Constitutional Law Notes 1st 2nd Semester

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Constitutional LAW Notes 1ST & 2ND Semester
Constitutional law of Ghana and its history (University of Ghana)
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Sybil and Asare Constitutional Law Dimidium Facti Qui Coepit Habet
The term constitutional law has been a subject of various definitions. According to Hood et al (constitutional and
administrative law, 5th edition), constitutional law is the law relating to the constitution of the state. The key
features of this definition are the employment of terms such as law, state and constitution.
What is a constitution?
The word constitution can be used in a broad sense and in a narrow sense. Using the broader sense, it can be
defined as a body of fundamental rules, principles, practices, conventions, understandings, attitudes, usages relating
to the system of government of a country. This definition defines the nature of a constitution. The constitution is
defined broadly according to Sir Kenneth Wheare as “the whole system of government of a country, a collection of
rules which establish and regulate or govern the government.”
These rules may be legal or non-legal. It may be legal in the sense that it is recognized and applied by the courts
and it is non-legal because it takes the form of usages, understandings, customs, or conventions which the courts do
not recognize.
This makes a distinction between hard and soft laws. Hard laws refer to the rules or principles which judges’ use
and can enforce in the courts. Soft laws, although important may not be enforced.
According to Marshall, the institutions of government are put in place by the Constitution. This definition tells us
that the institutions of government are not just created but are also given power to function. The rule of the
constitution regulation these institutions. It provides the rules that will govern the relationship between the
institution of government and the governed as well as the relationship between a citizen and another citizen.
A constitution is a document having special legal sanctity which sets out the framework and the principal functions
of the organs of government of a state and declares the principles governing the operation of those organs.
According to the narrow sense, the word constitution is used to describe not the whole collection of rules, legal and
non-legal but rather a selection of them which has been usually be embodied in one document or in a few closely
related documents. What is more, this selection is almost invariably a selection of legal rules only. It should
however be noted that most constitutions do not spell out in full, all the powers and functions of government. The
constitution merely provide for powers of the organs of government only in broad and general terms. Indeed when
we speak of the British or English constitution it refers to the collection of legal and non-legal rules which govern
the government of Britain. The legal rules are embodied in statutes like the act of settlement which regulates the
succession to the throne, orders and regulations issued under the prerogative or under statutory authority, may be
embodied in the decisions of the courts. The non-legal rules are found in the customs and conventions. This
definition defines the form of the constitution. In the narrow definition, the emphasis is on; the form in which the
constitution is presented i.e. a document and a premium is placed on writing.
In almost all countries in the world except Britain, the word constitution does not consists both the legal and
non-legal rules, it is rather a selection of them which are mostly the legal ones. Therefore such are used in the
narrower sense. Hence constitution in the narrow sense may be defined as a selection of legal rules which govern
the government of that country and which have been embodied in a document. The best example is the American
constitution of 1787. The constitution may establish the principle institution of government such as the legislature,
judiciary and the executive. Such important branches of constitutional law as the regulation of the electoral system,
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the distribution of seats, the establishment of government departments and others are in many countries not
embodied in the constitution itself, or if embodied, are treated only in general principle, they are dealt with by the
ordinary law. In some countries particularly U.S.A, certain of these laws are known as organic laws which are laws
which organize institutions, which regulate the exercise of public powers through organs which the constitution has
established.
Since the French revolution, a constitution, anthem and flag has been used to identify a people. The question
however arises thus; “if a society doesn’t have any of the above, can it be said to have a constitution?”
Characteristics of a Constitution
⦁ It is a product of the constituent power which must be external to the constitution i.e. it is made by the
people. This product might be evolving; implying changes may be effected over time.
⦁ It establishes a state, its divisions and system of government.
⦁ It is both law and the source of legal power.
⦁ It contains different kind of rules, conventions, practices
Major features of all constitutions
⦁ Contains the ideas, aspirations and values of the society concerned –Articles 35 and 36; 27
⦁ Contains some information on the structure and organization of the government and some information on the
rights and responsibilities of individuals.
⦁ Contains rules for its amendments depending on the history , experiences, and aspirations
When a constitution is said to be a fundamental law it implies that it is a document from which is derived the main
organs of government. Also, a constitution is said to be higher law because the law set in them are out of reach of
alteration by the legislature or capable of alteration by some solemn act which is distinct from the ordinary one of
the legislature.
Classification of constitutions
In an attempt to efficiently compare and contrast them, the constitutions of the world can be classified in several
ways. These classifications have come about because the differing constitutions of the world have their own unique
characteristics which have been shaped through certain factors such as their history, culture the influence of other
cultures and the system of control that prevails.
Firstly, constitutions have been classified into written and unwritten constitutions on the basis of whether they have
been documented and codified into a single document or not. Those that have been documented and codified are
thus termed written constitutions and those that have not, unwritten constitutions. The classification of constitutions
into written and unwritten these days has widely become unpopular because a review of its implications has
revealed that it is not a particularly useful point on which to focus analysis. It is a largely uninformative basis for
classification because almost all countries in the world with the exception of U.K and Israel have a written
constitution. There has also been some degree of cynicism with regard to the accuracy of describing constitutions
as written and unwritten. For it has been widely argued that there is no such thing as an unwritten constitution and
that the constitution of every country has both written and unwritten components. Due to the many controversies
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surrounding this system of classification it is rarely used.
Furthermore, constitutions may be classified in accordance with the ease or difficulty in which amendments may be
made. This classification, on the lines of what is termed rigid and flexible, owes its origin to Lord Bryce. Generally
where no special process is required to amend a constitution it is referred to as flexible and where there is a special
process required it is referred to as rigid. Its main disadvantage is that, according to Sir Wheare, like the written
and unwritten system of classification it places almost all constitutions of the world into one category (rigid) and
leaves the other two or so in the remaining category (flexible) and could therefore be misleading. Yet if we pay
more attention to the degree of rigidity then it is possible to discern differences among countries with rigid
constitutions. Again to regard this system of classification mainly on the grounds of amendment would offer an
implication that is not quite exact. For it tends to suggest that the more rigid a constitution is the less frequently
altered it is which is not the case. Wheare, in his book, again suggests that this classification was not intended to
mean that the more legal obstacles a constitution has, the less frequent alterations it will have. Case in point, the
Swiss constitution which is rigid is more frequently altered than the French constitution whose amendment requires
no more than the joint meeting of the two houses, the Chamber of dispute and the Senate. It follows, thus, to
acknowledge that the frequency of alteration of a constitution is not necessarily a matter of its ease of amendment,
but to a large extent, by the will of the populace.
More so, constitutions may be classified on the basis of the system of control and government into monarchical and
republican. This classification highlights the system of political power that is peculiar to a country as it structures
the constitutional provisions in accordance with that system. Throughout history many monarchs have wielded
absolute power and sometimes were even deified as in the case of pharaohs in ancient Egypt. This is in sharp
contrast to modern day monarchs who have very limited constitutional power. Most monarchical systems of
government are gradually shifting to a more republican type. To wit, whereas before, sovereignty rested in one
person (the monarch) these days most countries are adopting a system whereby the sovereignty rests in the people
(the republic). Consequentially, classifying constitutions into monarchies and republics is not regarded as one of
general significance as the role of most monarchs is now merely ceremonial and symbolic. Summarily, this system
of classification due to recent development has been rendered sufficiently useless because true systems of
monarchy barely exist.
Moreover, constitutions may also be classified into federal and unitary. The federal and unitary system of
classification involves distinguishing between constitutions on the basis of the system of allocation of powers
within the country. In the federal system power is allocated between the central government and the various states
that comprise the country such that both factions are to a large extent legally independent with each having its own
sphere of influence. In unitary states however, there is a hierarchical arrangement which centralizes power in the
national government. While the distinction between federal and unitary constitutions has some value, in that it
helps us to separate federal constitutions from the rest, its value is limited. This is because the class of unitary
constitutions is so wide and so varied that one may indeed wonder whether for the purposes of classification it is of
substantive value. Another demerit of this system of classification arises from the fact that some constitutions may
be unitary on paper but in practice they may be deemed as federal. The same is true for federal constitutions that
are actually in practice unitary to a large extent. Examples of countries in which this system operates are Mexico,
Venezuela, Argentine and Brazil. Though this system of classification gives a clear distinction there still exists
certain constitutions in the world that do not show distinct characteristics of either but rather a combination of both.
Such constitutions have been classified as quasi-federal and a typical example is the constitution of Canada.
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Finally, constitutions may also be classified on the basis of the degree to which they adopt the doctrine of the
separation of powers into presidential and parliamentary constitutions. The presidential executive constitution
came about as a consequence of a belief in ability of the government to be limited through the concept of
separation of powers. In parliamentary executive ministers are required to be members of the legislature thus
expressly waiving the doctrine of separation of powers. This stark contrast between opposites has been blurred,
particularly in Africa and also in France where the president who is elected shares power with the prime minister
who has been appointed. Most African states claim to have a presidential executive constitution when their
practices reveal certain elements of a parliamentary executive in some cases.
The present author is of the view that the best system of classification of the constitution as yet is non-existent. Yet
even though the current systems of classification have loopholes in them they may be sufficiently useful if
employed in combinations to describe the nature of the constitution in a country. To wit, for our country Ghana we
may be described as having a written, rigid, republican unitary and presidential executive kind of constitution. Thus
by this classification the nature of Ghana’s constitution may be sufficiently understood.
Other classifications
⦁ Single Party or Multiparty- It looks at the operation of the freedom of association in the political arena. If the
constitution in principle allows more than one political party, it’s a multiparty constitution.
⦁ Diarchical- It’s a constitution in which there is a distribution of governmental competence along lines other
than regional. E.g. the French constitution allows the president to pass some laws without recourse to
parliament.
⦁ Unicameral or Bicameral- It looks at the structure of the legislature. If the constitution provides for a single
house of the legislature, it’s unicameral. If it provides for two houses of parliament, it’s classified as bicameral
NB: a hybrid constitution is a constitution which combines both the parliamentary and presidential element. An
example is the 1969 Constitution of Ghana.
Sources of constitutional law
⦁ Organic law legislation- these are legislation which organize institutions, which regulate the exercise of
public powers through the organs of government which the constitution has established. E.g. the Courts Act,
Electoral Commission of Ghana Act, Local Government Act. Note however that income tax is excluded.
⦁ Judicial decisions- these are the interpretations of the courts. These decisions are about the
constitution-where the dispute is about the Constitution. Such as TUFFOUR V. ATTORNEY GENERAL;
J.H. MENSAH V. ATTORNEY-GENERAL
⦁ Customary law- here the part which deals with the institution of state or chieftaincy is critical
⦁ Textbooks- eg. Dicey; Mensah Sarbah; J.B. Danquah etc.
Characteristics of constitutions
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⦁ They are endowed with a higher status, in some degree, as a matter of law, than other legal rules in the
system of government.
⦁ Also amendment of the constitution can only take place in a special process that is different from how the
ordinary law is altered.
Why countries have a constitution?
Countries have a constitution for the very simple and elementary reason that they wanted for some reason to begin
again and so they put down into writing the main outline, at least of their proposed system of government. Another
reason is that when they unite with others they may wish to preserve certain powers to themselves and to safeguard
certain terms in the act of the union.
MARBURY v MADISON
Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of Columbia.
After the appointment document was signed by the President, the Secretary of State, Madison failed in his duty to
deliver the letter as required by law. As such, Marbury was refused the position of the Justice of Peace because the
commissions signed by former President, John Adams were not delivered before the expiration of John Adams time
in office. Marbury brought a petition to the Supreme Court under the Judiciary Act of 1789 for an order of
mandamus to compel the Secretary of State to deliver his commission to take up the post of justice of the peace.
Issues-
1. Whether Marbury has a right to his commission?
2. If he has a right, whether that right has been violated and do the laws of the country afford him a remedy?
3. Whether the Supreme Court has the power to issue a writ of mandamus?
Held-The court in a unanimous decision and as read by Chief Justice Marshall held and reasoned as follows:
1. The applicant had a right to the commission as it originated from an Act passed by Congress in 1801.
Further, the court concluded that when a commission has been signed by the President, the appointment is
made, and that the commission is complete when the seal of the United States has been affixed to it by the
Secretary of State. Mr. Marbury, then, since his commission was signed by the President and sealed by the
Secretary of State, was appointed, and as the law creating the office gave the officer a right to hold for five
years independent of the Executive, the appointment was not revocable, but vested in the officer legal rights
which are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by
the Court not warranted by law, but violates a vested legal right.
2. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice
of peace for the County of Washington in the District of Columbia, and that the seal of the United States,
affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the
completion of the appointment, and that the appointment conferred on him a legal right to the office for the
space of five years. That, having this legal title to the office, he has a consequent right to the commission, a
refusal to deliver which is a plain violation of that right, for which the laws of his country afford him a
remedy.
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3. The court held that the writ of mandamus is the right remedy to be sought by the applicant but it would
refuse it because the law relied upon by the Applicant on the issue of the writ is in contravention of the
Constitution and as such unconstitutional. The courts can therefore not grant the remedy.
The nature of the constitution is such that it is the highest law of a state and that any other law in contravention
with the provisions of the constitution is held to be null and void
TUFOUR v ATTORNEY GENERAL
The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General before the Court of Appeal
sitting as the Supreme Court under section 3 of the First Schedule to the Constitution, 1979, for a declaration that:
(i) on the coming into force of the Constitution, the Hon. Mr. Justice Apaloo) was deemed to have been appointed
Chief Justice and as such became president and a member of the Supreme Court; (ii) the application of the,
procedure in article 127 (1) to Justice Apaloo and his purported vetting and rejection by Parliament were in
contravention of the Constitution: (iii) Apaloo refrained Chief Justice and thereby president of the Supreme Court.
The AG argued that the process in Article 127 was a mandatory one and Apaloo’s rejection was done in pursuant of
that procedure. Attorney General raised objections against the jurisdiction of the court as well as the capacity of the
plaintiff and the competency of the Speaker of Parliament to be sued as a defendant. On jurisdiction, the AG argued
that the Supreme Court was not properly constituted to deal with matters of interpretation as required by Schedule
3. It was an Appeal court sitting as a supreme court. On capacity, the AG argued that the plaintiff had no interest in
the case but it was Apaloo who had an interest in the case and he was the right person to institute the action. On the
merits of the case, the AG contended that, before the Constitution, 1979, came into force, the hierarchy of courts
ended at the Court of Appeal. No justice could therefore have held the office of a Justice of the Supreme Court.
Accordingly, the Chief Justice of that hierarchy was only a Chief Justice of the Court of Appeal. The Constitution,
however, has provided a higher court, the Supreme Court, membership of which was a prerequisite for qualification
as Chief Justice. As such the then CJ was only a transitional CJ and as such, if to be appointed as CJ of the SC, he
must go through the procedure as stated in Article 127.
Held
1. The jurisdiction of the court, as constituted, sprang from the provisions of section 3 of the First Schedule to
the Constitution. But section 3 conferred jurisdiction on the court to deal with any issue falling within the
ambit of article 118, in particular, for the purposes of the case, article 118 (1) (a). As such, the court had
jurisdiction to entertain the case.
2. The Constitution, by the provisions of article 1 (3) conferred on every citizen of Ghana the right to see to it
that the constitutional order was not abolished or sought to be abolished. One method by which it could be
determined whether a person was seeking to abolish the constitutional order, was to seek an interpretation of
the Constitution as to the meaning of the effect of a particular provision or provisions. The interest of the
plaintiff was a constitutional right exercisable by all citizens of Ghana by virtue of article 1 of the
Constitution. And the plaintiff under article 1, need not have any community of interest with any person or
authority. His community of interest was with the Constitution
3. The courts did not, and could not, inquire into how Parliament went about its business. That constituted the
state of affairs, as between the legislature and the judiciary which had been crystallized in articles, 96, 97,
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98, 99, 103 and 104 of the Constitution. Particularly Article 96 which provides that any business in
parliament cannot be questioned in a court of law. The Speaker therefore ought not be a party in the instant
proceedings and the, court would accordingly discharge him as a party.
4. The courts before 24 September 1979 derived their existence and functions from the Constitution, 1969.
The Chief Justice in that constitution had a unique personality; he was both a member and head of that one
composite institution known as the Superior Court of Judicature. It was by virtue, of his being the head that
he had been the president of all component parts in the structure. Although the constitution was abolished,
the judicial structure remained intact. The head of the judiciary was still the Chief Justice; the Court of
Appeal and the High Court constituted one Superior Court of Judicature and the omnipresence of the Chief
Justice within the mechanism was retained. The chief justice presided over all the courts within the Superior
Court of Judicature. He was the president and member of all those courts not by reason of a direct or
specific appointment to any of them but by virtue of his status as the head of the Superior Court of
Judicature. There was no such office before 24 September 1979 known as Chief Justice of the Court of
Appeal or a transitional Chief Justice.
NOTE: According to Justice Sowah on the nature and character of a constitution,
‘A written Constitution such as ours is not an ordinary Act of Parliament. It embodies the will of a people. It also
mirrors their history. Account, therefore, needs to be taken of it as a landmark in a people’s search for progress. It
contains within it their aspirations and their hopes for a better and fuller life. The Constitution has its letter of the
law. Equally, the Constitution has its spirit. It is the fountain-head for the authority which each of the three arms of
government possesses and exercises. It is a source of strength. It is a source of power. The executive, the legislature
and the judiciary are created by the Constitution. Their authority is derived from the Constitution. Their sustenance
is derived from the Constitution. Its methods of alteration are specified. In our peculiar circumstances, these
methods require the involvement of the whole body politic of Ghana. Its language, therefore, must be considered as
if it were a living organism capable of growth and development Indeed, it is a living organism capable of growth
and development, as the body politic of Ghana itself is capable of growth and development. A broad and liberal
spirit is required for its interpretation. It does not admit of a narrow interpretation. A doctrinaire approach to
interpretation would not do. We must take account of its principles and bring that consideration to bear, in bringing
it into conformity with the needs of the time.’
J. H. MENSAH v ATTORNEY GENERAL
The first term of office of President Rawlings came to an end on 6 January 1997. However, having been elected for
a second term he was sworn into office on 7 January 1997. It was then announced that the President had decided to
retain in office some of his previous ministers and deputy ministers of state and since they were approved by the
previous Parliament of the first term of the Fourth Republic, they would not be presented to the new Parliament for
their approval. The minority group in Parliament opposed the decision on the ground that under the Constitution,
1992 no one could be appointed or act as a minister or deputy minister of state during the second term of the Fourth
Republic without being vetted by the new Parliament since the tenure of the ministers ended with the dessolution of
the old parliament. One of such retained Ministers, the Finance minister (Kwame Peprah) purported to present the
new budget to parliament. The parliamentary minority leader, the plaintiff, brought an action against the
Attorney-General for a declaration that: (a) on a true and proper interpretation of articles 57(3), 58(1) and (3), 66(1)
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76(1) and (2) 78(1), 79(1), 80, 81, 97(1), 100(1) and 113(1) and (3) of the Constitution, 1992, no person could after
6 January 1997 act as a minister or deputy minister of state without the prior approval of the Second Parliament of
the Fourth Republic of his appointment and that this prior approval include consideration and vetting of each
nominee for ministerial appointment by the Second Parliament of the Fourth Republic. The AG argued that under
article 81 of the Constitution, 1992 the tenure of a minister or deputy minister did not come to an end on the
dissolution of the Parliament which gave prior approval to the appointment of that minister or deputy minister.
Thus unless some of the events specified in article 81 occurred, a minister or deputy minister· would continue to be
in office.
Issues
1. Did a presidential nominee for ministerial appointment require the prior approval of Parliament before he
could act or hold himself out as a minister or deputy minister of state?
2. Does the requirement of prior parliamentary approval extend to all nominees, whether retained or new?
3. Is “prior approval” a term of art? If so, what was its meaning?
Held
1. In articles 78(1) and 79(1) of the Constitution, 1992 it is provided that the President shall appoint his
ministers and deputy ministers with the prior approval of Parliament. Thus a nominee for ministerial or
deputy ministerial office undoubtedly requires prior parliamentary approval.
2. Articles 78 and 79(1) of the Constitution, 1992 which provided that the President should appoint his
ministers and deputy ministers with the prior approval of Parliament did not draw a distinction between
fresh and reappointed candidates. Consequently, both a new or reappointed candidate should obtain the
prior approval of Parliament.
3. Although the expression “prior approval” was not defined in the Constitution 1992, it could not have been
the intention of the framers of the Constitution, 1992 that it should necessarily imply consideration and
vetting whenever it had been used in any provision of the Constitution because that interpretation could not
be consistently applied in all the provisions of the Constitution where the expression “prior approval” was
used. Thus the term “prior approval” was not a term of art. But the common sense implication of the
expression was to obtain a consent of the relevant authority. Where that authority was Parliament, article
110(1) of the Constitution empowered it by standing orders to regulate its own procedure provided they did
not infringe a provision of the Constitution. Thus the court could not under article 2 and 130(1) of the
Constitution direct Parliament on how to conduct its proceedings when granting “prior approval” under
article 78(1) of the Constitution, 1992.
NEW PATROITIC PARTY v ATTORNEY GENERAL
On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was overthrown in a
coup d’état. Subsequently, the military regime which took over the reins of government, the Provisional National
Defence Council (PNDC), declared 31 December a statutory public holiday. Accordingly, each year the anniversary
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of the coup was celebrated, inter alia, by personnel of the security forces with military parades, route marches and
carnivals throughout the country. These activities were financed with public funds. On 7 January 1993 the reign of
the PNDC came to an end with the assumption of power by a civilian government which had been elected into
office under the Constitution, 1992. When on 19 December 1993 the government announced that 31 December
1993 would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the registered
political parties in the country, claiming that the celebration would be unconstitutional, brought an action under
article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the public celebration of
the coup d’état of 31 December out of public funds was inconsistent with or in contravention of the letter and spirit
of the Constitution, 1992 particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the government to
cancel the preparations for the celebration and refrain from carrying out the celebration with public funds.
Arguments
1. The plaintiff contended that it was clear from the relevant provisions of the Constitution, 1992 that the
people of Ghana had resolved never to allow the Constitution, 1992 to be overthrown or undermined and
since the intended celebration would glorify coups d’état and in the result would undermine the people’s
resolve to resist coups, it would be unconstitutional. Accordingly, expenditure of public funds on the
celebration would constitute waste and misuse of public funds which the Constitution enjoined the people to
resist.
2. The defendant contended, inter alia, that (i) the celebration of 31 December as a public holiday could not be
said to be subverting or overthrowing the Constitution in contravention of article 3(3) as to require any
defensive action by anyone under article 3(4); (ii) the Directive Principles of State Policy contained in
chapter 6 of the Constitution, 1992 were not justiciable and therefore articles 35 and 41 which were part of
the principles could not ground a cause of action; and (iii) 31 December was a statutory public holiday by
virtue of the Public Holidays Law, 1989 (PNDCL 220) and moneys were lawfully appropriated under the
1993 budget estimates approved by Parliament for its celebration in recognition of the historical values and
good works that the revolution stood for and therefore the intended expenditure was lawful.
3. The defendant also objected to the jurisdiction of the court on the argument that the action sought to
question the legality of the coup d’état of 31 December 1981 contrary to section 34(2) of the transitional
provisions of the Constitution, 1992; and (b) the question whether 31 December should be celebrated was a
political question which should be reserved to the executive or Parliament to decide.
Issues
1. Whether the court had jurisdiction to entertain the suit?
2. Whether the Directive Principles of State Policy in the 1992 constitution were justiciable?
3. Whether the celebration of the 31st December coup was inconsistent with the constitution?
4. Whether the use of public funds to celebrate it was inconsistent with the 1992 constitution?
Held- The court held, in a 5-4 majority decision as follows:
1. The court held that it had jurisdiction over the matter because
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■ The essence of the plaintiff’s action was that whatever the nature of the coup d’état of 31 December
1981, legal or illegal, its anniversary after 7 January 1993, should not be celebrated out of public funds
and other resources and this does not relate to the overthrow of the 3rd republican constitution.
■ By virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana had the constitutional right to
protect the constitutional order established by the Constitution so that it was not abolished or sought to
be abolished. Because the determination of the controversy as to whether the celebration of the 31
December revolution offended the Constitution depended on the interpretation of the Constitution, it
had jurisdiction by Article 2(2).
■ The doctrine of “political question” was inapplicable in Ghana since under articles 1, 2 and 130 of the
Constitution, 1992 issues of constitutional interpretation were justiciable by the Supreme Court.
2. The Directive Principles of State Policy contained in the constitution, 1992, chapter 6 were justiciable
because
■ The Constitution, 1992 as a whole was a justiciable document and accordingly, if any part was
non-justiciable, the Constitution itself had to indicate it. But no provision in the Constitution had
indicated that chapter 6 was not justiciable.
■ Articles 1(2) and 2(1) of the Constitution, 1992 which rendered any law, enactment or anything done
under its authority, any act or omission of any person inconsistent with any provision or a provision of
the Constitution null and void and empowered the Supreme Court so to declare, did not express any
exception in favor of chapter 6.
3. The celebration of 31 December as a public holiday with carnivals, route marches, etc. would have the
tendency to glorify the coup d’état of 31 December and it would not only be unfair to those who were
adversely affected by the coup but had become impotent to resort to court action by reason of the indemnity
provision of section 34(2) of the transitional provisions of the Constitution, 1992 but would weaken the
people’s resolve to enforce their right or perform their duty under article 3(4), and would in the result
undermine and subvert the Constitution, 1992. Accordingly, even though the celebration might not be a
violent means of subverting the Constitution, 1992, it surely was an unlawful means under article 3(4) (a).
Such conduct would clearly be inconsistent with the duty to defend the Constitution and would be clearly
against the letter and spirit of the Constitution.
4. Since the celebration of 31 December would be unjustified, any expenditure of public funds in that regard
would be a misuse and waste of public 41(f) of the Constitution, 1992 which imposed a duty on every
citizen of the country to protect and preserve public property and expose and combat misuse and waste of
public hands and property. Accordingly, the plaintiff was entitled to proceed under article 41(f) as a matter
of duty to combat such misuse with a view to protecting and preserving public property.
The relationship between municipal and international law

Municipal law is a reference to the totality of laws operating in a country. At times it is referred to as domestic law.
International law is the law that has regularized the relationship among nation state.
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Rules that govern the law that operate within a country and others
The relationship between municipal and international law is governed by two theories: monism and dualism
Monists accept that the internal and international legal systems form a unity. Both national legal rules and
international rules that a state has accepted, for example by way of a treaty, determine whether actions are legal or
illegal. In a pure monist state, international law does not need to be translated into national law it is just
incorporated and have effects automatically in national or domestic laws. The act of ratifying an international
treaty immediately incorporates the law into national law; and customary international law is treated as part of
national law as well. International law can be directly applied by a national judge, and can be directly invoked by
citizens, just as if it were national law. A judge can declare a national rule invalid if it contradicts international
rules because, in some states, the latter have priority. In other states, like in Germany, treaties have the same effect
as legislation, and by the principle of lex posterior, only take precedence over national legislation enacted prior to
their ratification. In its most pure form, monism dictates that national law that contradicts international law is null
and void, even if it predates international law, and even if it is the constitution.
Dualists emphasize the difference between national and international law, and require the translation of the latter
into the former. Without this translation, international law does not exist as law. International law has to be national
law as well, or it is no law at all. If a state accepts a treaty but does not adapt its national law in order to conform to
the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. But
one cannot claim that the treaty has become part of national law. Citizens cannot rely on it and judges cannot apply
it. National laws that contradict it remain in force. According to dualists, national judges never apply international
law, only international law that has been translated into national law.
Article 75 of our constitution make us a dualist nation. For us the international law principle can only apply if it is
ratified as in article 75 of our constitution. However, the international body will not accept argument based on the
domestic body. KATZ V. ARMON; REPUBLIC V. DIRECTOR OF PRISONS; BLACKBURN V. ATTORNEY
GENERAL
A treaty is any formal agreement entered between two or more states. (Could be called charter, convention etc).
This could be bilateral, or multilateral. These arrangements are referred to in public international law. It is known
at times as hard law.
For the civil society organizations, they are only interested in whether the international community has accepted
and not whether it is binding or not.
Consequences of Dualist Theory
⦁ Domestic law cannot be used to explain why a county hasn’t fulfilled its international obligations in an
international tribunal when it has signed but not ratified a treaty
⦁ International law cannot be used to explain a position in a municipal court.
⦁ If the provision in an international treaty is self-executing, it can be applied immediately once it’s ratified.
If it’s not self-executing, it would require further action and if that action has not been taken, the treaty
provisions cannot be accessed
Coup d’état, revolution and consequences

