NPP V Attorney General 31st December Case

5/31/2020 NEW PATRIOTIC PARTY V.
ATTORNEY-GENERAL | Legal Research for Commonwealth Lawyers | JUDY

SN
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NEW PATRIOTIC PARTY

V.
ATTORNEY-GENERAL
(1994) JELR 66360 (SC)
SUPREME COURT · 8 MAR 1994 · GHANA
CORAM
ARCHER CJ JSC, ADADE FRANCOIS JSC, ABBAN JSC, AMUA-SEKYI JSC, AIKINS JSC,
BAMFORD-ADDO JSC, HAYFRON-BENJAMIN JSC, AMPIAH JS
ARCHER CJ.: On 24 February 1966 this country witnessed the first coup d’etat in
her political history. The government of the First Republic was overthrown by the
Ghana Armed Forces in collaboration with the Ghana Police Force. A Proclamation
was issued conferring both the legislative and executive powers of the State on a
National Liberation Council. The judiciary remained unscathed after the
Proclamation which suspended the Constitution, 1960 of the First. Republic which
came into force on 1 July 1960.
On 22 August 1969 the Second Republican Constitution came into force and the
Constitution, 1960 was abrogated. Part IV of the transitional provisions in the
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Constitution, 1969 granted indemnity to those who staged the Coup on 24 February
1966. Chapter 9 of the Constitution, 1969 vested the judicial power of Ghana in the
judiciary. Article 102(3) of the Constitution, 1969 guaranteed the independence the
judiciary. For the first time in the legal history of this country, the American
concept of the doctrine of separation of powers could be discerned throughout that
document, namely the powers of the legislature, the executive and the judiciary.
On 13 January 1972 there was yet another coup d’etat and the Constitution, 1969
was suspended by a Proclamation which establish a National Redemption Council
(NRC) to be succeeded for a brief period by a Supreme Military Council (SMC) until
4 June 1979 when the Armed Forces Revolutionary Council. (AFRC) took over from
Supreme Military Council.
On 24 September 1979 the Third Republican Constitution, 1979 came into force. At
this stage, it must be pointed out that the doctrine of separation of powers still
pervaded the Second and Third Republican Constitutions and in substance there
was not much difference in the substance and wording of the two Constitutions
except that in the Second Republican Constitution there was a provision for a
ceremonial President and a Prime Minister whereas the Third Republican
Constitution reintroduced the presidential system of government.
On 31 December 1981 there was another coup d’etat and by a Proclamation, the
Provisional National Defence Council (PNDC) was established and it governed this
country until 7 January 1993 when Fourth Republican Constitution, 1992 came into
force and the present government known as the National Democratic Congress
with two other parties, the National Convention Party and the Egle Party, formed
alliance and assumed the reins of government. Under an existing law, namely the
Public Holidays Law, 1989 (PNDCL 220), the present government notified the
public of its programme to celebrate anniversary of the 31 December 1981
revolution which has been specified in the Schedule to PNDCL 220. The intended
celebration the of 31 December 1981 revolution invoked the wrath and indignation
of interested sections of the public who were vehemently opposed to coups.
On 21 December 1993 the plaintiff, a registered political party, issue a writ invoking
the original jurisdiction of the Supreme Court under articles 2(1)(b) and 130(1) of
the Constitution, 1992 under rule 45 of Supreme Court Rules, 1970 (Cl 13) claiming
the following reliefs:
“(1) A declaration that the public celebration of the overthrow of the legally
constituted Government of Ghana on 21 December 1981, and the financing of such
celebration from public funds is inconsistent with, or in contravention of the letter
and spirit of the Constitution, 1992 and more particularly articles 3(3), (4), (5), (6)
and (7) and 35(1) and 41(b) thereof.
(2) An order directing the Government of Ghana to cancel all preparations for the
celebration of the overthrow of the legally constituted Government of Ghana on 31
December 1981 aforesaid and to refrain from carrying out any such celebration
financed from public funds.”
The writ was issued against the Attorney-General as the defendant who admitted
almost all the averments in the statement of the plaintiff’s case but contended,
inter alia, that 31 December like all public holidays in Ghana is a holiday by virtue
of the provisions of section 1 of PNDCL 220.
The defendant further contended that moneys were legally appropriated under the
1993 budget for the celebration of the historical values that the 31 December
revolution stood for and that the Constitution, 1992 established a nexus between
the 31 December revolution and the Fourth Republican Constitution, 1992 itself.
Also, the President of the Republic who was also a Ghanaian and leader of the 31
December revolution and the members of Parliament of the National Democratic
Congress Party to which the President belongs were elected on the party’s
manifesto whose underpinning was continuity of the good works and values of the
31 December revolution. Lastly, the defendant maintained that what the plaintiff
was seeking to do was to question the constitutionality and legality of the 31
December revolution, and the events which gave rise to that revolution on 31
December 1981 which should not be entertained by the court by virtue of section
34, particularly section 34(2) of the transitional provisions of the Constitution,
1992.
Having considered the statement filed by both parties and their oral submissions
during the hearing, I wish to say that I can discern sensitivities and susceptibilities
grouped on one hand, pitched against political statements interspersed with self-
adulation and partisan platitudes on the other. The invitation to this court is to
descend into this arena and decide whose contention is constitutionally tenable.
On my part, I refuse to accept the invitation. Rather, I shall attempt to answer three
questions. First, which organ of state has power to pass laws to regulate public
holidays? Secondly, can this court interfere with that legislation? Thirdly, call this
court prevent the actual celebration with or without public funds?
Before the British colonial administration came to these shores to govern, we had
holidays in various parts of the country among ethnic groups for the celebration of
festivals restricted to various localities. Up to this day, farmers in different parts of
the country do not farm on a particular day of the week. In the south, we all know
that fishermen do not go fishing on the seas on Tuesdays. These days of rest are
consistent with the biblical text in Genesis chap 2, v 2: “And on the seventh day
God finished his work which he had made, and he rested on the seventh day from
all his works which he had made.” How did public holidays affecting the whole
nation come into existence in Ghana?
On 20 May 1899 the Public Holidays Ordinance, 1899 (Cap 208) was enacted and
the following days were declared public holidays: 1 January, Good Friday, Easter
Monday, Whit Monday, His Majesty’s birthday, the first Monday in the month of
August, Christmas Day, 26 December and all days which the Governor may, by
proclamation, declare to be days of thanksgiving or to be public holidays. Later, the
Saturday next following Good Friday and 24 May (Empire Day) were added as
public holidays. It is clear that from the origins of public holidays, only the
legislature and the executive have had exclusive power to declare holidays.
The British colonial government introduced public holidays here because

observance of public holidays in England was governed by an Act of Parliament. To
be precise, in 1551 during the reign of Edward VI, Parliament had enacted a law, ie
the Holy Days and Fasting Days Act, 1551 (5 & 6 Edw 6, c3) for the keeping of holy
days and fasting days. The latter part of the preamble reads:
“Neither is it to be thought that there is any certain time or definite number of days
prescribed in holy Scripture, but that the appointment both of the time, and also of
the number of the days, is left by the authority of God’s word to the liberty of
Christ’s Church, to be determined and assigned orderly in every Country by the

discretion of the rulers and ministers thereof, as they shall judge most expedient,
to the true setting forth of God’s glory and the edification of their People.”
“Rulers and ministers” are mentioned. Judges and courts are not mentioned. What
started purely as religious holidays has been expanded to include holidays not
necessarily connected with any religious observance.
After our independence, the Public and Bank Holidays Act, 1958 (No 1 of 1958) was
enacted on 22 March 1958 to consolidate and amend the law relating to the
observance of public holidays and bank holidays and for other purposes relating
thereto. The holidays in the Schedule were limited to Ghana Independence Day, 6
March; Good Friday, Saturday next following Good Friday; Easter Monday;
National Founder’s Day, 21 September; Christmas Day; and Boxing Day.
After the 1966 coup, Liberation Day, 24 February was included in the Schedule by
the Public Holidays Instrument, 1966 (LI 509) as a public holiday. The Public
Holidays Decree, 1972 (NRCD 8) omitted Liberation Day and substituted therefor,
National Redemption Day (13 January). However, Liberation Day was reinstated by
the Public Holidays (Amendment) Decree, 1973 (NRCD 154) on 12 February 1973,
and again removed from the Schedule on 20 February 1974 by the Public Holidays
(Amendment) Decree, 1974 (NRCD 244). It should be observed that up to 21 June
1974, business and trade were carried on on public holidays without any
restriction. By the stroke of the pen the Public Holidays Decree, 1974 (NRCD 262)
was passed to prohibit business and trade on National Redemption Day,
Independence Day or Republic Day, except the sale of food and grocery shops, drug
and pharmacy shops, restaurants and hotels, markets for sale of foodstuffs, sale of
spirits, wine and beer and running of essential public services. Penalties were
introduced for contraventions. In effect, motor mechanics, electricians, plumbers,
hair-dressers and a host of other commercial or industrial activities were subjected
to restrictions and penalties.
These prohibitions were retained by the PNDC when it passed the Public Holidays
Law, 1989 (PNDCL 220) and omitted National Redemption Day from the Schedule
but added 1 May (Workers Day), 4 June and 31 December and subsequently
Farmers Day, the first Friday in December.
It is clear from the narrative I have given that declaration of public holidays has
always been within the exclusive domain of either the legislature or the executive.
The courts have never interfered with the exercise of these powers. The present
suit is unprecedented. There are no previous decisions to go by as guide-lines and I
think this court should consider this suit with retrospection, introspection and
circumspection.
The gist of the plaintiff’s case is that the celebration of 31 December as a public
holiday, is inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992. The plaintiff relied on article 3(3), (4), (5), (6) and (7) and also
article 3(2) which reads: “(2) Any activity of a person or group of persons which
suppresses or seeks to suppress the lawful political activity of any other person or
any class of persons, or persons generally is unlawful.”
I must confess that I find it extremely difficult to agree that the mere declaration
and celebration of a public holiday will suppress or seek to suppress the lawful
political activity of any other persons or class of persons or persons generally.
There is nothing in PNDCL 220 which prohibits the holding of political rallies or
meetings on public holidays including 31 December. Article 3(3) of the
Constitution, 1992 also provides:
“(3) Any person who —
(a). by himself or in concert with others by any violent or other unlawful means,
suspends or overthrows or abrogates this Constitution or any part of it, or attempts
to do any such act; or
(b). aids and abets in any manner any person referred to in paragraph (a) of this
clause;
commits the offence of high treason and shall, upon conviction, be sentenced to
suffer death.”
When this article 3(3) of the Constitution, 1992 is applied to the averments in the
plaintiff’s statement of his case, it is impossible to conclude that the celebration of
the public holiday will amount to suspension, overthrow or abrogation of the
Constitution, 1992. The “letter of the Constitution“ relied on by the plaintiff does
not fit the averments, and the averments are not caught by the letter. With this
conclusion, I do not think it is necessary to refer to or deal with article 3(4), (5), (6)
and (7) of the Constitution, 1992.
The plaintiff also has relied on the spirit of the Constitution, 1992. I understand this
reliance to be simply this—the Constitution, 1992 has said good-bye to all coups
d’etat and has introduced a constitutional democracy. Therefore, nothing should
be done to remind Ghanaians of the past by paying premium to the events that
occurred on 31 December 1981.
Wherein lies the spirit of a Constitution? Is it embedded in the whole document?

Or in parts of the document? When we interpret statutes, we do not rely on the
spirit of the Act. This maxim of interpretation applies also to a Constitution. When
the words are clear and unambiguous, we do not go further to imagine or speculate
on what the words mean. What I know is that at times, it becomes necessary to find
out the intention of the legislature. This is what is meant by “the intendment of the
legislature.” When one applies, “the intendment of the Consultative Assembly it is
clear that the Constitution makers did not intend that the averment in the
plaintiff’s statement of clam against the defendant could amount to a violation of
or inconsistency with the Constitution, 1992. Mere remembrance of an event in the
political history of this country cannot amount to subversion of the Constitution,
1992. Human memory at times can be more accurate than the mechanism of a tape
recorder which can also be faulty at times. When one records something on a tape,
the recording can be erased and the tape can be reused. The human memory is
eternal and everlasting. One cannot obliterate historical events from the minds of
men who witnessed the event. Can we prevent Ghanaians from reminiscing on the
events of 31 December 1981 if they choose to? Certainly not.
I have found it unnecessary to dive and delve further into what is meant by the
spirit of the Constitution because I am convinced that it is a cliche used in certain
foreign countries when interpreting their own constitutions which were drafted to
suit their own circumstances and political thought. Whether the word “spirit” is a
metaphysical or transcendental concept, I wish to refrain from relying on it as it
may lead me to Kantian obfuscation. I would rather rely on the letter and
intendment of the Constitution, 1992.
Should the declaration sought be granted? I have already referred to the doctrine of
separation of powers which pervaded the Constitutions, 1969 and 1979 which now
permeates the Constitution, 1992. The present Constitution, 1992 guarantees the
independence of the judiciary which is subject only to the Constitution and this is
reinforced by article 125(3) of the Constitution, 1992 which provides:
“(3) The judicial power of Ghana shall be vested in the Judiciary, accordingly,
neither the President nor Parliament nor any organ or agency of the President or
Parliament shall have or be given final judicial power.”
The Constitution, 1992 gives the judiciary power to interpret and enforce the
Constitution, 1992 and I do not think that this independence enables the Supreme
Court to do what it likes by undertaking incursions into territory reserved for
Parliament and the executive. This court should not behave like an octopus
stretching its eight tentacles here and there to grasp jurisdiction not
constitutionally meant for it. I hold that this court has no constitutional power to
prevent the executive from proclaiming 31 December as a public holiday because
the executive then would be applying an existing law in PNDCL 220 which can only
be amended by Parliament.
Under section 30 of the transitional provisions of the Constitution, 1992 the First
President under the Constitution, 1992, by constitutional instrument, may at any
time within twelve months after assuming office as President, make such provision
as may appear necessary for repealing, modifying, adding to or adapting any law
for bringing it into accord with the provisions of the Constitution, 1992 or
otherwise for giving effect to the Constitution, 1992. At the time the writ was filed,
the President had not repealed or modified the First Schedule to PNDCL 220 which
was existing and therefore the executive could rely on it. Parliament which has the
power to enact laws has not also bothered to modify the First Schedule to PNDCL
220. If Ghanaians, including the plaintiff, feel very strongly about 31 December as a
public holiday, the door is not closed to them. They should urge their
representatives in Parliament to amend the Schedule by deleting any public
holidays that are obnoxious and undesirable. It is not the function of this court to
effect such amendments or repeals. It would amount to a naked usurpation of the
constitutional powers of Parliament.
Now what about the other relief sought?
“An order directing the Government of Ghana to cancel all preparations for the
December 1981 aforesaid and to refrain from carrying out such celebration
I have always held the view that this court like equity must not act in vain. In other
words, it should not make orders that could be lawfully and legitimately
circumvented so as to make the court a laughing stock. Under the Constitution,
1992 the President is the commander-in-chief of the Ghana Armed Forces. Suppose
he accepts the declaration sought and confers with his commanders and service
chiefs not to hold any route marches on 31 December 1993, yet the non-
commissioned officers who were instrumental in staging the 31 December 1981
coup d’etat choose to parade through the streets of Accra, who can stop them? Is
this court going to send judges, magistrates, registrars, court bailiffs and ushers to
erect barricades in the paths of the marchers? Again suppose notwithstanding the
orders of this court, the members of the governing party, and their allies choose to
celebrate 31 December with picnics, processions and dances, who can stop them? I
must confess that the more I ponder over the reliefs sought, the more I become
convinced of the futility of the orders being sought. I think this is a case which
requires realism, pragmatism and foresight on the part of this court.
The other ambit of the relief sought is for an order directed to the government to
refrain from carrying out any such celebration financed from public finds. The
defendant admitted:
“that money was legally appropriated under the 1993 budget which were lawfully
being used for the celebration of both the historical values that the 31 December
revolution stood for and the first anniversary of the Fourth Republic which was
born out of the values of the 31 December revolution.”
I shall ignore this innocuous political rhetoric in this admission and attempt to
answer the question whether the judiciary in this country has ever had the
opportunity and power to prevent Parliament from appropriating money for use by
the executive. Article 108 of the Constitution, 1992 provides:
“108. Parliament shall not, unless the bill is introduced or the motion is introduced
by, or on behalf of, the President—
(a) proceed upon a bill including an amendment to a bill, that, in the opinion of the
person presiding, makes provision for any of the following —
(i). the imposition of taxation or the alteration of taxation otherwise than by

reduction; or
(ii). the imposition of a charge on the Consolidated Fund or other public funds of
Ghana or the alteration of any such charge otherwise than by reduction, or
(iii). the payment, issue or withdrawal from the Consolidated Fund or other public
funds of Ghana of any moneys not charged on the Consolidated Fund or any
increase in the amount of that payment, issue or withdrawal;
(iv). the composition or remission of any debt due to the Government of Ghana, or
(b) proceed upon a motion, including an amendment to a motion, the effect of

which, in the opinion of the person presiding, would be to make provision for any
of the purposes specified in paragraph (a) of this article.”
I have quoted this article in extenso to demonstrate the procedure the

Constitution, 1992 has laid down for the provision of moneys for the government to
administer the country. It is only the President, who is the head of the executive,
who can go to Parliament to seek financial provision charged upon the
Consolidated Fund. Nowhere in this article is the role of the judiciary mentioned.
Yet, this court is being invited to prevent the government from spending moneys
which Parliament has constitutionally provided for government use. I think if the
order is granted, it would amount to judicial officiousness—poking our noses into
the affairs of Parliament and intermeddling with the prerogative of the executive
by directing the government not to spend moneys approved by Parliament. Such a
move clearly amounts to a violation of the doctrine of separation of powers which
is the core of our Constitution, 1992.
If this court interferes, then what is the necessity for the office of the Auditor-
General under article 187 of chapter 13 of the Constitution, 1992? It is being
maintained that the moneys voted for the celebration of the 31 December holiday
amount to misapplication of public funds. It is not the duty of this court to don the
mantle and cloak of the Auditor-General, whose duty under article 187(2) of the
Constitution, 1992 is to audit all public accounts of Ghana and within six months
after the end of the immediately preceding financial year, to submit his report to
Parliament drawing attention to irregularities in the accounts audited and to any
other matter which in his opinion ought to be brought to the notice of Parliament.
My opinion is based purely on the doctrine of separation of powers as regards

Parliament, the executive and the judiciary which augurs well for this country. The
defendant has averred that the plaintiff’s case is an attempt to challenge the
validity of the transitional provisions of the Constitution, 1992. For my part, I do
not want to carry coal to Newcastle because my views on the transitional
provisions can be found in Kwakye v Attorney-General [1981] GLR 9, SC. I stand by
every word I said in my judgment in that case. If one spirit of the Constitution, 1992
is to bid farewell to all coups, there is yet another spirit of the Constitution, 1992
through the transitional provisions which in effect exhorts and admonishes all of
us to forgive all those who staged previous coups. However, it does not say we
should forget. That will be impossible. I hope I will not be mistakenly referred to as
a supporter of coups. In this regard, I wish to refer to my judgment in Atto-Mensah
v The Republic [1967] GLR 562 at 586 where I cited the famous Spanish-American
philosopher—George Santayana as quoted in Durant, Outlines of Philosophy (1962
ed) at p 431:
“Revolutions are ambiguous things. Their success is generally proportionate to

their power of adaptation and to the reabsorption within them of what they
rebelled against. A thousand reforms have left the world as corrupt as ever, for each
successful reform has founded a new institution, and this institution has bred its
new and congenial abuses.”
This is what I said on 2 October 1967, when the then National Liberation Council
had consolidated its power and had reached the apogee of its revolution. It was the
first coup in this country and my words were to alert the council to the wise words
of George Santayana.
Before I end, I wish to refer to a submission made by learned counsel for the
plaintiff. He mentioned the penalties in the public holidays law. These penalties
were introduced for the first time in this country by the then National Redemption
Council headed by Mr Acheampong. I say “Mr” because, as we all know, he was
deprived of his military rank of “General” by the their Supreme Military Council
under military law, which I must respect. As far as I know, no prosecutions have
take place and I hope there will not be any. In a country where we have no old-age
pensions schemes, no unemployed benefits and no family benefits, I do not see
why a person should not be permitted to work on public Holidays to earn his living.
It is monstrous to deprive him of the opportunity of earning some income to feed
himself only because a law has ordained that he must observe a particular public
holiday and he must rest whether he needs the rest or not. At this stage, I shall
refrain from expressing any views as to whether, or not these restrictions and
penalties constitute violations of fundamental human rights. But is it morally right
and just that a self-employed person should be prevented from working on a public
holiday to earn his living? I leave this question to Parliament and the executive for
the answer.
Finally, I wish to make an observation. Before this action was instituted, Ghana
had ten public holidays throughout the year and second only to Northern Ireland,
throughout the whole world, which has eleven public holidays. One of them is 12
July in commemoration of the Battle of the Boyne in 1690 when the forces of
Roman Catholic King James II were defeated by the protestant forces of King
William III—Prince of Orange. Up to this day, the protestants in Ulstar celebrate
this public holiday, with marches through the streets of Belfast without any
obstruction or protestation from the Catholic minority—what an admirable
tolerance! Ghana has more holidays than England and Wales and Scotland, each
with nine holidays. Can a developing country like Ghana afford a string of holidays
which at times can be boring? I leave the answer to Parliament and the executive.
The British colonial administration introduced six public holidays in this country
in 1899. We have ten and I wonder what would be the number by the year 2000.
In conclusion, I am of the opinion that this court, in view of the doctrine or concept
of separation of powers embedded in our past and present Constitutions, is not
competent to grant the reliefs sought by the plaintiff.
I have demonstrated that this court would be guilty of three inexcusable and
unconstitutional trespasses, first, a trespass into the domain of Parliament;
secondly, a trespass into the territory of the executive; and thirdly, a trespass into
the terrain of the Auditor-General. These trespasses should be avoided by not
granting the declaration and the orders sought.
ADADE JSC
On 31 December 1981 the Government of Ghana, established under the

