry in Article 71 can’t be

extended to include a Committee of Enquiry and so the
objection to the writ is upheld.
Who Has Capacity to Raise These Constitutional Issues?
NPP v. AG Dismissing the preliminary legal objection that all classes of

(C.I.B.A.) people (including natural persons and corporate bodies had
capacity to bring an action in the Supreme Court for
enforcement of the 1992 constitution under 2(1).
State Proceedings
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Sallah v. AG In all these cases, Attorney General objected to action brought

Tuffuor v. AG against him and Supreme Court said since no-one sided fight
NPP v. Rawlings in our legal system and must always be two-sided, must be
Konadu v. AG brought against the Attorney General, and he is the nominal
defendant of the state.
NPP v. Rawlings (Rule that you cannot drag President and Vice to court have
and Another been applied in this case.)
NPP v. Rawlings
and Another
Ohene v Principal Held: Since the defendant hadn’t been authorized by the
Secretary, Ministry Attorney General or specified under any law to have an action
of Finance brought against him according to Section 10(2) of Act 51, then
(Lotteries and he wasn’t a proper party to a suit brought against the
Betting Act) Republic.
ii.) Under Order 16 and 11, the Attorney General could be
substituted by the court as defendant. The name of the
principal secretary, mainly Minister of Finance should
therefore be struck out.
-Section 10(2) of the State Proceedings Act, 1961 (Act 51)
provides that civil proceedings against the Republic may be
instituted against the Republic or may be instituted against
the Attorney General or any officer authorized in that behalf
by him, or any officer specified in that behalf under any law
for the time being in force. Section 12 further provides,
-Under 16 and 11 of the Supreme (High) Court (Civil
Procedure) Rules, 1954 (L.N 140 A), the Court had power
either upon or without the application of either party to
substitute a party as plaintiff or defendant on such terms as
may seem just. Court therefore ordered that the Attorney
general be substituted as the defendant in the matter and that
the name of the Minister of Finance be struck out and case to
take its normal course.
Kwakye v. AG A trial or purported trial of the plaintiff and thus giving effect
to the ouster clause in Section 15(2) of the Transitional
Provisions of the 1979 constitution.
The Supreme Court by a five-two majority decision held that

(on the basis of the evidence placed before it), the phrase
“judicial action taken or purported to have been taken”
appearing in Section 15(2) of the Transitional Provisions to
the 1979 constitution, must bear its ordinary, literal,
dictionary meaning, that is, as an action which was not a
judicial action properly so called but which looked like, was
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intended to be, or which had the outward appearance of a

judicial action.
PPP v. AG Although Section 13 of Act 51 prohibits the issue of an

injunction against the police, it does authorize the court to
make a declaration of the rights of the applicant.
Akuffo Addo v. Issues:

Quashie Idan i.) Whether the first and second defendants (Chief Justice,
General Secretary) are “servants of the Republic” as intended
by Act 51.
ii.) Whether an injunction against the first and second
defendants would operate as an injunction against the
Republic itself.
Two defendants are servants of the Republic and injunction of

the first and second defendants acts as an injunction against
the Republic.
Levandowsky v. AG Order sought could not be enforced even if the court granted
it since Section 15(4) of State Proceedings Act 51 would
prevent the applicant from competently levying execution
against the respondent.
Act 51 Section 15(4): …As aforementioned, no
execution/attachment or process in the nature thereof shall be
issued out of any act for enforcing payment by the Republic of
any such money as aforesaid and no person shall be
individually liable under any order for the payment by the
Republic or any department/servant of the Republic of any
such money or costs.
Ex parte Abban -The Medical and Dental Board has a function of to register
medical practitioners who satisfy the condition as to
qualification. This is clearly a public duty entrusted to the
Board by enactment and mandamus will lie to enforce
statutory rights or to require public officials to carry out their
duties. There’s thus no discretion here and the case falls
within the class of cases where officials having a public duty to
perform and having refused to perform it, mandamus will lie
on the application of a person interested to compel them to do
so.
Mould v. de Vine Mandamus lies to compel a public body to perform a public

duty which it has failed to discharge.
Kwah v. AG Counsel for plaintiff however argued that by Article 211 of
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1979 constitution, all claims against the state had been put on
equal footing with claims between individual citizens. He
submitted that under 211(1), an action against the state lay as
of right and the constitution had by implication taken away
the provisions of NLCD 352.
Held:
The ‘notice’ required under NLCD 352 Paragraph (1)
enjoined the would be plaintiff to notify the Attorney General
as the Chief Legislative Officer of his intention to institute an
action against the state. The action is commenced after the
expiration of 1 month.
The notice envisaged under NLCD 352 which dispensed with
the fiat was intended to offer the office of the Attorney
General an opportunity within the 1 month period to contact
the particular state department involved in the action being
contemplated for the necessary information to enable the
office study the nature of the claim and to decide what advice
to give therefore the provisions of the State Proceedings Act,
61 as amended by NLCD 352 didn’t in any way conflict with
the provisions of Article 211(1) of the 1979 constitution and
the notice there was still in force.
Quainoo v. AG Held: The main purpose of Act 51 as amended by NLCD 352

is in my view to let the Attorney General know that an action
is intended to be taken in Court against the Republic so that
he may advise himself as to the proper course to adopt –
whether the Attorney general would prefer to settle the matter
out of court if it is convenient to do so and thus prevent the
Republic being taken to court.
Remedies
(Certiorari and Prohibition)
Ex parte applicant gave rise to his instituting proceedings in the High
Bannerman Court for writs of certiorari;
i. to quash the decision contained in the letter, that is relieve
him of his duties with immediate effect; and of
ii. prohibition to prevent the Chairman of the commission
from suspending, dismissing, interdicting or in any manner
interfering with him in the performance of his duties as
distribution marketing manager of the S.F.C.
Kwame Addow
Case
Anisminic Case
Ex parte Kusada iii.) The object of service of a writ is to give notice to the
(Certiorari) defendant so as to give him the opportunity of defending his
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rights. Where personal service is not possible because the

defendant is abroad, service is allowed to be effected on the
agent of the defendant who is within the jurisdiction and who
is in regular communication with the defendant and has also
been managing the particular matter involved in the suit.
Such an agent becomes the alter ego of the principal and
service of process upon him becomes an effective service upon
the principal creating the agency. Personal service is not
required in those circumstances except when a person is to be
made criminally responsible. Since Larnyo was the alter ego
of Mallam Sallow and had defended the suit at the
Asantehene’s divisional court B1, he must be deemed to have
admitted service of the writ of summons. Service ofprocess
has therefore been affected in accordance with rules.
v.) An applicant for an order of certiorari must be either a
person aggrieved or a person who has a real or a substantial
interest in the proceedings before the Asantehene’s Divisional
Court B1. He did not claim to have either a vested or
reversionary interest in the property in question. He did not
disclose the capacity in which he brought the application,
neither had he shown any peculiar grievance of his own
beyond some inconvenience suffered in common by the
general public. He had therefore failed to bring himself within
either category. He must therefore be deemed for all practical
purposes to be a stranger to the proceedings.
Ahenkorah The appellant made a successful application to the Supreme

(Certiorari) Court for an order of certiorari to quash the proceedings of
the committee and the Governor-General's confirmation
thereof, on the ground that the terms of reference of the
committee gave no authority to investigate and make a finding
on the re-enstoolment of the destooled chief. The Court of
Appeal reversing the Supreme Court, held, inter alia, that the
finding of the committee was one which it was competent to
make. On further appeal to the Privy Council,
Held: the reference was in terms sufficient to entitle the

committee to report as it had done. The committee had under
the ordinance, a freedom to operate within the limits of the
jurisdiction conferred on it, just as a State Council had in a
similar dispute. The propriety or otherwise of the destoolment
of Nana Ntiamoah Kofi III was one of several matters
referred to the committee for investigation and the committee
acted within its jurisdiction when it found that the
destoolment was unlawful. Judgment of the Court of Appeal
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Affirmed.
C.I.T Case The Court of Appeal correctly stated that certiorari always
would lie against a person who had to act judicially but not
against purely administrative acts. When the commissioner
made the provisional assessment he was only acting in an
administrative capacity, and his role would only have been
transformed into that of an adjudicator, required to act
judicially, if the respondents had raised an objection.
Eku alias Condua This is an appeal against a decision refusing an application for
an order of certiorari to remove into the High Court for the
purpose of quashing the proceedings and judgment of the
Shama State Council in a dispute between the parties as to the
headship of a fishing community and as to the right to collect
tolls from the fishermen in the community.
Held: It’s beyond the possibility of any argument that the
State Council was vested by the Native Administration
Ordinance with jurisdiction to interfere in matters relating to
the headship of a village community. Jurisdiction to
adjudicate in disputes concerning a headman was reserved
either for the Divisional Chief Tribunal or Paramount Chief’s
Tribunal, so also jurisdiction in ordinary civil and criminal
matters was reserved for the Paramount Chief’s (Divisional
Chief’s Tribunal and this matter was within the exclusive
jurisdiction of the Paramount Chief’s Tribunal who had a
discretion to confirm/approve the appointment of a headman
or to dismiss him). Appeal allowed, and decision of Council, a
nullity.
Mandamus
Mould v. de Vine Mandamus lies to compel a public body to perform a public

duty which it has failed to discharge.
Ex parte Dizengoff Whether the Controller and Accountant-General could be

compelled by mandamus to authorise payment, and if he
could, whether in the particular circumstances mandamus
was the appropriate remedy.
Held:
Mandamus should not issue because:
(a) N.L.C.D. 165 did not create any legal duty between the
parties and the applicant had failed to prove the existence of
any statutory or common law duty which had been imposed
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upon the respondent and which was the foundation of

mandamus.
(b) it was in the circumstances an inappropriate remedy for
actual payment of the amount sought would be made not by
the respondent but by the treasury officer and it would be
difficult to enforce the order of mandamus against him, thus
rendering the order ineffective and useless.
(3) Under N.L.C.D. 165, para. 42 (1) the Principal Secretary,
Ministry of Finance was the competent authority to give
instructions and directives to the respondent and the
respondent was in duty bound to obey them. Where a public
officer had received an order from any competent authority
and upon disobeying that order would be liable to indictment,
the court could not proceed by mandamus but would leave the
case to the ordinary remedies which in the particular
circumstances of this case might be a specially endorsed writ.
Ex parte Kludze Kludze got Lands Commission to register his documents in

respect of a plot of land.
Botwe v. Mensa Held:

i.) That there is no imperative duty upon a police officer to
bring every person arrested without warrant before a
Magistrate’s Court on a charge;
ii.) That a duty is imposed upon the Police by Section 17 of the
Criminal Code to report to the Magistrate the cases of all
persons arrested without warrant, whether admitted to bail or
not. But this Section exists for the protection of the liberty of
the subject, and does not impose on the Police a duty to
charge all persons arrested without warrant;
iii.) That a condition precedent to mandamus is the
applicant’s prior demand to the respondent, and the
respondent’s refusal. What the applicant did demand (and
what was refused) was the charging of Botwe and Mensa.
What was now demanded was the reporting of their cases to a
Magistrate. This had not been demanded, and had not been
refused;
iv.) That a further condition precedent to Mandamus is the
existence of a legal right to the applicant. Section 17 confers
upon the applicants in this case no legal right to the charging
by the police of the arrested persons.
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Quo Warranto
For an order of quo warranto to be issued by the court,

-the office must be of a public nature
-the office must be created by statute,
- the holder must have already exercised the office, that is, there must be a
usurpation of an office
-the office must be substantive, that is independent
-office must have been created by statute.
Ex parte Adu (Erroneous ruling of Hayfron Benjamin J.)

Gyamfi
The applicant applied for prohibition and an injunction in the
nature of quo warranto to restrain the respondent from
exercising the functions of the Chief of Akwatia
Ex parte Baffo (erroneous ruling of Hwere J.)
B, claiming to be the rightful mankrado, brought an

application for an injunction in the nature of quo warranto to
restrain S from performing the functions of, acting as such or
calling himself mankrado of Agona Kwaman.
Ex parte Manu The applicants brought an application for quo warranto to

restrain the first respondent, the Queenmother of Kwae in the
Akim Abuakwa Traditional Area and the second respondent,
the Gyasehene, from usurping the office and functions of the
applicants in their capacity as kingmakers of Kwae and also
to restrain the third respondent from acting as the chief of
Kwae. The court found that the third respondent had been
nominated by the queenmother and installed as a chief of
Kwae in accordance with customary law. It was held that
since the third respondent had been elected and installed as a
chief in accordance with customary law and not by virtue of
any statute, an injunction in the nature of quo warranto would
be refused.
Ex parte Yiadom the applicant, queenmother of Efiduase, Ashanti, filed an

application in the High Court, Kumasi in February 1979 for
an order of quo warranto to restrain the respondent from
posing as, and exercising the functions of chief of Effiduase
The Supreme Court unanimously held that the office of a

chief was not a public office and therefore not subject to
attack by way of an order of quo warranto.
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Habeas Corpus
Re Okine
Ex parte Ibrahim
Re Akoto The appellants (Boffour Osei Akoto and 7 others) were
arrested on the 10th and 11th of November, 1959 under an
order made by the Governor-General and signed on his behalf
by the Minister of Interior under Section 2 of the Preventive
Detention Act 1958 (No. 17 of 1958). Their application to the
High Court for writs of habeas corpus and subjiciondum was
refused. They appealed.
Held
Although the Habeas Corpus Act, 1816, is a statute of general
application, it does not apply to this case because the Act
under which the appellants were detained vested plenary
discretion in the Governor General (nor president) if satisfied
that such an order is necessary, to make the detention order.
Upon production of the order, the only question which has to
be considered is its legality; if the order is lawful then it
follows that the detention is also lawful.
Court departed
from these in
Ex parte Quaye On the facts, there was need for an inquiry as to the grounds
Mensa which demanded that the applicants should be detained in the
interest of national security. The Court wouldn’t accept the
contention that the mere recital of the issue of an executive
instrument was all that was required. If as in the instant case,
an authority took upon itself to arrest and detain an
individual for his safety, then it was the duty of the courts to
question the fundamental basis of that claim, moreso when
the individual detained denied the need for the protection
offered.
Ex parte Oduro Held, dismissing the application:

By Act 244, s. 1 (2) the categories of persons who might apply
for habeas corpus were (a) any person alleging that he was
being unlawfully detained; (b) any person entitled to the
custody of the person alleged to be unlawfully detained and
(c) any other person acting on behalf of the person alleged to
be detained. In category (c) the authority of the person
detained must be shown, unless it could be implied (as on the
part of a husband applying for the release of his wife). Where
authority could not be implied and express authority was
lacking, a relation or friend might still apply provided he
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could show that access to the person alleged to be illegally

detained had been denied so that it was impossible to obtain
instructions from him. Thus on construction of Act 244, s. 1
(2) the applicant failed to show that he was entitled to make
the application.
Declaration
Shalabi v. AG The plaintiffs, formerly of British nationality, took out a writ

of declaration that they were Ghanaian citizens and therefore
entitled to operate a transport business notwithstanding the
provisions of the Ghanaian Business (Promotion) Act 1972
(Act 334).
Captan v. AG Plaintiff claims a declaration that he’s a citizen of Ghana by

naturalization and can’t be asked to leave Ghana and entitled
to be issued with a certificate of naturalization.
31st December Case Plaintiffs sued in Supreme Court for declaration that the
public celebration of the overthrow of the legally constituted
government of Ghana on 31st December 1981 and the
financing of celebration from public funds was inconsistent
with or in contravention of the letter and spirit of 1992
constitution and more particularly Article 3(3)-(7), 35(1) and
41(b)and (f) of the constitution.
NPP v. GBC Plaintiff, a political party sought a declaration from the

Supreme Court in the exercise of its original jurisdiction, that,
a.) By virtue of Article 163 and 55(ii) of the 1992 constitution,
the G.B.C, as one of the state owned media, had a duty to
afford the N.P.P. fair opportunities and facilities for
presentation of their views especially where they were
divergent from those of the government and,
b.) The refusal of the G.B.C. to afford them equal time on TV
to present their views on the 1993 budget was a violation and
contravention of the constitution.
PPP v. IGP Although Section 13 of Act 51 prohibits the issue of an

injunction against the police, it does authorize the court to
make a declaration of the rights of the applicant.
-Posters were pasted in all police stations declaring the nullity
of action
NPP v. Rawlings & Plaintiffs, instituted proceeding against him under Article 2
Electoral challenging right of President to make the appointments.
Commissioner They sought a declaration that appointment by president were
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inconsistent with 242, 243, 246-247 of constitution.
Sallah v. AG Following the receipt of this letter purporting to terminate his

appointment, by a writ of summons and statement of claim to
the Court of Appeal acting as the Supreme Court sought a
declaration that on a true and proper interpretation of the
provisions of Section 9 (1) of the Trans. Provisions, the
government was not entitled to terminate his appointment as
a Manager of the GNTC
Tuffuor v. AG Section 7(1) of the Transitional Provisions and Article 155(b)

support the argument that F.K. Apaloo is the incumbent Chief
Justice. Therefore, his purported nomination, vetting with
rejection are inconsistent with the provisions of the
constitution and are null, void, and of no effect.
Awoonor Williams On 9th October 1969, the plaintiff took out against the
v. Gbedemah defendant a writ seeking a declaration that by reason of Art.
71 (2) (b) (11) and (d) of the Constitution 1969, the defendant
is not qualified to be a member of the National Assembly and
an injunction restraining him from taking his seat.
Ekwam. Pianim Ekwam brought an action in Supreme Court for a declaration

that defendant’s action constituted an offence intending to
disrupt the peace and security of the state.
Injunction
-Injunction is an equitable remedy. An injunction is an order of the court requiring
a person, public or private from doing or refraining from doing certain specified
acts, so it may be positive (mandatory). On the other hand, it may be negative –
restraining performance of an act, and in that case, we say there is a prohibitory
injunction.
NPP v. GBC Also, that the alleged right to withhold information

constituted an interference with the freedom of the people and
a violation of Articles 21(1)(f) and Article 163 of the 1992
constitution.
PPP v. AG Section 13 of Act 51 prohibits the issue of an injunction

against the police
NPP v. IGP Mandatory injunction was given by the Supreme Court. After
court had declared that public order decree unconstitutional,
Court ordered that they exhibit notices showing that public
order decree was unconstitutional, and the police complied.
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NPP v. Rawlings & The day after reasons for previous case had been given,
Electoral Rawlings appointed (same persons nominated for elections as
Commissioner District Chief Executive) as District Secretaries. Plaintiffs,
instituted proceeding against him under Article 2 challenging
right of President to make the appointments. They sought
injunction prohibiting president from appointing District
Secretaries to perform functions set out in constitution to be
performed by District Chief Executives.
A prohibitory injunction was granted. There, the NDC had

planned to hold elections on a Saturday. Interim injunction
was asked for and an order of injunction stopping Electoral
Commission from going ahead with the Elections because
District Assemblies in existence were not the same as
envisaged under the constitution.
31st December case a mandatory injunction was granted.
Balogun v. Edusei Person claiming to be Ghanaian. Did not make sense to deport
Lardan v. AG him and then decide whether Ghanaian or not so interim
injunction granted to prevent any steps that will affect the
parties, cause irreparable damage to rights of parties if rights
not frozen
Ekwam v. Pianim this is another case where interim injunction granted because
if the candidacy gone, Court could later determine that
ineligible so Court said that candidacy should be placed on
hold until determination or otherwise of Mr. Kwame Pianim’s
eligibility.
Injunction Against Republic
PPP (People’s By virtue of Section 13 of State Proceedings Act, Act 51, in

Popular Party) v. ordinary litigation as opposed to constitutional litigation, an
AG injunction will not lie against the Republic of Ghana or a
servant of Republic, where effect of restraining the servant
will be as if the Republic itself had been restrained
Quashie Idan In Quashie Idan, Court held that on a proper interpretation of

Section, it is the Republic itself which cannot be held and that
it is possible for an injunction to be brought against a servant
of the Republic but will not be brought if the effect is to
restrain the Republic itself.
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-Article 11: Says that the existing law may be construed or modified etc. to bring
into conformity with legislation.
Ex parte Ofosu-Amaah
Chieftaincy
Codunah v. Rep
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CONSTITUTIONAL EVOLUTION
IN GHANA – 1800-1992
The Gold Coast was made up of 4 main types of overseas settlements known to the
British, which was put together into one nation, and has resulted in part of our
constitutional problems. The first contact with Europeans was by people of the coast,
principally the Fantes, and so first part of Ghana to come into place was what became
known as Gold Coast which was broken up into 3 provinces – Central (Current Central
Region), Western (Current Western Region), Eastern Region (Greater Accra, Peki etc.)
The oldest part of modern Ghana is this part.
Ashanti was conquered in 1902, and was administered by Gold Coast colony. That was
the situation until the 1940’s when it was felt that Ashanti had matured enough for direct
representation. German colony of Togoland was divided into two – one part under the
Trusteeship of the British.
In the meantime, the British while operating from South, realized other powers
were operating from the North downwards so they entered into a number of friendship
treaties with chiefs in the North, and they became known as protectorates. Protectorates
of Northern territories was created by the British.
There were three types of settlements known to the British - Colony, Trust Territory and
Protectorates.
-With regards to the colonies, 2 were acquired by settlement (Gold Coast colony), and by
conquest (Ashanti).
-Trust territory was by UN mandate and administered by Gold Coast from 1946-1956
until there was a plebiscite to see whether they would join French Togoland and return to
unified Togoland. Plebiscite took place in Trust Territory, where the Ewes were in the
minority. They voted overwhelmingly against joining the Gold Coast. By majority,
Vagalas, Sisalas etc, voted overwhelmingly to join the Gold Coast in 1957. Trust
Togoland encompasses Central and Northern parts of Volta Region. One of biggest
problems facing Ghana today is the equation of the various several parts and political
parties being formed based on sectional grounds. That is why it was necessary to pass
legislation to ban political parties being formed based on sectional grounds.
The early administratin at the beginning of the constitution, administration was by

commercial interests (1800-1820’s). By 1830, because of the killing of McCarthy, British
like other powers decided to leave completely. Between 1830 to beginning of 1840’s, it
was administered by Committee of Merchants under McClean. Resentment towards
McClean was twofold;
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i.) McClean extended jurisdiction beyond forts and settlements – Loss of court revenue to
native rulers.
ii.) After 1826 war, British claimed that they no longer had to pay the ground rent on
which forts and castles were on, resulting in a loss of revenue to chiefs.
A committee was sent to look into the complaints. It said that the complaints were well
founded but the system was good so should be regularized. Commander Hill was
appointed Lieutenant governor of Gold Coast, and was to regularize the 2 pieces of
legislation in 1843. Commander Hill entered into a series of friendship treaties with
chiefs of coastal states which consolidated into a document known as Bond of 1844,
which came into effect on 6th March. It is generally understood that we lost our
independence when chiefs signed off the Bond of 1844 so Nkrumah wanted our
independence also held on 6th March, 1957.
The Bond of 1844 ha d 4 main legal effects;
i.) What McClean was doing was illegal and it was necessary to put it on a legal basis
ii.) British would respect rights of chiefs and chiefs would respect property and
fundamental human rights
iii.) Chiefs undertook to abolish barbarous customs such as Panyarring (If an individual
is being sought and the person could not be found, a close relative was taken) and human
sacrifices.
iv.) Chiefs agreed that in order to modernize their justice system and make them
attractive to the people, they would allow British officials to sit with them when hearing
serious crimes such as murder.
Nowhere in document (Bond of 1844) will you see power ceding to British etc. For the
British, the whole point was to regularize what McClean had been doing and based on
this, the first Executive and Legislative Council was formed in 1850 and McClean was
made a Judicial Assessor, a kind of Chief Justice. This is the first time a formal step was
taken to put in place building blocks for the Executive and the Legislature.
From this date, next landmark was 1874 because on 24th July, 1874, Gold Coast
separated from other settlements and constituted into its own unit.
From 1874, you go to 1916 – Membership of Legislative Council which was
established in 1850 was expanded.
The next major move will occur in 1925. In 1925, the constitution whose
outlines began to emerge in 1800’s received major facelift. This major facelift, one can
attribute to a number of things. First was the pressure for constitutional reform. It was led
mainly by elites like ARPS.
Second is the reaction of the colonial government to the agitation - Pressure for
reform and reaction to the reform contributed largely to measure in which the form of the
1925 constitution would take.
Issues remain with us today. How much space must traditional rulers have in the political
scene?
We’ve never solved fully the issues that have developed out of development of our
constitution. One issue was representation; how representative will actors be? Agitators
were saying that government was not representative enough and question of
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representation seems to remain with us today, and Electoral Commission tried to deal
with that by increasing number of constituencies etc.
Other issue that remains with us today is the question of accountability. How
accountable is the government to the people?
Every time, we are trying to find some solution so that some will say process of trying to
get President’s nominees getting prior approval of parliament is accountability. Some like
Kumado argue that Ministers do not matter because the government is the president. If
you look at Articles 57,1 58,2 2953 of constitution, it makes that clear. The president is
the government.
The 1925 constitution was contained in 3 documents,

-Letters Patent: Established office of governor and established governor as
commander-in-chief.
-Royal Instruction: (23rd May, 1925), which established the Executive Council, which
we could say, was more or less, a cabinet.
-Orders in Council: (8th April, 1925), which established the Legislative Council.
Most people tend to discuss the Order-in-Council because our people conceded
governorship etc. to colonial power and interest was in this body (Volume 1: Gyandu
and Griffiths).
The 1925 constitution established a Legislative Council with an official majority (people
of the majority were office holders). You have unofficial members (15) and 14 official
members. Under official majority, there was the constitutional obligation to vote
according to wishes of government on any issue and one wonders whether we have got
this idea of majority in Parliament voting according to wishes of government.
When the governor allowed a free vote, one was under an obligation to vote as governor
wished.
There was also the introduction of The Elective Principle. It was the first time that
Legislative Council first established in 1850 allowed that some members of Legislative
Council will be elected. (Sections 39 of Orders in Council).
The qualifications for membership, 2 stand out –
Property qualification: One had to be a beneficial owner of property of a certain value.
It was believed that only those with some property stake in the society would be willing
to die for it.
You also had to be proficient in the English language. It was argued that this was
unfair because English is not our language. Now, members of parliament should be
allowed to speak in language familiar with. It meant many qualified people were
disqualified at that time because could not use the medium of communication.
Provincial Council Members - 6, reserved for people who were described as head
chiefs. This was entry point for our chiefs.
3 for Eastern province
2 for Central province
1
The President of Ghana
2
Executive Authority of Ghana
3
Interpretation
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1 for Western province

Head chiefs were also described as those who at custom did not owe allegiance to another
chief. The term was later changed to Paramount chief.
Some criticisms of course were made of this arrangement. Those who were
leading were not the royals but it turns out the royals had more seats (6) as opposed to
elites who had 3. Elites criticized the chiefs’ partnership with the colonial powers. In
actual practice, real power remained with the colonial government. The governor had 2
important powers under the constitution,
Veto Power
Reserved Powers: If the governor thought it inappropriate to veto, he would reserve it
for colonial government to veto so Secretary of State for Colonies would veto so
governor would not be linked with the matter.
Only the governor could initiate policies that had financial implications. Perhaps
it was feared that the Legislative Council would be imprudent in fiscal matters. Under
today’s government, only government can initiate policies that has financial implications.
Only the government can introduce bills to Parliament.
The result of all of this is that these major constitutional changes consolidated the
government arrangement by the Executive. The 1925 arrangement lasted for a reasonably
long time till beginning of 1940’s when far from litigation going down, it resulted in
intensification for reform largely because twin questions of responsibility and
accountability had not been addressed.
In 1946, there was the next major reform. Representation for Asante was for the first time
brought into the constitutional arrangement and the colonial power gave up official
majority.1946 arrangements also developed the practice where the Public Accounts
Committee always had someone from the opposition in it.
Government retained twin powers of veto and reserve and by these constitutional
strokes, will change from a debating chamber to a truly representative chamber. This was
the first time colonial government felt the heat sufficiently to yield control of Legislature
to unofficial members of the Legislature. This was the best response of the colonial
power to the agitation. The British were taken completely by surprise.
The coming into being of the new constitution was greeted by waves of protest and the
question of the governor’s control remained. Kwame Nkrumah arrived and the
momentum he generated seemed unstoppable. There were 2 slogans – “Self government
in shortest possible time,” “Self government now.” It remains problem today, the use of
catchy language to procure votes. Rawlings is good at using catchy language.
There were 2 major groupings – the self government in shortest possible time
(Gradualist approach, conservatist), self government now (Progressives, Social
Democrats). As at today, it is extremely difficult for 3rd group to emerge.
Governor set up committee, Watson Committee, to look into riots, which described
1946 constitutional arrangements as outmoded at birth, in other words, the agitation
had left them behind. The committee also recommended that it was time to find out what
Africans themselves wanted. An All-African committee under Coussey Committee,
looked into matter for further reforms of constitution and local government. One of
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recommendations resulted in cosmetic change. The change was calling the Legislative
Council, the Legislative Assembly.
There were 84 members, 75 of whom elected and Northern territory (19) joined for
the first time.
Asante – 19
Colony – 37
While the Elective principle was retained, only the 5 could be directly elected. Bulk of
them would be elected by electoral colleges. Kwame Nkrumah, released to be the leader
of government business, described the Coussey Committee recommendation as bogus
and fraudulent and announced that he was going to introduce major changes which he did
with 1954constitution. Kwame Nkrumah promised a revolution but his own constitution
was closest we got to British constitution being copied for stock and barrel. Even in this,
governor retained twin powers of Veto and Reserved Powers. The country was on the
verge of independence and the very imminence of independence sparked sectional
interests.
-NPP (Northern People’s Party): They were afraid that the way the momentum was
developing, people in Southern part of Ghana were going to dominate them so it was
necessary to come together to prevent swallowing up.
-Togoland Congress:
-National Liberation Movement: Part of the UGCC which was dominated by Ashanti
politicians concerned with avowal of CPP to use wealth for their parts of the country and
an interest in some measure of federal system of government.
-Muslim Association Party: Zongo areas of Kumasi and the colony.
There were 3 issues around which the splinter group coalesced.