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The life of Ghana’s constitution was interrupted by coup d’états 4 times out of which we had 6 regimes i.e. NLC,
NRC (palace coup), SMC I, SMC II (palace coup), AFRC, PNDC (revolution and later described as a process). The
Constitution changed from monarchical to republican in 1960. In 1964, the people decided to change from a
pluralist to single government by a referendum. In 1969, a new arrangement was put in to replace the second
republic. In 1972, new people came again. In 1975, there was another change and the Supreme Military Council
came. In 1979, the PNDC came.
What is the constitutional effect of these military interventions on our Country? Is every coup d’état a revolution?
Two approaches to be used in answering the effects:
⦁ Continuity description: This tells us that the revolutions have no effect at all
⦁ Discontinuity : This theory says that the Coup d’état destroys completely the pre-existing constitution
- Rules of succession of office
- Rules of competence : this tells us what you do in what position
- Rules of succession to rules : this deals with how the law is made or changed
A coup d’état can be described as a sudden violent change of government through the seizure of power according to
the Black Law Dictionary, 8th edition. Revolution on the other hand, can be described as that which occurs when a
legal order of a community is nullified and replaced by a new order in a way that was not described by the first
order. This definition was propounded by Kelsen in his book, The General Theory of Law.
The theoretical arguments surrounding the concept of revolutions and coup d’états is based on the theory of
continuity and discontinuity. The arguments are propounded on the fact that in the case of a revolution or a coup
which occur in a country, does the new legal order tend to be abolished completely or continue in existence. Thus,
the theory of continuity propounds that in the existence of a revolution, the legal system of a country continues to
be maintained; that is to say, it doesn’t change and continues in existence as before. The theory of discontinuity
also asserts the fact that in the emergence of a revolution or coup d’état, the legal system is abolished and it paves
way for a new order.
Two people, Kelsen and Finnis have propounded theories on this concept and have received tremendous
recognition for this.
According to Kelsen, every country has a Grundnorm and that Grundnorm is the basic norm from which all other
laws derive their validity from. In his view, taking away the Grundnorm collapses the existing order. Kelsen asserts
that in every revolution there is a change in the legal order; that is the legal order is completely nullified and is
replaced by a new legal order a way not prescribed by the first. In Kelsen’s book, General Theory of Law and State,
he believes the legal structure of a country to be in a form of an inverted collapsible pyramid of which the
Grundnorm is at the base, serving as the source of validity or the rock of all laws. When the Grundnorm is taken
away or destroyed, the inverted pyramid collapses for lack of support so all the other laws cease to exist and it
paves way to a new legal order. In the spectacles of Kelsen, the legal effect of a coup d’état is to remove the bottom
rock of the collapsible inverted pyramid and that would send the metaphysical whole structure crashing down. So
in his opinion, all coup d’états or revolutions are brought into being when the whole legal order is changed.
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Finnis begs to differ to Kelsen’s view. He says that for a revolution to really occur and result in a change in the
legal order, certain salient rules must have been affected. He says that the rules of succession to office, rules of
competence and the rules of succession of rules which includes all rules which constitute the amendment and
suspension of new rules must all be affected. Finnis is of the opinion that for there to be a successful revolution in a
country all the three categories of rules must all be affected. A.W.B Simpson’s exposition as featured in the Oxford
Essays on Jurisprudence and entitled J.M. Finnis, Revolutions and Continuity of Law, expounds his view that to
Finnis even in the simplest monarchy, the rules of succession to office may be liable to lawful alteration or change
regarding the taking up of a position by the crown and this alteration will be regulated by a rule of succession to
rules which happen to coincide with the simple rule of competence which governs the legislative authority. In
effect no revolution can effectively take place without affecting the change in the categories of rules mentioned
earlier.
Finnis argues against the notion that every illegal or unconstitutional act which is normally called a coup amounts
to a change in the constitution and as such a change in the identity of the legal order. In essence, if the vice
President assassinates the President of a country and the constitution in that term provides that the vice President be
made President when the existing President dies or is no longer in office amount will it amount to a revolution?
Finnis argues that it will not. In his view, such a situation will not be deemed to be a revolution because there has
been no violation of the constitution even though there has evidently been an illegal change of power. Yet, Kelsen
argues through his theory of discontinuity that he includes coup d’états as revolutions as they affect the legal
system of the country. Finnis argues that unconstitutional acts involve little modification of the law without
bringing to birth a new legal system as these acts do not affect the supreme source of the country.
In SALLAH V. ATTORNEY GENERAL, there was an argument as to whether the proclamation by the National
Liberation Movement amounted to the new basic norm thereby putting aside the of the 1960 constitution. That is to
say, the initial basic norm which was the 1960 constitution was abolished and due to the coup d’état, the
proclamation by the National liberation council was the new “Grundnorm” as Kelsen would put it. This argument
arose from the plaintiff asking for a declaration that his office fell outside of the offices stipulated in the section
9(1) of the transitional provision in 1969 constitution and as such the decree which came about asking about all
public officers to vacate their offices in six months’ time upon not being re-appointed by the government. The
plaintiff argued that his office was created by the instrument of corporation EI 203 in 1961. It was then left to the
court to decide whether the coup d'état in 1966 repudiated the previous constitution in 1960 and everything flowed
from it. This should be looked from two angles. If the coup d’état abolished everything including the 1960
constitution and everything that flowed from it then, Kelsen’s theory of discontinuity would apply and as such the
plaintiff Sallah would not be able to seek for the declaration he so desires. Also if the courts contended that the
coup d’état did not abolish the 1960 constitution and everything that comes from it then the theory off continuity
propounded by Finnis would apply and so his office would be secured. In Justice Archer’s judgment he decided
that although the argument from Kelsen’s point of view was very sound it was not enough to describe whether the
plaintiff’s office fell among the categories of offices by the proclamation. He said the theory could also not be used
because the people of Ghana had stated in their preamble that their basic norm was traced from Almighty God from
which they had their constitution and their legal order was their constitution which had the special element of
predictability of which the proclamation did not have. The NLC proclamation did not make the theory from Kelson
applicable. The majority in court decided that the coup did not destroy the previous order which was the 1960
constitution but just changed parts of it.
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In the LAKANMI CASE of Nigeria, the Nigerian courts were left to decide whether the 1963 Republican
constitution was the basic norm or the Decree No.1 which was set by the Federal Military Government was the
basic norm. This argument arose from the fact that the plaintiff’s assets had been frozen by the military by the
pursuance of Decree No. 45. Here, the republican constitution in 1963 under article 1 stated the supremacy of the
constitution and as such all other laws inconsistent in the constitution would be void. In 1966, due to disturbances
and the capturing of the Prime Minister and some of his ministers, the remaining cabinet in their attempt to restore
peace and stability in the country handed over the governance of the country into the hands of the military to form
an interim government and when peace was restored, the power would then be handed over back to the legitimate
people. The Federal Military Government in an attempt to restore peace and stability set up a Decree No. 1 which
abolished only certain parts of the 1963 Republican Constitution and the offices of the President, Prime Minister,
and the Parliament and excluded the judiciary. The plaintiff in this case went to the courts apply an order of
certiorari to remove the order made by the head of tribunal Enquiry into the Assets of Public Officials, Chief
Somolou since the order was an infringement on their right to own property and was ultra vires to the 1963
constitution. The order was to prevent the public officers from disposing their properties and operating their bank
accounts by means of withdrawal until the military otherwise directs. It must be noted that the Nigerian courts
supported the Kelsen theory of discontinuity. If there was actually a revolution then Article 1 of the 1963
republican constitution would cease to exist and as such the plaintiff could not seek the relief he so requires. On the
other side, if what happened in 1966 was not a coup but a mere formation of an interim government to maintain
peace in the country then the 1963 Republican constitution would still be in operation and as such the plaintiff
could be granted the relief he so wants. The courts came to a conclusion that the events in 1966 was a mere handing
over of powers to the Federal military Government to restore peace and stability. It was based on the doctrine of
necessity. They also made a statement that, notwithstanding the incidents that had happened, they agree with the
theory of discontinuity that revolutions destroy the pre-existing order completely and as such if the events which
occurred in 1966 amounted to a revolution then they would have used the Kelsen theory and concluded that the
1963 constitution was void.
Again in the case of UGANDA V. COMMISSIONER OF PRISONS; EX PARTE MATOVU, it was up to the courts
in Uganda to determine whether the plaintiff, Matovu could be granted the habeas corpus of which he had applied
for. Uganda promulgated its first constitution in 1962 which created the offices of President, vice President and
Prime Minister. In February 1966 the prime minster announced to the country that in the interest of national and
public stability and tranquility he had taken over all the powers of government. The constitution was temporarily
suspended with some administrative organs such as the courts, civil service, and army and police service. In March
1966, the Prime Minister vested into himself the head of the office of the executive and annulled the positions of
the President and vice President. In March 1966, an emergency meeting of the national assembly led to the
promulgation of a new constitution. A state of emergency was declared and Preventive Detentions regulations were
made and the plaintiff Matovu was arrested in accordance with the regulations. It was due to this that he applied for
a habeas corpus on the grounds that the regulations were invalid because it was promulgated under the 1966
constitution which in itself was invalid. It was left to the courts to determine whether the 1966 constitution was the
grundnorm or the first constitution which was set up in 1962 was the grundnorm. If the constitution in 1962 was the
valid then the plaintiff could be granted the relief he asks for but if the 1966 constitution was the valid one which
described the new order then the plaintiff could not be granted the relief he so desired. The courts came to a
decision that, the events that happened in 1966 which adopted a new constitution amounted to a new revolution and
as such the 1962 constitution was no longer valid. The courts based their decision on the principle from Kelsen that
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“once a successful revolution has introduced a new constitution, it is by reference to this new basic norm that the
validity of particular norms is decided”.
Furthermore, in the Pakistani case of the STATE V. DOSSO, Chief Justice Muhammed Munir made a remarkable
statement in his judgment. In STATE V. DOSSO, the President issued a proclamation and this ended or annulled the
Grundnorm or the existing constitution and as such there was a revolution. The Chief Justice in his statement said
that “It sometimes happens, however, that a Constitution and the national legal order under it is disrupted by an
abrupt political change not within the contemplation of the Constitution. Any such change is called a revolution,
and its legal effect is not only the destruction of the existing Constitution but also the validity of the national legal
order.” Here it is evident that according to the CJ Mohammed Munir, a revolution is when the constitution and the
national legal order is disrupted by an unexpected and sudden political change which is not in the constitution
which then affects the validity of the national legal order.
SALLAH v ATTORNEY GENERAL
On 24th February. 1966, the armed forces of Ghana staged a coup d’état and toppled the government of President
Kwame Nkrumah. Days later, the military by a proclamation suspended the 1960 constitution, dissolved the
national assembly and established the National Liberation Council as the new sovereign authority with power to
legislate by decree. In 1969, the military rule was terminated and civilian rule was established under a new
constitution, 1969. The transitional provisions of the 1969 Constitution provided for the termination of any office
established by the NLC.
The plaintiff, E.K. Sallah was appointed in October 1967 to a managerial post at the Ghana National Trading
Corporation (GNTC), a corporation established under the Statutory Corporations Act of 1961 under E.I. 203 and
when that law was repealed, it was “continued in existence” by LI No. 395 which was passed under the authority of
the new Statutory Corporations Act, 1964. On 21st February 1970, the new civilian government dismissed Sallah,
under the transitional provisions of the 1969 Constitution. He instituted this suit to challenge the validity of his
dismissal.
Arguments
1. The plaintiff argued that his office was not brought into existence by the law that was overthrown in the
revolution (LI No 395), rather, it was continued in force by that law, and therefore the NLC could not claim
that they had created that office. He argued that his office was created by E.I 203 and was only continued in
force by L.I 395 and as such, the new order created by the NLC Proclamation did not affect his office to be
caught by section 9(1) transitional provisions of the 1969 Constitution.
2. The Attorney-General’s arguments were based on the Kelsenian position that in a revolution properly
so-called, the old legal order was abolished and a new one, with its own Gründnorm was established. Thus
in 1966, the old order (the 1960 Constitution) disappeared, and the new one was established, with its new
Gründnorm, which the Attorney-General identified as the Proclamation. He argued that “establish” must be
interpreted as “deriving legal validity from”. Simply put, the Attorney-General was using Kelsen’s theory of
discontinuity, and applied thus, it meant that the LI 395 was valid by virtue of the State Corporations Act,
1964, which in turn was validated by article 40 of the 1960 Constitution, and since the NLC had abrogated
that constitution, the old source of validity of the GNTC was gone, and the corporation was re-born by the
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NLC Proclamation, and therefore the plaintiff was squarely caught by the provisions.
Issues
1. The main issue was whether the plaintiff’s office was established by the NLC Proclamation.
Held
In a 3-2 majority decision, the court held that the plaintiff’s office had not been established by or under the
authority of the NLC Proclamation, it only “continued it in existence” and therefore they were wrong in
terminating his appointment. The court rejected the Kelsenite theory posited by the AG as it described it as foreign
theories. The court, per Archer J.A declined to designate the coup d’état as a valid revolution but rather the
beginning of one and that the proclamation cannot be termed as the Gründnorm because it was not a constitution.
The majority thus held that Sallah’s office was established in 1961 by the E.I and not by the extra-constitutional
regime (L.I 395) which only continued it in force.
In his dissenting judgement however, Anin J.A adopted Kelsen’s view as contended by the AG and held that by
virtue of the coup d’état the old legal order founded on the 1960 Constitution yielded place to a new legal order
which was the proclamation. He further opined that after the coup, all offices were deemed to be the creation of the
NLC and the existed by virtue and in pursuance of the proclamation.
THE LAKANMI CASE
After the severance of ties between Nigeria and the British Colonial Government, the Constitution 1963 was
promulgated. This constitution was deemed to be the supreme law of the Federation (Grundnorm). There was a
military takeover on 15th January 1966, in which the military announced that certain provisions of the 1963
Constitution were suspended. Also suspended were the offices of the President, Prime Minister, and Parliament too.
The Judiciary, Public Services, the Armed Forces and the Police Service were saved. A decree, Constitution
(Suspension and Modification) Decree No. 1 1966, was passed to give effect of the above suspensions and
retainments under the 1963 Constitution. Decree No. 1 further gave the military the power to make laws without
any restrictions. The decree also provided that whilst the 1963 Constitution shall have the force of law in Nigeria, it
shall not prevail over a decree passed and nothing in it shall render a decree void. On 29th July, 1967 another coup
took place, under which Nigeria was converted from a unitary state to a federal one of twelve states. Decree No. 1
remained in force.
The Chief Justice, as chairman of the Tribunal of Inquiry issued an order freezing the assets of public officers of the
western state under an edict of the military government in accordance with section 13 (1) of Edict No. 5 of 1967,
the Investigation of Assets (Public Officers n other Persons Decree) which prohibited the plaintiffs or their agents
and other persons from disposing of any of the properties of the plaintiffs until the Military Governor of the
Western state had directed them to. The plaintiffs were not to operate their bank accounts by means of withdrawal
and the new laws said there could be no challenge to the Chairman of Tribunal. Other laws, i.e. Decree Nos. 37, 43
and 45, were promulgated to prohibit the judicial review of anything done under the laws.
Issues
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1. Whether the events of 15th January 1966 amounted to a revolution?
2. Whether Decree 45 can validly oust the courts jurisdiction to look into the order of the Tribunal?
Held
1. The court held that the events of January 15, 1966 did not amount to a revolution but a mere offer of
invitation to the Armed Forces to form an interim Military Government, making it clear that only certain
provisions of the 1963 Constitution were to be suspended and the offer was duly accepted by the Armed
Forces. The court recognized Kelsen’s theory of revolutionary legality as argued by the AG but it drew a
distinction between that and the present case. The court based its reasoning on the doctrine of necessity and
held that necessity dictated an agreed partial suspension of the 1963 Constitution and the formation of the
interim government which effected the transfer of power from the old to the new order.
2. The court held on this issue that the Federal Military Government assumed the continued existence of the
1963 Constitution and in its Decree No. 1 impliedly provided for a separation of powers between the
legislatures, the executive and the judiciary as did the Republican Constitution. Because Decree No. 45 of
1968, which sought to validate the order made by the tribunal was a legislative act which impinged upon the
sphere of the judiciary, it was an unnecessary intrusion into the sphere of the judiciary and it is therefore
void.
MADZIMBAMUTO v. LARDNER-BURKE
The British Government had granted the 1961 Constitution of Southern Rhodesia to the Colony. On 11 November
1965, Mr Smith the Prime Minister and his ministerial colleagues, issued a Unilateral Declaration of Independence
(UDI) to the effect that Southern Rhodesia was no longer a Crown colony but was an independent sovereign State.
They also promulgated a new Constitution, 1965. On the same day, the governor issued a statement to the effect
that the Prime Minister and the other persons holding office as Ministers of the government of Southern Rhodesia
or as Deputy Ministers ceased to hold office. The Parliament of the United Kingdom also passed the Southern
Rhodesia Act 1965, declaring that Southern Rhodesia was still part of the dominions of the United Kingdom, and
Government and Parliament of United Kingdom still had responsibility and jurisdiction. Mr Smith and his
colleagues disregarded their dismissal from office, and the members of the legislature adopted the new 1965
Constitution and thereafter they and Mr Smith and his colleagues declared that the 1965 Constitution had
superseded the 1961 Constitution.
Before the UDI took place however, a state of emergency had been declared by the Governor, and the appellant’s
husband had been detained by the first respondent as Minister of Justice. On the expiration of the state of
emergency in February 1966, the government continued their detention under Regulation 47(3), which derived its
authority from the 1965 Constitution. The detainees challenged the legality of their detention and by implication,
that of the UDI and the 1965 Constitution.
Held
The court held that the rebel government had not overthrown the British Colonial Government, and therefore the
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1965 Constitution was not the supreme law of the land. They held further that the rebel government was a usurper,
and not a lawful authority to make laws, and lastly, that the doctrine of necessity could not be invoked as a means
of enforcing the laws detaining the appellant’s husband. The court applied the Kelsenite theory. The court did not
declare the unilateral declaration of independence as a revolution because the rebel government was not effective.
Smith’s government was conflicting with the colonial government, and both were making laws for the
administration of the country almost concurrently. The Kelsenian theory admits of no situation in which there are
two Grundnorms, giving validity to two different laws. Thus Kelsen’s theory prevailed, but not in favour of the
rebels.
UGANDA v. COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) EA 514
After Uganda’s first post-independence elections in April 1962, two parties, the Uganda People’s Congress led by
Milton Obote and the Kabaka Yekka led by Daubi Ocheng, formed a coalition government, but this remained
unstable. On February 26, 1966, the Prime Minister, Obote, with the support of the military assumed full powers of
government, suspended the National Assembly and abrogated the 1962 Constitution. He later convened the
Assembly in April 1966, which approved a new constitution, 1966 that provided for an executive presidency and a
unitary state.
In August 1966, Matovu, a Buganda county chief was served with a detention order under provisions of Article
31(I) of the 1966 Constitution. Matovu filed a habeas corpus application, arguing that the detention order violated
the fundamental rights provisions of the 1962 Constitution, which remained the supreme law of Uganda.
Held- The court held, applying the Kelsenian principles that, our deliberate and considered view is that the 1966
constitution is a legally valid constitution and the supreme law of Uganda, and that the 1962 constitution having
been abolished as result of a victorious revolution in law does no longer exist nor does it now form part of the Laws
of Uganda it having been deprived of its de facto and de jure validity. The 1966 constitution, we hold, is a new
legal order and has been effective since April 1966 when it first came into force
Constitutionalism
Constitutionalism as a theory and in practice stands for the principle that there are—in a properly governed
state—limitations upon those who exercise the powers of government, and that these limitations are spelled out in a
body of higher law which is enforceable in a variety of ways, political and judicial. Involves a proper appreciation
for the limitations of government and of requiring those who govern to conform to law and rules. It is partly
determined by whether usage and conventions operate to strengthen or weaken constitutional limitations.
Constitutional government is not the same as government set up by a constitution. This is because a constitution
could establish institutions and them leave them to act as they please.
Constitutionalism also means government according to predetermined rules. These rules should not only be
predetermined but they should also restrain or limit governmental powers. According to Wheare, it seeks to control
the chaos resulting from the desires of many by creating a strong central power. It seeks then to control that central
powers ability to exploit by limiting its strength to act.
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Before government takes any decision, there should be rules and these rules must be crafted to put breaks on
government actions. These may take several forms:
⦁ Institutional limitations -Article 78(1)
⦁ Procedural limitations- article 106(1), 106(3)
⦁ Substantive limitations- articles 3(1), 78(2) 58(1), 92(2)
According to Marshall writing the limits of the constitution will tell us what the limits are and if they are exceeded
it will easily be detected.
Constitutionalism in our courts
SHALABI V AG
The plfs were brothers working in the transport sector in Ghana. They were born in the Gold Coast to Lebanese
parents in the 1930s. They held British passports until a law on citizenship in Ghana – the Ghana Nationality
Decree (NLCD 191) – was passed in 1967. This decree established different categories of Ghanaians. A Ghanaian
by birth was defined as someone born in Ghana before 6 March 1957 and included British subjects at the time. The
Decree did not describe parentage as a criterion to citizenship. As a result of the definition of a Ghanaian in the
Decree, the brothers gave up their British passports and got Ghanaian citizenship. 2 years later, another law, the
NLCD 333, was passed to amend the NLCD 191. This time, the Ghanaian citizenship for parents and grandparents
was included in the criteria to becoming a citizen. This would have precluded the brothers from becoming
Ghanaian citizens if it had been included in NLCD 191. NLCD 333 was backdated to take effect at the same time
as NLCD 191 was supposed to take effect. A year later, a new law, Ghanaian Business (Promotion) Act 1972 (Act
334), was passed reserving certain sectors of the economy, including the transport sector, to Ghanaians only. In light
of this new law and NLCD 333, the brothers sought clarification as to their status as Ghanaian citizens. Their
lawyers were informed that the Government did not consider them to be Ghanaians nor British but Lebanese. As
this would cause them problems with their business in light of the Act and NLCD 333, the brothers brought an
action in the court for a declaration that they were Ghanaians.
Held- The constitution placed limits on the government that it could not make retrospective laws. The NLCD 333
purported to come into effect at the same time as the NLCD 191. It was not possible for a law amending another
law to come into effect at the same time as the law it was amending. Even if the NCLD 191 was in effect for 1
second, it’s effect was to give the plf’s citizenship and their citizenship could only be taken away by following the
corrects process laid down by the law giving them citizenship. There is no legislative sovereignty, only sovereignty
of the people. The government does not have unrestricted power to give and take people’s citizenship at will. The
government’s decisions must make sense and take people’s rights into consideration.
EX PARTE BANNERMAN
On 18th January the National Liberation Council under power given them by section 1 of the Commission of
Enquiry’s Act 1964(Act 250), appointed a Commission of Enquiry to inquire into the management and other
matters relating to the State Fishing Corporation. This commission was to commence work from the 10 to 28th June
1967 but on 26th June the chairman of the Commission of Enquiry purported to suspend Mr. Bannerman, the
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Distribution Marketing Manager of the State Fishing Corporation. This purported suspension letter came from the
office of the said Commission of Enquiry and it was signed by chairman of the commission. It was stated in the
letter that the applicant was relieved of his duties and responsibilities as Distribution Marketing Manager of the
State Fishing Corporation and that he was to hand over to his most senior subordinate and advise the Chief
Accountant and the Production Manager. Copies of the suspension letter were sent to Secretary of the National
Liberation Council. The applicant upon receiving the letter initiated instant proceedings for writs of certiorari and
prohibition to quash the decision as contained in the letter and to also prevent the chairman from suspending,
dismissing, interdicting or interfering in the performance of his duties and responsibilities as Distribution
Marketing Manager respectively. The applicant sought these on grounds that the E.I. 6/7 under which the
commission worked does not permit it to suspend, dismiss, interdict or interfere with his service contract. The
second ground was that the letter was a speaking order which the chairman did not have the power to issue, as
doing that meant he had assumed the position of the service contract between the applicant and the corporation. He
also sought for these reliefs on grounds that he was not allowed to defend himself before the said commission hence
they breach the principle of natural justice. Whether the writs were necessary was another issue to be tackled by the
court.
Held- In view of the words "if the National Liberation Council is satisfied," I am prepared to hold that conditions
which may exist to enable the Council to take over the control and management of the corporation rest entirely
within the absolute discretion of the Council and the grounds of their satisfaction are not open to question by the
courts. But before the Council will be capable of appointing, transferring, suspending or dismissing any of the
employees of the corporation there must be evidence that the Council has, in fact, in exercising its power under
Part XIV of L.I. 397, taken over the control and management of the corporation.
This calls for examination of exhibit 2 which suspended the applicant and three other officers of the corporation. A
careful examination or scrutiny of exhibit 2 does not show that the National Liberation Council has assumed
control and management of the State Fishing Corporation or any part of its affairs by virtue of Part XIV of L.I. 397.
No document in the nature of an executive instrument has been shown to this court indicating that such assumption
of control has taken place. I have not seen one either. The assumption of control and management of the
corporation by the National Liberation Council is a condition precedent to the exercise of any of the three powers
therein stated and, in the absence of any such evidence from exhibit 2, I hold that the purported suspension of the
applicant (and for that matter the other three officers) is ultra vires the National Liberation Council which acted in
excess of its power.
EX PARTE SALIFA
Salifa, a school boy, then aged fifteen years was sent to Guinea by his father in 1965 to continue his education. In
1967 he ran away from his guardian who was allegedly maltreating him. He went to Sierra Leone where he asked
the Ghana High Commissioner to help him to return to his parents in Ghana. On his arrival in Accra, in June 1967,
he was immediately arrested by the police and detained in Ussher Fort Prison. On 25 June 1968, Salifa's father filed
an ex parte application for an order of habeas corpus on the ground that his son's detention was unlawful. Upon a
notice of motion filed on 29 June 1968, for hearing on 2 July 1968, the Director of Prisons made a return thereto by
an affidavit annexing thereto a Photostat copy of a document, exhibit A, purporting to be a Decree signed by the
Chairman of the National Liberation Council authorising the arrest and detention of Salifa. The document was not
numbered and neither was it published in the Gazette as required by the Proclamation establishing the National
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Liberation Council. In a press release dated 24 April 1968 issued by the Ministry of Information, it was stated
therein that all persons placed in protective custody since 24 February 1966 and the 17 April 1967 abortive coup
had been released.
Held-
1. Even though the date of the coming into force of a Decree could be so stated in the body of the Decree as to
make the date of publication not the date of its coming into force, nevertheless, publication of it in the
Gazette, numbering thereof in accordance with the order in which Decrees were published, printing and
publication thereof by the Government Printer, together with its consequential purport that it was signed by
the Chairman of the National Liberation Council, could not be respectively legally dispensed with in the
making and issuing of a Decree having the force of law. Consequently since exhibit A was neither
numbered nor published in the Gazette, it could not be classified as a Decree.
2. The contention that the National Liberation Council had an unlimited power was pitched too high - it
undermined or undefined the purposes for which by the Proclamation the National Liberation Council was
established. According to the preamble to the Proclamation, it was established in the interest of the people
of Ghana, and for the provision for the proper administration of the country and for the maintenance of law
and order. In effect the Proclamation provided for the eradication by the National Liberation Council of
illimitability of power in Ghana; for, autocracy in Ghana was given a decent burial on 24 February 1966.
2ND SALIFA CASE
Salifa, who had been detained under a National Liberation Council Decree, had appeared in habeas corpus
proceedings before Anterkyi J who had ordered his release on the grounds, inter alia, that the Decree, being
unnumbered and unpublished, was invalid. Immediately after his release, Salifa was re-arrested without warrant
and detained for suspected subversion under another unnumbered and unpublished National Liberation Council
Decree. Salifa's father filed another application for a writ of habeas corpus for the immediate release of his son on
the grounds, inter alia, that the re-arrest without warrant was unlawful and further that the subsequent unnumbered
and unpublished Decree was also invalid.
Held- The NLC has so many powers in the sense that even though it proclaimed procedural limitations in its
making of Decrees, it also gave its power to amend, repeal or make laws. Also, a decree could be in effect even
though it wasn’t known to the public because it was not published in the Gazette. In interpreting an Act of
Parliament or a Decree, the Act or Decree should be read as a whole. The cumulative effect of paragraphs 3 (6) and
(7) of the Proclamation 1966, was that a Decree could come into force and be operated or administered even
though it had not been published in the Gazette. And the word "issue" appearing in para. 3 (1) of the Proclamation,
would in the context of the present circumstances appear to mean the operation of the Decree even though it was
unpublished. Furthermore a Decree could come into force in some other way or mode of publication or even on
some other day than by publication in the Gazette. Thus a retrospective or prospective date could be put in a
Decree and such a Decree could not be said to have been published in the Gazette on the date of its coming into
operation. In the instant case the Decree authorising the detention of the applicant was to operate retrospectively,
consequently it could not be considered to be inoperative merely because it had not been published in the Gazette
and a number assigned to it.
RE AKOTO
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Akoto and his seven friends upon their arrest and detention ordered by the then Governor- General but signed in his
stead by the Minister of Interior under section 2 of the Preventive Detention Act, 1958 (No. 17 of 1958), sent
applications to the High Court for writs of habeas corpus. Their arrest was due to fact that they consistently
advocated and encouraged the commission of violence as well as associated with persons whose interests were to
use violent means in capturing political power. Their application was refused but they later appealed to the
Supreme Court. Their application for the habeas corpus was supported by affidavit which disclosed the order for
the detention, the written information furnished with it in accordance with the requirements of the Act, written
representations by the detainees to the Governor-General and the reply of the Governor-General. To the
Governor-General their detention was in good faith and it was necessary for persons who act in a manner
prejudicial to the state to be detained.
Held- There is no constitutionalism in this case because the government was given excess power with no limitation.
The Court held that it was not required to inquire into the truths concerning grounds of detention of the appellants
because the order came from the Governor-General who had the supreme decision to issue such an order if he
deemed it necessary. Truths concerning grounds of detention could not be questioned under Article 13 of the
constitution. It was held that detention without trial was not unlawful especially under the circumstance in which
the appellants found themselves. They were engaged in acts detrimental to the security of the state as well as the
general governance of the state. The order was made to prevent them from continuing such activities. Power was
given to the governor general to detain anyone harmful to the security of the state according to PDA. It was held
that Parliament could also pass the Prevention Detention Act during peaceful times because it derived this right
from the constitution. Also, in matters where there was a threat to society and the general governance of the
country, there was no reason why Parliament could not enact such laws to detain the person responsible. Article 20
also made provisions for the ‘Sovereign Parliament’ to make any laws it deemed necessary. It was however limited
when it came to the entrenched clauses.
MARBURY V MADISON
Marbury was refused the position of the Justice of Peace because the commission signed by former president John
Adams were not delivered before the expiration of John Adams time in office. Marbury was nominated and
appointed by John Adams to become the Justice of Peace for the District of Washington. After the document was
signed by the president the Secretary of State failed in his duty to deliver the commission.
Constitutionalism was practiced in this case because parliament was limited not to make laws that were in
contravention with the constitution. Also, the process by which a justices of the peace is appointed is enunciated in
the case... thus, signifying procedural limitation of the president
NPP V IGP
The plaintiff, a registered political party, sought and was granted a police permit on 3 February 1993 to hold a rally
at Sekondi on 6 February 1993. The permit was, however, subsequently withdrawn by the police. On 16 February
1993, the plaintiff in conjunction with other political parties embarked on a peaceful demonstration in Accra to
protest against the 1993 budget of the government but the demonstration was broken up by the police and some of
the demonstrators were arrested and arraigned before the circuit court on charges of demonstrating without a permit
and failing to disperse contrary to sections 8, 12(c) and 13 of NRCD 68. On 17 February the plaintiff was granted a
permit by the police to hold a rally at Kyebi to commemorate the 28th anniversary of the death of Dr J B Danquah
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but the permit was withdrawn and the rally prohibited by the police on the day of the rally. Aggrieved by those
decisions and actions of the police, the plaintiff brought an action before the Supreme Court for a declaration that
(i) sections 7, 8, 12(a) and 13 of NRCD 68 were inconsistent with and a contravention of the Constitution, 1992,
especially article 21(1)(d) thereof, and were therefore null, void and unenforceable; and (ii) under the Constitution,
1992 no permission was required of the police or any other authority for holding of a rally or demonstration or
procession or the public celebration of any traditional custom by any person, group or organisation.
Held- When citizens met or processed in a public place in pursuance of their constitutional rights under article
21(1)(d) of the Constitution, 1992 to form or hold meetings and processions, they were subject only to the
provisions of the Criminal Code, 1960 (Act 29). Accordingly, if a meeting, procession or demonstration was being
held lawfully and nothing done by persons attending such meeting or forming the procession or demonstration
contravened the provisions of Act 29, such persons should not be guilty under section 13(a) of NRCD 68.
Accordingly, the provision of section 12(a) of NRCD 68 which conferred on a police officer or an authorised public
officer unfettered, absolute, administrative powers to stop and cause to be dispersed any meetings or processions in
any public place, without ascribing any reasons for it, abridged the fundamental human rights of the citizen under
article 21(1)(d) of the Constitution, 1992 and were therefore unconstitutional. the freedom of assembly granted the
citizen under article 21(1)(d) of the Constitution, 1992 encompassed the right of the citizens to come together to
petition for redress of their grievances or take part in processions and demonstrations in support of or in opposition
to a cause, policy or event. But the consent or permit requirements under section 7 of NRCD 68 sought to demand
leave of the Minister for the Interior for the exercise of those rights, with the necessary implication that contrary to
the provision of article 21(1)(d) of the Constitution, 1992, meetings, processions and demonstrations were
prohibited by law unless sanctioned by the minister or anyone authorised by him. That proposition clearly violated
the enshrined provision of article 21(1)(d) because by investing the minister or other authority with unfettered
discretion to refuse his consent or permit, section 7 of NRCD 68 placed the assertion by the citizen of his
constitutional rights of assembly, procession by the citizen of his constitutional rights of assembly, procession and
demonstration at the mercy of the authorities. Since, the generality of NRCD 68 was to create a prior restraint and a
clog on the rights of the citizen under article 21(1)(d) of the Constitution, 1992 and thereby denied him those
freedoms to which he was entitled, it was inconsistent with the letter and spirit of article 21(1)(d) of the
Constitution, 1992 and accordingly unconstitutional
FATTAL V MINISTER OF INTERIOR
Two plaintiffs Lebanese by birth acquired citizenship by naturalization under the Ghana national act 1971, act 371
in 1973 and 1976. In 1978, the supreme military council passed a decree SMCD 172 which revoked their
citizenship. Deportation was issued by the minister of interior. The plaintiffs brought an action to the Supreme
Court that the revoking their citizenship without a court order was ultra vires and contrary to the 1979 constitution.
Chapter 5, 9, 12 .in a majority decision, action was dismissed with the view that in the absence of a written
constitution which delimited their power, the military government was at liberty to do whatever it liked by decree
which would have the force of the law.
Held- Since 1966, military governments in Ghana had always reserved to themselves the legislative power to either
enhance or curtail the judicial power vested in the courts. In the absence of a written constitution which delimited
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the powers of the various organs of state, a military government was at liberty to do what it liked by Decree which
had the force of law. In the absence of constraints, restrictions or limitations on the legislative power, the laws
enacted by the legislature should be enforced by the courts. The National Redemption Council by its Proclamation,
1972, made the judicial power guaranteed by the Constitution, 1969, and indeed all other existing enactments
subject to Decrees passed by the Council. The jurisdiction of the High Court under the Ghana Nationality Act, 1971
(Act 361), s. 10 was therefore subject to Decrees enacted by the Council. And that section should be deemed to
have been amended by the Ghana Nationality (Amendment) Decree, 1978 (S.M.C.D. 172), by virtue of the fact that
section 10 conflicted with the provisions of the Decree which in the clear words of section 3 (3) of the
Proclamation, 1972, must prevail over section 10 of Act 361. It was therefore not open to any court to declare
S.M.C.D. 172 ultra vires and thus null and void.
GBEDEMAH V AWOONOR WILLIAMS
STATE V. G.O.C THE GHANA ARMY, EX PARTE BRAIMAH
The respondent, a Nigerian national resident in Ghana, was arrested on 3 January 1967 by the army authorities on
suspicion of having committed the offence of stealing. The army authorities acted in pursuance of the provisions of
the Law Enforcement (Powers of the Army) Decree, 1966 (N.L.C.D. 109), which gave to the army authorities the
same powers of arrest and prosecution as are vested in the police under the Criminal Procedure Code, 1960 (Act
30), the Police Service Act, 1965 (Act 284), and the Public Order Act, 1961 (Act 58).On 4 January 1967, the
Attorney-General gave his consent in writing for the detention of the respondent for a period of 28 days beginning
from 4 January 1967. The Attorney-General was acting under the provisions of the Criminal Procedure Code
(Amendment) Decree, 1966 (N.L.C.D. 93), which amended section 15 of the Criminal Procedure Code, 1960. The
period of 28 days expired on 1 February 1967 and on that day the Attorney-General issued another consent in
writing for the [p.195] detention of the respondent for a further period of 28 days as from 1 February 1967.On 7
February 1967, the respondent, by his nephew, Yaya Aminu Braimah, applied to the High Court, Accra, for a writ
of habeas corpus for the release of the respondent from custody on the ground that the Attorney-General had no
power to give consent, once the respondent had completed the original 28 days in custody, for the further detention
of the respondent.
Held- Constitutionalism is practised here in the sense that even though his detainment of an extra 28 days was
lawful, it was lawful only on the basis that there were sufficient facts to keep him detained. The object in this case
is to keep him away from public during investigations. This was because investigations were still ongoing.
Things needed to ensure constitutionalism
1. Independent judiciary to guard the constitution. Article 125(1) RE AKOTO is evidence of what happens when
judiciary is not strong and independent
2. The political history & socialization of a people can by itself exert limits- or give little resistance- to abuse. Eg
in GH from Nkrumah down, abusive heads- Ghanaians tolerate rubbish from their leaders. E.g. Muntaka-goes to
see the father after scandal. British system, though Parliament sovereign, held in check by the violent history
that created that sovereignty. I.e. they beheaded a king when he oppressed them, why would they tolerate
oppressive Parliament.
3. The role of elections in constitutionalism. Even though it is not sufficient by itself, it gives immense
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confidence in politicians and create a conscious demanding people who are themselves part of the notion of
constitutionalism.
4. Political party activity aids constitutionalism. This is because one serves as a watchdog over the other.
Theories that go to secure constitutionalism.
1. Separation of powers
2. Judicial review
3. Supremacy of the Constitution.
4. Rule of law
A constant state of confusion is the relationship of constitutionalism with democracy. According to Professor
Nwabueze, ‘’ A government is a democracy if it is popularly based , rests on the consent of the governed, which
consent is given in universally free elections, and which provides a mechanism for the governed to change the
governors in the event of dissatisfaction with their performance’’. Care has to be taken not to confuse a popularly
elected and responsible government with a constitutional one.
A constitutional government in modern times may be democratic but a democratic government may not necessarily
be constitutional. The democratic institutions such as elections, parties etc. are only for constitutionalizing a
government. Constitutionalism does not merely require the existence of a constitution. A country then, it must be
understood can have a constitution without constitutionalism, particularly in situations where the constitution is
only an enabling act which sanctions government fiat.
Constitutionalism may be roughly defined as the art of providing a system of effective restrains on the exercise of
governmental power. Government is necessary for the effective running of ordered society. There is however
arbitrariness inherent in the power of government. Constitutionalism therefore recognizes the necessity for
government while seeking to curb this arbitrariness. Carl Friedrich states that ‘’ … it embodies the simple
proposition that the government is a set of activities organized by and operated on behalf of the people , but subject
to a series of restraints which attempt to ensure that the power which is needed for such government is not abused
by those who are called upon to do the governing.
Though federal governments are considered best at entrenching the restraint principle central to the idea of
constitutionalism, it does not matter whether the government is unitary or federal. How then do we make these
restraints effective? It is in relation to this that the existence of written constitution is pertinent to the concept of
constitutionalism. Ever since the lead given by France and the United States in the eighteenth century, the view has
become firmly established that the restraints on the exercise of government power could be effective embodied in a
supreme written document, preferably enforceable, by parties before a judiciary which is independent of the other
organs of government.
In MARBURY V. MADISON , chief Justice Marshal of the J.S supreme Court pointed out that ‘’ the limitations
placed on government are known and, therefore , excursions outside these limits can be more easily checked. It is
not solely asserted that the judiciary alone sees to the ‘’policing ‘’ of the constitution or simply by hoping that the
organs of government will restrain themselves and keep within their boundaries of constitutional powers. Some
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countries rely both on the judiciary and the legislative where as others leave everything to the legislators.
An appraisal of constitutionalism in a country, either one written document called the constitution will be sadly
deficient if it only focused on the constitutional document. There must also exist in the ethos of the particular
society belief in the idea the power of government ought to be restrained.
Separation of powers
Origins of Separation of Powers
John Locke was a supporter of the events leading up to the promulgation of the Bill of Rights of 1688 and his
writings in that period have been closely linked to the origins of separation of powers. According to him, because it
doesn’t take a long time to make laws, the people who make laws should not be allowed to be in session
continuously; they make the laws and separate (disperse). He recognised that when laws are made they have to be
implemented and issues arising from implementation should be adjudicated but in his writings, those two belonged
to one authority, The Prince.
Montesquieu wrote about the governance systems of the places he had visited in his travels around the world. In his
book The Spirit of the Laws he said the objective of a government dictates its structure. Sparta’s objective was war
so government was structured to promote it. China’s was to promote peace and stability and its governing system
was organised to achieve that. Only one country, England, had an objective to protect political liberty so that no
citizen need fear another citizen. Like Locke, he mentions the legislation, executive in foreign matters and
executive in domestic matters including adjudication. He ends by saying ‘the monopoly of power is the end of
political liberty’. It is this observation of his which people use to describe dictatorship or tyranny. Montesquieu,
unlike Locke, recognized the role of the judiciary as an organ of government, having a separate function.
Generally speaking, neither Locke nor Montesquieu provided the tripartite arms of government as we know it
today. Rather they advocate that no single person should have the totality of governmental power.
Within a system of government, there are legislative, executive and judicial functions to be performed and the
primary organs for discharging these functions are the legislature, executive and the courts respectively. Henderson,
a legal historian in his Foundations of English Administration Law has remarked: the threefold division of labor
between a legislator, an administrative official and an independent judge is a necessary condition for the rule of law
in a modern society and therefore democratic government itself. In a mature democracy, it is important that judges
are independent both of Parliament and government, and that parliament is not merely a rubber stamp for the
cabinet. Indeed it may be argued that the essential values of law, liberty and democracy are best protected if the
three primary functions of a law based government are discharged by distinct institutions.
In the case of BLACKBURN V. AG, Lord Denning argued that the power of entering into treaties was a
responsibility that was in the hands of the crown and not the courts.
TITLE: BLACKBURN v ATTORNEY GENERAL
FACTS: The British government were to enter into the treaty of Rome to join the Common Market. The plaintiff
contended that on entry into the Common Market, signature of the Treaty of Rome by Her Majesty's government
would be in breach of the law because the government would thereby be surrendering in part the sovereignty of the
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Crown in Parliament for ever. Also, signature of the treaty would be irreversible and would limit the sovereignty of
the United Kingdom. The issue before the court was whether it can prevent the Crown from entering into the
Treaty.
HOLDING: The court held, per Lord Denning that in the first place, no treaty had been signed by the Crown as it
was in the negotiation stages and that the courts will take no notice of treaties until they are embodied in laws
enacted by Parliament, and then only to the extent that Parliament tells the court. Further, Denning held that the
treaty-making power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting on the
advice of her Ministers and as such the courts cannot stop the Crown from entering into the treaty. The court can
only look into the validity of the treaty if it is passed by Parliament as an Act. Stamp L.J asserted the principles of
Separation of Powers by holding that, The Crown enters into treaties; Parliament enacts laws; and it is the duty of
this court in proper cases to interpret those laws when made; but it is no part of this court's function or duty to make
declarations in general terms regarding the powers of Parliament, more particularly where the circumstances in
which the court is asked to intervene are purely hypothetical.
The concept of separation of powers may have variety of meanings. The concept of separation of powers may mean
at least 3 different things:
⦁ That the same persons should not form part of more than one of the 3 organs of government, for example
that ministers should not sit in Parliament-personnel separation
⦁ That one organ of government should not control or interfere in the work of another, for example the
executive should not interfere in judicial decisions; article 107 of the 1992 constitution provides that
parliament shall have no power to pass any law to alter the decision or judgment of any court as between the
parties subject to that decision or judgment-organic/institutional separation.
⦁ That one organ of government should not exercise the functions of another for e.g. That misters should not
have legislative powers-functional separation
In considering these aspects of separation of powers, this is neither in theory nor in practice. This is demonstrated
in the STEEL SEIZURE CASE per Justice Jackson.
Aims of Separation of Powers
⦁ To ensure efficiency. This goal can be likened to the Smithanian principle of division of labour in economics.
Here, Adam Smith who propouded the theory of division of labour, said that, when there is division of labour,
there is maximisation of output because there is efficiency. What proponents of separation of powers are saying
therefore is that, separation of power achieves efficiency, because separation of powers involves division of
labour. Each organ is supposed to focus on one thing, that is, the legislature is supposed to make laws, therefore,
should not be bothered about implementing the law. The executive is supposed to implement the law and
likewise should not worry about what laws to make. The judiciary are also not to be bordered about law making
and implementation because theirs is to adjudicate. In such a situation, we will have each organ being excellent
in its own field. That division encourages efficiency because there is specialisation as opposed to generalisation
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⦁ Ensuring that laws are passed for the general good rather than the interests of a few/prevent tyranny. Those
passing the laws will themselves be subject to it. As such they will ensure that they will make good laws
because the implementation is out of their hands. This appears to be the major goal of the principle of
separation of powers. Experience in governance has shown that, immediately a person is made too powerful,
there is a tendency that the person will become a dictator. Generally, people have the tendency to abuse,
whenever they have too much power. Whenever the same person can make the law, implement the law and
administer justice, there will be no justice and invariably, that person will become a dictator. Therefore when
there is one person who does not combine all three functions, then, tyranny will be prevented.
⦁ It allows for accountability. This may be to other branches of government or to the people.
Difficulties or problems
• The need to differentiate the legislative, judiciary and executive functions
• Legal incompatibility of multiple officer holders. For some it means the same person should not belong to more
than one of the three branches.
• Isolation of the different opinion from each other
• It means checks and balances to some people
Challenges of Constitutionalism
⦁ Political Parties-Their primary purpose is to achieve governmental power. Modern power systems are also
attained by competition. Thus in a political system in which every function or role can be assessed through
competition, people of a certain political grouping can sweep everything in theory and will run the country
according to their ideologies. The legislature and executive can therefore combine. There is even a
possibility of a political party nominating judges for election. The interest in avoiding monopolies via
separation of power will therefore be challenged.
Where the party has a strong hold on the politicians, a monopoly in the authorities might exist e.g. Ghana
and there will be no balance in the centres of power. Where the party’s hold on the politicians isn’t strong,
the likelihood of a monopoly is very low.
⦁ Power of Judicial Review- Courts have the power to determine questions of constitutionality/law. It enables
judges to participate actively, if they want to, in policy making. For instance the courts invalidated
legislative and executive orders in the 31st December case and the NPP v. GBC case. The question is
therefore whether this gives the judiciary dominant power over the other centres.
⦁ Parliamentary System- The executive is controlled by, and answerable to the legislative. There is therefore
no proper separation of powers in terms of checks and balances, rather the separation is functional.
Forms of separation of power
Separation of power can be identified in two forms:
⦁ Classical/strict form- In the classical or strict form of separation of powers, the various organs of
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government should be kept separate from each other. This comprise organic separation, functional
separation and personal separation
⦁ Flexible form- The flexible form is a contemporary notion of separation of power. The flexible notion
advocates what is known as checks and balances. In other words, separation of power is always mediated by
the principle of checks and balances. The simple reason is that, government does not function in a disparate
manner. Government is itself, a collection of organic entities that collaborate and this collaboration between
organic entities is designed to ensure that government act in a coordinated manner because, government has
one basic motive and this motive is to ensure that the welfare of its people is maximised.
Under the principle of checks and balances, there is an advocacy for a relationship between the various
organs of government based on institutional corporation and collaboration, with the view of ensuring that
the organs of government function in close ties with each other. This is designed to ameliorate the impact of
the principle of separation of powers which, if carried to its logical conclusion, will lead to a breakdown of
government. The principle here is that when government is made to function as if it were made up of organs
that are strictly compartmentalised, the government will break down.
Secondly, if organs of government are made to follow strict separation of power, there will be conflicts. For
example, when there is a strict form of separation of power, legislature can decide that since theirs is law
making, they will make any law they like. The executive may also decide that they will not implement laws
made by the legislature because they have the function of implementation. The judiciary, likewise, may also
decide to strike down laws made and implemented as unconstitutional. To avoid these potential conflicts
between the various organs of government, it is proposed that the various organs of government rather
cooperate and collaborate. This is what the flexible form of separation of powers seek to achieve
Principle of checks and balances
Checks and balances promotes what is known as reciprocal checks, by which one organ checks or oversees the
functions of another or other organs. That is the principle of reciprocity. The principle of checks and balances
brings up two main concepts; interdependence and reciprocity
Interdependence
This concept advocates that the various organs of government and personnel operates in an interdependent way
through mutual dependence on each other’s competences or power. This implies that, one organ depends on the
functions and powers of the other for the completion or attainment of its goals. Interdependence therefore implies
cooperation or collaboration and abhors dysfunctional separation or autonomy. It upholds functional autonomy
where it is for good purposes.
Reciprocity
It reflects a “give and take” affaire. It implies that each organ checks another and another checks the other. This is
therefore known as cyclical checks because of its cyclical nature i.e. A checks B, B checks C, C checks A, among
others.
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Elements of the Separation of Powers in the 4th Republican Constitution
The Constitution has three separate chapters devoted to matters concerning with the Executive (chapter 10),
Legislature (chapter 11) and Judiciary (chapter 12). The tasks of each branch of power are indicated. Article 58 has
tasks of executive; Article 93 for legislature; and Article 125 has basic responsibility of the judiciary.
The constitution makes sure one branch of government does not control the other or have the totality of powers. It
also provides mutual participation in the discharge of responsibilities. There is some difference/separation in terms
of personnel between the executive and legislature on one hand and the judiciary on the other but it doesn’t exist
between the executive and the legislature. Hence some members of the legislature may function as members of the
executive – a departure from the arrangements under the 1969 Constitution.
The framers of the Constitution seem to not have understood that separation of powers mean having only three
centres of power. As such other institutions have been created with powers which would normally have been under
the executive in other jurisdictions e.g. CHRAJ. They must have believed that throughout our constitutional
experience, it is the executive that needs taming because it has been the primary source of challenges to our
constitution.
CHRAJ has three functions in one;
1. It’s the national agency against corruption
2. Ombudsman i.e. a mechanism available to citizens to seek redress against the public services
3. It’s our national human rights institution
CHRAJ has some investigative powers and holds hearing where people complain about their rights or corruption of
public officials. Hence, it has some quasi-judicial functions.
The New Media Consortium (NMC) is the public oversight body with responsibility to ensure the media operates
according to certain standards. Prior to the 1992 Constitution, that function was controlled by the Ministry of
Information. The NMC is independent of the other centres of power. It has some dispute resolution function and
may be said to have quasi-judicial functions.
The Electoral Commission is to conduct elections and referendums. In Francophone countries especially, this
function is performed by the executive. Not so in Ghana.
⦁ In articles 125 and 127, the executive and legislature are restrained from exercising judicial power and
interfering with the functioning of the judiciary
⦁ Parliament shall be involved in the appointment of ministers and also the appointment of some judges and
also the CJ. The commissions are however signed by the President with approval of Parliament
⦁ Parliament has the power to impeach the President and some of the senior justices of the superior court of
judicature
⦁ The president is not part of the legislature but he participates in the legislature because the bills passed by
parliament are promulgated by the President. The President therefore has the power to delay the
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promulgation, return it to parliament explaining why he does not want to promulgate it. Parliament has a
fixed time to incorporate his comments failure of which the bill will lapse. Parliament is however free to
ignore all the President’s concerns.
⦁ Article 111 allows the Vice President, Ministers and Deputy Ministers who are not members of Parliament
to take part in the proceedings of Parliament but they can neither belong to a committee nor vote.
⦁ The president fixes the salary of parliament and parliament fixes the salary of the president and retirement
benefits.
⦁ The president cannot dissolve the legislature. It automatically dissolves at the end of 4 years after taking the
oath of office. The only interference from the executive is if the country is between parliaments and the
president recalls the old parliament after its dissolution
⦁ Parliament can censure a minister but only the president can dismiss a minister.
⦁ The public accounts committee of parliament oversees the utilisation of funds the house has authorised the
executive to spend. It’s always chaired by a person from the minority.
⦁ In article 127, the Constitution gives the judiciary financial autonomy
There are relationships between the various organs of government.
⦁ Relationship between legislature and executive- President is not part of parliament but he is expected to
give sessional address yearly at the beginning and dissolution of parliament. The President does not depend
on Parliamentary support for his continuance in office, as he enjoys certainty of tenure. President can
nominate his minsters but the ministers have to be subjected to vetting and approval by parliament- Act
78(1), J.H MENSAH PER AIKINS. Executive prepares the budget and has to be approved by parliament.
Unlike USA, where members of Congress cannot hold Ministerial appointment, the 1992 Constitution
makes it obligatory for a portion of the cabinet members to be Members of Parliament (see Article 78(1)).
There is thus a certain amount of fusion of legislative and executive personnel. Treaties and loan
agreements subject to parliamentary approval-Art 75 and 181 respectively. Parliament has power to bring
impeachment proceedings- Art 69(1).
Parliament by its own internal procedure considers bills and may approve or reject a bill. After the approval
of a bill it requires the assent of the president to become an Act of Parliament. Thus an Act of Parliament is
a bill that has been approved by Parliament and assented to by the president. The President may refuse to
assent to a bill passed by parliament (veto - refer to Article 106 for detailed legislative procedure). Where
the president refuse to assent to a bill passed by Parliament, Parliament may by 2/3 majority vote overturn
the veto. In this case, the President shall assent- Article 106 (10)
⦁ Relationship between legislature and judiciary- Unlike the executive and the legislature where there is some
amount of fusion of personnel, there is a distinct separation of both personnel and functions of the Judiciary
and the Legislature. However, the judiciary depends on parliament for approval of their appointments.
(Judicial review per Sowah in TUFFOUR V. AG). Though court can review acts of parliament it cannot
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inquire into what happened in parliament. Even though article 127 guarantees judiciary financial
independence, parliament controls release of money through appropriation act as provided by article 178,
judiciary makes laws via case laws and can declare acts unconstitutional.
⦁ Relationship between executive and judiciary-CHRAJ an executive instrument performs quasi-judicial