Constitution, 1979 was removed from power in a military coup d’etat. The coup-
makers then set up their own government provisionally, until such time that
another constitutional government could come into being. The government was
christened “the Provisional National Defence Council (PNDC).” That provisional
government ruled the country for eleven years—31 December 1981 to 7 January
1993. During those eleven years, every 31 December was declared a public holiday
and celebrated as such, in commemoration of the military coup of 31 December
1981, an event, no doubt, of great historical significance.
On 7 January 1993 Ghana’s new Constitution, 1992 came into force, and with it, a
new constitutional order. The PNDC was abolished and it ceased to exist with
effect from that date by virtue of section 36(1) of the transitional provisions of the
Constitution, 1992 which provides that:
“36. (1) Upon the coming into force of this Constitution, the Provisional National
Defence Council (Establishment) Proclamation 1981 and the Provisional National
Defence Council (Establishment) Proclamation Supplementary and Consequential
Provisions) Law, 1982 (PNDCL 42) shall cease to have effect.”
With these words, the PNDC became defunct. New institutions were established
for the governance of the realm—principally an Executive President, a Parliament
(all elected on the basis of a multi political system) and an independent judiciary.
On 14 December 1993 the Ghanaian Times, a state-owned daily newspaper,

published a release from the Information Services Department of the Ministry of
Information detailing a programme of activities intended for the celebration of the
twelfth anniversary of the 31 December 1981 coup, and the first anniversary of the
Fourth Republic. The publication read:
“A release issued by the Information Services Department in Accra said the

highlight of activities marking the December 31 anniversary in Accra would be a
route march to be followed by a wreath-laying ceremony at the Revolution Square.
Taking part in the route march will be the security services and various voluntary
organizations.
There will be a musical carnival at the Trade Fair Centre in the afternoon.
The release said on January 7, the first anniversary of the inauguration of the
Fourth Republic, there would be a ceremonial parade of the security services and
voluntary organizations at the Independence Square to be followed in the
afternoon by a cultural display.
The celebrations would be rounded off with non-denominational thanksgiving

services on January 9 in all parts of the country—GNA.”
On or about 19 December 1993, the government, acting by the Minister of Interior,

announced to the nation that 31 December 1993, among others, would be a public
holiday and celebrated and observed as such. The announcement was carried by
the People’s Daily Graphic, also a state-owned daily newspaper, on 20 December
1993, as follows:
“Holidays—The Ministry of the Interior has announced that Saturday December

25, Christmas day, Sunday December 26, Boxing day and Friday December 31
Revolution day are statutory holidays.
A statement issued in Accra said Saturday January 1 is New Year’s day and that
Friday January 7, will be observed as the Fourth Republic Day.
It said in accordance with section two of the Public Holidays Law, since Christmas,
Boxing and New Year Holidays fall on non working days, Monday December 27,
Tuesday December, 28 and Monday January 3 have been declared public holidays
instead—GNA.”
Clips of the publications referred to above were annexed to the defendant’s

statement of case as annexures A (Ghanaian Times) and B (People, Daily Graphic).
On 21 December 1993, the plaintiff, one of several registered political parties in the
country, instituted the present action against the Government of Ghana per the
Attorney-General, for the reliefs thus indorsed on their writ:
celebration from public funds is contrary to the letter and spirit of the
Constitution, 1992 and more particularly to articles 3(3), (4), (5), (6) and (7), and
35(1) and 41 (b) thereof.
Relief (1) was later amended, without objection from the defendant, to read:
“A declaration that the public celebration of the overthrow of the legally

celebration from public funds is inconsistent with or in contravention of the letter
and (7), and 35(1) and 41(b) thereof.”
The amendment does not strike me as effecting any substantial change in the
original claim, except, perhaps, that it enabled the plaintiff to sail as closely as
possible to the letter of article 2(1) of the Constitution, 1992.
On the same day that the plaintiff filed its writ of summons, ie 21 December 1993, it
also filed an application for an interim injunction to restrain the Government of
Ghana from: “all activities and preparations made or being made towards the
celebration of the overthrow of the Government of the democratically elected
Government of Ghana on 31 December 1981 as announced . . .”
The application was put before a five-member panel of this court on Thursday, 23
December 1993. It became obvious to the panel that a ruling on the motion either
way was bound to undermine the fate of the substantive suit. Besides, granting or
refusing the application to await the hearing of the main case after 31 December
1993, sometime in the new year, would be tantamount to shutting the stable door
after the horse had fled. The court decided therefore that in the circumstances, the
justice of the case required that the substantive suit be heard as a matter of
urgency prior to 31 December 1993. The application for injunction was adjourned to
be taken together with the substantive suit. The action was eventually heard on 29
December 1993, and a decision pronounced in favour of the plaintiff. But we
reserved our reasons.
The plaintiff invokes the original jurisdiction of the court under article 2(1) of the
Constitution, 1992 that provides:
“2. (1) A person who alleges that—
(a). an enactment or anything contained in or done under the authority of that or

any other enactment; or
(b). any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may

bring an action in the Supreme Court for a declaration to that effect.”
(The emphasis is mine.)
To succeed, the plaintiff must be able to bring itself squarely within article 2 of the
Constitution, 1992. It has been said that familiarity breeds contempt. Article 2 of
the Constitution, 1992 has, since its enactment, been repeated so often, both in the
courts and elsewhere, that we run the risk of glossing over, or completely ignoring
or missing its true import. It must be emphasised that under the article, the
conduct complained of need not contravene anything in the Constitution, 1992; it
is enough if that conduct is inconsistent with any provision of the Constitution,
1992. An act contravenes an enactment if it breaches that enactment; if it is
contrary to that enactment. But an act need not be contrary to an enactment, to be
inconsistent with it. In other words, the act may be inconsistent with the
enactment, even though it does not necessarily breach it. May be the dividing line
is thin; but there surely is a dividing line.
The plaintiff contends that the public celebration of the anniversary of the coup of
31 December 1981 out of public funds is “inconsistent with, or is in contravention of
the letter and spirit of the Constitution, 1992 . . .” As to the letter of the
Constitution, 1992 the plaintiff refers “more particularly to articles 3(3), (4), (5), (6),
(7), 35(1) and 41(b) thereof.” In argument before this court, the plaintiff added
article 41(f) of the Constitution, 1992.
It is necessary therefore to look at these articles with a view to ascertaining

whether in letter they have been contravened. For this purpose, I reproduce these
articles in full. Article 3 of the Constitution, 1992 is sub-titled “Defence of the
Constitution.” Clauses (3)-(7) thereof read:
“(3) Any person who—
(a) by himself or in concert with others by any violent or other unlawful means,
(b) aids and abets in any manner any person referred to in paragraph (a) of this
clause;
suffer death.
(4) All citizens of Ghana shall have the right and duty at all times—
(a) to defend this Constitution, and in particular, to resist, any person or group of
persons seeking to commit any of the acts referred to in clause (3) of this article;
and
(b) to do all in their power to restore this Constitution after it has been suspended,
overthrown, or abrogated as referred to in clause (3) of this article.
(5) Any person or group of persons who suppresses or resists the suspension,
overthrow or abrogation of this Constitution as referred to in clause (3) of this
article, commits no offence.
(6) Where a person referred to in clause (5) of this article is punished for any act
done under that clause, the punishment shall, on the restoration of this
Constitution, be taken to be void from the time it was imposed and he shall, from
that time, be taken to be absolved from all liabilities arising out of the punishment.
(7) The Supreme Court shall, on application by or on behalf of a person who has
suffered any punishment or loss to which clause (6) of this article relates, award
him adequate compensation, which shall be charged on the Consolidated Fund, in
respect of any suffering or loss incurred as a result of the punishment.”
Looking at the relevant clauses of article 3 of the Constitution, 1992, I can readily
see that, in their letter the only provisions relevant to this case are article 3(3) and
(4) of the Constitution, 1992.
The remaining clauses of article 3 of the Constitution, 1992 deal with actual acts of,
or attempts at, suspending, overthrowing, or abrogating the Constitution, 1992; the
duty to resist such acts or attempts, and compensation, to be paid out of public
funds, to persons who may suffer damage in the process of resisting such acts or
attempts.
The plaintiff also refers to articles 35(1) and 41(b) and (f) of the Constitution, 1992.
These say:
“35. (1) Ghana shall be a democratic state dedicated to the realization of freedom
and justice; and accordingly, sovereignty resides in the people of Ghana from
whom Government derives all its powers and authority through this Constitution
...
41. The exercise and enjoyment of rights and freedoms is inseparable from the
performance of duties and obligations, and accordingly, it shall be the duty of
every citizen —
(b) to uphold and defend this Constitution and the law; ...
(f) to protect and preserve public property and expose and combat misuse and
waste of public funds and property.”
Before embarking on the merits of the case, let me comment on the challenge to
the jurisdiction of this court, raised by the defendant. The defendant says that this
court has no jurisdiction to entertain the action. The reasons he offers for this
contention are: First, that the action seeks to question the legality or otherwise of
the coup of 31 December 1981, and that by section 34 of the transitional provisions
of the Constitution, 1992:
“2. It is not lawful for any court ... to entertain any action ... against the
Government of Ghana or any person ... in respect of any act ... relating to ...
(a) the overthrow of the government in power before the ... Provisional National
defence Council; or
(b) the suspension or abrogation of the Constitutions of ... 1979”.
From this the defendant argues that the court cannot inquire into the legality or
constitutionality of the event of 31 December. Secondly, that the orders sought by
the plaintiff, especially in its claim (2), are in the nature of an injunction against
the President or the State, and that this court has no jurisdiction to issue such an
injunction. Thirdly, that the question whether 31 December should be celebrated or
not is a political question, which this court is not entitled to decide: “it should be
left to coordinate arms of government to deal with”, it was said.
From the reasons given, I am satisfied that the objection to the court’s jurisdiction
is, with respect, misconceived. First, the action here does not seek to question the
legality of the 31 December coup. Indeed, it is unnecessary for anyone to mount an
action for that purpose. A coup d’etat is, by definition, an illegal act; it is treason. It
is therefore needless, and a waste of everybody’s time, for anyone to ask a court to
declare that an act admitted to be a coup d’etat, is illegal. Section 34 of the
transitional provisions of the Constitution, 1992 relied on for the argument, takes
the fact of the coup and its illegality as data. It is on the basis of this data that the
immunity is conferred by that section. The section does not seek to stop anyone
from questioning its legality. No Illegality is presumed. What the section does is to
free the persons covered by it from punishment or from paying compensation to
anyone. Even so, in a disputed case, it is for the court to determine whether the
defendant is covered by the section or whether the relief sought should or should
not be granted, having regard to the tenor of section 34 of the transitional
provisions of the Constitution, 1992. It is a misconception to allege that the suit
here seeks to question legality or otherwise. The action is not harking back to 31
December 1981, and asking the court to declare the coup illegal. It is looking
forward from 7 January 1993, and saying that whatever the nature of the event,
legal or illegal, its anniversary after 7 January 1993 should not be celebrated out of
public funds and other resources. In particular, the action here does not relate to
the overthrow of the Government of the Third Republic, nor to the abrogation of
the Constitution, 1979. Accordingly, section 34(2) of the transitional provisions of
the Constitution, 1992 is of no assistance to the defendant.
Secondly, the defendant contends that ordering that 31 December be not observed
as a public holiday, and celebrated out of public funds, is tantamount to issuing all
injunction against the President or the State, and that this court cannot, and
should not, issue such an injunction. He cites in support of this contention the
American case of State of Mississippi v Johnson, 71 US 475 (1867). The two holdings
in the Johnson case (supra), as stated in the headnote, read:
“1. The President of the United States cannot be restrained by injunction from
carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill
having such a purpose be allowed to be filed.
2. It makes no difference whether such incumbent of the Presidential office be

described in the bill as President or simply as a citizen of a State.”
In that case, the State of Mississippi had filed a motion for leave to apply for a
perpetual injunction against the President of the US from carrying out certain
duties under the Reconstruction Acts (two of them) which the President had
previously vetoed as unconstitutional, but which Congress had nevertheless
passed into law on 2 and 23 March 1867. It is unnecessary to discuss this case in
detail. It is enough to say that in the course of its opinion, the court at 498
distinguished between a ministerial duty (where, it was said, the officer exercises
no discretion in the matter), and executive functions (where the officer has a lot of
discretion to play with). At 499 the court observed:
“In each of these cases [ie Marbury v Madison and Kendall v Stockton see p.498/9
where the Court issued mandamus against ministerial officers to compel them to
do certain acts] nothing was left to discretion. There was no room for the exercise
of discretion ...
Very different is the duty of the President in the exercise of the power to see that
the laws are faithfully executed, and among these laws [are] the acts named in the
bill...
An attempt on the part of the judicial department of the government to enforce the
performance of such duties by the President might be justly characterised, in the
language of Chief Justice Marshall, as an absurd and excessive extravagance.”
(The emphasis is mine.) The court proceeded:
“It is true that in the instance before us the interposition of the court is not sought
to enforce action by the executive under constitutional legislation, but to restrain
such an action under legislation alleged to be unconstitutional. But we are unable
to perceive that this circumstance takes the case out of the general principles
which forbid judicial interference with the exercise of executive discretion.”
The main reason the court gave for not interfering in “the exercise of executive
discretion” is thus found at 500-501 of the report:
“Suppose the bill filed and the injunction prayed for allowed. If the President
refuse obedience it is needless to observe that the Court is without power, to
enforce its process. If on the other hand the President complies with the order of
the court and refuses to execute the acts of congress, is it not clear that a collision
may occur between the executive and legislative departments of government? May
not the House of Representative impeach the President for such refusal? And in
that case, could this Court interfere, on behalf of the President, thus endangered by
compliance with its mandate, and restrain by injunction, the Senate of the U.S.
from sitting as a Court of impeachment? Would the strange spectacle be offered to
the public world of an attempt by this Court to arrest proceedings in that Court [i.e.
the Senate]?”
(The emphasis is mine.) The Court then concluded:
“. . . we are fully satisfied that this Court has no jurisdiction of a bill to enjoin the
President in the performance of his official duties; and that no such bill ought to be
received by us.”
If I seem to have quoted these passages too extensively, it is because without such
detail we may be unable to readily see the dangers inherent in uncritically
receiving and applying foreign decisions. Assisted by this detail, it becomes only
too apparent that, given our Constitution, 1992, and in particular articles 1 and 2
thereof, this court can issue injunctions against the President, and even against
Parliament. The fears expressed by the United States court will appear to be
groundless in our situation. Once an Act offends the Constitution, 1992, it is null
and void—as provided by article 1. And once it is null and void, the President or the
executive can be restrained from enforcing or obeying it. Besides, by our
Constitution, 1992, the executive can be restrained by injunction from doing any
act which is not in conformity with the Constitution, 1992.
Therefore the United States decision in Mississippi (supra) has no relevance

whatever in the case before us. It is only to be hoped that passages from it may not
be taken out of context, and flung at unsuspecting persons, making it appear that
in issuing injunctions or making other orders against the President, this court is
exceeding the limits of its jurisdiction: it is not. The Constitution, 1992 allows it.
In this connection, I agree with Mr Adjetey that the President’s immunities under
the Constitution, 1992 are of a limited and qualified nature, and that cases coming
under article 2 of the Constitution, 1992 are, by necessary, implication, excepted
and not covered by any immunities.
Thirdly, the argument that the case is a political one, and ought not to be
entertained by this court is also buttressed on another American case, Baker v Carr,
369 US 186 (1962). In that case, the plaintiffs, by a group action, had asked the
District Court for, the Middle District of Tennessee to declare that the Tennessee
Apportionment Act, 1901 was unconstitutional, and to issue an injunction
restraining the defendants from conducting any elections under the Act.
Constituencies were supposed to be demarcated on the basis of population
densities. The plaintiffs’ contention was that the defendants did not follow this
criterion or any criterion at all in demarcating the constituencies, thus placing the
plaintiffs “in a position of constitutionally unjustifiable inequality.” The district
court threw out the case on the ground, inter alia, that it was a political question,
and that the district court lacked jurisdiction. On appeal, the Supreme Court
reversed the district court, and remitted the matter to it to be heard, on the ground
that the writ raised a justiciable issue.
This conclusion would seem to be against the defendant, and contrary to the
defendant’s position in this case. But that, to me, is not the important point. The
case further illustrates the difficulties in applying foreign decisions, especially
where passages are lifted out of context. Reading the report in the Baker case
(supra), it is abundantly clear that the United States has developed a special
doctrine of “political question”, based on the federal nature of their Constitution
and their system of separation of powers. It is this special circumstance which is at
the bottom of the notion that political questions are not justiciable by the district
courts. A few passages from the report may be of some assistance. The United
States Supreme Court giving the source of the doctrine of “political question”,
states at 210 :
“ . . . it is the relationship between the judiciary and the coordinate branches of the
Federal Government, and not the federal judiciary’s relationship to the States,
which gives rise to the ‘political question’ [doctrine].”
And on the criteria for determining a “political question, the court at the same
page adopted its observation in Coleman v Miller 307 US 433 at 454-455; where it
had stated:
“In determining whether a question falls within the category of ‘political

questions’, the appropriateness under [the American] system of government of
attributing finality to the action of the political departments also and the lack of
satisfactory criteria for a judicial determination, are dominant considerations.”
The court then concluded at 210-211:
“The non justiciability of a political question is primarily a function of the

separation of powers . . . Deciding whether a matter has in any measure been
committed by the [Federal] Constitution to another branch of government, or

whether the action of that branch exceeds whatever its authority, has been
committed by the Constitution to another branch of government, or whether the
action of that branch exceeds whatever authority has been committed itself a
delicate exercise in constitutional interpretation, and is a responsibility of [the U.S.
Supreme] Court as ultimate interpreter of the Constitution.”
Thus it would seem that even in the United States the doctrine of “political
question” does not apply to the United States Supreme Court, the “ultimate
interpreter of the Constitution“, as our Supreme Court too is the “ultimate
interpreter” of our Constitution, 1992. In any case, by articles 1 and 2 of the
Constitution, 1992, that doctrine cannot have any application to us here in Ghana.
With us, issues of constitutional interpretation are justiciable only by the Supreme
Court, and not by any other court: see particularly, article 130 of the Constitution,
1992.
Than also it must be remembered that questions of human rights tend to have
large components of political issues. Yet in our Constitution, 1992 these questions
are reserved for or to the High Court in the first instance “without prejudice to any
other action that [may be] lawfully available”, to a litigant: see article 33 of the
Constitution, 1992.
Similarly, chieftaincy disputes almost always involve local, and often national,
politics. But these disputes are cognisable only by “chieftaincy tribunals” in the
first instance; the Supreme Court coming in only as a court of last resort: see
chapter 22 of the Constitution, 1992.
The conclusion is inescapable, that in this country we have no doctrine of “political

question” such as exists in the United States. What we have is a written
Constitution, 1992 to be interpreted and enforced, with the result that in Ghana,
courts and tribunals much lower in the hierarchy, than the Supreme Court may
lawfully decide cases which may involve “political questions.”
In further reaction to the defendant’s argument that the issue is a political one, it
must be understood that the Constitution, 1992 itself is essentially a political
document. Almost every matter of interpretation or enforcement which may arise

from it is bound to be political, or at least, to have a political dimension.
In its Report on a Proposed Constitution for Ghana, the Akufo-Addo Commission