1.) Nature of Constitution (Federal or Unitary)
2.) Nature of Legislature (Unicameral or Bicameral)
3.) Establishing a Council of State
2 influences will seem to be at bottom of agitation for Council of State.

Experience of traditional rulers in legislature up till that period in time had let their
supporters and they to believe that the future of the constitution lay in a formal place such
as Council of State or bicameral legislature where one group was nominated by popular
vote and the other nominated. Problem with this is that, since government will nominate
the members, they will elect the conservative members.
Others argue that there are people that would like to participate in politics but not
want to go through hustle and bustle of politics, and nation would be the loser (highly
qualified chiefs, etc.)
1.) Proposal that Select Committee should examine for Bicameral Legislature, Federal
State, and advise. Bourne Committee said the country was too small for a federal state.
Government accepted that some devolution of power to regions was important, for
everyone in the country to feel that their interests were being represented.
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From earliest times, representation and responsibility of government to people dominated

issues. Then 3rd issue – nature of the constitution itself, came up.
We see a certain culture of institutional relationships emerging which conditioned our
relationship to organs of government. Today, the executive dominates. The prestige in our
government is in the Executive. On the eve of independence, we had 3rd element to debate
– the nature of the constitution. This debate is a continuing one.
The Independence Constitution was contained in 4 instruments;
-Order in Council
-Ghana Independence Act, 1957
-(Ghana) Office of Governor General Letters Patent
-Royal instructions (Ghana), all dated 6th March 1957.
There are a number of general observations;

1.) Constitutional arrangements at independence are influenced by political developments
in Gold Coast between 1954 and 1957
2.) By independence, our constitution had reached a stage where major institutions of
government had matured.
3.) The pre-eminent position of the Executive is one of observations you can make, and
independence constitution is closest we have come to a Westminster type of constitution.
It was a monarchical kind of constitution so that our head of state was a monarch, and
was represented in Ghana by a Governor-General.
Independence constitution also introduced idea of cabinet and collective

responsibility of government. One of most misunderstood governmental arrangement in
this country is this idea of cabinet and collective responsibility. In legislative
arrangements for independence constitution, we see efforts to respond to concerns that
emerged during the debate. There were efforts to address issues in run-up to
independence. The Legislature that was established was called Parliament (Queen and
National Assembly). National Assembly passes the bills, the Queen promulgates it into
law.
There are 3 kinds of limitations,

-Institutional Limitations
-Procedural Limitations
-Substantive Limitations
Constitution established 2 bodies; Regional Assemblies and Regional House of

Chiefs. Regional Assemblies was part of implementation of Bourne recommendation, for
devolution of authority to regions. Each of these institutions is also part of procedural
limitation. You could not amend constitution without approval of each of the 5 Regional
Assemblies. The Regional House of Chiefs was responsible for changes of laws affecting
chieftaincy.
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Substantive Limitations
Racial discriminatory law was prohibited. Roughly by 1920’s, there was some indication
that race would become a critical factor in our politics. Laws purported to take away
freedom of expression, religion etc. The state could acquire property compulsorily if only
it provided for compensation to be paid promptly and adequately.
Each of Regional Assemblies passed a resolution that their existence not
necessary and dissolved itself. Also, repeal of Restrictions Act took away restrictions
and was first time question of using Regional Assemblies could be used. They
themselves agreed that they should be abolished. On one hand, we are taught that rules
can be used to act as brakes. What we have no control over is what people who will
implement it will behave.
As far as Procedural Limitations is concerned, the use of Ware v. Ofori Atta is

instructive.
Wari v. Ofori Atta

Facts: Plaintiff, Gyasihene of Ejisu, the order which gave rise to this action was made by
Minister of Local Government under Ejisu Stool property order made under Statute Law,
Act 1957. The Act was allegedly passed in contravention of Section 35 of Ghana.
Constitutional Order-in-Council which laid down procedures before a bill could be
declared to have been passed by Speaker of the House of Assembly. Where the bill
affected the traditional functions or privileges of a chief, Speaker was required to refer to
House of Chiefs of Region before second reading of the bill could be moved in the House
of Assembly at least 3 months after. This wasn’t followed in present case and Governor
General signed royal assent to it. Eight months later, Minister of Local Government
authorized one to take possession of the stool property pertaining to Ejisu Stool.
Plaintiff, Gyasihene, claiming he was a chief himself, instituted proceeding in
Divisional Court, claiming Statute Law 57 was invalid since it contravened Orders in
Council, (1957).
Issue: Whether an Act passed in contravention of a procedural requirement specified by
the constitution should be declared null and void and unconstitutional by a Court of Law.
Holding: Plaintiff was chief and customary custodian of Ejisu Stool and Act directly
affected traditional functions of the chief and Act was invalid since procedure wasn’t
followed.
2 cases will illustrate the Substantive Limitations – Lardan I, Lardan II.4

Larden was believed to be from the Danquah-Busia tradition. He (appellant) was the
subject of a deportation order made on 30th July, 1957, under the provisions of the
Deportation Act, 1957. On 31st July, he filed a writ seeking a declaratory order to the
effect that he was a citizen and was not within the ambit of the Act. He also moved ex
4
(Nos. 1 & 2) 2 G. & G. 96, 98
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parte for an interim injunction and supported this with an affidavit that he was born in
Kumasi and his mother (unnamed) in Krachi. Judge could not write the declaration he
was asking for because facts that he based on that he was a Ghanaian, was only contained
in a bare affidavit and Court thought should be more substantive. He could not be granted
injunction against deportation order. The case was adjourned and while still pending,
Parliament quickly passed another piece of legislation.
Objective was clearly titled – “Deportation of Lardan v. Ahmadu Baba”. It stated
that all actions pending to grant injunction had been terminated. Lardan went back to
Court. Lardan said he was not challenging deportation but was establishing his
nationality and secondly, basing his case on race discrimination. Court said there was
nothing to show that he was being deported because of race. There is a distinction
between challenging your deportation and establishing your nationality. Judge said if this
legislature, this new legislature, used power it had to interfere with judicial proceedings,
the future of the country was bleak. This judge qualified to be a prophet.
Bologun v. Edusei
Facts: Abdul Wahabi Balogun and three others were on 17th October, 1958 served with
deportation orders issued by the Minister of Interior (Mr. Krobo Edusei). At the time of
issuing the orders, the Minister simultaneously authorized the Acting Commissioner of
Police, Mr. Madjitey, to arrest the four without warrant and fly them to Nigeria (1958).
The four men were arrested accordingly on Saturday October 18th, 1958. Writs of habeas
corpus were filed that they were citizens and not subject to deportation. Notice of the
motion was ordered to be given to respondents and the four men were however flown
later. It wasn’t until the next day notice ordered by Court was served upon respondents.
Appellants later filed notice that respondent be committed for contempt of court.
Issues:
i.) Whether the action of the Minister, the Commissioner of police and Director of
Prisons, did constitute contempt of court.
ii.) Whether notwithstanding the non-service in habeas corpus proceedings, despite the
contemnor’s knowledge of the order, he was still liable.
Held:
i.) The fact that the court has made an order for service on the respondent known to them,
actual service of the order isn’t necessary.
ii.) Deportation amounted to contempt because they interfered with the litigant and put an
end to court proceedings and brought the administration of the law into disregard.
The legislature also passed law converting itself from time to time into an Assembly.
Queen was our constitutional Head of State. Somehow, this independence was not
complete. The Independence Legislature passed legislation which allowed for it
constitute itself into an Assembly and pass bills. Constitution changed from
monarchical to Republican on 1st July, 1960. Referendum was also coupled with the
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contesting of the presidency, between Kwame Nkrumah and J.B. Danquah, which
Nkrumah won overwhelmingly and became first president under that constitution.
We became a Republic.
The 1st constitutional arrangements established an Executive president. Article 8
said president acted in his absolute discretion. The choice of an executive president in
1960 was notably debated. Some felt president was going to have too much power and
would be tyrant. Others thought we needed a strong clear-headed leader who would drive
us. We needed a leader that was clear-cut, a strong willed person having fingers on
totality of powers. After overthrow of Nkrumah, those who said too much power would
result in a tyrant claimed victory and would result in 1969, the splitting of powers
between a ceremonial head of state and a Prime Minister. 2 types of Commission was
established;
-To discharge functions of president when out of country, those functions that he could
not discharge when out of the country, and
-When president died and new one yet to be elected.
Also, the president had power independent of the Legislature to pass necessary
laws to support his work. A Legislature was created, given Legislative Authority. In
Article 20, it was described as sovereign. Sovereignty connotes ultimate authority, but
this Legislature was restricted in several aspects. Re Akoto represents biggest landmark
of Rule of Law in this country. It was about scope and extent of legislative authority.
One has to note amendments to 1960 constitution in 1964, which would convert country
to one party state. 1969 constitution can be said to be a reaction to 1960 constitution.
Everything we thought was weakness, we tried to rectify it. One area where we thought
we had made mistakes was in the Executive. There was lot of debate about whether we
should have executive type or where we had under Independence constitution, head of
state and head of government. We chose a split Executive, a head of state and head of
government – President, Prime Minister.
The 1969 constitution gives us an indigenous name to use in terms of president –
Sempapanyin. Whenever it was thought that a decision should not be made on partisan
basis, the head of state was to make that decision.
We keep expanding legislature because of greater representation.
1979 Constitution
This 1979 constitution is founded on the 1969 constitution. Indeed in Paragraph 26 of the
proposals, you find that committee that drafted it stated that they saw their job as not
starting afresh. They accepted essentials of 1969 constitution as their point of reference.
There are some hot debates – nature of Executive. In 1978, there was a debate as to
whether to go back to 1960 type of Executive.
-Article 1 introduces idea of protecting constitutional order – even with our own lives.
-There was also the requirement that certain office holders be appointed within a certain
period. In 1979, those appointees had to be in place within 6 months.
-Article 2: Grave consequences for disobeyance of orders of the Supreme Court.
Article 2(4)
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Failure to obey or carry out the terms of an order or direction made or given under Clause
(2) of this article constitutes a high crime under this constitution and shall, in the case of
the President or the Vice President, constitute a ground for removal from office under this
constitution.
-Creation of system of public accountancy that people should declare their assets.
1979 constitution introduced grassroots system, through representative local
government system. There was a certain measure of protection through press
commission. It also contained a provision giving commanding heights of economy,
control of political parties to Ghanaians. No democracy is safe if political parties are not
controlled by legislature.
A Number of buffer institutions continued – given responsibility usually given to
Executive –
Council of State
Press Commission
Electoral Commission
Ombudsman etc.
One interesting distinction between 1969 and 1979 constitution is that, in 1969
constitution, some provisions could never be amended and that was criticized. In 1979
constitution, every part could be amended.
Also, there were provisions relating to the returning of chieftaincy fully to its
traditional roles/roots – Definition of who a chief is. The processes of holding chiefly
office left to custom and usage.
Transitional Provisions: Current debate about them can be traced to 1979 constitutional
provisions. It is transitional in sense of moving from one regime to another. For that
period, most celebrated case under 1979 constitution is Tuffuor v. Attorney General5
(Capacity to bring Action).
We’ve had 4 successful coup d’etats but 5, you could almost say, 6 coup d’etats.
The first and probably the most controversial occurred in 1966. Regime was stablished
24th February, 1966 through NLC proclamation. Proclamation was made on 26th but
given retrospective effect from 24th February. NLC that was established run affairs until
October, 1969.
The structure of government that NLC proclamation introduced will be more or
less reintroduced by all subsequent regimes.-You would have the NLC which was made
up more or less of people that plotted and executed coup. Executive power of the state
was vested in Executive Council of NLC. The Legislature was the National Liberation
5
(1980) GLR 637
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Council, Executive was the Executive Council plus Ministers of State, that day, called
Secretaries.
The Judiciary continued with same powers, composition and structure as under
the 1960 constitution. There was the power to reorganize judiciary – NLC Decree 84. The
Supreme Court was abolished and offices of judges and magistrates dissolved. Through
NLC Decree 84, a fresh set of courts was set up and new judges were appointed to
those courts. Those identified with the CPP were not reappointed. One of continuing
problems of a legal nature – one issue that came up almost immediately would be extent
of legislative authority of NLC and would come up in 2 Salifa cases, ex parte
Bannerman, Awoonor Williams v. Gbedemah. You find the judges more or less
divided. One camp led by Awoonor Williams v. Gbedemah is that during period of
NLC, Courts did not have power to examine legislative power of the state.
On 13th January 1972, you would have another military establishment.

Coup that occurred on 13th January 1972 established by proclamation, National
Redemption Council which ran show until 9th of October, 1975. When the first set of
members of the National Redemption Council was announced, there was a major murmur
that ethnic groups were not represented so the Council expanded to balance ethnicity, to
satisfy complaint of ethnic balance. Today, we talk about regional balance. Concern about
representation was a major talking point for agitators of constitutional reform.
NLC Proclamation also established an Executive Council made up of all members of

NRC, Executive Commissioners and Secretary of NRC.
-NRC Decree 101: Abolished the Supreme Court and the Court of Appeal became the
highest court in the land. Judiciary was once again reorganized. These arrangements
operated until 9th October, 1975.
9th October, National Redemption Council, made its last decree, Decree 360.
This decree reorganized the administration. It abolished the National Redemption
Council and established the National Supreme Council. It abolished Executive Council
and established National Redemption Council.
-National Redemption Council -----------------------------------------------------------SMC
-Executive Council------------------------------------------------National Redemption Council
The people who claimed responsibility for 1972 coup, saw it as demotion and resigned.
Some argue that what happened in 1975, is an in-house coup d’etat.
Decree 360 said in exercise of Executive power, will act on advice of SMC
wherever practicable. Decree setting up NRC said leader is depository of power and acts
on advice of SMC. He appoints members of the SMC – the IGP etc.
SMC II
NRC Decree 360 was subsequently amended by SMCD 168. SMCD 168 tried to
establish a collective government. It is also this fundamental change in structure that
allows people to talk about SMC II. It is the closest we have come to an illegal
government.
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SMC as the legislature, when it passes laws, the Decree will be promulgated by
Chairman but 168 was signed by all SMC members except the Chairman. SMC II was
thus illegal military intervention
AFRC
It was established by the Armed Forces Revolutionary Council, 4th June 1979. Legislative
authority was vested in the AFRC, courts continued with the same composition but this
time, there was some confusion about the position of the Executive.
-AFRC 26: AFRC became the government. AFRC was still maintaining that it was not
the government. It appointed liaison officers.
Provisional National Defence Council (PNDC)

It was brought into being by PNDC Proclamation 41. The Proclamation established
PNDC, established CDR’s. Legislative authority was vested in PNDC originally, and
where the previous regimes made decrees, they changed ‘Decrees’ to ‘Law.’ It left us
with the most technically stupid legislation we ever had.
PNDCL – Law
Court was continued with same powers as under 1979 constitution. PNDC was made up
of 11 members and for the first time the Council was to exercise all the powers of
government, to be explained in PNDCL 42, which led Chief Justice Apalloo when
opening the Law Students Union Law Week to say that, this management was contrary to
traditions of this country, and unprecedented in world – where totality of state said to be
vested in one group of people.
Because of arguments over nature of legislative authority under previous regimes,
PNDC decided that PNDC laws will come into force on the date they are made. They
announced that it would be published as soon as possible. The PNDC also presented the
judiciary with strongest challenge it has ever had since McClean’s time. The existence of
this rival judicial mechanisms, posed the biggest constitutional and legal challenges.
The killing of judges also denied the judiciary the chance to appoint experienced legal
practitioners.
3 areas to Note:
-Read Proclamations carefully
1.) Legal Effects of Military Intervention
2.) Absence of Formal Constitutional guarantees by which regimes are established.
3.) Issues relating to extent and nature of legislative authority under the military period.
The Fourth Republican Constitution (1992 Constitution)
From the earliest times of emergence of modern constitution, certain issues have engaged
us.
a.) Question of representativeness in its present formulation manifesting itself presently
in ethnicity etc. It is a problem that we are trying to address through legislature etc.
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Article 35 of (1992)Constitution: Political Objectives

6. Towards the achievement of the objectives stated in Clause (5) of this Article, the
State shall take appropriate measures to -
(b) achieve reasonable regional and gender balance in recruitment and appointment
to public offices.”
b.) Second is the question of responsibility: How to make government accountable to

people, whether directly or through their representatives.
c.) There is also the problem of the executive domination of government structures.
This domination by government has been heightened by government interventions.
These interferences with the development of the Legislature which we had put in place as
far as 1850 had made people feel membership in Legislature is not sufficiently
prestigious and it is in the Executive.
There are different kinds of constitutional making processes – If you take 1969 and 1979
constitution on one hand and 1960 constitution on other hand, can we say one is superior
to another because 1960 was subjected to public approval/referendum while 1979 and
1992 were not?
-The 1969 and 1979 was developed by a constituent assembly while 1992 was
developed by a consultative assembly. There was concern also with the depoliticization
of certain levels of decision-making.
We’ve been concerned with domination of the Legislature by one party. Whilst majority
decision making is critical, minority interests important. There is a certain amount of
sensitivity to gender balance especially in 1960’s as can be seen in Clause 6(b) of Article
35 of current constitution.6
Exactly how do we do this in an era of competitive party politics?

Ensuring that both sexes have reasonable access to political office has been an issue for
us.
The use of the constitution to protect human rights has also been an issue.
We profess a commitment to human rights and rule of law but how do we use constitution
as a platform to promote this?
6
Article 35 of (1992)Constitution: Political Objectives
6. Towards the achievement of the objectives stated in Clause (5) of this Article, the State shall take
appropriate measures to -
(b) achieve reasonable regional and gender balance in recruitment and appointment to public
offices.”
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There is also the issue of relations between civil, military, in particular how to
subordinate military and police to civilian. Governments have been using the policy of
carrot – improvement in facilities for them etc. in order to win their hearts and minds.
We have also been grappling with the role and place of chieftaincy in the last 200
years.
We’ve been concerned with local government at every major turn of constitution, as
well as land government reforms.
There has also been the difficult problem of development and control of the
economy. If we from time to time come close to hostility or racism towards non-
nationals, it is because of the domination by foreigners, especially those from Lebanon.
In the 1969 and 1979 constitution, we had provisions aimed at giving the commanding
heights of the economy to Ghanaians. In current constitutional arrangements, non-
nationals cannot have highest interest in lands.
7th January 1992: Current constitutional provisions came into effect and question of
whether they take retrospective effect.
Roadmap to current constitution
1.) Introduction of local government reforms by PNDC in 1980’s: Those reforms had 3
main objectives – Decentralization, Democratization, and District Expansion (64-103)-
Democratization involves established District Assemblies with legislative authority.
Majority are elected, District Chief Executive is ex-officio etc.
-Decentralization involves the devolution of some amount of power, manpower and
resources.
These reforms in local government strengthened hands of those that had been agitating
for constitutional reform from PNDC structure. About the same time, it is significant that
PNDC had been pursuing economic program – important for donor support. Perhaps the
PNDC would no longer ignore these internal and external pressures.
National commission on Democracy said majority of people were not opposed to
multi party democracy. A more straightforward feedback would be that Ghanaians wanted
it. Committee of experts under S.K.B. Asante were to take the report and also, to advise.
That committee was set up by PNDCL 252. Committee of experts was required by
PNDCL 252 to take into account constitutional arrangements already in place.
They reported on 31st July 1991 and PNDC set up a Consultative Assembly and it was
this assembly that actually debated and made a draft of the constitution which it presented
to the PNDC. The final draft which was proposed by the Consultative Assembly contains
about 95% of 1969 and 1979 constitutions. Like the 1978 constitutional committee, it
did not start from scratch but how constitution had evolved up to that time. The
draft which was presented to the PNDC was subjected to referendum in April 1982 and
would be the third time in our constitutional history that major constitutional
arrangements was subjected to referendum. Majority of Ghanaians that voted, voted
massively in support of the draft proposals.
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Referendum question was carved in a certain language. It contained 2 questions,

1.) Whether the people approved of the draft constitution
2.) Whether the constitution should come into force on 7th January, 1993
Since independence, closest we ever came to civil disorder was first 3-4 weeks of 1992
constitution. Religious leaders got together and decided to discuss interim constitutional
arrangements.
Article 1 of 1992 constitution: 4 implications from that Article,
Preamble: “In the name of Almighty God, we the people of Ghana…’
-Quite clearly, this constitution is for people who believe in God. No one can use this
constitution to promote lack of belief in God. What you find in preamble ties in with
constitution.
-The constituent power is “We the people of Ghana….”
-First Article says, “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.”
i.) There is an acknowledgement that ultimate power resides in people of Ghana – not in
Government, Parliament, Judiciary or Constitution but the constituent power, the people.
ii.) Powers granted by constitution is to be exercised on their behalf and for their welfare
– controlling principle.
iii.) Power is to be exercised in accordance with the provisions of the constitution.
iv.) The constitution as a whole constitutes the fundamental law of Ghana. No policy
which is not referable to a provision of the constitution is valid (Clause 2 of Article 1).
There is no aspect of our public policy today that cannot be subjected to constitutional
scrutiny.
The constitution has established a number of organs of government. Separate chapters are
devoted to the Executive, Legislature and different situations. One of ideas that must have
influenced the framers is this idea of separation of powers. In the Executive, Committee
of Experts had recommended that we split Executive. This was rejected and we have
President and Vice-President. Budget of the government was at one time rejected by the
legislature of Limann’s government. Executive is not answerable to Legislature and
legislature not answerable to executive. The president is not a member of the Legislature.
President cannot dissolve Parliament. Ministers are made answerable to the president and
not Parliament. Legislative power of state is vested in Parliament, so is residual power.
Only the Executive can introduce legislation having financial implications. Judicial
power is vested in the judiciary. Constitution does not define what is judicial power.
Judiciary is made independent of other branches.
4 elements;
-Administrative and Financial Autonomy
-Judges have immunity from suits
-Funds charged to consolidated funds
-Non-interference in performance of duties.
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-What this constitution means is what the Supreme Court thinks the provision means.
That is what matters.
The constitution has provision for political parties. This is a worldwide movement
especially since Watergate affair. Political parties do affect and aim at affecting country
fundamentally. Political parties are recognized as constitutional organs in these
constitutional arrangements. They must be democratic and they must be national in
character (Political Parties Act, Act 574). Because they have been recognized as
constitutional organs, state has certain obligations such as giving them access to media.
TUC cannot make financial contributions to a political party.
The constitution prohibits one party state and concern with one party rule has
been a major part of our constitutional discourse.
The constitution also makes arrangements for decentralization and local government.
-District Assembly Elections is not to be on party basis. Some say it is a sham and must
be amended.
-District Chief Executives are to be appointed by president with prior approval of District
Assemblies.
-Constitution also establishes a number of independent institutions – Council of
State, Auditor General, CHRAJ, National Media Commission, National commission on
Culture etc.
-Military (Chapter 17, together with Armed Forces Act 1962, Act 105).
-National Security Architecture in the constitution.
-Amendment of Article 211 on National Security Council.
-President is not a member of National Security Council. There was amendment and vice
president was removed and president or nominee of president to chair.
-Constitution has elaborate provisions on chieftaincy and definition of who a chief is.
Chieftaincy is not part of institutions of government that has been developed by a modern
constituency.
-Constitution continues dualist approach of earlier times so power to enter treaties and
international agreements given to Executive, and power to give it domestic effect given to
Legislature through Act of Parliament.
-Constitution contains most elaborate provisions on human rights.
Constitution also contains the strongest platform yet for protecting the media (National
Media Commission v. Attorney General).
2 different kinds of amendments provided for,

1.) Article 2997 says that some provisions cannot ever be amended (Read Forgive us our
Trespasses by Professor C.E.K. Kumado)
7
Article 299: Transitional Provisions
“The transitional provisions specified in the First Schedule to this Constitution shall have effect
notwithstanding anything to the contrary in this Constitution.
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2.) Two provisions that can be amended are in 2 groups – Entrenched provisions and non-
entrenched provisions (Article 2908 and 2919)
For entrenched provisions, proposed amendments will go to the Council of State.
It will be published in the Gazette for a certain period, and will have a referendum. At
least 40% of registered voters must turn out, at least 25% must vote for, and then
Parliament passes it.
For non-entrenched, there must be 2 publications in Gazette, submission to
Council of state for advice and where feedback is positive, there is Parliamentary action.
Transitional Provisions
-Sections 37, 34, 35.
It is aimed at protecting aims of June 4th and December 31st revolutions. It is seeking to
give immunity to people that have done certain things in past which might not be quite
lawful, such as those trying to overthrow the government.
Language used is language captured at that particular time. It can be affected by changes
in language, or societal change. It can change meaning given to rules in the constitution,
changes in our worldwide understanding of what the fundamental rules of government
can and should be. All around the world, there is amnesty laws granting some kind of
indemnity. By mid 80’s going on to 90’s, search for what is called transitional justice
– general worldwide hostility to amnesty whatever the objectives may be. At least part of
this hostility took the form of International Court of Justice, ad hoc tribunals in places
like Yugoslavia, Rwanda etc. Importance of these changes is how they affect the
interpretations of provisions of the constitution. Philosophy of law and outlook may
influence one judge to give same worth and content to which others may dispute.
Organs of Government Under the Constitution
Executive
8
Amendment of Entrenched Provisions
9
Amendment of Non-Entrenched Provisions
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We may find specific rules in Chapter 5,10 8,11 20,12 23,13 9.14 In order to get total picture,
read constitution as a whole.
Article 57:
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 F0orces of
Ghana.
Combination of all these 3 persona in 1 office holder that leaves us to say we have
Executive President/Presidential System.
-President as Head of State
-President as Head of Government
-President as Commander-in-Chief
In NPP v. Rawlings, NPP v. AG and another, splits Head of State from Head of Govt.
and says president as Head of State cannot be dragged to court but as head of
government, subject to provisions of Article 215 just as subject to judicial control as
actions of any other actor within constitutional arena.
Clause 2 of Article 5716 says president shall take precedence over all the
people/persons in Ghana.
President
/
Vice
/
Speaker
/
Chief Justice
When constitution says president shall take precedence, has something to do with for
what purpose are we looking for answer to that particular question?
Marbury v. Madison: Marshall said that if not in writing, then cannot assume certain
powers. The solution of some people is to go to article 298.
Article 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
10
Fundamental Human Rights and Freedoms
11
The Executive
12
Decentralization and Local Government
13
Commissions of Inquiry
14
The Council of State
15
Enforcement of the Constitution
16
Article 57(2): The President shall take precedence over all other persons in Ghana; and in descending
order, the Vice-President, the Speaker of Parliament and the Chief Justice, shall take precedence over all
other persons in Ghana.
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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.”
Some people see a certain vacuum and believe that that Article is supposed to help us fill
these kind of gaps. Article itself says that subject to provisions of Chapter 25 –
Amendment Charter – how to provide a lacuna without being seen as violating rules of
the constitution.
The president enjoys immunity from suit – civil or criminal (Articles 58(4), (5))17.
Interesting thing is that with regards to civil, one cannot drag president to court in person.
You are supposed to preserve the dignity of the office, but you can challenge the actions
through Article 2 and Prerogative Writs (Applications for Judicial Review).
On these 2 clauses, look at
NPP v. Rawlings
NPP v. AG
Where there is agreement in these 2 cases that president cannot be dragged to court, there
is disagreement in NPP v. AG as to against whom should the writs be issued against?
The majority view was that it should be issued against the Attorney General.
The same position was taken in

Tuffuor v. AG and
Sallah v. AG
In both cases, preliminary objections were overruled – Appropriate person to
institute against is Attorney General.
Immunity covers what the president does while in office and for things done before going
into office. After that, you have 3 years to sue.18 If you want to sue after 3 years, you
must find a judge willing to allow you to extend the time. These immunities apply to the
Vice President as well. Some people brought action against Vice-President Arkaah and
there was a preliminary objection that he could not be dragged to court, and this was
upheld.
17
Article 57: The President of Ghana
4) Without prejudice to the provisions of Article 2 of this constitution, and subject to the operation of the
prerogative writs, 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.
5) The President shall not, while in office as President, be personally liable to any civil or criminal
proceedings in court.
18
Article 57(6):
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.
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-Clause 1 of Article 58 attempts to interpret/define Executive Authority and to locate

it. Executive Authority is vested in president and defined to extend to maintenance and
execution of this constitution and all laws.
Article 58: Executive Authority of Ghana

(1) The executive authority of Ghana shall vest in the president and shall be
exercised in accordance with the provisions of this constitution.
Article 295: Interpretation

(1) “Government” means any authority by which the executive authority of Ghana
is duly exercised.
In political theory, we use government to mean Executive, Judiciary and Legislature as a

composite. Constitution is telling us that whenever we find government – small letters –
we should exclude the legislature and judiciary.
President is the government. No other person matters even though other people
play some roles.
Article 58(3)19 says that Executive authority vested in president may be exercised by him
directly and officers directed by him. Actions should be expressly taken in the name of
the president. If you say some action has been taken by the Cabinet, you are violating this
constitution.
-Clause 3: In controversy between Arkaah and Rawlings, Arkaah said whenever
Rawlings not able to preside over cabinet meetings, P.V. Obeng was made to preside and
he felt that this was contrary to the constitution. Was Arkaah right in light of provisions of
Clause 3?
Article 5920 (Absence from Ghana) has also been subject of some controversy:
President must give prior notification to Speaker of Parliament before traveling.
Some say should give it to Speaker before enplaning but that at times, it arrives after he
enplanes.
Article 6021(The Vice-President and Succession to the Presidency) is important. It

talks about Vice President and those kind of matters.
-What term can the Vice President serve?
2 terms.
-But can you be Vice President for 2 terms and president for 2 terms?
19
Article 58(3):
Subject to the provisions of this Constitution, the functions conferred on the President by Clause (1) of this
Article may be exercised by him either directly or through officers subordinate to him.
20
Article 59: Absence from Ghana
The President shall not leave Ghana without prior notification in writing, signed by him and addressed to
the Speaker of Parliament.
21
Article 60: The Vice-President and Succession To The Presidency
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The Article provides us with some clues. If you are Vice President and the president dies,
you become president to complete his term. If the term is less than half, constitution says
you can have only one more term.
-If Kufuor has heart attack today in 2005, Mahama will serve the rest of the term and can
have only one more term. If Kufuor passes away 6 months before end of term, Mahama
finishes the term and has 2 more terms.
Article 60(3)22: Qualifications for president and Vice are the same
Article 60(6), (8), (11): Requirements for acting. Those giving place to Chief Justice,
11 is biggest roadblock.
60(6)
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.
60(8)
Whenever the president is absent from Ghana or is for any other reason unable to
perform the functions of his office, the Vice-President shall perform the functions of
the president until the president returns or is able to perform his functions.
60(11)
Where the Vice-President and the president are both unable to perform the
functions of the president, the Speaker of Parliament shall perform those functions
until the president or the Vice-President is able to perform those functions or a new
president assumes office.
The assumption of framers of the constitution is that there will be no situation where we
do not have Speaker so makes no provisions after Speaker when president, Vice not there.
We have first and Second Deputy Speaker. It is not necessary to make provision for that
because seems unlikely that all these individuals will just die. As a theoretical possibility,
can talk about it but it seems enough provision has been made for temporary succession.
1960 Constitution: Arrangements made through presidential commission. With respect

to president’s powers when out of country, it was only those functions that president
could not carry out when out of the country that was to be performed by the Commission.
-Article 62 (Qualifications of President): All you need to be president is that, you need
to be citizen of Ghana by birth.
-Must be 40 years
-Must be otherwise qualified to be a member of Parliament
-Article 94: (Qualifications and Eligibility [to be member of Parliament])
22
Article 60(3): The provisions of Article 62 of this Constitution apply to a candidate for election as Vice-
President
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First question, in the case of Parliament, Constitution provides 2 broad provisions.