functions; judges of superior court are nominated by executive and can also be removed by the president on
stated grounds acting upon recommendation of a committee as provided by article 146. Prerogative of
mercy-article 72
Disadvantages of Separation of Powers
Government is an organic unity. The various parts are closely interwoven. Therefore absolute separation of powers
is both impossible and undesirable. In every modern government the executive has some kind of law making power
to fill the gaps in the structure.
Separation of powers leads to isolation and disharmony. The various branches of the government tend to exhibit a
sense of understanding and cooperation to achieve its end when they work together. But when they are separated to
carry on exclusive work of their branch they become arrogant and refuse to work with other branches of
government. This gives rise to lots of administrative complications. Every branch suffers from the vice of
exclusiveness leading to loss of cooperation and harmony producing inefficiency of the government.
The concept of separation of powers which upholds the system of checks and balances for the sake of equality of
powers is based on wrong assumptions. It is not possible to accept the view that all organs of government mutually
check each other.
The relationship between public liberty and separation of powers is not very significant. Liberty of the individual
largely depends on the psych of the people, their outlook, the existing institutions, traditions, customs and political
consciousness. In Great Britain, the people are not less free than that of U.S.A because there is less separation of
powers in the former.
Advantages
⦁ According to Montesquieu, separation of powers is the best guarantee of the liberty of people.
⦁ Separation of power promotes efficiency in the administration.
Separation of powers is useful if used judiciously to bring about a balance between the vigorous action of the
welfare state and the enjoyment of the liberty of the people.
Though Ghana is claimed to be practicing separation of powers, some members of cabinet belong to the legislature.
Hence there cannot be absolute separation of powers.
Conclusion
The 1992 Constitution can be said to provide an appreciable level of separation of functions and personnel of the
three organs of government. However, there are various provisions promoting check and balances, ensuring
co-operation and interdependence.
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Finally, Edward Wiredu JSC, wrote in the case of GHANA BAR ASSOCIATION V ATTORNEY GENERAL that;
“The scope and extent of the doctrine of the separation of powers, in my respectful view, and, as I understand it,
under the Constitution, 1992 is to ensure that each arm of state in the performance of its duties within the
framework of the Constitution, 1992 is to act independently and should not be obstructed in the exercise of its
legitimate duties or be unduly interfered with [by the Constitution]. In other words, all arms of the State are
answerable or responsible to the Constitution, 1992. It is also to ensure the smooth administration either judicial,
legislative or executive governance of the State whilst checks and balances are provided to ensure strict observance
by each arm of state of the provisions of the Constitution, 1992.”
In the case of DUPORT STEELS LTD V SIRS, LORD DIPLOCK stated that at a time when more and more cases
involving the application of legislation which gives effect to policies that are the subject of bitter public and
parliamentary controversy, it cannot be too strongly emphasized that the British Constitution, though largely
unwritten is firmly based on the separation of powers; Parliament makes the laws, the judiciary interpret them.
Also in HINDS V R, LORD BINGHAM observed that whatever overlap there may be under constitutions on the
Westminster model between the exercise of executive and legislative powers, the separation between the exercises
of judicial powers on the one hand and legislative and executive powers on the other is total or effectively so. Such
separation, based on the rule of law, was recently described… as ‘a characteristic feature of democracies’.
In “SEPARATION OF POWERS IN GHANA, THE ROLE OF PARLIAMENT, REVIEW OF GHANA LAW 1980”
, Nii Josiah Aryee proposed for a system, in which the Executive and the Legislature are separate and independent
of each other, but complementary to each other and obliged to co-operate with each other if each is to be able to
perform its functions effectively.
NIXON V. SIRICA: NIXON V. UNITED STATES
Seven associates of President Nixon had been indicted following the Watergate scandal. The special prosecutor of
the District court issued a subpoena duces tecum (bring certain documents specified for evidence) to the President
requiring him to produce before the trial date certain tapes and documents relating to the case. The president’s
counsel filed a ‘special appearance’ and moved to quash the subpoena which was accompanied by a formal claim
of executive privilege, providing for an absolute privilege of confidentiality for all Presidential communications.
Counsel also argued that with the doctrine of separation of powers, the independence of the executive branch
within its own sphere insulates the President from a judicial subpoena in an ongoing criminal prosecution and
thereby protects confidential presidential communications. The District Court denied the motion and ordered the
president to submit the subpoenaed items in Nixon v Sirica. The President appealed to the Court of Appeal but the
Supreme Court granted a certiorari before the Court of Appeal’s judgment.
Issue- Whether the doctrine of separation of powers precludes judicial review of a President’s claim of privilege.
Held- The court held that in the performance of assigned constitutional duties each branch of the Government must
initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the
others. The ‘judicial Power of the United States’ vested in the federal courts by Art. III, § 1, of the Constitution can
no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary
the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other
conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow
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from the scheme of a tripartite government. As such, SOP cannot preclude the court from exercising its judicial
power over a President’s claim of privilege.
RE AKOTO
An order made by the Governor -General and signed on his behalf by the Minister of Interior caused the Appellants,
Baffour Akoto and seven others to be arrested on the 10th and 11th of November, 1959 on the ground that, they
were engaging in actions dangerous to the security of the State. This order was made under section 2 of the
Preventive Detention Act 1958.
Issue-The issue pertaining SOP is whether the court can look into the grounds upon which the order for detention of
the appellants were made.
Held- the Preventive Detention Act under which the appellants are detained vests plenary discretion in the
Governor-General, (now the President), if satisfied that such order is necessary. The court could not therefore
enquire into the truth of the facts set forth in the grounds on which each appellant has been detained. The President
therefore had every right to detain them as he pleases and the court could not enquire into that as according to the
P.D.A
TUFFOUR v ATTORNEY GENERAL
The plaintiff filed a writ against the Speaker of Parliament and the Attorney- General before the Court of Appeal
sitting as the Supreme Court under section 3 of the First Schedule to the Constitution, 1979, for a declaration that
on the coming into force of the Constitution, 1992, the Hon. Mr. Justice Apaloo was deemed to have been
appointed Chief Justice and as such became president and a member of the Supreme Court and his purported
vetting and rejection by Parliament were in contravention of the Constitution
The AG argued that the process in Article 127 was a mandatory one and Apaloo’s rejection was done in pursuant of
that procedure. Attorney General raised objections against the jurisdiction of the court as well as the capacity of the
plaintiff and the competency of the Speaker of Parliament to be sued as a defendant. On jurisdiction, the AG argued
that the Supreme Court was not properly constituted to deal with matters of interpretation as required by Schedule
3. It was an Appeal court sitting as a supreme court. On capacity, the AG argued that the plaintiff had no interest in
the case but it was Apaloo who had an interest in the case and he was the right person to institute the action. On the
merits of the case, the AG contended that, before the Constitution, 1979, came into force, the hierarchy of courts
ended at the Court of Appeal. No justice could therefore have held the office of a Justice of the Supreme Court.
Accordingly, the Chief Justice of that hierarchy was only a Chief Justice of the Court of Appeal. The Constitution,
however, has provided a higher court, the Supreme Court, membership of which was a prerequisite for qualification
as Chief Justice. As such the then CJ was only a transitional CJ and as such, if to be appointed as CJ of the SC, he
must go through the procedure as stated in Article 127.
Held-The courts did not, and could not, inquire into how Parliament went about its business. That constituted the
state of affairs, as between the legislature and the judiciary which had been crystallized in articles, 96, 97, 98, 99,
103 and 104 of the Constitution. Particularly Article 96 which provides that any business in parliament cannot be
questioned in a court of law. The court can however take judicial notice of whatever happens in parliament. The
Speaker therefore ought not to be a party in the instant proceedings and the, court would accordingly discharge him
as a party.
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NPP v ATTORNEY GENERAL
On 31 December 1981 the Government of Ghana, duly elected under the Constitution, 1979 was overthrown in a
coup d’état. Subsequently, the military regime which took over the reins of government, the Provisional National
Defence Council (PNDC), declared 31 December a statutory public holiday. Accordingly, each year the anniversary
of the coup was celebrated, inter alia, by personnel of the security forces with military parades, route marches and
carnivals throughout the country. These activities were financed with public funds. On 7 January 1993 the reign of
the PNDC came to an end with the assumption of power by a civilian government which had been elected into
office under the Constitution, 1992. When on 19 December 1993 the government announced that 31 December
1993 would be a public holiday and should be celebrated and observed as such, the plaintiff, one of the registered
political parties in the country, claiming that the celebration would be unconstitutional, brought an action under
article 2(1) of the Constitution 1992 against the Attorney-General for a declaration that the public celebration of
the coup d’état of 31 December out of public funds was inconsistent with or in contravention of the letter and spirit
of the Constitution, 1992 particularly articles 3(3)-(7), 35(1) and 41(f) and an order compelling the government to
cancel the preparations for the celebration and refrain from carrying out the celebration with public funds.
Held-
Rule of law
The preamble to the 1992 constitution of Ghana provides that Ghana has declared and affirmed its commitment to
the rule of law
It is a legal philosophy or political theory which lays down the fundamental requirements for law or as a procedural
device by which government should rule under law. It is also considered as a legal maxim according to which
decisions should be made by applying known principles or laws, without the intervention of discretion in their
application… in other words, it seeks to promote law and order and to prevent disorder and tyrannical rule.
The rule of law is the principle that governmental authority is legitimately exercised only in accordance with
written, publicly disclosed laws adopted and enforced in accordance with established procedure. The principle is
intended to be a safeguard against arbitrary governance.
Samuel Rutherford was one of the first modern authors to give the principle theoretical foundations, in Lex, Rex
(1644), and later Montesquieu in The Spirit of the Laws (1748).
In Commonwealth law, the most famous exposition of the concept of rule of law was laid down by Albert Venn
Dicey in his Law of the Constitution.
Dicey asserts that the Political institutions of England has been characterised by two features since the Norman
Conquest. The first of which is the undisputed Supremacy of the central government. The King was the source of
law and maintained law and order. At present, the royal supremacy has been passed on to parliament entitling it
sovereignty. The second feature is the supremacy of the law. By this Dicey expresses that the rule of law has existed
for a very long time through the history of the English.
A lot of foreign observers have noticed the peculiarity of rule of law in England far more than anywhere else.
In the English Constitution, the Supremacy or rule of law is an undisputed feature which generally portrays three
conceptions.
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The first of these conceptions is that no man is punishable or can be lawfully made to suffer in body or in
goods except for a distinct breach of law established in the ordinary courts of the land. This sense sharply contrasts
government by arbitrary power. Fundamentally, it is an absolute predominance or supremacy of regular law as
opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even the
wide discretionary authority on the part of the government. This sense of rule of law observably is prevalent in
England or those countries which have inherited English tradition. In other countries, the executive exercises
discretionary which may infringe on the liberty of individuals and this is not predominantly the case in the
government of England. This has led to a general idea held by a lot of Englishmen that whenever there is
discretion, there is room for arbitrariness.
The second conception asserted by Dicey is that whatever a man be, he is subject to the ordinary law and
pliable to the jurisdiction of the ordinary tribunals. This is basically equality before the law or equal subjection of
all manner of persons to the ordinary law of the land. This has prevailed in England to its utmost limit where every
citizen, irrespective of their responsibilities are legally equal. The Englishman may therefore naturally think that
the rule of law is a characteristic feature of all civilised societies but this is not the case because most European
countries through some sort of development have outlined certain manner of persons like nobles, priests etc. as
capable of defying the law. Even now all persons are not considered subject to the same law in most continental
countries.
The third of the conception around the rule of law is that which Dicey describes as a special attribute to the
English Constitution. This has got to do with the right to personal liberty and freedom. With the English, the right s
and liberties of the private person is a result of judicial decisions in the courts whereas that may be determined by
the general principles that are laid down in the constitution in many foreign counties. The English Constitution
does not spell out any declaration or define rights which are the case in many foreign constitutions. The Habeas
Corpus Act also declared no principle nor did it define rights, but Dicey proclaims they are for practical purposes
worth a hundred constitutional articles guaranteeing individual liberty. Dicey evaluates that where the rights of the
individual freedom is as a result of or deduced from the principles of the constitution, the idea is readily occurs that
the rights are capable of being taken away. On the other hand, the right of the individual is part of the constitution
because it is inherent in the ordinary law of the land, the right to which can hardly be destroyed without a thorough
revolution in the institutions and manners of the nation.
The general principles of the constitution (for an example the right to personal liberty, or the right to public
meeting) are the result of judicial decisions determining the rights of private persons in particular cases brought
before the courts; According to Dicey, in English law, the fundamental rights and liberties of citizens emanate and
depended upon the ordinary laws of the land and not upon any special Bill of Rights or other declaration in a
written constitution. To Dicey the protection given to the rights of the individual in the United Kingdom are
superior to that given in countries with a special bill of rights since if a right is infringed remedy can be given with
ease as compared with resting on the content of a declaration.
Dicey identified three principles which together establish the rule of law:
(1) The absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; the law
must be supreme to everybody in the state and must regulate every action of individuals in a state. Vis-a-vis the
government and the law, the law is supreme and that any action of government which is inconsistent with the law,
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will be null and void. This is seen in article 1(2) of the constitution. This suggests that no man shall be made to
suffer except for a breach of the law. Such law should be certain and not such that its effects takes place
retroactively. Article 19(5) of the constitution. This contradicts with the idea of special courts which are only
established after the fact.
(2) Equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the
ordinary courts; No man is above the law , every man and woman , whatever be his or her rank or condition , is
subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. This is seen in
article 17 of the 1992 constitution. Dicey was concerned with limiting the powers of officials in favor of individual
rights. According to Dicey, this is best achieved if all are subjected to the same law administered by the ordinary
courts. Dicey compared the English law to the French law as with the French, there was a special court which dealt
with disputes between citizens and the state. These courts dicey thought would unduly favor the government as
against individuals.
This is Dicey’s most controversial principle as in actual fact everyone is not equal before the law. For example the
president enjoys immunity from prosecution. One of his strongest critics, ivory Jennings, argues that if one wants to
make sense of this principle, one should rather say that among equals there should be equality.
(3) The law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts.
This is known as predictability of the law. This presupposes that the law must be made in advance of the action or
conduct that is sort to be regulated. Predictability of the law forbids retrospective legislation. Article 19(5) of the
constitution. For rights to be protected in our contemporary world, we need effective remedies and we need
institutions able to enforce these remedies. When a citizen is wronged, either by another or by the law, he/she
should have a remedy. That remedy should be administered by individual, free and impartial judiciary in a fair and
public trial.
The designs and principles of the designs of the rule of law are important; they are the values or the pillars
underpinning the constitution to which we can refer when questions arise concerning the exercise of
power/authority granted by the constitution.
Ivor Jennings-the law and the constitution
To Jennings rule of law is used to denote a society where there is law and order. It is used to distinguish between a
society of anarchy from one with law and order. To him there could be rule of law in military regimes or in an
absolute government so far as law and order prevails and that Dicey’s conception of the rule of law was just to
distinguish a democratic government from a dictatorship.
The talk at the international level has been the need to establish ‘the rule of law’. The fear that many nations might
rebel due to the fact that these nations do not obey the international law has in turn led many other nations to
incessantly add to their armaments to prepare for any warfare that might occur. This actually in its nature is what is
happening in modern states. The basic ingredient needed to warrant the rule of law basically, is that people are law
abiding. This consequently ensures law and order. The existence of a sovereign who could make laws and ensure
that those laws are obeyed promotes law and order as advocated by Thomas Hobbes. He also prescribes the
existence of authority and law as making life better and enjoyable. The result of allowing lawless men to continue
in their lawlessness without any measure to control them is erosion of the rule of law and thus anarchy.
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The rule of law if concluded the same as law and order, then it is typical of every civilised state. If not, it is
only proper to maintain Dicey’s views. Otherwise the whole notion of the rule of law becomes inexact.
Absolutism has not had much play in the English History because the King has not had absolute authority as a
result of his authority being limited by his subjects. In the English terms, the rule of law requires that the powers of
the crown and that of the subjects shall be derived and limited by either the legislation of parliament or judicial
decisions of the independent courts. The rule of law is an expression of liberal and democratic principles. The acts
of the king are not legitimate unless they extended from some specific rule of law. Jennings considers that the rule
of law contains a conception of equality, the scope of which is not exact just as the concept of rule of law itself.
This notion of equality was used as a principle to the unequal distribution of property. In the nineteenth century, the
liberal tradition concentrated on “equality before the law”. This concept does not imply that property be equally
distributed nor does it mean law should be applied to all persons in the same way. It is however almost near
impossible to attain a system where law applies equally to all persons because a lot of legislation applies to certain
classes leaving others. Equality before the law does not also mean political equality. Otherwise little children
should be able to vote in elections even though we know that will lead us into doom. The conclusion here is that
this concept of equality before the law is simply limited. What it actually means is that there should be equality
among equals. Even law which should be of general application are limited in cases of incapacitation. Such areas
include areas of law as contracts and of torts. In criminal cases, the rule of law implies a combination of equality
before the law and the notion that the limits of the police should be strictly defined. But in English law, there is no
satisfaction of these rigorous rules and special exceptions may be made by Parliament.
The rule of law also suggests liberty of persons. In the French Revolution, liberty like equality was regarded as
a fundamental or natural right which had been destroyed in some states by absolutism in governance even though
these states seemed to be working for the liberties of people through the centuries.
Dicey is not said to have declared the principle of rule of law but he analysed his view on this principle. He
first assessed that “no man is punishable or can be lawfully made to suffer in body or goods except for a distinct
breach of law”. It can therefore be deduced that if the government’s power is arbitrary or even discretionary, it
limits this idea. But the truth of the matter is that, there are many discretionary powers existing around us and many
of these powers form part of the law. They may also stem from the courts. Jennings proposes that some of these
powers as well as others of its kind were passed by public authorities in 1885 and can still be exercised. According
to Jennings, Dicey seemed to have assessed that government had the function to protect the individual liberty as
long as he did not interfere with the liberties of others. Meanwhile, he leaves out the interference of the public
authority into private action. Jennings further counters Dicey that in time of emergencies, the liberties of
individuals are lost. For instance, by the Emergency Powers Act, 1920, immense powers are given to the
Parliament by which the individual’s liberties are curtailed. One factor that works against the Diceyan notion is that
Parliament can pass whatever legislation it pleases. England’s legislature for instance has powers not limited at all
as it was exercised in Defence of the Realm Act in 1922. Moreover, Parliament is not limited by clearly stated
general rules. Nevertheless dicey says that statutes passed becomes subject to judicial interpretation but Jennings
hits that Parliament can reverse the interpretation given by the judges if it does not like it. These all exposes some
unresolved weaknesses in Dicey’s concept.
Raz
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However, according to Raz in his article, The Rule of Law and its Virtue, the concept does not talk about how law
is to be made: by tyrants, majority decisions, or any other way; nor does it talks about democracy, equality, fairness,
or justice… he stated emphatically that there can be an undemocratic government without any of the so-called
conditions but in principle, is based on the Rule of Law. To him, the concept is based on the following principles:
⦁ The law must be clear
⦁ The law must be publicized
⦁ The law must be stable
⦁ The law must be prospective… must not require the impossible
⦁ The law must not be contradictory
⦁ The courts must be accessible
He compared the concept with a sharp knife for which he drew a conclusion that, the sharpness of the knife does
not show the use of it, it can be used in a positive manner and also negatively. This is the idea of positivism. The
concept says nothing about the ‘justness’ of the law but simply how the legal systems operate.
International committee of jurists (ICJ) and the rule of law
After Dicey’s exposition of the concept there was a need to consider the relevance of the concept as practiced in
various countries… to do this, the ICJ, an affiliate of UNESCO held a meeting to agree on the upon an adaptation
of Dicey’s Rule of Law in New Delhi, in 1959, with the theme, ‘The Rule of Law in a Free Society’. They came out
with the following core elements:
1. That the individual is possessed of certain rights and freedoms and that he is entitled to protection of these
rights;
2. That there is an absolute need for an independent judiciary and bar;
3. That the establishment of social, economic, and cultural conditions would permit men to live in dignity and to
fulfill their legitimate aspirations.
Respect for human rights
The rule of law believes in the respect for fundamental human rights. The proponents of rule of law advocated that,
the state must respect human rights as a valued obligation. The respect for human rights flows as a natural
consequence of the obligation to rule through law. The main essence of this is to prevent tyranny. In this respect,
every state that upholds the tenets of the rule of law compulsorily must include in their constitutions (whether in
the abstract or concrete sense) real provisions that seek to uphold and guarantee human rights.
Underlying the above elements are the following principles:
1. Right to representation
2. Effective remedy for a wronged citizen

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3. Right to fair trial
4. Independence of the judiciary
5. The rights of citizens must be enshrined
Conditions ensuring Rule of Law
⦁ Good laws- that is the laws must protect the rights of the citizens and in a way, limits the actions of the
government
⦁ Effective remedies- that is anyone who is wronged by the government must be given appropriate remedies
as it arrives
⦁ Professional and courageous lawyers- that is the lawyers must have courage to defend the laws at all times
and also the subjects of the states…
Enemies to Rule of Law
⦁ Non-enforcement of Law- the more society fails to ensure that the laws are evenly enforced, the easier it is
for gov’t to become one of whims rather than one of predetermined rules;
⦁ Less (low) quality of Law- laws are passed at every instance to deal with every problem instead of looking
at the existing laws and determining whether there are remedies already available. Too much attention is
then paid to the process of law rather than the substance
⦁ Lack of Commitment and Devotion to the Law- leads to bigger problems in the future
⦁ Legacy of Military Rule- there is a constant fear that peace and freedom will be set-back by another coup
d’état; lawyers and judges fear challenging the legal order because of what happened to those who did so in
the past (the rule of law suffers because the skill and expertise needed in the judicial system is unavailable)
Increasingly, the view is taken that the absence of specific rules does not mean that the rule of law does not exist.
Prejudices in Rule of Law
When the differentiation is based on social status, it is generally acceptable
⦁ Police have greater power of arrest than private individuals

⦁ Judges have immunity while acting in their judicial capacity
When the differentiation is based on gender, religion, political belief, economic status, etc, then it is said to be
contrary to the law
IN RE M (LORD TEMPLEMAN)
The applicant M. who was a citizen of Zaire came to the united kingdom on 23 September 1990 to seek asylum.
This was based on allegation that he was a refugee within the meaning of the Geneva Convention relating to the
Status of Refugees (1959). After being interviewed, the Home Secretary refused his claim for asylum by a letter
dated 16 November 1990. M was re interviewed on 2 December 1990 and was giving an opportunity to comment
on the letter of 16 November 1990 for reconsideration. He was however disqualified for asylum under the terms of
the convention by a letter dated 17 December. He was informed that he would be returned to Zaire on 1 May, 1991
.the applicant applied for leave of review On 20 March 1991, the application was refused by Kennedy J. the
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removal was then scheduled for 28 March 1991. M applied promptly to renew his application for leave before the
Court of Appeal but his solicitors not being able to file the appropriate documents resulted in his application not
being listed. New counsels were arraigned for the applicant who applied to the high court for a leave of judicial
review on new grounds on 2 May. The judge therefore indicated that the applicant’s removal be postponed pending
the consideration of the application, however the Secretary of State did not abide by this and continued with the
deportation of the applicant. Aggrieved by this, the applicant brought an action against the Secretary of state and
the Home Office for contempt of court and failing to comply with the order made on 2 May.
Held-Per Lord Templeman
The law cannot be enforced by judges against the crown as monarch but rather as executive, hence if a litigant
complains of a breach of the law he can bring an action against the crown as executive by suing the particular
minister in his official position. Therefore injunctions can be granted against the Secretary for Home Affairs in his
official capacity.
ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. v. WEDNESBURY CORP
The plaintiff-appellants owned a cinematograph in Wednesbury. They brought an action against the
defendants-respondents to obtain from the court a declaration that a certain condition imposed on them by the
defendants on the grant of permission for Sunday performances to be held in that cinema was ultra vires. The
defendants was mandated to give out certain conditions as to the performance of cinematographs under the Sunday
Entertainment Act, 1932. It was under this law that they imposed a condition that children under 15 years, whether
under an adult party care or not should be excluded from entering the cinema. The plaintiffs saw this directive as
harsh and ultra vires the functions of the defendant.
Held- The court held, per Lord Greene that the Act deals with an executive action and not a judicial action and that
the conditions which may be imposed are in terms put within the discretion of the local authority and the statute
provides no appeal from the decisions of the local authority. The court can only infer with an act of executive
authority if it shows that the executive had not contravened the law. Here the conditions placed by the defendants
had not contravened the law anyway and as such was lawful. It is the local authority who are put in the position to
make or impose the conditions and if they act in the four corners of their jurisdiction, it is right in the eyes of the
law and the courts cannot interfere. Here, it leads us that, there are predetermined rules in place and that any entity
entrusted in power whiles acting within its scope must give relevance to the law and must not abuse power.
Wednesbury principle- The court is entitled to investigate the action of the local authority with a view of seeing
whether it has taken into account matters which it ought not to take into account or conversely has refused to take
into account or neglected to take into account which it ought to take into account.
LAKER AIRWAYS LTD. V. DEPT OF TRADE
The plaintiff, an airline company owner wanted to start a new air service across the Atlantic from England to the
United States. In order to embark on the project (skytrain), he had to seek permission from the authorities in
England and the United States. He was given the nod in the UK but in the US, he was given just a permit to be
approved by the President. In anticipation of the president’s consent, he incurred cost in buying the aircraft and
training personnel. However his permit was annulled by the government of the UK. The Secretary of State issued
for the stoppage of the service by the issuing of a white paper with specific instructions. He brought an action
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alleging that the secretary had no right to annul his permit. The issue was whether the resignation of the permit was
done in accordance with the law.
Held- the Secretary of State did not follow according to the rules for the revocation of the permit according section
4 of the 1971 Act. Thus, he acted according to his own whim and caprice and without giving the plaintiff the
chance to express their views. He was misdirected and if a discretionary power is exercised under the influence of
misdirection, it is not properly exercised and the court can say so.
COUNCIL OF CIVIL SERVANTS UNION v MINISTER OF CIVIL SERVICE
The Government Communications Headquarters (GCHQ) is under the Foreign and Commonwealth Office and has
the main functions of preserving the security of UK military and official communications and providing signals
intelligence for the Government. These duties involve handling secret information that is vital to national security
and is very important to the government. In 1947 staff of GCHQ were always encouraged and allowed to belong to
national trade unions. As a result, most employees are members of the CCSU and 5 other unions. On 22 Dec 1983,
the Prime Minister/Minster for the Civil Service orally issued an instruction to the effect that GCHQ staff
conditions of service should be changed to prevent them from belonging to national trade unions except a
departmental staff association approved by their director. The applicants, a trade union and six individuals sought
judicial review of the minister’s instruction on the ground that she had been under a duty to act fairly by consulting
those concerned before issuing it and this she didn’t do.
Held- that executive action was not immune from judicial review merely because it was carried out in pursuance of
a power derived from Common Law or prerogative rather than statutory. The applicants would, apart from the
considerations of national security have had a legitimate expectation that unions and employers would be consulted
before the Minister issued her instruction and as such, it will be unfair by reason of her failure to consult them.
However, it was for the executives and not the courts to decide whether in any particular case, the requirements of
national security outweighed those of fairness. From the facts and evidence adduced in the case, the court
concluded that she has shown that her decision had in fact been based on considerations of national security that
outweighed the applicant’s legitimate expectation of prior consultation.
RIDGE v BALDWIN
The appellant was arrested on October 25, 1957 and charged with conspiracy to obstruct the course of justice. He
was suspended from duty by the borough watch committee. He was then acquitted by the jury on the criminal
charges levelled against him but during the sentence the judge made a remark that he was not fit to be a leader. On
March 6, 1958, he was charged with corruption and was acquitted. Remarks were made by the judge to the
borough’s police force on its need of a better leader. On March 7, 1958, the watch committee met and decided to
dismiss the appellant of his duties with the reason that he was ‘negligent of his duties’. The appellant was not called
to the meeting and was not given the opportunity to defend himself.
Held- the respondents’ did not have power to dismiss the appellant without giving him the chance to defend
himself. Under the Police Act of 1882, the watch committee was bound to inform the appellant of the grounds on
which they wanted to dismiss him and also be allowed to make his defence. The respondents claim that the
appellant had the chance to defend himself during the criminal trial however the trial was concerned with specific
charges of which the appellant was found to be not guilty. This was against the rules of natural justice.
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SECRETARY OF STATE FOR EDUCATION V. TAMESIDE METROPOLITAN BOROUGH COUNCIL
The Metropolitan Borough of Tameside had for its secondary education 16 secondary, modern, five grammar and
three purpose-built comprehensive schools under construction until the local authority on 19th March, 1975
submitted to the Secretary of State for Education and Science a proposal to introduce a scheme that brings under it
all the schools into a comprehensive system which allows everyone into school without selection by aptitude or
ability. The scheme according to the proposal would provide for three new purpose-built complex schools, 16
secondary modern schools into the comprehensive principle and abolish the five grammar schools by turning three
of them into comprehensive schools and the two into sixth form colleges. This proposal was put before the
Secretary of State and was approved by him giving the local authority entitlement to implement it but not a duty to.
The local authority went ahead with the approval to implement the new scheme by the beginning of the new
academic year in September but before that time was up, there was a local government election which resulted in
the personnel and control of the authority. The new council that formed the authority when in opposition preached
against the comprehensive system and when they finally won and took control, they felt they had the mandate from
the electorate to allow the grammar system of education to continue. The new council then decided not to
implement the comprehensive scheme fully, but to modify it by completing the construction of the comprehensives
that were not completed and maintaining the grammar and secondary modern school contending that to implement
the new scheme in September at the beginning of the new academic year would be of a rather hurried nature and
premature. The new council then wrote in a letter of 7th June 1976 to the Secretary of State about their plans giving
reasons that there was the need to review the scheme in the new Educational Bill which was before Parliament. The
Secretary of State and his department did not like this idea basically because of the likely difficulties they felt
would arise. Subsequently, the new council met with the department of the Secretary of State but the result of the
meeting was very conclusive. The Secretary of State held on to his opinion that there was little time to reverse the
plans of the previous council of the local authority and concluded this act unreasonable. On 11th of June 1976, he
gave a direction to the new council to implement the plans of the previous proposal of their predecessors. The new
council did not act to his direction and he applied on 18th June 1976 for a writ of mandamus. The Divisional Court
granted his order and the local authority appealed on the 26th July 1976 and the appeal was discharged by the Court
of Appeal. The Secretary of State, with the leave of the appeal of the appeal committee of the House of Lords,
appealed against the decision of the Court of Appeal.
Held- The Secretary of State in giving his direction of 11th June to the new council to implement the plans of the
previous proposal of their predecessors trespassed beyond the statutory limits of his powers. The action of the new
authority which the Secretary of State considers “unreasonable” is not an action satisfactory for him to conclude
“unreasonable”. The reasons were that a direction under s 68 must be justified on the ground of unreasonable action
as no reasonable authority would engage in. The new authority was not being unreasonable in planning to work out
their plans within the time frame which the Secretary of States suggests was little for any reversals to be made. The
new authority cannot be said to have been unreasonable for the fact that they ignored the persistent opposition of
the teachers’ union. The teachers are civil servants and have the responsibility for their pupils. Discretionary
powers are entrusted to the executive by statute; the courts can examine the exercise of those powers, so as to see
that they are used properly, and not improperly or mistakenly.
CAPTAN V. AG
Omar Ibrahim Captan a Lebanese citizen residing in Accra applied for naturalization in July 1968, the application
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was received by the interior minister on 23 July 1968. In September 1969, the principal secretary to the minister
received a letter from the NLC that the application had been approved. The ministry of interior sent a letter to the
plaintiff exhibit B. asking him to complete the attached forms (oath of allegiance) and complete the payment of
forty new cedis being naturalization fee. Captan was however to produce a certificate of naturalization issued under
a presidential decree from the government of Lebanon permitting him to acquire Ghanaian citizenship. And that it
was only when a certificate of naturalization has been issued that the plaintiff can become a citizen of Ghana. The
letter was dated 1 September 1969. On the same day, the plaintiff swore an oath and was issued with a receipt. The
fee showed in the receipt was for the naturalization certificate. On the same day, the plaintiff received a letter from
the Lebanese embassy signed by the ambassador and stamped with the seal of Lebanon. He letter indicated that the
plaintiff was authorized to renounce his Lebanese passport and acquire a Ghanaian citizenship. The principle
secretary refused to issue the certificate of naturalization which remained on the file of the plaintiff at the interior
ministry on the grounds that there was no presidential decree. On 18 September, 1969 , the plaintiff received a
letter signed by the interior minister that his permit had been withdrawn and that he should leave Ghana within 24
hours which expired by 6 pm.
Issues
1. Whether the minister in the exercise of his discretionary power to expel an alien has to give reasons for such
expulsion
2. Whether or not article 24(1) vests in an alien the right to immunity from expulsions from Ghana
Held-
1. A minister in expelling an alien from Ghana under sections 7 and 8, of the Aliens Act 1963, (Act 160) does not
exercise such a discretionary power as falls within the purview of article 173 and he is not obliged to assign
reasons.
2. Article 24 does not vest in an alien the right of immunity from expulsion from Ghana. That right is enjoyed by a
citizen of Ghana.
Judicial review
Judicial Review is used to describe two separate ideas.
⦁ Judicial determination of constitutional validity (this is what is concerned with constitutional law). On some
issues, the law of the constitution may apply and those of other laws in the constitutional system may also
apply. Where there is a conflict between both laws on a particular subject, a judicial/constitutional review is
used to resolve the conflict.
⦁ In administrative law the concern is whether the administration acts in tune with the law. Judicial review in
administrative law is where the judiciary is invited to determine if the administration is conforming to the law.
Here the concern is with actions which exceed the boundaries of the law or which abuse them. In such enquiry,
the validity of the law isn’t examined; it is assumed the law is correct. In other words, it’s the action of the
executive measured against the legislation.
Article 11 of the 1992 constitution arranges the laws of Ghana hierarchically and the topmost is the Constitution,
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hence it is the supreme law of the country and all other laws derive their power from it.
Judicial review can be direct or indirect. A direct review involves the determination of the constitutionality of an
act or legislation. (Article 2 of the 1992 constitution) An indirect review takes the form of the interpretation of the
provisions of the constitution. (Article 130 of the 1992 constitution)
Constitutional review
A constitutional review is a power and a process either given expressly to the judiciary in the constitution or
asserted by the judiciary based on the nature of the constitution to determine questions of constitutional validity of
action based on laws of policies and any other question where the consistency or inconsistency, conformity or
inconformity of a law or a policy with the supreme law is at issue as seen in MARBURY V MADISON. It
measures a given act against the value of the constitution.
Power of Constitutional Review
1. Some legal systems vest the power of constitutional review in all the courts in the legal system e.g. US
2. Some give the power only to the highest court of the land e.g. Ghana with the exception of issues relating to
human rights
3. Some systems create a special constitutional court outside the regular court system and it’s only this court that
can deal with the issues of constitutional review e.g. Germany
4. Some systems create a special body which sits outside the court system to determine issues of constitutional
validity. Typically the composition makes it a political body e.g. France and all its colonies
There may be a fifth situation where each actor in the constitutional system or branch of government makes the
decision of constitutional validity for itself e.g. United Kingdom
Effect of Decisions of Courts in Judicial Review
Where a piece of legislation is found to be inconsistent with the constitution, what happens?
The legislation is unconstitutional ab initio; that is from the very day the law was made. However, some countries
draw a distinction between criminal legislation: retrospective and civil legislation: prospective.
In other countries, invalidated legislation is treated as voidable i.e. the legislation is treated as being valid until the
day it’s pronounced invalid by a court in an appropriate case.
Functions of Constitutional Review
1. It is an important instrument for social ordering. It addresses controversial issues, especially in constitutional
systems where there are elections. If everything is subjected to the vote, some social issues may not be
addressed. The issues are therefore moved to the arena of the judges who do not depend on votes to pronounce
on social, political, economic matters which are too hot for the politicians to handle.
2. Constitutions provide for change which may take the form of total replacement or replacement of some parts
(amendment). Constitutional review allows a constitutional system to grow without formal amendment.
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3. The process gives teeth to the arrangements, the values, checks and balances, provided in the constitution i.e.
policing of the constitution.
Problems of Judicial Reviews
1. If the constitutional system gives the role of policing to the judges, who will police the judges? What is it in the
judicial character that makes us feel everyone else needs policing but the judiciary? According to Bickel (Yale
Professor), the judiciary should police everyone else because the judges are the least dangerous because they
have no real power because their respect is based on public opinion. He says the legislature has ‘the power of
the purse’ and can shut down government at any time. The executive is equally powerful because it controls all
the coercive forces of the State. The actual utilisation of the purse is by the executive so if it decides not to
spend it, a country will not have its benefits. The policing function of the State is therefore safer in the hands of
the judges.
2. Constitutional review and democracy. If elections are a major pillar of a democracy, why give so much power
to the branch of government which is not elected? Judges have enormous power which they use. Competitive
politics allows for moderation of power because they have to renew their mandate from time to time. It’s
therefore been argued that giving judges power of judicial review is unconstitutional.
3. If the constitutional system is to maintain balance, then isn’t it unbalanced when judges are given the power of
judicial review where they get a chance to impose their views on everyone else? Generally, lawmakers do not
have the power to overturn decisions of the courts until the courts change their own minds.
4. There is constant competition between the courts and the legislature. The legislature often tries to take away the
power of the judiciary by denying them jurisdiction (ouster clauses)
Comparative Constitutional Law
UK
Based on the Bill of Rights of 1688. In the Bill the legislature was Supreme. Judges have no power to question
legislation power. What the Judge can do is to look at the parliamentary register. Should they appear, that will be
the end. The principle is that judges do not have judicial review power.
United States of America
Constitutional review is demonstrated most actively in the US constitution. The power is based entirely on the
decision of Marshall C.J. in MARBURY V MADISON. If any court overturns that decision, the judges will cease to
have the power of constitutional review. Marshall C.J said judicial review is predicated on 3 elements;
⦁ Supremacy of the constitution
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⦁ Reduction of a large part of the constitution into writing which ensures the design of the constitution is known
⦁ Judicial oath where judges swear to administer the law to every person without fear or favour
Epochs of constitutional review
According to McCloskey, it is judicial power which has enabled the US to grow from 13 rebellious states to 50+1
today. From 13 economically malfunctioning states to the richest, most technologically advanced and militarily
advanced country in the world. The constitution has come to acquire a special legal sanctity in the society. He
developed three epochs of the US constitutional review.
Elaboration and approval of the constitution till the end of the civil war in the 1880’s
The key issues the courts had to deal with were issues of nation building. During that period many of the cases dealt
with the power of the state v the new government (federal administration). Whether the US should have a currency
system was dealt with by the courts. The federal government had responsibility for inter-state commerce according
to the constitution. When one of the States refused to pay tax on the Dollar and an action was brought before the
SC, it was held that the responsibility for inter-state commerce gave the federal government power to have a
currency.
1880’s to the end of the depression i.e. 1930’s
The US SC dealt mainly with issues of capitalism. The contest was between free trade [liberty] and capitalism and
the emerging welfare state. Legislation establishing minimum wage was struck down as unconstitutional. So were
those protecting ‘vulnerable people’. Franklin Roosevelt proposed new legislations which were meant to move the
US from the depression to the next level. Each of the legislations was declared unconstitutional and always by 5 -
4. He planned to include a new JSC for each one who was over 70 years. His intention to pack the court with his
cronies in order to enable him to advance the country was rejected. However, one of the justices moved to the
dissenting side and allowed FDR to pass landmark laws on the economy.
1930’s to date
The SC moved away from economic powers during this period and on to questions of rights. Certiorari – writ of
error – allowed the judges to use their discretion to determine which cases to hear because they realised they didn’t
have the expertise to pronounce on economic matters. Four judges will listen to the facts before deciding whether
the SC will hear the case. The US SC was therefore in a position to determine which cases it wanted to hear and
which ones it didn’t. The following were some of the landmark cases in this period;
Brown v Board of Education [doctrine of ‘separate but equal’ was held as unconstitutional]
NY Times v. O’Sullivan [it established the concept of a ‘public figure’. Where lies are told about the public figure,
the public figure should also publish his view for the public to determine which one to believe not to bring an
action in defamation]
Roe v Wade [decided on the question of when life begins in connection with State legislation on abortions]
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Baker v Carr [it came up with the ‘political doctrine rule’ which was about voting rights which the SC held that it
was a matter for the legislature to deal with]
Ashwander [Branders J. led the SC to establish fair trial rules]
The US SC will not deal with a matter which is ‘not ready’ or ‘premature’. They don’t want to offer the arena for
academic discourse. There must be an issue in which two parties have an interest. Sometimes the party starts an
action and loses interest in the matter before the court; such a case will be dismissed.
In the common law system, two people are required to bring a matter before the court. This is evidenced in Sallah
v. A-G where the A-G said he as A-G had done nothing to Mr. Sallah and he had no interest in the matter before the
court so why did he have to come before the court. The answer of the SC was that in our legal system there is no
one-sided fight; courtroom litigation is a battle between two parties and if action is against the state, the A-G will
be called (A-G is a nominal defendant). The USSC doesn’t accept nominal defendants. There must be two
aggrieved parties.
Principles Governing Judicial Reviews
⦁ Principle of Activism- judges when exercising power should assume the posture of activist, challenging the
status quoSelf-restraint
⦁ Self-restraint- judges should be very slow to pronounce the decisions of other players as unconstitutional( this is
the opposite of activism)
⦁ Principle of Original Intent- Some judges see the occasion for determining constitutional validity as an
opportunity to tease out what the framers of the constitution intended when they were drawing up the
constitution. This is however problematic. Why should one generation impose its thoughts and aspirations on
another generation which has different circumstances from the generations after it?
⦁ Textual Interpretation- Judges may consign themselves to the language of the constitution when interpreting it.
⦁ Structure of Constitution- The structure of the constitution suggests that a basic philosophy is that public power
should be subject to limitation.
⦁ Judicial Precedent- A long-standing principle should not be lightly thrown overboard. If several generations of
judges have said that something is a principle, very rarely will that principle be overturned. Judges are more
likely to reconcile constitutional provisions
German System
It lies halfway between the American practice and the French practise. Germany has a dual court system – a regular
court and one which deals with administrative issues. Like the French, the Germans believe that it is wrong for
judges to make law and the power of constitutional review offers judges such power. They also don’t want judges to
mess around with the executive. Administrative courts are within the executive and all matters in relation to the
executive are dealt with in the administrative court.
A special federal constitutional court, outside the court system, has been set up to deal with only constitutional
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validity issues. The participants are however treated as judges but they neither belong to the regular or the
administrative court. The power of constitutional review is given to the federal constitutional court. Cases may be
brought in one of the following ways;
⦁ Constitutional complaint- Constitutional complaints are generally on human rights. It may take the form of a
letter to the court. A person does not really need the law. The court registry has enough staff to translate the
letter into a court process. A complaint may be asking that a state/federal law should be set aside as it is in
violation of certain rights.
⦁ Request from the ordinary courts- Every court in the German constitutional system can deal with constitutional
issues. If the court decides that the legislation being challenged is constitutional, the court may make the
determination. If the court is inclined to uphold a constitutional challenge or hold that a law is contrary to the
constitution, it is required to stay proceedings and refer it to the constitutional court since the constitutional
court is the only institution that can make declarations on invalidity of laws.
⦁ Petition by the federal government, a state government, a third of the lower house, local government authorities
or associations- If a state government feels a federal government has invaded its area of authority, it may also
send the issue to the constitutional court.
Approach to Judicial Review
1. It always includes some advice in its decisions. It doesn’t just say that a law is unconstitutional but it
determines what is being sought and suggests ways in which something can be constitutionally done
2. They make admonition decisions and defer determination on constitutional validity issues. They may say
that if something is not done within a particular time frame it might become unconstitutional.
3. Decisions of the federal constitutional court has the status of an act of parliament and are published in the
official bulletin in which legislations are published.
French System
They have a dual court system. They strongly believe in separation of powers like the Germans. They are therefore
hostile to judicial reviews, even to the German practice, because the participants in the German federal
constitutional court are judges as well. They have established a constitutional council which may be composed of 9
members; 3 appointed by the president, 3 by the upper house of the French legislature, 3 by the speaker of the
lower house. In addition, all living ex-presidents of the republic are members. Apart from the live members,
membership is for 9 years and there is no second term. The members may suspend their membership and contest
elections. If they win the elections they resign, if they lose, they resume their membership of the constitutional
council.
Functions of the Constitutional Council
1. It supervises elections and referendums
2. Under the 5th French republican constitution, the president is given power to declare states of emergency but he
must consult the council before he makes that declaration
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3. It is the body under the French constitution which deals with questions of constitutional validity.
Comparison
In France however constitutional questions are presented to the council before whatever measure on the table
becomes law. As such it’s been said that in France what they have is constitutional preview and not review. Under
Article 61 of the 5th French Constitution, the Constitutional Council is required to pronounce the constitutionality of
any bill.
The validity issue is dealt with in Germany and the US by judges; in France it’s dealt with by politicians.
Unlike the American, any individual person cannot invoke the constitution in France. This implies not that
individuals cannot invoke but rather formal.
MARBURY v MADISON
Marbury was nominated and appointed by John Adams to become the Justice of Peace for the District of Columbia.
After the appointment document was signed by the President, the Secretary of State, Madison failed in his duty to
deliver the letter as required by law. As such, Marbury was refused the position of the Justice of Peace because the
commissions signed by former President, John Adams were not delivered before the expiration of John Adams time
in office. Marbury brought a petition to the Supreme Court under the Judiciary Act of 1789 for an order of
mandamus to compel the Secretary of State to deliver his commission to take up the post of justice of the peace.
Issues
1. Whether Marbury has a right to his commission?