observed:
“90. The dominant cry in all the evidence both oral and by memoranda which we
received is that never again should there be tyranny in Ghana ...
94. We appreciate that there is much politics involved in our proposals relating to
the defence of democracy. Our recent experience, however, makes it imperative
that there should be specific constitutional provisions to safeguard democracy...”
(The emphasis is mine.) I must say that in spite of these carefully woven
constitutional provisions and safeguards, democracy could not be protected, as we
all witnessed on 13 January 1972. The point, however, remains that provisions
relating to the protection of the Constitution, 1992 and the defence of democracy
are by nature political. And these provisions this court is by the Constitution, 1992
required to interpret and enforce. Therefore to refuse to do a constitutional case on
the ground that it is political is to abdicate our responsibilities under the
Constitution, 1992 and to breach, in particular, articles 2 and 3 thereof. Thus the
invitation to decline jurisdiction on that account is an invitation to this court to act
unconstitutionally, which invitation must itself be unconstitutional, as it cannot
but be subversive of the Constitution, 1992. I must reject that invitation.
There is another matter which must be disposed of along the way. As stated earlier,
the plaintiff relies, inter alia, on articles 35 and 41 of the Constitution, 1992. Both
these articles come under chapter 6 of the Constitution, 1992 titled: “The Directive
Principles of State Policy.” It has been maintained in certain quarters that these
directive principles are not justiciable, and therefore cannot avail the plaintiff.
I am aware that this idea of the alleged non-justiciability of the directive principles
is peddled very widely, but I have not found it convincingly substantiated
anywhere. I have the uncomfortable feeling that this may be one of those cases
where a falsehood, given sufficient currency, manages to pass for the truth.
I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not
justiciable: it is. First, the Constitution, 1992 as a whole is a justiciable document. If
any part is to be non-justiciable, the Constitution, 1992 itself must say so. I have not
seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me
that chapter 6 is not justiciable. The evidence to establish the non-justiciability
must be internal to the Constitution, 1992, not otherwise, for the simple reason that
if the proffered proof is external to the Constitution, 1992, it must of necessity
conflict with it, and be void and inadmissible: we cannot add words to the
Constitution, 1992 in order to change its meaning.
Secondly, notice that article 1(2) of the Constitution, 1992 speaks of inconsistency
with “any provision of this Constitution, 1992”; and article 2(1) of the Constitution,
1992 makes reference to inconsistency with or contravention of “a provision of this
Constitution.” None of these articles expresses an exception in favour of chapter 6.
Does it not follow that chapter 6 too, along with the rest of the Constitution, 1992, is
in the contemplation of articles 1 and 2 of the Constitution, 1992?
Thirdly, the very tenor of chapter 6 of the Constitution, 1992 supports the view that
the chapter is justiciable. The opening article, ie 34 of the chapter reads:
“34. (1) The Directive Principles of State Policy contained in this Chapter shall
guide all citizens, Parliament, the President, the Judiciary, the Council of State, the
Cabinet, political parties and other bodies and persons in applying or interpreting
this Constitution or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society.”
This is a compendious provision, grouping together a whole host of state

institutions and other bodies, discharging different functions. The language
employed therefore has been such as caters for these different functions. As far as
the judiciary is concerned, I ask myself the question:
How do the principles guide the judiciary “in applying or interpreting the
Constitution“ if not in the process of enforcing them?
The position becomes even clearer if related to the duties created by article 41 of
the Constitution, 1992. How is the judiciary to assist or facilitate the performance
of a citizen’s duty to, eg combat misuse of public funds” as required by article 41(f)
of the Constitution, 1992, if this is not in the course of enforcing another citizen’s
duty not to misuse public funds? Put illustratively, citizen A, in discharge of his
duty under article 41(f) of the Constitution, 1992 tries to stop citizen B from
misusing public funds. Can citizen A turn to the judiciary for help? If no, why not,
given the wording of article 34(1) of the Constitution, 1992? If yes, what role will the
judiciary be playing, short of enforcing article 41(f) of the Constitution, 1992?
As was observed in Tuffuor v Attorney-General [1980] GLR 637 at 649-650, CA

sitting as SC in relation to the Constitution, 1979:
“The Constitution confers on every citizen of Ghana by article 1(3): ‘the right to
resist any person or persons seeking to abolish the constitutional order as
established by this Constitution should no other remedy be possible.’ This means
that every citizen of Ghana has the right, constitutional or otherwise, to see to it
that the constitutional order as established by the Constitution is not abolished or
sought to be abolished. One method by which it could be determined whether a
person is seeking to abolish the constitutional order, is to seek for an interpretation
of the Constitution as to the meaning or the effect of a particular provision or
provisions of the Constitution.”
Substitute article 41 of the Constitution, 1979 for article 1(3) of the Constitution,
1992, and duty for right in the above passage, and you have, in my view, the correct
interpretation of the said article 41, or by extension, of any of the provisions of
chapter 6 of the Constitution, 1992.
I cannot see that the Constitution, 1992 will impose a duty by article 41 and then
turn round to thwart its performance. Such a bizarre intention must be shown by
express words or an implication that is imperative. It has been said that the use of
the phrase “shall guide” in article 34(1) of the Constitution, 1992 implies that the
directive principles are not meant to be justiciable. This argument is obviously
weak and unimpressive. After all, all laws are for our guidance, but they are not on
that account, non-justiciable. If the Consultative Assembly in 1992 had intended to
make the principles non-justiciable, they could have said so: they did not. Apart
from article 12(1) of the Constitution, 1992 which expressly states that chapter 5
(the fundamental human rights and freedoms) “shall be enforceable by the courts .
. .” no other chapter is expressed so to be. Yet, no one has argued that those other
chapters of the Constitution, 1992 are for that reason unenforceable. Chapter 5 of
the Constitution, 1992 would be enforceable even without that direction. The
appearance of that phrase in article 12(1) of the Constitution, 1992 and its absence
from chapter 6 of the Constitution, 1992 therefore cannot be used as a justification
or ground for interpreting chapter 6 of the Constitution, 1992 as unenforceable.
I concede that in its report, the Committee of Statutory Experts appointed in 1991
by the PNDC to make proposals for a draft Constitution did say at p 49, para 95
that: “By tradition Directive Principles are not justiciable.” (The emphasis is mine.)
The committee did not say what that tradition was or is. That statement could,
unintentionally, be misleading.
In the Consultative Assembly, it was recognised that the Constitution, 1979 was the
first of our several Constitutions in Ghana (1957; 1960 (amended in 1964); 1969) to
introduce the idea of directive principles. Both the Committee of Statutory Experts
and the Consultative Assembly relied almost entirely on chapter 4 of the
Constitution, 1979 for the debates on, and form of, the directive principles
contained in chapter 6 of the Constitution, 1992. The Committee of Experts
acknowledged this much at p 49, para 94 of their report: “The Committee used
Chapter 4 of the 1979 Constitution as a basis for its deliberations.” From which
acknowledgement, it would appear that the tradition the committee had in mind
was that commenced by or traceable to the Constitution, 1979.
If the committee contemplated any other tradition, it did not indicate it. In any
case, as at the time the committee was appointed in 1991, Ghana had, in this
respect, a tradition, in the Constitution, 1979, it is legitimate to conclude, in the
absence of contrary evidence, that the committee meant the Ghana tradition. By
that tradition, viz in the Constitution, 1979, the directive principles were
justiciable, which clearly contradicts the committee’s statement. There was
nothing in the Constitution, 1979 which said they were not. For purposes of
confirming this interpretation, reference may be made to the parliamentary
history of the chapter, which is a permissible practice.
The question of the justiciability of the chapter on the Directive Principles of State
Policy was debated at length in the 1979 Constituent Assembly. At its twentieth
sitting on Friday, 2 February 1979 the assembly expressly resolved to make the
chapter justiciable:
“MR. CHAIRMAN [Justice VCRAC Crabbe]: Now I am going to put the question.
And the question is the amendment as proposed by Mr. Zwennes that we should
make chapter four non-justiciable be accepted by the house.”
The question was then put. The result of the exercise was: “Question put and
negatived.” herefore the house rejected the idea that the directive principles
should be non-justiciable. In other words, that they should be justiciable. Given the
importance of the subject to the assembly a member after the voice vote, asked for
a head-count, and then a recording of names. In both, the justiciable group
defeated the non-justiciable group: see sheets 64-67 of the manuscripts of the
Official Report of the Constituent Assembly Debates of 2 February 1979, from the
Archives of Parliament. A member then tried to get the whole chapter removed
from the Constitution, 1979. That attempt was also defeated.
The debates confirm the interpretation that in the absence of anything in the
Constitution to the contrary, chapter 4 (The Directive Principles of State Policy) of
the Constitution, 1979 was justiciable. By the same yardstick chapter 6 of the
Constitution, 1992 is also justiciable.
The 1992 Consultative Assembly, obviously misled by the Committee of Statutory,

Experts, assumed wrongly that the “Directive Principles of State Policy are
traditionally non-justiciable.” (Observe the similarity in language). Apparently not
satisfied with the perceived character of the directive principles, the assembly
endeavoured to upgrade them to what they termed “a higher moral level” to make
them “imperative”, which everybody is “required mandatorily to observe.” This
was on a motion to change “are for the guidance of” in the original draft of article
34(1) to “shall guide” as we now have it: see the Consultative Assembly Debates, 22
January 1992, col 1593. It seems clear that but for the statement of the Committee
of Statutory Expects, different considerations might have prevailed in the
Consultative Assembly.
In any case, even if the debates in the Consultative Assembly may charitably be
interpreted as exhibiting some intention to make the directive principles non-
justiciable, that intention was not carried into the Constitution, 1992. The debates
themselves are inadmissible to contradict the language of the Constitution. That is
not permissible. As was stated by Coleridge CJ in R v Hertford College (1878) 3 QBD
693 at 707, CA:
“We are not, however, concerned with what parliament intended, but simply with
what it has said in the statute. The statute is clear, and the parliamentary history of
a statute is wisely inadmissible to explain it, if it is not [clear].”
The maxim is parliamentum voluisse quod dicit lex (what the law says is the wish
of Parliament, ie the language of the statute expresses the intentions of
Parliament). We may also turn with profit to Lord Halsbury LC in Hilder v Dexter
[1902] AC 474 at 477, HL:
“. . . in construing a statute ... the worst person to construct it is the person who is
responsible for its drafting. He is very much disposed to confuse what he intended
to do with the effect of the language which in fact has been employed. At the time
he drafted the statute, at all events, he may have been under the impression that he
had given full effect to what was intended, but he may be mistaken in construing it
afterwards just because what was in his mind was what was intended, though,
perhaps, it was not done.”
Similar sentiments were expressed by Lord Wright in Assam Railway and Trading
Co Ltd v Commissioners of Inland Revenue [1935] AC 445 at 458, HL:
“But on principle no such evidence [ie recommendations from a report of a Royal

Commission] for the purpose of showing the intention, that is the purpose or
object, of an Act is admissible; the intention of the Legislature must be ascertained
from the words of the statute with such extraneous assistance as is legitimate ... It
is clear that the language of a Minister of the Crown in proposing in Parliament a
measure which eventually becomes law is inadmissible [as evidence of the
intention of Parliament].”
We are advised in Maxwell on Interpretation of Statutes (10th ed) at pp 27-28 that:
“... the inferences to be drawn from comparing the language of the Act with the
declared intention of its framers would be that the difference between the two was
not accidental but intentional.”
The learned author gives the example of the Dower Act, 1833 (3& 4 Will 4, c 105)
which he says:
“was construed to apply to gavelkind lands, although this was avowedly contrary to
the intention of the real property commissioners who prepared the Act; for they
stated in their report that it was their intention that it should not extend to lands of
that tenure.”
The case cited for this is Farley v Bonham (1861) 30 LJCh 239.
Thus what the debates in the Consultative Assembly said cannot be admitted to
contradict what chapter 6 of the Constitution, 1992 itself say or does not say. In my
view, therefore, chapter 6 of the Constitution, 1992 is justiciable, in the same
manner as all the other chapters of the Constitution, 1992 are justiciable. The
plaintiff is perfectly in order in seeking to rely on any of the provisions of the said
chapter 6 of the Constitution, 1992, as it had indeed done.
Reading the relevant provisions of the Constitution, 1992 as a whole, the

impression is unmistakable that the idea is, inter alia, to ensure that never again
shall a Constitution be suffered to be overthrown or undermining by any means,
and that the people of Ghana must resolve never to entertain any such overthrow
or undermining. Of course, this does not mean that adventurers may not try. But
the Constitution, 1992 imposes a duty on all to see to it that whoever ventures does
not succeed: see especially article 3(4), (5), (6) and (7) of the Constitution, 1992.
The defendant says, however, that celebrating 31 December cannot be said to be

suspending or overthrowing the Constitution, 1992 as prohibited by article 3(3) of
the Constitution, 1992 so as to require any defensive action by anyone under article
3(4) of the Constitution, 1992. In other words, the act of celebrating 31 December
does not offend anything in the Constitution, 1992 and that that act cannot be
pushed under article 2 of the Constitution, 1992.
The plaintiff, on the other hand, contends in line with article 2 of the Constitution,
1992, that the date 31 December is contained in an enactment, PNDCL 220; that the
celebration is an act to be done under the authority of that enactment, and that the
act of celebrating is inconsistent with [some provisions] of the Constitution, 1992.
Article 3(4)(a) of the Constitution, 1992 has two separate and distinct parts. There
is, first, the general right and duty to defend the Constitution. Then there is,
secondly, the particular right and duty to resist anyone committing, or attempting
to commit, or aiding and abetting anyone to commit, any of the offences
mentioned in clause 3 of article 3(3) of the Constitution, 1992. Defending the
Constitution, 1992 under article 3(4)(a) therefore need not be a defensive action
against persons coming within article 3(3) of the Constitution, 1992, ie persons
engaged in a violent overthrow of the government or of the Constitution, 1992.
Indeed, the Constitution, 1992 may be defended against the government itself.
Article 3(4)(a) of the Constitution, 1992 confers a right, and both articles 3(4)(a) and
41(b) of the Constitution, 1992 impose a duty, on all Ghanaians to defend the
Constitution, 1992. The celebration of 31 December with carnivals, route marches,
etc having a tendency to glorify the coup d’etat of 31 December, will weaken the
people’s resolve to enforce this right, or perform this duty, ie their resolve to frown
upon, and/or reject coups, a result which will have the effect of undermining and
subverting the Constitution, 1992. It is an insidious and surreptitious way, of
undermining the Constitution, 1992. The celebration may not be a violent means of
subverting the Constitution, 1992; but surely it is an unlawful means under article
3(3)(a) of the Constitution, 1992, if only because its result is a subversion of the
Constitution, 1992. It is what an honourable member of the Consultative Assembly,
Hon Pius A Austin is credited as having described as a subversion “not by violence,
but by the very Government that is in existence, by the deeds and misdeeds of the
Government”: see Consultative Assembly Debates, 15 January 1992, col 1432). And
if I may quote another honourable member, Hon Mohammed Mumuni, for the
sake of completeness:
“I believe that we are dealing with a principle, and when we are dealing with a
principle you either wholly keep it or wholly reject it. You cannot compromise over
a principle. We are saying that at this stage of our political development, we must
come out positively and assuredly against any form of political adventurism.”
(The emphasis is mine.) See the Consultative Assembly Debates, 15 January 1992,
col 1417). Any form of political adventurism indeed, whether by violent means or
by other unlawful means: see article 3(3)(a) of the Constitution, 1992.
If the people have a constitutional duty to protect and defend the Constitution,
1992, then the same people cannot by themselves, or by anyone in their name, lay
out moneys and resources to play up the idea of coups, well knowing that this is
bound to undermine the Constitution, 1992. Celebrating the occasion with
carnivals, festivities and riotous merry-making is telling ourselves that the event
was a happy one; it was a good one. Such conduct will clearly be inconsistent with
the duty to defend the Constitution, 1992.
Certain days have, from long before the days of independence and after, stood the
test as national public holidays, and have always been celebrated as such without
question. These include 1 January (New Year’s Day), 6 March (Independence Day),
the Easter holidays (ie Good Friday, Holy Saturday and Easter Monday), 1 July
(Republic Day), 25 December (X’mas Day) and 26 December (Boxing Day). These
days one will find in every enactment relating to public holidays for the periods to
which the enactments apply), from the Public Holidays Ordinance, Cap 170 of 1899,
through the Public and Bank Holidays Act, 1958 (No 1 of 1958), the Public Holidays
Act, 1960 (Act 23) and others, right through all the military regimes (NLC, NRC,
SMC, PNDC) as well as the few Republics which have punctuated these military
regimes. There are other days which appear at one time or other, which are decreed
as national public holidays, only to vanish later, never to surface again.
It has been the convention that “coup days” have, by the fiat of the coup-makers
when they are in power, always been celebrated as public holidays, ie as special
occasions and/or as days of thanksgiving. Significantly enough, these coup
holidays do not survive the relative “coup regimes”, an indication of their inherent
weakness as national days. Thus 24 February, celebrated during the NLC regime,
ceased during the Second Republic and after. So also did 13 January cease in the
Third Republic and after.
Squadron Leader (Rtd) C M K Sowu, speaking on what he termed “the mechanics of

overthrowing a constitutional rule by force of arms” observed: “It is true also that
many people are not aware that since 1957, in this country we have either
overthrown the Constitution, the administration, every three years, until 31st
December, 1981. He than proceeds to supply further and better particulars:
“The first overthrow of the Constitution was in 1960. The second overthrow of that
Constitution of 1960 was in 1963. It is true that at that stage certain people
attempted to resist it within the House and they suffered for it. Then the 1966 coup
—we had the first military coup—and I think 1969, 1972, 1975, 1978 and 1981.”
See the Consultative Assembly Debates, 15 January 1992, col 1429.
The honourable chronicler does not give us the precise dates of these coups, but
surely he must have done his homework very well before giving the information to
the august body. From the narrative, we learn that from 1966 to date there have
been no less than six military coups, including 1981. During the ten to eleven years
rule of the PNDC, none of those other five coup dates was ever celebrated as a
public holiday and observed as such, except of course that of 1979 (June 4), for
obvious reasons. It may be true to say that in none of these cases was the
celebration of its anniversary carried into the next succeeding regime, civilian or
military, unless it be by default, which would appear to indicate that, there is no
logic in insisting that 31 December must continue to be celebrated as a national
holiday and be financed out of public resources, even after the coup regime to
which it relates has ceased to exist, unless the defendant is claiming that the
present regime which came into being on and after 7 January 1993 is the same as
the immediately preceding one of the PNDC (which he had not expressly done to
my knowledge).
But the defendant seeks to justify the expenditure of public funds on the grounds
that the celebration is not meant to commemorate the coup event itself, but the
values which that event brought about. These values counsel enumerated as, inter
alia, workers’ participation in government; rights of spouses, later to be codified as
the Intestate Succession Law, 1985 (PNDCL 111); popular participation in decision-
in-making, etc. This submission is obviously an elaboration of paragraph (14) of the
defendant’s statement of case, which pleads also “the party [NDC] manifesto
whose underpinning was continuity of the good works and values of the 31
December Revolution.” (The emphasis is mine.)
To contend that the celebration is not intended for the day 31 December itself is to
concede that 31 December as an event ought not to be celebrated, which is
precisely what the plaintiff is asking this court to declare. And as to celebrating
“the good works and value,” said to have been brought about by that event, I can
find no better comment than the words of the Hon Squadron Leader (Rtd) C M K
Sowu, whom I have already quoted:
“Each time a Government is toppled here, the first accusing words we use is [sic]
that that Government has mismanaged the economy of the country, the second
accusing words that follow are that they have misused power; the third accusing
words are that they had been corrupt and the fourth accusing words are that we as
a people have been apathetic.”
See the Consultative Assembly Debates, Wed, 22 January 1992, col 1609.
The world owes it to Shakespeare that: “The evil that men do lives after-them; the
good is oft interred with their bones.” It would seem that this observation may be
true of men only, not of governments; and that with governments the reverse is
nearer the truth, namely that: “The good that governments do lives after them; the
evil is oft interred with their bones.” And I may, add:
“So let governments take heed.” A statement such as “we are celebrating values
and good works” can be self-serving, and may ignore the truth in the age-old adage
that the length of the frog may be known only after its death. It also shows that we
may not have learnt our lessons of history as well as the houourable squadron
leader. Such an assertion cannot be a constitutional justification for elevating an
event of non-national interest into a national one, on which to expend national
resources.
Section 34 of the transitional provisions of the Constitution, 1992 on indemnity is

too well known to require reproduction. The said section as already stated
presupposes that the event which took place on 31 December 1981 was a not lawful
one, and that this fact is conceded by the PNDC, among others. The section does
not legalise the coup of 31 December 1981 nor any of the coups mentioned there. It
only grants the coup-makers an indemnity, in the nature of public pardon, to free
certain persons from liability and punishment for, in the instant case, the event of
31 December and its sequel, which acts have been carefully spelt out under,
particularly, article 34(2) of the Constitution, 1992. It seems to me incongruous that
after this pardon of a conduct considered improper and unlawful (for there would
be no need for a pardon if the conduct were lawful and proper), the public will seek
to romanticise the same event with carnivals and route marches. An exhibition of a
more inconsistent behaviour than this in a people, including members of the
government, cannot be imagined, justifying the plaintiff’s action under article 2(1)
(b) of the Constitution, 1992.
Besides, those few persons pardoned, few, that is considering the total population
of Ghana, cannot, should they happen to control the levers of power within the
State, cock a snook at the public and the Constitution, 1992 which have given them
this pardon, by a public commemoration of the very acts for which they have been
pardoned, using public money and resources in the process! Such conduct must
certainly offend if not the letter, at least the spirit or (as the Committee of Statutory
Experts put it) “the conscience” of, the Constitution: see also Tuffuor v Attorney-
General (supra) at 647.
Article 41(f) of the Constitution, 1992 enjoins every citizen: “(f) to protect and
preserve public property and expose and combat misuse and waste of public funds
and property.” If, as I conceive it to be, the celebration of 31 December in the
circumstances in which it is sought to be celebrated is unjustified, then any
expenditure of public funds in that regard will be a misuse and waste of public
funds. The plaintiff is entitled to proceed under the said article as a matter of duty
to combat such misuse, with a view to protecting and preserving public property.
The question may be asked: What would have become of 31 December had the
elections of November 1992 gone differently? The defendant’s answer to this
question is in paragraph (13) of his defence, viz: “13. . . . that the Constitution, 1992
establishes a nexus between the 31 December revolution and the Constitution
itself.” No argument was addressed to us on this “nexus”, and I ams not sure I
understand paragraph (13) of the defence. If the paragraph is intended for the
several references to the PNDC and the coup of 31 December 1981 in the
transitional provisions of the Constitution, 1992, especially section 34, it must be
clear to all that the said section 34 of the transitional provisions of the
Constitution, 1992 does no more than offer an indemnity, a pardon, to all coup-
makers, dead or alive, who overthrow governments on 24 February 1966, 13