1.) Qualification
2.) Eligibility
Provisions on eligibility are temporary. You can make yourself eligible by getting rid of
the disability. If you are a chief and disqualifies you, you can abdicate.
-President is elected according to Article 63(3)23 if he gets 50% of valid votes cast, plus
1.
Article 6424 (Challenging Election of President): Challenges go to the Supreme Court

and should take 21 days after declaration of results. For parliament, it is 21 days after
publication of results in the Gazette.
Article 6625 (Term of Office of President): Tenure is 4 years beginning from date
president is sworn in. He cannot serve more than 2 terms.
Some of fun ctions of president – Sessional Address.

What is a session?
You have to differentiate a session of Parliament from a sitting of Parliament.
-Article 68 (Conditions of Office of the President)26: President cannot be Chancellor or

Head of any public university.
-Article 68: Salary, benefits of president.
Removal of president is in Article 69.

The legislature has a veto over the removal of the president from office. At the end of the
day, Parliament must determine matter and must be by 2/3 majority of Parliament.
23
Article 63(3): A person shall not be elected as President of Ghana unless at the presidential election the
number of votes cast in his favor is more than fifty percent of the total number of valid votes cast at the
election.
24
Article 64: Challenging Election of President
(1.) The validity of the election of the President may be challenged only by a citizen of Ghana who may
present a petition for the purpose to the Supreme Court within twenty-one days after the declaration of the
result of the election in respect of which the petition is presented.
25
Article 66: Term of office of President
(1.) A person elected as President shall, subject to Clause (3) of this Article, hold office for a term of four
years beginning from the date on which he is sworn in as president.
(2.) A person shall not be elected to hold office as President of Ghana for more than two terms.
(3.) The office of president shall become vacant –
(a.) On the expiration of the period specified in Clause (1) of this Article; or
(b.) If the incumbent dies or resigns from office or ceases to hold office under Article 69 of this
Constitution.
(4.) The President may, by writing signed by him, and addressed to the Speaker of Parliament, resign from
his office as President.
26
Article 68: Conditions of Office of the President
(1.) The President shall not, while he continues in office as President -
(b.) hold the office of Chancellor or head of any university in Ghana.
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Article 70 (Appointments by President) talks about appointments he has to make with

consultation of Council of State.
Article 71 (Determination of Certain Emoluments): This Article talks about the salary
arrangements/allowances/remuneration packages of the president.
Article 72 (Prerogative of Mercy): President has prerogative of mercy, also has control
over appointment of ambassadors. There are no qualifications for ambassador. Are
ambassadors the ambassadors of president or the ambassadors of the country, abroad?
The Cabinet
Articles 76 (The Cabinet) 77(Meetings of the Cabinet) 78(Ministers of State)
J.H. Mensah v. AG, Supreme Court held that Ministers’ term ends with term of
president that appoints him and not continuous so if there is a new term, Minister has to
go for prior approval of Parliament.
J.H. Mensah v. Attorney General

Facts: After the swearing in on 7th January 1997, J.J. Rawlings decided to retain some of
his ministers since they had been already approved by the previous Parliament. The
minority group leader in Parliament opposed this idea and J.H. filed an instant action
before Kwame Peprah, Finance Minister, could present the nation’s budget for a
declaration that on a true and proper interpretation of the constitution, no person can act
as Minister without prior approval which means vetting of each nominee.
Held: That a nominee for ministerial office undoubtedly requires prior parliamentary
approval. Just as an incumbent president seeking a second term of office has to obtain
approval through the ballot box and after go through swearing-in ceremony, the previous
minister who is to be retained has to obtain prior approval as provided in Articles 78(1)27
and 79(1) of 1992 constitution.
If you look at Article 78, it talks about appointment with prior approval of president.
Article 78(1): Ministers of State shall be appointed with the prior approval of
parliament from among members of parliament or persons qualified to be elected as
members of parliament, except that majority of Ministers of State shall be
appointed from among members of parliament.
If you look at Clause 1 and 2 of Article 144, is it important that in one case talks about
approval but in another talks about prior approval? Will the results be the same? Can
person start working and approval will come later? Did framers intend different
formulations to have different consequences?
27
Article 78(1): Ministers of State shall be appointed with the prior approval of parliament from among
members of parliament or persons qualified to be elected as members of parliament, except that majority of
Ministers of State shall be appointed from among members of parliament.
Article 79(1): The President may, in consultation with a Minister of State, and with the prior approval of
parliament, appoint one or more Deputy Ministers to assist the Minister in the performance of his functions.
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Artilce 78(3)28
Ministers of State can only hold other offices with the approval of the Speaker of
Parliament.
Article 81 (Tenure of Office of Ministers)29

Tenure of office of a Minister comes to an end when it is revoked by President, or he is
elected as a Speaker or Deputy Speaker, or resigns or dies.
Article 256 (Regional Ministers):30

In the case of Deputy Ministers, the president must consult with Minister so he cannot
appoint a Deputy where there is no minister.
Article 82 (Vote of Censure): Parliament can censure Minister but will not lead to
automatic loss of office.
There are a number of buffer institutions such as CHRAJ, National Development
Commission, National Media Commission. The National Development Commission is
supposed to advise the president on development planning and some have questioned
why there is the need for a Ministry of Economic Planning when we have National
Development Planning Commission?
Article 179 (Authorization of Expenditure): Financial matters
Article 180: Only president can initiate in Parliament measures with financial
implications.
-Article 111 (Attendance in Parliament of Vice-President and Ministers)31: On one

hand, quite clear from history of formulation of these rules of the 1992 constitution that
part of design but in line with thinking of 1979 constitution, seem to have taken view that
Ghana must chart own course in Separation of Powers idea.
28
Article 78(3): A Minister of State shall not hold any other office of profit or emolument whether private
or public and whether directly or indirectly unless otherwise permitted by the Speaker acting on the
recommendations of a committee of Parliament on the ground –
(a.) That holding that office will not prejudice the work of a Minister; and
(b.) That no conflict of interest arises or would arise as a result of the Minister holding that office.
29
Article 81 (Tenure of Office of Ministers):
The office of a Minister of State or a Deputy Minister shall become vacant if –
(a.) His appointment is revoked by the President; or
(b.) He is elected as Speaker or Deputy Speaker; or
(c.) He resigns from office; or
(d.) He dies
30
Article 256 (Regional Ministers and Deputy Regional Ministers)
(2.) The President may, in consultation with the Minister of State for a region and with the prior approval of
Parliament, appoint for the region a Deputy Minister or Deputy Ministers to perform such functions as the
President may determine.
31
Article 111 (Attendance in Parliament of Vice-President and Ministers):
The Vice-President, or a Minister or Deputy Minister who is not a member of Parliament, shall be entitled
to 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 to hold an office in Parliament.
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By Article 111, Vice President and Minister of State who are not members of Parliament,
are given right to participate in Parliamentary proceedings except vote. Participation,
according to Wade and Bradley is not a breach of Separation of Powers.
Majority of Ministers of State are supposed to be elected from Parliament. Those that are
not members can participate, including in committee meetings, except vote. Does this
give the Executive a disproportionate share in workings of Parliament?
- Is it also fair that president should appoint majority of members of Ministers from
members of Parliament?
-What if president’s party is in minority in Parliament?
-What if president is not party-based president, meaning that, does not share the vision of
any of the parties in Parliament?
Some see these ministers as trojan horses in the belly of Parliament. They are slow to
criticize president in the corridors of power.
How many ministers could president have under the 1979 constitution?
Now, there is no cap, and Kufuor currently saddling us with about 88 ministers. Is that
consistent with your understanding of Constitutionalism or Rule of Law?
One of major gaps that people talk about is that constitution does not tell us how to
elect a vice so if Kufuor dies and Mahama becomes president, we know process but
if Mahama dies, how do we get successor? Article 29832 - Is this case for it?
Clause 1 of Article 133 and Preamble to constitution
Necessary consequence of Clause 1 of Article 1: Ultimate authority is vested in the
people of Ghana. This means institutions of government we have in the constitution only
have limited power.
You can find throughout our constitutional document the provisions dealing with
the traditional functions of the legislature. There are 7 of them.
1.) To make law: Legislature is the one that has power to make laws. The making of laws
offers Parliament the principal opportunity to take a peek into the workings of Executive
and to control the Executive. It also makes Parliament a very important participant in the
formulation of public policy so if it is thought that policy is inimical to society,
Legislature will deny the Executive the framework for implementing that policy. Today it
is not enough to blame only on the Executive. You must blame the Legislature as well.
32
Article 298 (Residual Powers of Parliament):
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.
33
Article 1: Supremacy of the Constitution
(1): 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.
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2.) The second function is to raise money, particularly through taxation. If you look at
Article 175 , 174 , no taxation should be imposed other than under authority of an Act of
34 35
Parliament. Parliament raises money. It is spent by Executive but Parliament raises the
money and it determines where it is to be kept, whether Consolidated, Contingency Fund.
3.) Power to authorize the spending of the money. Money can be raised through
procuring of loans but the one who gathers the money cannot use it except as authorized
by the Legislature. Parliament controls the purse of the nation.
4.) To criticize the government/executive. It is the job of the Legislature traditionally to

criticize the government, and can take place in a number of ways.
5.) To act as Grand Inquest, a kind of operation that coroners do. Coroner holds an
inquiry into the cause of death. One of the traditional functions of Legislature is to do this
kind of exercise through Parliamentary Questions, where Parliament is asked to provide
answers to pertinent questions, whether to approve Parliament’s nominees, and you can
see that taking place in the operation of the Parliament’s committees. It offers the
opportunity to probe into governmental operations.
6.) Debating great issues when opportunity offered. Example, Sessional Address offers
opportunity for parliament to debate some issue.
7.) Legislature also serves as Committee of Grievances, a kind of Ombudsman. When

you have a problem and you have been frustrated etc, – you complain to Member of
Parliament, and he can insist on a solution because he knows the law, generally speaking.
When you put all this together, we can agree with John Stuart Mills that the job of the
Legislature is not to do anything. Doing is the job of the Executive. The essential job of
the Legislature is to act as place for talking. That is why in the early part of our history,
our Legislature was designed essentially as a debating chamber.
Article 93
(1) There shall be a Parliament of Ghana which shall consist of not less than one
hundred and forty elected members.
(2) Subject to the provisions of this constitution, the legislative power of Ghana shall
be vested in parliament and shall be exercised in accordance with the constitution.
Residual powers given in Article 298:
34
Article 175 (Public Funds of Ghana):
The public funds of Ghana shall be the Consolidated Fund, the Contingency Fund and such other public
funds as may be established by or under the authority of an Act of Parliament.
35
Article 174 (Taxation)
(1.) No taxation shall be imposed otherwise than by or under the authority of an Act of Parliament
(2.) Where an Act, enacted in accordance with Clause (1) of this Article, confers power on any person or
authority to waive or vary a tax imposed by that Act, the exercise of the power of waiver or variation, in
favor of any person or authority, shall be subject to the prior approval of Parliament by resolution.
(3.) Parliament may by resolution, supported by the votes of not less than two-thirds of all members of
Parliament, exempt the exercise of any power from the provisions of Clause (2) of this Article.
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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.
Article 94 (Qualifications and Eligibility [of members of Parliament]) talks about

qualification of Members of Parliament.
Article 95 (The Speaker): Speaker is not a member of Parliament.
Parliament is made up of 140 minimum members, no maximum.
There is a distinction between being disqualified and being ineligible.

Disqualification provisions are permanent, ineligibility provisions are temporary so that
you can shed the thing that makes you ineligible and then you become eligible so it is not
a permanent disability. If being a chief makes you ineligible, you abdicate.
Article 97 (Tenure of office of Members): Circumstances in which Member of

Parliament shall vacate his seat.
Deselection: Where MP is deselected by party while still life in that term so that he goes
onto the platform of another party, is he caught by this provision?
-Those other members of Parliament that have decided to align themselves with NPP,
what does that mean?
-The one unknown quantity for social engineering is the human being.
Article 99 (Determination of Membership): Provisions on election disputes of

Parliament go to High Court
Presidential Elections: Forum is Supreme Court
Constitution provides time frames with respect to election disputes relating to Parliament
-Within 21 days of gazetting of results. Failure to do this has cost some people dearly.
-In the case of office of President, within 21 days of the declaration of the results.
-In the Wolensi case, Supreme Court decided that it had no jurisdiction to hear the case
and that it ends at the Court of Appeal. Court decided that elected MP did not hail from
the constituency.
There is a Quorum for Parliamentary Business.

Quorum for Normal Business – There must be 1/3 of MP’s. To make any decision, you
need simple majority, 50% plus 1.
In all deliberative bodies, question of quorum is an internal matter. Even if there
are 2 MP’s in the chamber, business can go on so long as decision is not to be taken. If
there is less than 1/3, it has to be adjourned. If only 2 people in chamber, there is quorum
as long as quorum is at the beginning.
Speaker has no vote and if on any issue it is equal, it is defeated. There are 4
systems of voting,
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1.) Voice Vote

2.) Voting by show of hands
3.) By Secret Ballot
4.) Voting by Division: If they feel it is historic issue, at times, the House is then divided
into two. Those in favor go to one side, those against it go to another side. They are voted
and their names are recorded.
-In some cases, the Court circumscribes the mode of voting. Parliament has Select (16)
and Standing (10).
Article 106 (Mode of Exercising Legislative Power) deals with lawmaking process,
procedure. Court requires bill and memorandum – which requires that justification for
law. It must be published in Gazette for a number of days before government’s reading, it
goes to Committee for second reading, goes to President etc.
Article 56 (Restriction of Certain Propaganda): What Parliament does not have power
to do.
“Parliament shall have no power to enact a law to establish or authorize the establishment
of a body or movement with the right or power to impose on the people of Ghana a
common programme or a set of objectives of a religious or a political nature.”
Parliament cannot give power to retrospective legislation, except financial. A bill comes
into force as law on date that published in the Gazette. Bill that has been passed by
Parliament and has received presidential assent is not law except published in the
Gazette.
-Article 113 (Dissolution of Parliament)36: is on term of parliament. It is 4 years from
time from which members of parliament take their oath and then automatically dissolves,
so no one has responsibility to dissolve.
-Article 115-121: (Privileges and Immunities [of MP’s]): Court orders cannot be
served on MP’s, Speaker, Clerk, while on his way to Parliament, or coming from
Parliament.
To protect its dignity, Parliament has power to punish for contempt.

Article 122-12337: Contempt of Parliament.
36
Article 113 (Dissolution of Parliament): Subject to Clause 2 of this Article, Parliament shall continue
for four years from the date of its first sitting and shall then stand dissolved.
37
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.
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The basic place to look for principles relating to the judiciary will be Chapter 1138 of
constitution, and Courts Act 459. You have to separate information that will pertain to
legal system.
-You read in opening clauses of Article 125 certain general principles which are
supposed to have some implications for the judiciary.
Article 125(1)
Justice emanates from the people and shall be administered in the name of the
Republic by the judiciary which shall be independent and subject only to this
constitution.
Ultimate authority under the constitution is vested in the people of Ghana, and the
judiciary is just an agent administering justice and to that end, to be independent, it is
subject only to the constitution. We will encounter this idea of independence so need to
understand in context of judiciary.
The idea of judicial independence which is then repeated to some extent in Article
12739 embodies a number of principles which one can state in very simple terms. The idea
of judicial independence involves security of tenure of the justices, particularly through
the removal process.
The concept of judicial independence involves the idea that judges will make
decisions by themselves impartially and without dictation or direction from any person,
whether that person is within or outside the judiciary.
It also involves immunity from being subjected to judicial processes, whether
civil or criminal with respect to exercise of judges of their judicial functions.
If a judge is caught in an armed robbery, he cannot say “I enjoy judicial immunity.”
Judicial independence also involves the financial autonomy for the institution –
charging the financial needs of the institution directly to the consolidated fund. This is
supposed to do 2 things,
1.) Ensure that these funds are not tied to annual appropriations so cannot say ‘there is no
money.’
2.) Protect from ‘he who pays the piper plays to the tune.’ Thus, judiciary is protected
from these institutions that control the purse.
The judiciary does not attend budget hearings. They do not answer to the Minister of
Finance. They present their estimate to Parliament through the budget. In determining
their estimates, judiciary is expected to be responsible and take into account what public
treasury can support. The budget of the judiciary is no longer part of the budget of the
Ministry of Justice.
There is some uncertainty over whether we need a Ministry of Justice at all and secondly
whether Attorney General should be Minister of Justice. Question whether you need a
Ministry of Justice is that each of these institutions can function fairly well without a
Minister. As to whether we need Minister of Justice has to do with traditions of Attorney
General as imported into our system.
38
Chapter Eleven: The Judiciary
39
Article 127: Independence of the Judiciary
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There is a provision that remuneration provided for judiciary should not be reduced in
their lifetime, because salary reduction can be used as an inducement.
The last process is the removal process – Article 14640 of the Constitution.
There are 2 things there –separate provisions for removal of Chief Justice and other
justices of the Superior Court of Judicature.
Article 146(3):
If the president receives a petition for the removal of a Justice of a Superior Court
other than the Chief Justice or for the removal of the Chairman of a Regional
Tribunal, he shall render the petition to the Chief Justice, who shall determine
whether there is a prima facie case.
(4) Where the Chief Justice determines that there is a prima facie case, he shall set
up a committee consisting of three 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, nor members of Parliament,
nor lawyers, and who shall be appointed by the Chief Justice on the advice of the
Council of State.
-For Chief Justice, you have a five person tribunal made up of 2 Supreme Court justices
and 3 lay persons appointed by 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.
Is there any justification noticeable in the composition?
Grounds for removal are also specified and language used is very flexible, archaic
language. Terms used are flexible. Grounds for removal are three:
1.) Stated misbehavior
2.) Incompetence
3.) Infirmity of mind or body
You can trace all of these to Bill of Rights of 1868 in England.

-Stated misbehavior covers everything from drunkenness at work, to sexual harassment
of jury members and other court officials. Stated misbehavior may also include sleeping
on duty.
-Infirmity of body has nothing to do with disability.
The point of removal process is to protect and secure this independence which the
judiciary has been given by Clause 1 of Article 125.41
40
Article 146: Removal of Justices of Superior Courts and Chairmen of Regional Tribunals
41
Article 125: The Judicial Power of Ghana
(1.) Justice emanates from the people and shall be administered in the name of the Republic by the
judiciary which shall be independent and subject only to this constitution.
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-Clause 242 says citizens may increase popular participation. There is a constitutional
ground for hearing trials before trained professionals and ordinary citizens.
-Clause 3:
The judicial power of Ghana shall be vested in the judiciary, accordingly, neither the
President nor Parliament nor any organ or agency of the President or Parliament
shall have or be given final judicial power.
This can be traced all the way back to the 1969 constitution.
In none of these constitutional arrangements can you find definition of what is judicial
power. Constitution does not define what is judicial power.
Ex parte Agyekum
Awoonor v. Gbedemah Williams
-These cases define as “power to make authoritative, binding and final decisions.” It is
therefore a judicial body.
-Clause 443: Head of judiciary can and should be responsible for supervision of judiciary.
Chief Justice is a judge and in another respect, is the administrative head/the chief
executive of the judiciary. The assimilation took place in 1959. This assimilation will be
with us today.
-Is the chief justice independent when he acts as an administrator, or is he responsible to
the president of the republic?
The situation is complicated by Article 15944 - It says that ‘acting with advice of Judicial
Council and upon approval of the president.’
-In removing Chief Justice Korsah as the administrative head of the judiciary after
Okyere decision, the claim of the president was that the chief justice was a sectional head
and that he the president was the overall chief executive so if any matter was going to
embarrass he the president, the Chief Justice should have alerted him the president. Is the
chief justice as chief executive answerable in some sense to the president, and if so, what
does it do to the constitutional arrangements influenced by the concept of separation of
powers?
Clause 3 of Article 12645 requires that all proceedings of every court shall be held in
public subject to interest of public morality, public safety or public order.
42
(2.) Citizens may exercise popular participation in the administration of justice through the institutions of
public and customary tribunals and the jury and assessor systems.
43
(4.) The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be
responsible for the administration and supervision of the judiciary.
44
Article 159: Regulations By Chief Justice
The Chief Justice may, acting in accordance with the advice of the Judicial Council and with the approval
of the President, by constitutional instrument, make regulations for the efficient performance of the
functions of the Judicial Service and the Judicial Council under this Chapter.
45
Article 126(3):
Except as otherwise provided in this Constitution or as may otherwise be ordered by a court in the interest
of public morality, public safety or public order, the proceedings of every court shall be held in public.
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Then there is the judicial council, which according to Article 15346 and 15447 which tells
us the functions – broadly to assist the chief justice in the administration of the judiciary.
It is the platform for discussion and consideration of matters, helping in reforms etc. It is
an 18 (eighteen) member council made up of 12 members and 6 lay members. 7 of the 12
lawyers are judges.
If as much as 2/3 belong to the legal profession, does that provide the necessary
safeguards for judicial independence? With only 6 people, is the public also adequately
represented?
-Clause 1 and 2 of Article 125
125(1): Justice emanates from the people and shall be administered in the name of the
Republic by the judiciary which shall be independent and subject only to this
constitution.
(2) Citizens may exercise popular participation in the administration of justice through
the institutions of public and customary tribunals and the jury and assessor system.
Is the enormity of the public interest sufficiently taken of or are the professionals in the
dominant position and can organize things to suit themselves?
1.) Do we have enough judges so that justice will be accessible to the people?
2.) The size of Supreme Court seems to be adequate but meets only in Accra. Is that
justice or are there many of our people who cannot bear the expense of living in Accra,
being subject to various forms of injustices? Argument for Supreme Court can also be
made with regards to Court of Appeal, which also sits only in Accra.
There is also the question of fees – filing fees. Filing fees have also been recently
increased considerably so that right now if you have complaint, you may not want to
litigate if you know what the steps are.
Will the 12 lawyers be adequately sensitized?

-Composition of Judicial Council – Is it adequately protecting public interest etc?
-Look at appointment process (Article 144), process of appointing the Chief Justice, court
officers, judicial officers.
Implication of Article 161: Supreme Court judge is not a judicial officer.

High Court, Court of Appeal, Supreme Court judge is not a judicial officer.
Article 161:
In this Chapter, unless the context otherwise requires –
“judicial office” means
(a) The office of a person presiding over a lower court or tribunal howsoever described;
(b) The office of the Judicial Secretary or Registrar of the Superior Courts
(c) Such other offices connected with any court as may be prescribed by constitutional
instrument made by the chief justice acting in accordance with the advice of the Judicial
Council and with the approval of the president.
“Judicial officer” means the holder of a judicial office.
46
Article 153: The Judicial Council
47
Article 154: Functions of the Judicial Council
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-Ask yourself about internal cohesion – Article 144 (Appointment of Justices of

Superior Courts and Chairmen and other members of Regional Tribunals)
-If you take Supreme Court judge, says shall be appointed by president, with consultation
of Council of State and approval of Legislature. It does not say “prior approval” so what
does that mean?
-Also, look at impact if any, process may have on judicial independence of the judiciary.
One can say that there is no risk here because everything happening before you become
Supreme Court justice. But what happens if people you appoint do not have the
backbone, no will-power?
Clause 3 of Article 157.
(3) Without prejudice to clause (2) of this article, no person sitting in a Superior
Court for the determination of any cause or matter shall, having heard the
arguments of the parties of that cause or matter and before judgment is delivered,
withdraw as a member of the court or tribunal, or as a member of a panel
determining the cause or matter, nor shall that person become functus officio in
respect of that cause or matter, until judgment is delivered.
It is aimed at preventing the kind of situation in AG v. Sallah where judge said he was
withdrawing from the case after decision had been made.
In Articles 248 and 13049, the Supreme Court is given the power to determine questions of
constitutionality. There are 3 exceptions,
-Petitions on Election of Speaker
-Petitions on Election to Parliament
-Human Rights Issues (Gives jurisdiction to High Court)
In Edusei v. Attorney General, Edusei said as a result of certain situations, passport had
been denied him, and that it was limiting his freedom of movement. The Supreme Court’s
view was that it was a human rights issue and the place to take the matter was the High
Court and he could not wrap it up to make it seem that it was a matter of interpretation.
Edusei v. Attorney General

Effect of Articles 33(1)50, 130(1) and 140(2) of 1992 constitution was to vest in High
51 52
Court, as a Court of first instance an exclusive jurisdiction in the enforcement of the
48
Article 2: Enforcement of the Constitution
49
Article 130:Original Jurisdiction of the Supreme Court
50
Article 33(1): 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.
51
Article 130(1):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; and
(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 given by law or under this constitution
52
) Article 140(2): The High Court shall have jurisdiction to enforce the fundamental human rights and
freedoms guaranteed by this constitution.
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fundamental human rights and freedoms of the individual. The Supreme Court has
only appellate jurisdiction in such matters.
Facts: Before the coming into force of 1992 constitution, certain persons including
plaintiff, Ghana citizen alleged to have engaged in espionage activities on behalf of U.S.
were allowed to leave for U.S. under an agreement between Ghana and U.S. Plaintiff’s
Ghana passport was seized. In 1994, plaintiff wishing to return home wrote the Minister
of Foreign Affairs for return of passport to enable him apply for new one. There was no
reply, consequently plaintiff brought an action in Supreme Court for declaration that
Minister’s wide discretionary powers were inconsistent with letter and spirit of
Articles 17 & 21 of the constitution, thus void and unenforceable and that as a citizen of
Ghana by birth, he had constitutional right to enter and leave Ghana and a passport to
enable him exercise and enjoy that right.
Held: Dismissing plaintiff’s action for want of jurisdiction, effect of Articles 33(1),
130(1) and 140(2) of 1992 constitution was to vest in High Court, as a Court of first
instance an exclusive jurisdiction in the enforcement of the fundamental human rights
and freedoms of the individual. The Supreme Court has only appellate jurisdiction in
such matters. It has no concurrent jurisdiction with the High Court in the enforcement of
fundamental human rights contained in Chapter 5, article 20-30 of the constitution.
Supreme Court has original and Supreme jurisdiction on matters of constitutionality.