2. If he has a right, whether that right has been violated and do the laws of the country afford him a remedy?
3. Whether the Supreme Court has the power to issue a writ of mandamus?
Held- The court in a unanimous decision and as read by Chief Justice Marshall held and reasoned as follows:
1. The applicant had a right to the commission as it originated from an Act passed by Congress in 1801. Further,
the court concluded that when a commission has been signed by the President, the appointment is made, and
that the commission is complete when the seal of the United States has been affixed to it by the Secretary of
State. Mr. Marbury, then, since his commission was signed by the President and sealed by the Secretary of
State, was appointed, and as the law creating the office gave the officer a right to hold for five years
independent of the Executive, the appointment was not revocable, but vested in the officer legal rights which
are protected by the laws of his country. To withhold the commission, therefore, is an act deemed by the Court
not warranted by law, but violative of a vested legal right.
2. That, by signing the commission of Mr. Marbury, the President of the United States appointed him a justice of
peace for the County of Washington in the District of Columbia, and that the seal of the United States, affixed
thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of
the appointment, and that the appointment conferred on him a legal right to the office for the space of five
years. That, having this legal title to the office, he has a consequent right to the commission, a refusal to
deliver which is a plain violation of that right, for which the laws of his country afford him a remedy.
3. The court held that the writ of mandamus is the right remedy to be sought by the applicant but it would refuse it
because the law relied upon by the Applicant on the issue of the writ is in contravention of the Constitution and
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as such unconstitutional. The courts can therefore not grant the remedy.
Comments and notes on judicial review as asserted in the case
There are three ways a case can be heard in the Supreme Court: (1) filing directly in the Supreme Court; (2) filing
in a lower federal court, such as a district court, and appealing all the way up to the Supreme Court; (3) filing in a
state court, appealing all the way up through the state's highest courts, and then appealing to the Supreme Court on
an issue of federal law. The first is an exercise of the Court's original jurisdiction; the second and third are exercises
of the Supreme Court's appellate jurisdiction.
Because Marbury filed his petition for the writ of mandamus directly in the Supreme Court, the Court needed to be
able to exercise original jurisdiction over the case in order to have the power to hear it. Marbury's argument is that
in section 13 of the Judiciary Act of 1789, Congress granted the Supreme Court original jurisdiction over petitions
for writs of mandamus. However, Article III, Section 2, Clause 2 of the US Constitution granted the Supreme Court
only the right of appellate jurisdiction over mandamus cases.
Chief Justice Marshall first examined the Judiciary Act of 1789 and determined that the Act purported to give the
Supreme Court original jurisdiction over writs of mandamus. Marshall then looked to Article III of the
Constitution, which defines the Supreme Court's original and appellate jurisdictions. Marbury had argued that the
Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagreed
and held that Congress does not have the power to modify the Supreme Court's original jurisdiction. Consequently,
Marshall found that the Constitution and the Judiciary Act conflict.
This conflict raised the important question of what happens when an Act of Congress conflicts with the
Constitution. Marshall answered that Acts of Congress that conflict with the Constitution are not law and the Courts
are bound instead to follow the Constitution, affirming the principle of judicial review. In support of this position
Marshall looked to the nature of the written Constitution—there would be no point of having a written Constitution
if the courts could just ignore it. "To what purpose are powers limited, and to what purpose is that limitation
committed to writing, if these limits may, at any time, be passed by those intended to be restrained?" Marshall also
argued that the very nature of the judicial function requires courts to make this determination. Since it is a court's
duty to decide cases, courts have to be able to decide what law applies to each case. Therefore, if two laws conflict
with each other, a court must decide which law applies. Finally, Marshall pointed to the judge's oath requiring them
to uphold the Constitution, and to the Supremacy Clause of the Constitution, which lists the "Constitution" before
the "laws of the United States.
BROWN v BOARD OF EDUCATION
Black children were denied admission to public schools attended by white children under laws requiring or
permitting segregation according to the races. The white and black schools approached equality in terms of
buildings, curricula, qualifications, and teacher salaries. In a class action, the plaintiffs argued that racial
segregation of schools was unconstitutional as it violated the Equal Protection Clause of the Fourteenth
Amendment of the United States Constitution. The issue before the court was whether segregation of children in
public schools solely on the basis of race deprive the minority children of the equal protection of the laws
guaranteed by the 14th Amendment?
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Held- The court, in a unanimous decision held that, despite the equalization of the schools by "objective" factors,
intangible issues foster and maintain inequality. Racial segregation in public education has a detrimental effect on
minority children because it is interpreted as a sign of inferiority. The long-held doctrine that separate facilities
were permissible provided they were equal was rejected. Separate but equal is inherently unequal in the context of
public education.
BLACKBURN v ATTORNEY GENERAL
The British government were to enter into the treaty of Rome to join the Common Market. The plaintiff contended
that on entry into the Common Market, signature of the Treaty of Rome by Her Majesty's government would be in
breach of the law because the government would thereby be surrendering in part the sovereignty of the Crown in
Parliament for ever. Also, signature of the treaty would be irreversible and would limit the sovereignty of the
United Kingdom. The issue before the court was whether it can prevent the Crown from entering into the Treaty.
Held- The court held, per Lord Denning that in the first place, no treaty had been signed by the Crown as it was in
the negotiation stages and that the courts will take no notice of treaties until they are embodied in laws enacted by
Parliament, and then only to the extent that Parliament tells the court. Further, Denning held that the treaty-making
power of this country rests not in the courts, but in the Crown; that is, Her Majesty acting on the advice of her
Ministers and as such the courts cannot stop the Crown from entering into the treaty. The court can only look into
the validity of the treaty if it is passed by Parliament as an Act. Stamp L.J asserted the principles of Separation of
Powers by holding that, The Crown enters into treaties; Parliament enacts laws; and it is the duty of this court in
proper cases to interpret those laws when made; but it is no part of this court's function or duty to make declarations
in general terms regarding the powers of Parliament, more particularly where the circumstances in which the court
is asked to intervene are purely hypothetical.
Judicial review of administrative actions (the second sense)
Judicial review represents the means by which the courts control the exercise of governmental power. Government
departments, local authorities, administrative tribunals, state agencies exercising powers which are governmental in
nature, must exercise their powers in a lawful manner. Judicial review is designed to ensure that public bodies
which exercise law-making power or adjudicatory powers are kept within the confines of the power conferred.
Judicial review is concerned with the legality of the decisions made, not with the merits of the particular decision.
Accordingly, a court of law is to ensure that the exercise of any power which has been delegated to Ministers,
administrative and adjudicatory bodies, has been lawful, according to the power given to that body by the Act of
Parliament.
In UK Administrative Law, two very basic constitutional principles are paramount;
⦁ Parliamentary Supremacy- Parliamentary Supremacy implies that Parliament as the ultimate law-making
body can, in theory make or repeal any law as it wants. Judges cannot question the validity of primary
legislation, and can only challenge subordinate (delegated) legislation on limited grounds. Thus, in UK
where a primary statute creates an administrative body and gives it wide ranging powers, the courts cannot
question the validity of the body created or the purpose for which it was created. However, they can
challenge the actual operations of the agency on grounds such as excess of jurisdiction (ultra vires) or if
intra vires, acting unreasonably or against rules of Natural justice.
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⦁ Rule of Law- In its most basic meaning, rule of law, means that everyone must act within the confines of the
law. When applied to an administrative body, it means administrative agencies must act within the confines
of its enabling Act; i.e. must not act ultra vires. Where a public officer or an administrative body has
exceeded its scope of authority (ultra vires), then judicial review shall be given to that effect.
Among the basis or grounds by which the power of judicial review of administrative actions can be exercised are as
follows;
⦁ Where an administrative body or person given power does not go through the right procedure when
exercising such power
⦁ Where an administrative power was exercised by taking into account irrelevant issues. Administrative
bodies have the duty to include all relevant considerations and exclude irrelevant things
⦁ Where an administrative body has made an error of law or has misinterpreted the law.
⦁ Where there has been an abuse of discretionary power- Articles 23 and 296
⦁ Where the principles of natural justice was not observed during decision making.
There are two main limitations on the exercise of administrative authority;
⦁ Express limits provided by an enabling or parent Act, and
⦁ Implied limits on power, which are limits read in by the courts which could be on reasons of
unreasonableness, acting for ulterior purposes, acting in contravention of rules of natural justice, etc.
Administrative justice in Ghana.
Unlike UK, where it is said that the exercise of the power of judicial review over administrative bodies are
discretionary, in Ghana, under Article 23 of the 1992 Constitution, administrative bodies and administrative
officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons
aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court of law. Thus
in Ghana, administrative bodies are limited by express provisions of their enabling Acts and rules of fairness and
reasonableness.
Differences between appeal and judicial review
Appellate court has the power to review a case and to substitute its own decision for that of the lower court. Appeal
may be made on both the law and the facts of the case, so that a full re-hearing may take place. Judicial review by
contrast, is concerned solely with the manner in which the decision-maker has applied the relevant rules. It is thus
procedural in nature. It is not for the court to substitute its judgment for that of the decision-maker to which powers
have been delegated, but has kept within the rules laid down by statute and common law or the constitution.
The idea of political question and justiciability
There are matters which the court, mindful of the doctrine of separation of powers, consider to be purely of
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political nature and therefore reluctant to review. Matters such as the exercise of prerogative of mercy or issues of
national security, and matters of policy may be regarded as non-justiciable. Thus, in the case of
NOTTINGHAMSHIRE COUNTY COUNCIL V SECRETARY OF STATE FOR THE ENVIRONMENT, it was
held that the court should not intervene to quash guidance drafted by the Secretary of State on the authority of
Parliament, setting limits of public expenditure by local authorities, unless and until a statute provides otherwise, or
it is established that the Secretary of State has abused his power. These are matters of political judgment for him
and for Parliament.
What is Public Law Body?
Judicial review under this category deals with public law bodies and the question has always been of how to
identify a public body. In R V PANEL ON TAKE-OVER AND MERGERS, EXPARTE DATAFIN PLC, the body,
which was subject to review exercised no statutory or prerogative powers and was not even based on a private
contract or constitution. The court held that its functions were amenable to review of the panel’s enormous de
facto power to take decisions affecting the public and crucially, the fact that there was no other means by which
those affected by the decisions of the panel could have challenged them in the court. The decision was followed in
R V ADVERTISING STANDARDS AUTHORITY LTD EX PARTE THE INSURANCE SERVICE PLS. The ASA
Ltd had investigated and upheld a complaint that the Applicant’s insurance company’s advertising leaflets were
misleading and amounted to a breach of advertising standards. In granting the company’s application for judicial
review, the court indicated that the ASA exhibited similarities with the agency in Datafin and that though it had no
statutory or common law powers, its functions brought it under public law.
This case may be contrasted with R V FOOTBALL ASSOCIATION EX PARTE FOOTBALL LEAGUE wherein
the Football League sought to form a Premier League and introduce consequent changes to its regulation. The
Football League had a contractual agreement with the Football Association whereby it was permitted each year to
operate the league. The Football League contended that the Football Association was amenable to review because
it exercised monopolistic control over the game and controlled rules governing it. Dismissing the application, it
was held that the Football Association was not discharging functions of a governmental nature and there was no
evidence that its functions would be exercised by a governmental body if it did not exist.
To identify a public body, you have to look for:
⦁ Whether it has a statutory or common law duty,
⦁ What functions does it perform and
⦁ Inadequacy of legal controls over its actions.
Grounds for judicial review
⦁ Breach of statutory requirements and

⦁ Decision reached in an unreasonable manner or in disregard of the rules of natural justice.
Another ground which has recently emerged is the Concept of Proportionality, which confines the limits of the
exercise of power to means which are proportional to the objective to be pursued. This doctrine has taken roots in
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the US and Canada. Even though in the matter of R V HOME SECRETARY EX PARTE BRIND, the House of
Lords was not prepared to accept that the concept represented a separate and distinct head of judicial review.
However, UK judges appear to agree that while proportionality is not part of the English law, it may be used to
determine whether a decision has been irrational or not. For example in R V BARNSLEY METROPOLITAN
BOROUGH COUNCIL EX PARTE HOOK, a market stall holder had his license revoked for urinating in public.
Lord Denning MR quashed the decision, partly on the basis that the penalty was disproportionate to the offence.
Proving unreasonableness
⦁ Relevant and Irrelevant Considerations- If the agency acted on the basis of irrelevant considerations, or it
can be shown that relevant considerations were ignored, then, the decision will be unreasonable. The basic
principle was stated by Lord Esher MR in R V ST. PANCRAS VESTRY- “the decision making body must
fairly consider the case before it and not take into account any reason for their decision which is not legal.
The agency takes into account matters which the court consider not to be proper for the exercise of their
discretion, then in the eyes of the law they have not exercised their discretion” Agencies should always bear
in mind the purpose, usually referred to as the intendment of the enabling Act from which it derives its
powers.
⦁ Ulterior Motives- In R V HILLINGTON LBC, EX PARTE ROYCO HOMES LTD, the Respondent authority
granted outline permission for houses subject to conditions such as that the house to be built should be
occupied first by persons on the authority’s housing waiting list etc. It was held that the conditions were
imposed to suit an ulterior purpose, a purpose ulterior to the duty of the council as a planning authority, as
its authority was to ensure that if a private developer develops its land, he should have to use it in such a
way as to relieve the council of a significant part of its burden as a housing authority. The conditions were
ultra vires and brought the whole planning permission down.
BILSON V APALOO
The plaintiff filed a writ against the then Chief Justice, Justice Apaloo for a declaration to quash the
judgment of the Court of Appeal sitting as the Supreme Court in the case of Tuffour v AG , on the grounds
inter alia, that the five learned judges who constituted the court did not constitutionally hold valid
nominations to sit in the said suit since the Chief Justice, the defendant, who had empanelled the court acted
in contravention of articles 114(5), 121(2) and section3(1) of the transitional provisions of the 1979
constitution and that it was judicially improper for the five judges constituting the panel of the court appeal
to accept the invalid nomination to sit on the said suit. At the hearing counsel for the plaintiff raised a
preliminary objection to the composition of the Supreme Court on the grounds that two members of the
panel hearing the case should not sit as members of the Supreme Court since they had also sat at the Court
of Appeal in the Tuffour case. He further submitted that the natural justice rule against bias would be
infringed if the two judges sat as judges in their own case.
Held- In dismissing the preliminary objection, the court held that the rule of natural justice (nemo judex in
causa sua) also known as the rule against bias arose in two ways, firstly, where the adjudicator was
disqualified because he had direct financial or proprietary interest in the subject-matter of the suit: and there
was a real likelihood that the adjudicator would be biased in favour of one of the parties. The court also
held that in the instant case, natural justice had to yield to necessity since otherwise it would be impossible
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to constitute a quorum of five justices of the Supreme Court of the hearing of the case under Article 115(2)
of the constitution. Further the court said that apart from considerations of necessity, it was incontrovertible
that the issues raised by the parties were predominantly issues of law, the adjudication of which would not
pose any special problems for the judges of the court performing, in the words of their judicial oath, the
functions of their office without fear or favour, affection or ill-will and upholding the constitution and the
laws of Ghana.
Judicial review and military regimes
The question has been often asked whether there is the possibility of judicial review during military regimes.
Military governments, usually after assuming the reins of government suspend or abrogate the constitution either in
part or whole. However, in most cases, the judiciary is allowed to continue the exercise of the judicial power which
it enjoyed under the suspended or abrogated constitution subject to provisions in the Establishment Proclamations
of the military regimes.
The judiciary has had various opportunities in answering the above question. For instance, in FATTAL AND
ANOTHER V MINISTER FOR INTERNAL AFFAIRS AND ANOTHER, the two plaintiffs, Lebanese by birth,
acquired Ghanaian citizenship by naturalization under the then Ghana Nationality Act of 1971, Act 361 in 1973
and 1976. In August 1978 the Supreme Military Council (SMC) passed the Ghana Nationality (Amendment)
Decree, SMCD 172, which revoked the acquired citizenship of the plaintiffs. Deportation orders were then issued
for the two by the Minister for Internal Affairs. In 1980 the plaintiffs invoked the original jurisdiction of the
Supreme Court under the 1969 constitution (article 2 (1), seeking inter alia that SMCD 172 purporting to revoke
their citizenship without a court order was ultra vires the powers of the SMC as being contrary to the National
Redemption Council (Establishment) proclamation and the 1979 constitution and its continued operation was
inconsistent with or in contravention of chapters 5, 9 and 12.
The court in a majority decision dismissed the action and held inter alia that since 1966, military governments in
Ghana had always reserved to themselves the legislative power to either enhance or curtail the judicial power
vested in the courts. In the absence of a written constitution that delimited the powers of the various organs of
state, a military government was at liberty to do what it likes by Decree which had the force of law. In the absence
of constraint, restrictions or limitations on the legislative power, the laws enacted by the legislature, should be
enforced by the courts. The NRC by its Proclamation 1972, made the judicial power guaranteed by the 1969
constitution, and indeed all other existing enactments subject to Decrees passed by the council. The Court further
stated that although SMCD 172 might appear unjust, unreasonable and even autocratic, yet it was not within the
province of the Supreme Court to strike it down merely because it was an unjust or unreasonable law. The days
when courts of law could embark on such an exercise were over. When SMCD 172 was enacted, there was no
constitution holding the legislative power in leash and no court could have declared SMCD172 invalid, null and
void. The Supreme Court could nullify an existing law only if at the time it was passed it was invalid or its
continued existence conflicted with the constitution. The court was supreme only within the bounds of the
constitution. The court has not within its environment nuances of supremacy, sovereignty or omnipotence. It could
not redress injustices perpetrated by military regimes in the past under Decrees regularly enacted by them.
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In his dissenting opinion, Taylor JSC said that the Supreme Court in one single sentence of the majority achieved a
self-imposed limitation on its jurisdiction contained in the clear unmistakable and peremptory provision of article 1
(2) when the majority held, “the court can nullify an existing law only if at the time it was passed, it was invalid”.
This is so unnecessary for the decision that it can only be hoped that this purported restriction of the jurisdiction of
the Supreme Court will, without doubt, be studiously ignored.
Remedies given under judicial review
Remedies offered under judicial review are specified under article 33 of the constitution, 1992. These remedies are;
certiorari, prohibition, mandamus which is all termed as prerogative writs and habeas corpus.
Certiorari
This is an order from a court requiring a decision or an action which has been taken by an administrative body or
official or a quasi-judicial body to be brought up to the court and be quashed.
Prohibition
This is an order seeking to prevent an administrative body or official or an inferior court or a quasi-judicial body
from exceeding its jurisdiction or from making a decision or taking an action which may warrant certiorari.
Mandamus
When a public body or official or an administrative body or a quasi-judicial body are supposed to exercise an
authority or duty, but that body or official has failed to execute the authority or duty, mandamus may be issued to
that body or official compelling it to perform its function
Declaration
A statement of the legal position of the parties and is not accordingly a remedy per se. It states the position of the
law. It also clarifies and confirms the law. “A declaration order cannot be enforced on its own but rights and
remedies attendant on the declaration may be enforced through a separate action”.
The issue of capacity – Locus Standi
An applicant in an action for judicial review of an administrative decision must have a sufficient interest in the
matter to which the application relates. The justification for the requirement is to limit challenges to
administrative decision-making to genuine cases of grievance and to avoid unnecessary interference in the
administrative process by those whose objectives are not authentic.
Reference may be made to Article 2(1) of the 1992 Constitution on the enforcement of the constitution and
requirement of standing.
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Natural justice
The Expression ‘Natural Justice’ can be used in two senses- Broader and narrower sense
In the wider or less technical sense, it means what is fair or what is reasonable or what is inherently equitable in the
sense that everybody can relate to. The second is used to mean certain procedures, safeguards or principles
developed by the common law imposed on persons particularly public persons in the performance of their
functions. In this sense these are more limited, specific principles developed by the courts. Generally in the
performance of their duties, such persons should follow the principles and any decision contrary is null and void.
The term is used for two references-
⦁ Nemo Judex in causa sua- no man shall be a judge in his own cause or the rule against partiality or the rule
that a decision maker must not be biased.
⦁ Audi Alteram Partem- hear the other side or hear both sides. This can be examined as the right to fair
hearing.
Audi alteram partem
From the broader definition, this concept is natural to human beings. This principle can be related to the Bible
where in the creation story God asked Adam what he had done after taking the fruit. It was after he had heard them
that he proceeded to deliver judgment. This is the first principle that a person should not be judged until he has
been given a fair hearing. This principle is not western and known to the traditional society and customary law
which have expression of these. The principle is that a person who makes a decision affecting the rights, legitimate
interest of another or others, it is imposed in the decision maker a requirement that a person affected must be heard.
It focuses on certain procedural principles and not the outcome.
BUDU v CAESAR
In October 1955, the plaintiff, Nana Kofi Budu by writ of summons issued in the Native Court “B” of Akwamu
against Francis M.K. Caesar commenced proceedings claiming declaration of title to an area of land 2 square miles
in extent, damages for trespass to the said land and injunction. He was joined by three (3) other defendants as
persons likely to be affected by any decision in respect of the land claimed by Nana Budu. This was after an
arbitration held to settle the matter between the parties. Held- that in an arbitration, both sides must be given a fair
hearing in a judicial manner. The rules which prevail at the trial of an action in court must be effected as far as
practicable. Each party must state his case fully, be available for cross examination and tender such documents. No
person shall be condemned either in respect of his person or his property without being given a fair hearing. On the
merits of the case, the court concluded that there was no hearing of both parties in the arbitration in a judicial
manner. There was no evidence adduced at the arbitration and the arbitrators did not give judgment based on the
merits of the case. As such there was a breach of natural justice.
REPUBLIC v. DISTRICT MAGISTRATE, KETA AND ANOTHER; EX PARTE HEDO
On 25 May 1970, the District Magistrate at Keta made an order that the applicant, a judgment debtor in a previous
suit, should pay the balance of the costs in the said suit to the judgment creditors within seven days of the date of
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the order and in default of payment, the judgment creditors were empowered to imprison the applicant for 90 days.
The magistrate made the order without inquiring into the means of the applicant. On 18 May 1971, the applicant
was arrested and imprisoned. His counsel applied to the High Court for an order of certiorari to quash the order
made by the magistrate. Held- where a person’s liberty is likely to be restricted or jeopardized any failure to
examine whether there was a willful refusal to pay, is clearly a breach of the rules of natural justice. In this case no
adequate opportunity of being heard as to his means was offered the applicant. This is contrary to natural justice.
AGYEMANG v. THE REPUBLIC (NO. 2)
In an altercation between the appellant and the complainant in a house where both of them lived, the appellant was
alleged to have used force on the complainant. The appellant was tried for ordinary assault before a district
magistrate who acquitted him on the ground that the force used was justified in order to prevent the commission of
a crime in accordance with section 31 of Act 29. In the exercise of his powers of revision of decisions of district
magistrates under Act 372, the supervising High Court judge in the area reversed, without hearing or seeing the
appellant, the order of acquittal and substituted a conviction and sentenced the appellant to twelve months’
imprisonment with hard labour. On appeal against conviction and sentence, the main consideration of the Court of
Appeal was whether a revising judge contemplating the reversal of an acquittal and the imposition of a fresh
sentence or an increase in one already given should not hear the convicted person before so acting. Held- the
revising judge had, in reversing the decision of the trial magistrate by substituting a conviction and imposing a
sentence without hearing the appellant, performed his duty in apparent violation of an elementary rule of natural
justice. Consequently the order of the revising judge could not be allowed to stand.
Scope of the principle
Although it was introduced by the adoption of the common law, the notion is inherent in our traditional society
QUIST v KWANTRENG
The deceased made in his will to transfer his land to some specific parties. A misunderstanding ensued as to who
should be given the land and as such, the plaintiff brought an action in that respect. Before the case could be heard,
a High court judge, Ollennu J who knew the parties volunteered to arbitrate over the matter and solve it amicably
between them but the parties refused. The case was heard by another judge for which judgment was for the
plaintiff. On appeal to the High Court, the case came before Ollennu J and the defendant raised an objection against
Ollennu presiding over the case on grounds that he had foreknowledge of the case. Held- The court overruled the
objection and held that by Sections 84 & 85 of the Courts Act, officers of the court can ask parties to a case to settle
it outside court and if such officer oversees such settlement, he must recuse himself in case it comes before him in
trial. In the case, because Ollennu did not sit on that case and this is an appeal, and as such he can sit on it.
KWAMI v QUAYNOR
In 1897, the elders of Osu Alata conferred a piece of land to one William Quaynor on which he held before his
death in 1953. After his death, his sons and successors erected buildings on the land. In March 1933, the Osu
Mantse conferred part of the land to the appellant through a conveyance. The appellant sent men to the land
granted him but was estopped by the respondent, Quaynor. The appellant sued in the land court for declaration of
title to the land. The action came on for hearing before Ollennu J. In giving judgment for the respondent (Quaynor),
the learned Judge examined and commented on the decision of Jackson J. in an Acquisition Enquiry which went to
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appeal, and on the decision of Van Lare J. (as he then was) in the case of Danquah v. Ofei; which also went to
appeal. The learned Judge had been Counsel in both of those cases for a party claiming title upon a grant by the
Alata Quarter Stool. In an appeal in the present case, the appellant argued that Ollennu J., before trying the case,
was already seised of the facts as to Alata Quarter Stool land, its extent and claims to further extension. This
amounted to a foreknowledge of the facts which must have influenced his judgment. The issue was whether
Ollennu J had foreknowledge in the case. Held- before the decision of a Judge can be impugned on the ground of
possibility of bias, there must be substantial grounds in support of such possibility and not mere speculations.
Although Ollennu J had appeared as counsel in a similar case, the facts are different and this does not make him
biased. The mere knowledge or experience of a branch of law does not make you have foreknowledge.
Generally it applies to public bodies. It used to be said that it applied to persons making judicial or quasi-judicial
decisions and executive or administration decisions. RIDGE V. BALDWIN;
DURAYAPPAH V. FERNANDO; COOPER V. WANDSWORTH BOARD OF WORKS
In Ghana it has been applied to commissions of enquiry- EX PARTE BANNERMAN; INKUMSAH V. JIAGGE
REPUBLIC v. ASSUA AND OTHERS; EX PARTE BLEWEY
In 1963 the plaintiffs successfully instituted an action against the defendants at the Western Nzima Traditional
Council for the recovery of the Half Assini Divisional stool as the bona fide property of the plaintiffs’ family. As a
result of an appeal against the decision of the council, a committee of inquiry, composed of a sole commissioner
was appointed in 1965 under section 34 of the Chieftaincy Act, 1961 (Act 81), to hear and determine the appeal.
The commissioner confirmed the findings of the council and submitted his report to the National Liberation
Council. The National Liberation Council by notice published in the Local Government Bulletin, No. 16 of 1967
reversed the decision of both the traditional council and the committee. The plaintiffs unsuccessfully applied to the
High Court, Sekondi, for an order of certiorari to quash the decision of the National Liberation Council. On appeal
from that ruling to the Court of Appeal, counsel for the appellants argued, inter alia, that the decision of the
National Liberation Council breached the rules of natural justice inasmuch as the parties were denied a further
hearing. Held- the National Liberation Council’s act in considering the report was part of the inquiry. It had before
it the whole of the proceedings of the sole commissioner and his report and probably the proceedings and decision
of the traditional council; presumably it was on these that the National Liberation Council arrived at the decision to
reject the findings of the commissioner. As it had not been suggested that the National Liberation Council took
extraneous matters into consideration in arriving at its decision which was the final process in the inquiry, there was
no need for a further hearing of the parties so that there was no breach of natural justice.
It also applies to chieftaincy tribunals, traditional councils, and national house of chiefs-R V. CHIEFTAINCY
COMMITTEE: EX PARTE OPPONG KWAME; REPUBLIC V. ASOKORE TRADITIONAL COUNCIL, EX
PARTE TIWAA
REPUBLIC v. FREMPONG II & ANOTHER; EX PARTE ABABIO II
The applicant sought an order of certiorari to quash the decision of the respondents destooling him as a sub-chief.
He alleged that sometime in August 1972 he was summoned by the first respondent to appear before the Nifa
Traditional Council but he could not answer the call because of ill-health. Despite the explanation for his
non-appearance before the council, he was declared destooled on certain allegations made against him by the first
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respondent. The council recorded reasons for destooling the applicant but at the hearing of the application an
attempt was made to rely on an affidavit sworn to by the chief sword-bearer to the effect that the applicant’s
non-appearance before the council was deliberate. Counsel for the applicant argued that the whole proceedings
before the council were unfair and contrary to the rules of natural justice inasmuch as the applicant was denied the
opportunity of being heard. Held- when a body like a traditional council was sitting to decide matters which might
affect the rights and status of one of its members or his standing in the community, such a body was under a duty to
act fairly and if there was a failure to observe the rules of natural justice, as in the instant case, the court would
intervene and quash the decision of the council.
It applies to disciplinary bodies-RIDGE V. BALDWIN;
REPUBLIC v. GHANA RAILWAY CORPORATION; EX PARTE APPIAH
The board of directors of the respondent-corporation, acting on the adverse findings made against the applicants by
a board of inquiry set up by the corporation to investigate a certain transaction relating to the purchase of buff
envelopes imposed penalties on the two applicants by reducing their ranks. Consequently, the two applicants
instituted the instant proceedings for an order of certiorari, to quash the penalties imposed upon them on the
grounds, inter alia, that by virtue of the conditions of service for the senior staff of the corporation, the board had
no authority or right to effect a reduction in their ranks without an proper inquiry on specific charges preferred
against them. In the view of the applicants, by refusing to do any of these, the board of directors not only breached
the conditions of service for the senior staff of the corporation but also violated the elementary rules of natural
justice. Held- the core idea implicit in the natural justice principle of audi alteram partem was simply that a party
ought to have reasonable notice of the case he has to meet and ought to be given the opportunity to make his
statement in explanation of any question and to answer any arguments put forward against it. The principle did not
require that there must be a formal trial of a specific charge akin to court proceedings, as argued by counsel for the
applicants. In commissions or boards of inquiry, the principle of audi alteram partem would be held as having been
complied with if a person suspected of any malpractice or neglect of duty was invited to answer questions put to
him by the inquirers or the investigations. In the instant case, the allegation that the applicants were condemned
unheard was therefore unjustified as the facts clearly showed that the applicants were notified to appear before a
board of inquiry and that they knew what matter was going to be investigated. Several questions were also put to
them and they were given the opportunity to answer each of them.
It applies to the CHRAJ
It applies to the universities-GLYNN V. KEELE UNIVERSITY
It applies to district assemblies
What is the content?
It does not mean that the decision maker must operate like a court of law as in use the rules of evidence in
proceedings etc. The content is that the decision maker has a basic duty of fairness to those affected in determining
the matter.
Requirements
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⦁ Right to representation- this right includes
⦁ The person affected should be informed of the place, date, time of hearing, it means if the person has no
adequate notice as to the date, time, place then there is a breach of natural justice
⦁ The person should be given adequate notice to prepare his or her case. This will depend on the nature and
complexity of the case and the question of fact for the courts. If you are not given adequate notice and a
decision is made then there is a failure to adhere to the rules of natural justice
⦁ The person must have access to documents he or she is relying on to make their case
⦁ Secondly, a person who is affected who is affected in cases as like termination of appointment,
misappropriation, person must have notice of what he is charged off and particulars of the charge so that the
person can respond. What constitute adequate notice of the charge is a matter of fact to be determined by the
courts.
⦁ Thirdly, there must be a right to legal representation. Thus if a person wants to be represented by a lawyer, he
should have the opportunity.
Nemo judex in causa sua
This means that a decision maker should not have financial interest or pecuniary or relational or proprietary interest
in the subject matter of the decision or with those affected by the decision and that where the decision maker has a
financial or relational interest with the subject matter of a party affected, the decision maker should recuse or
decline to take part and where he fails to do so, the decision is null and void.
Pecuniary interest or financial interest
The courts have held that the decision maker should not have a financial interest and it does not matter whether the
interest is minimal, once the person has interest he should invalidate the decision.
DIMES v GRAND JUNCTION
One of the judges involved, Lord Cottenham, who in fact occupied the post of the highest judge, that of Lord
Chancellor, was also a shareholder in a company which was one of the parties to the case. The company had bought
some land in order to construct a canal. Mr Dimes, who had his interests in the same land, had initially succeeded
in recovering the property by means of ejectment. To Dimes' detriment, however, the corporation had finally had
their title confirmed in a decree issued by the late Lord Chancellor - Lord Cottenham. Dimes appealed to the House
of Lords claiming that Lord Cottenham's decision should be voided because of the links existing between him and
the company. He claimed that the Lord Chancellor had decided this case in his own interest and this was contrary to
the principle of natural justice - no man can be a judge in his own cause. Held- The court held, per Lord Campbell
that the maxim that no man is to be a judge in his own cause should be held sacred. He emphasized that it did not
matter whether the existence of financial interest resulted in actual bias. The mere existence of this kind of interest
provided grounds for likelihood or appearance of bias which was sufficient to disqualify a judge. As such, the
earlier decision in the case was voided.
Similarly, where the decision maker has a relational interest, the decision will be void-
REPUBLIC v CONSTITUTIONAL COMMITTEE CHAIRMAN; EX PARTE BARIMAH
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A constitutional committee, chaired by the respondent, Dr Degraft Johnson was set up to look into destoolment
charges preferred against the Adansihene by two complainants. After the recommendations of the Committee, the
Adansihene brought an application for certiorari to quash them on grounds of bias. The applicant alleged that the
respondent had been intimately been involved in the dispute relating to his destoolment charges and that he had
made efforts to settle the matter and had issued threats against the applicant’s faction to persuade them to settle.
The applicant further contended that an examination of the decisions and conduct of the respondent as chairman of
the committee showed that he was interested in the dispute and was biased against the applicant. To support the
claim on bias, the applicant alleged that the respondent’s wife was related to one of the complainants and as such,
she influenced the respondent in coming to those recommendations. Held- to succeed in an application based on
bias, there must be proof of the existence of a real likelihood of bias or interest and that mere suspicion of bias
however reasonable that might appear is not sufficient. The test of bias is objective and it is of the view that a right
minded person would take if he accepted matters of fact put forward by the applicant and the basic rule of fair and
impartial administration of justice requires that ‘Justice should not only be don but manifestly and undoubtedly be
seen to be done. From the case, the court concluded that there was no proof of a real likelihood of bias by the
respondent nor was there evidence that his wife influenced him to come to those recommendations.
ATTORNEY GENERAL v SALLAH
Before the main trial (Sallah v AG) began, the defendant raised an objection that Apaloo and Sowah be disqualified
from sitting and taking part in the hearing of the case on the basis that they may have an interest in the case.
Against Justice Apaloo, it was contended that he was a close personal friend of the respondent (Sallah) and that the
relationship between them was so intimate that it will be difficult, if not impossible for him to decide the case
impartially. Against Justice Sowah, it was contended that he was a brother in law of one Jonas who was affected by
the construction put up by government on Section 9(1) of the Transitional Provisions. Also, Mrs Jones sought help
from Sowah to have her husband reinstated and that Sowah had mentioned this to the sector minister. Held- to
qualify a person from acting in a judicial or quasi-judicial capacity upon the ground of interest not of a pecuniary
nature, a real likelihood of bias must be shown. On the evidence, disqualification on bias cannot be sustained in the
case because it dealt strictly with the interpretation of the 1969 Constituion and not an ordinary litigation between
two private individuals in which a judge can side with either of the parties. The court further held that there was no
proof of a real likelihood of bias against the learned justices as in Ghana, there is a chance that judges may be
acquainted with people either as friends or associates and not such close to warrant a disqualification.
REPUBLIC v. HIGH COURT, DENU, EX PARTE AGBESI AWUSU II
There was a dispute as to who was the Acting President of the Anlo Traditional council between Regeant Togbe Sri
III and Togbe Agbesi Awusu II. As a result, Togbe Sri III brought a chieftaincy suit before the Judicial Committee
for a declaration that he was the Ag head. Subsequently, Togbe Awusu convened a meeting of the council on the
very same matter. After the meeting, there was published a report on the outcome of the meeting. Togbe Sri saw the
meeting as a contempt of the Judicial Committee and applied to the High Court, Denu for contempt against Agbesi
Awusu. The court awarded the relief ought by Sri. The applicant, Awusu brought an instant application to the SC
for an order of certiorari and prohibition against the high court on grounds of real likelihood of bias. The applicant
relied on evidence that the learned judge had attended a meeting convened by Togbe Sri on the same matter whilst
the matter was pending, thus constituting foreknowledge. Also, he had intimated to another person the limited
chances of the applicant succeeding in the case before him and as such he had already judged the case befor its
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conclusion. Held- on the evidence there was proof of a real likelihood of bias which is the test for bias. As such the
judgement should be voided.
Pre-determination of the issue
This is the idea is that a decision maker should not pre-determine the issue before the issue is examined. Where the
maker has already made up the mind on the decision, it is invalid. That is the decision maker should approach the
decision with an open mind and rely only on the evidence. Thus the decision maker should not enter into the arena
of conflict. ASARE V. DIABA V. REPUBLIC; EX PARTE AGBESI AWUSU (NO. 1).
Appeals
The decision maker should not be part of his own appeal. In this respect an appeal is differentiated from a review.
A court or judge has power to review his own decision.
Fore-knowledge
The decision maker should not have fore-knowledge of the facts of the case. Where the decision maker appears to
have such knowledge he shall recuse. EX PARTE BRAIMAH, QUIST V. KWANTRENG, KWAME V. QUAYNOR,
EX PARTE AGBESI AWUSU
How does the courts determine whether on the facts of a particular case there is bias on the decision maker?
The courts have held that the test is an objective one and not subjective. That is whether a reasonable person ceased
with all the facts will conclude that the decision maker is biased. There need not be actual bias. Whether there is a
real likelihood of bias. In both AG V SALLAH, and EX PARTE BRAIMAH it was held that there was no real
likelihood of bias. This is the test in Ghana. It has been suggested in England that the test is whether there is a real
danger of bias or a real likelihood of bias. EX PARTE MCCARTHY. SALLAH V. AG IN AG V. SALLAH, EX
PARTE BARIMAH, EX PARTE AGBESI AWUSU
ADZAKU v GALENKU
In an action for damages, the defendant in cross-examination, suggested to the plaintiff's witness that he, the
witness, had previously spoken to the trial magistrate about the case. This allegation was denied by the witness.
The defendant did not call any admissible evidence on the issue but applied to the trial magistrate to stop hearing
the case and refer it to another magistrate for hearing as to the truth or otherwise of the allegation. After reviewing
the evidence, the trial magistrate concluded that there was no foundation in the allegation and therefore dismissed
the application. The defendant was subsequently found liable. On appeal, the defendant contended that the whole
trial was a nullity and unsatisfactory because on the basis of the allegation, and from the facts the trial magistrate
had exhibited violent temper in the course of the trial, and had said many unpleasant things about him and as such,
the trial magistrate was biased. Held- to disqualify the trial magistrate and to invalidate his decision, the allegation
of bias must be supported by evidence. A mere or reasonable suspicion of bias was not enough; the law recognised
not only actual bias but that interest, other than interest of a direct pecuniary or proprietary nature, which gave rise
to a real likelihood of bias. Without more, the conduct of the trial magistrate could not support the charge of bias
and since there was no foundation in the allegation of bias, the trial magistrate was right in dismissing the
application
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Who has the responsibility of meeting this standard or test?
AG V. SALLAH, EX PARTE AGBESI holds that the onus is on the person alleging bias. In Sallah, the court called
the government in calling witnesses alleging bias. In TSIKATA’S CASE there was a mere allegation that the judge
was discussing the case but a mere allegation will not hold. In doing this the courts have held that the standard to be
reached are-
⦁ Proof on balance of probability (civil standard)