January 1972, 4 June 1979, as well as 31 December 1981. This pardon has nothing to
do with whether 31 December should continue to be observed as a public holiday
or not. Otherwise all the other “coup dates” mentioned in section 34 of the,
transitional provisions of the Constitution, 1992 should also be observed as public
holidays and celebrated as such. A discrimination against them will appear
unconstitutional as not being in conformity with section 34 of the transitional
provisions of the Constitution, 1992. I have reason to believe that no one subscribes
to the view that the dates in section 34 of the transitional provisions of the
Constitution, 1992 are intended as public holidays.
The defendant raises yet another defence, in paragraph (14) of his defence, viz:
“(14) . . . that the President of the Republic who was also the chairman and leader of
the 31 December revolution and the members of Parliament of the NDC party to
which the President belongs, were elected on the party manifesto whose
underpinning was continuity of the good works and values of the 31 December
revolutions.”
As to this “manifesto and continuity” theory, it may be enough to say that the
courts are sworn “at all times to uphold, preserve, protect and defend the
Constitution and laws of the Republic of Ghana”: see the judicial oath. They are not
sworn to uphold and defend the manifesto, and theories of government, however
lofty, of any political party or parties. Party manifestoes do not fall within the
definition of “the Constitution and laws of the Republic of Ghana.” Significantly
enough, the President too, who may be leader of his party, as well as his ministers,
and all the NDC members of Parliament referred to in the said paragraph (14),
swore to “uphold, preserve, protect and defend the [same] Constitution,” not the
party manifesto (with its underpinning of continuity), on the basis of which they
fought the elections and gained access to Parliament, or to their several positions
and offices.
Interestingly, in the case of the President, he swore additionally:
“ . . . that should I at any time break this oath of office, I shall submit myself to the
laws of the Republic of Ghana and suffer the penalty for it. So help me God.”
It has been said that this additional undertaking, constitutes a voluntary a waiver
of whatever immunities are conferred on the President by the Constitution, 1992.
The matter does not directly arise in these proceedings, and I express no opinion
on it.
On the whole, I take the view that the plaintiff has made out a case against the
observance of the anniversary of 31 December 1981 as a public holiday, to be
celebrated as such and financed out of public funds. It is for the reasons stated
above that I decided the case in favour of the plaintiff, and granted the declarations
sought.
FRANCOIS JSC
By its writ, the plaintiff, the New Patriotic Party, sought two declarations from this
court. The first, a declaration that the public celebration of 31 December and the
financing of such a celebration from public funds is contrary to the letter and spirit
of the Constitution, 1992. The second, a consequential order prohibiting the
financing of such a celebration from public funds. The plaintiff relied on articles
3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992.
It has not been difficult to come to the conclusion that the public commemoration
of an event that signified the violent overthrow of constitutionally, elected
government, against the letter and spirit of the Constitution, 1992. I now proceed to
state my reasons.
The Decision
As a necessary preamble, it is worth repeating that this court did not prohibit or
debar anybody so minded, from celebrating the 31 December event, provided the
celebration was not financed from public funds and no one was coerced into
recognising the day as a public holiday. It is common knowledge that the non-
observance of a public holiday attracts sanctions in this part of the world: see the
Public Holidays Law, 1985 (PNDCL 220), s 5. The removal of this liability, by erasing
the public character and the public financing of any celebrations of that day, was
the kernel of our decision of 29 December 1993. Our Constitution, 1992 permits
freedom of association. Implicit in this, is the unrestrained liberty to promote and
enjoy popular social forums and gatherings, provided such group activities did not
violate any laws. So 31 December could be celebrated within the limits we placed
on it. In short, we only circumscribed the options for its celebration by detaching
any national or public character from it, and prohibited any public expenditure on
its account.
The Constitution, 1992
We need constantly to remind ourselves that the Constitution, 1992 was born of a
consensus, which was formally approved in a national referendum. The
Constitution, 1992 consequently embodies and represents the people’s will. A
sovereign people, accordingly, has ordained that the Supreme Court should be the
appropriate arbiter in determining, among other things, all issues that border on a
negation of constitutionalism. It has charged it with the duty of nullifying any act
inconsistent with or in contravention of the provisions of the Constitution, 1992.
The power to strike down constitutional anachronisms or aberrations, is not

unusual in many democratic regimes. Thus, Chief Justice Marshall of the United
States Supreme Court observed in Marbury v Madison, 5 US (1 Cranch) 137 (1803)
regarding the separation of powers: “It is emphatically the province and duty of the
judicial department to say what the law is.” And Justice Barak of the Israeli
Supreme Court, also said in Kach Faction v Knesset Speaker, Jerusalem Post LR 35
(1993), “any other conclusion would be contrary to the basic concept of separation
of powers and the checks and balances that flow from the scheme of a tripartite
government.”
The Letter and Spirit of the Constitution
A constitutional document must be interpreted sui generis, to allow the written

word and the spirit that animates it, to exist in perfect harmony. It is interpreted
according to principles suitable to its particular character and not necessarily
according to the ordinary rules and presumptions of statutory interpretation: see
Minister of Home Affairs v Fisher [1979] 3 All ER 21, PC. This allows for a broad and
liberal interpretation to achieve enlightened objectives while it rejects hide-bound
restrictions that stifle and subvert its true vision. In the celebrated case of Tuffuor
v Attornery-General [1980] GLR 637 at 647, CA sitting as SC the court said:
“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-hcad for the authority which each of the three arms of government
possesses and exercises.”
My own contribution to the evaluation of a Constitution is that, a Constitution is

the out-pouring of the soul of the nation and its precious life-blood is its spirit.
Accordingly, in interpreting the Constitution, we fail in our duty if we ignore its
spirit. Both the letter and the spirit of the Constitution are essential fulcra which
provide the leverage in the task of interpretation. In support of this, we may
profitably turn to the Constitution, 1992 itself which directs that we accord due
recognition to the spirit that pervades its provisions.
In article 17(4)(d) of the Constitution, 1992, Parliament is enjoined not to enact laws
“inconsistent with the spirit of this Constitution.” Pausing for a moment, it stands
to reason that if Parliament ignores this caveat, the Supreme Court has power to
strike that legislation down: see articles 1(2) and 2 of the Constitution, 1992. Again,
in article 21(4) of the Constitution, 1992 where restrictions are imposed in the
interest of defence, public safety or public order by court process, the Constitution.
1992 nevertheless requires that what is “done under the authority of that law” does
not offend “the spirit of this Constitution.” Another example of the all-pervasive
and embracing spirit to which there is a mandatory call to obeisance, is article 33(5)
of the Constitution, 1992. All are enjoined to go beyond the written provisions
enshrining human rights, and to extend the concept to areas not specifically or
directly mentioned but which are “inherent in a democracy and intended to secure
the freedom and dignity of man.” This is a poignant injunction to examine deeply
any written provision so that its interpretation extends in depth to embrace its
underlying spirit and Philosophy.
Constitutions differ. Some spell out in detail specific provisions to meet envisaged
circumstances. Some are frugal with the written word allowing for innovation. But
in every case, a true cognition of the Constitution can only proceed from the
breadth of understanding of its spirit. Sometimes the draftman’s felicity of

language is seriously in question. But that notwithstanding, and despite the fact
that the tailoring may betray a clumsy or unskilled hand, if the spirit is breathed
into the written word, the objectives of the fundamental law can be achieved. The
necessary conclusion is that the written word and its underlying spirit are
inseparable bedfellows in the true interpretation of a Constitution.
If more persuasion were necessary, one would note what an American jurist,
Justice Jackson, once said about the unwritten word in a Constitution. He said:
“perhaps even more than by interpretation of its written word, this Court has
advanced the solidarity and prosperity of this nation by the meaning it has given to
these great silences of the Constitution.”
Indeed, it is the proper ascertainment of these silences that provide the measure of
understanding of the basic constitutional concepts of the fundamental law.
Finally, on this aspect of the spirit of the Constitution one cannot omit reference to
the wisdom of Ecclesiastes, chap 8, v 8: “There is no man that hath power over the
spirit to imprison the spirit.”
The People’s Choice
By its sovereign will, the people of this country have chosen a multi-party system
of government to regulate their affairs. The fact that they chose a new direction
and a new system of governance, is the clearest pointer to change. In charting a
different course, the democratic path, the people of this country took a solemn step
away from what was, immediately prevailing. Viewed in this light, it is idle and
illogical to hold that the old order has yielded place to nothing new. Especially
when the new order is diametrically opposed to the old which it supplanted.
Looking then at the letter and spirit of the Constitution, 1992, we can hardly fail to
conclude that the sum total of its provision demonstrate unequivocally an
estrangement from the old order, and betrays a consanguinity rather with past
constitutional regimes than with what it immediately displaced.
This retracing of steps to the accustomed and familiar path, with a willingness and
a determination to make a success of democracy this time round, is being severely
tested in this matter. The will of the people, in the present context, if understood
properly, is a solemn and incontrovertible declaration that however benevolent the
resultant effect of the assault on constitutionalism, 31 December 1981 may be it
could not earn the distinction of constitutional propriety.
The Constitution, 1992 is a severance from the immediate past which it attempts to
bury by prohibiting the exhumation of any aspect of it that could recall bitter
memories, resentment or revenge. The Constitution, 1992 with a charity of
language that defies any attempt to obscure its purpose, condemns unreservedly
any attempt to overthrow a duly constituted government by unlawful means: see
article 3 of the Constitution, 1992. Any such attempt would bear not only the stain
and reproach of unconstitutionalism but would purchase for its perpetrators the
severest sanctions.
Counsel for the State argues in paragraph (10) of the defence that the Constitution,
1992 did not intend to look at unconstitutional acts with retrospective eyes.
Regrettably, that argument misreads the Constitution, 1992 and misses completely
the force of its spirit. For if the Constitution, 1992 frowns on violent overthrows of
duly constituted governments, and rejects acts that put a premium on
unconstitutionalism to the extent of even proscribing the promotion of a one party
state, it is naivety of the highest order, to expect that very Constitution, and in the
same breath, to sing Hallelujah’s in a paean of praise to unconstitutional
deviations, past or present. If the past is being duly buried, the spirit of the
Constitution, 1992 would frown on the resurrection of any of its limbs. That is the
whole point of the cloak of indemnity conferred in section 34 of the transitional
provisions of the Constitution, 1992 which will be addressed later. The quid pro
quo, is an expected reformation that would not flaunt the past upon a forgiving
people and subject them to a lifetime of trauma. In short, it is conceded that the
Constitution, 1992 does not retroactively punish the actors in a coup d’etat, but at
the same time it places an embargo on future coups and on a parity of reasoning,
frowns on any reminders of it, especially its celebration.
The Celebration
By definition, a celebration is a public observance which honours an event. It is

accompanied by festivities and a general atmosphcre of exhilaration. It extols and
praises the event it commeorates. If it is a public celebration, then obviously the

entire public, except those in perpetual disgruntlement with life itself, would
participate in the jolly making. Example, Independence Day. But where with the
advent of 31 December 1981, a sizeable section of the people recite a litany of ills
and perpetually relive them, it cannot, with the best will in the world, be classified
as an ideal scenario for a public celebration, nor can its baleful antecedents escape
judicial notice. Logic and prudence would dictate the prohibition of such a public
to-do that would only promote division and fly, in the teeth of the constitutional
injunction to let bygones be bygones.
It is insensitiveness of a very high order which this court can countenance only
with discomfort. Indeed, how can the objectives stated in article 35(4) and (5) of the
Constitution, 1992 be achieved in the heightened atmosphere of distrust and
division. Article 35(4) and (5) states:
“(4) The State shall cultivate among all Ghanaians respect for fundamental human
rights and freedoms and the dignity of the human person.
(5) The State shall actively promote the integration of the peoples of Ghana and
prohibit discrimination and prejudice on the grounds of place of origin,
circumstances of birth, ethnic origin, gender, or religion, creed or other beliefs.”
Put bluntly, there will always be a substantial section of the people of this country
and not a petulant few, who will never see joy in a 31 December celebration. It is for
such as these, that the State is to take appropriate measures to achieve the happy
result of fostering a spirit of loyalty to Ghana that overrides every other loyalty and
promote among the people of Ghana the culture of political tolerance: see article 35
(6)(a) and (9) of the Constitution, 1992.
It was most unfortunate, that counsel should consider it proper to test a political
gambit by inviting us to saunter along an avenue which our jurisdiction does not
permit us to; I refer to the argument that urges us to consider the historical merits
of the 31 December insurrection. To argue, as counsel did, that 31 December is of
historic importance because it ushered in a millennium of peace and stability,
attracting in its train an economic renaissance unparalleled in the history of this
country (if I correctly capture his drift), is completely to misapprehend the limits of
our judicial function; which I repeat, is simply to juxtapose the 31 December event
with the new order, on the constitutional divide, to pronounce it wanting or not
wanting in the quality of its relationship with constitutionalism.
Equally irrelevant, for the same reasons, were the references made in this court to
other revolutions elsewhere which attained a permanent status by being officially
celebrated, and the attempt to persuade its to confer the same distinction on 31
December. It must be repeated, that the changed democratic direction of pluralism
that the Constitution, 1992 ordains and the very limits which the Constitution, 1992
places on our judicial role, put effective fetters on our embarking on a discussion of
the merits of 31 December.
But one may comment that such arguments place a premium on coups d’etat. They
seek an indorsement of revolutionary acts that topple governments before their
time, and demand a blessing to recipes and prescriptions for the violent overthrow
of constitutional regimes.
Article 3(3) of the Constitution, 1992 prescribes that:
clause;
suffer death.”
The Deputy Attorney-General urged two other, matters that must be squarely
answered. But first, it must be pointed out that any attempt to align this court’s
exercise of its interpretative jurisdiction to foraging in politics, is as mischievous as
it is unfortunate.
In existence in our statute books is a law, PNDCL 220, designating 31 December as a

public holiday. The Deputy Attorney-General, as an officer of the court, has
affirmed that money was voted by Parliament to celebrate the 31 December event.
The simple issue that arises, as I have been at pains to point out, is whether in view
of the new path the people of this country have chosen to tread and which is at
odds with violent revolutionary changes of governments such a public celebration
is not a violation of the Constitution and consequently self-condemnatory. The
admission that a violent overthrow of government occurred on 31 December,
forecloses any sanctioning of its public celebration in a constitutional era.
Equally outside our purview was the argument that the 31 December revolution
flowed into the Constitution, 1992 with “its good works and values.” Counsel’s
language ipsissima verba. Here again, the dimensions of our duty of interpretation
were missed. For whether the event was an auspicious ray of sunshine, or
alternatively a dark cloud on the historical landscape, is clearly outside our
bounds. To link our duty with a subversive quest to undermine section 34(2) of the
transitional provisions of the Constitution, 1992, as was stated in paragraph (15) of
the defence, is also unfortunate and mischievous. Perhaps we may again look with
profit at Tuffuor v Attorney-General (supra) at 655-656 where the court said:
“... [no] person in authority can clothe himself with conduct which the
Constitution has not mandated ... The question whether an act is repugnant to the
Constitution can only be determined by the Supreme Court.”
(The emphasis is mine)
Before the insurrection of 31 December 1981, the people of this country, in the
exercise of their inalienable rights, as enshrined in their Constitution, 1979, voted
into office a government of their choice. It was the expression of their sovereign
will. The insurrection of 31 December however overthrew this legally constituted
government. It was not by due process as provided in the Constitution, 1979 for the
termination of a government, but by violent, unlawful means. It is now being
advocated that the celebration of this illegality is still permissible or should be, in a
constitutional era, and that this court should confer its constitutional blessing on
the event.
I see a patent incongruity, a contradiction in terms in this competition for

respectability and legitimacy, between the usurpers of power and the victuals of a
successful putsch. Constitutional evolution and illegal revolution are poles apart
and like east is to west, “never the twain shall meet.” They certainly cannot jostle
with each other in jocund camaraderie.
The issue must not be blurred into a moral, in contra-distinction to a legal one.
While this court cannot compromise its judgment by accepting arguments that
emanate from the forum of conscience, beholden as we are only to the supremacy
of the law; at the same time, we should decline to dismiss out of hand, issues of
mixed law and conscience, merely, because they are interwoven. It must be truly
recognised that there are many grey areas, where constitutional imperatives
cannot be divorced from the dictates of good conscience. This is not a mere
intellectual engagement or as academicians will put it, a dialectical disputation.
Some illustrations are called for. If the argument on the supremacy of the 31
December event is sound, it is curious there is no support for it in the Constitution,
1992 itself where we rather see, transparently beyond peradventure, an attempt to
distance constitutionalism from overthrows of duly constituted governments.
Again, if the achievement of 31 December should maintain a pride place in the

social fabric as urged, it is strange that, that event was not excepted from the
general antipathy expressed in the constitution, 1992 towards the heresy of
revolutions, with the accompanying penalty of the forfeitment of life itself.
The other window offers a corresponding view. Ancient mythology and Christian
theology both recognise a Deus ex machina; that dreadful engine of vengeance that
comes as a thunderbolt to impose draconian solutions on mortal mistakes. In the
Christian world it is a chastening or corrective machinery to enforce the
renunciation of evil ways, to obtain salvation. But no one in his proper senses,
would place such an event on a pedestal for worship and veneration.
That would accord ill with the Lord’s own sense of justice. For it is not a day
marked with rejoicing and festivities; rather it conjures the scenario of sackcloth
and ashes. So 31 December receives the rebuff of conscience in its efforts at
acclamation. The legal determination achieves the same results. For the shroud of
indemnity in section 34 of the transitional provisions of the Constitution, 1992
completely mummifies the 31 December event and reduces it to an impotent,
unmentionable event at law. It must remain so in its sarcophagus.
That said, it is not our province to indulge in a debate on extrinsic merits. For we
do not espouse a cause or denounce one. The historic perspective allowed us, is
only to place 31 December on the calendar as a happening. We accordingly leave it
to history and posterity, as better judges, to pronounce on the quality of that event,
and give it its rightful place. For it is history that accords its epic moments the
distinction of an indestructible accolade.
One can hardly resist here a pertinent aside. The proper evaluation of any
historical event, requires a measured period of time for analysis, untrammelled by
emotive or other considerations. Those breathing the current air are enveloped in
its environment and are disabled by their proximity to the event in time and place,
from making sound, objective and valued judgments. Fortunately and I repeat, it is
not the province of this court to embark on an evaluative excursus. Ours is to relate
that day, 31 December, with all its trappings, to the new political order ushered in
by the Constitution, 1992 and to declare whether the two could comfortably co-
exist. And, if not, whether reminders of that event in public celebrations and at
public expense could be permitted in our changed democratic circumstances.
A democratic commitment demands an unremitting effort at ascertaining the

underlying spirit of the Constitution, 1992 and obeying it. Thus may we turn with
profit to article 56 of the Constitution, 1992. This article embodies the spirit which
compels the rejection of the servitude which arbitrariness imposes and which a
slave mentality willynilly accepts. Article 56 of the Constitution, 1992 states:
“56. Parliament shall have no power to enact a law to establish or authorise the
establishment of a body or movement with the right or power to impose on the
people of Ghana a common programme or a set of objectives of a religious or
political nature.”
Enshrining the 31 December event as a public holiday, breaches article 56 of the