Rosemary Ekwam v. Pianim
Fosuhene v. Pomaa
Ekwam v. Pianin (1992 constitution)

Supreme Court has original and Supreme jurisdiction on matters of
constitutionality.
Facts: Pianim, defendant, founding member of NPP had been slated to contest the party’s
impending election of its December 1996 presidential election. Mrs. Ekwam, NPP
member, contended that defendant had been convicted by a public tribunal of the offence
of preparing to overthrow PNDC government in 1982 contrary to Public Tribunal Law 82
(PNDCL 24). In January 1996, she brought an action in Supreme Court for a declaration
that defendant’s action constituted an offence intending to disrupt the peace and security
of the state.
Held: Granting plaintiff’s declaration, the defendant was disqualified from standing for
election for the office of President under Article 94(2)(c)(i)53 for the following reasons
that acts aimed at overthrowing the government of a state were necessarily aimed at
endangering the security of that state. Consequently, defendant’s conviction by the public
tribunal L 24 constituted an offence involving the security of that state under Article
94(2)(c)(i) of the 1992 constitution.
53
Article 94(2)(c)(i): A person shall not be qualified to be a member of Parliament if he has been convicted
for high crime under this constitution or high treason or for an offence involving the security of the state,
fraud, dishonesty or moral turpitude.
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Review jurisdiction is an exceptional jurisdiction. It is not one to resort to, to appeal

against decision of judges. Out f a 100 applications for review, only 1 may succeed
because it must mean that something fundamentally wrong has happened that requires the
decision/review of the judges. The jurisdiction is exceptional. It is because of its
exceptional character that the practice has developed. You can argue that the judges have
omitted some consideration and will do the Republic some irreparable damage of some
catastrophic nature. The review jurisdiction is to enable the Supreme Court to correct
some mistakes really quickly and to prevent some catastrophic mistakes from happening.
As a reflection of Article 12554 which says that neither the Executive or
Parliament shall have final judicial power, Article 13555 is inserted into constitution to
implement a certain principle.
Article 135 (Production of Official Documents in Court)

(1): The Supreme Court shall have exclusive jurisdiction to determine whether an
official document shall not be produced in court because its production or the
disclosure of its contents will be prejudicial to the security of the state or will be
injurious to the public interest.
This is the formulation that Judge Sirica made in Nixon case where he said that Executive
should make available tapes for him to examine and see which part of tapes should be
released so that interests of state will be protected, consistent with president’s need for
candor. We have more or les captured that formula in Article13556, and Supreme Court is
the body that determines whether a particular document should be produced and brings
our law in line with that of England, and produces decisions such as that in Conway v.
Rimmer. Our law is consistent with that of U.S. public law on the issue, and U.K. laws.
Conway v. Rimmer
Facts: Plaintiff, a former probationary constable began an action for malicious
prosecution against his former superintendent. On discovery of documents being sought
and the existence of 5 documents was disclosed by the defendant, admittedly relevant to
plaintiff’s action. The Secretary of State for Home Affairs objected in proper form to
production of all 5 documents on the ground that each fell within a class of documents,
the production of which would be injurious to the public interest.
Held: That the documents should be produced for inspection by the House of Lords and
that if it was then found that disclosure wasn’t prejudicial to the public interest or that any
possibility of such prejudice was insufficient to justify their being withheld, disclosure
should be not withheld. When there’s a clash between the public interest,
i.) That harm should be done to the nation or the public service by the disclosure of
certain documents and
54
Article 125: The Judicial Power of Ghana
55
Article 135: Production of Official Documents in Court
56
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ii.) That the administration of justice should not be frustrated by the withholding of them,
their production will not be ordered if the possible injury to the nation or the public
service is so grave that no other interest should be allowed to prevail over it.
But where the possible injury is substantially less, the court must balance against
each other the two public interests involved. When the Minister’s certificate suggests that
the document belongs to a class which ought to be held, then unless his reasons are of a
kind that judicial experience isn’t competent to weigh , the proper test is whether the
withholding of a document of that particular class is really necessary for the functioning
of the public service. If on balance, considering the likely importance of the document in
the case before it, the Court considers that it should probably be produced, it should
generally examine the document before ordering the production. In the present case, it
was improbable that any harm would be done to the police service by the disclosure of
the documents in question, which might prove vital to the litigation.
Judicial Review of Legislation in Ghana
Judicial Review:
1.) It is a technique/power for social ordering.
2.) It is the fertilizer that ensures smooth growth of government.
3.) It is the tool or instrument or process which allows constitution to adopt to changes
taking place in society without having to resort to formal amendments.
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4.) It is the mechanism that gives teeth to the checks and balances in the constitution.
There is no point in establishing government of limited powers without policing the
boundaries. Who will be given the policing functions? It is given to the judiciary. How do
we ensure that judges themselves keep within the limits of their authority?
5.) This power makes the judges part of the public policy formulation process. Power of
constitutional review gives judges the opportunity to participate in this public policy
formulation process.
6.) It allows functions of mortal beings to be judged against ultimate values that the
society holds dear. It allows us to measure our day-to-day actions against these values.
It is achieved through a number of things,

-It depends on your conception of what you think the role of the judge should be, whether
should be passive or an activist. Are we looking for a passive judge, one who generally
assumes that all other members want to do the right thing and will only intervene when
absolutely necessary/when have gone astray?
Judges have to be guided by the original intention of framers of the constitution.
That would be problematic in our society.
Evolution of the constitution – Since 1800’s, have influenced the context, structure, of
current constitutional arrangements.
Going by language of text of the constitution in order to get at ultimate values would not
solve your problem. Some say, let us look at structure of constitution and use that to
unlock. If you have more than one structure, that would be problematic. If you have only
1 structure, may be helpful.
Judicial precedent is useful if we are not presented with a virgin problem (novel
situations). If there is no precedent, what will judges do?
We have to leave it to each judge. If we leave to each judge, are we safe?
Whenever judges exercise this power and are unaffected, it means that they have done
something wrong. As far as history of the evolution of our constitution is concerned, we
can see that before independence, exercised by our judges and based on hierarchy of legal
norms in our constitution. Colonial Legislation, to be valid, had to be consistent with both
written colonial law and intangibles (Equity, Natural Justice and Good Conscience).
Ordinances passed by Local Councils would be invalid if it was against good conscience,
equity and natural justice of metropolis.
In the first Republican Constitution, judicial power was given in Article 41 to the courts,
but judicial review power was given in 42(2) to the Supreme Court and was extended to
cover special powers given to president under Article 55.
-Clause 2 of Article 41 of 1st Republican constitution revolved around the word ‘excess.’
Court had power to determine whether powers given had been exercised in excess.
Akoto Case
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If he (government official) is acting within his powers, the fact that he is abusing
it is of no consequence to us - Supreme Court gave close and limited meaning to
interpretation of ‘excess’ and some have blamed it for Nkrumah government becoming
dictatorial and if it had given a more general meaning which Danquah had been urging,
things would have been different.
In 1969, as a reaction to feeling that Supreme Court helped to make Nkrumah regime
dictatorial, elaborate provisions of review were put in place in Article 106, 102, 126.
This immediately presented its own problems. In trying to make it difficult to raise
constitutional issues, had made it far too easy to raise constitutional issues and tried to put
some brakes in,
Rep. v. Maikankan
3 objectives,
1.) To prevent frivolous references
2.) To guard against proceedings aimed at making nonsense of law/constitution.
3.) To avoid delay through the raising of constitutional issues
In Maikankan case, Supreme Court said that it is not every time that we say that there is
a constitutional issue that judge has to stay; if judge determines that claim is frivolous,
can say so. If the person is unhappy, person can appeal.
Rep. v. Maikankan
Supreme Court has power to do judicial review. Through decision in Maikankan,
Supreme Court inviting lower courts to make that preliminary determination. Our
judicial review practice, through Maikankan, assimilated to that of the U.S.
Facts: 10 persons were committed to High Court for trial on charges none of which
carried death penalty At the trial, counsel for the Republic applied that owing to the
complicated nature of the case, the trial judge should try the case without a jury. One of
the defense counsel objected to the application on the grounds that interpretation being
placed on Article 20(2) of the constitution was wrong and that by virtue of Section 204 of
the Criminal Procedure Code 1960 (Act 30), the trial couldn’t be conducted without a
jury.
Held: Trial by jury is compulsory for all offense other than treason is not provided in
Article 20(2). There is no support for the argument that offenses with which the accused
persons were charged must be tried by judge with jury.
Per Curiam: A lower court isn’t bound to refer to the Supreme Court every submission
alleging as an issue the determination of the question of interpretation of the constitution
or of any other matter contained in Article 106(1)(a)(b). if in the opinion of the lower
court the answer to a submission is clear and unambiguous in the face of the provisions of
the constitution or laws of Ghana, no reference needs to 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
provisions of Article 106(2) of the constitution in any other way may entail and
encourage reference to the Supreme Court of frivolous submissions, some of which may
be intended to nullify proceedings or the due process of law and may lead to delays such
as may in fact amount to denial of justice.
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Articles 106, 102, 126 of 1969 constitution: have been repeated over the years. Supreme
Court also admit that it is true that some people are able to wrap up ordinary case to make
it look like a constitutional issue. Over time, since Maikankan case, attempt by framers
to allow judges to dodge constitutional issues have progressively failed.
Edusei Case
Awoonor Williams v. Gbedemah
Captan v. AG
Benneh case
Ex parte Adu Gyamfi
Shalabi v. AG
Edusei v. Attorney General

Effect of Articles 33(1)57, 130(1) and 140(2) of 1992 constitution was to vest in High
58 59
Court, as a Court of first instance an exclusive jurisdiction in the enforcement of the

fundamental human rights and freedoms of the individual. The Supreme Court has
only appellate jurisdiction in such matters.
The Supreme Court’s view was that it was a human rights issue and the place to
take the matter was the High Court and he could not wrap it up to make it seem
that it was a matter of interpretation.
Facts: Before the coming into force of 1992 constitution, certain persons including
plaintiff, Ghana citizen alleged to have engaged in espionage activities on behalf of U.S.
were allowed to leave for U.S. under an agreement between Ghana and U.S. Plaintiff’s
Ghana passport was seized. In 1994, plaintiff wishing to return home wrote the Minister
of Foreign Affairs for return of passport to enable him apply for new one. There was no
reply, consequently plaintiff brought an action in Supreme Court for declaration that
Minister’s wide discretionary powers were inconsistent with letter and spirit of
Articles 17 & 21 of the constitution, thus void and unenforceable and that as a citizen of
Ghana by birth, he had constitutional right to enter and leave Ghana and a passport to
enable him exercise and enjoy that right.
57
Article 33(1): 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.
58
Article 130(1):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; and
(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 given by law or under this constitution
59
) Article 140(2): The High Court shall have jurisdiction to enforce the fundamental human rights and
freedoms guaranteed by this constitution.
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Held: Dismissing plaintiff’s action for want of jurisdiction, effect of Articles 33(1),
130(1) and 140(2) of 1992 constitution was to vest in High Court, as a Court of first
instance an exclusive jurisdiction in the enforcement of the fundamental human rights
and freedoms of the individual. The Supreme Court has only appellate jurisdiction in
such matters. It has no concurrent jurisdiction with the High Court in the enforcement of
fundamental human rights contained in Chapter 5, article 20-30 of the constitution.
Awoonor-Williams v. Gbedemah (Constitutionalism, Separation of Powers)

Facts: The parties were both candidates at the Keta Constituency in the General Elections
held in the country on 29th Augast, 1969. The defendant polled more votes than the
defendant and a third candidate who also contested the seat in the constituency.
Defendant was accordingly duly elected to the National Assembly, sworn in and
thereafter he took his seat as an M.P.
On 9th October 1969, the plaintiff took out against the defendant a writ seeking a
declaration that by reason of Art. 71 (2) (b) (11) and (d) of the Constitution 1969, the
defendant is not qualified to be a member of the National Assembly and an injunction
restraining him from taking his seat.
The Jiagge Assets Commission set up by the NLC had reported on the defendant as
follows:
“The Commission finds as a fact that during his term of office, Mr. Gbedemah over-
expended the sum of 17,109 pounds. The Commission holds that the over expenditure
was financed from unlawful income. The Commission recommends that the unlawful
income be consolidated to the State.”
The particular provision invoked against the defendant was Article 71(2) which read as
follows;
“(2) No person shall be qualified to be a member of the National Assembly who…
b.) has been adjudged or otherwise declared.
i.) Bankrupt under any law in force in Ghana and has not been discharged; or
ii) by the report of a Commission of Enquiry to be incompetent to hold public office or
that while a public officer he acquired assets unlawfully, or defrauded the state, or
misused or abused his office or willfully acted in a manner prejudicial to the interests of
the state, or
111.) To be of unsound mind or is detained as a criminal lunatic under any law in force in
Ghana.
Holding:
The Supreme Court in a majority decision held that the defendant was caught squarely by
the provision, noting that the findings of a Commission of Enquiry were not subject to a
review by the superior courts of judicature under the constitution. Accordingly, the
plaintiff succeeded in his action.
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Captan v. Minister of Interior (Citizenship)

Facts: Plaintiff claims a declaration that he’s a citizen of Ghana by naturalization and
can’t be asked to leave Ghana and entitled to be issued with a certificate of naturalization.
Defendant denies, by virtue of paragraph 6 of Ghana Nationality Decree, 1967 (NLCD
191), that the plaintiff is a Ghana citizen by naturalization and therefore denies that the
withdrawal of the plaintiff’s residence permit by defendant is a violation of the plaintiff’s
right of immunity.
Plaintiff had applied for naturalization in July 1968. It had been approved and
he’d sworn the oath of allegiance, and he was told he’d become a citizen of Ghana only
when a certificate remained on the file of the Minister of Interior as plaintiff had not
produced the Presidential Decree asked for.
-NLCD 191 had set out these necessary requirements for qualification for naturalization
as a Ghana citizen. Thus plaintiff’s permit was not revoked on the 19th of September 1969
and the Presidential Decree was issued 26th November, 1969.
Held: The issuing of a certificate is a very necessary prerequisite to naturalization and
once this had not been issued, it lies at the discretion of the Executive to decide whether
they would issue it or not. Plaintiff is thus not a Ghanaian citizen and must deport
forthwith.
Court said that there’s a very loose sense in which it can be said that most
decisions taken by ministers in the day to day performance of their ministerial duties
involve the exercise of some of discretion but can it be seriously argued that minister
must comply with Article 173 which laid down the guidelines of discretionary power?
Government could hardly govern if this were so. Memorandum of Article 173 show
clearly that the sort of discretionary power contemplated by 173 are those that arise when
Legislature/Executive constitutes an administrative agency or some other authority with
power to adjudicate quasi-judicially on administrative matters or with power of
legislation delegated to it.
Comments: Court’s argument about scope of 173 can’t stand analysis. Memorandum
relied on appear to support more an expansive construction of 173 than the restrictive one
given by the Court. It said, “This in our view will make it possible for the courts to
determine not only the limits of the exercise of discretionary power but also to the
reasonableness of it and whether the power so vested has been used in good faith.” By the
court’s restrictive interpretation, another round was lost in the battle for an expansive
view of the power of Judicial Review under the 1969 constitution.
Shalabi v. Attorney General

Facts: The plaintiffs, formerly of British nationality, took out a writ of declaration that
they were Ghanaian citizens and therefore entitled to operate a transport business
notwithstanding the provisions of the Ghanaian Business (Promotion) Act 1972 (Act
334). They had obtained Ghanaian passports in 1968 by virtue of N.L.C.D 191 Paragraph
1. For the Attorney General it was submitted inter alia that the N.L.C, being the sovereign
body of the land could do whatever it liked, including depriving persons of their
citizenship, and that by N.L.C.D 333, paragraph 1 of N.L.C.D 191 had been obliterated
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by retrospective substitution and consequently every person who acquired citizenship

under N.L.C.D 191 ought to be deemed never to have acquired such citizenship.
Issues:
1.) Whether the N.L.C. as a sovereign body could legislate to take citizenship away from
persons who had acquired citizenship under a different statute.
2.) Whether N.L.C.D 333 could obliterate N.L.C.D. 191 by retrospective substitution.
Held:
i.) The N.L.C. as a constitutional interim government has as its object according to the
Proclamation to uphold the suspended constitution, excepting for as it had to derogate
from it under the doctrine of necessity, thus re-establishing the rule of law and other
democratic principles.
ii.) By the declaration, 1966, the NLC was established to provide for the “proper
administration of the country” and this did not include depriving Ghanaians of their basic
right of citizenship.
iii.) Citizenship once conferred can be lost through processes specifically stated in the
instrument conferring that citizenship and not by ambiguity.
iv.) It was impossible for N.L.C.D. 191 to have been amended by N.L.C.D 333 unless
N.L.C.D. 191 was in existence before N.L.C.D. 333
-By Article 5 and 6 of the 1969 constitution, the plaintiffs remained Ghanaian citizens.
Benneh v. AG
Facts: In pursuant of the entry of judgment, the second respondent caused a writ to issue
to attach the appellant’s properties. The entry of judgment purported to be pursuant to the
provisions of the Inv. And Forfeiture Assets (further implementation of Committee’s
findings No. 3 Decree, 1969 (NLCD 400). Appellant issued writ of summons in the High
Court under the constitution 1969, Article 28, for an order of injunction to restrain the
respondents from executing.
Basis of Claim: NLCD 400 was repugnant to 1969 constitution, Articles 12
and 18 and therefore void by virtue of 1(2). Aboagye J. dismissed claim that Supreme
Court was the proper forum to pursue it. Appellants appealed contending that action
could be brought under Article 28 and that the Supreme Court’s original jurisdiction
existed concurrently with the original jurisdiction of the High Court. Appellant therefore
had a choice presenting his case either before the High Court or Supreme Court.
Held: Where in an action before the High Court, any issue arises as to whether an
enactment is inconsistent with the Court, the judge may refer to Supreme Court. In the
instant case, the legal position was different in the sense that the nature of the
constitutional issue for determination related to the interpretation of a decree which was
alleged to be in contravention with the property rights conferred on the appellant under
Articles 12 and 18 and as such the Supreme Court did not have any jurisdiction in the
matter. Its jurisdiction could only arise in its appellate capacity and the question of
reference therefore did not rise.
Significantly and in line with the approach to constitutional litigation, it is noticed
that the majority opinion considered the litigation as raising purely a problem of statutory
interpretation. Here, the court took its role, showed some awareness of some other
competing institutional and social interests involved and the role of other interests in
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constitutional litigation. The majority opinion made it unmistakably clear that where the
Legislature takes steps to establish probity in public life, and the constitution contains
provisions assigned to the same end, the function of the judiciary will be to lend a helping
hand by putting liberal construction on the enactment to achieve this end.
NLCD 400 was promulgated to implement the findings of commissions and to
provide a convenient machinery for getting in, assets and money found to be unlawfully
acquired and so these assets had become vested in the state before the promulgation of
NLCD 4000 and so didn’t usurp judicial power. It was merely designed to bring in what
had already been effectively vested in the state.
They however seemed to be of the view that questions of interpretation would
have had to be referred to the Supreme Court even where the High Court was acting
under Article 28. Judges considered their role, when called upon to exercise their power
of judicial review as merely involving delving into the intricacies of statutory
interpretation. Court appeared to give some role to other broad policy considerations.
Republic v. Boateng; Ex parte Adu-Gyamfi

Facts: The applicant applied for prohibition and an injunction in the nature of quo
warranto to restrain the respondent from exercising the functions of the Chief of Akwatia.
In opposing the application, the respondent swore to an affidavit that he had been
customarily elected as a chief of Akwatia and that his election had been approved by the
Akim Abuakwa Traditional Council. He also argued that since the subject-matter of the
application was a cause or matter affecting chieftaincy, the court had no jurisdiction to
hear it under Pragraph 66 of the Courts Decree, 1966 (NLCD 84).
Held: The trial judge, Hayfron-Benjamin J (as he then was), refused the application for
prohibition but granted an order of quo warranto to restrain the respondent from acting as
a chief.
In granting the application, his Lordship did not raise and therefore did not
consider the issue of whether or not the office of a chief is one created by statute – an
essential requirement for a grant of quo warranto. The order was made on the grounds
That chieftaincy was a public institution guaranteed under the 1969 constitution, Article
153 which provided:
“The institution of chieftaincy together with its Traditional Councils established by
customary law and usage is hereby guaranteed.”
Since by the constitutional provision, chieftaincy was and is not an office created by
statute but one “established by customary law and usage,” it is not an office amenable to
the order of quo warranto. His lordship Hayfron Benjamin was wrong in granting the
application.
-In ex parte Adu Gyamfi and Shalabi v. Ag - two high court judges - introduced
‘applied’ and it was in their view that it is only when it is an enforcement or interpretation
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issue that should go to Supreme Court. Distinction they were trying to draw between
‘applying’ and ‘enforcing’ is not easy to see.
-Article 2, 4, 114 and 118 of 1979 constitution; could also, always add the preambles.
-To address our current situation, we go to Justice Sowah on what he says in Page 647 of
Tuffuor v. AG. He says “A written constitution such as ours is not a written Act of
Parliament.” When a court exercising power of judicial review, has to remind itself that
not an Act of Parliament so techniques used there will not be useful here.
-Opportunity for raising constitutional issues:
Apart from the constitution as a whole, the core of the power is to be found in Articles
2 and 130 of the constitution.
Article 2
(2): The Supreme Court shall, for the purposes of a declaration under Clause (1) of this
article, make such orders and give such directions as it may consider appropriate for
giving effect, or enabling effect to be given, to the declaration so made.
(3): Any person or group of persons to whom an order or direction is addressed under
Clause (2) of this Article by the Supreme Court, shall duly obey and carry out the terms
of the order or direction.
(4) Failure to obey or carry out the terms of an order or direction made or given under
Clause (2) of this article constitutes a high crime under this constitution and shall, in the
case of the President or the vice-president, constitute a ground for removal from office
under this constitution.
(5) A person convicted of a high crime under Clause 4 of this Article shall –
(a) Be liable to imprisonment not exceeding ten years without the option of a fine; and
(b) not be eligible for election, or for appointment, to any public office for ten years
beginning with the date of the expiration of the term of imprisonment.
Article 130
(1) 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; and
(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.
(2) Where an issue that relates to a matter or question referred to in Clause (1) of this
article arises in any proceedings in a court other than the Supreme Court, that court shall
stay the proceedings and refer the question of law involved to the Supreme Court for
determination; and the court in which the question arose shall dispose of the case in
accordance with the decision of the Supreme Court.
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-The ‘spirit’ that Justice Sowah talks about is scattered all over the document. It is the
kind of impression – Section 37, 299 of Transitional Provisions (Indemnity Clauses).
We want stability, we want justice, but we also want sleeping dogs to lie.
The ways in which constitutional issue can arise in our current constitutional
arrangement,
i.) Invoke the original jurisdiction of the Supreme Court in Articles 2 and 130.
ii.) Refer constitutional issue from lower to supreme court – Clause 2 of Article 130.
There, constitutional issue arises as a collateral issue. We need to deal with constitutional
issue in order for main issue to be addressed.
iii.) Following decision in Maikankan, following from decision in lower court, appealing
after interpretation by lower court, you do not agree with it.
iv.) As a human rights issue – Clause 1 of Article 33. In some cases, the Supreme Court
can exercise jurisdiction in human rights matters.
One of interesting issues at the moment is Article 2060 of the Constitution, especially
with regards to land law. Is Article 20 (talking about compulsory acquisition) to be
applied retrospectively or come into play as of 7th January 1993 when constitution came
into play?
Article 20 takes effect from 7th January 1993 so has nothing to do with acquisition from
before.
Article 11 (The Laws of Ghana): Says that the existing law may be construed or
modified etc. to bring into conformity with legislation.
Ex parte Ofosu Amaah
27.) Republic v. Military Tribunal, Ex parte Ofosu Amaah

Facts: It is provided by the Criminal Code 1960 (Act 29) Section 24(2) that any court
having jurisdiction to try a person for a crime shall have jurisdiction to try a person(s)
charged with conspiracy to commit/abet that crime.
The appellants were convicted by a military tribunal established under the
subversion decree 72 (NRCD 90) of the offences of conspiracy to commit subversion,
contrary to the Criminal Code 1960 (Article 2, Section 23(1)) and NRCD 90 Section 1(a)
–subversion and concealment of subversion. They were each sentenced in accordance
with Section (2)(a) of that Decree to suffer death by shooting by firing squad. The
appellants obtained leave of the High Court for the issue of an order of certiorari to quash
the conviction on grounds that the offence of conspiracy to commit subversion didn’t
exist in NRCD 90 Section 1(a) and that the military tribunal convened under the former
could only try offences created by that Decree. The High Court dismissed the application
while it held on construction Section 6(1) of NRCD 90 incorporated all the provisions
and therefore a military tribunal established under NRCD 90 had jurisdiction to apply Act
29 incorporated generally. Appellants on July 23, 1973 appealed to Court of Appeal
against the dismissal of the application for certiorari.
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Protection from deprivation of property
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Counsel for appellant argued that the prosecution were not entitled to bring the
conspiracy charge against the appellants since a military tribunal established under
NRCD 90 wasn’t a court within the meaning of Act 29 Section 24(2) and that the offence
of conspiracy to commit subversion didn’t exist in NRCD 90 Section (1)(a) and that a
military tribunal concerned under NRCD 90 could only try offences created by that
Decree.
Held: The provisions mentioned were of general application and applied to every offence
created by the enactment. Consequently, by virtue of those provisions, the prosecution
could add a conspiracy charge to any offence and jurisdiction was given to any court to
try a conspiracy charge so long as the court had jurisdiction to try the substantive offence
on which the said conspiracy charge was based. The words “notwithstanding any law to
the contrary” preceding Section 1 of NRCD 90 were not intended to exclude any
particular enactment. All that these words meant was that even if the conduct, acts,
omissions listed under the said Section might not be regarded as offences under the
existing law, they should nevertheless be regarded as offences punishable under the
Decree Article 11(6) of the 1992 constitution.
Who has the capacity to raise these constitutional issues?