⦁ Proof beyond reasonable doubt (criminal). The Supreme Court established that the standard proof of
balance of probabilities as against that of Ex parte Braimah. EX PARTE BRAIMA, EX PARTE AGBESI
AWUSU,
Exceptions to the rule
⦁ Where there is a statutory duty- where a statute or constitutional duty is imposed on the decision maker or
office holder, then the rule will not apply. By the constitution or statute, it is the Chief Justice who is to
empanel the court – AGYEI TWUM V. AG AND AKWETEY.
AKUFFO ADDO v QUARSHIE IDUN
The defendants (Akuffo Addo, then CJ, the Judicial Secretary and the General Legal Council) issued certain
circulars to judicial officers to deny right of audience to any lawyer without a solicitor’s licence and that
they should not grant an adjournment in a case solely on the ground that the lawyer required time to take
out a solicitor’s license. The plaintiffs brought an action against the defendants for an injunction to restrain
the adherence of the circular. The plaintiffs contended that they, as lawyers are vested with the legal right of
audience in the courts, without taking a solicitor’s licence and that by the law, to practice as an advocate, it
is not necessary for a lawyer to get a licence. The injuction application was dismissed by the trial court and
the plaintiff appealed to the CA. At the CA, the plaintiff raised an objection to the CJ empanelling the
bench of the CA to hear the matter since he was a party to the suit. They deemed this to be a breach of
Natural Justice. Held- where a statute enjoins a person to perform an act, he has to do it even if such
performance contradicts with the strict rules of Natural Justice. It is the primary duty of the CJ to invite
judges to the CA and as long as he remained in office, he must perform it. Apart from him being ill, no one
is entitled by law to perform this function.
However where the chief justice is sitting on the case he could be disqualified-DIMES V. GRAND
JUNCTION
⦁ Necessity- In MARBURY V. MADISON, Marshal was the secretary of state then before the hearing. The
principle is that where insisting on the rule means that the case can’t be heard then the principle against bias
will not be insisted upon
⦁ Acquiescence- the idea is that the principle against bias may be waived by a party and that he party should
raise the objection in relation to bias at the first opportunity after he or she becomes aware of the facts.
Refer to Articles 14 [right to liberty], 19 [fair hearing], 69 [removal of president], 146 [removal of judges] and 296
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[exercise of discretionary power] of the 1992 Constitution
SECOND SEMESTER
The traditional constitutional process-chieftaincy law
Before the advent of colonialism we had our own governance system. If we were not taken over by colonial powers
each of us would have been operating within our individual constitutional powers. The truth is that each one of us
operates within two constitutional environments thus the traditional and Ghanaian constitutional environment. At
times religion may be added.
These multiple characters create difficulty sometimes. These can be traced to different rules we have to respect.
The traditional process is characterized by diversity and has various ethnic groups, each with the political system.
These can be grouped into two categories. Some are well developed administratively in governance arrangement.
Others are not well organized with one centralized governance system. These can be seen in the churches for
instance the Roman Catholic Church which has the head to be the pope. But the same cannot be said about other
churches like the Methodist, Anglican etc.
These are reflected in our traditional set up. For instance the Asantehene is the overlord of the Ashanti kingdom of
which everybody pays allegiance to. The same cannot be said of the other tribes like the Kokombas. For the
modern state of Ghana each small chief in a village calls himself a paramount chief. Whether the traditional
process is one of centralized or not, two things are noticed.
First leadership is recognized at different levels at all ethnic groups, the traditional constitutional process revolves
around the institution of chieftaincy. Note that chieftaincy is not a traditional constitutional process, but it revolves
around it and it is also a system. There are various leadership levels. The head chief, there are a number of
divisional chiefs, town chiefs, village chiefs and within that system we may have heads of lineages, clans or
families and leaders who are known as elders. Elder is not a position that is heritable. It is based on personal
achievement, integrity etc.
Two things can be noted. One is hierarchically structured, and secondly the leadership positions are gender neutral,
thus not only man. So the chiefly position may be occupied by males or females.
The hierarchical structure created some challenges with the colonialists when they first came, especially with the
centralized system, everything was stated in the name of the chief.
We run two parallel governmental systems in our modern state. One presided over by the chief and the other by the
president. Though different they act in active competition for the loyalty for the people. That of the chief seems
more loyal as to that of the president. The system presided over by the president has been subjected by all kinds of
blows and interruptions unlike the relative stability with the chiefs. Though there are chieftaincy disputes, this is
because of the importance of the position. For instance the people in Kumasi understand the governance system of
which the Asantehene is the overlord.
Chieftaincy is about politics (the chiefs are politicians) and economics (many of the chiefs sit on lots of wealth and
even if the chiefs do not control the wealth the management of this wealth is controlled by the chiefs). In politics
we are able to live at peace because of chiefs, since law and order is maintained by chiefs. For instance there are
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49000 communities of which 12000 are of the modern government and so it is the chief who maintains law and
order in the rest (2000).
Chiefs have skills, expertise, influence, experience, and many belong to professions. The chiefs are also seen as the
religious leaders of their people, thus the belief that the chief has some magical religious powers. Read chiefs as a
judge. Chieftaincy is the embodiment of our cultural heritage. Thus it is the institution that maintains its richness.
Before independence in the name of the chief was exercised the executive, legislative and judicial leader of his
people. That position is one of the aspects of the institution in conflict with our modern government.
In colonialism the chief was used indirectly to rule-Dr. Lucy Mair in Native Policies in Africa defined indirect rule
as “the progressive adaption of native institutions to modern conditions”. Kumado simplifies it as ruling through
indigenous agencies. This made the traditional leaders part of the functionaries of the modern state. Because the
colonial power found the traditional power useful, they made various researches and writings about the institution.
Role of chiefs in the modern state
Since independence, we can break this role into two , one what the law says, thus they are supposed to contribute to
the houses of chiefs, various district assemblies, adjudicate to chieftaincy matters, arbitration is conducted by then
which is backed and enforced by the law, they maintain they are responsible for peace, law and order in their
communities.
In general we can say the chiefs continue to provide welfare for their people for in fact even strangers or
non-nationals who happen to be in their mist. The chiefs act as spokes persons for their people.
They continue to act as assistants of central government and participants of central administration. They operate as
conveyor belt for development in our contemporary world. So many traditional areas have a minister for
development, eg. Is the Nk)so)hene in Ashanti.
Finally we try to use the institution as stabilizers in the modern state. As soon as the nation is confronted with home
challenges the individual or major chiefs are called to intervene. That is in itself recognition in the modern state
and shows that the institution is capable of promoting peace and order.
Some of these roles in the modern state have some challenges. For instance a chief was lynched because of the way
he dressed in public
The structure
⦁ Divisional councils- Section 17 of the chieftaincy Act recognizes that these councils may be established but
provides no answer as to who does the establishment. Article 270.
⦁ Traditional council- This is provided for in section 12. It says there shall be a traditional council in each
traditional area. Article 270 guarantees the institution together with its traditional council. Traditional Council
is used in the sense of the state council. In TOKU, ALIAS AKOA, the principal question was whether the
establishment of the Supreme Court ordinance abolished the role of the traditional council. State council is
defined as the highest body in a traditional area under the administration of a paramount chief. Section 76 of
the act gives the definition of a paramount chief. But the definition given is of little meaning. Thus if you are
installed as a paramount chief then it means you are a paramount chief. Section 12 provides that there will be a
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traditional council and the president in section 13 is the paramount chief. The CONDUA CASE tells of what a
traditional area is and says it is a territorial area under a Paramount chief or territorial area controlled by
paramount chief and Paramount chief is defined as the head chief and the head chief is defined as the chief who
at custom does not own allegiance to another chief.
⦁ Regional houses of chief- Section 6 of the act and article 274. The act says the Regional House of Chiefs are
successors to the provisional council under the 1925 constitution. These provisional councils were created as
instruments in which the government will incorporate the traditional government into the modern government.
The act treats this as if when the provisional council was established it covered the whole geographical areas as
some area were not covered like that of the Ashanti. Mostly the regional house of chiefs are created by statutes.
In Asante there is the Asante regional house of chiefs and the Asante man council. The Asanteman Council is a
customary institution and the Regional House of Chief is a statutory institution. In Asante custom, they always
have a gathering of all the Amanhene which does not happen in other areas. Section 13 of the act says the
paramount chief of the traditional are or in the case of the Kumasi traditional area shall be president of the
council (traditional council).
⦁ National house of chiefs- The national house of chiefs is the successor to the joint provisional council created
by the Alan Burns constitution of 1946, section 1. This is also clearly a statutory decision. Therefore the
participation of the national house of chiefs as well as membership could be by statute.
At the local level of our modern government two governments are present .the government presided over by the
chief and the other by the assembly member, district chief executive, and the Member of Parliament. The
arrangement give us four strong leaders, the chief, the District chief executive, the presiding member and the
Member of Parliament is the fourth. They compete to be responsible and instead of working together, work
independently which creates a mess.
Nature of the chieftaincy institution
It is conciliar. Thus it is of two councils with the highest being the chiefs and the council. In the CONDUA CASE
there was a decision whether the head of the fishing community was a chiefly position.
The decision position is said to be by consensus. This distinguishes it from adversarial, or where the parties see
themselves as adversaries. This is a major characteristic of chieftaincy in traditional Africa as a whole
Definition of a chief
Article 277 of the constitution and section 57(1) of the chieftaincy act defines a chief as 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 queen mother in accordance with the relevant customary law and usage.
⦁ Firstly it is gender-neutral. There are female chiefs who are not queen mothers. Because in the case where
there is vacancy, both males and females can compete.
⦁ Appropriate family- thus you must come from the appropriate family
⦁ Appropriate lineage- So if you are from the appropriate family but not from the lineage, you will not be
eligible
⦁ Validly nominated, elected and selected-In EX PARTE ADUGYAMFI, the various process are spelt out. The
word validly concerns the person who should be doing the election.
⦁ enstooled, enskinned or installed as a chief-These are the traditional symbols of the office of the chief. Thus
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if the traditional symbol is enstool, then the chief cannot be enskinned vice versa. And this is done by the
queenmother. Thus for some the symbol is a stool where as others it is a skin.
⦁ Accordance with the relevant customary law and usage- the word relevant means that the procedure may be
different from community to community. For instance if you are from the right family and lineage but if by
custom the lineage rotates, you will not be eligible if it is not your turn.
Looking at the chieftaincy act and the Constitution there are certain ideas:
The definition as is in accordance with article 270, section 2 of the Act lists the disqualifications of a chief. The
offences listed there appears to be offences against the governing state and not that against the customary state.
Subsection 5 of section 57 states that a person shall not be considered to be a chief for the performance of a
function under this Act or any other enactment, unless that person has been registered for the performance of that
function in the
National Register of Chiefs and that person's name has been published in the Chieftaincy Bulletin. The constitution
was aimed at cutting the government from the processes to be a chief.
In the definition we don’t have the word ‘elevated’. So what about those chiefs who have been elevated by another
chief? So if there is elevation by the Asantehene, there is still a distinction between them, it seems the law maker
recognizes the Asantehene to be more than a paramount chief, however if a paramount chief elevates a divisional
chief to be paramount, then they remain the same.
Categories of chiefs -section 58
⦁ The Asantehene and paramount chiefs- the law maker sees the Asantehene to be other than the paramount
chief
⦁ Divisional chiefs
⦁ Sub divisional chiefs
⦁ Adikorofo
⦁ Other chiefs recognized by the national house
EKU ALIAS CONDUA III v ACQUAAH
The Appellant and the Respondent were both members of the Aboadzie fishing community of the shama state in
Western Region. In 1958, a dispute arose between them as to the headship of this fishing community and as to the
right to collect tolls from the fishermen who constituted the community. The appellant’s claim at High court was
dismissed for lack of jurisdiction. The appellant then caused a writ of summons to issue from the Shama State
council against the respondent for a declaration that, he was the headman of the community and the proper person
to collect fishing tolls. The council dismissed the appellant’s claim and found for the respondent. The appellant
appealed to the Court of Appeal Commission who dismissed the appeal. The appellant filed an application in the
High Court, Sekondi, for an order quashing the decision of the Shama State Council and the Appeal commission on
grounds that the Shama State Council had no jurisdiction because the suit was not of constitutional nature but
rather the right to collect fishing tolls.
Held- the jurisdiction of state councils was limited to determination of disputes of a constitutional nature. Also, the
state council had a traditional jurisdiction to determine a dispute relating to the appointment or dismissal of a
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headman inasmuch as a headman occupied a traditional constitutional and political office.
Jurisdiction in chieftaincy matters
The jurisdiction provided for chieftaincy matters provides for what are chieftaincy matters as seem in section 76
Constitutional relation under customary law between chiefs- If a statutory position is at variance with the
customary position, then the position of the law is that the customary position prevails. FRIMPONG V.
REPUBLIC-the institution of chieftaincy is not a statutory matter it is a customary matter.
In terms of structures or institutions our law provides a court system for dealing with causes or matters concerning
chieftaincy. They are the Supreme Court, National house of chiefs, Regional house of chiefs, Traditional councils,
and Divisional council.
The jurisdiction is distributed according to the status of the stool. Thus if it concerns a non-paramount stool, then
the original jurisdiction is within a traditional council. Appeals go to the regional house of chief of the region the
stool is located, then to the national house of chief then finally to the Supreme Court.
If the stool concerns a paramount stool then the regional house of chief of the region, then to the national house of
chiefs to the Supreme Court.
Where the regional house of chiefs may not be appropriate, thus where it is inappropriate, or where the matter
concerns two paramouncies, then the national house of chief has the original jurisdiction and appeals lie to the
Supreme Court.
These structures are supposed to be provided with lawyers
Miscellaneous
Under some institutions a chief can be destooled. Under others destoolment does not prevail. The belief is that the
community suffers more than the chief
If u look at section 72 of the Act, it states that a provision of this Act does not prejudice a right of allegiance to
which a chief in one region is entitled to from a chief in another region or a right of a stool in one region to
property movable or
immovable in another region.
Article 276
The institution of chieftaincy is protected under our constitution and wisely kept out of the arena of partisan
politics so our chiefs can counsel , admonish and encourage our people and their elected leaders.-Otumfuo Osei
tutu , article “ Stop, look and listen, daily graphic , 22nd may 2013
BOAMPONG v ABOAGYE
The defendant was the Konongohene whiles the plaintiffs were the abusuapanin, obaapanin and the linguist. A
misunderstanding arose between them and the matter was reported to the Juabenghemaa. In the course of the
delibrations, the defendant in a fit of anger pulled off his sandals. Sensing this, the plaintiffs claimed that the
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defendant had abdicated his stool and consequently perfrmed such rights to that effect. The defendant then sent a
case to the Juaben Traditional Council where he was not given judgment. On appeal to the Ashanti House of
Chiefs, the judgment of the Juaben Traditional Councilwas upheld. On further appeal to the National House of
Chiefs, he was further denounced. He then brings an appeal to the SC as the appellant. The issue was whther the
defendant had validly abdicated his stool.
Held- although the defendant had voluntarily removed his sandals, it does not constitute a valid abdication. For
there to be a valid abdication, there must be five conditions present.
1. Voluntary renunciation of the stool by the occupant

2. Acceptance by the stool elders and kingmakers
3. Performance of the requisite rites and formalities
4. Publicity
Based on this, the court held that the alleged abdication of defendant was not accepted by the elders of Konongo as
their consenct and concurrence was absent. Secondly, the necessary customary rites were not performed as the
abusuapanin was incompetent to perform this. Moreso, the abdication was not done in public as the alleged
removal was done at the house of the Juabenhemaa. Public here means in a palace or ‘dwabrem’. Further the
defendant did not voluntarily renounced the stool as the removal of the sandal was in frustration which arose as a
result of a fit of anger.
Cases
ESSILFIE v ANAFO IV
In the Nsona family, there are two sections; the Moree Dominase and the Efutu section. The defendant was the
chied of Nkanfua. A complaint was lodged at the Oguaa Traditional Council for inter alia the destoolment of the
defendant by the plaintiff. Judgment was given for the defendant. An appeal to the Central Regional House of
Chiefs by the plaintiffs was allowed. The defendant, dissatisfied, appealed to the National House of Chiefs for
which he was given judgment. The present case is an appeal by the plaintiffs of the judgment of the National House
of Chiefs. The issue was whether the court can grant an order for the destoolment of the defendant.
Held- there cannot be a declaration for the destoolment of the defendant as a chief because there plaintiffs had not
adduced enough reasons to warrant the destoolment of the defendant. Moreover, even if there were enough
evidence, the court has no power to destool a chief as this task is only within the ambit of the kingmakers of the
community or town.
IN RE WENCHI STOOL AFFAIRS: NKETIA v SRAMANGYEDUA
After the death of the Paramount chief of Wenchi, Nana Abrefa Mobore Bediatuo VII, the Wench stool became
vacant. The Kingmakers approached the queenmother of Wenchi, the Nana Sramangyedua II for her to nominate a
person to be installed as the new chief, for which she asked for time. However, the kingmakers did not give the
considerable time demanded and went ahead to the Obaapanin of the Wenchi Stool, Obaapanin Abena Frema
Atuahene, for her to act in the stead of the queenmother to nominate someone as chief, for which Kwadwo Nyam
Nketia was nominated and installed. The queenmother, together with three chiefs, lodged a complaint with the
Judicial Committee of the Brong Ahafo Regional House Chiefs for a declaration that the purpoted nomination and
installation of Kwadwo was void on grounds that it can only be done by her, as queenmother. Their petition was
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dismissed and they appealed to the NHC where they were dismissed. This is an appeal to the SC
Held- that there had been no valid nomination and therefore the installation of the chief was void. In giving his
judgment, Brobbey JSC asserted that the person who was required, under customary law, to nominate a person as
chief was the queenmother and as such the purported nomination by the obaapanin was invalid. He stated that so
far as there is a queenmother, she is the only one to make the nomination and any other person who purport to make
will be voided. Un the case, all the parties alluded to Nana Sramengyedua as the queenmother and as such, it was
her duty to nominate. On the allegation of delay, the court held that the request of the queenmother was reasonable
as she sought for time to consider all canditates she deemed fit to the position.
REPUBLIC v ADANSI TRADITIONAL COUNCIL; EX PARTE NANA AKYIE
There was a misunderstanding as to the person to take over the vacant New Edubiase stool. The plaintiffs sent the
matter to the Adansi Traditional Council on grounds that the defendant was not a true royal of Edubiase and cannot
be the chief. The council commenced sitting on a 21 member panel with the Adansihene as chairman. Later, the
panel was reconstituted and it became seven to which the parties agreed. After the hearing, judgment was given to
the defendants. The plaintiffs, not satisfied with the judgment sent an action in the high court for an order of
certiorari to quash the proceedings of the Council on grounds of lack of jurisdiction. The order was not granted.
This is an appeal.
Held- it was incontrovertible that the proper quorum for adjudicating a cause or matter affecting chieftaincy under
the Chieftaincy Act was a membership of not less than half of the total number of members of the traditional
council present. In the instant case the full membership of the council was 21; consequently at least eleven
members of the present council would constitute a competent body to hear and determine a matter affecting
chieftaincy and since the membership of the reconstituted committee of the Adansi Traditional Council heard the
appellants’ case, there was lack of jurisdiction in the committee and the sittings, proceedings and judgment of that
committee were therefore null and void and of no effect whatsoever.
REPUBLIC v. PRESIDENT OF GBI TRADITIONAL COUNCIL; EX PARTE TOGBE KWASI BUAMI VII
The respondent is the Paramount Chief of Gbi Traditional Area and also the president of the Gbi Traditional
Council. He was required under Act 370 to swear in chiefs within the Gbi Traditional Area into the Council. The
applicants were not sworn in as prescribed by law on grounds that they were not registered by the National House
of Chiefs list. The applicants brought an action for an order of mandamus to compel the respondent to swear them
into the Council.
Held- before a chief can be sworn into a traditional council, he must be registered as a chief and such registration
gazetted. The applicants were not enrolled in the register and as such cannot be part of the new council.
TOBAH v KWEKUMAH
There was a misunderstanding as to who to occupy the stool of the Agona division and the plaintiff brought an
action to the High Court for a declaration that the defendant cannot install any chief. Meanwhile, the case was
pending in the judicial committee of the Ahanta Traditional Council. The plaintiffs were given judgment. The
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defendant appealed for which they were dismissed on grounds that the High Court had jurisdiction to hear the case.
NB: There was an issue as to whether the High Court has original jurisdiction as Section 14 of the Courts Act
clothed it with Jurisdiction in all chieftaincy matters and Section 52 however limited the High Court’s original
jurisdiction in chieftaincy matters to only grant of prerogative writs.
Held- There was no conflict between the provisions of sections 14(1)(a) and 52 of Act 372. The trial judge had
misled himself by ignoring the first part of section 14(1)(a) which made the original jurisdiction of the High Court
"subject to the provisions of the Constitution and any other enactment." Section 14(1)(a) qualified the original
jurisdiction of the High Court "in all matters." The "all matters" in section 14(1)(a) was subject to the provisions of
the Constitution and any other enactment such as section 52 of Act 372 and section 15 of Act 370. In other words,
section 14(1)(a) provided the foundation by the use of the words "subject to..." for the limitation placed on "all
matters" and permitted no conflict whatever. Consequently, only the judicial committee of the Ahanta Traditional
Council had the exclusive jurisdiction to deal with the matter. It was therefore wrong for the High Court to have
assumed jurisdiction to hear the matter.
ANNIN v ABABIO
The plaintiff was the past chief of Benchem but abdicated from the stool. The first defendant was sworn in as the
new Bechemhene. The plaintiff brought an action for a declaration that certain properties were his personal
properties and not stool properties. After evidence had concluded, the first defendant moved the court that it had no
jurisdiction to hear the matter because it was a chieftaincy matter.
Held- the court it had jurisdiction to hear the case and gave reason that although the case had arisen out of the
abdication of the plaintiff, there is no issue raised for the recovery or delivery of the properties in connection with
his abdication or the installation of the defendant as chief. Thus the matter at hand does not relate strictly to a
chieftaincy matter.
REPUBLIC v KOMENDA TRADITIONAL COUNCIL; EX PARTE PRAH
The respondent, Kwasi Essiah was removed from his post as the Ebusuapanin of the Nsona Stool family of
Dominase by the defendant, Nana Kwaku Prah, Dominasehene. As a result, Essiah brought an action before the
Judicial Committee of the Kemoneda Traditional Council for a declaration that his purpoted removal as family
head was null. The defendant applicant brought the instant action in the High Court for an order of prohibition to
stop the hearing before the KTC on grounds that the respondent was not a chief and that the KTC lacked
jurisdiction.
Held- from the Chieftaincy Act, the categories of chiefs are spelt out; Paramount Chiefs, Divisional Chiefs,
Sub-divisional chiefs, Adikrofo) and any other such chiefs recognized by the National House of Chiefs LI 798
precluded family head as chiefs in light of the last category and restricted them to be only chiefs if their positions
were analogous to stool fathers obaapanin and ohemaa. Moreso, the respondent was not recognized by the National
House of Chiefs as a chief. Due to this, the KTC lacked jurisdiction as its jurisdiction is only restricted to chiefs.
OSEI v SIRIBUOR
The appellant claimed he was part of the royal family of Juaben. As a result, he, together with some elders,
approached the respondent to be recognized as such. The respondent accepted him. However, at a later date, the
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appellant realized that the respondent no longer accorded him the royal status. As a result, he filed a case un the
Ashanti Regional House of Chiefs for a declaration that he was a royal of the Jubeng Stool. The issue was whether
the Regional House of Chiefs had jurisdiction over the matter.
Held- that the House of Chiefs have jurisdiction only on matters relating to chieftaincy. The appellant asserted that
the case at hand related to chieftaincy because being a royal, one stands a chance of being nominated as a chief.
However, the court debunked this assertion ad held that the appellant had his eyes only on being a royal and not
becoming a chief and thus, ruling that it had no jurisdiction.
REPUBLIC v NATIONAL HOUSE OF CHIEFS; EX PARTE KUSI APEA
The appellant was the chief of Wenchi until he was removed in 1958 for which the respondednt was installed as
new chief. However, in 1966, the appellant was reinstated as the chief by virtue of the Chieftaincy (Amendment)
Decree, 1966 (NLCD 12), for which he ruled for seven years until the Decree was repealed by the SMC through the
Wenchi Paramount Stool Affairs Decree, 1976 (SMCD 64). The respondent was reinstalled under SMCD 64 but the
appellant alleged that NLCD 12 was repealed by an AFRC Decree and not SMCD 64 and as such he was still the
chief. He thus brought this action in the High Court fpr a mandamus to compel the National House of Chiefs to
register his name as the chief of Wenchi.
Held- that the remedy of mandamus cannot be granted because the appellant had to institute proceedings at the
RHC to be restored and mandamus cannot lie from a court where there are other remedies existing.
REPUBLIC v. AKIM ABUAKWA TRADITIONAL COUNCIL; EX PARTE SAKYIRAA II
The kingmakers of the Akim Abuakwa Traditional Area who had approved the nomination of Dr. Alex Fredua
Agyemang as Okyenhene, met to elect and install him as the new omanhene. On three occasions, the applicant, the
queenmother of the traditional area was sent for by the Okyeman Council to attend the council meeting, but she
refused as she did not approve of the nomination, and as a result she was declared summarily destooled. She
therefore brought the present application for an order of certiorari to quash the decision of the Okyeman Council
which resulted in her destoolment. The respondents opposed to the application on grounds, inter alia, that since the
applicant was not a chief in accordance with Akim Abuakwa custom her destoolment could not be governed by the
provisions of the Chieftaincy Act, 197. The issue was whether a queenmother can described as a chief within the
meaning of the Chieftaincy Act.
Held- the queenmother of Akim Abuakwa was a chief within the meaning of a chief as defined by section 48 (1) of
the Chieftaincy Act, 1971 (Act 370), and that being the case, her destoolment being a cause or matter affecting
chieftaincy should have complied with the Chieftaincy (Proceedings and Functions) (Traditional Councils)
Regulations, 1972 (L.I. 798). But since there was no evidence that the purported destoolment complied with the
provisions of the regulations stated, the respondents’ order of destoolment was made without jurisdiction.
NYAMEKYE v. TAWIAH
In an appeal to the National House of Chiefs in a chieftaincy dispute arising from the rotational right of three
houses to nominate a candidate for the stool by turn, it was submitted inter alia to the house that whatever defects
there might be in the trial tribunal’s judgment, its holding in favour of rotation must be right and should be left
undisturbed. The house rejected this submission holding that, “A plaintiff succeeds on the strength of his own case
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and not on the weakness of the defendant’s case. The onus of proof always lies on him who alleges a certain fact,
and unless this proof is made, the plaintiff cannot succeed . . .” The house therefore reversed the judgment of the
Central Regional House of Chiefs, which was the tribunal of fact. This is an appeal.
Held- the policy reason underlying the statutory conferment of both original and appellate jurisdiction in
chieftaincy disputes on traditional tribunals, was that the personnel of those courts were, by reason of their
background and training knowledgeable in indigenous law and custom to competently determine those matters.
When they sought to resolve issues which demanded the application of customary law by resort to the subtleties of
English common law their expertise was doubtful and as this case showed, they foundered in the result. A party
could prove his case by admissions from the mouth of his opponent or his adversary’s witness and in holding
otherwise the house offended both principle and authority.
Constitutional evolution
General overview
There were four types of overseas dependencies known to the British Empire
- Those attained through settlement

- By conquest
- Through the extension of protection or protectorate
- Through trust arrangement with international agencies
Modern Ghana is made up of all four types of overseas dependencies which were known to the British. There were
certain colonies of the coastal areas 1844, a conquest of the middle belt of Ashanti 1901, protectorate of the
northern territories which were in 1901 and trust territory of Togoland(arrangement between France and Britain
after the treaty of Versailles).
Because of the peace meal in nature of the process through which these four were glued together, we can see that
we did not have one governance system of the modern state until the 1940s. When we trace the constitutional
history of the country and refer to the constitutive instrument, the scope of the instrument was limited because of
the small part of the modern Ghana. Thus the institutions of governance which were put into place were institutions
which did not have representatives.
The early contacts with the modern Ghana by external forces were commercial ventures with the coastal people.
There are some visible reminders of these, forts which served as trading posts, schnapps, and these contacts were
mainly to the coastal people, and some of the instrument of cooperation was between the Fanti leaders and the
merchants.
Between the years 1800-1826, the administration of British interest in the Gold Coast was in the hands of the
merchants and the introduction of British laws was confined to the merchants. In 1821, the British government
decided to take direct control and administer these settlements until 1830 largely because of coastal interaction
between the British and the Ashanti in which they fought two major wars. In 1821 where the head of the British
administration led the war effort against the Ashanti’s.
When the British decided to have direct administration in the Gold Coast in 1820, there were two major wars in
1821, thus the governor was killed. In 1824, the British fought back in the battle of Dodowa where the Ashanti’s
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were defeated.
By the 1830s, the British were about to sell, and the merchants could see some future; according to the history
between 1830 and the 1840s the British interests were administered by the merchants. The merchants set up a
committee headed by Captain Mclean. It appears they did a wonderful job but in the process incurred the
resentment of the native rulers (at this point they were mainly Fanti chiefs)
There were two main reasons for the resentment:
By this point in time, the slave trade had been abolished and so the revenue coming to the traditional leadership
from the sale of slaves had dried up. And also from the administration of justice, thus loss of court revenue.
As a result of the victory of the British over the Ashantis at the battle of Dodowa, the British refused to pay on the
lands and others where they built saying , they had become free from any obligation to pay ground rites. So the
traditional leaders sent a delegation to Britain to protest. –refusal to pay ground rites.
Following these kinds of resentments the traditional leadership would have organized military against the British
but they sent a petition rather. This too is a process which involves the visible use of lawyers like Mensah Sarbah.
A committee was appointed to look into their complaints and the committee came to the Gold Coast. They
recommended that the complaints were well founded and that the illegal administration of McLean should be
regularized. This was to be done through the signing of treaties. These brought two pieces of legislation both in
1843: the British settlement act and the foreign jurisdiction act.
The foreign jurisdiction act empowered any possession of a foreign country as if that possession was acquired by
conquest and the British settlement act enabled laws, ordinances and orders in council to be made.
The British government also assumed direct administration which saw to the end of the merchant administration.
This led to the appointment of a new governor (at this time the colony included Lagos as well)
One of the pieces of legislation the British Settlement Act; the new governor proceeded to what was called
finishing treaties…they enter into 11 and because they were too many, they entered into one composite agreement
on the 6 of March 1844, thus the bond of 1844. Most political commentators believed we lost our freedom on this
day.
The legal effects of the bond:
- They agreed that the jurisdiction of McLean illegally extended should be regularized
- The British undertook to respect the traditional authority and jurisdiction of the chief and the native rulers
in turn undertook guarantee in human rights especially property rights.
- The native rulers agreed to abolish barbarous and obnoxious customs especially pannyaring which was at its
peak (where if an individual is being sought and is not found, a close relative was taken).
- The chiefs agreed that in order to modernize their justice system and make them attractive to the people
they would allow the British officials to help them in the trial of serious crimes such as murder and robbery.
There is nothing in the bond about political power. Our traditional rulers lost their political power to the British
colonial rulers because the British were bound by certain superior power.
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In 1850, they established the first legislative institution and they organized the judiciary and McLean was
appointed as the first judicial assessor, (Chief Justice).
Note what took place during these periods very well: 1821, 1830, 1843, 1844, and 1850.
From the 1800 to this time, as part of the British possession of the West Africa, Sierra Leone was the capital. In
1874, the colony of the Gold Coast was established according to British law. Thus the Gold Coast was formally
separated and constituted into a country by itself on 24 July 1874. From that date, the evolution story can be traced
Bennion
- Position of Ghana-bounded by French Territories
- From 1821 to 1874 British possessions on the Gold Coast. This is different from the period of 1850 to 1866
(where they were treated as a separate entity) under the control of the governor of Sierra Leone.
- Sir Charles McCarthy- to take charge of the properties...Battle of Nsamankow-killed – 1831
The relationship between the British Government and the colonized subjects was spelt out by the Parliamentary
Select Committee to not be one involving the allegiance to subjects but rather of a weaker power deferring to a
stronger one whose protection and counsel they seek and to whom they are bound certain defined obligations.
- Ghana to become a republic-1 July 1960.

- Shows how republican system really resembles the former constitutional system of colonialists
- The Assumption of British Jurisdiction by the Crown began in 1821.
- The governor of Sierra Leone, Sir Charles McCarthy –came to GC in 1822-was killed in battle with the
Asantes.
- The British were originally traders and missionaries- slave trade inclusive.
- The British possessions on the Gold Coast were in the care of the governor of Sierra Leone-then the
Committee of Merchants took over.
- Slave trade was abolished- the committee became useless.
- Committee abolished- funds were inadequate+ failed to prevent illicit slave trading- Act passed to dissolve
company.
-Reign of Captain George Maclean-1830- as President of the Committee of Merchants. they fought with the
Asantes to give up suzerainty over the states because the unrest they were causing was disturbing trading activities
and as President of the committee of Merchants he was obliged to do something about it.
- Actually it so happens that the first governor of the GC was Commander Hill
- Mclean made Judicial Assessor.
- Mclean exercised an irregular judicial jurisdiction and not a political one….but it was the Acts and not the Bond
that gave political jurisdiction…
-1831- Treaty of Fomena - Battle of Dodowa( 1826)- Asantes gave up suzerainty of coastal tribes.
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-British began to take colonial control- as Crown was pressed by Parliamentary Select Committee that the
dependence on the Governor of Sierra Leone should cease instead the GC was to have its own Governor.
-The Troublesome acts of 1843;
❖ British Settlement Act-to establish laws and institutions necessary for Crown governance + Foreign
Jurisdictions Act-to exercise political powers over territories that were not under the Crown’s jurisdiction.
The Bond of 1844
Apparently these are the features
⦁ The first object of law was to recognize the protection of individuals and of property. the chiefs recognized
the power of the British Jurisdiction-that’s what Kumado refers to as recognizing the illegality of British
Jurisdiction and validating it. It was actually McClean’s initiative and instead of shooing it they hoorayed
it….instead of punishing him for his illegal usurpation of jurisdiction they “saw that it was good” and called
black white.
⦁ Said human sacrifices, panayarring-taking hostage of the loved ones of a wanted person and torturing said
one in hopes that the wanted one will return and give himself in… and other barbaric acts should be
stopped. Natives submitted themselves for punishment as it concerned certain grievous crimes. It served as
an avenue for the British to mold the country according to the general principles of British law.
⦁ The customs of the country were to be “molded in accordance with the general principles of British law.
When the Gold Coast was separated from the management of the British through the Governor of Sierra Leone
This marked a considerable constitutional advance, with the Gold Coast being given its own Governor and both a
Legislative Council and an Executive Council… Thus institutions were set up which, over a period of a hundred
and ten years, were to evolve into the President, National Assembly and Cabinet of today... The Change was
effected by a Royal Charter dated 24th January, 1850, and made under the British Settlements Act
6 years later…
The constitution of 1850 was promulgated.