Constitution, 1992. Parliament cannot authorise expenditure from state coffers for
the commemorative celebration of all illegal event which many citizens may not
approve. Inherent in article 56 of the Constitution, 1992 is the impropriety to
impose and ram down people’s throats unpopular programmes with set political
objectives.
Implicit also in this article, is the invitation to all constitutionally minded citizens
of Ghana to fight the imposition or infliction of private programmes on the public
and to resist their coercive enforcement through the machinery of the law.
The Indemnity
An indemnity suggests exemption from penalties. It is the closing of a chapter. The

commencement of a fresh start with the opening of a new page. Recriminations,
enmity and rancour which may be carried over from the past, are proscribed. In
constitutional terms and with the relevance of our own circumstances, an
indemnity connotes a perception of a bright future with all past errors consigned to
the archives of history. There is a tacit implication that it may not augur well for
the country, if it were to be perpetually embroiled with the rights and wrongs of the
past and the vengeful pursuit of the pound of flesh. With that setting, it is clearly
unjust to exacerbate old wounds by permitting echoes ot the past to reverberate
and shatter the tranquility the Constitution, 1992 sought to promote with its
reconciliatory arrangements.
An event that has earned its architects an Indemnity under section 34 of the
transitional provisions of the Constitution, 1992, must, as observed before, be
consigned to the grave with the solemn quietus intoned by the said section. The
Constitution, 1992 reminds us that three such events in the past are to be buried
with the indemnity of a pardon. Their ghosts should not linger around like
phantom wraiths dispensing mischief with reckless abandon. A crude analogy, is
tying up the hands of a boxer to allow an adversary to pummel him into
submission, pronounce his defeat, and still allow the slaughter to continue.
Conclusion
I permit myself the indulgence to make some observations in conclusion. Even as

it is axiomatic that one cannot boast of being a true Christian if one is not
acquainted with the Good Book, so does ignorance of the Constitution, 1992 project
an unwillingness and an inability to defend it. How can the duty which every
citizen is required to discharge in defending the Constitution, 1992 under articles
3(4) and 41(b) be accomplished if its provisions are unknown, and citizens remain
ignoramuses of the fundamental law. The narrow division this case has caused, is
the clearest manifestation of judicial independence; that quality of freedom the

Constitution, 1992 itself seeks to promote. This freedom is a necessary adjunct to
the successful defence of the new social order and sustains the springboard for
progress in our human development.
The opposing views we express are not caustic reflections on contrary views. They
are honest individual perceptions of controversial matters. As W O Douglas puts it
in his article “The Dissent: A Safeguard of Democracy” (1948) 32 J Am Ind Soc’y at
pp 104-107:
Disagreement among judges is as true to the character of democracy as freedom of

speech itself ... The truth is that the law is the highest form of compromise between
competing interests; ... it is the product of attempted reconciliation between the
many diverse groups in a society ... When judges do not agree, it is a sign that they
are dealing with problems on which society itself is divided. It is the democratic
way to express dissident views. Judges are to be honoured rather than criticised for
following that tradition, for proclaiming their articles of faith so that all may read.”
If our Constitution, 1992 is to play an effective part in forging a virile democracy, it

would be unacceptable to dilute its force with the demolition of the structure of
checks and balances that sustains it or negate its provisions on the altar of peace
and stability. The court’s independence and integrity are themselves powerful
instruments for peace and tranquility. It was the late Chief Justice Snoira of the
Israeli Supreme Court, who said that in any competing tryst “between truth and
stability, truth must prevail.”
I conclude with two quotations which sum up this whole exercise of interpretation.
The first is from Tuffuor v Attorney-General (supra) at 664:
“The ideals which the framers of the Constitution were at pains by the letter and
spirit of this Constitution to establish ought to be respected and adhered to. They
are justice and fairplay; abhorrence of arbitrariness and discrimination;
victimisation and vindictiveness; the protection of the individual and his
fundamental human right[s], within the walls of the Constitution. We believe it was
in pursuance of these ideals that the framers of the Constitution, formulated their
proposals. . .”
To Lord Tennyson is reserved the last word. His counsel in one of his peoms is to “.
. . take occasion by the hand and make the bounds of freedom wider yet. Broad
based upon her people’s will.”
ABBAN JSC
On 21 December 1993 the original jurisdiction of this court was invoked by the
plaintiff by a writ in which the plaintiff sought two reliefs. In the first relief, the
plaintiff prayed that the public celebration which was scheduled to take place on 31
December 1993, and the financing of the activities involved in that celebration
from public funds should be declared unconstitutional; and the defendant should
be ordered to refrain from carrying out the said celebration on 31 December 1993. It
would be better to set out the full text of the reliefs, as amended. They read:
and spirit of the Constitution, 1992 and more particularly articles 3(3),(4), (5), (6)
and (7), 35(1) and 41(b). thereof.
The success of the second relief depended on the success of the first relief. The
plaintiff also set out in its “statement of case” the basis for seeking the above
declarations. The pleadings filed by both parties are very important and they ought
to be set out where necessary, in extenso.
In paragraphs (3), (4), (5), (6) and (7) of the plaintiff’s statement case, the plaintiff
clearly gave the summary of the provisions of articles 3(3), (4), (5). (6), (7), 35(1) and
41(b) of the Constitution, 1992 which were referred to in the first relief. In due
course, the exact wording these articles would be quoted and critically examined to
find out whether any of those provision expressly or by implication banned or
prohibited the intended celebration.
However, paragraphs (8), (9), (10) and (11) of the statement of case alleged and I
quote:
“(8) In a publication in the print and other media in Ghana on or about 14

December it was reported that the Government of Ghana had decided to organise
celebrations to mark the overthrow of the constitutionally and legitimately elected
Government of the Third Republic of Ghana by violent or other unlawful means on
31 December 1981, by a route march involving the security services and voluntary
organisations, and a wreath laying ceremony at the Revolution Square and a
musical carnival at Trade Fair Centre which is situate at La in Accra.
(9) On or about Friday 17 December 1993 it was further announced in the media in
Ghana that 31 December 1993 would be observed as a holiday in celebration of the
violent and unlawful overthrow of the legally constituted Government of Ghana on
31 December 1981 aforesaid.
(10) The plaintiff will contend that such celebrations, route marches and musical
carnivals cannot be held without financing and that such financing would
necessarily have to come from public funds.
(11) The plaintiff will contend that the financing of such celebrations from public
funds offends against the very existence of the Constitution, 1992 that it is an
affront to democracy and democratic constitutional rule and is subversive of the
whole of the Constitution, 1992 and further that the financing of such celebrations
from public funds is totally unconstitutional.”
The defendant denied paragraphs (8) and (9) of the plaintiffs statement of case and
averred that:
“the print and other media on or about 14 December 1993 reported a press release
from the Information Services Department stating that ‘A number of activities have
been planned throughout the country to mark the twelfth anniversary of the 31
December Revolution and the first anniversary of the Fourth Republic.’”
The defendant, in his paragraph (5) of the defence, also denied the plaintiff’s
paragraph (9) in the following terms:
“(5) The defendant denies paragraph (9) of the statement of plaintiff’s case and
would say that the Minister of Interior issued a statement on 17 December 1993,
which was announced by the media saying, inter alia, that ‘The Minister of Interior
has announced that Saturday, 25 December, Christmas Day; Sunday, 26 December,
Boxing Day; and Friday, 31 December, Revolution Day are statutory holidays.’”
Photocopies of the two press releases in question and referred to in the defence
were annexed to the defence as annexure A and read:
“Ghanaian Times: Tuesday 14 December 1993 No. 11,349—Anniversary

Programmes. A number of activities have been planned to be held throughout the
country to mark the 12th anniversary of the December 31 Revolution and the first
anniversary of the Fourth Republic.
A release issued by the Information Services Department in Accra said the

highlight of activities marking the December 31 anniversary in Accra would be a
route march to be followed by a wreath-laying ceremony at the Revolution Square.
Taking part in the route march will be the security services and various voluntary
organisations.
There will be a musical carnival at the Trade Fair Centre in the afternoon.
The release said on January 7, the first anniversary of the inauguration of the
Fourth Republic, there would be a ceremonial parade of the security services and
voluntary organizations at the Independence Square to be followed in the
afternoon by a cultural display.
The celebrations would be rounded off with non-denominational thanksgiving

services on January 9 in all parts of the country—GNA.”
The defendant’s annexure B was a release, this time from the Ministry of Interior
published in the People’s Daily Graphic on Monday, 20 December 1993, No 13393
and reads:
“HOLIDAYS: The Ministry of the Interior has announced that Saturday December
25 Christmas day, Sunday December 26, Boxing day and Friday, December 31
Revolution day are statutory holidays.
A statement issued in Accra said Saturday January 1 is New Year’s day and that
Friday January 7, will be observed as the Fourth Republic Day.
It said in accordance with section two of the Public Holidays Law, since Christmas,
Boxing and New Year Holidays fall on non working days, Monday December 27,
Tuesday December 28 and Monday January 3 have been declared public holidays
instead—GNA.”
As I said earlier on, the pleadings filed by the parties in this suit to me are very
pertinent, because they offered great assistance, and they lucidly put forward the
contentions of the parties, quite apart from the oral arguments which were
presented to the court. I would therefore quote also the defendant’s paragraphs (6),
(7), (8), (9), (10), (12), (15) and (16):
“(6) The defendant admits paragraph (10) of the statement to the plaintiff’s case,
and says that money was legally appropriated under the 1993 budget which are
lawfully being used for the celebration of both the historical values that the 31
December revolution stood for and the first anniversary of the Fourth Republic
which was born out of the values of the 31 December revolution.
(7) The defendant denies paragraph (11) of the statement of the plaintiff’s case and
says that section 19 of the transitional provisions of the Constitution, 1992 validates
the 1993 budget.
(8) The defendant will contend that 31 December like all public holidays in Ghana
is a public holiday by virtue of the provisions of section 1 of the Public Holidays
Law, 1989 (PNDCL 220).
(9) The defendant will contend further that articles 3, 35(1) and 41 (b) of the
Constitution, 1992 do not support the contention that the celebration of 31
December as public holiday is unconstitutional.
(10) The defendant will further say that the 31 December Revolution of 1981 and the
regime it gave birth to are events which the Constitution, 1992 does not intend
retrospectively to declare unconstitutional ...
(12) The defendant says that whether or not public funds should be appropriated
for the celebration of the 31 December revolution is political question which is best
left to the, electorate which votes a government into power and a Parliament which
can by law decide what the public holidays of Ghana shall be ...
(15) The defendant maintains that what the plaintiff is seeking to do is to question
the constitutionality and legality of the 31 December Revolution, and events which
gave rise to that revolution on 31 December 1981 which should not be entertained
by the court by virtue of section 34, particularly subsection 2, of the transitional
provisions scheduled to the Constitution, 1992.
(16) The defendant says in the premises that the plaintiff is not entitled to the
reliefs sought or at all.”
(The emphasis is mine.) That was the state of pleadings and upon those pleadings
oral arguments were addressed to the court.
What Were the Triable Issues
From the pleadings the triable issues in this case were first, whether the public
celebration due to take place on 31 December 1993 in commemoration of the
revolution of 31 December 1981 was unconstitutional. Secondly, whether public
funds being expended in preparation for that celebration were also
unconstitutional. Thirdly, if, the intended celebration on 31 December 1993 and the
expenditure of public funds in respect of the said celebration were found to be
unconstitutional, whether this court should make an order stopping the defendant
from carrying out the celebration on 31 December 1993 and from making the said
preparatory expenses from public funds.
It was on the consideration of the pleadings filed in the case and also on the oral
arguments presented in support of the pleadings that this court on 29 December
1993, by a majority of 5-4, gave. judgment in favour of the plaintiff and reserved its
reasons.
The split decision was short and proceeded as following:
“By a majority of five to four (Archer CJ, Abban, Bamford-Addo and Ampiah
JSCdissenting the declarations sought by the plaintiff, as amended, are hereby
granted. It is hereby ordered that 31 December, shall no longer be declared and
observed as Public holiday and celebrated as such out of public funds. The
defendant is hereby ordered to obey and carry out this order. Reasons for this
decision will be given on a date to be notified.”
(The emphasis is mine.) I had to keep my distance from this kind of judgment and
to dissent from it on what, in my view, were very serious legal grounds.
Before I deal with the merits of the case, I will like to make two very important
observations, bearing in mind that the present case will definitely not be the last
case in which an interpretation of a provision of the Constitution, 1992 would be
sought. The likelihood of more of such cases coming before this court cannot be
ruled out. Hence, I feel duty bound to make the following observations.
It seemed to me that too much emotions and sentiments were generated in this
matter during the hearing. These unfortunately could easily have had undue and
profound impact on the court. Continuing national respect for the court’s
authority depends, in a large measure, upon the courts wise exercise of self-
restraint in constitutional adjudication. Truly judges are human and so the
possibility of a judge having his own private or personal views on the subject
matter before the court, like the present one, cannot be overemphasised. But it is
very important that all parties concerned should do everything possible to assist
the judges so that they do not allow sentiments and their personal views to
influence or to cloud their vision of objectivity when engaged in construing the
provisions of the Constitution, 1992.
This court, in exercising the powers conferred upon it by the Constitution, 1992,
should be impervious to extraneous influences and should be able to bring to bear
on the problem before it, a professional objectivity which transcends personal
predilections. Thus, involved in a case, like the present one, have a duty to assist
the court in achieving that objective.
The second very important observation is about the case itself. It is significant to
note that the plaintiff did not seek a declaration that 31 December, which had been
made a public holiday in the Schedule to the Public Holidays Law, 1989 (PNDCL
220), was unconstitutional and that this court should also declare that 31 December
should “no longer be a public holiday” on the ground that it was inconsistent with
the spirt and the letter of the Constitution, 1992.
To put it in another way, the plaintiff did not give any intimation either by its writ
or by its statement of case or by any means to the court or to the defendant that in
addition to the amended two reliefs specifically stated in the writ, the plaintiff
would also ask the court to declare that henceforth 31 December “should no longer
be a public holiday” because it was inconsistent with the Constitution, 1992, and
must therefore be deleted from the list of public holidays which had been spelt out
in the Schedule to PNDCL 220.
Thus, the constitutionality of any section of PNDCL 220 was never a triable issue in
the case. In other words, the plaintiff never sought in its reliefs a declaration that
PNDCL 220, which is still on the statute books as provided by article 11(4) of the
Constitution, 1992, is inconsistent with the provisions of the Constitution, 1992.
Neither did the plaintiff in its pleadings call upon this court, by virtue of article II
(6) of the Constitution, 1992 to construct PNDCL 220 “with modifications
adaptations, qualifications and exceptions necessary to bring” PNDCL 220 “into
conformity with the provisions of the Constitution.” Again there was no request in
the reliefs that this court should also declare any section of the Appropriation Law,
1993 (PNDCL 314) unconstitutional.
It would be recalled that it was the defendant who, in his statement case, alluded to
PNDCL 220 and contended that 31 December had been made a public holiday
under that Law; and that the intended celebration due to take place on 31
December 1993 was in accordance with a statute.
In the course of replying to the oral submissions of learned counsel for the
defendant, learned counsel for the plaintiff conceded that PNDCL 220 specified 31
December as one of the public holidays. But learned counsel for the plaintiff
submitted that the continued operation of PNDCL 220 was inconsistent with the
spirit of the Constitution, 1992 inasmuch as 31 December continued to be observed
as a public holiday.
One would have thought that at that stage, the plaintiff would have put in a reply or
would have, at least, sought leave from the court, even orally, to amend its writ
under rule 49 of the Supreme Court Rules, 1970 (Cl 13) by adding other relief,
namely that a section of PNDCL 220 and PNDCL 314, both of which are part of the
existing law of Ghana, are inconsistent with the spirit of the Constitution, 1992 and
are therefore unconstitutional. But no amendment was sought or made either, to
the writ or to the statement of the plaintiff’s case.
So the case proceeded on those two reliefs in the plaintiff’s writ and was fought on
the issues which I set out earlier on in this judgment. Yet the majority, decision
unhesitatingly declared that PNDCL 220 so far as 31 December was concerned was
unconstitutional and that henceforth 31 December “should no longer be observed
as a public Holiday”, when that relief had not been asked for by the plaintiff in its
writ or in its pleadings and when that had been a triable issue in the case. In other
words, the majority decision gave the plaintiff a declaration which the plaintiff
itself did not ask for and which, as I have already stated, had never been a triable
issue in the matter.
It is trite learning that the object of pleadings is to compel the parties to define the
issues upon which the case is to be contested, and to prevent one party taking the
other by surprise. The question whether a court could legitimately decide on a
question not specifically raised by the pleadings merely because there had been
evidence of it before the court was discussed at great length by the English House
of Lords in the case of Esso Petroleum Co Ltd v Southport Corporation [1956] AC
218, HL. At 238-239 of the report Lord Normand had this to say:
“There was no notice in the pleadings of any other cause of action, such as that the
appellants negligently sent the vessel to sea in an unseaworthy condition.
The function of pleadings is to give fair notice of the case which has to be met so
that the opposing party may direct his evidence to the issue disclosed by them ... I
wish to associate myself with the observations of my noble and learned friend,
Lord Radcliffe, on the value of the pleadings. To condemn a party on a ground of
which no fair notice has been given may be as great a denial of justice as to
condemn him on a ground on which his evidence has been improperly excluded.”
Lord Morton at 239-240 in agreeing with Lord Normand said:
“This submission leads me at once to a consideration of the pleadings, in order to

see exactly what were the issues raised thereby ... My Lords, I have set out the
pleadings in detail in order to show that no complaint was made of any act or
default on the part of the appellants, either in the original statement of claim or at
the time when the respondents had the opportunity of amending it with full
knowledge of the facts already mentioned ... Counsel for the respondents then
sought to make a case of which no hint appeared in the pleadings.”
Similar views were expressed at 241-244 by Lord Radcliffe where he said:
“My Lords, I think that this case ought to be decided in accordance with the
pleadings. If it is, I am of opinion . . . that the respondents failed to establish any
claim to relief that was valid in law ... In my view, where the question is, as here, as
to sufficiency of evidence, the state of the pleadings is of more importance than the
way in which the case is shaped in argument. It is clear that no application was
made to the trial judge to amend the pleadings.”
(The emphasis is mine.) In CFAO v Archibold [1964] GLR 718, SC, Esso’s case
(supra) was referred to with approval by the Supreme Court. Adumua-Bossman
JSCread the unanimous judgment of the court in which it was held, as stated in the
headnote, inter alia, that:
“When a reply is not filed to an averment in the statement of defence, the trial
court is not entitled to consider a matter raised in the final address for the first
time. The respondent’s submission in his final address that the action was not
statute-barred should have been presented in the form of a reply to the statement
of defence and it was not competent for the trial court to have considered the
matter at all.”
The matter was also discussed in Malm v Lutterodt [1963] 1 GLR 1, SC Azu Crabbe
JSC(as he then was) reading the unanimous decision of the court said at 12: “The
only problem that arises therefore in this appeal is whether there is evidence to
support this finding of the learned trial judge that the plot was abandoned.” Then
at 14-15, the learned judge continued:
“To my mind to raise an issue of abandonment is to allege estoppel by conduct

which was not pleaded by the plaintiff and in support of which he led no evidence
whatsoever: see Young v. Star Omnibus Co., Ltd., per Farwell, J. [(1902) 86 LT 41 at
43.]
In my view therefore, the learned trial judge erred in basing his judgment on a
point which was not a triable issue on the pleadings see Oloto v.Williams [(1944) 10
WACA 23]. I venture to say, with all respect, that the pronouncements, on
abandonment is of no effect because the court went beyond the rights which were
really in issue between the parties. In Robinson v. Duleep Singh [(1879) 11 ChD 798
at 813] James L.J. said: ‘. . . if the court had gone beyond the rights which were
properly in issue between the parties the decree of the court would be absolutely
null and void.’”
In the present case, as I have already stated somewhere in this judgment, the
constitutionality of PNDCL 220 or any section of that Law, or any of the public
holidays as listed in its schedule, was never in issue in this action. Thus in the light
of the authorities and having regard to the reliefs in the writ and the statement of
the plaintiff’s case, that portion of the judgment of my five brethren which went to
the extent of pronouncing on PNDCL 220 by declaring that “31 December should
no longer be a public holiday”, with the greatest respect, was irregular. That
portion of the judgment went “beyond the rights which were properly in issue
between the parties.”
I have to make it clear that it was an irregularity which came about as a result of the
court doing something for which it had no warrant in law or in the rules of
procedure to do. Consequently, that portion of the judgement just referred to is
null and void and has no legal validity whatsoever.
In the classic case of Mosi v Bagyina [1963] 1 GLR 337 at 346, SC, Akufo-Addo JSC(as
he then was), in the course of reading the unanimous judgment of the Supreme
Court, said that this kind of irregularity, as in the present case,
“renders void any order or judgment emanating therefrom, and setting aside such
an order or judgment being ex debito justitiae a court or a judge has no discretion
in the matter but is under a legal obligation to set it aside.”
In the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, PC, and
which was also approved in the Mosi case (supra) Lord Denning said:
This is the same as saying that it was void and not merely voidable, . . If an act is
avoid, then it is in law a nullity. It is not only bad, but incurably bad. There is no
need for an order of the court to set it aside. It is automatically null and void
without more ado. . .”
I will now deal with the case on its merits. Learned counsel for the plaintiff, Mr
Adjetey, first contended that the coup of 24 February 1966 which violently
overthrew the Constitution, 1960 and toppled the Nkrumah regime was illegal. So
was the coup of 13 January 1972 which overthrew the Constitution, 1969 and ousted
the Busia regime from office. and the revolution of 31 December 1981 that
overthrew the Constitution, 1979 and toppled the Limann regime was also illegal.
Learned counsel intimated that he was not very much concerned with the palace
coup of 5 July 1978 and the uprising of 4 June 1979, for those coups were directed
against military regimes which had illegally enstalled themselves in power. But
learned counsel for the plaintiff contended that the indemnity, as provided in the
transitional provisions of the Constitution, 1992, should not prevent this court
from holding that all those three coups were illegal and therefore unconstitutional.
Learned counsel for the defendant, the Deputy Attorney-General, Mr Amidu, on

the other hand, submitted that the various coups mentioned in the submissions of
learned counsel for the plaintiff had been prohibited by the provisions of the
indemnity section, ie section 34(1) and (2) of the transitional provisions of the
Constitution, 1992 from being made the subject of any law suit; and so the court, by
the said section, was not entitled to make any pronouncement on those coups.
I thought that was an indirect invitation to this court by counsel for the plaintiff to
pronounce on the illegality of those coups and also on the illegitimacy of section
34 of the transitional provisions of the Constitution, 1992.
Incidentally, indemnity clauses are not peculiar to the Constitution, 1992. They are
found in all the Constitutions promulgated since 1969. They were first introduced
in the Constitution, 1969 by section 12(3) of its transitional provisions. In the
Constitution, 1969 the indemnity clauses, apart from indemnifying the coup
leaders and members of the National Liberation Council, went further in its
section 14(3) of the transitional provisions to give mandate to the civilian
government, the Busia Government, that “on or soon after the coming into force”
of the Constitution, 1969, the leaders of the 1966 coup should be paid gratuity “as a
token of the Nation’s gratitude” or appreciation for overthrowing the Nkrumah
government by force of arms.
In addition to this, section 14(4) of the transitional provisions of the Constitution,