Supreme Court says that the only capacity you need to raise this issue is that you are a
citizen of Ghana. In C.I.B.A. case (NPP v. Attorney General), Supreme Court expanded
the meaning of both artificial and natural persons. Non-nationals may also have capacity.
New Patriotic Party v. Attorney General (CIBA Case)

Facts: Plaintiff, a political party, registered as a body corporate, brought the instant
action in the Superior Court under Article 2(1) of the 1992 Constitution61 for a
declaration that the Council of Indigenous Business Association Law, 1993, (CIBA)
was inconsistent and in contravention of the constitution and to such inconsistency
PNDCL 312 was void. Attorney General, defendant, raised a preliminary legal objection
to the capacity of the plaintiff to bring the action under Article 2(1) because only natural
persons had the capacity to bring an action under Article 2(1).
Held: Dismissing the preliminary legal objection that all classes of people (including
natural persons and corporate bodies had capacity to bring an action in the Supreme
Court for enforcement of the 1992 constitution under 2(1). Since rights and freedoms can
be enjoyed by both natural as well as legal persons under the Constitution, the duty to
defend same through the enforcement procedure under Article 2(1) should be assured to
all classes – natural or legal.
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Article 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.
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Controversies with principles supposed to guide judges, a big issue will be –what do we
do if they misuse their power?
Removal. Removal process is easy if dealing with a judge but what if one is dealing with
a settled majority intent on wreaking harm and havoc on the language of the constitution?
What would be the grounds?
-Infirmity of body and mind
-Incompetence
Constitution does not mean what you and I say it means but what 5 judges sitting on
Supreme Court says it means.
Grounds for removal? Is the judge approaching the matter mechanically or from a
philosophical approach?
It is not until the Benneh case where you see judges moving from precedents and saying
that they want to see certain values dominating the society so even if you say it is
violating Mr. Benneh’s property rights, these confiscations are for the greater good.
Citizenship
Facilities and protection of a state tend to be available to those for whom the state is
responsible – its citizens. Sometimes, by saying that you are a citizen of a country can
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strike some fear etc. and influence the way you are treated – matter treated carefully. At
height of Roman empire, saying “I am a Roman citizen” was a powerful statement.
People need entry permits if they are not nationals. Non-nationals are subjected to all
kinds of work restrictions. They need a work permit to work legitimately and even when
they have, some areas of work are closed to them because only nationals are allowed.
Our nationality law has been influenced to some extent by the open door policy which
our political leaders have followed, especially towards dark-skinned people. There are
many people who employ Togolese, Malians, Nigeriens without work permit, resident
permit and over time, they even vote. There is a problem if you are not dark skinned.
Because of this open door policy, question of who is a Ghanaian can become additionally
difficult, and worse in the border areas. Generally speaking, nationality law based on 2
principles,
Principle of Descent (Jus Sanguinens) – Show that you have a blood relation with
someone
Principle of Place of Birth (Jus Soli)
Our nationality law over the years has relied on mixture of descent and place of birth.
Generally speaking, rules discriminate against those born outside Ghana but of Ghana
descent. They are required to do more to establish their Ghanaianess. Fact of being born
on Ghanaian soil is of no consequence to our Ghana law. If born on Ghana soil to
Mongolian parents, you can live up to a 100 years and still be Mongolians. There are 2
exceptions
Adoption: If a Ghanaian adopts a non-Ghanaian child, the child becomes Ghanaian.
Or, a child under 7 years of age found in Ghana and is of unknown parentage becomes
Ghanaian. They are called foundlings. If one is born on an aircraft taxing on Kotoka
Airport, one is not a Ghanaian citizen. The same applies to a ship etc.
Section 24(3), Act 591

For the purposes of this Act, a person born aboard a registered ship or aircraft or
aboard an unregistered ship or aircraft of the government of any country, shall be
deemed to have been born in the place in which the ship or aircraft was registered
or in that country.
The concept of Ghanaian is only about 48 years old (1957-2005). This affects our
nationality because the way our laws are crafted, you are a Ghanaian because you belong
to one of ethnic groups that comprise Ghana.
Ethnic groups straddle more than one country. Example Mossi are in Ghana and
Burkina Faso, Yendi used to be in the Trans Volta Togoland etc. Our citizenship laws
have been affected by the fact that we were once a British colony.
Our law recognizes 3 categories of nationals,

Ghanaians by birth
Ghanaians by naturalization
Ghanaians by registration
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Highest nationality group is Ghanaians by birth but it is harder to prove that you are a
Ghanaian as opposed to the other 2 groups, who only have to submit their documents.
If you are on ‘French’ side of Mossi, prima facie, not a Ghanaian, though tribe found in
both countries.
In some countries, a child born out of wedlock cannot acquire the nationality of
either party unless they subsequent to the birth, were married. In some countries, only
one parent can transmit the nationality – and usually the male parent. For us, either parent
can transmit nationality and they don’t have to marry if born out of wedlock.
Over the years, our laws have also accorded nationality to marriage. We shut the
door if marriage is potentially polygamous. It should have been contracted through a
monogamous system of marriage. In case of a man, it is not enough that it is
monogamous but the marriage should have existed for at least 5 years prior to application
for citizenship.
For a long time, our law did not allow dual nationality and if you contracted nationality
of another country, you automatically lost your Ghanaian nationality. Since the passage of
Act 591 (The Citizenship Act), we have tried to change these rules slightly.
Section 16 (Dual Citizenship)

(1.) A citizen of Ghana may hold the citizenship of any other country in addition to
his citizenship of Ghana.
A Ghanaian may hold nationality with that of some other country. Problem is there is a
long list of posts that you cannot hold due to this dual citizenship.
Another problem is what to do with those that lost their nationality before Act 591
was passed. That question has not yet been answered.
The only time that our law allows dual nationality in the past was for children.
Child could keep nationality until age of majority, and then had to file a formal
declaration that renounced the other citizenship, or automatically lost Ghanaian
citizenship.
Our current law is found in Citizenship Act 2000, Act 591. When that law was being
drafted, the only risk in simplification was that people who could not claim Ghanaian
citizenship could come in.
Section 24(2)
A reference in this Act to Ghana in relation to a birth or residence before 6th March
1957 shall be read as a reference to the territories comprised in Ghana on that date.
Nationality Act of 1957: It came into force on 11th May, 1957. At the time of
independence, all our people were British nationals having British passports. To allow for
smooth transition, they were given time between 6th March and 11th May to make up mind
what nationality they wanted to have.
-Ghana Nationality Act of 1961: Only exception was introduction of Commonwealth
status so that if citizen of commonwealth country, citizen of Ghana.
-NLCD 191 (Ghana Nationality Decree 1967): Amended by the National Amendment
Decree NLCD 333: Gave rise to the Shalabi v. Attorney General dispute.
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-Ghana Nationality Act 1971 (Act 361): Was amended by NRCD 134.
-In Shalabi judgment, High Court judge said citizenship was so important that it could
not be lost by operation of law and could only be lost by law.
NRCD 134 provided
1.) The basis for determining Ghanaian nationality was in Act 361
2.) If in Act 361 you are not a Ghanaian, you are not a Ghanaian unless Court of law has
pronounced that you are a Ghanaian. Shalabi was deemed to be a Ghanaian because
Court declared him a Ghanaian.
PNDCL 42 (Section 51(2))

-Part 1 (from Sections 3 onwards tells us different categorizations of citizenship.
-Effective day of naturalization is the date when you take the oath of allegiance.
-Date of registration is the date of certificate but with naturalization, it is date when you
take your oath of allegiance.
There are provisions for loss of nationality in Act 591

-Death
-Renunciation
-Order of High Court upon application by Attorney General
-As far as posthumous children concerned, provisions in Section 19. If at time of father’s
death he was a Ghanaian, then you are a Ghanaian
Section 19: Posthumous Children

A reference in this Act to the citizenship status of the parent of a person at the time
of the birth of that person shall, in relation to a person born after the death of the
parent, be construed as a reference to the citizenship status of the parent at the time
of the parent’s death.
Olympio v. Commissioner For The Interior (Citizenship)

Facts: By his writ of summons issued out of the High Court, the plaintiff claims a
declaration that he’s a citizen of Ghana by descent and cannot lawfully be deported from
or asked to leave Ghana and further that he requires no permission from the defendants or
from any other body to stay in Ghana. His claim was founded on Paragraph 2(i)(b) of
the Ghana Nationality Decree (NLCD 191). Plaintiff contended that his parents and his
grandmother were born in the Volta Region of Ghana.
Held: The plaintiff succeeded on his claims and his declaration was upheld.
Ratio Decidendi: By Section 4(1) of the 1957 Act, the plaintiff’s father was a British
protected person. Thus under Paragraph 1(a) of NLCD 191, plaintiff’s father was a
citizen of Ghana (born in Kpando). That the plaintiff’s mother was born at Keta whose
mother was also from Keta, for all purposes under the British Nationality Act 1949, the
Ghana Nationality Act 1957 and NLCD 191 Paragraph 1(a) she was a Ghanaian by birth.
-Prior to the advent of British rule in the mandated territory of British Togoland, Kpando,
Peki, etc, which are now towns in Ghana were all under the German administration. With
the advent of British rule over part of Togoland, which included Peki and Kpando, that
part of Togo became a protected territory and persons born in those areas became persons
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described as British protected persons. Ghana now embraces the former British Togoland
thus Kpando and Peki are now towns in Ghana that are in the Volta Region.
Structure of National Constitution
The constitution has established a limited government – constitutional government. One

of the most important locks of limitation on governmental activity are the rights of the
individual, and in the enforcement of these rights, we determine relationship under the
constitution between the government and those that are governed. Rights have been
protected over the course of the evolution of the constitution,
1.) Through operation of ordinary law
2.) Through constitutive instruments (Bond of 1844, which contained some provision on
rights, Independence and Republican constitutions).
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The Republican constitution is not affected by decision in Akoto case. Dispute is about
enforcement under the 1st Republican constitution. Court said the courts are not designed
as forum for the enforcement of rights.
-Section 13(1) containing human rights provisions, not disputed. 2nd Republican
constitution contained far more elaborate provisions. During those periods, rights were
better protected than other periods where rights were a function of regular law. From
1957-1969, it was protected by regular law. From1972-1979 (24th September), again, it
was protected through regular law. Between 31st December 1981 and 7th January, 1993
again, it was protected by regular law only. So we have been moving by protection
through regular law and regular law reinforced by constitutive instruments.
Throughout period of different military regime in Nigeria, human rights provisions

remained operational and that is why you see decisions such as that in the Lakkami case.
During period of military rule in Nigeria, there was far more litigation over human rights
than we have in Ghana, and you see more of a willingness by them to have scrutiny over
human rights. One has to keep in mind four important elements of current dogma on
human rights. This dogma was reaffirmed in Vienna by the international community, in
1993.
According to this, human rights are
a.) Universal
b.) Interrelated
c.) Interdependent
d.) Indivisible
When we say universal, principles of human rights are the same throughout the world.
This creates problems because it may not make sense to put on woolen dress in hot
country. If we say everyone has right to clothing, it does not mean that we all have to
dress in clothes of the same thickness. In the implementation, we can differ. It can take
account of our cultures but the principle is the same throughout the world. We can say
that every human being’s person is protected against violation, and torture is prohibited.
When we say interrelated, interdependent, and universal, it was to mask lie in teachings
of communism that thought they were posing serious questions like, ‘What is right of free
speech to angry person?’ Which situation would you prefer to be in – to be hungry and be
able to say you are hungry, or be hungry and not be able to say you are hungry?’
Someone who has surplus food may hear and give food to you instead of throwing away.
So they are interdependent, interrelated, and to try and separate them is futile.
There is parity among the rights. There is no hierarchy.

In Chapter 5, “Fundamental Human Rights and Freedoms,” there is parity among all
the rights. If you look at our constitution, also, there is also the tendency to assume that
the provision in the constitution is to be found in a particular chapter. This cannot be
correct. They are scattered throughout the document. If you want to find out about right
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to vote and be voted for, it is in Article 42 (Chapter 7).62 You must not concentrate on
Chapters 563 and 664 only when talking about rights in the constitution.
Human rights are not only about political government – but effective management,
distribution of resources, and it is scattered in other parts of the document. The
constitution provides for individual human rights and group rights, civil and political
rights, social and cultural rights, so whole range of categorization of rights in
contemporary world, you will find in our constitution. Some is set in the preamble, which
reflects our interest to the protection and promotion of rights.
Chapters 5 and 6 contains a chunk of substantive rights but do not provide the
totality.
In Article 1265, there are a number of conclusions we can draw,
1.) Tells us that the human rights have not been granted by anybody. It talks about rights
and freedoms enshrined. It is not claiming to be the reason why we have these rights.
Article 12 tells us that rights guaranteed by constitution. They are not granted by
government, by Republic of Ghana.
2.) Article 12 tells us that the rights and fluid and dynamic and not static or
absolute. If you look at Clause 2,66 says we have all rights contained but subject to
rights and freedoms of others etc.
-Clause 5 of Article 3367 tells you that what is listed is not intended to be exhaustive.
-Whatever is settled as human rights at that point protected by Article 5.
3.) The rights are enforceable but if you look at Clause 2 of Article 1268 our constitution,
no right is absolute, not even the right to life. It is not part of international human rights
law that you should not have death penalty. Article 12 of our constitution says that the
conception of rights which emanates in constitution is not absolute and subject to
limitations. Article 12 tells us 2 instances in which may be limited.
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Article 42 (Right to Vote)
Every citizen of Ghana of eighteen years of age or above and of sound mind has the right to vote and is
entitled to be registered as a voter for the purposes of public elections and referenda.
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Chapter 5: Fundamental Human Rights and Freedoms
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Chapter 6: The Directive Principles of State Policy
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Article 12: Protection of Fundamental Human Rights and Freedoms
66
Article 12(2): Every person in Ghana, whatever his race, place of origin, political opinion, color,
religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual
contained in this Chapter but subject to respect for the rights and freedoms of others and for the public
interest.
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Article 33(5): The rights, duties, declarations and guarantees relating to the fundamental human rights
and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not
specifically mentioned which are considered to be inherent in a democracy and intended to secure the
freedom and dignity of man.
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Article 12(2): Every person in Ghana, whatever his race, place of origin, political opinion, color,
religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual
contained in this Chapter but subject to respect for the rights and freedoms of others and for the public
interest.
Chapter Six: The Directive Principles of State Policy
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1.) Respect for public interest

2.) Respect for the rights of others
If you compare Article 3469 which commences Chapter 6, with Article 1270 which
commences Chapter 5, there are differences in wording. Enforceable in their own rights
or by virtue of articles 1 and 2.
-Article 2 says that if you think any action is in contravention with any provision, you
can go to Supreme Court.
-Article 12 also shows us that the rights protected by the constitution are limitations not
only on government’s action but also on actions of other human beings.
-The state remains the main guarantee of the rights.
-The state may indeed violate our rights but also, may be endangered by fellow human
beings. Constitution contains some innovations as far as protection of human rights
through the constitution concerned such as in Article 26 for example;
Article 26: Cultural Rights and Practices

(1) Every person is entitled to enjoy, practice, profess, maintain and promote any
culture, language, tradition, or religion subject to the provisions of this constitution.
This is where opponents of the trokosi system etc. ran into difficulties. If you want to do
something about it, have to go to Clause 2 of Article 26
Article 26(2)
All customary practices which dehumanize or are injurious to the physical and
mental well being of a person are prohibited.
Article 27: Women’s Rights

(1) Special care shall be accorded to mothers during a reasonable period before and
after child birth, and during those periods working mothers should be accorded
paid leave.”
Article 27(2)
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Article 34:
(1.) 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.
(2.) The President shall report to Parliament at least once a year all the steps taken to ensure the realization
of the policy objectives contained in this Chapter; and, in particular, the realization of basic human rights, a
healthy economy, the right to work, the right to good health care and the right to education.
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Article 12: Protection of Fundamental Human Rights and Freedoms
(1.) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by
the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where
applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as
provided in this Constitution
(2.) Every person in Ghana whatever his race, place of origin, political opinion, color, religion, creed or
gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this
Chapter but subject to respect for the rights and freedoms of others and for the public interest.
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Facilities shall be provided for the care of children below school-going age to enable
women, who have the traditional care for children, realize their full potential.
Article 28: Children’s Rights
Article 29(6)
As far as practicable, every place to which the public have access shall have
appropriate facilities for disabled persons.
We still use the term ‘disability’ in the constitution when in human rights, we are using
the word ‘challenged.’
Among innovations, look at Section 30 –in relation to beliefs of Jehovah’s witnesses.

Section 30: Rights of The Sick
A person who by reason of sickness or any other cause is unable to give his consent
shall not be deprived by any other person of medical treatment, education, or any
other social or economic benefit by reason only of religious or other beliefs.
Article 2271 (Property Rights of Spouses) transforms some family law issues into
constitutional law.
-Today, a man cannot make a will disentitling his wife. Court will determine what the
woman is entitled to before the will takes effect – Clause 1 of Article 22.
There are some traditional rights – Articles 1372, 1473, 1574

We can ask in case of Article1575, what is “cruel, inhumane or degrading punishment or
treatment?”
It is a problem because we have encountered in Article 17 in Rule of law –“All persons
shall be equal.” What does that mean?
Article 19: Fair Trial

Provision which seeks to deal with fair trial – rule against self-incrimination, against
double jeopardy, proceedings should be public and in front of accused person, person
should be brought before court within 48 hours or granted bail etc.
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Article 22: Property Rights of Spouses
(1.) A spouse shall not be deprived of a reasonable provision out of the estate of a spouse whether or not the
spouse died having made a will.
0(2.) Parliament shall, as soon as practicable after the coming in force of this Constitution, enact legislation
regulating the property rights of spouses.
(3.) With a view to achieving the full realization of the rights referred to in Clause (2) of this article –
(a.) Spouses shall have equal access to property jointly acquired during marriage
(b.) Assets which are jointly acquired during marriage shall be distributed equitably between the spouses
upon dissolution of the marriage.
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Article 13: Protection of Right to Life
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Article 14: Protection of Personal Liberty
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Article 15: Respect for Human Dignity
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Article 15(2): No person shall, whether or not he is arrested, restricted or detained, be subjected to –
(a.) torture or other cruel, inhuman or degrading treatment or punishment.
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-Rule against double jeopardy – should not be subjected to trial more than once.
3 exceptions – Clause 16(b) of Article 19 etc.
Article 19: Fair Trial
19 (16): Nothing in, or done under the authority of, any law shall be held to be
inconsistent with, or in contravention of, the following provisions –
(b.) Clause (7) of this article, to the extent that the law in question authorizes a court
to try a member of a disciplined force for a criminal offence notwithstanding any
trial and conviction or acquittal of that member under the disciplinary law of the
force, except that any court which tries that member and convicts him shall, in
sentencing him to any punishment, take into account any punishment imposed on
him under that disciplinary law.
-Article 19 – Fair trial rules

Article 21 (General Fundamental Freedoms), especially Clause 1
-Read with Chapter 12 of the constitution, together with NPP v. GBC
N.P.P. v. G.B.C. (Case under 1992 constitution)

Facts: Plaintiff, a political party sought a declaration from the Supreme Court in the
exercise of its original jurisdiction, that,
a.) By virtue of Article 16376 and 55(ii) of the 1992 constitution, the G.B.C, as one of
the state owned media, had a duty to afford the N.P.P. fair opportunities and facilities for
presentation of their views especially where they were divergent from those of the
government and,
b.) The refusal of the G.B.C. to afford them equal time on TV to present their views on
the 1993 budget was a violation and contravention of the constitution.
Held: Article 163 of 1992 constitution, mandatorily requires the G.B.C. to afford the
plaintiff fair opportunities for presentation of their divergent views and dissenting
opinions and that the defendants had no discretion in the matter.
Also, that the alleged right to withhold information constituted an
interference with the freedom of the people and a violation of Articles 21(1)(f)77 and
Article 163 of the 1992 constitution.
When you read Article 21, 1(d), freedom of assembly including right to take part in
demonstrations.
NPP v. IGP
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Article 163: All state owned media shall afford fair opportunities and facilities for the presentation of
divergent views and dissenting opinions.
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Article 21(1)(f): All persons shall have the right to information, subject to such qualifications and laws as
are necessary in a democratic society.
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Before 7th January 1993, if you wanted to take part in a demonstration, you needed a
police permit. It was ruled unconstitutional. Act 491 was passed so that you give police 5
days notice so you can organize protection for you and protection for others.
-Machinery and Strategy for realization of these rights. 2 strategies,
a.) Promotion
b.) Enforcement
-Different institutions have been given different roles so for promotion, CHRAJ, NCCE,
Media Commission.
-Enforcement: High Court, CHRAJ, National Media Commission.
-Promotion covers everything – Education, Seminars, Workshops, Advocacy etc.
c.) Duties of State: (Articles 35-39)
Duties of the individual (Article 41)
Framers averted their mind as to what to do in emergency.

Articles 31 (Emergency Powers) and 32 (Persons Detained Under Emergency Law)78
Dagbon crisis has demonstrated ineffectiveness of these measures so we see government
going back each time to Parliament for periodic renewals of state of emergency.
-Sections 3479, 3580 and 3781 of Transitional Provisions seem to negate the values
underpinning the provisions on rights and to the extent that they seem to establish regime
of impunity, seem to be contrary to human rights.
The Electoral Process In Ghana
We look at elections as midwives to constitutional democracy. That means that we should

leave a number of considerations – transparency in electoral laws, fairness in rules
themselves, fairness in the procedures, and rules and procedures ought to be simple
enough for every member of the electorate to be guided by. How do we ensure that each
person’s vote has same weight? How do we ensure that electoral system is not beholden
to financial interests so people do not buy into office?
78
Article 32: Persons Detained Under Emergency Law
79
Section 34: Indemnity
80
Section 35: Preservation of Confiscation and Penalties Imposed by A.F.R.C. and P.N.D.C
81
Section 37: Sections Not To Be Amended
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That goes into questions of disclosure of income, public financing, participants in the
electoral process. The electoral process is intertwined with freedom of expression. That
makes the concern for inordinate influence tricky. It should be possible for me if I think
someone is best person for constituency to spend money etc. promoting that candidacy.
I should be able to print leaflets, employ assistants, to go round to persuade people.
There are different kinds of electoral systems.

1.) First Pass the Post System (Article 50) – Simple Majority. Candidate that gets the
simple majority has won the election.
2.) Proportional Representation
Advantages that different systems have over First Pass The Post is that you can easily
have one party winning 90 out of the 100 seats so strictly speaking, not representing
majority of people because votes got in area could be less than 50%.
-Advantages which proportional representation have is that the number of seats which a
party has is proportional to the amount of votes that it has. The one who gets 49% of the
votes will get a number of seats corresponding to 49%.
You may have a single constituency and party list.

Here you have a list and if they get 10 seats, they simply appoint first ten on party list,
which will usually be party leadership.
Some countries use alternate vote system. Voters are asked to cast their ballots on
preferences. If nobody wins on first preference, we go to second preference and whoever
gets majority wins.
There are also Multi-member voting districts which they accompany with party lists. The
constituency is represented by more than one member of parliament.
Most of the other systems result from a critique of the first pass the post system.
The legal framework of our elections is in Chapter 782, Act 451, Act 574 and a whole host
of instruments. In those instruments, it is a stated fact that every citizen has the right to be
registered and vote, and to be voted for.
Addy v. Electoral Commissioner
Electoral Commission cannot use administrative convenience/inconvenience to subvert
the constitution.
Article 47 (Constituencies): Formula for determining relative sizes of constituencies.

Though we have principle of 1 man 1 vote, unlike U.S, it does not mean that votes should
carry some weight.
In constitution and in the law, votes are to be counted at the polling station. You count
and declare results at each polling station.
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Chapter Seven: Representation of the People
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-Article 50: Our constitution does not allow (Clause 2)83 a person to withdraw candidacy
in Parliamentary elections within 10 days of the elections.
Elections are managed by the Electoral Commission, a 7 member society appointed by

the president. The Chairman has Court of Appeal conditions, Deputies have High Court
Judges’ conditions and members have that of Circuit Court Judge conditions (Last group
determined by the Parliamentarians).
Qualification to be a member of Electoral Commission is the same as that of member of

parliament.
Article 45: Functions of Commission84
One of the big questions is, since we started elections in 1992, massive dependence on
foreign funds. Question is whether it undermines our sovereignty as a nation. Elections
are getting more and more expensive and we are putting in less and less of our own
money, and they can dictate certain terms.
Election disputes – By petition
Presidential – Supreme Court
Parliamentary – High Court
-Supreme Court has decided that it has no jurisdiction to hear parliamentary cases from
Court of Appeal.
How elections won or lost:

Presidential – 50 + 1
Or we keep running till someone gets this
Political Parties
-Act 574, Section 33, definition of a political party.
Article 55 (Organization of political Parties): Definition of a political party.
We do not have elections for District Chief Executives. NPP committed itself to that but
has not been able to do it.
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Article 50 (Constituencies)
(2.) Where for the purposes of a public election two or more candidates are nominated but at the close of
the nominations and on the day before the election, only one candidate stands nominated, a further period
of ten days shall be allowed for nomination of other candidates, and it shall not be lawful for any person
nominated within that period of ten days to withdraw his nomination.
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Article 45 (Functions of Commission):
The Electoral Commission shall have the following functions –
(a.) To compile the register of voters and revise it as such periods as may be determined by law;
(b.) To demarcate the electoral boundaries for both national and local government elections;
(c.) To conduct and supervise all public elections and referenda
(d.) To educate the people on the electoral process and its purpose
(e.) To undertake programs for the expansion of the registration of voters; and
(f.) To perform such other functions as may be prescribed by law.
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Proceedings Involving The Republic
We are talking about non-criminal actions in which a state is a party. If the state is a party,
why is the state not treated as just a person?
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Historically, the state, our state, is a construction of the U.K. Ours is not a natural state. It
is a state that has been put together and the U.K. in constructing state apply/make
modifications. We have inherited a history of court actions in which state is a party, in
England. The state does not always apply the same rules between state and parties.
In monarchical England,
- King/Monarch can do no wrong. Monarch cannot be sued in court.
- It takes its origins from feudal England. Each member basically has his own court and
so the king/monarch has the monarchical courts.
There would have been no point to the law if the king could be sued in his own court.
That was a procedural rule. Substantive rule was that the monarch could do no wrong. If
you say matter of law that the monarch can do no wrong and if there is a procedural ban
saying monarch cannot be sued in own court, cannot ran away from fact that monarch can
commit wrong as a matter of practice.
Answer in England was to develop an administrative as opposed to a judicial
mechanism for dealing with those matters – petition of rights through Lord Chancellor
introduced 85and petitions against monarch/state subjected through this process. It was
subjected to a particular instrument – FIAT JUSTICIA. It was available for only
contractual liability of state/monarch. It was not available for torts. It was only limited to
performance of contracts entered into by states. Also, it covered recovery of land and
chattels. The petitioner was/had the character of a suppliant. Basically, you were not
asserting a right but you were begging for the state to have mercy on you and to pay you.
Because you were pleading this relief, no judgment could be given in your favor, and
there was no question of appeal.
The process produced a declaration of the rights that you are asserting. Declaration is a
non-binding relief. It proclaims whatever is being declared. The outcome of process of
petition of rights was not binding, State always performed when a declaration was made
that entitled one to relief. There was a process known as petition of rights but this
description was misleading because one had no right to a positive outcome – whole
process controlled by state and they chose to recognize or not recognize you.
Let Justice be Done (Fiat Justicia)

Thus, if Lord Chancellor denied you the fiat, that was the end of the petition. He had
come to conclusion that the case had no merit, and that was the end of the case. It
operated in England until 1948 and applied in Ghana until 1961 when we passed our
State Proceedings Act.
Act 555 (Current law is in our State Proceedings Act 1998).
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Fiat Justicia: Let Justice Be Done
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Rules are also contrived in Article 29386, Article 8887, Article 13588, Article 29389.
Article 88 particularly makes the Attorney General person responsible for instituting,
conducting and defending all non-criminal actions against the state and this explains way
in which preliminary objections dealt with in
Sallah v. AG
Tuffuor v. AG
NPP v. Rawlings
In all these cases, Attorney General objected to action being brought against him and
Supreme Court said since there is no one-sided fight in our legal system and it must be
always two sided, it must be brought against the Attorney General, and he is the nominal
defendant of the state, and he in his personal capacity had done nothing wrong. If the
state has an action against anyone, Attorney General carries it out on behalf of the state
unless by statute someone else has been mandated to do that.
Constitution also brings ours in line with decision in Nixon v. Sirica where
critical question was production of documents. Court says if it is a matter of whether the
instrument is confidential, it is the Supreme Court that determines the matter. In the U.K,
it is the same, as in the case of Conway v. Rimmer.
Conway v. Rimmer
Facts: Plaintiff, a former probationary constable began an action for malicious
prosecution against his former superintendent. On discovery of documents being sought
and the existence of 5 documents was disclosed by the defendant, admittedly relevant to
plaintiff’s action. The Secretary of State for Home Affairs objected in proper form to
production of all 5 documents on the ground that each fell within a class of documents,
the production of which would be injurious to the public interest.
Held: That the documents should be produced for inspection by the House of Lords and
that if it was then found that disclosure wasn’t prejudicial to the public interest or that any
possibility of such prejudice was insufficient to justify their being withheld, disclosure
should be not withheld. When there’s a clash between the public interest,
i.) That harm should be done to the nation or the public service by the disclosure of
certain documents and
ii.) That the administration of justice should not be frustrated by the withholding of them,
their production will not be ordered if the possible injury to the nation or the public
service is so grave that no other interest should be allowed to prevail over it.
But where the possible injury is substantially less, the court must balance against
each other the two public interests involved. When the Minister’s certificate suggests that
the document belongs to a class which ought to be held, then unless his reasons are of a
kind that judicial experience isn’t competent to weigh , the proper test is whether the
withholding of a document of that particular class is really necessary for the functioning
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Article 293: Claims Against Government
87
Article 88: The Attorney General
(5.) The Attorney General shall be responsible for the institution and conduct of all civil cases on behalf of
the state; and all civil proceedings against the state shall be instituted against the Attorney-General as
defendant.
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of the public service. If on balance, considering the likely importance of the document in
the case before it, the Court considers that it should probably be produced, it should
generally examine the document before ordering the production. In the present case, it
was improbable that any harm would be done to the police service by the disclosure of
the documents in question, which might prove vital to the litigation.
Constitution also brings the law, or repeats what has been the constitutional provision
under the 1969 and 1979 constitutions so that you can bring an action in respect of
decisions of the president but you cannot drag the president to court, and that applies to
the vice-president as well. U.S. president does not enjoy any such privilege, as seen in
Clinton’s matter. Lawyers of Clinton tried to make Supreme Court rule that while the
president is in office, his personal actions cannot be challenged. This was rejected.
NPP v. Rawlings and Another:

This rule that cannot drag president and vice to court has been applied in this case.
The constitution also brings the contractual and torts liability of the state in line with that
of a private individual. The principle of vicarious liability applies to the state as they
apply to private individuals, rule relating to indemnity and that in Civil Liability Act.
Rules relating to indemnity is contained in Act 555 (State Proceedings Act). Section
1 of the Act abolishes the FIAT JUSTICIA so if you have claim against state without that,
can proceed as a matter of right (A production of Section 293). You do not need
anybody’s permission to bring an action against the state.
In Article 293 (Claims Against Government), the constitution uses the word
‘government.’ Constitution defines government as Executive authority but in Act 555,
Legislature has substituted ‘state’ for government. Question is whether the substitution is
consistent with the constitution.
Sections 290 and 391 of Article 293 puts liability of state in contract and torts on the same
footing as that of a private individual. The only thing is, Act talks about person of full age
and in the constitution, the age is 21. It seems that it will not be wise for anyone to ask
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(2.) The government shall be subject to all those liabilities in tort to which, if it were a private person of full
age and capacity, it would be subject –
(a.) In respect of torts committed by its employees or agents;
(b.) In respect of a breach of duties which a person owes to his employees or agents at common law or
under any other law by reason of being their employer; and
(c.) In respect of a breach of the duties at common law or under any other law attached to the ownership,
occupation, possession or control of property.
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(3.) No proceedings shall lie against the Government by virtue of Paragraph (a) of Clause (2) of this
Article in respect of an act or omission of an employee or agent of the Government unless the act or
omission would, apart from this article, have given rise to a cause of action in tort against that employee or
his estate.
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age of majority and for you to give an age – It is better to say that it depends on what
field you are talking about.
One cannot bring tort action against the state. Liability of state should be that of
private individual so if in the case of a private individual there is no action, one cannot
bring an action against the state if theoretically it is a tort. State is liable in same way in
statutory duties as private individuals.
Section 4 (Non-Liability of State)