- Legislative Council: Governor+ 2 others as designated by Royal Instructions or warrants.
- They were charged with the duty of making law for peace, order and good governance.
- Governor was given the power to withhold assent to any ordinance which was repugnant to any Act of
Parliament, Royal Charter or Royal instructions,
- No law was to be passed or discussed unless proposed by the governor
- Some members of the Executive council at the time- Judicial Assessor, Collector of Customs( to be replaced
in 1853 by the colonial Secretary) as well as the Governor.
- The governor had the power to disregard the advice of the Executive Council.
- The Government was empowered to grant Crown land for public purposes, to appoint judges, remit
punishment and grant pardon.
The Sagrenti war opened more territories for the expansion of the British + the drawing up of the treaty of Fomena
in 1874
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The SCO 1876 became the basic framework for the development of a legal system in the GC
The weakening of the Asante territory opened more ways for the British to acquire more territories in the GC.
Poll tax ordinance (1852)
-yield from tax would be minimal unless corporation from chiefs is gained.
Chiefs and headmen summoned by Commander Hill- meeting called Legislative Assembly –it’s almost as though
they were just giving them the post to butter them up… I mean they already had law-making power.
✓ The Supreme Court was established by the ordinance of 1853 that allowed the protected territories to take
up their case with the British in all civil and criminal matters without the cooperation of any chief or local
gov’t …
✓ It was to be presided over by a CJ.
✓ The first attempt at municipal government was by Sir Benjamin Pine- 10th May 1858
✓ The Executive Council was to consist of the Judicial Assessor and the Collector of Customs who was later
replaced in 1853 by the Colonial Secretary
✓ In both the Leg and Exec councils no matter could be discussed unless it had received approval from the
Governor although the other members could require the points they wished to make to be added to the
minutes of the meeting
The Constitution of 1866-GC, Sierra Leone, Lagos, Gambia, united under the government of our West African
settlement
SC was abolished in 1866 replaced by Court of civil and criminal Justice-presided over by a chief magistrate
The Dutch were causing difficulty- they were not obeying the laws…so the British trigged a deal with them
transferring their territories to the east of Cape Coast to the Dutch and on the west of Cape Coast the Dutch to the
British- the transfers took place but led to much unrest- the Fantes drew up some ambitious scheme that the British
quashed because they did not like.
Treaty of Fomena – defeat by the Ashantis, Asantehene-renounced his claim to Elmina- and coastal territories...
July 24, 1874-signed Royal Charter that had the effect of separation the Gold Coast and Lagos from Sierra Leone.
The Gold Coast and Lagos together constituted a separate colony under the title of the Gold Coast Colony.
The British began to assume territories
Constitution of 1874
Royal instructions to Governor could in no way fetter his power to assent to litigation
The Supreme Court was re-established by the SCO of 1876
Ordinance- district commissioners- were ex officio commissioners of the SC- CJ and not more than four
puisne-judges
SC was to promote reconciliation of differences among persons over whom it had jurisdiction- Ordinance also
abolished post of judicial assessor- and the transferred his powers to the SC.
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⦁ The chiefs were also given the power to settle civil and criminal cases in which debt damage did not exceed
seven ounces of gold or 25 pounds sterling.
⦁ They were also given power to make bye laws.
⦁ They were also given certain ministerial powers as conservators of the peace.
⦁ The Governor could dismisses or suspend any chief who had abused his power or was otherwise unfit for
office.
⦁ Governor began to issue certificate to chiefs when satisfied that they had been properly enstooled-. Though
a mere proof of installation it gave the government a powerful instrument of control over the chiefs and in
time it came to be used as such.
A civil police force- established by Police Ordinance 1894- erstwhile police duties carried out by military
detachments
Town Council Ordinance- Another attempt was made to establish local government in
the townships
Duty of the council consisted regulation of activities as such acts as may be necessary for the conservancy of town
and the preservation of public health there in.
Concessions Ordinance- to check the indiscriminate- granting of land to expatriates- enacted in 1894- vested all
waste lands in the Crown.
The first African member of the Legislative Council was Sarbah who was appointed in 1888
The defeat of the Asantes in 1874 led to a breakdown of the Asante confederacy.
The British were sort of pressured into seeking the rapid extension of the colony-especially where the Asantes were
concerned because the French were rapidly expanding their territories. The British offered to sign a treaty with the
Asantes which they refused.-1890
In retaliation for their refusal (I guess) the British seized their Asantehene, Prempeh I, and some important princes
of the Golden Stool and took him to Seychelles in 1896.
In 1900, Sir F. Hodgson demanded the golden stool. He had declared war without knowing it. Yaa Asantewaa
instigated the men in the Asante Kingdom to fight. The effect of the Ashanti Order in council was to make the
Ashanti a British Crown Colony.
In order to speed up the colonization process they started with order in councils. So to take control over the
Ashanti, there was the Ashanti Order in Council. There was also the Northern territories Order in Council which
was made under the Foreign Jurisdiction Act and converted that area into a protectorate.
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Constitution of 1901
The Gold Coast Order in Council, 1901, which was made under the royal prerogative, for the first time laid down
the geographical boundaries of the Colony and declared annexed such of the territories included in the new
boundaries as did not already form part of His Majesty's dominions.
Sir Hugh Clifford was appointed governor of the colony in 1912
The Colonial Government of 1914-1945- why didn’t it end at 1957 and start at 1844?
The 1916 Clifford constitution
Sir Hugh Clifford was appointed governor of the Gold coast in 1918- wanting to familiarize himself with the locals
he was to discover that there was hope for the country in the cocoa industry. His most significant contribution as yet
in the way of constitutional law was to enlarge the legislative council.
The Clifford constitution of 1916 established a legislative council that was dominated by official members, all of
whom were Europeans. So was the executive council, which was headed by the governorship. The legislative
council comprised five official and four unofficial members. The unofficial members comprised 2 Europeans and
2 Africans. The governor had two important powers: veto power and the power to reserve legislations. The
governor had the power to veto legislations. Secondly, if the governor thought it inappropriate to veto, he would
reserve it for the colonial government to veto so Secretary of State for Colonies would veto so that the governor
would not be linked with the matter.
In his address to the legislative council of 1916, Governor Clifford indicated that the constitution he envisaged for
the colony was that which will be paternal rather that democratic in character.
This constitution proved dissatisfactory to the people. This then generated negative reactions towards the
constitution. Two significant factors or reasons influenced this state of affairs. These are:
1. Demands for more representation. This was aptly captured in the maxim-taxation must go with effective
representation.
2. Demands for responsible government in the sense of being answerable to the people.
These dissatisfactions compelled governor Guggisberg to initiate fresh attempt at constitutional advancement in
1925.
Under his reign the membership of the GC was increased from 9 to 22
The constitution for the 1st time added three paramount chiefs to represent for the first time the major ethnic
groupings in the country as far as possible.
He was succeeded by Sir Gordon Guggisberg who ruled the Gold Coast from 1919-1927.
The Guggisberg constitution of 1925 was written in reaction to increasing dissatisfaction with the Clifford
constitution of 1916. This constitution represents an early attempt to curve out a system of government that is
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representative of the people of the Gold Coast. This will seem to coincide with the determination of governor
Guggisberg to facilitate economic developments in the Gold Coast. It was contained in three (3) separate
documents.
a. Royal patents establishing the offices of the Governor General and the commander in chief.
b. Royal instructions.
c. Gold Coast colony (legislative council) Order in Council of April, 1925.
This constitution contained nothing on the judiciary because the passage in 1876 of the Supreme Court Ordinance
created a kind of court system as well as the applicable laws therein.
Under this constitution, the membership of the legislative council was increased to 30 comprising the governor, 15
official and 14 unofficial members. The official members were further divided into ex officio members of whom
there were 13, and one nominated official member. Significantly, the official membership of the council was
expanded. Under this constitution, municipal councils were created for the municipalities of Accra, Cape coast and
Sekondi-Takoradi with representations on the legislative council. Since the African membership of the legislative
council was by election, it is noteworthy that the constitution introduced the elective principle for the first time in
the constitutional history of the Gold Coast. The Governor however retained his veto power to block legislations as
well as his reserved powers. The reserved powers of the Governor were a power reserved to the governor to pass
legislations, which have otherwise been rejected by the legislative council.
Under section 15 of the Order in council, persons who were recognized by the Governor as head chiefs of the three
provinces of Accra, Cape coast and Sekondi-Takoradi mainly dominated the provincial councils. The introduction
of the elective principle was treated with such importance that section 37 of the order-in-Council dealt with such
matters as cheating, inducement etc during elections. It is important to mention that Ashanti was not covered by
this new legal dispensation but continued to be administered as a separate entity from the colony.
Also, the order in council, contained issues relating to qualification and disqualification: the disqualifications
include electoral malpractices, offences such as impersonation, treating, bribery, undue influence- R V KOJO
THOMPSON. Qualifications were introduced for those people who were elected and two of those to be qualified to
be elected to must:
-be certified by the governor to be competent in the English language
-own property on a certain farm or who pay taxes: thus because if you had nothing, you don’t care whether the state
survived or not, as those who had will also lose if the state does not survive.
Weaknesses
1. The domination of the chiefs in the provincial councils was heavily criticized by the educated elites of the
cities. Among others, it was argued that, that flouted traditional protocol, which forbids a chief from openly
speaking in public without the aid of a linguist.
2. Another notable flaw in the constitution was the maintenance of official majority. In the estimation of the
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indigenous Africans, this contradicted their desire for self-government.
3. Further to this is the fact that it is only the Governor who could effectually promulgate laws. This was
ensured through the medium of the veto wielded by the Governor. This invariably frustrated the efforts of
the Africans who felt they could never influence legislative policy as long as there exists the Governor’s
veto power.
4. Again under this constitution it was only the governor who could initiate financial legislation. (Compare
this to the financial provisions in the constitution, articles 174 et seq). Perhaps, it was feared that the
Legislative Council would be imprudent in fiscal matters. Under today’s government only government can
initiate policies that have financial implications. Only the government can introduce bills to Parliament.
5. Finally, the policy of indirect rule that was vigorously pursued by the Guggisberg constitution led to the
creation of chieftaincy positions and titles where there was hitherto none. This was particularly true of the
acephalous non-centralized states of the north. The gross effects of these weaknesses were to generate
disenchantment with this piece of constitutional advance thereby leading to calls for improvements
especially in the representations of African interest in the colonial administration.
The 1925 Guggisberg constitution was significant in the annals of the history of the Gold Coast particularly
because, it introduced the elective principle leading to a partly elective, partly nominated legislative council as
well as the introduction of the provincial councils.
He contributed to the introduction of Provincial councils.
It was during his reign that the British and the French made an agreement to share Togoland-
He caused the enactment of the Natives Administration Ordinance so that he can further indirect rule. The Native
Administration Ordinance made relevant contributions to the institution of chieftaincy
a) It provided detailed instructions on the election and the destoolment of chiefs.-as if there were no detailed
instructions before.
b) It protected the office of a chief making it an offence to undermine or try to usurp the jurisdiction of a chief.
c) Restore the state council and gave the SC the power to determine chieftaincy issues.
d) The law removed the Governor’s power to depose a chief for misconduct
e) The provisions for recognition of installation and destoolment were modified.
The West African Court of Appeal was an improved judicial facility established in 1838 to support the sick and the
needy. This means that appellate jurisdiction by leave of the SC does not go to the Privy Council but now to the
WACA.
The law on sedition (a rebellious act against a public officer)…
The restoration of the Asante and Northern Territories
The result of all of this is that these major constitutional changes consolidated the government arrangement by the
Executive. The 1925 Constitution lasted for a reasonably long time till the beginning of 1940’s when far from
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litigation going down; it resulted in intensification for reform largely because the twin questions of responsibility
and accountability had not been addressed. We did not have yet had what will be called a representative
government. The 1925, Constitution was the longest lasting Constitution as it lasted for 21 years. The changes put
the Gold Coast Colony far ahead. The questions of representativeness and accountability were still not addressed.
The leaders thought the chief were profiting from where they were not supposed to.
Sir Alan Burns succeeded him in 1941…

Increased political agitations from bodies such as the National Congress of British West African (NCBWA) led to
pressure on the British government to augment the constitutional development of the Gold Coast. On 29th March,
1946, the Burns constitution came into effect. Inception of this constitution marked a significant watershed in the
constitutional development of the Gold Coast. Notable, Ashanti was included in this constitutional arrangement.
There was radical restructuring of the composition of the legislative council. The elected members were increased
from eleven to eighteen, whiles the ex officio members were reduced from thirteen to six and the nominated
members were increased from two to six. The elected members therefore had a majority of six over the official and
nominated members. Section 14 and 15 of the Order in Council introduced some qualifications: one which
qualified every person who owed allegiance to a foreign power will not be a member of the legislative council
This development though significant prima facie, it was largely impotent in influencing legislative policy. This
was because the Governor still had his reserved powers by which he could pass into law any bill or motion, which
failed to pass the legislative council where he deems same to be expedient in the interest of public order, public
faith or good governance.
Ashanti was given its own representatives in the legislative council for the first time. To be a representative of
Ashanti, you must be a person who owed allegiance to the golden stool. The significant point is that the main
leaders of the constitutional reform were from the south and prominent were the Fanti professionals
The large proportion of the legislative council had their election based on the Electoral College. The elected
members comprised nine (9) provincial members elected from the Eastern and Western provinces, and four
members from Ashanti, elected by the Ashanti confederacy council. There were five municipal council members
of whom 2 were elected from Accra, and one each from Cape Coast, Sekondi-Takoradi and Kumasi. The ex officio
members were the; Colonial Secretary, Chief Commissioners of the colony, Ashanti and the northern territories,
Attorney General and Financial Secretary. Of the six nominated members, 3 were Africans totalling 21 African
members out of 30. The term of office of the elected members was four years. The Order in council prohibited the
consideration of any matter, which would dispose of public funds without the sanction of the Governor.
On the other hand, the Executive council for the first time had African representation on it. Three members were
appointed onto it. The Executive Council was responsible to the Governor and not to the Legislative Council.
It is curious to learn that the years following this major constitutional step were marked by violence and instability.
In 1948, the Gold Coast was rocked by riots-an occurrence, which was to awaken the colonial powers from the
constitutional slumber in which they seemed to have fallen. The riots left 29 dead and 237 injured. A Commission
of Inquiry under the chairmanship of Aiken Watson K. C. found a number of social, political and economic causes
for the disturbances. The Aiken Commission found that the Burns constitution though well-intentioned was
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conceived in the light of pre-war conditions and was out of date before it was promulgated –“outmoded at birth”
The Watson commission made the following recommendations:
1. An expansion of the African presence in the legislative council
2. That the executive should be made accountable to the majority in the legislative rather that the Governor.
3. A strengthening of the local government system.
The British government accepted these recommendations and consequently put in place an all-African
constitutional committee under the chairmanship of Sir Henley Coussey to draft a new constitution. This resulted
in the enactment of the 1951 constitution.
Basically, Coussey reported or recommended that the legislative council should be enlarged further
Second that the executive committee should also have an African executive here is what the African mean
ministerial appointment in that the most should be Africans
Thirdly, Local government should be modernized
Fourthly, the legislature should be bi – cameral.
Agreement for administration of British Togo as trust territory- as approved by the UK General Assembly
In 1943 incom et ax was introduced to the GC for the first time. The indigenes objected this claiming that there
should be no taxation without full electoral representation. Nonetheless the Income tax Ordinance of 1943 has been
re-enacted.
The UGCC was formed in 1947 to fight colonialism.
Kwame Nkrumah arrived and the momentum he generated seemed unstoppable. There were 2
slogans-“Self-government in shortest possible time,” and “Self-government now.” It remains a problem today the
use of catchy language to procure votes. Rawlings is good at this.
The Constitution of 1951

- Formed based on the proposals of the Coussey committee( though significantly criticized)
- The main instrument was the GC OIC,1950- which for the first time applied uniform constitutional
provisions to all territories
- The Legislative Council made way for a Legislative Assembly, almost entirely consisting of elected
Africans; the four territories- the Asante Colony, The Northern Protectorates, The Southern States, British
Togoland-chk
- The Executive council was accordingly designated as the principal instrument of policy.
- The Governor was to act in accordance with the executive council-except where expressly empowered to
act in its own discretion.
- But council was still answerable to him. The British government justified this position on the ground that
the ultimate responsibility of the administration rested with Governor. The executive council consisted of
the Governor, as president and a number of ministers. There were three ex officio Ministers, namely the
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Chief Secretary, Attorney-General, and Financial Secretary and not less than 8 representative Ministers
appointed by the governor from among the members of the Legislative Assembly. The Executive council
was required to elect one of their numbers to be leader of Government Business in the Legislative
Assembly.
- The executive council consisted of the governor as President and the ministers- the first time this term had
been used in Ghana.
- Each ministry had an official head called the Permanent Secretary
- The Legislative Assembly consisted of the Speaker and three ex-officio ministers-three representatives of
chambers of commerce, three reps of chamber and mines and seventy five elected members
- The Governor with the advice and consent of the legislative council was given the power to make laws for
the peace order and good governance of the Gold Coast-but the power was limited.
- Committee set up to advise the governor on appointments, promotion, discipline and other matters.
- The Legislative Council had 75 members.
- Dr. Kwame Nkrumah, who became the leader of government business and later Prime Minister kicked
against this constitution describing it as bogus and fraudulent. Following the visit of the secretary of state
for the colonies in 1952, Dr. Nkrumah stated in the legislative council that, if the Gold Coast were to attain
full self-government, the Gold Coast government must take the initiative and lay before the British
government proposals worked after consultations with the chiefs and people. This led to the adoption of the
1954 constitution.
The United Gold Coast convention was founded in 1947
Local Government
The recommendations of the Coussey Committee were implemented by the Local Government Ordinance i.e. those
that concerned local government.
The power to levy rates was given without financial limit.
The Minister of the Local Government was appointed to supervise the ordinance
The Local government finally began to reach the point of stabilization in the Gold Coast.
The ordinance also created the trans- Volta Togoland region
Creation of the office of Prime Minister-1952

-the office of the Prime Minister was created as substitution for the Leader of the Government business
- He was proposed by the governor and approved by the Assembly
-He was member of the Executive Council (Cabinet)
Discussions on the Constitutional Reform

- In 1952, the then PM said that if the GC wanted to obtain full self-government then they must take the
initiative and lay out proposals after consultations with the chiefs and the people.
- To this effect, he invited people to submit their views.
- The results of the invitation were used as a basis for framing government proposals in the reform of the
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constitution- they did not however adopt the majority opinion in favor of creating a second chamber for
legislation.
- Kwame Nkrumah – 1st PM proposed that we prefer self-government with danger to servitude in tranquility
The Constitution of 1954

The principal changes to the 1951 constitution are as follows;
- The governor ceased to be a member of the executive (Cabinet) and was made responsible to the Assembly
which consisted of not less than 8 members appointed on the advice of the Prime Minister.
- Cabinet could not exercise functions in relation to defence + internal security-those powers were reserved to
the governor
- Though the governor was not part of cabinet he could at his discretion call a special cabinet meeting.
- The Governor had power to insist on the introduction of any Bill, and retained his reserved powers in cases
where a Bill was not passed
- The AG ceased to be a minister- his responsibilities were laid down by the constitution
- The restriction on the introduction of Bills affecting chieftaincy was removed.
- BUT a similar restriction was placed Bills concerning external affairs.
- The judicial service commission was set up consisting of the chief Justice and two other judges, the AG and
the Chairman of the Public Service Commission.
- A judge of the Supreme Court was not removable except on an address of the Assembly, carried by not less
than two-thirds of the members, praying for his removal on the ground of misbehaviour or infirmity of body
or mind
- For the first time issues concerning the judiciary and public finance were inserted into the constitution
- The legislative Assembly consisted of 104 members
Questions on federacy and legislation…

- Whether the independence constitution was to be federal or unitary- the Asante wanted a federal
constitution because they wanted some measure of autonomy especially with regards to their resources;
cocoa-gold…- They claimed that there was not enough consciousness of national identity to establish an
efficient unitary government, so we were not to concentrate power but to retain a substantial part of them in
component territories.
- In September 1954, the NLM was launched in support of the Asanteman Council and nearly all the
opposition parties.
- The reasons the committee selected by the government to investigate the issue of federacy gave for
rejecting federacy in favour of unitary government
- Again the upper chamber idea was rejected
The invitation of constitutional expert- Sir Frederick Bourne
The Bourne Proposals-failed in the most important aspect of his mission i.e to reconcile the opposing views of
government and the opposition.
Bourne did not receive co-operation from the NLM to do his work so a substantive part of it was not effected. But
he still made some relevant contributions;
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1. The boundaries of the regions should be clearly marked out and must not be changed if the locals there do
not agree.
2. The establishment of a Regional Assembly.
3. Set out objectives for the Regional Assembly
4. No bill affecting the traditional functions of chiefs should be passed without their consent.
5. The Regional Assemblies were to receive advice from chiefs in the region.
The Achimota Conference-conference to consider the Bourne proposals-
Recommendations;
1. That there be a regional house of chiefs in each region

The Togoland plebiscite- 9th May, 1956
Gold Coast general election- July, 1956.-resulted in a decisive victory for the CPP.
The Ghana Independence Act, 1957, received Royal assent on 7th February, 1957.
The Constitution of 1957(Independence constitution) - 7th February 1957 the Ghana Independence Act received
Royal Assent.
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 these were dated on the 6th March 1957.
Certain general observations can be made
Constitutional arrangements at independence are influenced by political developments in the Gold Coast between
1954 and 1957. By independence, our constitution had reached a stage where major institutions of government had
matured
The pre-eminent position of the Executive is one of the observations you can make and the independence
constitution is the 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. The
governor general was the head of state (strictly this was the queen). The day to day government was administered
by the prime minister. The governor general could exercise powers only on the advice of the cabinet.
The independence constitution introduced cabinet government and this has been maintained ever since. This was
imported into the constitution together with the principle of collectivity. The day to day administration under the
independence constitution was carried out by the Prime Minister and the cabinet as compared to the 1992
Constitution where the day to day is in the hands of the president.
With the legislature, the independence constitution was the first to introduce the word “Parliament” which was in
1951 Legislative Assembly. The parliament had two parts; the queen and the national assembly. The National
Assembly passes the bills and the Queen promulgates it into laws. These parts were retained till the 1992
Constitution where the President is no more part of the parliament although he contributes to law making. After
independence however, the queen was part of the parliament.
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The independence Constitution put certain restrictions on the legislature, this was to prevent the fears for federalist
or bicameral constitution.
There were three kinds of limitations
Institutional limitations- These established two institution, Regional Assemblies and Regional House of Chief,
these were contained in the proposals of Sir Frederick Bourne, which was part of his recommendations , for
devolution of authority to regions. These institutions were evolved mainly to the amendments to the constitution.
Procedural limitations- for any amendment of the constitution to be valid had to be supported by two thirds
majority by the national assembly and a simple majority by the regional Assemblies , where the government
makes any legislation affecting chieftaincy in a particular region the bill has to be referred to the regional house
of chief of the region it is located after it has been introduced into the national assembly and then published in the
gazette for three months before the second reading.
WARI V. OFORI ATTA
Substantive limitations- The constitution prohibited racial discrimination law. Roughly by 1920’s there was some
indication that race would become a critical factor in our politics. Legislation which affects freedom of conscience
and other human rights issues, it also protected rights to property. The state could acquire property compulsorily if
only it provided for compensation to be paid promptly and adequately.
LARDAN I, LARDAN II.
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 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 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
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
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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 notwithstanding the non-service in habeas corpus proceedings, despite the Contemnor’s knowledge of
the order, he was still liable.
ii.) Whether the action of the Minister, the Commissioner of police and Director of Prisons, did constitute contempt
of court.
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 court into disregard.
Judiciary
Before independence under the Supreme Court Ordinance of 1876, we had the High court and appeals from there
lied to the West African Court of Appeal, then to the Judicial Committee of the Privy council (the main job was to
advice the queen as queen over the British empire (the council had a judicial committee which acted as a court of
last resort for all the colonies. After independence, it was seen that it was no longer appropriate for appeal to the
West African court so this led to the creation of the Court of Appeal. Still the Privy Council remained court of last
resort since the queen was still the head of State.
The constitution at the beginning of its rise tried to provide the judges independence. This was done in two ways:
Independence from the executive and the legislature and that was achieved by providing the judges with security of
tenure, thus the judges could not be removed anyhow. Impartiality. That is an internal character. These two things
are supposed to enable the judges to perform their works. This security was secured by a formula introduced in
1688 in England in the Bill of Rights which was an instrument which established the respective between the
monarchy, commoners and the aristocrats. A judge was removed only by legislation passed by the legislature based
on infirmity of body and mind (both physical and mental), stated misbehavior
The Judicial Service Commission was also established- this is the body responsible for protecting the independence
of the judges. In 1959 however, this commission was abolished and all appointments at the senior level were to be
made by the Prime Minister. The Chief Justice was the administrative head. In exercise of this, he had to consult
with the judicial council and with the approval of the president. When the chief justice was made administration
head, and to run the judicial service with the head of government, there were problems.
STATE V. OTCHERE
Upon the coming into effect of the 1957 constitution, the Colonial Laws Validity Act (1865) ceased to apply to any
law passed after the appointed day…- the effect of this was to establish that no law made in Ghana after the
appointed day was to be rendered inoperative if it is found to be repugnant with the law of England and Ghana had
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the power to repeal or amend any other pre-existing law of the nature.
In many ways it repeated the provisions of the former constitution but very important new features were added;
1. The Governor was replaced by a Governor- General

2. The executive power of Ghana was vested in the Queen or by the Governor- General as her representative
3. Cabinet was charged with the general administration of Ghana and responsible to Parliament.
4. If the Assembly passed a motion of no confidence the Governor- General was required to dismiss the Prime
Minister.
5. The term Parliament until then has not been used in relation to Ghana
6. No Bill for the amendment of the constitution was to become law unless supported by two-thirds of the
majority in Parliament.
Independence Act provided that;
⦁ No Act of the UK passed after independence will apply in Ghana unless we said so
⦁ The Crown was to have no responsibility for the government of Ghana
⦁ As from the appointed day, 6th March the provisions of the First Schedule of this Act shall have effect
with respect to the legislative powers of Ghana.
⦁ The Regional Assemblies;- Ghana was divided into five regions- British Togoland, Trans/ Volta,
Northern , Eastern, Ashanti
The only effective act achieved by the Regional Assemblies was the giving of approval to a bill and abolishing
restrictions on the amendment of the constitution.
The AG be considered as a non-political figure…he was in effect to be regarded as a public officer vested with
the responsibility of initiation, conduct and discontinuance of prosecutions for criminal offences… His office
was also to be made independent such that the relationship between a minister assigned to them was to be one
restricted to governmental supervision and not professional interference.
The Governor’s reserved powers were removed and the legislative Assembly was enlarged- 104.
Constitutionalism began to creep in when the legislative was given restrictive limits to the effect that no bill
could become law unless two- thirds thought so.
In 1958 the legislature passed and the cases show that the purpose of the legislation was never left in doubt. The
national assembly passed the repeal legislation, 1958. They were intended to satisfy those who were afraid of
having no voice if the constitution was unitary.
Then there was some dissatisfaction with the fact that we had a monarchical constitution. Our independence
was considered incomplete if the queen or British monarchy was still the head of state. While the governor was
away, the national assembly passed the Constituent assembly and the plebiscite Act. This piece allowed the
national assembly to convert itself from time to time into a constituent assembly with full powers to draft the
new constitution. This legislation also did away with the requirement of the assent of the queen of the bills
passed by the national assembly to become law. The national assembly passed various chapters to become the
1960 constitution without necessary assent of the queen.
The chieftaincy institution was guaranteed+ introduction of Regional House of Chiefs. The regional house of
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chiefs was to consider any matter usually one concerning customary law referred to it. The provision that a bill
concerning chiefs should be referred to them first was continued in effect.
The arrival of independence made necessary the new concept of Ghana citizenship- Although persons born in
the colony were normally citizens it ceased to be so. The Ghana Nationality and Citizenship Act provided for
citizenship by birth, descent, registration and naturalization and contained transitional provisions spelling out
how persons born in Ghana before citizenship were to acquire citizenship.
The introduction of the Regional Assemblies was one of the major attempts to satisfy the Federalists.
Concerning the common wealth-On the attainment of independence Ghana gained full membership and in their
constitutional proposals government had indicated that this would be sought.
Amendments to the 1957 constitution

The abolition of the Regional Assemblies;
The law requiring that notice be given to chiefs before a bill concerning chieftaincy is made law was repealed.
Nkrumah said it was unnecessary
Rules concerning the disqualification for the membership of the National Assembly were amended such that one
would be disqualified if subjected to preventive detention.
Rules concerning the dismissal of a minister were such that a resignation will not be effective unless accepted by
the Prime Minister.
The creation of the republic

⦁ Ghana was the first member of the Commonwealth to provide herself with a republican constitution.
⦁ Burma became a republic overnight through a treaty signed with the British government
⦁ It is important that the constitution be included in the schedule to the Act that brings it into force.
Per the republican constitution the Colonial Laws Validity Act could not apply to laws made by the parliament of
Ghana
The validity of the constitution was determined in a referendum. Which was coupled with the contesting of the
presidency, between Kwame Nkrumah and J.B Danquah in which Nkrumah won overwhelmingly and became first
president under that constitution.
The new constitution was moving us away from the monarchical constitutional hierarchy to the republican
constitution hierarchy. In 1960 vast majority of people voted for the new constitution to become the first republican
constitution of Ghana. The governor general left and Nkrumah as first president assumed full control of the
administration.
Constitution of 1960-the republican constitution

It was not just meant for the people of Ghana but as a symbol of African Unity and Liberation as can be seen from
the preamble.
It introduced the concept of people’s power. It established that sovereignty rested neither in Parliament nor in the
people. Sovereignty rested in the people.
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It eliminated the monarchical element of the 1957 head of state and removed the Queen from that position. By that
constitution Ghana became a republic.
The office of the President was established and he was considered as the fount of honour and the commander in
chief.
The President was to act in his own discretion and shall not be obliged to follow advice tendered by any
person-article 8(4). This implies the president was not bound by the advice. The choice of an executive president in
1960 was notably debated.
Some felt the 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 the 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.
The first president was also given power in article 55, where he was given an independent legislative authority to
make law. This power is spent at the end of the tenure of the first president. This was due to the fear that the
president might be denied the legislation that he needs to carry out his task by a hostile legislature which will fail
or deny him. In that case this power was given him to pass the necessary laws. This power however was never used
by President Nkrumah. RE AKOTO represents biggest landmark of Rule of Law in this country. It was about scope
and extent of legislative authority.
The constitution also provided two types of presidential commission. The first one was to be appointed by the
president when he is travelling abroad, to discharge functions of the president, those functions he could not
discharge when out of the country; and the presidential commission appointed by the cabinet when a president
resign from office or dies until new president is sworn in.
The 1960 constitution continued with the composition in independence. The parliament was made up of the
national assembly and the president. The President’s role was to implement what the national assembly passed. The
national assembly was elected by universal suffrage. The National assembly was made up of 104 persons who were
elected for the republican constitution. Their mandate was continued from the independence Constitution. That is
the body which converted itself from time to time into the constituent assembly provided by law to elect 10 women
members. In the end the parliament was made up of the president, speaker, 104 members continued from the
national assembly and 10 women members.
The margin of article 20 deals with the legislature which describes the legislature as sovereign. A sovereign
parliament is one which is unlimited in its powers. If the legislature has monopoly over government then it is
legislatively sovereign, when it does not only have monopoly over government but has unlimited powers then we
say that legislature is sovereign.
Judiciary
The constitution ensured security of tenure, power of judicial review, but the president had been given power to
appoint and dismiss judges. The fortunes of the Chief Justice were tied to the fortunes of the executive. There was a
Supreme Court as well as a High Court and the appellate jurisdiction that was previously exercised by the judicial
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committee of the Privy Council after the West African Court of Appeal had been abolished. Article 42(2) gave the
Supreme Court the power of judicial review. It is interesting to note the decision of the Supreme Court in RE
AKOTO concerning the power of judicial review.
In 1964, there was a one party state. The ideology of the CPP was spread brutally through the use of the PDA in
1958. Fortunately the one party state did not last for long. For the first time the military as an institution intervened
in the administration of our country in 1966.
The second Republican Constitution-1969
On 22nd august in 1969 the second republican constitution was promulgated. This continued the structure of the
country as a republic and established and vested the executive authority of the state in the president –article-37- the
president was not an executive president. The 1969 constitution was supposed to be a reaction to the 1960
constitution.
If u read the Akuffo Addo proposal, it will tell you that the one summit which seem to have impressed many
Ghanaians was the structure of the executive in the new constitution. Thus the position of the head of state and the
head of government was combined. In the 1969 constitution, there was a split executive. The executive was vested
in the president but the executive power was exercised effectively by the Prime Minister. The President was the
head of state, but the effective executive power was in the Prime Minister. It does not mean that the president was a
ceremonial president in the second republican constitution. The people did not want a ceremonial head of state.
The president was given some direct executive power such as the power to appoint people in the public service
although the power was exercised effectively by the prime minister. A number of what became known as buffer
institutions were established. Among them are the council of state, national Security Council and, the armed forces
council, the public services commission, the police council, the prisons service board, the judicial council and the
Ombudsman (this is the Scandinavian invention of the public and complaint mechanism which the citizens can turn
when they are victims of maladministration in the public service). This is continued as can be seen in the CHRAJ.
The reason why they are called buffers was to make these institutions have smooth relationship with the executive.
Legislature
The second republican constitution continued the formula in the first republican constitution: they had a parliament
made up of the president and the national assembly (minimum of 140 MPs and maximum of 150 MPs). Since about
1916, the numbers have been increasing in the composition of the legislative branch of government apparently
because in terms of our constitutional expectations, we have been using it for the government to be representative.
There were provisions for disqualifications in article 71. One of such including disqualifying anyone whom adverse
findings have been made by a commission of enquiry as could be seen in Gbedemah’s issue. Also in article 82, if
you have an interest in government contract and you are a member of parliament, you need to disclose that interest
and you cannot take part in discussions relating to such interest.
The 1969 constitutions also contained a number of limitations. Perhaps the most interesting one was the provision
which disabled parliament from amending some parts of the constitution. This is in article 169(3). Articles
127,149,153 could never be amended by parliament. Presumably the people could have the power. And also those
in chieftaincy matters such that issues relating to them should be sent to the appropriate regional house of chiefs.
The president had the power to delay the legislation.
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Some privileges were provided for the members of parliament to make it possible to carry out their functions freely,
articles 91, 97- provisions which assured them of complete freedom of speech.
The constitution also changed the relationship between the executive, the legislature and the judiciary as seen in
articles 2 and 106. Article 2 provided a general power of review given to the Supreme Court for the first time. To
some extent this review power meant that the legislature did not have the final say on the constitutionality of its
actions. Members of Parliament were also required to declare their assets. This was to ensure some degree of
integrity in the public administration.
Judiciary
In the first republican, there were two superior courts- the Supreme Court and the High Court. And in the 1969
constitution they were 3- High Court, Appeal court and the Supreme Court.
The security of tenure of judges of their tenure were secured in articles 115 to 117. The judicial council was to
assist the chief justice in the administration of the judiciary. In the independence constitution, the judge could only
be removed on the two thirds majority. This provision was repeated in the 1969 constitution- stated misbehavior,
infirmity of body and mind…however, the constitution established a system of two tribunals: A five-member
tribunal for the removal of the chief justice and a three person tribunal for the removal of the judge.
REPUBLIC V. MAIKANKAN
Ten persons were committed to the High Court for trial on charges, none of which carried the 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 counsels objected to the application on grounds that the interpretation
being placed on Article 20(2) of the 1969 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- article 20 (2) (a) of the Constitution, 1969, does not provide that a trial by a judge with a jury is compulsory
for all offences other than treason, but rather makes it mandatory in trials of persons charged with offences
punishable with death or imprisonment for life, other than those persons charged with treason, which is also
punishable with death, but for which special provision is made in article 20 (2) (h) of the Constitution for trial by
the "High Court duly constituted by three Justices thereof." There was no support for the argument that offences the
accused persons were charged with must be tried by judge and jury.
The 1979 constitution
The constitution came into force in 14 September, 1979. The 1979 constitution is founded on the 1969 constitution.
In paragraph 26 of the Mensah constitutional proposals, they made a point not to bring a fresh constitution but to
build on the strength of the 1969 constitution. They admitted that the 1979 constitution is essentially the 1969
constitution with some changes. It had 217 articles.
Article 1
Introduced the idea of protecting the constitutional order – even with our own lives.
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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.
Clause 3 of article 1, prevented military interventions.
The constitution came into force in 14 September 1979
It also contained some interesting things, the position of the head of state and the head of government was
combined. Thus the executive was returned. There were pure separation of powers. Part of the integration took
different terms for the executive and the legislature. The president had a four year term and the legislature had a
five year term.(to show that they were separate).
Also the constitution implemented the part of separation of power, thus it contained the principle of incompatibility
of multiple office holders. Thus a member of parliament could not be appointed ministers.
Article 2- grave consequences for disobedience of orders of the Supreme Court.
Article 2(4) – failure to obey or carry out the terms of an order or direction made or given under clause (2) of this
article constitute 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.
There were adequate controls in article 214 over the exercise of governmental power and the system of public
accountability all public holders were to declare their assets.
The constitution also introduced a system of grass root democracy. This is through representative local government
system.
It also guaranteed media freedom, establishing a press commission, and now there is the national media
commission.
There were two chapters of human rights issues, chapters 4 and 6.
The constitution tried to make the judiciary autonomous financially. The judiciary proposed its financial budgets
directly to parliament and so they were not under the ministry of justice. This made it possible for the judiciary to
retain 15 % of the revenue they generate to the state
The idea of keeping the executive under check by establishing buffer intuitions was continued. They included the
council of State, Press Commission, Electoral Commission, Ombudsman etc.
One interesting distinction between the 1969 constitution and the 1979 constitution was that some provisions in the
1969 constitution could never be amended and this was criticized however under the 1979 constitution. Every part
could be amended as seen in article 210(1) in where the principle that part of the constitution cannot be amended
was avoided
In article 270(1) the institution of chieftaincy was guaranteed. Chieftaincy was returned fully to its traditional roles.
The process of holding chiefly office was left to custom and usage.
It contained transitional provisions. The most celebrated case under this was TUFFOUR V. ATTORNEY
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GENERAL. (Capacity to bring Action). In 1979 we reformed those provisions so that the coming of the new
constitution will not affect the positions of people as seen in SALLAH V. ATTORNEY GENERAL and the
TUFFOUR V. ATTORNEY GENERAL
We have had 4 successful coup d’états but 5, you could almost say 6. The first and probably the most controversial
occurred in 1966. Regime was established on 24th February through the NLC proclamation. The proclamation was
made on 26th but given retrospective effect from 24th February. The NLC that was established run affairs until
October 1969.
The structure of government that the 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 the Executive Council of NLC. The Legislature was the National
Liberation Council. Executive was the Executive Council plus Ministers of state, that they called Secretaries.
The Judiciary continued with same powers, composition and structures as under the 1960 constitution. There was
the power to reorganize the 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, and AWOONOR WILLIAMS V. GBEDEMAH. You find the
judges more or less divided. One camp led by AWOONER WILLIIAMS V. GBEDEMAH is that during that period
of NLC, Courts did not have power to examine legislative power of the state.
TITLE: BENNEH V. THE REPUBLIC
FACTS: The defendants served the plaintiff with an entry of judgment which was alleged to have been obtained
pursuant to N.L C.D. 400. The plaintiff claimed that the decree was repugnant to articles 12 and 18 of the
Constitution, 1969, and therefore void under article 1(2). The court was asked to issue an injunction to restrain the
defendants from carrying out any of the provisions of N.L.C.D. 400. With respect to the question of jurisdiction
which was raised by the court the plaintiff submitted that under article 106 (1) of the Constitution the High Court
had the power to declare the decree void since the suit arose under articles 12 and 18 which are in turn covered by
article 28 which gives the High Court concurrent jurisdiction with the Supreme Court.
Held- article 2 of the Constitution stipulates that it is the Supreme Court that must determine whether another
enactment is inconsistent with the Constitution. The High Court did not have jurisdiction to entertain the suit.
On 13th January 1972 another coup occurred. This established by proclamation, 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.
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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.
On 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.
The people who claimed responsibility for the 1972 coup saw it as demotion and resigned. Some argue that what
happened in 1975 is an in-house coup d’état.
Decree 360 stated that in exercise of Executive power, will act on advice of SMC wherever practicable. Decree
setting up NRC posited that the leader is depository of power and acts on advice of SMC. He appoints members of
the SMC-the IGP etc.
REPUBLIC v. MILITARY TRIBUNAL; EX PARTE OFOSU-AMAAH