1969 provided that they should be paid retiring benefits or awards which
Parliament had no power, according to section 14(5), to alter or interfere with “until
the death of all members of the National Liberation Council.”
It can therefore be seen that the Constitution, 1969 did not only exonerate the coup
leaders from blame in staging the coup, but they were also rewarded handsomely
for violently overthrowing the Nkrumah regime. Thus, as already stated, the
provisions as found in section 34 of the transitional provisions of the Constitution,
1992 are not new phenomena.
In any case, in view of the injunction placed on the court by the provision of
Section 34(2) of the transitional provisions of the Constitution 1992, I did not think
this court was entitled to consider the legality or illegality of those various coups
mentioned by learned counsel for the plaintiff, apart from stating simply that those
coups overthrew governments which were then in power. I rather prefer to adopt
the attitude of Archer JA (as he then was) in the case of Sallah v Attorney-General
G&G (Vol 11, Pt 2) 493, SC. In the course of his judgment in that case the learned
judge had this to say at 496:
“Although this transitional provision in effect clearly forbids the generation of

future controversy by legal proceedings or judicial pronouncement, over the
constitutionality or unconstitutionality, legality or illegality of the Proclamation
and the events, that ensued, yet the defendant, who is the learned Attorney-
General, has generated arguments pregnant with questions which no doubt would
drive us into considering the legal validity of the Proclamation itself. The learned
Attorney-General has put temptations in the path of the court and I think these
temptations should be ruthlessly and mercilessly resisted. For my part, I would say
that section 13(3) of the Transitional Provisions has clapped the hand of reticence
over my lips and I refuse to open my lips on the legal validity of the Proclamation
itself.”
Learned counsel for the plaintiff next contended that the intended celebration of
the 31 December revolution on 31 December 1993 was contrary to the provisions of
articles 3(3), (4), (5), (6) and (7), 35(1) and (2) and 41(b) of the Constitution, 1992. He
argued that to celebrate a day on which a lawfully constituted government was
illegally ousted from power would send wrong signals to the security services, to
the Armed Forces and even to school children and to Ghanaians as a whole, that
the highest achievement anybody could attain was to overthrow an established
government by violence.
It was further submitted by learned counsel for the plaintiff that the celebration of
the 31 December revolution on 31 December 1993 would remind Ghanaians of
atrocities, maiming, humiliating and other dehumanising acts suffered by or
meted out to many Ghanaians on 31 December 1981; and to that end, the
celebration was inconsistent with the spirit and the letter of the Constitution, 1992.
Learned counsel for the defendant, on the contrary, argued that the celebration
was constitutional and that all the articles referred to by counsel for the plaintiff
did not proscribe the celebration which was to take place on 31 December 1993.
Learned counsel for the defendant contended that it was a celebration of a
historical event which took place in this country. Learned counsel argued that one
could compare it with the French Revolution of 14 July 1789, and that the French
people do not consider the celebration of 14 July unconstitutional. The object of
celebrating the 31 December revolution, contended learned counsel for the
defendant, was not to abrogate or overthrow the Constitution, 1992 as envisaged
under article 3(3), (4), (5), (6), and (7) of the Constitution, 1992.
It was also submitted by learned counsel for the defendant that the mere fact that
the celebration or an act could remind people of what happened on a coup day
could not make the celebration or that act unconstitutional. Learned counsel for
the defendant further submitted that observing 31 December was to celebrate, not
the actions of that day, but the historical values which the Constitution, 1992 had
inherited. Learned counsel contended that the people of Ghana elected Parliament
and have an executive and these had not the mandate from the people to take a
decision as to which days in the year are to be public holidays and to celebrate
them as such.
Learned counsel for the defendant therefore submitted that the decision to
celebrate 31 December in the manner as advertised in the local papers was a
political decision and the court had not been empowered by the Constitution, 1992
to interfere with purely political decisions taken by the defendant.
For the importance of this case, I will quote the articles of the Constitution, 1992
relied upon by learned counsel for the plaintiff verbatim. They are as follows:
clause;
suffer death.
(4) All citizens of Ghana shall have the right and duty at all times —
(a) to defend this Constitution, and in particular, to resist any person or group of
persons seeking to commit any of the acts referred to in clause (3) of this article,
and
and justice, and accordingly, sovereignty resides in the people of Ghana from
whom Government derives all its powers and authority through this Constitution.”
“41. The exercise and enjoyment of rights and freedoms is inseparable from the
every citizen —
(b) to uphold and defend this Constitution and the law . . .”
Articles 35(1) and 41(b) of the Constitution, 1992 which form part of the Directive
Principles of State Policy, have nothing to do with celebrations. In this action, no
one disputed that Ghana is “dedicated to the realisation of freedom and justice”,
and that the “sovereignty resides in the people.” Neither did any one dispute the
right of every citizen to defend the Constitution, 1992 and the law. Thus, the
provisions of articles 35(1) and 41(b) of the Constitution, 1992 had no relevance,
whatsoever, to the subject matter before the court. Reference to those articles, with
due respect, was totally misconceived.
The words of article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 do not pose
any problem. They are clear and straightforward. Thus, the proper course to follow
in the interpretation of these clauses is to take the words themselves and arrive at
their meaning. In other words, the language of the clauses of article 3 of the
Constitution, 1992 is clear and unequivocal, and must therefore be given the literal
meaning, and to do so would not, in my view, lead to any manifest ambiguity.
If the provisions of the clauses of the articles of a Constitution are clearly,

expressed, as in this case, and there is nothing to enable the court to put, upon
them, a construction different from that which the words import, then the words
must prevail. In the Sussex Peerage, Case, (1844) 11 Cl &, Fin 85 at 143, Tindal CJ
observed:
“. . . the only rule for the construction of Acts of Parliament is, that they should be
construed according to the intent of the Parliament which passed the Act. If the
words of the statute are in themselves precise and unambiguous, then no more can
be necessary than to expound those words in their natural and ordinary sense. The
words themselves alone do, in such case, best declare the intention of the law
giver.”
(The emphasis is mine.) See also the dictum of Park B in Becke v Smith (1836) 2 M
&W 191 at 195 and Capper v Baldwin [1965] 2 QB 53 at 61 per Lord Parker CJ.
The words of article 3 of the Constitution, 1992 refer to acts which are geared
towards unlawful and violent overthrow of the Constitution, 1992. All those clauses
of article 3 have one common theme. That theme is like a thread which runs
through all of them; namely any person or persons either by themselves, or in
conspiracy with others, who engage in any activities, overtly or covertly, with the
object of overthrowing the Constitution, 1992 unlawfully or violently, commit high
treason, which is a very serious criminal offence. Such persons, and whoever aids
and abets them, would be liable to criminal prosecution and upon conviction
would suffer the death penalty.
Article 3(4)-(7) of the Constitution, 1992 place an obligation on every citizen of this
country, to take any appropriate step to prevent any person or persons from using
any unlawful or violent means to overthrow, repeal, cancel or suspend the
Constitution, 1992. That persons who prevent or offer opposition to or suppress
such conduct would be exonerated from any offence. That in case these good
citizens failed in their attempt to resist such conduct and they suffered any
punishment thereby, that punishment would be considered null and void, and of
no legal consequences, from the date such punishment was imposed, if eventually
the Constitution, 1992 was restored.
In addition, such good citizens would be entitled to be awarded adequate

compensation for any punishment or loss they might have suffered. The
assessment of the quantum of the said compensation would be made by this court
on an application made to it by the persons concerned, or on their behalf. That any
such award made by this court should be paid out of the Consolidated Fund.
It could therefore be seen that the sole intention of the framers of the Constitution,
1992, as portrayed in the said article 3, is to dish out the death penalty for those
who indulge in subversive activities which have the only object of overthrowing or
suspending or abrogating the Constitution, 1992 or any part thereof, unlawfully or
with violence; and to reward those who might suffer in the course of opposing such
violent overthrow.
Such clarity of intention must militate, uncompromising, against any suggestion

that the celebration of the kind as was contemplated by the defendant on 31
December 1993, would infringe any of the clauses of article 3 of the Constitution,
1992. The intention of those who framed the Constitution, 1992 must not be
collected from a vacuum, or from any notions which may be entertained by this
court as to what is just and expedient. The intention must be collected from the
provisions of the articles relied upon; and once the intention is ascertained, it is
the duty of this court to give effect to that intention.
The intention of those clauses of article 3 of the Constitution, 1992 is not to

prohibit the celebration of 31 December as a public holiday, and as a day for merry-
making. The activities involved in the celebration which was to take place on 31
December 1993, must guide this court to find out whether the said celebration had
the potential of overthrowing the Constitution, 1992 unlawfully, or to bring down
the government of the day unlawfully or by violence as envisaged by those clauses
of article the Constitution, 1992 relied upon by the plaintiff.
The celebration involved going on a route march which was a kind of procession
which is guaranteed by article 21(1)(d) of the Constitution, 1992. It also had the
object of remembering the dead, of merry-making generally, dancing and
enjoyment of musical shows; and it was to be rounded off with a non-

denominational church service. These activities could not, by any stretch of
imagination, amount to “violent” and “unlawful means” intended to “overthrow”
or “abrogate” or “suspend” the Constitution, 1992 or “any part of it.”
It was to be a peaceful celebration. It was not aimed at using it to attack violently

government institutions, or to cause riots and disorder so that law and order would
break down in the process; and make it impossible for the elected government
under the Constitution, 1992 to govern; and thereby oust it from office by “unlawful
means” instead of through the ballot-box.
Quite apart from the articles relied upon by the plaintiff, I carefully and critically
examined the provisions of the Constitution, 1992 from article 1 to article 299, and
from section 1 to section 37 of the transitional provisions; and I could not find even
a single provision which expressly or by necessary implication proscribed the
celebration which was to take place on 31 December 1993.
It is interesting to observe that the provisions which have been made in article 3 of
the Constitution, 1992 were similar to provisions also made in article 3 of the
Constitution, 1969, although not as elaborate as in article 3 of the Constitution,
1992. Indeed, article 3 of the Constitution, 1979 also made almost identical
provisions as were made in article 3 of the Constitution, 1969.
So the provisions, which have been made in article 3 of the Constitution, 1992, are
not new or peculiar to the Constitution, 1992 alone. These provisions existed in
substance in both the Constitutions, 1969 and 1979. That is, they existed during the
Busia regime and also during the Limann regime. Yet those civilian governments
observed coup days as public holidays and expanded public funds to celebrate the
anniversary of those coup days. For example, the Busia Government celebrated 24
February 1970 as a public holiday dubbed “Revolution Day” to commemorate the
violent overthrow of the Nkrumah regime. But to me, those celebrations were not
in contravention of article 3 of the Constitution, 1969. Neither did the celebration
contravene any other articles of the Constitution, 1969.
The Busia Government had an Attorney-General who would have advised that
government against the celebration of the anniversary of the coup of 24 February
1966 as a public holiday and as a Revolution Day, if that celebration contravened

article 3 of the Constitution, 1969. As a matter of fact, the Busia Government would
never have indulged in any celebration which was inconsistent with the spirit and
the letter of the Constitution, 1969. I will deal with this aspect of the matter in
detail, at a later stage.
However, I considered the criticisms levelled against the celebration of the 31

December revolution (and the same criticisms could be levelled against the
celebration of 24 February as a “Revolution Day” by the civilian government of
Busia) as part of a healthy intellectual exercise of democratic rights, and must
therefore be encouraged by all lovers of democracy. But that apart, they did not in
any way affect the constitutionality of those celebrations.
I now come to the argument of learned counsel for the plaintiff that the celebration
was inconsistent with the spirit and the letter of the Constitution, 1992 since it
would send wrong signals and would remind Ghanaians of the atrocities, maiming,
humiliating and other dehumanising acts suffered by Ghanaians on 31 December
1981.
A Constitution is a living piece of legislation and its provisions are vital living
principles; and the spirit of every Constitution must be collected from the
Constitution itself. So is it the spirit of the Constitution, 1992 that any celebration
and, for that matter, anything which reminds or has the tendency to remind
Ghanaians of a coup d’etat, or of violent overthrow of a lawfully constituted
government is unconstitutional? The answer to me is “no.”
The Constitution, 1992 itself has made Decrees passed by the National Liberation
Council, National Redemption Council, Supreme Military Council I, Supreme
Military Council II, Armed Forces Revolutionary Council and Laws made by the
Provisional National Defence Council part of the existing law of Ghana. No law or
legislation is passed without referring to the source which is the foundation upon
which it bases or derives its authority to make that law; and it is that source which
gives validity to that law. It is for this reason that NLC Decrees, NRC Decrees,
Decrees of SMC 1, SMC 11 and AFRC and PNDC Laws all contained Proclamations
which revealed the sources of authority of those Decrees and Laws.
Thus the Proclamations of 24 February 1966, 13 January 1972 and 31 December 1981
revealed that on those days the governments in authority were ousted from power.
For example, the Proclamation of 1981 clearly brings out this fact. It reads:
“Provisional National Defence Council (Establishment) Proclamation 1981 . . .
AND WHEREAS on Thursday, the 31st day of December, 1981, it thus became
necessary for the Provisional National Defence Council to assume the reins of
Government of the Republic of Ghana in the interest of the sovereign people of
Ghana . . .
Now, THEREFORE by virtue of the said assumption of the Government of Ghana

this Proclamation is made with effect from the 31st day of December, 1981. . .”
These Decrees and Laws are referred to day in and day out in our courts and at any
time such Decrees and Laws (each of which refers to a Proclamation and the date of
the coup d’etat) are cited, they always remind us of those violent deposition of
those governments.
If therefore it was the intention of the framers of the Constitution, 1992 that
celebrations and things which remind the people of Ghana of coups should be
regarded as being inconsistent with the spirit and the letter of the Constitution,
1992, these Decrees and Laws would have been excluded entirely from the
Constitution, 1992 and they would not have been made part of the existing law of
Ghana by article 11(4) of the Constitution, 1992.
If all these Decrees and Laws which are in permanent form and are therefore
constantly reminding us of coups and their consequences have been given a place
of pride in the Constitution, 1992 by its framers, because they did not consider
them as being against the spirit and the letter of the Constitution, 1992, how come
that a day’s celebration and a public holiday which also remind Ghanaians of a
coup (in the same way as the Decrees and Laws do) should be regarded as being
against the spirit and the letter of the Constitution, 1992 and therefore
unconstitutional?
This is tantamount to overstretching the doctrine of the spirit of the Constitution

to unreasonable limit and absurdity. For if this contention that celebrations or acts
and conduct which remind Ghanaians of humiliations and atrocities meted out to
them during coups are all inconsistent with the spirit and the letter of the
Constitution, 1992 is accepted as correct, then it is likely to create ripples which
may in the long run generate unforeseen confusion.
If that kind of construction is correct then, for example, the act of naming the
nation’s airport after one of the architects of the coup of 24 February 1966 which
toppled the Nkrumah regime, and the act of raising a monument with public funds
to the memory of that coup leader, edifices which are conspicuously and
constantly reminding Ghanaians of the violent overthrow of the Nkrumah regime,
could also be regarded as inconsistent with the spirit and the letter of the
Constitution, 1992. For these things could “send wrong signals”, if I may again
borrow the expression of learned counsel for the plaintiff.
It was also argued that the French Revolution should not be compared to what took
place in Ghana on 31 December 1981; and the yardstick of that revolution should
not be used to measure the happenings in Ghana. I found it rather difficult to
accept that argument. For example, precedents of courts of other countries are
cited before our courts to show how a similar situation which had occurred in
another country was dealt with. Even though they are only persuasive, they are
cited as a guide when dealing with similar cases. Thus the courts in Ghana do not
refuse to look at decisions being handed down by courts of repute in other parts of
the world. It is in this vein that it would not be wise for a country, like Ghana, not to
take account of what took place in other countries; for we cannot escape from the
repercussions of such events. For any country, temporary isolation from a series of
large international events is possible. But isolation from their consequences is not
possible.
The French Revolution could not therefore be dismissed as irrelevant and as not
being worthy of comparison with the revolution of 31 December 1981. The
underlying principle involved in the French Revolution of 14 July 1789 and that of
the uprising of 31 December 1981 is the the same. For all of them involved the
overthrow of governments in power by force of arms; and those who took part in
them felt that those governments had betrayed the confidence which the people
had reposed in them.
The French Revolution started with the destruction of the Bastille by an armed
mob of Parisians on 14 July 1789. The Bastille had come to be used as a state prison
for holding persons who were believed to be dangerous to the State, even though
they had not been convicted of any crime. So as was stated “the gloomy old fortress
had become a symbol of tyranny of the French Kings” and its fall was thought of as
a great victory for liberty. So it was an uprising of the common men against a
tyrannical monarchy; and the king, the queen and hundreds of nobles and many
innocent people were “guillotined” and the people rallied around the motto
“Liberty, Equality, Fraternity”: see Britanica Junior Encyclopaedia, Vol 3, pp 101-
102 and Britanica Junior Encyclopaedia, Vol 6, pp 213-214.
Despite the slaughter of the king, the queen and many innocent people, the French
people do not consider the celebration of 14 July as unconstitutional. The French
Government spends public funds to celebrate this historic event even though the
celebration reminds them of the atrocities, the killings and murder of some
innocent people during the revolution which started on 14 July 1789.
It must he pointed out that learned counsel for the defendant referred to the
French Revolution, as I understand him, in order to bring home the point that 14
July is celebrated by the French people, people from a western country that is
committed to democracy and also have a written Constitution. They celebrate the
day as their national day and as a public holiday with pomp and pride; and they do
not consider the celebration of 14 July as unconstitutional even though that day, as
I have stated, reminds them of the atrocities that took place on 14 July 1789.
The mere fact that a celebration reminds people of a violent overthrow of a