State is not liable for any neglect of person discharging responsibilities of a judicial
nature. You cannot sue the state for actions of judge discharging his/her judicial duties.
There are some attempts at defining who a public officer is (Subsection 1b of Section 4)
Section 4
(1.) No proceedings shall lie against the state under this Act in respect of –
(a.) Anything done or omitted to be done by any person while discharging or
purporting to discharge responsibilities of a judicial nature vested in him; or
(b.) Any act, neglect or default of an officer of the State unless that officer –
(i.) Has been directly or indirectly appointed by the State and was, at the material
time, paid in respect of his duties as an officer of the State wholly out of public funds
or out of moneys provided by Parliament; or
(ii.) Was at the material time, holding an office in respect of which the Public
Services Commission certifies that the holder of that office would normally be so
paid.
Section 5 (Application of Law Relating to Indemnity)

Where the state is subject to liability by virtue of this Act, the law relating to
indemnity and contribution shall be enforceable –
(a.) Against the state by an employee of the State who is acting in the proper
execution of his duties in respect of the liability to which the person is subject; or
(b.) By the state against any person other than an employee of the State, in respect
of the liability to which it is subject, as if the State were a private person of full age
and capacity.
Section 6: Provision as to Intellectual or Industrial Property

State carries same responsibility in infringement of intellectual property as a private
individual.
“Where an employee or agent of the State infringes a patent, a registered trade
mark or a copyright and the infringement is committed under the authority of the
State, then, subject to this Act, civil proceedings in respect of the infringement shall
lie against the State.”
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-Special provisions in Section 7 (Provisions Relating To The Armed Forces) about the
armed forces. These are things of interest. The state carries no liability for you for things
which happen in military establishments, military aircrafts, vehicles, etc.
-State provides itself with immunity in Section 7 because an action cannot be brought by
a member of Armed Forces.
-If Minister certifies that happens to serviceman while on duty, there is a fund available to
the Minister to make ex gratia payments.
-If you are at Burma camp and you are slapped by a soldier, you cannot sue the Republic.
Section 8 (Civil Proceedings By or Against The State To Be In Accordance With

Rules of Court)
Section 8 takes the point of Clause 5 of Article 8892, civil procedures by or against the
state. Section 8 applies civil procedure rules to one in which state is party.
Civil proceedings by or against the state shall as far as is practicable be instituted
and proceeded with in a court of competent jurisdiction in accordance with the rules
of court applicable to proceedings between private persons.
Section 9 (Parties to Proceedings)

Civil proceedings against the state shall be conducted by the Attorney General or one
authorized by him or by statute. Cases against state in civil proceedings is to be brought
against the Attorney General
(1.) Civil proceedings by the state shall be instituted and conducted by the Attorney-
General or any person authorized by him.
(2.) Civil proceedings against the state shall be instituted against the Attorney-
General as defendant
(3.) No proceedings instituted in accordance with this Act by or against the
Attorney-General or any other officer shall abate or be affected by any change in
the person holding the office.
In carrying out prosecutions, the police are doing so as subordinates of Attorney General.
That’s why they say things like ‘docket sent to Attorney General.’ In a civil action, one
has to bring the case against the Attorney General, and Attorney General can bring an
action on behalf of the state.
Ohene v. Principal Secretary, Minister of Finance
Buobuh v. Minister of Interior & Another
Ohene v. Principal Secretary, Ministry of Finance

Facts: Plaintiff sought a declaration that a society operating under Section 9(1) and (2) of
the Lotteries and Betting Act, 1960 (Act 31), didn’t require the permission of the Minister
of Finance to operate a lottery. A preliminary objection was raised that the defendant
wasn’t a proper party to the suit, rather the action should have been brought against the
Attorney general.
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Article 88(5): The Attorney-General shall be responsible for the institution and conduct of all civil cases
on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-
General as defendant.
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Held: Since the defendant hadn’t been authorized by the Attorney General or specified
under any law to have an action brought against him according to Section 10(2) of Act
51, then he wasn’t a proper party to a suit brought against the Republic.
ii.) Under Order 16 and 11, the Attorney General could be substituted by the court as
defendant. The name of the principal secretary, mainly Minister of Finance should
therefore be struck out.
Section 10(2) of the State Proceedings Act, 1961 (Act 51) provides that civil
proceedings against the Republic may be instituted against the Republic or may be
instituted against the Attorney General or any officer authorized in that behalf by him, or
any officer specified in that behalf under any law for the time being in force. Section 12
further provides,
-All documents required to be served on the Republic for the purpose of or in connection
with civil proceedings by or against the Republic shall be delivered at the office of the
Attorney General or to any officer specified in that behalf under any law from the time
being in force.
-Under 16 and 11 of the Supreme (High) Court (Civil Procedure) Rules, 1954 (L.N
140 A), the Court had power either upon or without the application of either party to
substitute a party as plaintiff or defendant on such terms as may seem just. Court
therefore ordered that the Attorney general be substituted as the defendant in the matter
and that the name of the Minister of Finance be struck out and case to take its normal
course.
Buobuh v. Minister of Interior & Another - Article 293 (3)

Facts: Plaintiff who claimed that he was assaulted by two prison officers on 23rd January,
1967 instituted an action against the Minister of Interior on 9th March, 1970.
Issues: i.) Whether the plaintiff’s action was barred by Act 114 of Public Officer’s Act
ii/) Whether or not the action in tort against (the said public officers) the Republic was
barred by Section 2(1) of Act 114
Held: The Minister of Interior was a public officer as defined by Section 7 of Act 114
and therefore the action for damages was barred by Section (1)(a) since it wasn’t
commenced within three months of the alleged assault.
ii.) The liability of the Republic as represented by the Attorney General was vicarious and
since an action against the officers who allegedly assaulted the plaintiff was barred by
Section 2(1)(a) of Act 114, there was no ground on which Republic was liable.
There are some special rules in Section 10 in proceedings in which state is a party. If you
intend to bring an action against the state, you are to bring written notice to Attorney
General at least 30 days before commencement of action. It must be brought by you or by
agent.
Section 10 (Notice of Civil Action to Attorney-General)

(1.) Subject to the provisions of this Act, a person who intends to institute civil
action against the State shall serve on the Attorney-General a written notice of his
intention at least 30 days before the commencement of the action.
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(2.) The notice under subsection(1) shall be served by the claimant or by his lawyer
or agent –
(a.) On the Attorney-General or an officer of the Attorney-General’s Department; or
(b.) In a case where action is to be commenced in a region, on an officer of the
Attorney General’s Department in the region concerned.
(3.) The notice shall state the cause of action, the name and address of the intended
claimant and the relief sought.
Section 20 (Exceptions to Giving Notice of Action)

(1.) The notice before institution of civil action against the State does not apply to -
(a.) An action to invoke the original jurisdiction of the Supreme Court under
Articles 2(1) and 130(1) of the Constitution; and
(b.) An action 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 under Article 33(1) of the Constitution.
(2.) Where in any action against the State there is failure to give the notice required
to the Attorney General, the court before which the action is instituted shall not
dismiss the action but direct the plaintiff to give the Attorney-General the requisite
notice and adjourn the case accordingly.
Section 20 says that the requirement of a notice does not apply in a decision to invoke
original jurisdiction of Supreme Court. The point is made in Kwakye v. AG.
Kwakye v. Attorney General

Facts: Plaintiff, IGP of SMC II which was overthrown by the AFRC was listed in a press
release in October 1979 as one of the 51 persons who had been tried and sentenced in
absentia by a special court established under AFRCD 3. They were tried with respect to
acts considered to be against the economy of Ghana and after summons through a radio
announcement, those who refused to attend were tried in absentia under the AFRCD 3 as
amended by AFRCD 19. Plaintiff therefore issued a writ invoking the original
jurisdiction of the Supreme Court seeking a declaration that he was never tried, convicted
or sentenced and the 25 years imprisonment was an infringement of his fundamental
human rights (Chapter 6 of 1979 constitution). Attorney General sought to dismiss
plaintiff’s action on 2 grounds:
i.) Plaintiff failed to give the Attorney General 1 month’s prior notice of his intention to
bring his action in accordance with the mandatory statutory provisions in Section 1 of
NLCD 352.
ii.) In view of facts pleaded by the plaintiff, the AFRC took or at least purported to have
taken judicial action against him and accordingly by Section 15(3) and (2) of the
Transitional Provisions of 1979 constitution forbade the court from entertaining the
action or granting plaintiff any remedy.
Held: Dismissing the preliminary objection –
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The Supreme Court by a five-two majority decision held that (on the basis of the
evidence placed before it), the phrase “judicial action taken or purported to have been
taken” appearing in Section 15(2) of the Transitional Provisions to the 1979 constitution,
must bear its ordinary, literal, dictionary meaning, that is, as an action which was not a
judicial action properly so called but which looked like, was intended to be, or which had
the outward appearance of a judicial action.
The Supreme Court even though on the evidence placed before it, there was no
proof of judicial action taken, that is an action satisfying the requirement of the law both
procedurally and substantively, there was proof of purported judicial action taken, that is
an action which looked like, or was intended to be, or which had the outward appearance
of a judicial action. The majority took the view that there was a purported trial because it
was satisfied with the evidence before it that when the special court met, it intended to try
the plaintiff under AFRCD 3 as amended by AFRCD 19, by relying on his file and to
convict and sentence him if found guilty. The court by its majority decision also held that
the effect of Section 15(3) of the transitional provisions was that compliance with “any
procedure prescribed by law” was not to be regarded as a necessary pre-condition for the
application of the ouster clause in Section 15(2). In our constitution, the provision on the
constitutional shield doesn’t only extend to the judicial action of the AFRC but to its
purported judicial action.
-The State Proceedings (Amendment) Decree 69 (NLCD 352) was ineffectual where a
person sought to invoke the original jurisdiction of the Supreme Court on a complaint
found on Article 2(1) of the constitution 1979.
The Decree was inconsistent with the article and was void. Article (2) entitled the
plaintiff to invoke the jurisdiction of the Supreme Court as the act complained of was
committed or even threatened Section 15(2) of Transitional Provisions 1979 constitution.
It was widely couched but as the plaintiff was seeking a relief which the court was prima
facie entitled to grant, the defendant who claimed that the Supreme Court’s jurisdiction
had been ousted by the provision ought to provide a factual basis for it, facts which
showed that the AFRC took or purported to have taken judicial action against plaintiff.
Defendant was afforded chance to fill a statement of his case within 7 days.
Sowah JSC (Concurring): Even though I consider the trial, conviction and sentence of
the plaintiff were a nullity because the trial itself did not match up to the criteria set by
AFRCD 3, Section 5, nonetheless, I hold the view that it was a purported trial, a fortiori,
a ‘purported judicial action.’ The word “purported” is not a term of art. Its ordinary
meaning includes ‘the specious appearance of being, intending, claiming…’
Anin (Dissenting): Although the right of the subject to have access to the courts might
be taken away or restricted by statute, the language of such a statute must be jealously
watched by the courts and should not be extended beyond its least onerous meaning
unless clear words had been used to justify such an extension.
Taylor JSC (Dissenting): The act of unknown, nameless persons assembling and without
hearing evidence sentenced the plaintiff in absentia (as the evidence before the Supreme
Court showed) was not a judicial act but an illegal act. Such a judicial act could not be
said to be “a judicial action taken or purported to have been taken” by the court within
the meaning of Section 15(2) and (3) of the Transitional Provisions. In the words of
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Taylor JSC, “an action can be a judicial action or a purported judicial action if not
capricious or illegal.”
Taylor however dissented that the only way a court could try a case was to have
evidence whether orally or by affidavit or any way expressly provided by law. In his
view, the need for calling evidence was not just a procedural requirement but substantive.
Commentary (Prof. Kumado, Forgive us Our Trespasses): “The point to which
attention ought to be drawn in the KWAKYE case is that it was the Court itself which
interpreted the constitutional provisions as ousting its jurisdiction. There are many of us
who are willing to argue that the judges in the majority in the KWAKYE case should join
their counterparts in the infamous RE AKOTO decisions as people Lord Denning, former
M.R. of UK, would have described as Timorous Souls.”
-If you have to bring action against Attorney General and have to give notice and 30 days
expires, Section 20 says that , does not apply to constitutional challenges so if you are
going to High Court to protect rights etc, that does not apply. In the past, if you failed to
bring notice, the action was dismissed. Basically, failure to give notice treated as
‘premature ejaculation.’ You hold until 30 days, before you bring an action.
-Subsection 2 of Section 20 (Section 20(2)) says where notice not given before action
commenced, action not to be dismissed, but Court to give requisite notice (30 days notice
and adjourn the case.
The justification for 30 days is that when you have a complaint against private
person, they will issue writ only after 14 days. The law tries to put the Republic in the
same position and gives it 30 days to make up its mind whether going to go for amicable
settlement or fight in court. As Attorney General is nominal defendant, Attorney General
needs time to find out from actual defendant in whose name claim is made. AG needs
time to get appropriate instructions from the state. Attorney General’s position is that of a
lawyer so he is in a position as that of any other lawyer representing his client so in a
way, not unfair.
Section 11 (Inter-Plead)
If there is a proceeding between two private individuals in which state has interest and
feels if stands by will affect its interest, can inter-plead.
Section 11 is giving the state same opportunities as private individuals.
Section 11 (Interpleader)
The State may obtain relief by way of interpleader proceedings and may be made a
party to those proceedings in the same manner in which a private person may
obtain relief by way of those proceedings or may be made a party and the rules of
court relating to interpleader proceedings shall, subject to the provisions of this Act,
apply.
Section 12 (Service of Documents)
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Documents required to be served on the State for the purpose of or in connection

with civil proceedings by or against the State shall be delivered at the office of the
Attorney General or to a representative of the Attorney General in any part of the
country or to any officer specified under any law.
Section 13: Talking about nature of reliefs against the state. Under our law for many
years, you could only obtain declaration against state – Section 13, in line with Article
293 of the constitution (Claims Against the Government), has revolutionized it.
Section 13 (Nature of Reliefs Against the State)
In any civil proceedings by or against the State, the court shall, subject to this Act,
have power to make such orders as it has power to make in proceedings between
private persons and may give such relief as the case may require.
-State is in same position as private individual so

PPP v. AG
Quashie Idan
Levandowsky
PPP v. Attorney General

Facts: Applicants who were a registered political party under NLCD 345 applied for
permits from the IGP to hold protest marches in respect of two issues, the sale of arms by
Britain and France to South Africa and the proposed dialogue between Ivory Coast and
South Africa.
Even though a permit had been given to another group to protest against one of
the political issues, they were refused a permit by the police without any reasons.
Applicants sought a court order to compel the police to issue them a permit, submitting
that their liberties of association, movement and assembly as provided in the constitution
1969 had been infringed. Respondents denied any such infringement and submitted that
the police acted properly within the powers accorded them in Act 165 and Articles 23
and 24 of the 1969 constitution.
Held: When a statute (in this case the constitutional article 28(2) provides for an
application to the court without specifying the form in which it is to be made and the
normal rules of court do not expressly provide for any special procedure, such an
application may be made and the normal rules of court do not expressly provide for any
special procedure, such an application may be made by an originating motion stating
clearly the order or relief sought and must further state the grounds of the application.
Applicants by virtue of NLCD 345 had corporate responsibility. Constitution
didn’t define a person but the Interpretation Act included bodies corporate therefore the
fundamental freedoms enumerated in Article 12 of the constitution and enforceable under
Article 28 were available to the applicant. Act 165 can be modified to authorize a police
officer to grant permits reasonably required in the public interest. Discretionary power
(Article 296) vested in police officers (Act 165) must be exercised in a fair and candid
manner. When the police refused to grant permit, they must have assigned reasons for the
police action. Although Section 13 of Act 51 prohibits the issue of an injunction
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against the police, it does authorize the court to make a declaration of the rights of
the applicant. Applicants were therefore entitled to a declaration that police were wrong
to refuse permit and they can hold their protest marches. Police can only refuse if such
procession is likely to cause a breach of the peace and applicants are entitled to know the
grounds (in writing) on which the police rely in coming to a decision that the marches
would cause a breach of the peace.

Facts: This is an appeal from a decision of Anterkyi J, granting an interim injunction
against some of the defendants in this action. The three plaintiffs, each of whom is a
lawyer of considerable standing in the community, sued the Chief Justice, the Judicial
Secretary and the General Legal Council. The plaintiffs complained that through the
conduct of the defendants, namely, the issue of certain circulars to judicial officers, they
had been denied their right of audience as barristers in the courts. They therefore sought a
declaration of that right together with an injunction to restrain the defendants from
interfering with its exercise. After issuing their writ and filing their statement of claim,
the plaintiffs made the application for the interim injunction which was granted by
Anterkyi J.
Issues:
i.) Whether the first and second defendants are “servants of the Republic” as intended by
Act 51.
ii.) Whether an injunction against the first and second defendants would operate as an
injunction against the Republic itself.
Held: (Amissah J. presiding)

1.) The defendants had been sued in their official capacities, they were servants of the
Republic and in terms of Section 13(2) of the State Proceedings Act, 1961 (Act 51) which
reads as follows,
“The Court shall not in any civil proceedings grant any injunction or make any order
against a servant of the Republic if the effect of granting the injunction or making the
order would be to grant relief against the Republic which could not have been obtained
in proceedings against the Republic.”
The Court took pains to explain that this does not mean that no action may be brought
against a servant of the Republic in respect of a civil offence committed in the course of
performing his public duties. Such actions may be brought provided they satisfy the
requirements of Section 2 of the Public Officers Act 1962 (Act 114) with regard to the
time limit (three months) within which such actions may be instituted. But the proper
meaning of Section 13(2) of Act 51 is that even where such actions are brought, whatever
may be the relief sought, an injunction should not be granted against a public officer if
the effect of the order would be to restrain the Republic itself.
The reason for this provise, the court explains, is that since the Court has no power to
grant an injunction against the Republic itself in an action brought directly against the
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Republic (Section 13) (1), Act 51), it would be detracting from the Republic’s immunity
from orders of injuction if such relief could be obtained against it indirectly through a
restraint imposed upon its servant.
Having carefully explained Section 13 of Act 51 as background to its judgment, The

Court then proceeded to consider the first issue of the case,
1.) Act 51 (section 24) defines a “servant” as any public officer, a member of the armed
forces, and a Minister. Next the Court looked at the Interpretation Act 1960, Section
32(1) which defines public officer as “a member of any of the public services, namely the
Civil Service, the Judicial Service, the Police Service etc.
The Court therefore concluded that since the Chief Justice is the ex-officio
Chairman of the General Legal Council, a governmental agency specifically created to
supervise and regulate the affairs of the legal profession in the country, when he acts in
his official capacity, he does so as a servant of the Republic. As regards the Judicial
Secretary, the Court reasoned that he merely acts on his principal’s instructions and
should therefore be tied to the fortunes of the Council. If the Council cannot be
restrained, neither should its Secretary be. The Court therefore came to the conclusion
that each time the Judicial Secretary acts in his official capacity as Secretary of the
Council he does so also as a servant of the Republic.
ii.) After determining that the first and second defendants are servants of the
Republic, the Court moved on to the second issue of the case to find out whether an
injunction against the first and second defendants would operate as an injunction against
the Republic itself. The Court first observed that the Chief Justice is the head of the
Judicial Service. It also observed that the Chief Justice is the Chairman of the agency of
Republic that is responsible for all questions affecting the legal profession. If, therefore,
the Council takes any decision affecting the profession and this has a bearing on practice
in the courts, the Chief Justice has a duty to secure with the assistance of the Judicial
Secretary, the carrying into effect of this decision.
iii.) Finally, the Court observed that independently of the General Legal Council, the
Chief Justice also had the duty of ensuring that judges and other members of the judicial
service do not encourage breaches of the law. In view of all these observations, the Court
firmly concluded that should the Chief Justice or his subordinates be restrained in the
performance of these duties, there is no doubt that it would have the effect of restraining
the judicial arm of the Republic and hence the Republic itself. The appeal was therefore
allowed and the order of interim injunction set aside.
Levandowsky & Another v. Attorney General

Facts: On 23rd July, 1970, applicant obtained against the respondent, judgment for a large
amount of money. Six days later, respondent filed an appeal against the said judgment.
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By reason of CA (Amendment) Rules 69, that appeal shall not operate as a stay of
execution and this was declined.
Held: Order sought could not be enforced even if the court granted it since Section 15(4)
of State Proceedings Act 51 would prevent the applicant from competently levying
execution against the respondent.
Act 51 Section 15(4): …As aforementioned, no execution/attachment or process in the
nature thereof shall be issued out of any act for enforcing payment by the Republic of any
such money as aforesaid and no person shall be individually liable under any order for
the payment by the Republic or any department/servant of the Republic of any such
money or costs.
Decision in ex parte Abban and Mould de Vine confirmed as our law and you can get it
against state, private individual etc.
Ex Parte Abban
Facts: This is an application by Abban for a writ of mandamus directing the Medical and
Dental Board and its registrar to transfer his name from the “Temporary” to the “Standing
Register” of medical practitioners so he could engage in private practice. Solicitor
General contended that mandamus wouldn’t lie because by putting applicant’s name on
the Temporary Register, the Board had exercised its discretion and further argued that
declaratory action was the proper remedy.
-A writ of mandamus is a high prerogative writ of a most extensive remedial nature and is
in the form of a command issuing from the High Court Justice, directed to any person,
corporation or inferior court requiring him to do some particular thing therein specified
which appertains to their office and is in the nature of a public duty. Its purpose is to issue
defects of justice and accordingly it will issue to the end that justice may be done in all
cases where there is a specific legal right and no specific legal remedy for enforcing such
right and it may issue in cases where, although there’s an alternative legal remedy yet
such mode of redress is less convenient, beneficial and effectual.
-The Medical and Dental Board has a function of to register medical practitioners who
satisfy the condition as to qualification. This sis clearly a public duty entrusted to the
Board by enactment and mandamus will lie to enforce statutory rights or to require public
officials to carry out their duties. There’s thus no discretion here and the case falls within
the class of cases where officials having a public duty to perform and having refused to
perform it, mandamus will lie on the application of a person interested to compel them to
do so.
Mould v. de Vine
Facts: de Vine, a former occupier of a house in Accra had ran up water bills. The
Waterworks Department cut off water supplies to the house pending the arrears of water
bills. As a result of a court action, ownership of the house was vested in Mould and
Waterworks refused to reconnect until she paid the arrears. She contended that the arrears
were a debt due from the previous occupier which the department could recover through
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a civil suit and that she was entitled to have the house reconnected. At an Accra High
Court, she filed an application for an order of mandamus to compel the engineer-in-
charge to restore the water on the ground that the debt was doe from the previous
occupier which the respondent could recover through a civil suit.
Issues: i.) Whether mandamus lies against the Republic
ii.) Whether respondent has a duty to connect water to private buildings.
iii.) Whether the respondent were entitled to recover debts.
Held: i.) Mandamus lies to compel a public body to perform a public duty which it has
failed to discharge.
ii.) The Waterworks Department has a duty to supply water to the public and must show
good reason why a particular house shouldn’t be connected.
iii.) By Section 39 of the Water Works Ordinance, the Water Works Ordinance, the
Waterworks Department is entitled to take civil action to recover debts due to it from
landlords. The department can’t use the fact of de Vine’s indebtedness as an excuse for
refusing to connect water to the applicant.
iv.) An order of mandamus doesn’t lie against the Republic but it can issue against
officers of the state who have defaulted in performing a statutory duty.
Section 1593 deals with satisfaction of judgment obtained.
Section 16 deals with enforcement of procedures.

Subject to this Act, any order made in favor of the State against any person in any
civil proceedings to which the State is a party may be enforced in the same manner
as an order made in an action between private persons.
Section 17 (Attachment of Money)94

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Section 15 (Satisfaction of Orders)
(1.) Where in any civil proceedings by or against the State or in connection with any arbitration to which
the State is a party, an order including an order for costs is made by a court in favor of any person against -
(a.) The State;
(b.) A Department of the State; or
(c.) An employee of the State,
the Court shall issue to the person a certificate containing particulars of the order on an application made by
or on behalf of the person at any time after the expiration of twenty-one days from the date of the order or
where the order provides for the payment of costs and the costs are required to be taxed, at any time after
the costs have been taxed, whichever is later.
2.) A copy of a certificate issued under this section may be served by or on behalf of the person in whose
favor the certificate is made –
(a.) On the Accountant-General if the certificate contains an order for the payment of money; and
(b.) On the Attorney-General in any case
(3.) If the order provides for the payment of any money, the certificate shall state the amount payable and
the amount together with any interest on it shall be paid to the person entitled or his lawyer.
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Section 17 (Attachment of Money)
(1.) Where any money is payable by the State to a person who is under a court order to pay money to
another person, that latter person is entitled to obtain an order for the attachment of the money as a debt due
or accrued under the rules of court to him.
(2.) The Court may, subject to this Act and in accordance with the rules of Court, make an order restraining
a person to whom the State is liable to pay money from receiving that money and directing payment of it to
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You cannot attack wages, pensions, salaries of employee of state and others. This is
statutorily prohibited. In executing judgment, person’s tools of trade are the last thing you
attach.
-In the Civil Procedure Rules, to facilitate proceedings, we have interrogatories (set of
questions that you can ask and answers that you can use in your proceedings).
Discovery (Opportunity to inspect materials in custody of opponent)
-Applied in Section 1895 to proceedings in which state is a party.
Section 19: You cannot go and seize state property. You cannot bring an action.
Section 19: Notice of Proceedings in rem96 against the State
No proceedings in rem shall be brought in respect of any claim against the State, or
the arrest, detention or sale of any ship, aircraft, cargo or other property belonging
to the State or give to any person a lien on the aircraft, cargo or other property…
Section 25 (Pending Proceedings)

(1.) This Act shall not affect proceedings commenced before the coming into force of
this Act and for the purposes of this section proceedings shall be regarded as
commenced if the statement of claim has been delivered at the office of the Attorney-
General or some other authorized officer before the coming into force of this Act.
(2.) Proceedings commenced before the coming into force of this Act may be
continued and concluded under the law under which they were commenced.
any other person.