The applicants, together with other persons, were charged with certain offences under the Subversion Decree, 1972
(N.R.C D. 90), and tried before a military tribunal appointed under the said Decree. The tribunal by their decision
convicted them and then sentenced the first applicant to death which was later commuted to life imprisonment
whilst the second applicant was sentenced to life imprisonment. The applicants, in the instant application, sought
an order of certiorari to quash the proceedings and the decision of the tribunal. In raising a preliminary objection to
the jurisdiction of the court to entertain the application, the respondent contended that the military tribunal
appointed under N.R.C.D. 90 was not an inferior court because only superior courts had power to pass death
sentences and since the tribunal also had power under section 1 of the Decree to impose a death sentence in respect
of certain offences triable by that tribunal, the said tribunal was not inferior to the High Court.
Held- that 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 far 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 ne regarded as offenses punishable under the Decree.
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 in an illegal government.
With SMC as the legislature, when it passed laws, the Decree would have to be promulgated by Chairman but 168
was signed by all SMC members except the Chariman. 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
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of the Executive.
KWAKYE v. ATTORNEY-GENERAL
The plaintiff was listed in a press statement issued by the Armed Forces Revolutionary Council (A.F.R.C.) as one of
51 persons who had been tried and sentenced in absentia by the special court established under the Armed Forces
Revolutionary Council (Special Courts) Decree, 1979 (A.F.R.C.D. 3). The plaintiff therefore issued a writ invoking
the original jurisdiction of the Supreme Court and seeking a declaration that he was never tried, convicted or
sentenced by any special court established under A.F.R.C.D. 3 and that the purported sentence of 25 years’
imprisonment imposed upon him as published in the national press was an infringement of his fundamental human
rights, inconsistent with chapter 6 of the Constitution, 1979, void and of no effect. The defendant raised a
preliminary objection to strike out the plaintiff’s claim on grounds that the plaintiff failed to give them mandatory
one month prior notice under the State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352) before filing the
suit and that the court had no jurisdiction because of the Transitional Provisions of the 1979 Constitution.
Held- the State Proceedings (Amendment) Decree, 1969 (N.L.C.D. 352), was ineffectual where a person sought to
invoke the original jurisdiction of the Supreme Court on a complaint founded on article 2 (1) of the Constitution,
1979. The Decree was plainly inconsistent with that article and was clearly voided by article 1 (2). Whereas under
N.L.C.D. 352 no action was to be brought against the Republic until one month’s prior notice had been given to the
Attorney-General, a true construction of article 2 (1) of the Constitution, 1979, however, entitled an applicant to
invoke the jurisdiction of the Supreme Court as soon as the act complained of was committed or even threatened.
Provisional National Defence Council (PNDC)
It was brought into being by the PNDC Proclamation 41. The Proclamation established PNDC. Legislative
authority was vested in PNDC originally, and where the previous regimes made decrees, they changed ‘Decrees’ to
‘Law’.
The 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 Week to say that the management was contrary to
traditions of this country, and unprecedented in the 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.
Legal effects of military intervention
⦁ Absence of Formal Constitutional guarantees by which regimes are established