government and its aftermath, does not in itself make that celebration
unconstitutional. The celebration of the 31 December revolution was intended to
mark a historic event which occurred in Ghana on 31 December 1981. The
celebration was lawful. A lawful act or conduct does not become unlawful or
unconstitutional simply because it is not liked or fancied by the plaintiff.
It is possible to interpret the majority judgment to mean that the celebration of the
31 December revolution, which was to take place on 31 December 1993, was
unconstitutional because it was being organised as a public affair with public
funds and the day was to be made a public holiday. But it would not have been
unconstitutional if it was to be celebrated as a private affair financed from private

resources and the day had also not been declared a public holiday.
May I therefore ask, does it mean then, that a celebration which is

unconstitutional, because it reminds people of certain atrocities, would cease to be
unconstitutional once the celebration is organised as a private affair and the day of
the celebration is not made a public holiday? Would such a celebration organised
as a private affair still not have reminded the people of the happenings of the coup
day, and of the dehumanising of people all the same?
I should also remark that some of the matters raised by the plaintiff in its
statement of case and were denied by the defendant in his statement of case, and
indeed, matters raised in the oral arguments of learned counsel for the plaintiff
required proof. A litigant who asserts that a conduct is unconstitutional, generally
has the onus of showing that it is. In this particular case, where the contentions
had been that the people of this country did not want 31 December to be made a
public holiday, because the day reminded them of atrocities that took place on 31
December 1981, it was incumbent on the plaintiff to have produced evidence which
could have formed the foundation of those contentions. This is especially so, where
there is not a single provision in the Constitution, 1992 which states that 31
December should not be celebrated in the way as it was advertised.
The court was not even furnished with evidence as to opinion polls, scientifically
conducted, as is done in other countries, to show the percentage of those who liked
and those who did not like the celebration. The views of the plaintiff about the
celebration could not, with due respect, represent the views of the whole adult
population of this country. Obtaining views from a negligible number of elite and
few people around the cities and the urban areas, leaving out those in the rural
areas who form the bulk of the population, could not provide the answer. This
court was therefore eloquently pressed upon to accept a situation which called for
proof but of which proof was lacking.
I will now deal with PNDCL 220. Public holidays have been the subject of diverse
statutes. Indeed, many of the words used in PNDCL 220 seemed to have been
borrowed from the language of previous enactments on the subject. I will therefore
trace the ancestry of PNDCL 220 to find out exactly the attitude of previous
governments as regards holidays and how they had viewed or treated them. I do so
mindful of the principle which was laid down by Lord Mansfield in R v Loxdale
(1758) 1 Burr 445, namely:
“Where there are different statutes in pari materia though made at different times,
or even expired, and not referring to each other, they shall be taken and construed
together, as one system, and as explanatory of each other.”
This principle is still sound and it was applied in the case of Smith v Brown (1871)
LR 6 QB 729. It was also approved by the English Court of Appeal in Goldsmiths’ Co
v Wyatt [1907] 1 KB 95, CA.
Starting with the Public Holidays Act, 1960 (Act 23) which was assented to by
President Nkrumah 15 December 1960, its sections 1 and 2(2) provided as follows:
“1. (1). The days specified in the Schedule to this Act are hereby declared to be
public holidays, and subject to the provisions of this Act, shall in every year be kept
and observed as public holidays throughout Ghana . . .
2. (2). Any person who contravenes the provisions of sub-section (1) of this section
shall be guilty of an offence and shall, on summary conviction be liable to a fine
not exceeding ten pounds.”
(The emphasis is mine.) After the overthrow of the Nkrumah regime by the
National Liberation Council on 24 February 1966, the Schedule to Act 23 was
amended by the National liberation Council by the Public Holidays Instrument,
1966 (LI 509) which, among other things, stated that:
“1. The Schedule to the Public Holidays Act, 1960 (Act 23) is hereby amended by the
substitution for all the days specified therein of the following days—
New Year’s Day (1st January)
Liberation Day (24th February)
Independence Day (6th March)
Good Friday
Holy Saturday
Easter Monday
The first Monday in August
Christmas Day (25th December)
Boxing Day (26th December).”
(The emphasis is mine)
It is remarkable to note that during the era of the National Liberation Council, the
latter decided to do away with 1 July as a public holiday, even though it was the day
on which Ghana became the First Republic. The Busia Government, by the Public
Holidays Instrument, 1970 (LI 649) added 1 October as a public—holiday to be
celebrated as the Second Republic Day. The Busia Government continued to
exclude 1 July—Republic Day—from the list of public Holidays, but continued to
celebrate 24 February as a public holiday under the heading “Liberation Day.” But
as I stated earlier on, the Busia Government actually celebrated it as a “Revolution
Day.”
The Daily Graphic of Tuesday, 24 February 1970, No 6033, carried the speech of Dr
Busia on that celebration. I will however quote a few extracts from the “Graphic
View” that day:
“Salute to the gallant men.
Today is the fourth anniversary of the February 24, 1966 revolution. Exactly four
years ago today a grateful and surprised Ghana woke up to see the end of tyranny
and injustice.
As the oppressive CPP regime was uprooted, a firm Foundation for freedom and
fair-play was laid in its place...
As Ghanaians celebrate the historic event today, there is no better monument we

can erect in memory of the fallen gallant men than to uphold, at all times the aims
of the revolution.
We must also pay a tribute to the living, the gallant NLC men, who ably did the
spade work for the democratic rule we have now. . .
However we should accept the fact that freedom has its limits and that the elected
government has a national duty to check its abuses. Indeed Ghana’s record in the
last four years has vindicated the revolutionary action the army and police took...
We can only hope that Ghanaians will guard jealously the golden opportunity
which now prevails and resolve to ensure that the fifth anniversary of the coup will
see us counting yet more achievements in an atmosphere of peace and unity.”
(The emphasis is mine.) The same Daily Graphic, on Wednesday, 25 February 1970,
No 6034, had the following caption, “Ghana observes Anniversary of the
Revolution”; and under it the following article appeared:
“IT’S a good holiday. No accidents today,’ a soldier made this remark at the Military
Hospital, Accra, yesterday, when asked about reported cases of motor accidents.
The soldier’s remark really reflected the general atmosphere of the celebration of
the fourth anniversary of the 24th February Revolution.
A general calm and peace pervaded the capital, except that the scorching and
bright sunshine was uncompromising. The capital was gaily decorated with flags
and bunting ...
Holiday-makers as usual flocked the beaches, the resorts, and bars. The Labadi
Pleasure Beach, the popular teen-age and ‘Afro’ recreational spot, was right in the
centre of the attractions with its ‘24th February Special’ featuring a variety of
games, swimming, dancing, dining and wining.
At the official level, the Presidential Commission played host to invited

distinguished guests at a cocktail party at the Castle in the evening.
Similar receptions were held in the regions by Regional Chief Executives.”
(The emphasis is mine.) May I observe that all the above-mentioned newspapers,
like textbooks are available in public libraries in this country. The publications in
them, like all newspapers, were made to the whole world and this court is entitled
to take judicial notice of those publications.
However, after the overthrow of the Busia regime on 13 January 1972, the new
regime, the National Redemption Council, by the Public Holidays Decree, 1972
(NRCD 18) expunged 24 February from the Schedule of holidays and substituted 13
January to be celebrated as National Redemption Day. But on 3 April 1974, the
government of the National Redemption Council by the Public Holidays
(Amendment) (No 2) Decree, 1974 (NRCD 253) restored 1 July (the First Republic
Day) as a public holidays. About ten months later in February 1973, by the Public
Holidays (Amendment) Decree, 1973 (NRCD 154), the NRC government also
restored 24 February as a Liberation Day to be celebrated as a public holiday.
Then after about a year, the NRC government on 20 February 1974 by the Public
Holidays (Amendment) Decree, 1974 (NRCD 244) deleted 24 February from the
public holidays. The National Redemption Council government by NRCD 262
made further amendments by incorporating all the previous amendments it had
made since it came to power. In NRCD 262 by its section 5(1) the penalty for failing
to observe a public holiday was changed to a fine not exceeding ¢1,000 or to
imprisonment for a term not exceeding six months or both, if summarily
convicted.
NRCD 262 remained in force from 1974 and throughout the period the Limann
government was in power, until it was repealed in 1989 by the present PNDCL 220.
That is, about four years ago. PNDCL 220 has the same features as all those
previous legislations on public holidays. Only the schedules to the various
legislations were amended. But the penalties exacted for not observing a public
holiday remained during the regimes of Nkrumah, NLC, Busia and Limann. Only
the amount of fines were amended from time to time. It could therefore be seen
that PNDCL 220 is a successor to the various legislations on public holidays.
Furthermore, it cannot be overemphasised that the Liberation Day—as 24

February 1966 was called—could be really a liberation day for some people in
Ghana. But certainly not for all the people in Ghana. Because while that day
brought joy to some, it brought humiliation and sorrow to others from which some
may not have recovered up to date. Judicial notice could be taken of the notorious
facts that there was destruction of human life and property on that day, and 24
February 1966 could easily be said to be one of the bloody coups this country has
witnessed.
Men in the security services were killed. Innocent civilians while going to work at
the airport in the early hours of the morning were caught in cross-fire and killed in
cold blood in front of the Flagstaff House. These were all notorious facts; and the
aftermath of that coup was that a section of the population was banned from
holding political and public office for ten years: see the Elections and Public Offices
Disqualification Decree, 1969 (NLCD 332).
Indeed, one can recapture the day of that coup—24 February 1966—by referring to
a passage in a book entitled, The Politics of Political Detention (1971) by Kwame
Kesse-Adu. It was first published in 1971. At page 52 of that book, the author gave a
vivid description of his feelings and what he found the situation to be, following
the violent overthrow of the Nkrumah regime, in the following moving words:
“In the midst of a desert of hopelessness, suddenly we found an oasis of hope. This
was 24th February 1966. There was a great deal of noise, of cheering and of merry
making from outside ... The message flashed into cell No. 3—my cell. The army had
seized power. General Ankrah had assumed office. Afrifa and Kotoka were the
heroes of the coup. . . So we also cheered. This was responded to from outside ...
That night there was evidence. Kofi Baako, Kwaku Boating and some Ministers
came in. Kofi Baako was sent to Dr. Danquah’s cell ...
Releases started that evening . . . more and more cabinet Ministers and CPP high
ranking officers were brought in batches . . . The next day, we saw them and I went
to greet my old friend Kofi Baako ... He smiled and waived. Then I saw my cousin,
Aaron Ofori Atta. I saw Krobo Edusei and most of the Ministers . . .
We left Ussher Fort by exchanging our cells with members of the CPP government
...
I did not know whether to weep or to laugh.”
So 24 February 1966, as I said, was a day of joy for those who gained their freedom;
and it was a day of sorrow for the relatives of those who were killed in cold blood
and their properties destroyed, and also for those who were arrested that day and
incarcerated in Ussher Fort and in other prisons in the country, when they had not
been tried and convicted. Even though, according to the passage quoted above, one
of those persons “simled and waived” when he entered Ussher Fort, it should be
remembered that there are men who could smile bravely before the world in the
face of the deepest personal sorrow. So while others gained their liberty, others lost
it and, to use again the expression of learned counsel for the plaintiff, they were
“dehumanised and humiliated”; and some even later lost their right to take part in
the politics of their country for ten years.
All these are historical facts from which we cannot run away. As an eminent
Ghanaian professor of sociology of blessed memory once wrote:
“History is sometimes troublesome, historical facts are often embarrassing in West

Africa . . . The view-points and attitudes which people adopt towards their
political, economic or social questions are influenced by their historical
experiences.”
So why should Ghana forget her recent past and refuse to celebrate her historic
events?
Having reviewed and considered all the past legislations on public holidays since
1960 up to date, and having also reviewed events of the first ever coup we had in
this country, it is quite plain that the anniversaries of the coup days had always
been celebrated by successive governments since 1906. In my view, all those
successive governments, both civilian and military, marked those historic
occasions in the life of this country by making those days—24 February, 13 January
and 31, December public holidays as a matter of policy. Regrettably, the majority
decision could be described as “a massive repudiation of the experience of our
recent past.” But no matter the attempt to bury the past, historians will unearth the
past and pull together “the pieces ... into a coherent whole.”
Be that as it may, from the history of public holidays as I have tried to set out supra,
it must be clear to any unbiased mind that the choosing or the selecting of a day to
be designated as a public holiday has always been a political decision for the
executive and the legislature. The Sovereignty of Ghana resides in the people as
provided in article 1(1) of the Constitution, 1992. So it is for the people of Ghana,
acting through their elected representatives in Parliament who, in conjunction
with the executive, ought to decide which days out of the 365 days in a year should
be designated public holidays and not for the judiciary to under take that exercise.
It rests with the people of Ghana, in whom full and absolute power resides, to
instruct their representatives to have a look at the number of public holidays in the
year and to make adjustment if necessary. Decisions which are to be made,
depending on political considerations and influence, should be the responsibility
of the executive and Parliament. Thus, whether a particular day in a year should be
celebrated as a public holiday by fan-fare and merry-making or not is a policy
decision for the executive and the legislature to make. With the greatest respect,
the majority decision in favour of the declarations sought in the writ was plainly an
undue and unnecessary interference in the functions of the legislature and the
executive.
This court, in my view, should always maintain a fine balance between the need to
protect constitutional rights and liberties on one hand, and the danger of too great
an interference in the affairs of the executive and the legislative branches of the
government on the other.
At the Third Conference of Chief Justices of Commonwealth Africa held in April

1990 in Livingstone, Zambia (of which I happened to be a participant), the Chief
Justice of Zimbabwe, the Hon Mr Justice Dumbustshena (now retired) in the
course of reading a paper on the topic—”Have the African Judiciaries Satisfied the
Expectations of their Countries”—made a very pertinent statement which I here
quote extensively:
“Most of the difficulties confronting the Judiciaries of Africa arise from failure to
appreciate the relative functions of each branch of government. If each branch of
the government appreciated its functions and those of other branches, there would
be a desire to co-operate. The Executive would comply with the orders and
judgments of the courts. The Legislature would not enact laws restricting the
functions of the Judiciary. And Judges would not interfere with the legislative
functions of Parliament, that is, if we do not indulge in fanciful interpretations to
words which are clear and unambiguous ... The slightest hint of interference by the
Judiciary in the administrative functions of the Executive invites its wrath. Keep
away from them . . . We must always remember that good governance includes a
fair justice system. If we judges deliberately prop up, through our judgments and
decisions, bad government, it cannot be said that our Judiciaries have satisfied the
expectations of our countries . . .”
The next query raised about the intended celebration on 31 December 1993 was
that it was discriminatory. It was submitted by learned counsel for the plaintiff that
the intended celebration of the 31 December revolution on 31 December 1993 was
discriminatory; for why should the defendant pick on only 31 December when
there had been other military take-overs which were not being celebrated and that
there was no justification to single out 31 December; and if the 24 February 1966
coup and the 13 January 1972 coup were not worth celebrating, then the 31
December Revolution was also not worth celebrating.
I did not share that view. 31 December had been designated a public holiday by
PNDCL 220 to be observed as such throughout Ghana. PNDCL 220 did not create 31
December a public holiday in favour only of the supporters of the 31 December
coup, or in favour of a privileged few, or in favour of only a section of the public.
Thus, the fact that the plaintiff and some other persons did not take kindly to it,
and did not see the wisdom in celebrating the day as a public holiday, did not make
it discriminatory and therefore unconstitutional.
There was even no evidence whatsoever that the majority of the population also
shared the same view as the plaintiff’s. As I have already pointed out elsewhere in
this judgment, it is the people of Ghana, acting through their elected
representatives in Parliament, who can decide on which days shall be public
holidays. That is, the executive and the legislature as the representatives of the
people have the mandate of the people of Ghana to take that political decision.
If this argument of the plaintiff was to be carried to its logical conclusion, then the
public holidays which have been created all these years from even the colonial era
up to date, to the advantage and benefit of Christians in this country could also be
declared unconstitutional. Christmas Day (25 December), Good Friday and Easter
Monday, for example, are days to mark the anniversaries of the day Christ was
born, was crucified and arose from the dead. These days have no significance to the
Muslims, Jews, heathens, unbelievers and some other religious sects in the
country.
Yet all these persons are compelled to observe those days as public holidays. They
do not go to work or open their shops on those days under the pain of criminal
punishment if successfully prosecuted and convicted. Ghana has not been
declared a Christian country by any law. At least, I have not come across any such
law; and even if there was such a law, it would be unconstitutional in view of article
21 (1) (c) of the Constitution, 1992 which provides that:
“21. All persons shall have the right to— . . .
(c) freedom to practice any religion and to manifest such practice.”
The Constitution, 1992 recognises variety of religious practices. Yet, non-Christians

are compelled to observe those days as public holidays, and this could amount to
giving “different treatment” to Christians, “attributable only or mainly to religion
or creed” while subjecting non-Christians to restrictions.
Article 17(2) of the Constitution, 1992 states:
“(2) A person shall not be discriminated against on grounds of gender, race, colour,
ethnic origin, religion, creed or social or economic status.”
Then article 17(3) of the Constitution, 1992 provides that:
“(3) For the purposes of this article, ‘discriminate’ means to give different
treatment to different persons attributable only or mainly to their respective
descriptions by race, . . . religion or creed, whereby persons of one description are
subjected to disabilities or restrictions to which persons of another description are
not made subject or are granted privileges or advantages which are not granted to
persons of another description.”
If therefore public holidays like 25 December, Good Friday and Easter Monday
were not considered discriminatory, then it sounded rather hypocritical to single
out 31 December out of the Schedule and declare it discriminatory and therefore
unconstitutional.
It is really a pity, that while in the process of construing PNDCL 220 “with
modifications, adaptations, qualifications and exceptions necessary to bring it into
conformity with the provisions of this Constitution”, the majority of this court
could come to the conclusion that 31 December should rather be expunged from
the Schedule to PNDCL 220 as a public holiday. Thus, sacrificing 31 December for
those other public holidays just mentioned, which are obviously and manifestly
discriminatory within the meaning of the provisions of article 17 of the
Constitution, 1992.
I cannot help but quote an observation which was once made by Benjamin Nathan
Cardozo, Justice of the United States Supreme Court from 1932 to 1938. The learned
judge said:
“Judges march at times to pitiless conclusion under the prod of remorseless logic
which is supposed to leave them no alternative. They deplore the sacrificial rite.
They perform it nonetheless, with averted gaze, convinced as they plunge the
knife, that they obey the bidding of their office. The victim is offered up to the gods
of jurisprudence on the alter of regularity.”
Non-Christians have so far not found it necessary to complain. This may be

because they probably agree with the views put forward by the Right Reverend
Kwesi Dickson (now President of the Ghana Methodist Conference) in his book
entitled: The Story of the Early Church (1976, London). At page 11 of that book the
reverend stated: “In this world of a variety of religious practices, there was the
tendency to believe that despite this diversity there was an underlying unity that
all religions were at the root the same.” (The emphasis is mine.)
Finally, may I remark that not every enactment passed by the legislature will be
liked by each and every one of the over 15 million people in this country. Some may
hail it, others may not. Some may even be indifferent. But that is a far-cry from
saying that that piece of legislation is discriminatory.
On the spending of public funds, it was submitted by learned counsel for the
plaintiff that the preparations for the celebration by way of marching, music
extravaganza and other activities would involve expenditure from public funds.
Learned counsel referred to paragraph (1) of the statement of the defendant’s case
and submitted that in spite of the fact that it was covered by the Appropriation
(1993 Financial Year) Law, 1993 (PNDCL 314), it was still unconstitutional and
therefore null and void, so far as the funds were being committed to a celebration
which was itself unconstitutional.
Learned counsel for the defendant contended that the public funds which had
been earmarked for the celebration were authorised under PNDCL 314 which came
into effect on 1 January 1993; and since Parliament came into existence the latter,
through its finance committee, had had a look at it and never found it necessary to
make any alterations. Thus, contended learned counsel, the said PNDCL 314 which
had authorised the expenditure for the preparations for the celebration which was
to take place on 31 December 1993 was consistent with the provisions of the
Constitution, 1992 and that PNDCL 314 was indeed saved by the provisions of
section 18 (1) (2) of the transitional provisions of the Constitution, 1992. Learned
counsel therefore submitted that it could not be argued that the expenditure which
had in fact been authorised by law was unconstitutional.
Having already held or come to the conclusion that the celebration did not
contravene any provision of the Constitution, 1992, neither was it inconsistent with
the spirit and letter of the said Constitution, 1992, the defendant could expend
moneys towards the preparations for the said celebration out of public funds,
provided the said expenses were approved by Parliament. The plaintiff did not
offer any evidence to show that the expenditure in question had not been catered
for in the budget of 1993, that is by PNDCL 314, which came into operation on 1
January, 1993.
In other words, the contention that the use of public funds for the celebration was
unconstitutional was not based on any concrete facts. It was based on speculation.
This court does not lightly declare a conduct or a legislation unconstitutional on
mere speculation. PNDCL 314 had been examined by Parliament (through its
finance committee) since Parliament came into existence; and the latter did not
effect any changes to it. PNDCL 314 therefore formed part of the existing law of
Ghana as provided in article 11 (4) of the Constitution, 1992. Again, section 19 of the
transitional provisions of the Constitution, 1992 made a special provision which
put the validity of PNDCL 314 beyond doubt. It provides:
“19. Notwithstanding any law to the contrary, the financial estimates in operation
for the financial year in being at the coming into force of this Constitution shall,
until provision is otherwise made by Act of Parliament, continue and shall have
full effect.”
In the circumstances, I am of the view that the money being spent on the
preparations for the celebration on 31 December 1993 was duly authorised by law
and therefore the expenditure was constitutional.
At best, the submissions of learned counsel for the plaintiff on the expenditure of
public funds in that manner could be said to have been directed towards the
morality of making those expenses rather than the legality of the expenditure. But
this court must not stretch its morality to an extent that would amount to a
reflection on the legislature and the executive. However, the truth of the matter
was that the expenditure was sanctioned by law and which law was not
inconsistent with any of the provisions of the Constitution, 1992. This court
therefore had no business to interfere in the matter.
For the above reasons, I came to the conclusion that all the grounds, upon which
the declarations were sought by the plaintiff, had no legal justification whatsoever,
and were in fact baseless.
I therefore had no alternative but to dissent from the majority decision that was
delivered on 29 December 1993.
AMUA-SEKYI JSC
In England the courts have no power to question the validity of any law passed by
Parliament, their function being only that of interpreting the law in order to ensure
that the wishes of Parliament are carried out. There, it is all too true as stated by
Megarry VC in Manuel v Attorney-General [1983] 1 Ch 77 at 89, CA that the courts
“recognise Parliament as being omnipotent in all save the power to destroy its own
omnipotence.” When, therefore, the courts question laws made by subordinate
authorities, they do so in the name of Parliament and on its behalf. Thus, even the
power to question subordinate or subsidiary legislation may be taken away by
statute. This is in line with the concept of the supremacy of Parliament which
means that the power of Parliament to make laws is, in the terminology adopted by
Lord Birkenhead in McCawley v R [1920] AC 691 at 704, PC uncontrolled. Therefore,
if Parliament were to pass a law making the birthday of the queen’s poodle a public
holiday, it would rank with one giving Englishmen the right to freedom of speech,
assembly and association, and either may be repealed or amended in the same
way. There is in England no fundamental or basic law by which the validity of other
laws are to be judged.
On the attainment of independence, Ghana was governed under the Ghana