(3.) No court shall make an order under subsection (2) of this Section in respect of –
(a.) Any wages or salary payable to an employee of the State; or
(b.) Pension or Social Security; or
(c.) Any money which by the provisions of any enactment, is prohibited or restricted from attachment for
the execution of a debt.
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Section 18 (Discovery and Interrogatories)
(1.) Subject to subsections (2) and (4) of this section, enactments relating to the discovery and production
of documents and answering interrogatories by an order of a court shall apply to civil proceedings by or
against the State to the same extent and in the same manner as the enactments apply to civil proceedings
between private persons.
(2.) Subsection(1) of this Section applies without limiting the right to withhold any document or refuse to
answer any question on the ground that disclosing the document or answering the question would be
injurious to the public interest.
(3.) Any order of a court related to answering interrogatories shall direct which person is to answer the
interrogatories
(4.) A certificate from the Supreme Court that it is satisfied that the disclosure of a document is injurious to
the public interest shall be conclusive evidence for the purposes of this section.
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In Rem: (An act proceeding or right) available against the world at large, as opposed to in personam.A
right of property is a right in rem.
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Section 25 says actions pending before date in which Act 555 (State Proceedings Act,
1998) came into force will continue after that date. Action is pending, according to
Section 25, if statement of claim has been delivered to the Attorney General. It does not
require that the Attorney General be personally served. It is sufficient if where the
documents have been delivered to the office of the Attorney General.
-Rules relating to limitations to actions relate to proceedings in which state is a party.
-NRCD 54 applies to proceedings in which state is a party as well as that which is
between private individuals.
Act of State: The effect of the pleading of this defense is to oust the jurisdiction of our
courts with regards to that particular matter and Act of State refers to acts carried out by
state in its foreign affairs, and it is geographical in scope. It refers to actions that takes
place in territories outside the Republic.
-If you look at Article 73 (International Relations), it says “the government of Ghana
shall conduct its international affairs in consonance with the accepted principles of
public international law and diplomacy in a manner consistent with the national
interest of Ghana.”
Whatever it does specifically in foreign land cannot be subject of litigation in our courts.
The state cannot put up that defense with respect to actions taken within geographical
state of Ghana – immunity applies to accredited agents of Ghana.
-Defense will be subject to Ghanaian in service of country in foreign land.
Johnstone v. Pedlar97
Walker v. Baird98
AG v. Nissan99
Salaman v. Secretary of State for India100
Article by Wade, Act of State in England Law101
Potter v. Broken Hill Property102
97
1921 2 A.C. 262
98
1892 A.C. 491
99
170 A.C. 179
100
1906 1 K.B. 639
101
1934, Volume 15
102
1906 3 C.L.R 479
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Commission/Committees of Inquiry
It is a mechanism under our constitution for investigating any matter, any matter of a
general nature that the appointing authority assigns the inquiry. Over the years, this
mechanism has operated under different kinds of regimes:
-Commission of Enquiry Ordinance, Cap 249, Corrupt Practices 1969, Act 230 which
appears to be still in force, Commissions of Inquiry Act 1964 (Act 250), and currently, we
have a whole chapter in our constitution – Chapter 23, which seeks to provide a
framework, Articles 278-283.
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-It was under Commission of Enquiry Ordinance, Cap 249, that Gala Commission was
established. The current company code is a product of this. Essentially therefore, the
person appointing a committee or commission of inquiry may decide to do so whenever it
is determined to be in the public interest or welfare to do so; this shows that this
mechanism is basically ad hoc in character. The Commission or Committee is not a court.
It is not part of the judicial system.
Court system that we have is to be found in Chapter 11. We have Superior Court of
Judicature, and Parliament has power to empanel subordinate bodies.
Commissions of Enquiry cannot exercise judicial power, not being part of our judicial
system. However, they are required by law to act judicially, to act fairly (observing rules
of natural justice) - Distinction in Ridge v. Baldwin. They do not exercise judicial power,
because of what we know judicial power entails. Judicial power is power to make final,
authoritative, binding decisions.
Rep. v. Asafu-Adjaye
Akainyah
Republic v. Asafu Adjaye

Facts: Charges were preferred against the accused as a result of adverse findings made
against them by the Ollenu Commission.
Held: The Court held that the jurisdiction of a judge before whom a person is brought
under Act 230 to show cause why he shouldn’t be sentenced is analogous to that of an
appellate tribunal called upon in an appeal against conviction to review the facts upon
which the conviction is based. In the case, Akuffo-Addo J. rejected the suggestion that a
finding which a Commission makes is equivalent to a verdict of guilty returned by a jury
or of act of summary trial. He said the better view is in the words of Section 5(2), no
more that, an adverse finding constitutes a prima facie case against the person concerned
and the finding assumes that character only when the Attorney General in his discretion
decides to prefer a charge against a person about whom an adverse finding has been
made. Without any such charge being preferred by the Attorney General, the finding
remains a bare finding of fact.
Republic v. Akainyah
Facts: As a result of adverse findings made against them by the Ollenu Commission,
appointed under the Corrupt Practices (Prevention) Act, 1964 (Act 230), Akainyah was
prosecuted on various counts of offering bribes to influence a public officer, accepting
bribes to influence a public officer, and conspiracy with a public officer to commit
extortion and corruption. Under Section 3 of the Act, when a Commission appointed
under the Act, after enquiring into allegations of corruption, makes adverse findings
against any person, the Attorney General may institute criminal proceedings against that
person by preferring the appropriate charge based on the findings of the Commission.
Prosecution is solely within the discretion of the Attorney General and if he chooses for
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any reason whatever not to prosecute, the matter ends. In such a prosecution, the finding
constitute prima facie evidence of guilt and the accused has the burden of showing cause
why he shouldn’t be convicted of the offence charged. The accused may, by any defense
known to the criminal law do this and if successful is entitled to an acquittal. At the trial,
one major contention was that proceedings of the commission was void; that the act was
passed at a time that Ghana had a constitution and vested judicial power exclusively in
the courts but the Act sought to vest it in the Commission.
Held:
i.) Commission wasn’t authorized to adjudicate on issues between parties that appeared
before it and
ii.) It had no power to pronounce guilt or acquittal. All that it did was to investigate
allegations of corruption and it was purely fact finding function even though the Act
provided that findings against person was prima facie evidence of guilt. Although it may
make adverse findings against any person, not only is that finding not binding on that
person but the Commission is without power to enforce its decisions. No liability
whatsoever attaches to any person against whom the Commission makes adverse findings
until the Attorney General in exercise of the power conferred on him by Section 4 of the
Courts Act invokes the judicial power and procures a conviction. If the Commission were
a Court, it would be an odd court since after having adjudged guilt it would be entirely
powerless to impose punishment of any sort.

The instrument establishing a Commission of Enquiry may give it some powers of the
courts. It may give it the power to summon and compel witnesses, to take oath, to certify
people for contempt etc.
Rep. v. Otu & Another
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This case recognized that in our constitutional system, there is a constitutional right to
remain silent. It may not be expressly provided for anywhere in constitution but we know
there is a clause in the constitution that says that it does not contain long exhaustive list
of rights.
Rep. v. Otu & Another

Facts: A commission of enquiry was set up to inquire whether Otu, Commander of the
Ghana Armed Forces and Kwapong his former aide-de-Camp, Naval Lieutenant, had at
any time engaged with supporters of the CPP aimed at overthrowing the NLC. The
respondents, summoned as witnesses refused to give evidence before the commission and
refused to even after Section 7 of the Commission of Enquiry Act, 1965 (Act 250) had
been read to them. It read,
“It shall be an offence punishable if a person summoned under this Section before a
Commission refuses to attend, refuses to take an oath, refuses to produce any document,
or refuses to answer any question or does anything which would if the commission had
been sitting as a court, have been contempt of the court.” Respondents contended that
taking the oath would mean that they have consented to give evidence in which case they
would be examined and subjected to cross-examination.
Moreover, they would be exposed to the risk of incriminating themselves and also
committing perjury if the occasion arose. The quintessence of their argument is that by
serving them with holding charges, the army authorities converted them into accused
persons who were to be tried. Moreover, the press statement by the Deputy Chairman of
the NLC indicated that the authorities had evidence to establish their guilt. It is a cardinal
principle of law that an accused person is entitled to keep his silence not only outside the
court room but also inside. A commission of inquiry shouldn’t be set up to investigate the
crime of an accused after he has been charged.
Held: The unwillingness/refusal of the respondent to take the oath to give evidence can’t
amount to contempt in the special circumstances of this case.
There can be appointment of lawyers as Chairs of Commissions, members, sometimes as

commissioners.
Generally, in conduct of proceedings of Commissions of Enquiry, they tend to
rely on evidence that could have been tendered in a court. As a matter of fact,
Commissions are just fact-finding bodies. Our Court system is adversarial but the
operations of the commissions as fact-finding bodies are inquisitorial. All they can do is
to investigate and state as the facts before them would allow it. After that, they have no
control over their findings. The recommendations they offer are also at the discretion of
the appointing body and what it does with it is totally at the discretion of the appointing
body. They can reject and take action completely different. Appointing body may reject
findings, recommendations.
Because they are not courts of law, nobody is accused by a Commission of Enquiry.
Everyone appears as a witness – to assist the inquiry to get into the bottom of whatever is
being asked to look into. They appear in respect of someone helping the commission to
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do its work. Most people are invited before Commissions of Enquiry or go on their own.
Most prefer to go with a lawyer. Because of seriousness of these inquiries, people feel
more comfortable to appear with counsel. People you are appearing before also are
careful if you are there with a lawyer. Although no one stands chance of being jailed etc.
except with regards to contempt, people appear with lawyers.
-In recent times, has been used to legitimize unconstitutional overthrow of government.
Commissions are important for 2 main reasons

1.) Passage of 2 pieces of legislation in 1964, Act 230 and 250 and the high profile
prosecutions which were carried out under 230 such as Judge Akainyah and wife, who
were importing/processing applications for import license – which is not the job of a
judge.
2.) Inclusion in constitution of 2 things – Provisions on Commission of Inquiry and
provisions of constitution disqualify on basis of adverse findings.
Osman case
Awoonor-Williams v. Gbedemah
declaration that by reason of Art. 71 (2) (b) (ii) and (d) of the Constitution 1969, the
defendant is not qualified to be a member of the National Assembly and an injunction
restraining him from taking his seat.
The Jiagge Assets Commission set up by the NLC had reported on the defendant as
follows:
The particular provision invoked against the defendant was Article 71(2) which read as
follows;

b.) has been adjudged or otherwise declared.
the state, or
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iii.) To be of unsound mind or is detained as a criminal lunatic under any law in force in
Ghana.
Issues: Whether the provision of Article 71 (2) (b) (ii) and (d) of the constitution should
be enforced against the defendant who had been “adjudged or otherwise declared…”
Held:
Osman v. Awuku Darko (1970):

Facts: Plaintiff claims a declaration that the defendants membership of the National
Assembly is in contravention of Article 71 of the constitution of Ghana, 1969 and
B.) Perpetual injunction to restrain the defendant from sitting in the deliberations of the
National Assembly. By Article 71(2)(b)(ii), the constitution disqualified from being a
member of the National assembly, those who’d been adjudged or otherwise declared by
Commission of Enquiry to be incompetent to hold public office. A preliminary objection
is however raised contending that the Committee of Enquiry will not be the same as the
report of a Commission of Enquiry envisaged by the said article.
Held: The term Commission of Enquiry in Article 71 can’t be extended to include a
Committee of Enquiry and so the objection to the writ is upheld.
When in Rep. v. Asafu Adjaye the High Court disregarded the findings of Commission,
Court of Appeal overruled. Under 230, constituted prima facie evidence of guilt (Report
of a Commission).

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Effectively, if a Commission is set up under Act 230 and adverse findings are made
against you, there is a very high probability (9/10) that you are going to prison. Chances
of leaving court successfully are almost nil. This was transformed in a significant way
and from thereon, people started to treat Commissions of Enquiry far more seriously
because on conviction, minimum of three years.
Chapter 23, Articles 278-283
Commission of Enquiry may come into power in 2 respects,

Article 5(3)103: If the president feels there is the need to create a new region, he may,
acting in accordance with the advice of the Council of State, appoint a Commission of
Inquiry to inquire into the need and to make recommendations.
Article 278: President may appoint a Commission of Inquiry into any matter of public
interest.
It has been established that it is not the only situation in which the president can appoint a
Commission of Inquiry. The matter came up first with regards to the appointment of the
Okudzeto Commission for stadium.
Second was the appointment of the National Reconciliation Commission. It was
appointed through an Act of Parliament.
Article 278(1) is one way in which Commission of Inquiry can come into existence.
Article 278(1): Appointment of Commission of Inquiry

Subject to Article 5 of this Constitution, the President shall, by constitutional
instrument, appoint a commission of inquiry into any matter of public interest
where
(a.) The President is satisfied that a commission of inquiry should be appointed; or
(b.) The Council of State advises that it is in the public interest to do so; or
(c.) Parliament, by a resolution requests that a commission of inquiry be appointed
to inquire into any matter, specified in the resolution as being a matter of public
importance.
Article 279: Powers of Commission of Inquiry

(1) A commission of inquiry shall have the powers, rights and privileges of the High
Court or a Justice of the High Court at trial, in respect of,
(a.) Enforcing the attendance of witnesses and examining them on oath, affirmation
or otherwise;
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Article 5: Creation, Alteration or Merger of Regions
3.) If, notwithstanding that a petition has not been presented to him, the President is, on the advice of the
Council of State, satisfied that the need has arisen for taking any of the steps referred to in Paragraphs (a)
[create a new region], (b) [alter the boundaries of a region], or (c) [provide for the merger of two or more
regions] of Clause 1 of this Article, he may, acting in accordance with the advice of the Council of State,
appoint a commission of inquiry to inquire into the need and to make recommendations on all the factors
involved in the creation, alteration or merger.
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(b.) Compelling the production of documents and;

(c.) the issue of a commission or request to examine witnesses abroad.
In the case of the asset probe after Nkrumah, people were in political detention, no access
to their homes, records etc. In some cases, the houses were ransacked. People were being
asked to reconstruct their assets over a long period of time.
Clause 2 of Article 280

Where a Commission of Inquiry makes an adverse finding against any person, the
report of the Commission of Inquiry shall, for the purposes of this Constitution, be
deemed to be the judgment of the High Court; and accordingly, an appeal shall lie
as of right from the finding of the commission to the Court of Appeal.
How do you appeal against findings of a fact finding body that is not part of the
judiciary?
That is why 280(2) says that decisions shall be deemed to be judgment of the High Court.
Judicial power is vested in the judiciary – 125(3)
Article 125(3)
The judicial power of Ghana shall be vested in the judiciary, accordingly, neither the
president nor Parliament nor any organ or agency of the president or parliament
shall have or be given final judicial power.
-If you clothe report of Commission of Inquiry with judicial power, you are subverting
this provision so we use a legal fiction ‘deemed’ in order to give this chance of Appeal.
-Government is required to publish White Paper within 6 months after date of submission
of report and where it is not to be published, government is to give reasons why.
Article 280(3)
The president shall, subject to Clause (4) of this Article cause to be published the
report of a commission of inquiry together with the White Paper on it within six
months after the date of the submission of the report by the commission.
Article 280(4)
Where the report of a commission of inquiry is not to be published, the President
shall issue a statement to that effect giving reasons why the report is not to be
published.
Either the High Court or Court of Appeal may extend the time for you to bring an appeal.
Courts are trying to reverse the unfairness of the past of depriving you of right of appeal.
Article 281 gives us procedure to be followed by the Commission.

Article 281: Inquiry Procedure
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(1.) Except as may be otherwise ordered by the Commission in the interest of public
morality, public safety or public order, the proceedings of a commission of inquiry
shall be held in public.
(2.) Subject to the provisions of this Chapter, the Rules of Court Committee
established under Article 157 of this Constitution shall, by constitutional instrument,
make rules regulating the practice and procedure of all commissions of inquiry and
for appeals from commissions of inquiry.
Is there any difference between Committees and Commissions of Inquiry?

Problem arises because of decision in Osman.104
After decision in Awoonor v. Gbedemah, minority leader in Parliament, a
position recognized in the constitution, was disqualified from Parliament and parties
started engaging in hunting in each other’s party to disqualify a candidate. Osman was the
front man of the National Alliance of Liberals, had the job of weeding people out to be
disqualified. He found out someone called C.K. Turner. Turner was the first man to
introduce the ‘crossing of carpets’ into our national politics in 1951. He happened to be
member of Steering Committee of NPP and constitution disqualified him. Osman brought
the same kind of action brought against Awoonor-Williams. He succeeded in getting
Turner out but if you match Turner’s position against Gbedemah, still found him a small
fish. They thought they had found a big fish in Awuku-Darko, a Minister. Osman said
Awuku-Darko disqualified. Supreme Court came to decision that only disqualified if
made against you by a Commission and not Committee of Inquiry.
After Osman case, Busia always appointed a Committee and not Commission of Inquiry,
because never knew which of his people would be caught in the web.
Now in Article 295, Committee and Commission of Inquiry are one and the same thing. It
is just a matter of inference of what the appointing body wants to call it.
Article 295 (Interpretation)
“Commission of Inquiry” includes a ”Committee of Inquiry”
-National Media Commission

-National Commission for Civic Education
-Lands Commission
-Electoral Commission
These are different from Commissions of Inquiry appointed to look into matters. They are
basically the buffer institutions within the Executive that arose after the Nkrumah
overthrow because Nkrumah had too much power, so bodies were set up and assigned
responsibilities traditionally assigned to Ministers. We have given power to these
independent bodies to tame Executive etc.
104
Osman v. Awuku Darko
Held: The term Commission of Enquiry in Article 71 can’t be extended to include a Committee of Enquiry
and so the objection to the writ is upheld.
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We place the National Media Commission between the government and the
people so as to ensure media freedom. Commission of Human Rights and Administrative
Justice is placed in the middle so as not to be caught up in partisan politics. Whether we
describe these ad hoc instruments as merely fact finding or not has assumed a lot of
importance. In appointing Committees/Commissions of Inquiry, we have to be careful
because the process is very expensive.
Precisely because they are just fact finding bodies, some of protection
constitutionally supposed to protect our rights to ensure fair trial does not apply, such as
right not to incriminate yourself, although if we take the decision of Justice Archer in
Republic v. Otu and Another, you have the right to be silent. You go behind legal
character and look at consequences that attach to adverse findings against you.
Law of Remedies
When we talk about remedies, we are talking about what a party/applicant wants from the
court. What remedy are you seeking? It is even more important than the substantive law.
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When you go to court, ask court to do something for you – remedies. Under the common
law system, the Court is supposed to be neutral so not required to, and will not give you
something you have not asked for. Even if the court is of the view that you have a case, if
you do not apply for right remedy, Court is not going to going to give a remedy if not
asked for. If you do not ask for the appropriate remedy, Court will simply dismiss the
case so it is important that in addition to knowing your substantive law, you should know
the remedy to apply for.
Prerogative Writs105
Certiorari
Prohibition
Mandamus
Quo Warranto
Prerogative Remedies
Certiorari and Prohibition: These remedies are referred to as the prerogative writs
because historically, they were at the prerogative of the Crown - given at the mercy of the
Crown. Certiorari and Prohibition will be considered together because they are similar in
many respects.
Prohibition lies to restrain, prevent, forbid a statutory person/body or an inferior
tribunal from exercising or doing a certain act that is considered unlawful. It lies to
prohibit a statutory body from doing certain things. Certiorari lies to nullify or quash a
decision being taken by an inferior or statutory body/person.
The main difference between the two is that certiorari lies to erase something that
is unlawful that person/body needs to do. So certiorari looks to the past. For instance,
there has been a breach of natural justice, excess of jurisdiction etc. so one wants an order
from the Court to erase this thing that one is saying that ought not to have happened.
Prohibition lies to the future in that it wants to prevent body/person from doing
something that it is threatening to do but has not yet done.
If nothing has happened, one cannot apply for certiorari and Court will throw you
out. So where something has been done already and one wants to stop it, the proper
remedy is certiorari. If the act has not yet happened, the proper remedy is prohibition so
if you go and apply for certiorari, your case will be thrown out.
There are cases in which one will have to apply for both. Body/person has already
done certain things and is also threatening to do other things so you apply for certiorari
to quash what has already been done, and prohibition to prohibit/prevent future acts.
Ex parte Bannerman
105
Writs which are issued from the superior courts for the purpose of preventing inferior courts, or officials,
from exceeding the limits of their legitimate sphere of action, or of compelling them to exercise their
functions in accordance with the law, to assure the full measure of justice to the King’s subjects. These
writs were (1.) Habeas Corpus (2.) Certiorari (3.) Prohibition (4.) Mandamus (5.) Quo Warranto etc.
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Awoonor-Williams v. Gbedemah (Constitutionalism, Separation of Powers)

declaration that by reason of Article 71 (2) (b) (ii) and (d) of the Constitution 1969, the
defendant was not qualified to be a member of the National Assembly and an injunction
restraining him from taking his seat. The Jiagge Assets Commission set up by the NLC
had reported on the defendant as follows:
The particular provision invoked against the defendant was Article 71(2), which
read as follows,

b.) has been adjudged or otherwise declared
the state, or
iii.) To be of unsound mind or is detained as a criminal lunatic under any law in force in
Ghana.
Issues: Whether the provision of Article 71 (2) (b) (ii) and (d) of the constitution should
be enforced against the defendant who had been “adjudged or otherwise declared…”
Holding:
Commentary:
The Court argued that the interpretation put on the words “adjudged or otherwise
declared,” for if the constitution had contemplated a formal judgment or declaration by a
court, it would not have provided that the disqualification shall be operative from the date
of the publication of the report.
Azu Crabbe J.A. (as he then was) dissented, arguing that it would be gross injustice to
impose a disability on a citizen based upon the findings of a commission of inquiry,
notwithstanding that those findings are palpably erroneous or biased.
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Rep v. Chairman, Commission of Enquiry (SFC) Accra, Ex Parte Bannerman

(Constitutionalism, Separation of Powers)
Facts: On 26th June 1967, the Chairman of the Commission of Enquiry (SFC) appointed
by the NLC on 18th February 1967 under the Commissions of Enquiry Act, 1964 (Act
250) to enquire into the management and other matters relating to the State Fisheries
Corporation, in a letter, purported to suspend V.O. Bannerman (applicant) who was the
distribution marketing manager of the corporation. The receipt of the purported letter of
suspension by the applicant gave rise to his instituting proceedings in the High Court for
writs of certiorari,
i.) to quash the decision contained in the letter, that is relieve him of his duties with
immediate effect; and of
ii.) prohibition to prevent the Chairman of the commission from suspending, dismissing,
interdicting or in any manner interfering with him in the performance of his duties as
distribution marketing manager of the S.F.C.
Held:
(Edusei J. as he then was):
i. That the Commission or its Chairman acted ultra vires their justification, having regard
to the terms of E.I. 6/67, that is Instrument under which the Commission of Enquiry was
appointed under Act 250, and accordingly the Commission or its Chairman was
prohibited from suspending , dismissing, interdicting or in any way interfering with the
applicant in the performance of his duties.
ii. That the NLC had also acted ultra vires in suspending the applicant (and 3 other officer
of the corporation). Certiorari and prohibition therefore to issue.
Rules Governing Certiorari and Prohibition

Against whom or against which bodies will certiorari lie?
Prerogative writs are public law remedies and not private law remedies and so lie only
against public companies and will not lie against private ones. It will only lie against
private statutory bodies in their exercise of their constitutional duties. In Ghana, these
remedies has been held to apply to Commissions of Inquiry, against disciplinary
proceedings, public institutions etc. In case of disciplinary proceedings, it can be against
judicial bodies (Courts), rent officers and rent magistrates, against chieftaincy tribunals.
Chieftaincy Tribunals: Ex parte Tiwaa, Ex parte Oppong Kwame

Court Martial/Military Tribunals: Ex parte Ofosu Amaah
District and Metropolitan Assemblies, Police, Licensing Authorities, Ministers,
Government: Kwakye v. AG.
Police: Botwe v. Mensa
Commissioner of Income Tax: (C.I.T. v. Fijnhouthandel): Ghana Court held that
certiorari and prohibition only apply where a body is performing a judicial or quasi
judicial act. This view of the law is wrong and is not the more modern view. The better
position is that rules of natural justice and certiorari and prohibition are applicable where
interests of a party is affected, and that is the determining issue.
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The full bench of the Court of Appeal, then the highest court in the land, held
in the Fijnhouthandel case, that certiorari and prohibition will only apply when
performing quasi and quasi-judicial function. This is a wrong view. Where a
statutory/public body does an act that affects rights of anybody, it will apply.
Ridge v. Baldwin
Kwame Addow Case
Anisminic Case
It will apply to where a body is doing judicial, quasi-judicial, administrative, executive –

if takes action that affects somebody, then will apply.
Who Can Apply?

In ordinary litigation, an applicant for certiorari or prohibition must have a personal
interest in the matter. The party must establish locus standi – personal interest in the
subject matter of the dispute in order to bring the action. A busy-body cannot bring an
action. You must have a personal interest in the matter. You cannot go meddling in
somebody else’s business. Irrespective of the merits of the case, the applicant must have
standing.
Ex parte Kusada
In constitutional matters, where an application is brought for enforcement or

interpretation, there is no requirement that applicant should have personal interest in the
matter.
On the other hand, the Courts have held that where an allegation of violation of
fundamental human rights of a person is made under Article 33106 as opposed to Article
2107, applicant must exhibit a personal specific interest in the matter - Going to High
Court under Article 33 as opposed to going to Supreme Court under Article 2.
Where the provisions of the constitution are clear and there is nothing to interpret, then
one should not bring case to Supreme Court so if one goes to the Supreme Court,
applicant should show that there is some dispute or has some interest in the matter. Only
then will the Court allow the applicant to come under Article 2.
Generally, the existence of a right of appeal does not affect the application for
certiorari or prohibition so there is no requirement that you should exhaust all other
106
Article 33 (Protection of Rights By The Courts):
(1) Where a person alleges that a provision of this 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.
107
Article 2 (Enforcement of the Constitution)
(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 in contravention of a provision of this Constitution, may bring an action in the
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remedies before applying for certiorari. You can apply for certiorari or prohibition even
though you have right of appeal.
Kwame Addow case
In this case, it was noted that Supreme Court under Article 132108 has supervisory
jurisdiction over all courts and any adjudicatory body. This power was granted for the
first time in 1979.
Generally, when you apply for any of these prerogative writs, you apply to the High
Court because High Court has supervisory jurisdiction. Then Article 132 was inserted,
which gave Supreme Court supervisory jurisdiction over all courts. One possible
interpretation is that the Supreme Court now has supervisory jurisdiction over the Court
of Appeal and High Court so one can ask for prohibition against these courts from the
Supreme Court.
In the Kwame Addow case, there was an application against the High Court from
Supreme Court under Article 132. There are 2 things to note,
i.) Supreme Court in a more general way, indicated that it does not like the supervisory
jurisdiction granted by Article 132 and felt that the supervisory jurisdiction was one to be
properly exercised by High Court over the bodies and inferior tribunals so where one was
alleging lack/excess of jurisdiction, error of law on the face of the record etc, if it is in
respect of High Court or Court of Appeal, they would much rather that it go through the
processes of appeal rather than exercise of supervisory jurisdiction so Court will prefer
that you go through process of appeal.
On What Substantive Grounds Can You Apply for Certiorari or Prohibition?

i.) Lack of excess of jurisdiction
ii.) Breach of Rules of Natural Justice
iii.) Error of law on the face of the record
Lack or Excess of Jurisdiction: Certiorari or prohibition will lie where there is a

body/person purporting to exercise power it does not have or is going beyond
power/jurisdiction it does not have. Where it does not have power/authority at all, we say
there is lack of jurisdiction. Where it has it but goes beyond it, we say there is an excess
of jurisdiction. Lack of jurisdiction may be either procedural or substantive.
It may be substantive in the sense that you are claiming that this body/power has
not got it/will never have it (substantive). On the other hand, your complaint may be that
it may have some power but some constitutional procedure for exercise of that power but
lacks authority to do it.
Ex parte Bannerman
108
Article 132 (Supervisory Jurisdiction of Supreme Court)
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.
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This case also dealt with the power to suspend, purported power of NLC to suspend.
Court on both counts said that it did not have that power.
Breach of the Rules of Natural Justice: The second main reason for which prohibition
or certiorari will lie will be breach of the rules of natural justice.
Ridge v. Baldwin
Ridge v. Baldwin
Facts: In 1956, the plaintiff was appointed chief constable of a borough police force, the
appointment being subject to the Police Act and regulations. In 1963, the plaintiff had
been dismissed by his Watch Committee, the defendants, without being given an
opportunity to be heard.
Held: The requirements of natural justice were not observed by the Watch Committee.
Dismissal was illegal, ultra vires and void
Error of Law on The Face of The Record: Third reason is error of law on the face of
the record.
Kwame Addow case: For discussion of error on the face of the record.
Anisminic v. Foreign Compensation Commission109
When one talks about an error of law on the face of the record, one means a fundamental
mistake of misdirection which is clearly obvious when you look at the decision or the
judgment in question. Here, your compliant is not that a body does not or has exceeded
jurisdiction but that it is apparent that on the face of it, a blunder/fundamental error has
occurred. It must be fundamental, and not some small mistake you would deal with by
Appeal. It will include things like a statute, or asking oneself the wrong question, or
taking irrelevant matters into consideration, or operating on clearly incorrect legal
principles and things that are so fundamental that it affects in a state the very foundations
of what has taken place. In these cases, Court has held that you can apply directly for
certiorari or prohibition.
Mandamus110
Mandamus is an order issuing from a Court (High Court in first instance) ordering a
person/body that has failed to discharge a duty/function, to discharge its functions.
Mould v. De Vine111
109
[1969] 2 A.C. 147
110
A prerogative writ which issues to some person or body to compel the performance of a public duty.
111
[1962] 1 GLR 533
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Mould v. de Vine
Facts: de Vine, a former occupier of a house in Accra had ran up water bills. The
Waterworks Department cut off water supplies to the house pending the arrears of water
bills. As a result of a court action, ownership of the house was vested in Mould and
Waterworks refused to reconnect until she paid the arrears. She contended that the arrears
were a debt due from the previous occupier which the department could recover through
a civil suit and that she was entitled to have the house reconnected. At an Accra High
Court, she filed an application for an order of mandamus to compel the engineer-in-
charge to restore the water on the ground that the debt was doe from the previous
occupier which the respondent could recover through a civil suit.
Issues: i.) Whether mandamus lies against the Republic
ii.) Whether respondent has a duty to connect water to private buildings.
iii.) Whether the respondent were entitled to recover debts.
Held: i.) Mandamus lies to compel a public body to perform a public duty which it has
failed to discharge.
ii.) The Waterworks Department has a duty to supply water to the public and must show
good reason why a particular house shouldn’t be connected.
iii.) By Section 39 of the Water Works Ordinance, the Water Works Ordinance, the
Waterworks Department is entitled to take civil action to recover debts due to it from
landlords. The department can’t use the fact of de Vine’s indebtedness as an excuse for
refusing to connect water to the applicant.
iv.) An order of mandamus doesn’t lie against the Republic but it can issue against
officers of the state who have defaulted in performing a statutory duty.
Like certiorari and prohibition, this is a public law remedy so it lies against public
officers/bodies and not against private persons. This will apply to constitutional
commissions like Lands Commissions.
Ex parte Kludze: Kludze got Lands Commission to register his documents in respect of
a plot of land.
2.) Secondly, there must be the non-performance of a duty. It means first, there must be a
duty so if there is no duty, there can be no performance of duty. Where party/person has
discretion, it cannot be compelled to exercise the discretion in a particular manner. You
cannot get an order of mandamus to act in particular way.
3.) There must be a prior demand. Before mandamus, you must have asked person to act
and the person has failed to act.
In Re Botchwey, mandamus was brought to compel the police to charge a person.
Complainant thought police were dragging their feet. Court held that mandamus would
not lie but police was not under obligation to charge but to weigh evidence and decide
whether to charge or not.
Note that the courts have held that you can apply for mandamus to compel
statutory person to make a decision so if you have applied for building permit, you can
insist that a decision must be taken. What you cannot get mandamus for is for a particular
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decision to be taken. You can get mandamus as to whether to be granted building permit
or not, but not mandamus to grant you that permit.
Quo Warranto112
By what warrant or authority are you acting?
It issues to restrain a person from acting in an office to which he/she is not entitled. So it
issues by way of an injunction. So somebody unlawfully seeks to exercise in an office
that he/she should not occupy, if it is found that that person is a usurper, then an order
will be issued against him. The office in question must be a public office so if it is not a
public office such as a limited liability company, you go by ordinary injunction, not quo
warranto.
Under Order 55 (Application for Judicial Review)of the new High Court rules, you go
by motion supported by an affidavit – motion in which you indicate remedy applying for.
You would apply for judicial review under Order 55, must specify what remedy applying
for, and the grounds upon which you are applying for - error on the face etc - also,
indicate person/persons against whom you would want the order to be made and any
other persons affected.
This motion paper will be supported by an affidavit supported by a person duly
authorized to do so, setting out the facts etc. Application must then be served on all the
persons affected. Before the High Court Rules 2004, the application for the writ was in 2
stages. You applied to court ex parte (without notice to other party), and then you went to
court where you applied to judge alone for judge to make up mind whether there was
enough justification for the other party to be brought in and if court granted you leave,
you went through the same process and you served on the other parties. If court did not
grant you leave, that was the end of it.
The rules have been changed and now, it is a one-time application and notice to
the other parties. Within 14 days, applicant must file out properly argued presentation as
why courts should, which will be served to other party, who could decide to file reply.
Application for prerogative remedies must be brought within 6 months of the act
complained of. The Court has power, after cogent reasons have been given, to extend the
time.
Habeas Corpus113
Produce/Bring the Body
It lies to compel a detaining body (Police/Prison authorities/Military) to produce body of
a detained person on a certain day and to justify the detention, and if it cannot be
112
[By what authority.] A prerogative writ issued against one who claimed or usurped any office, franchise
or liberty, to inquire by what authority he supported his claim.
113
A prerogative writ used to challenge the detention of a person wither in official custody or in private
hands.
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justified, the courts will order release. It is meant to check unlawful detention and
interference with freedom of people. It is a public law remedy so it will not lie in a
private matter such as the tort of false imprisonment. It is one of the most important
remedies for checking this. In Ghana, remedy has not been very effective because in
immediate aftermath of independence, Court said where detaining authority exhibits an
executive authority or such instrument which shows person is being detained by state in
interest of national security, then the court will be barred into going into grounds upon
which the executive is detaining.
Re Okine
Ex parte Ibrahim
Re Akoto
When the detaining authority files its defense - the Minister has issued an executive
instrument saying these persons should be detained - that is the end of the matter.
In 1949 when the battle against Achaempong and SMC II was waged, in famous case of
Ex parte Quaye Mensah114, the courts departed from this position.
Ex parte Quaye Mensah

Facts: A blind old man, 82, asthmatic, had been detained. An application was brought on
his behalf. It was alleged that he had been detained because the authorities could not find
his son and that by detaining father, son will show. Habeas corpus was brought on his
behalf. The state exhibited an executive instrument saying that the detention was in the
interest of national security. The case went before the Court of Appeal
Held: Court said the reason given by the state was not satisfactory. When state says it is
in the interest of national security, we are entitled to carry out an enquiry. Upon what
grounds does the state say it is in interest of national security? Court held that it did not
see how an 82 year blind asthmatic person, could be a threat to national security in
Ghana, and the man ought to be released.
In 1982, the PNDC took us back to Re Okine and Re Akoto line of cases in the Habeas
Corpus Amendment Law. The Habeas Corpus Amendment Law said that when the state
decides, that should be the end of the matter. That has now changed since 1993 and it
became clear that PNDCL 91 was not good. Habeas Corpus (Adaptation to
Constitutional Instruments 1993 CI 6) - This restores the ex parte Quaye Mensah and
repeals PNDCL 91.
The application for habeas corpus must be brought by the detained person or a close
relative. There must be standing, and person must be detained before this writ of habeas
corpus can be brought. So in a case where the Ghana Bar Association brought a habeas
corpus, it was held that the Ghana Bar Association cannot bring an action, and that the
person bringing the action has to have an interest in the matter.
114
1979 GLR 429
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Private law remedies arose under common law.