⦁ Issues relating to extent and nature of legislative authority under the military period.
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1992 constitution
The constitution came into force on 7th January, 1993. The records shows that the constitution came as a result of
development or steps in Ghana:
Introduction of constitutional governances- these reforms were said by the government to have been the outcome of
a desire to achieve three objectives
⦁ Decentralization
⦁ Democratization
⦁ District expansion
At the beginning of the reforms, Ghana was divided into 64 districts. At the end, the districts have been expanded
to 110. That was a massive piece of societal engineering. These reforms concerned the lower ends of the
government machinery. The reforms also presided in the period of regeneration of worldwide constitutional
government.
You can count both internal and external factors accounting for the Constitution. External factors- constitutional
development happening around the world. Internal- debates and the like
The NCD helped televise consultations around the country. The one significant finding of interest about the NCD in
its consultations was that the people of Ghana wanted a pluralist constitutional environment.
On receiving that report, the government set up a committee of experts under PNDC LAW 252 chaired by Professor
S.K Asante which examined the reports and opposed the draft constitution. When it received the report on July
1991, under the law, consultative assembly was established to do the actual drafting. So we can say that the interest
of the PNDC was to get committee of experts to make a draft and then the draft was to be done by consultative
assembly. Since 1960 we have been hearing constituent assembly.
The committee of experts was to act as consultants. At the very first meeting, they informed the chairman of the
committee of experts that they didn’t need them and that if they needed them they would send for them.
The committee and consultative assembly, were required to take account of their works of the previous
Constitutions – 1957 – 1960 -1969 – 1979 – this is important because it means the PNDC did not expect them to
start from scratch and that the PNDC did not think that they cannot borrow from those old constitutions. The
Consultative Assembly therefore did not struggle. These kinds of matters are important for us because the
understanding of provisions in the Constitution will require an understanding of the previous Constitutions.
The work of the Consultative Assembly was put in the Referendum in 1992. This was the fourth time in the history
of Ghana that the final document will be put into a referendum. First time was 1960, 1964 and the third was for
union government proposals.
The Constitution that was put to the referendum, had 37 sections and 299 Articles and the transitional provisions.
Preamble
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IN THE NAME OF THE ALMIGHTY GOD
We the People of Ghana,
IN EXERCISE of our natural and inalienable right to establish a framework of government, which shall secure for
ourselves, and posterity the blessings of liberty, equality of opportunity and prosperity;
IN A SPIRIT of friendship and peace with all peoples of the world;
AND IN SOLEMN declaration and affirmation of our commitment to;
Freedom, Justice, Probity and Accountability;
The Principle that all powers of Government spring from the Sovereign Will of the People;
The Principle of Universal Adult Suffrage;
The Rule of Law;
The protection and preservation of Fundamental Human Rights and Freedoms, Unity and
Stability for our Nation;
DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
Article 1 has interesting parts. The first legal effect is the acknowledgement that the power belongs to the people of
Ghana. This means that the power does not emanate from Government, from Parliament and not even the
Constitution of Ghana but rather the People.
The second implication is that the government established under the constitution is to be a representative
government. That is why we have something like the powers should be exercised in the name of the people and in
their welfare. No one will exercise this power according to his whims and caprices. If the power that is exercised is
not for our welfare it will be void under article 1.
The third implicational find is that the government established under the constitution is intended to be a
constitutional government. Constitutional government means government limited by the terms of the constitution.
You can see it in the terms of Article 1- power of government will be exercised in the manner and within the limits
laid down in the Constitution.
That article also tells us that the Constitution as a whole is the fundamental law of Ghana. Accordingly, any law,
action or decision which is in conflict of any provision of this Constitution is void.
- Article 1 of the constitution is protected by article 2,
- Article 2 protects the supreme character of the constitution
The decision in TUFFOUR V. AG, on the point of capacity, though this was a dispute under another constitution.
When you bring an article 2 action, all you need is to be a citizen of Ghana. You don’t need to have a special
interest. The case said that the plaintiff’s interest was with the constitution. It limited such right to nationals.
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There is Article 3 which prevents those who want to subvert the Constitution.
The other protection of the Constitution is by the media – chapter 12 – the media is supposed to hold the
government to be accountable to the people.
The constitution also establishes a number of institutions that have come to be known as the arms of government –
legislature, executive and judiciary.
This constitution also continues with what was introduced by the 1969 constitution by taming the power of the
executive with Buffer Institutions
- Council of state
- National media commission
- Lands commission
- Armed forces council
- Police council
- Office of the auditor general
-CHRAJ
-National commission on culture
Often referred to as independent institutions. They are independent of the executive. This is because they are
assigned to roles that were normally that of the executive
The constitution also guarantees the existence of political parties. Political parties are treated in this constitution as
organs of the constitution. For examples, political party must be national in character rather than sectional.
The constitution continued the local government reform as can be seen in chapter 20.
One of the challenges past constitutions have suffered with is military intervention. The constitution does not say
much about the role of the armed forces except that the armed forces council is to advice the president on the
defence of the country. The main function of the armed forces is to prevent the state sovereignty against external
challenges and the administrative and operational control of the arm forces is placed under the chief of defence
staff. Act 526 security and intelligence agencies act. The President apart from being the commander in chief is to
appoint officers of the Armed forces, grant commission of the armed forces and appoint persons to hold offices on
the advice of the Armed forces council. Apart from the defence of Ghana, the President may also join the Arm
forces and assign to them any other functions.
The Constitution devotes two chapters 5, and 6 to human rights issues. In the human rights discourse, it is usual to
talk about civil and political rights (first generation rights), and economic, social and cultural rights (which some
refer to as second – generation rights). Chapter 5 under the heading natural rights, the last part of what may be
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considered in economic social and cultural rights is dealt with in chapter 6 which has the title directive principles
of state policy. The question has come whether the rights contained in chapter 6 are justiciable. In the 31 December
case Bamford Addo argued succinctly that chapter 6 of the constitution is not justiciable whereas justice Adade
asserted that he does not subscribe to the view that chapter 6 of the constitution is not justiciable. Firstly he says the
constitution as a whole is a justiciable document and so if any part is not justiciable, the Constitution will say so.
Finally he asserts that the very tenor of chapter 6 of the constitution supports the view that it is justiciable.
There can be no argument about whether human rights are justiciable today. Those provisions have produced two
most important decisions in the Supreme Court since 1992, NPP v GBC, which addresses the place and importance
of freedom of expression.
The plaintiff was a registered political party while the defendant is a statutory corporation established by the Ghana
Broadcasting Corporation Decree, 1968 (NLCD 226) with the mandate to educate, inform and entertain the citizens
of the country. On the presentation of the 1993 budget by the government, there were severe criticisms of its
provisions by several persons including the plaintiff. In response to those criticisms the Minister of Finance
appeared on radio and television for over two hours to defend the budget proposals. The plaintiff therefore applied
to the defendant to be given time on radio and television to also express its views on the budget proposals. The
defendant however refused its request. Consequently, the plaintiff brought an action against the defendant for (a) a
declaration that under articles 55(11) and 163 of the Constitution, 1992 the defendant, a state-owned media, had a
duty to afford the plaintiff fair opportunities and facilities to present its views on the budget especially as those
views diverged from those of the government or of the National Democratic Congress, the party which formed the
government and which sponsored the appearance of the Minister of Finance; and (b) an order directing the
defendant to afford the plaintiff equal time on television to present its views on the 1993 budget.
Held- the object of Article 55(11) was the provision of fair opportunity to all political parties to present their
programmes to the public, and the means of achieving that was by ensuring that each party had equal access to the
state-owned media. “Equal access” meant the same or identical terms and conditions for gaining entry into the
state-owned media for the purpose of presenting their political, economic and social programmes to the electorate
and persuading them to vote for them at elections. But this rights were not rights which were enjoyed by the people
only when elections were to take place. Article 163 of the Constitution, 1992 also set out the duties of the
state-owned media in promoting free expression of views by obliging the state-owned media to grant fair
opportunities and facilities for the presentation of divergent views and dissenting opinions. The word “fair” meant
“free from bias” or “equal”. Accordingly, the combined effect of articles 55(11) and 163 of the Constitution, 1992
obliged the management and editors of the state-owned media to be impartial, showing neither affection for, nor
ill-will towards, any particular group in the community, be it political, economic or social; their facilities being
national assets, should be available to all. Accordingly, since the defendant gave the National Democratic Congress
two hours to air its views on the budget, the defendant was required by articles 55(11) and 163 of the Constitution,
1992 to grant the plaintiff equal time on radio and television to set forth its divergent views. Further. The court held
that the rights conferred by article 163 of the Constitution, 1992 on the people were subject under article 164 of the
Constitution, 1992 to laws that were reasonably required in the interest of national security, public order and public
morality and for the purpose of protecting the reputations, rights and freedoms of other persons. Since the
defendant had not relied on any such laws to justify its refusal to grant the plaintiff fair opportunities and facilities
for presenting its views on the budget, it had breached the provisions of the Constitution, 1992 by its refusal.
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The other one also by the NPP this time with the IGP. These two cases were the most important advancing human
rights. One opened the space for expression, the other took away what was the most potent instrument in the hands
of the government about expression. Before 1993 the public order was that you seek order from the police before
you can go on public demonstration. Usually the government felt you are going to make trouble so the police would
refuse the permit. The NPP brought an action under article 21 of the Constitution claiming that the legislation
requiring for public permit was contrary to the constitution. The Supreme Court interestingly agreed to the NPP
that the legislation requiring public permit for people demonstration was indeed contrary to the Constitution.
However the Supreme Court had ordered the IGP to post the order at all police stations to bring it to the attention of
all. What the government did was to pass the public order Act 1994, Act 491. Parliament therefore had no choice
but to stipulate anyone who wanted to go on demonstration was to notify the police at least 5 days prior. The
rational was that the police was to maintain law and order. What the government did was to get as close to the old
law. So if you inform the police naturally and the day is not convenient to them, then the police can ask you to
suspend, but this is just an advice and if you persist , then the police can go to the court for a restraining order. This
act was served to put restraint on the ruling of the Supreme Court.
The CHRAJ, NCCE, Electoral Commission on electoral rights, National Media Commission are the four bodies for
the protection of these rights. Other rights are contained elsewhere, like the right to vote in article 42.
The Constitution has no definition for the word “media”. By looking at the places and context of the constitution
where the word media appears, it seems that the Constitution talks about the institution for mass communication for
evolution as well as the people who work in these institutions and organization and disseminate information to the
population at large.
Chapter 12 was designed to protect the media as well as to establish an 18 member National Media Commission to
protect the media from others and to act as a buffer between media, population and others. The clause also provides
that there shall be no law requiring any person to obtain a license as a prerequisite to establish or operate a
newspaper or journal or other media for mass communication or information.
In article 120, the media is given the responsibility of holding the government accountable to the people. All
state-owned media are to afford fair opportunities and facilities for the presentation of divergent views and
dissenting opinions.
The constitution places a limit on the media in article 164 which provides that the provisions of articles 162 and
163 of this Constitution are subject to laws that are reasonably required in the interest of national security, public
order, public morality and for the purpose of protecting the reputations, rights and freedoms of other persons.
Chapter 12 gives the functions of the media commission. One of the functions of the media commission under
article 167(c) is to insulate the media commission from the state owned media.
NMC v. AG
The National Media Commission (NMC), a constitutional body set up under article 166 of the Constitution, 1992
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to, inter alia, promote and ensure the freedom and independence of the media for mass communication and
information, observed around 1994 and thereafter that the President, purportedly acting in consultation with certain
authorities, was appointing chairmen, chief executives and other members of the governing bodies of public
corporations managing the state-owned media. The President was alleged to be exercising such powers of
appointment under article 195(1) of the Constitution, 1992. The National Media Commission which took the
position that it was the proper authority to make such appointments in consultation with the President, submitted a
memorandum to the Attorney-General protesting at the appointments made by the President. The Attorney-General
made it clear that he did not share the views of the commission and invited the NMC to take a second look at
article 195 of the Constitution, 1992 in relation to the provisions of article 167 and 297(a). Thereafter, the President
made further appointments to the state-owned media. Whereupon the NMC issued a writ in the Supreme Court for
a declaration inter alia that: (1) on a true and proper construction of the Constitution, 1992 and specifically of
articles 168 and 195(1) thereof, the power to appoint the chairmen and other members of the governing bodies of
public corporations managing the state-owned media including the chief executives who were members at such
governing bodies, was vested exclusively in the NMC acting in consultation with the President and not in the
President, either acting alone or in consultation with any other person or authority.
In his response to the plaintiffs case, the Attorney-General contended, inter alia, that the four subject public
corporations managing the state-owned media were public corporations established as commercial ventures under
article 190(4) of the Constitution, 1992 and were consequently outside the purview of article 195(1) and 168 of the
Constitution.
Held- on a true and proper interpretation of the provision of article 168 of the Constitution, 1992 the authority to
appoint the chairmen and other members of the governing bodies of public corporations managing the state-owned
media, including the chief executives who are members of such governing bodies, was exclusively the National
Media Commission acting in consultation with the President. The language of article 168 was so plain and
unambiguous that it meant nothing more than what it said. Further, the provision accorded with the overall
objective of securing the independence and freedom of those public corporations from governmental control, and to
interpret it otherwise would not only be doing violence to the language of the article but also subverting the
intentions of the framers of the Constitution, 1992.
Article 56 provides that 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 program or a set of
objectives of a religious or political.
The constitution also continues the plan of returning the institution of chieftaincy to its traditional status. The
constitution provides that the institution of chieftaincy together with its traditional council is guaranteed.
The amendment process allows us to say in the language of classification that the 1992 constitution is rigid. In
chapter 25 there are three levels:
⦁ The first level is articles like 299 which tells us which provisions of the constitution cannot be amended at
all
⦁ The second level are those provisions which require a referendum to amend and those which do not require
a referendum,
⦁ The third and last is that the amendment process will involve the council of state. The proposed amendment
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will be submitted to parliament and the speaker will refer it to the council of state, then it will be read for
the first time. There will be a referendum. For the referendum to be valid, 40% of the registered voters must
participate in the referendum and 75% of the 40 must vote in favor of the referendum. It then goes back to
parliament and when passed by parliament needs the presidential assent. If the minority is not interest the
amendment would not be passed.
The executive
Article 57 states that there will be a president who will be head of state, head of government and commander in
chief of the arm forces of Ghana. Also covered are people functioning in other institutions. It says the president will
take precedent over all people in Ghana. Some people interpret this to say the president is the first person in Ghana
and the first lady being the properly married woman of the president. The vice president is the second, the speaker
is the third and the chief justice is the fourth…therefore these people should be acknowledged in that order when it
comes to protocol. However if for instance the Chief Justice is in the chair, she should be addressed first.
Clause 3 requires the president before assuming office take the oath of allegiance and the Presidential oath before
Parliament. The oath is taken with parliament duly in session and the speaker presiding. The only time the speaker
would not be part is where the speaker is being elected and the other two deputies and invite the president to take
the oath. The Constitution contemplates the situation where you are president but cannot function unless you take
the oath as seen in clause 3. The Constitution says that the term of the president begins that on the day he is sworn
into office. The president elect cannot function as president until he is sworn in. Clause 4, 5 and 6 gives the
president immunities. Clause 5 gives him immunity from suit for his official actions subject to two exceptions:
article 2, an article 2 action can be brought against the president while in office-NPP V. RAWLINGS. The other
exception relates to prerogative writs-a process which has been inherited from the state practice in England. They
are certiorari, quo warrranto, mandamus, habeas corpus…etc. The President or the Vice President are not
personally liable for any civil or criminal actions. The plea which may be applied in international criminal law
will not apply in this case. Clause 6 says those personal actions have to be brought within 3 years if the president
leaves office. Thus if the President is sued before going to office, then you can’t sue him. After three years, the
action becomes statute barred. This is not under the statute of limitation. The whole point of the President not being
liable relates back to the president as head of state who is the embodiment of the country as a whole. The courts
belong to the state and if the provisions were not so, then the state is being driven to the court in its own cause. In
TUFFOUR V. AG, in interpreting article 88, the Supreme Court decided that in all those cases, while President
cannot be challenge in his official position, actions can be brought against him on behalf by the Attorney General.
The constitution draws a distinction between president as head of state and as head of government –where his
actions can be challenged but rather brought against the Attorney General.
Article 58 vests the executive authority in the president. The executive authority shall extend to the execution and
maintenance of the constitution and all laws made after or continued in force by the constitution-58(2). Under
article 295, clause 1 you will find that government means any authority by which the executive authority of Ghana
is duly exercised. The word government is not a reference to the executive, legislature and the judiciary but a
reference to the executive.
The president is under no obligation to appoint ministers. The ministers are his servants. The word minister means
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servant in Latin.
Article 59, Where the President and the Vice-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 factions or a new President assumes office, as the case may be. The only question is whether the president
must deliver the letter himself or he can send a messenger. So what is meant by prior notification? In ASARE V.
AG, the court held that the President must be physically present in Ghana in order to discharge his duties and hence
the swearing in of the speaker is in conformity with the spirit of the Constitution.
Under article 60, the President must choose a vice president. There is no provision for what happens when the vice
president dies. It has been said or argued that Parliament should use its residual power in article 298 to fill that gap.
A distinction must be made between clause 6 and 8. Under clause 6, there is no mention of the vice president taking
a presidential oath before assuming office. However in clause 8. The vice president and speaker of parliament are
required to take the presidential oath before assuming office when the president is absent.
Article 62 talks about qualifications to be a president. To be a citizen of Ghana by birth. Till no one has been asked
to prove, it is just assumed by people. You must be 40 years. If you are a person qualified to be Member of
Parliament. When you read Article 94 on qualifications to parliament, our Constitution has a spent disability, the
idea is that someone who has a problem with the Criminal justice system should not be made to carry his liability
for life. So after the period, you can become a member of parliament. But as far as the president is concerned you
are not to have any blemish for people to be pointing fingers at you that I was gay with that man.
Apart from age and nationality and character, to borrow the words of Asiedu Nketia, ‘any idiot can offer himself as
president of Ghana’. There is no requirement that you should go to school, or to be able to read and write.
The constitution has some interesting things concerning the requirement that your nomination has to be supported
by two persons who are registered voters, etc. It contains rules on nominations and elections. A person is elected
outright on an election if he gets 50 percent of the valid vote cast plus one otherwise the contest will continue
between the two who had the highest votes till a president is elected.
In Article 64 only a citizen of Ghana can challenge the election of a president. The election petition has to be filed
within 21 days from the declaration of the results.
Article 66 gives the President 4 year term, starting from the day he is sworn into office. The article says
provocatively in clause two that a person shall not serve for more than two terms. The understanding is that you can
only do a total of 8 years.
Article 67 should be taken with 34(2), article 67 requires the president to do a sessional address, thus every session
the president must address parliament, this takes place on the sitting and resolution. This is different from the State
of the Nation Address which is seen in article 34(2).
Article 68 states that the president cannot be the chancellor of any of the public universities. Clause 5 gives the
benefits attached to the presidential office. You retire on your salary tax free.
Article 69 is about removal of a President. A president shall be removed upon willful violation of his oath, conduct
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which bring the presidency into dispute, ridicule or contempt, conduct which is prejudicial or inimical to the
economy or security of the state, disobeying an order of the Supreme Court giving under article 2, and inability to
perform his function by reason of infirmity of the mind or body. If the removal is on physical or mental incapacity,
then the President is examined by the medical board. A petition for removal goes to a tribunal chaired by the Chief
Justice and four of the most senior. For the other grounds, the proceedings of the tribunal must be in camera. And
the president is entitled to his lawyers. And the proceedings are sent to the Speaker. The President is removed if
two thirds majority is achieved in parliament.
In article 70 the President appoints certain office holders. In article 71, the president determines the named people’s
salary and they also determine that of the president.
Article 72 talks of the prerogative of mercy. The president may forgive them on condition, or not conditionally,
partially or wholly. Therefore an action of defamation can be brought against a person who calls you an ex-convict
when you are forgiven.
With the prerogative of mercy, there is an argument about whether the president can use the power before a person
has been tried. It does not mean there is no separation of powers or the president is sitting on top of the Supreme
Court. The only problem is whether the President is doing so to prevent the person from being tried. The aggrieved
party with respect to any crime is the state.
The cabinet
Articles 76 and 77 talk about the cabinet which must be a minimum of 10 and a maximum of 19. The critical
clause is 2. Thus the cabinet shall assist the president in the making of decisions. Ministerial appointment is found
in article 78. Sometimes it is appointment by prior approval and others it is by approval.
Article 78 does not tell us how many ministers we can have. Kuffour criticized Rawlings’ ministers that they were
too many, and he realized later that his is also too many. The other controversy is the requirement that the majority
of the ministers should come from Parliament. If Parliament is left with a pool of idiots, the president still has to
appoint the majority from Parliament. So it affects the president more than parliament.
There can be no deputy minister for a ministry which has no minister. So with the appointment the president has to
appoint the minister.
As a check, Ministers of State shall be appointed by the President with the prior approval of Parliament from
among members of Parliament or persons qualified to be elected as members of Parliament. That the president
appoints ministers with the prior approval of parliament could take two forms. So here the President can send
Parliament names only with no indication of office or send parliament their names indicating the office. In the
1969 Constitution, those operating the constitution choose the second option.
Those who operationalized article 78 always gave parliament the idea of convention. In JH MENSAH V.
ATTORNEY-GENERAL the Supreme Court decided that Parliament was only required by the constitution to
approve and not to threat anybody.
In Article 82 Parliament may, by a resolution supported by the votes of not less than two-thirds of all the members
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of Parliament, pass a vote of censure on a Minister of State.
In Article 111, the Vice President, deputy ministers who are not Members of Parliament as well as ministers have
rights to participate in the business of Parliament the only thing is that they cannot vote.
Legislature
The main matters concerning the legislature will be find in chapters 6, 13, and 10. Article
174,184,108,22,28,56,298, examine the amendments contained in act 527.
Functions of the legislature
The principal function of any legislature is to make laws as seen in clause of article 93. The important reason why
people view the making of law as the most important function of the legislature is because it offers the legislature
the most important opportunity to examine what is happening in the administration and to have an input.
Invariably, the immune policy requires stages in the law, and therefore the legislature gets the chance to be
informed by the administration of the policy the reasons for its introduction and the benefits designed to bring to
the populace. In a constitutional democracy parliament shares the blame with the executive as far as policy failure
is concerned.
The second function of the legislature is raising of money. This is principally made through practices, where taxes
are imposed by the legislature. Thus the power to impose tax is one of the most important functions of the
legislature- article 174.
Related to this is the power to spend or authorize the spending of money. The authority to spend the money and
what it can be spent on is normally one of the functions of the legislature. It is parliament which provides approval
of budgets. In article 181, when the state wants to raise money or make a grant on loans, it needs the approval of
parliament.
The fourth general function is the evaluation of government performance. This may take the form of for example a
statement by a member of the floor, relating to the condemnation or approbation of government performance.
Generally speaking parliament is seen as a permanent inquiry into the business of government. This is mostly seen
in the parliamentary questions which are asked ministers in order to get their concern on matters. Many often
parliamentarians do this to get their people to know that they are performing. Sometimes the Members of
Parliament are not many which may make this problematic. Sometimes they are paid to ask the question and so
may be seen as corruption.
Parliament is a platform for debate in the great issues of concern. From the evolutionary story one way for the
colonial government to ensure that the government was accountable to the people was to establish a legislative
council to discuss the day-to-day administration of the government. Therefore parliament is a good platform for
debating great issues of concern to the nation. This takes place in two situations: Sessional addresses under article
67-that the president at the beginning of each session of parliament and the dissolution of parliament deliver a
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message to Parliament on the state of the nation and the state of the nation address under clause 2 of article 34-the
President shall report to Parliament at least once a year all the steps taken to ensure the realization of the policy
objectives... For instance when Rawlings was said to have received a bribe of 5 million dollars from Abacha, it
became an issue between the minority and the majority on whether to debate the issue or not. Finally it led to
voting and the majority did not want to debate the issue.
The last one perhaps we can say, some people say that parliament is an important part of our dispute resolution
mechanisms. If you have a problem, one of the best people to help is your Member of Parliament. If you want to
bring a complaint to the attention of the government, parliament individually and collectively is an important
institution to see to that.
The language policy for parliament is important, it is provided for in our constitution that for a person to qualify as
a Member of Parliament, he has to be a person who is competent in the English language. The idea was that our
Parliament will equip itself with the necessary machinery and staff.
Part 1 of article 92 provides that –there shall be a parliament. That parliament is to be made up of at least 104
members but there is no upper limit.
Two things from the evolution story, it can also be observed –the speaker is not a member of parliament. The
deputy speakers could be members of parliament but the speaker is not. Secondly, the president is also not a
member of parliament.
In the course of development of our National Constitution, Parliament has had itself interrupted several times. It
has been the institution for the people’s quest for representation and accountability.
The legislative has limited power as its acts are subject to the constitution.
Article 94 talks of qualifications to be Member of Parliament. Clauses 1 and 2 deals with qualification issues and
clause 3 deals with eligibility issues. The thing that will render you unqualified in parliament is permanent forever
but that which can make you ineligible is temporary. For example the provision about chief is eligibility. Hence you
can abdicate your stool to become eligible. Also you must be a citizen of Ghana. With this there is nothing you can
do about it as well as you must be 21 years of age and so if you are not of age say you are 19 , you have to wait till
you are of age thus 21.It does not say you should be a citizen by birth but rather be a Ghanaian. This means that
what is required here is one who is a Ghanaian, whichever way you obtained this citizenship is not in controversy
but what is relevant is for you to be a Ghanaian which can be obtained by birth, naturalization or other means of
obtaining citizenship. And it also says you must be a registered voter. Act 527 makes it possible for our people to
have multiple nationality. Before Act 527, our law provided only for Ghanaian nationality.
Under 94(1) (b) the person must have resided there for at least 10 years to qualify. The person must also pay his
taxes. A person with dual citizenship cannot be a Member of Parliament. Under clause 2(b) a person adjudged or
declared to be of unsound mind or bankrupt under any law in Ghana is not qualified. The new element which has
been added is a person who has acted in a manner which is prejudicial to the state
Article 94(5) makes it possible for people who are disqualified under 2c to be eligible to become a Member of
Parliament if ten years have passed before the end of the sentence or the person has obtained pardon.
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In accordance with article 95 although the speaker must be a person who has qualification to be a member of
parliament, he is not a member of parliament, he has no vote either original or customary. Generally speaking if
there is a draw, the presiding person has no casting vote or original vote. Voting for his election or for his removal
is done by a secret ballot. He is the embodiment of the legislature and if you want to challenge a decision of
parliament then the speaker is the person to sue.
Article 97 talks about the loss of office of a member of parliament. A member of parliament can lose his seat by the
dissolution of parliament, election as speaker of parliament or absent without permission and reasonable
explanation from fifteen sittings
Decision making in parliament
Quorum
The normal quorum is in article 102 and it should be one-third of the members. One – third is all you need for a
quorum. For actual decision making, it should be half of the members. Once they have one-third they can start their
business. They can do their talk but if they want to make a decision then they need 50% thus half of the number. If
the number falls below one-third, they cannot have business. Once they have the quorum it doesn’t matter when the
number becomes less in the course of the business unless somebody raise it up. Once they have 50%, the decision
will be valid by a simple majority.
The Constitution provides for election petition. So election results can only be challenged by petition not by writ.
Article 99 says it should be filed within 21 days from the publication of the results. The jurisdiction will lie in the
High Court. In the case of the President it is also 21 days but this is from the date of the declaration of the results.
One of the responsibilities of our parliament is to keep watch of the executive. As found in Article 103. There are
also some committees, the standing committee which cover one ministry or a number of ministries.
The procedure to lawmaking is contained in article 106. The power to make laws is to be exercised by bills and
assented to by the president. The bill must be accompanied by an explanatory memorandum. The constitution
requires that the memorandum should explain the state of the law at the time and the benefit. So if you introduce
the bill without an explanatory memorandum it will not be processed. The bill goes through three stages:
The first reading. The constitution says after the first reading the bill must be submitted to the appropriate quarters
to consider and make the report to parliament
Secondly is where parliament examines in detail section by section and where amendments were proposed, those
not part could also participate.
The introduction of the bill is very formal. When the bill is introduced in committee, it must not stay there for more
than 3 months. When the bill is passed by parliament for the president to assent to, the president has the choice to
sign it within seven days or state his refusal in accordance with article 106.
The third option is where the bill is returned to parliament by the president
Article 107 present us with matters on which Parliament is prohibited. So Parliament cannot change the decision in
any court and Parliament cannot make retrospective legislation unless on financial matters. 107 is related to 108,
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which is a reenactment in the Guggisberg Constitution where only the governor could introduce legislation on
financial matters thus any bill concerning financial matters cannot be passed by parliament unless introduced by
the President.
Clause 2 of the article states that if in the opinion of the person presiding, the bill does not achieve what the action
is about, then it needs not be introduced by the President or the members of Parliament.
The duration of parliament is four years from its first sitting, however this can be extended in times of war by the
passing of a resolution with at least 2/3 majority vote. However, the extension may not exceed four years.
Article 115 provides the privileges and immunities parliament enjoys. There is freedom of speech and debate.
Court processes cannot be served on a Member of Parliament, a Clerk or Speaker when he is on his way to
Parliament in accordance with article 117.
In article 119, parliamentarians, Speaker and the Clark are excused from jury service.
Articles 120 and 121 offers protection to the media of their reports in Parliament as long as the report is an accurate
one.
Articles 122 and 123 are intended to enable Parliament to retain its dignity. 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.
The decision in WARE V. OFFORI ATTA is reproduced in article 106, so if the bill affects the function of a chief,
then parliament cannot consider that bill unless referred to the house of chiefs.
Under article 112, 15% of the number can petition the speaker to convey a meeting.
Clause 5 of 181 requires agreements relating to international al transaction requires Parliamentary approval. Look
at the decision in ATTORNEY GENERAL V. BALCON ENERGY
Under article 210 clause 2, nobody can establish Armed forces in Ghana without parliamentary approval.
KUENYEHIA AND OTHERS v ARCHER AND OTHERS
On 23 and February 1993 the Chief Justice administered the oath of allegiance and the judicial oath to justices of
the Supreme Court and the Court of Appeal respectively who continued in office after the coming into force of the
Constitution, 1992. Subsequently the plaintiffs, all high officers of the Ghana Bar Association acting upon the
mandate of the association, filed suit in the Supreme Court for declarations inter alia that by the combined effect of
article 156(1), (2) and (3), section 4 of the Schedule I and Schedule II of the Constitution, 1992, the President was
the proper person to administer the oath of allegiance and judicial oath to judges of the superior courts who
continued in office after the coming into force of the Constitution, 1992 and that the purported administration of
the oaths to those justices by the Chief Justice was null and void.
MAJORITY HOLDING PER FRANCOIS JSC
The constitution as it stands must not be interpreted by a narrow point of view as seen in the case of tuffuor v.
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attorney general. It must be interpreted with a broad and a liberal spirit. In its interpretation what is not recorded in
the article must not be imputed there. The constitution would have stated explicitly if the article 156 affected
judges who were continuing in force as well. It is clear on the face of it that it only affected the freshly inducted
judges, thus the defendant cannot be said to have contravened that article. Their validity stems from section 4 of
the transitional provisions. From the oaths decree, NRCD 6, judges upon the coming into force were not to be
sworn into office as was done under the 1992 constitution thus if this provision is to be fully relied upon then the
judges were not to be sworn into power at all since they have sworn the oath already. However section 25 of the
transitional provisions allows it to be construed with such modifications and amendments and in line with the
constitution. Section 4 stresses on the swearing in of the judges and the question are who swears them? Since it has
been established that the validity of these judges are not from article 156, and section also does not provide who
should swear them in, then a recourse is made to the OATH’S DECREE. This decree allows the chief justice in
swearing in justices. The second schedule which involves the oath allows that it shall be sworn by the president, the
chief justice and any other person designated by him. This provision cannot be described as a mere footnote.
Article 57(3) and 60(5) allows the president and the vice president to be sworn in and the person who swears them
in is provided under the presidential and the vice presidential oaths respectively. These are adhered to without
saying that there are merely footnotes, thus the footnotes bits must be discarded. Since the constitution allows that
power to be delegated, and there is evidence that the president delegated that power, then the CHIEF JUSTICE did
not act unconstitutional at all.
DISSENTING OPINION BY ADADE JSC
The chief justice under article 156 had the power to only swear into power, those in (3)(b). The constitution
expressly gives him the power to do so or to designate the power to those specified in the provision such as the
JUSTICES of the superior courts. Thus per the constitution the powers of the president in 3(a) cannot be designated
to the chief justice and the chief justice cannot make the president perform his functions under 3(b). The defendants
argued that 156 relates to new justices and judges since it states that, upon coming into office and that these judges
were old and SECTION 4 of the transitional provisions is to be applied and that provision did not state who should
swear them in thus a resort to the OATH DECREE, NRCD 6. The learned judge held that that was erroneous since
the transitional provisions are in line with the constitution. The use of the words shall be deemed or as if, are legal
fictions and these make us call what is not as though it is. The position of the article assures us that it must be
assumed that these justices have through the procedure laid down in article 144 and 156. The SUBSECTION 2 of
the transitional provision adds that as all these have been done, there must be a swearing in. since it is deemed, they
have gone through the whole process as laid down in the constitution then they must be sworn in, as in accordance
with the constitution. Thus the CJ has no power in swearing in the JUSTICES of the superior courts of judicature.
The NRCD 6 cannot aid the defendants since from section 25 of the transitional provisions, the OATH DECREE
must be read in accordance with the constitution. If it will be employed then it must be subject to the constitution.
The decree provided that the oath doesn’t apply to those already sitting as judges, but in applying this to the
constitution, you will realize that it will contradict. Thus the reading of it with the constitution will take us back to
article 156. The judge also held that from the reading of article 144 and 153, you will realize that it is the president
who appoints the JUSTICES OF THE SUPERIOR COURT OF JUDICATURE and the chief justice appoints the
others, thus we may presume that he who appoints, INDUCTS INTO OFFICE!
The invoking of article 297, cannot favor the defendants since in article 297, a person who succeeds a person in an
office continues to perform the functions of the fellow. The CHIEF JUSTICE has in no way succeeded the
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president thus it cannot be held that he should perform the functions of the president. It must be noted however that
from the reading of articles 60(1)(6)(8)(11), the vice president or the speaker of the parliament may perform the
functions of swearing in the JUSTICES under peculiar situations and not the CHIEF JUSTICE.
NEW PATRIOTIC PARTY v THE ELECTORAL COMMISSION
Before the Constitution, 1992 came into effect there were in existence district assemblies which had been
established under the provisions of the Local Government Law, 1988 (PNDCL 207). That Law had subsequently
been amended by the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) which extended the term
of the assemblies from three to four years. A later Law, the Local (Government (Amendment) Law, 1993 (PNDCL
306) had empowered the district assemblies to continue in existence until such time as new assembly members
were elected. However, article 242 of the Constitution, 1992 provided for the creation of district assemblies under
the Constitution and article 243 empowered those district assemblies to elect district chief executives for the
district assemblies. At a time when the district assemblies had not been elected under article 242 of the
Constitution, 1992 the Electoral Commission directed the existing district assemblies to hold elections in order to
elect district chief executives for each district assembly in accordance with article 243 of the Constitution, 1992.
The plaintiff, a registered political party, then brought an action against the Electoral Commission and the
Attorney-General for a declaration that the proposed election of district chief executives was illegal and a
contravention of the Constitution, 1992 and sought an injunction to restrain the conduct of the election. In support
of its action the plaintiff contended that since the assemblies provided for by article 242 of the Constitution, 1992
were different entities in their character, composition and terms from those established under PNDCL 207, the
intended election was a violation of the letter and spirit of the Constitution, 1992 and therefore unconstitutional,
illegal and unenforceable.
However, in their defence and in support of the proposed election the defendants contended that (a) the combined
effect of PNDCL 306, article 11(4) and section 31(2) of the transitional provisions of the Constitution, 1992 was to
make the assemblies in existence before the coming into force of the Constitution, 1992 continue in existence with
the powers and functions envisaged under the Constitution, 1992 until elections were held under article 242, and (b)
since the plaintiff had not made any effort to prevent the district assemblies from electing their representatives to
the Council of State under article 89(2)(c) of the Constitution, 1992 it was estopped by inaction and acquiescence
from challenging the competence of the existing district assemblies to elect district chief executives under article
243 of the Constitution, 1992.
Held-
1. By virtue of the provisions of article 11(4) of the Constitution, 1992 the Local Government Law, 1988
(PNDCL 207), the Local Government (Amendment) (No 3) Law, 1992 (PNDCL 272) and the Local
Government (Amendment) Law, 1993 (PNDCL 306) all formed part of the existing law. Thus as provided
by PNDCL 306, until new assemblymen were elected under article 242 of the Constitution, 1992, the
members of the district assemblies at the time the Constitution came into operation continued as
assemblymen to perform the functions which had been clearly spelt out in section 6 of PNDCL 207.
However, under PNDCL 207, the district assemblies were not empowered to approve candidates for
appointment district chief executives to be appointed under the Constitution, 1992. Furthermore, the district
assemblies established under PNDCL 207 were completely different bodies and entities from the district
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assemblies to be established in the future under article 242 of the Constitution, 1992. Accordingly, the
district assemblies as presently constituted could not take a decision on a matter specially reserved for the
differently constituted district assemblies envisaged under article 242 of the Constitution, 1992. In the
circumstances the district assemblies established under PNDCL 207 were not competent to hold elections
for the purpose of approving candidates for appointment to the office of district chief executives.
Accordingly, the conduct of the Electoral Commission in attempting to hold elections in the district
assemblies as presently constituted for the purpose of approving candidates for appointment as district chief
executives was contrary to the letter and spirit of the Constitution, 1992 and was unlawful and
unconstitutional.
2. Article 2(1) of the Constitution, 1992 empowered every citizen to bring an action to enforce any
infringement of any provision of the Constitution, 1992. Accordingly, if the failure of a citizen to bring an
action in the Supreme Court when a particular provision of the Constitution was violated could constitute an
estoppel against that citizen and every other citizen in bringing an action in respect of any subsequent
violation of that provision or another related provision of the Constitution, estoppel would have been
allowed to operate as a shield to prevent citizens from ventilating and enforcing their constitutional rights
under article 2(1) of the Constitution, 1992. The equitable defences of acquiescence, inaction or conduct
therefore had no place when it came to the interpretation and enforcement of the Constitution, 1992.
Accordingly, the failure of the plaintiff to question the propriety of the action of the district assemblies
established under PNDCL 207 in electing representatives to the Council of State under article 89(2)(c) of
the Constitution, 1992 could not prevent the plaintiff from seeking in the court the correct interpretation and
enforcement of the provisions of the Constitution, 1992 which related to the district assemblies. The
unlawful conduct of the Electoral Commission could therefore not be validated by the equitable doctrine of
estoppel.
BILSON v. ATTORNEY-GENERAL
The plaintiff brought an action against the Attorney-General for, inter alia, a declaration that section 34 of the
transitional provisions of the Constitution, 1992 which had granted indemnity from liability and prosecution for all
the legislative, executive and judicial acts and omissions done by and under the authority of the military regimes
which overthrew the elected governments of the First, Second and Third Republics of Ghana and suspended and/or
abrogated the Constitutions of 1960, 1969 and 1979 was unconstitutional and unlawful because it infringed the
fundamental rights of all persons in Ghana to seek redress before the courts for their grievances.
The AG argued that the plaintiff does not have a cause of action as none of his rights have been infringed.
Held- the Supreme Court had jurisdiction to interpret the provisions of the Constitution, 1992 in the context of
disputes. It had no jurisdiction to tender advice to prospective litigants. Accordingly, the plaintiff could only seek
an interpretation of section 34 of the transitional provisions of the Constitution, 1992 if his action was against a
particular person in respect of an act or omission of that person, and that person had for his defence sought shelter
under section 34. It was only under those circumstances that it would be profitable for the court to determine
whether the defendant or his act or omission was covered by section 34 of the transitional provisions of the
Constitution, 1992. Since on the pleadings, the plaintiff was seeking a declaration in a vacuum, his writ had not
disclosed any cause of action. Accordingly, it would be dismissed.
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ROSEMARY EKWAM V. KWAME PIANIM
The defendant, a founding member of NPP had been slated to contest the party’s impending election. The plaintiff,
an NPP member, contended that the defendant had been convicted by a public tribunal of the offence of preparing
to overthrow the PNDC Government in 1982 contrary to Public Tribunal Law, 1982 (PNDCL 24). She brought an
action in the Supreme Court for a declaration that the defendant’s action constituted an offence intending to disrupt
the peace and security of the State.
Held- the defendant was disqualified from standing for the election for the office of the President under Article
94(2)c(i) of the 1992 Constitution for the reasons that acts aimed at overthrowing the government of a state were
necessarily aimed at endangering the security of that state. Consequently, the defendant’s conviction by the Public
Tribunal constituted an offence involving the security of the state under Article 94(2)c(i) of the 1992 Constitution.
CITIZENSHIP
We can assume the question who is a national of any country is for many people in that country the most important
question. There are many benefits that come with being a national as well as disadvantages that come with not
being a national and for that reason many countries try to make this part of their law as simple and possible. With
the national and those public agencies whose work depends on separating nationals from non nationals . for
example has to do is, if in this country you start working at the lands commission and as document for legislation
appearing to a conveyance of an interest in land and it has to do with a lease hold, it will have to do whether the
proposed lessee is a national or not a national. According to the constitution non national s can hold up to 15 years
interest in land and not beyond . However if a person is a national , their interest is any and if a leasehold, 50 years
it can be of any position..
So you as the official working at this department, one will not think your business has to do with nationality
Starting from chapter 3 article 6. Clause 1 says every person who on the coming into force of this constitution is a
citizen of Ghana by la0w shall continue to be a citizen of Ghana. So the constitution has the period up to the
coming to force of the constitution and the period after . these were 7 January 1993 whether after or before . note
that the critical thing therefore is either on that day by law you were a citizen of Ghana. This is an area of our
national constitution where legislation is never dead. Legislation once repealed becomes deadlock but for
nationality as clause 1 says it isn’t.
Secondly, the clause doesn’t tell us anything about what class of citizenship will be and as our laws provide for
categories of citizenship before, we have to assume that clause 1 just retains whatever category of citizen we had
by that date.
The people who were born after 7 January 1993 are provided for by clause 2 of article 6 . clause 2 doesn’t say they
are Ghanaian but says subject to the provision of this constitution…….it adds something which says at the point of
your birth you become a citizen if one of your parents or grandparents was a citizen of Ghana. Critical point is if
one of your parents or grandparents is or was a citizen of Ghana. So you have to find out your parentage and if that
does not help you then you go down to your grandparents and if that fails then under our law you are not a
Ghanaian. Basically, if you are more than two years s old then may be article 6 of the constitution doesn’t help you
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you must also note the tendency to assume that citizenship is a matter of law but this might probably be incorrect as
ours has something to do with history, geography it has something to do with ethnicity so the fact that we were
former British colony would have been an important consideration in the determination of whether we are
Ghanaian and our relationship; with the status we would have had under British colonial law may have determine
our …an observable fact of our geographical existence as a nation is that the boundaries of Ghana sometimes cut
through ethnic communities. Example some Moshi are inside the boundary of Ghana and others are inside that of
Burkina Faso. The one inside the Ghana boundary belong to the northern protectorate and the one outside it belongs
to the French colony so the fact that the person is a Moshi by itself will not make that person a Ghanaian.
Kokumba also is divided into the republic of Togo and that of Ghana so the fact that the person is a kokumba does
not mean the person is a Ghanaian.
The length of your stay in our country has no bearing of whether you are a national or not. Apart from this we are
also members of the commonwealth , a body that brings together the colony of great British. So the citizen of any
commonwealth country in 1961 is a citizen of Ghana. So that’s why the enforcement of the aliens Act might have
made a good number of them show that they were Ghanaian. Since independence , in the context of our law , no
attorney general has been able to apply a nationality law correctly.
Partly because of our previous colonial character, for some to show that you are a Ghanaian, you have to show
especially that you were born before 6 march 1957 their parents and grandparents would have been born before 6
march 1957. You will then have to show what category of British category they were under the British nationality
law of 1948. This provided for three categories:
A citizen of the united kingdom, a colony
A British protected person
A British subject
The funny part of our nationality law is most of us often claim we are Ghanaians by birth and we are the one to be
caught by the complexity and the ones we don’t respect as of naturalization and registration, etc. might not have
problems as they only have to produce their certificate of naturalization or that of registration.
Apart from naturalization and registration , our law seems to have ..for children, . so a child under 7 years found
anywhere in Ghana of unknown parents is treated under our law as a Ghanaian by birth-6(3).
Our law also allows for persons to become Ghanaians through adoption-6(4). If you look at the law closely, the law
seems to say that if you or your parents are not Ghanaians and you are adopted by a Ghanaian then you become a
Ghanaian. I don’t see why the law should make a distinction because the assumption is that if your parent is a
Ghanaian then you are already a Ghanaian and so the adoption should not have been there.
The reason why our nationality law seems to be complex is because there are two basic principles that inform
nationality laws around the world. Most countries choose one principle or the other but we have a mixture of the
two. These are birth and descent.
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The first is the place of birth. So your nationality law is either LEX SOLI-principle of place of birth or LEX
SANGUINIS -decent…so once your parents gave birth to you in U.S then you are an American citizen. So if you
are an American citizen and not born on U.S soil you cannot be a president.
Shalabi case
Some countries base their nationality on lex sanguinis principle of descent . so it does not matter where you are
born but a descendant . In that mixture our nationality gives prior importance to descent . That is the reason why
if you are born in Ghana and your parent or grandparent has no connection ,then under our nationality law you are
not Ghanaian. Because we are a country made up of ethnic groups. sometimes for some of us we have to establish
that we have been admitted into one of the ethnic groups. That gets complicated as some are based on matrilineal
and patrilinial relationships. So for some of those ethnic communities to be considered a national will require
adoption, so if for instance your mother is an Anlo and your father is a Scottish and so you are disqualified. The
only circumstance is where your father is not known and your mother’s father or brother not too sure can adopt you.
Because the Anlo is based on clanship.
Our law accords nationality to people born out of wedlock. In some countries only the females can transmit
nationality and others only the male. Ours does not however make a distinction. In many countries, unless the
parents get married or after his death. This is what the English call bastards.
Until act 527 , the amendment to the constitution, our law did not allow dual nationality so you could not combine
the nationality of Ghana to any other the only is may be If at birth you had both, the law allows you to keep the
nationality and after attaining the age of nationality, 18 years then after a reasonable time may be after 10 years,
the law require you to renounce that nationality or you lose both. The law did not allow you to reenter the
nationality only if the other nationality by operation of law, but if you lose that nationality , then automatically you
become a Ghanaian nationality. What act 527 did was to change it small. It says a Ghanaian can hold a nationality
of another country-8(1) amended. Thus it opens for a Ghanaian to have multiple nationality. This law has however
been understood.
Our law also ,….so as one is born in an aircraft , you become a citizen of that country the air craft is heading
towards.
For the current law , chapter 3 as amended by act 527, and act 591, the citizenship act 2000, act 591. Note from the
long title of Act 591. The short title is the citizenship act and the long title is: an act to consolidate with the
amendments the law relating to citizenship of Ghana; to state in respect of citizenship by birth the legal conditions
applicable at the given points in time; to bring the law in conformity with the Constitution as amended and to
provide for related matters.
Section 2 of the act says for ease of ascertaining the law on Ghanaian citizenship by birth , the applicable
provisions are in this part restated……it is to let us know that parliament is not saying that act 591 is a refreshing
but it is a restatement of the law. For that purpose, act 591 constitute the current law.
note the following pieces in relation to who is a citizen, the Ghana nationality and citizenship act 1957, the Ghana
nationality Act of 1961 act 62 , Ghana Nationality Act 1967 NLCD 911, decree Ghana Nationality amendment
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decree NLC decree 33 ,Ghana nationality Act 1971 act 361, Ghana nationality amendment decree134, provisional
national defence council establishment proclamation law PNDC law 42 especially section 54 of paragraph 41 not
too sure
Chapter 3 of PNDCL 42 . subsection 2 of section 24 –a reference in this act to Ghana in relation to the birth of
residence before 6 march 1957 shall be …as a reference to the territory, parliament recognized that the concept of
Ghana is very recent. It is saying that this is by reference to the place of your birth if the birth occurs before the 6 of
march 1957.this creates complexity because they know that the geographical space of Ghana was not complete till
1956 of the plebiscite, the gold coast colony is a settled colony and Ashanti was by conquest. So if you say for
purposes of nationality reference to Ghana depend on the part of Ghana .. then you create a problem-note the
practical implication of this sub section; and subsection 3 of section 24 for your interest as well
SECTION 3 OF ACT 591
The act has put together all the provisions in the existing law which has been repealed by this act and merely
restatement. In the restatement, the act provides the law in time frames revolving around our constitution since
independence.
Section 3(1) SAYs a person born before 6 march is a citizen of Ghana by birth. The constitution talks only about
citizen but the act is precise by stating that by birth. So the act provides for all types of citizens:
Birth
Naturalization
Registration
Adoption
OF these four, the law clearly is that citizen by birth and adoption is the most important. Thus it cannot be taken
away from you. But with registration or naturalization it can be taking away from you for instance if you acquired
it through fraud.
Section 3 provides separate rules for those born in Ghana and those outside Ghana. So if you are born in Ghana and
at least one of your parents or grandparents was also born in Ghana then you are a Ghanaian by birth.
The difference between section 3 (a) and b is that: Whereas a person born in Ghana before 6 march can become a
Ghanaian by either one of the parent being a Ghanaian or the grandparent, the person who is not born in Ghana is
not same in that, with that person, it is only one of the parent who has to be a citizen of Ghana and not the
grandparent as well.
Ghana is defined in section 24(2) that : the territories comprised in Ghana on that day ( before 6 march 1957)
Section 3 also says , generally speaking the determination of a person’s citizenship is determined on the point of
birth so if you were born before 6 march 1957 outside Ghana and one of your parents was born in Ghana you are a
Ghanaian by birth or if you were born before 6 March 1957 in Ghana and at least one of your parents or
grandparents was born in Ghana, you also a citizen by birth.
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SECTION 4
Section 4 is addressing the people who were born between 6 march 1957 and the coming into force of the 1969
constitoin. so if you were born on or after 6 march 1957, and before the 22nd of august 1969, you are a citizen
whether born in or outside Ghana if either of your parents and also one at least of your grandparents or great -
grandparents was born in Ghana. This will help you if your parents do not make it possible for you , you can call on
your grandparents and if not great grandparents. This however is so if one of your parents or grandparents are
Ghanaians.
You are a citizen if you are born between 6 march 1957 and 22nd august 69. If you were born in Ghana then you
see that hence those born outside are not part.
It tries to explain that a person is not a citizen of Ghana for the purposes of sub section 1 of this section if at the
time of your birth your parents, grandparents or great-grandparents through whom the citizenship is claimed has
lost his citizenship ….it means that if you were born between , and one of your parents or grandparent was born in
Ghana but just before your birth they change their nationality , then you do not become a citizen of Ghana.
Section 4 (3) a . and b. are dealing with the children of registered and naturalized Ghanaians. So if you were born
between 6 march 1957 and 22nd august 69 and one of your parents is a citizen of Ghana by registered or naturalized
then you are a citizen of Ghana . though your parents may be deprived of their nationality you cannot be deprived
because at this circumstance you are a citizen by birth. If you are born outside both parents must be registered or
naturalized unlike if you were born inside Ghana where you will need only one of your parents. If you were born
outside Ghana and one of your parents is a citizen by birth and the other by registered then you are a citizen by
birth. One who is born outside Ghana must behave both parents being registered or naturalized.
If the issue of discriminatory arise , the article 17.
SECTION 5: If you were born on or after 22nd august 1969 and before 24th September 79, and at that date either of
your parents was a citizen of Ghana, then you are a citizen of Ghana. This does not distinguish the type of citizen
of the parent, thus whether by birth or by naturalization. Hence all you need is that one of your parents should be a
citizen of Ghana.
Section 6 : those born between the third republican constitution and the commencement date of the fourth
republican constitution, thus persons born on or after 24 September 1979. If you were born in Ghana and at the time
either of your parents or grandparents is a citizen of Ghana. Here too there is no type of citizenship stated. or if you
were born outside Ghana and either of your parents is a citizen. Here the only thing you will lose is that your
grandparents is not part.
Section 7: this is talking about those born on or after 7 January 1993-Constitution 1992. provided that at the time of
their birth either of their parents or grandparents was a citizen of Ghana, then such a person is a citizen by birth.
SECTION 8: the law calls them as FONDLINGS . thus persons under the age of 7 who are found in Ghana and
whose parents are not known are presumed to be a citizen of Ghana by birth.
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SECTION 9 : to qualify for the nationality to adoption , so if you are not more than 16 years and your parents are
not Ghanaians and you are adopted by a Ghanaian then you are a citizen.
SECTION 10 ,11 AND 12: provides for citizenship by registration .there are two ways
The president is supposed to write a list of countries which shall be called approved countries. So if you come from
one of those countries then you can apply to be registered as a Ghanaian if you satisfy the condition that : you are a
person of good character , that you are an ordinary resident in Ghana, and that you are a resident for a period of 5
years , and you can speak and understand and indigenous language of Ghana , the earlier was that you can speak
and understand a Ghanaian language and there was dispute as to whether English was one.
The second possibility is through marriage. so if you are a non-Ghanaian and you marry a Ghanaian then you
become a citizen . But if the minster suspects that the marriage was because of the acquisition of citizenship then
the citizenship may be renounced.
The commencement date of the nationality by registration and the commencement date of nationality by
naturalization is the date on which the person takes the oath. The commencement date is the date which is
supposed to be stated in the certificate and this was changed from the time Captan v. Ag was decided since at that
time the commencement date was the date the certificate was handed-section 12
The qualification for naturalization is contained in subsection 1 of section 14
You must be in Ghana for a period of 7 years
For the 7 years you must have lived in Ghana for a cumulative period of 5 years
Evidence that you have not been sentence
You are able to speak and understand an indigenous language….it does not say you are able to write
You should be a person who has made or capable of making a substantial contribution to the progress or
advancement in any area of national activity
You must have been assimilated in the Ghanaian way of life
You have decided to reside in Ghana permanently
You possess a valid residence permit
What is in 14(3) are the requirement relating to language which the minister cannot waive it
SECTIO N16 is about dual citizenship..: A citizen of Ghana may hold the citizenship of any other country in
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addition to his citizenship of Ghana…this is from act 527 , the amendment , so since from 2001 ,you can hold
another citizenship
16(3,4 and 5) : tells us something about the situation at the point in time when others did not allow dual nationality,
so if you lost your nationality by the acquisition of the citizenship of another country but if you are a Ghanaian and
acquire the nationality of another country then you must register with the minister of interior
SECTION 17: the law allows you to give up your Ghanaian nationality. Some countries do not allow this if you
acquire the nationality of another country through marriage and that marriage is dissolved you retain the nationality
of the country. However if the marriage is annulled you lose it since in law where marriage is annulled , then it is
deemed to have never took place. For purposes of nationality dissolution is assumed that the marriage was validly
acquired but annulment is different.
SECTION 18: talks about loss of citizenship. This only applies to Ghanaians by naturalization or registration. It is
at the instance of the attorney general. He is the one who tells the authority to bring an application before the high
court for you to be stripped off. If your activities are inimical to the security of the State or prejudicial to the public
morality or public interest or the citizenship was obtained by fraud, misrepresentation or any other improper or
irregular practice.
Subsection 4 of section 24 , the age of majority is 18 for nationality.
C.E.K KUMADO-WHO IS A GHANAIAN (BRIEF)
Our open door policy towards dark-skinned people has in part contributed to the lack of interest in ascertaining who
a Ghanaian is. The question has to be dealt with because of the new voters registration exercise.
Our citizenship laws suggested by some people as a legal matter is not so. It is a mixture of history and law. Thus a
person has to research into our statute laws as well as our history books with some amount of geographic work.
Three categories of citizen are provided for by our nationality law
Citizenship by birth
Citizenship by naturalization and
Citizenship by registration
Any child under seven found anywhere in Ghana of unknown parents is presumed by our law to be a citizen of
Ghana by birth.
Our laws accord citizenship to adopted children . Though citizenship by birth is the most secure of the categories, it
is easier for those who acquired citizenship by naturalization or registration since they just have to produce the
naturalization or registration certificate.
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The first thing to note is that , most countries base citizenship on either birth or descent . Ours is a mixture of both.
Thus the fact that a person is born in or outside Ghana does not determine whether he is a Ghanaian.
Secondly, the concept of Ghanaian is a recent development though the process by which our various ethnic groups
were brought together to form one unitary state began in the seventeenth century. So it must be that one is a
Ghanaian because the person is a Ga, Asante, etc . it follows prima facie that anyone who is Yoruba whether he was
born here or lived here for whatever length of time is not a Ghanaian.
Thirdly, our citizenship laws have been affected by the fact that we were once a British colony since we have to
establish the claim that our parents or grandparents were Ghanaian and this is so if we can prove that the people
through whom we are claiming have some British connection . thus to show that such a person was a citizen , you
have to go back to the English legislation namely , the British Nationality Act of 1948 to find out whether a
person was a citizen of the U.K. and colonies , a British protected person or a British subject. Further with people
born in 1919 , it may be necessary to consult the common law rules on nationality .
The result is that a Moshie whose parents hailed from the French section of Moshie-land (i.e. Upper Volta) is
presumptively an alien ; similarly , an Ewe whose parents hail from the French section of Ewe-land(i.e Togo) is
presumptively an alien. Thus the fact that you belong to a tribe which straddles both modern Ghana and another
country does not mean that you are a Ghanaian.
Fourthly, our law accords citizenship to children born out of wedlock if either parent is a Ghanaian. In some
countries however, it is only the female parent that can transmit the citizenship. the male cannot unless he marries
the mother . eg.Q, a Ghanaian woman gives birth out of wedlock to X. but the father is a Sri Lankan Engineer
working in Ghana. X is a Ghanaian at birth and vice versa. Note however that if under Sri Lankan law , X is also a
citizen of Sri Lankan, then he can only remain Ghanaian if when he is 21 years old, he renounces the Sri Lankan
citizenship. So a lot of bastards posing themselves as Ghanaians are not .
Fifthly, the law allows men and women married to Ghanaians to be registered as Ghanaians . The only difference is
that the case of a man married to a Ghanaian woman, the marriage must have existed for 5 years before the
application for registration , and must have been contracted under a monogamous system of marriage . this citizen
(both husband and wife) loses the citizenship when the marriage is dissolved .
Our law also permits citizenship by naturalization if certain conditions are satisfied.
COMMISSIONS AND COMMITTEES OF ENQUIRY
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Commission of enquiry is a mechanism under our constitution for investigation any matter of public interest .
⦁ Commission of enquiry should be distinguished from department of enquiry
Commission of enquiry is used in matters of national interest and government by some legislation before
independence. Before independence it was regulated by the Commission of Enquiry Act CAP 249 which gave the
governor General the power to appoint commission of enquiry in any matter. an example is the Gawa commission
: Gawa was an international expert on company law appointed to examine the law and practice operating in Ghana
with the view to make recommendation to make it flexible in Ghana , and brought a report which was accepted
generally as the most competent commentary on the act (Company act). Essentially we can say that commission
of enquiry or committee of enquiry is a fact finding body put in place to inquire in to some matter which is
determined to be beneficial to the public interest or public welfare . In the beginning , they were ad hoc and
sometimes looked like the permanent one’s like the Anini’s Commission of bribery and corruption , we never
finished , the chairman died and so the committee also died.
It was given heighten attention by the passage in 1964 of two pieces of legislation
⦁ Act 230: Corrupt Practices and prevention act 1962 together with its pieces of ..LI 571
⦁ Act 250: Commission of Enquiry Act 1954
Under Act 230 , the committee was required to independently report to the appointing authority , this was normally
the president. They were also required to submit a copy of the report independently to the attorney general and
anyone it made adverse findings against. The submission to the attorney general is t o enable the a f to determine
wither it is in the public interest to prosecute . if he decided to prosecute , then the report of the commission
operated as prima facie evidence of the case of the offence. What it means is that the act treated the findings in the
report as if in a normal criminal trial . the prosecution has completed its case against you and you have made a
submission of no case which has been turned down by the court . this drastic outcome undermines an important
constitutional principle , namely nobody is accused before the enquiry . and anyone who appears is as a witness. So
it was a drastic curtailment to people’s rights to fair trial . people therefore started taking the business of the
commission or committee of enquiry far more serious. The high court is not allowed to question the report which
was a prima facie evidence the only business of the court was to proceed to sentence you . and on conviction you
will be given a minimum sentence of 3 years. Akainya v. republic : akainya was a high court judge accused of
corrupt practices ,republic v. Asafu – Adjaye .
Then came our first coup when the commission mechanism began to be used , or was put for the first time to
another kind of rules to investigate key officials of the government which has been overthrown with a view to
finding either that they acquired assets which could not be financed form their own legitimate sources of income
and in some way to legitimize the coup. after the first coup the mechanism used entered into a different dimension.
For that reason the rights of the persons who appeared before the commission did not count because the
commission mechanism itself did not adhere to a fair trial because the commission was not a trial since everybody
who appeared was as a witness to help the commission to unearth its findings.
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Since 1969, there was an additional consequence that if the commission made adverse findings against you, then
you were disqualified from participating in the political arena. Nobody wanted to appear before the commission.
However it did not change the following:
⦁ That the commission of inquiry is not part of our judicial system, it was not a court
⦁ It did not exercise judicial power , although for it to effectively investigate what it is expected to do, some
of the powers of investigation , are extended to a commission of enquiry
⦁ It does not make final findings and authoritative decisions
⦁ It finds facts and makes recommendations to the appointment authority
⦁ The appointment authority could reject the recommendations.
Historically, when it is a sole commissioner, the person has been a lawyer and if it is a panel, then the person is a
judge. It is conducted as if it is a trial.
Out v. Kwapong, the high court in this case said that in the circumstances in which they found themselves, they
were right to remain silent.
One of the most important safeguard in our criminal trial is not to deny people the right to say anything. In theory,
the answer you give will not be used against you.
Our constitution framers agitate overtime about how to use the mechanism without some of the acceptable
consequences . our current constitutional arrangement has benefited from the provisions of 69 and 79 and can be
found in article 278 , chapter 22 of 1992 constitution. Some of the matters were played our not so long ago , in the
Ghana at 50 enquiry chaired by an appeal court judge to investigate the worth of the people. Ghana at 50
instrument appointed a commission of enquiry .
In the constitution there is a rule of court committee : to prepare and formulate rules for procedure before
constitution of enquiry
THE PROVISIONS IN ARTICLE 278 AND 279 CAN BE SUMMARISED AS FOLLOWS
⦁ The power to set up a committee of inquiry or commission of inquiry is vested in the president.
There are three circumstances in which the president may set up a commission of inquiry:
⦁ When he concludes that it is in the public interest
⦁ If the request comes from council of state or the council of state advices the president that the commission
be appointed to investigate some matter
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⦁ Where parliament by resolution requires investigation into some matter.
Article 259 defines a commission of inquiry as including a committee of inquiry . this clarification is rooted in our
constitutional history. After the disqualification of K A Gbedemah , the main parties PP ,and NAL (led by K A
Gbedemah) . the NAL found their leader disqualified from parliament so they were also finding people in the PP to
be disqualified. They found Bossman . the court of appeal which was at time performing the function of the
supreme court , said that you were disqualified if there were adverse findings by a commission of inquiry and not a
committee of inquiry. Read Bossman v. ….in G& G.
The commission according to the constitution can be made up of a sole commissioner or two or more persons. To
be qualified to be appointed by the president,
⦁ You must be a justice of the superior court of judicature: high court 10 years, 12 years court of appeal ,
supreme court 15 years. Or formal justice. you must be of good character
⦁ Or you must have special qualification or knowledge in the subject matter. For instance if it involves an
accounting issue , then a charted accountant will be right to be appointed
The commission of enquiry has powers of the high court in certain areas. it does not imply that the commission is a
high court. The commissioner(s) have the same constitutional immunities as the judges have under our constitution.
The obligation of the commission is to make a full and impartial report. it must be also report in writing and also it
must support the conclusions that it arises at and the recommendations based on this conclusions with reasons. It
must be noted that what happens to the report is what the appointing authority chooses to do. The authority or
president can choose to accept it wholly, partially or even reject it. There is no finality in the report and its report
does not even bind the authority . however if adverse findings are made against to the commission of inquiry, ( in
the Gbedemah case that you have no right of appeal, this what influenced Azu Crabbe in his dissenting Judgment in
Awoonor v. Gbedemah- Contribution of Awoonor Williams and gbedemah to the Constitution making in Ghana.)
In the constitution if adverse findings air made against you, and the constitution says the adverse finding is to be
taken as a judgment of the high court, the constitution gives you a right of appeal to the court of appeal.
Functions of the commission
Article 280.
⦁ Make a full , faithful and impartial inquiry into any matter specified in the instrument of appointment
⦁ Report in writing the result of the inquiry and
⦁ Furnish in the report the reasons leading to the conclusions sated in the report.
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The report however is seen as a judgment of the high court and appeal lies to the court of appeal.
Government is required to publish a white paper within 6 months of receiving the report and if they don’t , the
president is supposed to say so and why. If it is no published within this six months ,then it means the adverse
findings cannot be used against you, because you will not have the right to appeal. …if it does , there is 3 months
within which you have to file your appeal. If though you appear before the commission as a witness, the
constitution allows you to appear with a lawyer.
The principle that Justice Archer laid down in Out and Kwapong has now been laid down in article 19 do our
current Constitution 1992. – I will not open my mouth because when I open my mouth whatever I say will be used
against me.
CIVIL PROCEEDINGS INVOLVING THE STATE
The law makes it possible for actions to be brought against the republic. The law treats itself as if it is a private
individual. The law is not exactly the same. The law is now enacted in article 293 of the Constitution and the state
proceedings act 1998, Act 555, relevant is article 88 and 125 of the constitution. The law contained here was
developed at common law .
At common law the state enjoys absolute immunity from legal process. so it was not possible to bring an action
against the state or the monarch who was the representative of the state at common law. the reasons are in two
maxims:
SUBSTANTIVE: the king or the monarch can do no wrong AND PROCEDURAL: the monarch cannot be sued in
his or her own cause . this is because the person will be presiding over his court. The effect is that the state enjoys
absolute immunity from legal process at common law .
the effect for example if you entered into a contract with the state and the state breaches, you can’t bring an action
for breach of contract . the area it hurts most was during war times.
Over time, equity arms was extended to private law and not public law remedies. Though you couldn’t sue, the
administration , an administrative reverse mechanism developed known as the petition of rights , which was based
on the fiat of the lord chancellor. So the Lord Chancellor advised the monarch whether to pay the rent in full or the
rent on petition on the advice of the contractor. This administrative redress system allowed the person with the
claim against the state to petition the state for redress the success depended on the fiat of the Lord Chancellor. So if
the lord chancellor on reading the petition puts on the petition fiat justitia –let justice be done, then it implies the
state should pay. the petitioner was known in law as suppliant(begger) and so the petitioner should know that he is
like a begger, and the lord chancellor uses fiat justitia to clear the way. One weakness of the petition of rights
process , apart from the fact that it merely say that you should be paid or makes a declaration that you should be
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paid, it didn’t bind the state. And if the lord chancellor refused, the fiat , there was no appeal. The other limitation
⦁ The mechanism was only available for contract , not tort.
⦁ The petition of rights was also available for the recovery of lands and chattels for quasi and contractual
liabilities.
HUMAN RIGHTS AND DUTIES
Human rights issues are to be treated at three levels:
⦁ International level-mechanism under the umbrella of the united nations and its
⦁ Regional arrangements –in the case of Africa under the African charter
⦁ Domestic level
Sub-regional level-interest the international , regional and sub-regional levels are merely complementary and the
basic for human rights is at the domestic level.
In human rights discourse , we have soft and hard law –the standards obtained in those instruments which have a
binding character mainly entered into by states, mostly described as conventions ,treaties ,charters-in the UN
Charter or the African Charter on Human and Peoples Rights. Those instruments establish binding standards and
laws
The soft law usually is the first stage towards maturing a standard or norm into hard law. The most famous soft law
instrument is the Universal Declaration of Human Rights. It is referred to as declarations , resolutions, principles,
recommendations.
The state generally gives treatment to the soft law principles whilst accepting that they are bound by the hard law.
Individual society mostly do not draw the distinction. They are mostly concerned with advocacy .
⦁ Universal
⦁ Inter related
⦁ Interdependence
⦁ Indivisible
In the human rights discourse there is no acceptance that some rights are not important than the others. That is why
the title in chapter 5 of the constitution …that answers the question why the constitution covers the fundamental
human rights.
Finally, in the human rights discourse there is some sort of generation of rights. This is a catchy phrase.
First generational rights
Second generational rights
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Historically human rights issues have been of interest to our constitutional arrangements since the earliest
beginning of our modern constitution. Starting g from the bond of 1844, it did not contain many elaborate
principles however two main rights; property and freedom of conscience and religion. In the language of Dicey ,
human rights was left to the function of the regular law as the protector of rights. To him constitutions are
basically political documents which contain principles of politics. The rights are legal matters. So if you want to
protect the rights it should be by the regular law: contract , etc. Diceys attitude is that that action is more effective
than any statement or principle stated in the constitution.
Attorney general v. Otu and kwapong..
In the 1960 constitution where we have clause 1 of article 13 , which appear to have departed from the previous
constitution which provide a long list of constitutionally protected rights. Re Akoto. Those did not constitute a set
of justiciable rights eventhough the president was required on assuming office…we can tell that after the overthrow
of the Nkrumah regime there were many who traced the bringing of the planning of the society by the decision in
the Akoto case . As the judicially clearly showed that they will not interfere in the executive action. Since that time
, the framers have ensured that that decision will not be given again. So the turning point is the 1969 constitution. It
supplement the protection through the regular law to protection in the constitution. In doing so the framers cannot
be accused of introducing any foreign …in the constitutional arrangement.
If you examine the grounds on which chiefs are destooled , it will be found that invariably the chiefs …so in using
the constitution to struggle the human rights protection as in the regular law the Constitution article 69.
THE 1992 CONSTIUTON
The current constitutional arrangement provide for
⦁ Individual rights- Some provisions begin with a person. Starting with article 12 which opens with chapter 5,
we find the phrase every person in Ghana…Article 13 says no person…14 says every person…etc.
These are individual rights.
⦁ Group rights.: clause 3 of article 21 all citizens shall have the rights and freedoms to form or to join
political parties and to participate in political activities….
These individual and group rights relate to civil and political rights as in Article 21 and economic and social rights
as in article 24 and 26. So the constitution provisions on rights covers the full range of rights as recognized
everywhere in contemporary society.
The preamble sets the tone about rights as contained in the constitution. The preamble paragraph identifies and also
stipulates our aspirations. So at various places it talks about , universal adult suffrage , protections of fundamental
human rights and privilege. Sometimes people are talking of human rights , civil rights as seen in America ,
liberties , constitutional rights. Basically whatever the language is the reference is to those identifiers which set us
apart as human beings in recognizing our human character. The preamble sets the tone of our rights.
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Two chapters 5 and 6 are devoted . Note that other rights are also scattered throughout the constitutional document
eg. The right to vote in article 42 and not in the two chapters..
The opening article of chapter 5 give us a number of messages :
(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 for in this Constitution.
(2) Every person in Ghana, whatever his race, place of origin, political
opinion, colour, 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.
It carries a number of messages:
⦁ The first is that the rights are guaranteed by the constitution and not granted by the constitution . so we do
not impose the rights on the constitution.
⦁ The rights so guaranteed are free and dynamic and not absolute or static. Some argue that if these rights are
the attributes or the identifying rights of human beings then they have to be absolute. This actually informs
those who are against the death penalty since they see the rights to life as absolute. Some are also in the
ranks of those against abortion. So if the right to life is absolute then the right to life to the unborn child is
also absolute. So the question is when does life begins? That informs the decision of the U.S Supreme Court
in …v. Ray …where the court found that there is no unanimity of civil right in the society…some see it that
life begins at conception. Amnesty International is one of the leading organization against the death penalty
. The criminal justice system reflect the human being and the human being is an imperfect entity. However
interesting the arguments may be article 12 makes it clear that the philosophy of the rights under the
constitution is a non-absolutist conception. We can find that in the clear message which article 12 gives us
namely-all rights in Ghana , whatever the nature of the rights, the right should be subject to two limitations:
respect for the rights of others and respect for the public interest. Clearly our human rights regime is not
founded on absolutist thinking .
⦁ Article 12 shows also that the rights are enforceable in the courts: Akoto said the enforcement mechanism is
not through the court but politics. Article 12 makes it clear that the rights guaranteed under the constitution
are enforceable through the courts.
⦁ Article 12 also shows that the rights rare values or claims which we hold not only the government but our
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fellow human beings as well as our artificial persons, in that perspective one can say that government
though the main abuser but not the only abuser.
⦁ Chapter six, the title of chapter six tends to make some people think the content of that chapter is not
justiciable. They are also enforceable either in their own rights or by reason of article 32(5) or by reason
1(2) or because of the rights in chapter six and part of treaties.
⦁ In addition of the two limitations, clause 5 of article 33 provides 3 other limitations
⦁ The limitations must be prescribed by law: thus what is contained in article 11
⦁ Should be shown to be reasonable
⦁ Necessary and free and democratic for the society. Thus the limitations in those circumstances are valid.
This cuts the whole point that no rights is absolute.
The constitution also contains some innovations. Article 26 clause 1 and 2 …( note the spelling of practice there it
is ‘se’ not ‘ce’) . On the one hand , we are entitled to enjoy any culture but practices which dehumanize or are
injurious to the future ….
There is also 27…special care must be …it says facilities shall be provided for …so the men are free by the
constitution from taking an interesting. It does not say who is to provide the facilities.
29 also says disabled persons have the right to live with their parents…shall not be subjected to ta differential
teratemetn…the law does not say who a disable person is …the American passed a legislation in 1970 ;American
Disability act…people who were disabled were intervened on behalf of the state.
Article 30 (4) no ..shall be deprived by any other person , medical treattement by reaosnaon only of any…a person
who by reason of sickness….24 gives the sampleof the innovations that we have introduced (3) and (4) –every
worker has the right to form trade union of his hcoiece… some suggest that provisions like thishas something to do
with the industrial arrest that we have
25- every person has the right to …private schools..at its own expense …sometimes the private universities want to
benefit from GETFUND because the y argue that their students are also citizens.
25(1) says all persons shall have the right to equal education….basic education shall be free…higher education
shall be made ….
Clause 2 of article 26…
Constitution also transform some family law issues into constitutional law 22(1) a spouse ….parliament shall as
soon as possible …the …to achieving …spouse shall have. Mensah v. Mensah… parliament will explain what is
meant by jointly acquired. Now when you acquire property in the marriage then the spouses have joint interest.
The Constitution also contains some normal rights that you will find in many Constitutions.
Article 13: it says no person shall be deprived of his life internationally…whether abortion violate this act?
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14 talks about personal liberty. It guarantees to us personal liberties and gives to us personal liberties.
15 , the dignity of all persons shall be inviolable…the provision talks about the physical integrity of the
person….no person shall…so what does that mean ….this language is taken from the un something not too sure
….or any the condition that is
A person who is convicted as a criminal …
The question arises to house maids. Thus servitude.
Article 17 …all person shall be equal…this is important to the concept of the rule of law. . this is clearly not true
as some of the rights in the Constitution are reserved for citizens… persons shall not be discriminated in terms of
race , colour religion . etc.
In article 94, among the conditions we have to qualify for parliament …clause 3 of article 17 means all persons do
not have equal treatment
Clause 4 says if the policy is ….so if there is evidence that there is imbalance it does not violate article 17
Article 18 for the first time privacy rights. Something which was mentioned in Anthony v. University of Cape Coast
Is it general privacy rights or what are stated there?
Article 19 provides some fair trial rules
Article 20 provides first for the compulsorily acquisition of private property for …..first question is: Is that article
retrospective or prospective -thus form 7 january 1993, when the original owners have the rights of first refusal ,
can they institute an action of returning the compensation or the value…..Supreme Court has decided that article
20 is prospective. Third question is does it mean that the development must be done by state funds ,or private
partnership is possible ?
21 (a) freedom of press and expression and freedom of the press…NPP V. GBC
Freedom of assembly …NPP v. IGP. those two were the most important given by the supreme court since 7 January
1993..afte r the NPP v. IGP case ,the government introduced the Public Order Act.
Finally the Constituton provides an enforcement machinery …one promotion involving the Electoral Commission,
CHRAJ, Media Commission , and enforcement by which are the 33(1), CHRAJ and National Media Commission
have some quasi-judicial powers
The Constitution provides some duties, it is generally said that African philosophy…Article 41 follows mainly
article 27 and 29 of the African Charter that you must pay your taxes and some other things
Article 51 says the human rights should remain intact as far as possible even in state of emergency.
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Section 34 , 35 and 37 …read Kumado’s article -forgive us our trespasses-an examination of the indemnity clause
in the 1992 constitution.
We can say the framers of the Constitution have laid the foundation for our rights to be respected but the viability
of this provision depends on how we will respect the other.
Freedom of speech has never meant freedom to destroy or defame without a just cause-Otumfuo Osei Tutu in his
article Stop, Look and Listen , daily graphic Wednesday 22 may 2013.
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Constitutional Law Notes 1st 2nd Semester

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Constitutional Law Notes 1st 2nd Semester

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Constitutional LAW Notes 1ST & 2ND Semester

Constitutional law of Ghana and its history (University of Ghana)

StuDocu is not sponsored or endorsed by any college or university

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Sources of constitutional law

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1. Whether Marbury has a right to his commission?

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TUFOUR v ATTORNEY GENERAL

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NOTE: According to Justice Sowah on the nature and character of a constitution,

J. H. MENSAH v ATTORNEY GENERAL

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3. Is “prior approval” a term of art? If so, what was its meaning?

NEW PATROITIC PARTY v ATTORNEY GENERAL

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1. Whether the court had jurisdiction to entertain the suit?

Held- The court held, in a 5-4 majority decision as follows:

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The relationship between municipal and international law

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Consequences of Dualist Theory

Coup d’état, revolution and consequences

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Two approaches to be used in answering the effects:

- Rules of succession of office

- Rules of competence : this tells us what you do in what position

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SALLAH v ATTORNEY GENERAL

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THE LAKANMI CASE

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UGANDA v. COMMISSIONER OF PRISONS, EX PARTE MATOVU (1966) EA 514

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⦁ Institutional limitations -Article 78(1)

⦁ Procedural limitations- article 106(1), 106(3)

⦁ Substantive limitations- articles 3(1), 78(2) 58(1), 92(2)

Constitutionalism in our courts

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FATTAL V MINISTER OF INTERIOR

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GBEDEMAH V AWOONOR WILLIAMS

STATE V. G.O.C THE GHANA ARMY, EX PARTE BRAIMAH

Things needed to ensure constitutionalism

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Theories that go to secure constitutionalism.

3. Supremacy of the Constitution.

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TITLE: BLACKBURN v ATTORNEY GENERAL

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Aims of Separation of Powers

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• The need to differentiate the legislative, judiciary and executive functions

• Isolation of the different opinion from each other

• It means checks and balances to some people