Declaration – Common law remedy
Injunction – Equity
Declaration115
The declaration is an authoritative statement by a court of law specifying what the legal
relationship is in a particular matter with regards to an issue - For example, an order for
declaration to land (private law). Court declares that you are owner. In constitutional law,
you want court to declare that you are a Ghanaian.
Captan v. Minister of Interior
Shalabi cases
Captan v. Minister of Interior

Facts: Plaintiff claimed a declaration that he was a citizen of Ghana by naturalization and
could not be asked to leave Ghana and was entitled to be issued with a certificate of
naturalization. Plaintiff had applied for naturalization in July 1968. It had been approved
and he’d sworn the oath of allegiance, and he was told he’d become a citizen of Ghana
only when a certificate remained on the file of the Minister of Interior as plaintiff had not
produced the Presidential Decree asked for.
Held: The issuing of a certificate is a very necessary prerequisite to naturalization and
once this had not been issued, it lies at the discretion of the Executive to decide whether
they would issue it or not. Plaintiff is thus not a Ghanaian citizen and must deport
forthwith.
Shalabi v. Attorney General

Facts: The plaintiffs, formerly of British nationality, took out a writ of declaration that
they were Ghanaian citizens and therefore entitled to operate a transport business
notwithstanding the provisions of the Ghanaian Business (Promotion) Act 1972 (Act
334). They had obtained Ghanaian passports in 1968 by virtue of N.L.C.D 191 Paragraph
1. For the Attorney General it was submitted inter alia that the N.L.C, being the sovereign
body of the land could do whatever it liked, including depriving persons of their
citizenship, and that by N.L.C.D 333, paragraph 1 of N.L.C.D 191 had been obliterated
by retrospective substitution and consequently every person who acquired citizenship
under N.L.C.D 191 ought to be deemed never to have acquired such citizenship.
Held: By Article 5 and 6 of the 1969 constitution, the plaintiffs remained Ghanaian
citizens.
It is an authoritative pronunciation on state of law with regards to particular matter. A

declaration is usually accompanied by an injunction but not necessarily so. In Sallah v.
AG, applicant sought a declaration that on a true and proper interpretation of the
provisions of Section 9 (1) of the Trans. Provisions, the government was not entitled to
terminate his appointment as a Manager of the GNTC.
115
A formal statement intended to create, preserve, assert or testify to a right.
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In public law matters and in constitutional matters, the declaration sought to check the
administrative, legal etc, actions of public bodies. That’s what a declaration does
particularly when going under Article 2.116 First thing you want is a declaration that that
act is unlawful, and it is only after court has done that you can say that because of that
something should happen.
NPP v. GBC
NPP v. IGP
In all these cases, application in first instance for a declaration.
N.P.P. v. G.B.C.
Facts: Plaintiff, a political party sought a declaration from the Supreme Court in the
exercise of its original jurisdiction, that,
a.) By virtue of Article 163117 and 55(ii) of the 1992 constitution, the G.B.C, as one of
the state owned media, had a duty to afford the N.P.P. fair opportunities and facilities for
presentation of their views especially where they were divergent from those of the
government and,
b.) The refusal of the G.B.C. to afford them equal time on TV to present their views on
the 1993 budget was a violation and contravention of the constitution.
Held: Article 163 of 1992 constitution, mandatorily requires the G.B.C. to afford the
plaintiff fair opportunities for presentation of their divergent views and dissenting
opinions and that the defendants had no discretion in the matter.
NPP v. IGP: Supreme Court declared that requirement of a prior permit was
unconstitutional to freedom of association and right to freedom to demonstrate.
NPP v. Rawlings
Facts: The day after reasons for previous case had been given, Rawlings appointed (same
persons nominated for elections as District Chief Executive) as District Secretaries.
Plaintiffs, instituted proceeding against him under Article 2 challenging right of
President to make the appointments. They sought a declaration that appointment by
president were inconsistent with 242, 243, 246-247 of constitution, order to set aside
appointments and injunction prohibiting president from appointing District Secretaries to
perform functions set out in constitution to be performed by District Chief Executives.
Held: Declaration dismissed. Before the enactment on 24th December 1993 of the Local
Government Act 93, Act 462, PNDCL 207 continued to have full force and had effect as
116
Article 2 (Enforcement of the Constitution):
(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
117
Article 163 (Responsibility of State Owned Media): All state owned media shall afford fair
opportunities and facilities for the presentation of divergent views and dissenting opinions.
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an existing law and that the president had properly exercised power by virtue of Section
23(1) of the Transitional Provisions of 1992 constitution which provided that “until
Parliament otherwise provides by law, existing laws regulating the operation of District
Assemblies and other local authority shall continue to regulate their operation.
Injunction118
Injunction is an equitable remedy. An injunction is an order of the court requiring a
person, public or private, from doing or refraining from doing certain specified acts, so it
may be positive (mandatory). On the other hand, it may be negative – restraining
performance of an act, and in that case, we say there is a prohibitory injunction.
In NPP v. IGP, a mandatory injunction was given by the Supreme Court. After
the court had declared that public order decree unconstitutional, Court ordered that they
exhibit notices showing that public order decree was unconstitutional, and the police
complied. In NPP v. GBC, this was also a case where mandatory injunction was issued
by the court to give equal time to opposing political parties on the matter of the national
budget, which GBC did.
In 31st December case, a mandatory injunction was granted to prevent 31st

December from being declared and observed as a public holiday and celebrated as such
out of public funds.
In NPP v. JJ Rawlings and Electoral Commissioner, a prohibitory injunction
was granted. There, the NDC had planned to hold elections on a Saturday. Interim
injunction was asked for and an order of injunction stopping Electoral Commission from
going ahead with the Elections because District Assemblies in existence were not the
same as envisaged under the constitution.
An injunction may also be interim/interlocutory119 or perpetual. An interim injunction is

referred to as interlocutory injunction.
We say an application is interlocutory where the purpose is to arrest/freeze a
certain situation/consequences of an act/omission that is pending. It is clear that if that
certain matter is not prevented from happening, it may render determination of the court
meaningless. For instance, elections had been planned in NPP v. Electoral Commission
for a Saturday and there, there was no way that the case could be determined before
Saturday, and there was a certain futility with regards to allowing the election to go on
and then declaring it null and void so it was better to have the issuing of interim
injunction.
Balogun v. Edusei
Lardan v. AG
118
An order or decree by which a party to an action is required to do, or refrain from doing, a particular
thing.
119
An interim injunction may be granted at any time after the issue of the writ to maintain things in status
quo.
A perpetual injunction is granted only after the plaintiff has established his right and the actual or
threatened infringement of it by the defendant.
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In these cases, person was claiming to be Ghanaian. It did not make sense to deport and
then decide whether Ghanaian or not so interim injunction granted to prevent any steps
that will affect the parties, cause irreparable damage to rights of parties if rights not
frozen.
In Ekwam v. Pianim, this is another case where interim injunction was granted because
if the candidacy had been determined, Court could later determine that Mr. Pianim was
ineligible so Court decided that candidacy should be placed on hold until determination
or otherwise of Mr. Kwame Pianim’s eligibility.
An order of interlocutory injunction automatically expires with the determination of the

case. An interim injunction may be granted by both parties to an action so the Court may
decide that not only applicant but also, plaintiff must do something. For interlocutory
injunction to be granted, there must be a substantive matter before the court. As ancillary
matter, applicant also asking for injunction. A permanent injunction can only be given at
the end of a case, after the determination of a case. That means that unlike the
interlocutory, a permanent injunction can only be granted against the losing party in an
action. In the 31st December case, in NPP v. GBC, permanent injunctions were granted.
Significance of the Declaration and Injunction recognized by Order 55120 which says
that in an application for judicial review, a court where decides appropriate can grant an
injunction and is the reason why the declaration and injunction have become more and
more useful, more and more preferable. The declaration and injunction are simpler and
that is why the new Order 55121 makes it possible for application of judicial review to use
declaration and injunction as well.
By Order 55, one of the drawbacks was that they took longer to get. With the prerogative
applications, there is no oral evidence taken – the whole case is tried on the affidavit.
There are no witnesses called etc. Generally, most of the cases, it is not the facts but the
law that is in dispute. Courts have power to call in evidence where it is a prerogative writ
but it is the exception, not the norm. It is much faster than suing etc. Under new rules, it
is possible for judicial review and under Order 55, can ask for declaration and an
injunction.
Injunctions Against the Republic

By virtue of Section 13122 of State Proceedings Act, Act 51, in ordinary litigation as
opposed to constitutional litigation, an injunction will not lie against the Republic of
120
Application for Judicial Review
121
Application for Judicial Review
122
Section 13 (Nature of Relief Against The State):
In any civil proceedings by or against the State, the court shall, subject to this Act, have power to make
such orders as it has power to make in proceedings between private persons and may give such relief as the
case may require.
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Ghana or a servant of Republic, where effect of restraining the servant will be as if the
Republic itself had been restrained.
PPP v. AG
-In PPP v. AG, the people wanted to go on demonstration against Busia’s dialogue with
South Africa so asked for permit and went to court to compel IGP to issue the permit to
go on demonstration. Court held that an injunction would not lie against IGP by virtue of
Section 13 of State Proceedings Act.
-In Quashie Idan, Court held that on a proper interpretation of Section, it is the Republic
itself which cannot be held and that it is possible for an injunction to be brought against a
servant of the Republic but will not be brought if the effect is to restrain the Republic
itself.
-Ordinary litigation (litigation not of a constitutional nature)

-In constitutional litigation, an injunction can be held against the Republic or a servant of
the Republic.
Article 2: Enforcement of the Constitution

(2) The Supreme Court, shall, for the purposes of a declaration under Clause (1) of
this article, make such orders and give such directions as it may consider
appropriate for giving effect, or enabling effect to be given, to the declaration so
made.
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Traditional Constitutionalism – Chieftaincy Law
Our traditional chieftaincy is at the heart of our traditional constitutional systems and in
each of these systems, the position of the chief is pivotal. Basically, when we talk about
chieftaincy, we are talking about the different leadership roles played in our traditional
constitutional systems. This is listed in Section 48 of the Chieftaincy Act, 1971 (Act
370) There, you will find the different kinds of chiefs we have there, the different kind of
leadership positions that you have there.
Dagbon traditional area does not have a queenmother as chief. The general belief that
chieftaincy is a male dominated governmental system is not generally correct and this
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belief is spread by those that do not know the system. In some systems, a chief cannot be
at loggerheads with the queenmother. It is not a male dominated system. We do not have
a monolithic system but a system that is complicated. The system has become more
complicated because of emergence of modern governmental system, so for most of us,
have to answer to 2 constitutional systems. Discussions about our traditional
constitutional systems have been confused over years by,
-Contact with emerging government system, and
-Efforts to translate into English titles of some of these leadership positions of Paramount
Chief/Omanhene is a source of confusion in many parts of the country.
The chief is central to the chieftaincy system around which our traditional governmental
systems revolve. That institution as a whole has been guaranteed in its traditional roots by
current constitutional arrangements.
Article 270(1): Institution of Chieftaincy

The institution of chieftaincy, together with its traditional councils as established by
customary law and usage, is hereby guaranteed.
So who can be a member of traditional council?

It is determined by customary law and usage.
Asante at custom had 2 kinds of traditional councils.

-Regional House of Chiefs is not a statutory creature.
-The diversity of the leadership positions and the non-monolithic nature is found in
definition of who a chief is, which we find in the national constitutions.
Who is a chief is to be found in Article 277 of constitution.

Article 277: Definition of Chief
In this Chapter unless the context otherwise requires, “chief” means a person who
hailing from the appropriate family and lineage, has been validly nominated, elected
or selected and enstooled, enskinned or installed as a chief or queenmother in
accordance with the relevant customary law and usage.
Eku alias Conduah

-Question of whether head of a fishing community was a chief?
Eku alias Conduah III v. Acquah

Facts: This is an appeal against a decision refusing an application for an order of
certiorari to remove into the High Court for the purpose of quashing the proceedings and
judgment of the Shama State Council in a dispute between the parties as to the headship
of a fishing community and as to the right to collect tolls from the fishermen in the
community. The main ground of appeal was that the subject matter of the claim in the
said suit was not a matter of constitutional nature, the said subject-matter being the
headship of the fishing community of Aboasi and the right to collect fishing tolls and
therefore it is not within the jurisdiction as defined by the State Councils Ordinance.
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Native Administration Ordinance Section 40: which intended to vest the State Council
with jurisdiction in disputes of a political and constitutional nature only between
Paramount Chiefs, Divisional Chiefs and chiefs.
Held: It’s beyond the possibility of any argument that the State Council was vested by the
Native Administration Ordinance with jurisdiction to interfere in matters relating to the
headship of a village community. Jurisdiction to adjudicate in disputes concerning a
headman was reserved either for the Divisional Chief Tribunal or Paramount Chief’s
Tribunal, so also jurisdiction in ordinary civil and criminal matters was reserved for the
Paramount Chief’s (Divisional Chief’s Tribunal and this matter was within the exclusive
jurisdiction of the Paramount Chief’s Tribunal who had a discretion to confirm/approve
the appointment of a headman or to dismiss him). Appeal allowed, and decision of
Council, a nullity.
There are some parts of the country where the heads of certain families are considered as
chiefs. There are a number of observations,
1.) Person, whether male or female, must hail from the appropriate family and lineage.
This means that it is not sufficient to hail from the family. Within the family, must hail
from the appropriate lineage.
-Has been validly elected, nominated, selected (3 ways in which chief chosen)
-A candidate has emerged. Then,

Enstooled
Enskinned
Installed as chief
-In some places, the symbol of office is a staff (installed), some skin (enskinned), some
stool (enstooled). In those communities where symbol is stool, one cannot claim to be a
chief if one does not have a black stool.
There has been an accommodation between chieftaincy and emerging modern

institutions.
Clause 2 of Article 270
Parliament shall have no power to enact any law which
a.) Confers on any person or authority the right to accord or withdraw recognition
to or withdraw recognition to or from a chief for any purpose whatsoever.
Do chiefs have judicial power?

According to the Courts Act, the chiefs do not have judicial power. In reality, there are
chiefs adjudicating in matters right now.
-Traditional system is Conciliar.
Conciliar basically means that the chief rules in Council. It is the chief in Council that
administers.
-System is conciliar and it is non-adversarial. Everybody is equal in the chief’s Council.
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Goldschmidt writes a book and gives reasons why constitutions are unstable in our
traditional constitutional law. She indicates elements in our traditional constitutional law
which makes it more stable.
One of the things you find in Goldschmidt’s book is efforts put in to elect the
office holders. Incoming chief was thought ways of his people, the art of public speaking,
how to stammer etc. Goldschmidt is of the view that if we could only anchor in
traditional, our national constitutions would be more stable.
Institution of chieftaincy has been much more stable since formation of Ghana
than overall. Institution is about economics, about politics. There are a number of
structures,
-Traditional Councils
-Regional House of Chiefs
There is the question of loss of chiefly office. In some parts of the country, person who
has office cane never loses it. In some places, can lose it. Chiefly position can be lost by
death also.
Jurisdiction in Chieftaincy Matters

1.) Have to make sure matter affecting chieftaincy (Act 370)
Superior Courts
/
------------------------------------------------------------------------------------------------------------
They are all lower courts established by power given to Parliament to establish Lower
Courts.
National House of Chiefs (Basically, an appeal Court)

/
Regional House of Chiefs
/
Traditional Council
Superior Court reiterated that as chieftaincy, High Court and Court of Appeal have no
jurisdiction. Because they are lower courts, may be subject to operation of prerogative
writs.
Lack of financial support means some of chiefs depend on the stipend from the
state and things like resources such as trees etc. appropriated from them by government.
There is the question of whether the Omanhene can elevate one of his sub-chiefs to
Paramouncy status?
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-In 1969, deliberate policy in the constitution making process was adopted to basically
tame the exercise of Executive powers.
-2 things in particular were settled on,
1.) To try to take from Executive functions that it was thought ought to be carried out
with as little partisanism as possible.
A number of buffer institutions were set up. This is what we call genesis of
independent institutions.
-A lot of the tasks and responsibilities assigned to these and their structural safeguards
meant to protect them against the interference of the Executive.
-Most of the tasks are tasks that belong mainly to the Executive branch. In some cases,
provided with what you might call quasi-judicial functions –Auditor-General, Public
Services Commission, some may add Attorney General (does not fit the bill completely)
etc.
-Reason that referred to as independent institutions – structure of government founded on
the existence of autonomous bodies. Legislature is autonomous etc. so in a way,
independent institutions.
-Reason why other structures referred to as independent institutions – provision in
Charter in which each of these institutions appear and the independence attached to this
National Media Commission.
Article 172:
Except as otherwise provided by this constitution or by any other law not inconsistent
with this constitution, the National Media Commission shall not be subject to the
direction or control of any person or authority in the performance of its functions.
Article 225 (Commission of Human Rights and Administrative Justice)
Except as provided by this constitution or by any other law not inconsistent with this
constitution, the Commission and the Commissioners shall, in the performance of their
functions, not be subject to the direction or control of any person or authority.
-This independence is not absolute – Framers assume that there may be things in
constitution that limits its independency.
-Institutional safeguards intended to facilitate their work.
-Tarnabi v. EC
Tarnabi had been out of the country. To understand whether Supreme Court was
delivering principled judgment, need to understand who he was. He was person in charge
of judiciary. He is outside of country when EC organizes registering of voters. He says
that Article 42 in the constitution allows him right to register to vote. Supreme Court says
constitution guarantees man the right to register to vote and you cannot use
administrative inconvenience to deny him.
-Aim to provide Electoral Commissioner with independence so as to perform its
functions by itself.
-National Media Commission constituted of interest groups –Parliament has 2, President

has 3, Journalist Association has 2, whole group of Associations made up of one.
-There are about 18 and they in turn elect their chair. It means the president is not the
appointing authority.
-The independence of these institutions do not depend only on the rules – depends on
people who think that independence is a good thing in the government system.
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-For institutions to be independent, everything depends on the members.
Commission on Human Rights and Administrative Justice

CHRAJ is 3 institutions rolled into one,
1.) Ombudsman is responsible for overseeing administration and drawing attention to
maladministration.
2.) It is our human rights commission
3.) It is our national anti-corruption agency
In other countries, it is assigned to 3 separate institutions and they are struggling.

-We have a commissioner and two deputies.
-The Commission itself has not developed 3 different processes for dealing with this.
There are the same proceedings for dealing with all three. There are the same proceedings
for all three, which is a problem.
-The Commissioner has terms and conditions of Court of Appeal judge, and deputies, that
of High Court judge. If they make a recommendation and you do not agree with it, has to
be pursued in the High court.
Ex parte Addow
-Supreme Court explains carefully why things have to be the way they are.
-National Human Rights Commission cannot adopt the mentality of a prosecutor.
Local Government
-We noted from the earliest emergence of the modern constitution that the agitation for
constitutional reform has concentrated on how to structure government to make it
representative of people as well as responsible to the people, and at every major point of
reform of this constitution, there has also been some reform of local government.
-That is part of way of trying to make government responsive and responsible to the
people.
-You can have a government that is not responsive because location of decision making is
too far away from the people.
-Whole question of government being responsible to the people is what call for reform
was about.
-Some confusion, because you had central government, local government, and traditional
government.
-Fight between central government, local government, and traditional government, and
the fight remains fairly active matter for us today. Local government viewed as weak,
central government viewed as more prestigious than the local government.
-Local government did not have power to make decisions on the spot, thus causing
delays, and had no resources, no personnel.
-Whiles the central government personnel was permanent, large part of local government
was mainly voluntary. Large part of the ‘members’ were volunteers.
-Because of lack of clarity of functions, in some cases, duplication of resources.
-Several attempts to reform the system and current system is product of reforms that we
introduced in 1980’s.
-1980 reforms had 3 policy objectives;
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i.) Democratization
ii.) Decentralization
iii.) District Expansion
Constitution, Chapter 2 (Territories of Ghana)
Local Government Act, Act 462.
District Assemblies Common Fund Act, Act 455
Decentralization Element: 2 cardinal elements seem to underpin – Deconcentration and

Devolution. The deconcentration involves the moving of personnel and creating of
offices from center to district.
-District expansion element involved making sizes of districts a little more meaningful.
At the time, we had 65 districts and now we have about 138 districts so one can see the
colossal nature of the reform.
We have a 4 tier system that is introduced there as a result of the reforms. You had
Local, District, National. Government is now a four tiered structural system.
-New local government system. At the top is the president. He has to appoint the District
Chief Executives, has to appoint 30% of members of deliberative wing (District
Assemblies).
-Then you have the cabinet beneath.
-Then, Regional Coordinating Councils, then Metropolitan Assemblies, Municipal and
District Assemblies.
-When it comes to breaking it down to lower levels, different.
-For metro – sub-metro, town councils and unit committees, municipal – zonal and unit
committees.
Unit councils has legislative functions.
-Sub-metro and zonal, management functions.
-Unit committees supposed to be one implementing and monitoring.
-Central government –Unsure about loss of power, loss of influence, and fear that they
may be fueling secessionist tendencies as people think less and less of the central
government.
-Key problem with democratization is that,
1.) Should all key members be elected?
2.) Should District Chief Executives be elected?
3.) What relationship should there between the District Chief Executive and presiding
member?
4.) What relationship should there be between the District Chief Executive, presiding
member, and members of Parliament?
-Whole idea is that if elected, responsive to, and responsible to the people.
-The nature of Districts themselves –If going to have elections, not inconceivable that
District Chief Executive etc. will all come from the same town. Will it make for peace,
collaboration in the system? You can say it does not matter because actual
implementation at the unit level.
-Presiding member feels he is elected, while District Chief Executive is appointed so
presiding member feels he is in a better position to speak for the people.
-Whole business of this District expansion, gigantic project – from 65-138 now.
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-The other area of difficulty is in the deconcentration part – moving offices away from
the center. Establishment of District Assemblies Common Fund and to be distributed
according to formula by Parliament. Idea is that, in past, local government was weak
because it did not have money. Parliament must also cede some money to them.
-The economic resources of the country that can be taxed and levied are not evenly
distributed so finances available to the local government differ from District to District.
-Reforms had an unintended consequence –Regional Coordinating Councils.
-The mid 1980 reform, because they built on earlier reform, have improved our thinking,
and where we want to get to as a final destination. The difficulty is the journey.
-Whole problem of non-partisan nature of the elections.
-In actual practice, this non-partisan character is a sham and if so, might as well not have
it.
-If in practice political parties putting forward proxy candidates, unmask the whole
process.
-Does it matter that presidents adopt decisions of the Fast Track Courts? Would it matter
if he had not?
-President saying that losing of elections part of elections. What does it mean for
consolidation of democracy in Ghana?
135

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Constitutional Law Notes

LAW (Ghana Institute of Management and Public Administration)

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CONSTITUTIONAL LAW: VOLUME 2

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Article 35 Achieve reasonable regional and gender balance in recruitment and

Transitional Indemnity Clauses

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Article 57(4) President enjoys immunity from suits.

(8) Whenever absent, Vice-President acts in his place

(11) When both president and vice unable to perform, Speaker of

Article 62 All you need to be president is to be citizen of Ghana by birth, 40

Article 71 Salary arrangements/allowances/remuneration packages of

Article 76, Appointment of Ministers and Cabinet.

Section 13 of Reminiscent of Article 55 of 1960 constitution

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than 140 elected members

Article 94 Qualification of Members of Parliament

Article 95 Speaker is not a member of Parliament.

Article 97 Circumstances in which MP shall vacate his seat.

Article 99 Election disputes of parliament go to High Court (Wolensi Case)

Article 106 Deals with lawmaking process, procedure

Article 122- Contempt of Parliament

Article 127 Judicial independence

Article 159 Is the chief justice independent when he acts as an

Article 146 Removal process of Justice of Superior Court or Chairman

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determine whether there is a prima facie case.

Implication of Article Supreme Court judge is not a judicial officer.

Article 135(1) Supreme Court shall have exclusive jurisdiction to

Article 21, especially NPP v. GBC

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Though we have principle of 1 man 1 vote, unlike U.S, it

Article 50 Our constitution does not allow (Clause 3) a person to

Article 45 Functions of Electoral Commission

Passage of 2 pieces of legislation in 1964, Act 230 and 250

Chapter 23 Articles 278-283

Article 278 President may inquire/appoint a Commission of inquiry into any

Article Where a Commission of Inquiry makes an adverse finding against

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Article Where the report of a commission of inquiry is not to be published,

Human Rights – Which Court has Jurisdiction

Commission/Committes of Enquiry Cases

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4.) Republic v. Otu & Kwapong

Who Has Capacity to Raise These Constitutional Issues?

-Constitution also brings ours in line with Nixon v. Sirica

Ohene v Principal Secretary, Ministry of Finance

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Injunction Against Republic

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Issue: Whether an Act passed in contravention of a

Plaintiff was chief and customary custodian of

Human Rights – Which Court has Jurisdiction

Benneh case -The entry of judgment purported to be pursuant to the

Maikankan v. -Counsel for the Republic applied that owing to

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Edusei v. AG Plaintiff brought an action in Supreme Court for declaration

Effect of Articles 33(1), 130(1) and 140(2) of 1992 constitution

Captan v. AG AG denies, by virtue of paragraph 6 of Ghana Nationality

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the plaintiff’s right of immunity.