(Constitution) Order-in-Council, 1957, section 31(1) of which stated that “it shall be
lawful for Parliament to make laws for the peace, order and good government of
Ghana.” These words were interpreted in Lardan v Attorney-General (No 2) (1957) 3
WALR 114 to mean that, as in England, the Parliament of Ghana had uncontrolled
power to make laws. The Constitution, 1960 put the matter beyond argument
when, after much circumlocution, it stated bluntly in article 20 (6) that “the power
of Parliament to make laws shall be under no limitation whatsoever.” The result
was what the preamble to the Constitution, 1969 called “a regime of tyranny.”
Before 1960, Parliament passed the Deportation (Othman Lardan and Amadu
Baba) Act, 1957 to bring court proceedings challenging his deportation order to an
end; the Deportation (Indemnity) Act, 1958 to bar the courts from punishing two
officers of the executive for their contempt in carrying out a deportation order at a
time when there were proceedings in court challenging its validity; the Preventive
Detention Act, 1958 for the arrest and detention of persons without trial; and the
Kumasi Municipal Council (Validation of Powers) Act, 1959 to bring an action for
damages for the unlawful demolition of premises to an end. After 1960, the
executive, acting under powers conferred by Parliament, set aside a verdict of
acquittal returned in favour of certain persons charged with treason and put the
unfortunate prisoners back on trial.
During the years 1966-69, 1972-79 and 1982-92 when the country was under extra-
constitutional rule, the power of the law-making body to make laws was
uncontrolled. Draconian laws were passed for the detention of persons without
trial, for the seizure of property without compensation and to curtail access to the
courts. Examples are the Protective Custody Decree, 1966 (NLCD 2), the Preventive
Custody Decree, 1972 (NRCD 2), the Preventive Custody Law, 1982 (PNDCL 4), the
confiscations under the Transfer of Shares and Other Proprietary Interests
(Dakmak Group of Companies) Decree, 1979 (AFRCD 6), the Transfer of Shares and
Other Proprietary Interests (Tata Brewery Limited) Decree, 1979 (AFRCD 9), the
Forfeiture of Assets Decree, 1979 (AFRCD 10), the Transfer of Shares and Other
Proprietary Interests (Specified Companies) Decree, 1979 (AFRCD 15), the Transfer
of Shares and Other Proprietary Interests (A and B Industries and Others) Decree,
1979 (AFRCD 31), the Transfer of Shares and Other Proprietary Interests (Babylos
Co Ltd and Others) Decree, 1979 (AFRCD 38), the Transfer of Shares and Other
Proprietary Interests (Metal Construction Company Ltd and Plastic Wares Ltd)
Decree, 1979 (AFRCD 39), the Forfeiture of Assets (Noe Drevici and Others) Decree,
1979 (AFRCD 52), the Transfer of Shares and Other Proprietary Interests (Fattal
Group of Companies) Decree, 1979 (AFRCD 55), the Transfer of Shares and Merger
(Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant) Decree,
1979 (AFRC 60), the Forfeiture of Assets and Transfer of Shares and Other
Proprietary Interests (Unipress Limited) Law, 1982 (PNDCL 3), the Forfeiture of
Assets (Amadu Duri) Law, 1982 (PNDCL 9), the Forfeiture of Assets and Transfer of
Shares and Other Proprietary Interests (Subin Timbers Company Limited and
Central Logging & Sawmills Limited (PNDCL 31), the Forfeiture of Shares of Menleo
Enterprise Limited, etc in Bibiani Wood Complex Limited and Merger of Bibiani
Wood Complex Limited and Bibiani Metal Complex Limited Law, 1984 (PNDCL 76),
the Forfeiture of Assests (Evangeline Nana Amoako-Pomaa) Law, 1986 (PNDCL
164), the Confiscated Assets (Removal of Doubts) Law, 1993 (PNDCL 325), the
Indemnity Decree, 1973 (NRCD 227), the Indemnity Decree, 1979 (AFRCD 22), the
Indemnity Law, 1993 (PNDCL 313), the Subversion (Amendment) (No 2) Decree,
1973 (NRCD 191), the Ghana Cocoa Board Re-organisation and Indemnity Law, 1985
(PNDCL 125), the Sefwi-Wiawso Settler Farms (Abatement of Proceedings) Law,
1987 (PNDCL 173) and the Chieftaincy (Specified Areas) (Prohibition and
Abatement of Chieftaincy Proceedings) Law, 1989 (PNDCL 212) and the Chieftaincy
(Specified Areas) (Prohibition and Abatement of Chieftaincy Proceedings)
(Amendment) Law, 1992 (PNDCL 293).
The only periods in our short history that we have lived under governments with
controlled legislative powers have been the years 1969-72, 1979-81 and since 1993.
Articles 1(2), 3(1) and 3(2) of the Constitutions, 1969. 1979 and 1992 respectively are
in the same terms. They make the Constitution the supreme law of the land and
declare that any law found to be inconsistent with any provision of the
Constitution shall be void; they declare that Parliament shall have no power to
enact a law to establish a so-called one-party state; and they make unlawful any
activity of any person or group of persons which suppresses or seeks to suppress
the lawful political activity of others. There are also in articles 43 and 89 of the
Constitution, 1979, and articles 56 and 107 of the Constitution, 1992, provisions
denying to Parliament the power to force down our throats any religious or
political ideology or to alter the decision or judgment of any court, as well as
placing limits on its power to pass retroactive laws.
In the Constitution, 1992, article 58(1) which vests the executive authority in the
President requires him to exercise it in accordance with the provisions of the
Constitution; article 93 (2) which vests the legislative authority in Parliament
requires that the power be exercised in accordance with the provisions of the
Constitution; and article 125 (3) which vests the judicial power in the judiciary is
strengthened by clause 1 which makes the judiciary independent and subject only
to the Constitution, 1992. The situation in which we find ourselves is, therefore,
entirely different from that of our predecessors when the Constitutions, 1957 and
1960 were in force, or when the country was under dictatorial regimes. Our
inspiration should come from the decisiveness of Republic v Special Tribunal; Ex
parte Forson [1980] GLR 529 and Republic v Director of Prisons; Ex parte
Shackleford [1981] GLR 554, rather than the prevarication of Republic v Director-
General of Prisons; Ex parte Nti [1980] GLR 527, CA, and Republic v. Special
Tribunal; Ex parte Akosah [1980] GLR 592, CA.
In Ex parte Nti (supra), the High Court overruled an objection to its exercise of
jurisdiction and granted bail pending the hearing of an application for an order of
habeas corpus. The Court of Appeal set these decisions aside and referred the case
to the Supreme Court on the ground that the issue of jurisdiction raised before the
High Court involved the interpretation of the Constitution, 1979. In Ex parte
Akosah (supra) the Court of Appeal took the same position, set aside a judgment of
the High Court and referred the case to the Supreme Court to determine whether
the High Court had jurisdiction to deal with the matter before it. In so doing, the
Court of Appeal erred in two respects: first, by the decision of the Supreme Court in
Republic v Maikankan [1971] 2 GLR 473, SC the High Court was not bound to refer
the matter to the Supreme Court; and secondly, when they referred the issue of
jurisdiction to the Supreme Court they ceased to have power either to allow or
dismiss the appeal. The law required that they await the decision of the Supreme
Court and act in accordance with it. This was the plain demand of article 118 (2) of
the Constitution, 1979, which was a reproduction of article 106 (2) of the
Constitution, 1969, and is now article 130 (2) of the Constitution, 1992. Small
wonder that Taylor J (as he then was) in Ex parte Forson (supra) and Cecilia
Koranteng-Addow J in Ex parte Shackleford (supra) refused to be bound. Their
example should teach us to resolve to look issues straight in the face. Any waffling
on our part at this point in our history would be inexcusable because we now have
a fundamental or basic law which is superior to all other laws and by which the
validity of all other laws are to be judged. We have the duty and the right and the
power to ensure that the provisions of the Constitution, 1992 are observed.
It was the case for the defendant that we have no jurisdiction to entertain the
action now before us. Counsel relied on section 34 (3) of the transitional provisions
of the Constitution, 1992 which states:
“(3) For the avoidance of doubt, it is declared that no executive, legislative or

judicial action taken or purported to have been taken by the Provisional National
Defence Council . . . or a member of the Provisional National Defence Council . . . in
the name of . . . the Provisional National Defence Council . . . shall be questioned in
any proceedings whatsoever and, accordingly, it shall not be lawful for any court or
other tribunal to make any order or grant any remedy or relief in respect of any
such act.”
With this is usually read article 299 of the Constitution, 1992 which provides:
“299. The transitional provisions specified in the First Schedule to this

Constitution shall have effect notwithstanding anything to the contrary in this
Constitution.”
Section 34 (3) of the transitional provisions of the Constitution, 1992 is a

reproduction of section 15 (2) of the transitional provisions of the Constitution,
1979, and article 299 of the Constitution, 1992 reproduces article 217 of the
Constitution, 1979.
The meaning and effect of section 15 (2) of the transitional provisions of the
Constitution, 1979 were considered by this court in Kwakye v Attorney-General
[1981] GLR 9, SC when the former Inspector-General of Police sought to set aside his
alleged trial and conviction by a shadowy group known then as the Armed Forces
Revolutionary Council Special Court. When, relying on section 15 (2), the
defendant raised an objection to the exercise of jurisdiction by the court, the court
said per Apaloo CJ at 14:
“This subsection is very widely couched but it seems to us that as the plaintiff
sought a relief which this court is prima facie entitled to grant, the defendant who
claims that this court’s jurisdiction is ousted by this provision, must provide a
factual basis for it. We think the defendant must produce facts which show that the
Armed Forces Revolutionary Council took or purported to have taken judicial
action against the plaintiff.”
And when, subsequently, the Attorney-General adduced evidence to show that on

an unspecified date, unnamed persons sentenced Kwakye to 25 years’
imprisonment, the court, by a majority decision, held that this was sufficient and
dismissed the action for want of jurisdiction. In his judgment in Kwakye v
Attorney-General [1981] GLR 944 at 954 and 960-961, SC Apaloo CJ said:
“The Attorney-General has since filed a statement of his case and produced both
oral and documentary evidence with a view to showing that judicial action or
purported judicial action within the true intendment of section 15(2) has been
taken against the plaintiff and that this court is constitutionally enjoined to decline
jurisdiction. Accordingly, the court’s task is to decide whether such a factual basis
exists for the application of section 15(2) of the transitional provisions or whether
the plaintiff has made out his entitlement to the reliefs he seeks without requiring
us to do what the Constitution, 1979, forbids...
The oral and documentary evidence led by the defendant was not contradicted by
any evidence produced by the plaintiff. There is nothing intrinsically improbable
about that evidence . . . In those circumstances, the proper conclusion should be
that the Armed Forces Revolutionary Council purported to take judicial action
against the plaintiff.
That being so, section 15 (2) of the transitional provisions, ousts any judicial organ
from jurisdiction to ‘make any order or grant any remedy or relief in respect of any
such act.’ It follows that the declaration sought by the plaintiff cannot lawfully be
granted.”
Sowah JSC(as he then was) said at 965-966:
“Even though I consider the trial, conviction and sentence of the plaintiff were a
nullity because the trial itself did not match up to the criteria set by A.F.R.C.D. 3, s.
5, nonetheless, I hold the view that it was a purported trial, a fortiori, a ‘purported
judicial action.’”
Archer JSC(as he then was) said at 982:
“I would therefore hold that although there is no clear and conclusive evidence of a
regular judicial action taken by the A.F.R.C., yet there is unchallenged and
uncontradicted evidence of a judicial action purported to have been taken by the
A.F.R.C. against the plaintiff. Accordingly, this court is not at liberty to question the
proceedings in the special court that tried and sentenced the plaintiff in absentia.
Under section 15 (2) of the transitional provisions, it is also not lawful for this court
to grant the declaration sought by the plaintiff. The intention behind sections 15
and 16 of the transitional provisions is to make the executive, legislative and
judicial actions taken or purported to have been taken by the former A.F.R.C.
judicial appeal-proof, judicial review-proof and judicial interference-proof till
eternity.”
Charles Crabbe JSCsaid at 1032:
“The issue, then, is not whether the trial of the plaintiff had been held in
accordance with the law under which the special court sought to exercise its
jurisdiction. The issue is whether what was done looks like, or has the outward
appearance of, a judicial action or could be considered as intended to seem, or

made to appear as a judicial action . . . I would say, then, that:
(a) the plaintiff was never tried, convicted or sentenced in accordance with the
provisions of the Armed Forces Revolutionary Council (Special Courts) Decree,
1979 (A.F.R.C.D. 3), as amended by Decree 19;
(b) the sentence of 25 years imposed upon the plaintiff is an infringement of his
fundamental human rights because he was not tried in accordance with the law.
But that, having regard to the provisions of section 15(2) and (3) of the transitional
provisions to the Constitution, 1979, I cannot make ‘any order or grant any remedy
or relief’ in respect of his purported trial.”
And Adade JSCsaid at 1038-1039:
“True, certain legal imperatives were ignored, making the trial short of a proper
legal trial, even one in absentia ...
Be that as it may, section 15(2) seeks to protect not only perfect judicial actions, but
imperfect ones also . . . It was a purported trial; judicial action purported to have
been taken by the Armed Forces Revolutionary Council Special Court.
Accordingly, section 15(2) operates to remove the action from the jurisdiction of the
court . . . Section 15(2) of the transitional provisions covers all executive, legislative
and judicial actions of the Armed Forces Revolutionary Council . . . Once an act is
admitted or presumed or proved to be that of the A.F.R.C., it . . . is bound to fall
within this range of governmental activity and will automatically be caught by
section 15(2) of the transitional provisions.”
Although Anin and Taylor JSCexpressed their dissent, their only quarrel with the
decision was that in their view there had not been even the semblance of a trial.
Earlier, they had agreed with the majority that all that the Attorney-General
needed to do to meet the case put up by the plaintiff was to show that there had
been a trial or purported trial. At the end of it all, this court decided that, although
the alleged trial and conviction of Kwakye was a sham and a travesty of justice, it
had no power to set the conviction aside.
If this decision was right then the present Attorney-General is on strong ground
when he contends that under the correspondingly section 34 (3) of the transitional
provisions of the Constitution, 1992 we have no power to entertain the action now
before us. As there is no dispute that the Public Holidays Law, 1989 (PNDCL 220)
was enacted by the erstwhile Provisional National Defence Council, the “factual
basis” upon which the submission rests has been admitted. But I hold the view that
the majority were wrong and Taylor JSCright when he protested at 1070:
“In my humble opinion, the function of the Supreme Court in interpreting the
Constitution or any statutory document, is not to construe written law merely for
the sake of law; it is to construe the written law in a manner that vindicates it as an
instrument of justice. If therefore a provision in a written law can be interpreted in
one breadth to promote justice and in another to produce injustice, I think the
Supreme Court is bound to select the interpretation that advances the course of
justice unless, in fact, the law does not need interpretation at all but rather
specifically and in terms provide for injustice.”
As I shall show presently, this court had power to quash or otherwise set aside the
trial and conviction of Kwakye.
The phrase “[f]or the avoidance of doubt” appearing in section 34 (3) of the
transitional provisions of the Constitution, 1992 is not a formula for sweeping away
the human rights provisions of the Constitution, 1992. It is to be found also in
articles 31 (8), 32 (5), 72 (3), 82 (6), 155 (2) and 165 of the Constitution, 1992. Like the
expression, “for the purposes of”, which is used in articles 10 (2), 11(3), 17 (3), 19 (21),
28(5), 36(5), 47(4) and (7), 71(3), 94(4), 127(7), 152 (2) and 181(6) of the Constitution,
1992, its object is to explain, expand or limit the effect of an earlier provision. A fine
illustration of the use of such phrases, words and expressions will be found in
article 257 (1), (2) and (3) of the Constitution, 1992 which was taken, word for word,
from article 188 (1), (2) and (3) of the Constitution, 1979. It reads:
“257. (1) All public lands in Ghana shall be vested in the President on behalf of, and
in trust for, the people of Ghana.
(2) For the purposes of this article, and subject to clause (3) of this article, ‘public
lands’ includes any land which, immediately before the coming into force of this
Constitution, was vested in the Government of Ghana on behalf of, and in trust for,
the people of Ghana for the public service of Ghana, and any other land acquired in
the public interest, for the purposes of the Government of Ghana before, on or after
that date.
(3) For the avoidance of doubt, it is hereby declared that all lands in the Northern,
Upper East and Upper West Regions of Ghana which immediately before the
coming into force of this Constitution were vested in the Government of Ghana are
not public lands within the meaning of clauses (1) and (2) of this article.”
Clause (1) states the law in general terms; clause (2) states what, for the purposes of
clause (1), the term “public lands” includes; and, for the avoidance of doubt, clause
(3) states what the term does not include.
With this as a guide, it will be seen that section 34 (3) of the transitional provisions
of the Constitution, 1992 does not stand alone, but is referable to subsections (1)
and (2). Section 34 (2) grants immunity from suit to all those who took part in the
overthrow of the Limann government; section 34 (1) grants immunity from suit to
members of the Provisional National Defence Council and their appointees for
anything done during the rule of the council; and, for the avoidance of doubt,
section 34 (3) states that the indemnity so granted shall include executive,
legislative and judicial actions taken or purporting to have been taken by the
council of their appointees. That is all the meaning that can properly be ascribed to
section 34 (1), (2) and (3) of the transitional provisions of the Constitution, 1992. As
the present action is not one for compensation or damages, or for punishing
anyone, for anything, done in the course of overthrowing the Limann
administration, or by the former regime or their appointees during their rule, we
are not barred by these provisions from entertaining this action. If our
predecessors in this court had confined section 15 (2) of the transitional provisions
of the Constitution, 1979 to the indemnity granted by section 15(1), as they should,
they would have seen that they had jurisdiction to grant the relief sought by
Kwakye.
In the light of the above, counsel’s contention that this court has no jurisdiction to
entertain the present suit must be rejected first, because section 34(3) of the
transitional provisions does not apply to the facts of this case. Secondly, section
36(2) of the transitional provisions which does, continues in force only those
enactments which are consistent with the Constitution, 1992. Thirdly, as there is no
conflict between the said section 36(2) and any provision of the Constitution, 1992,
article 299 of the Constitution, 1992 does not apply. Finally, being part of the
existing law as defined in article 11(4) of the Constitution, 1992, PNDCL 220 is
required by clause 6 of the said article to be construed:
“. . . with any modifications, adaptations, qualifications and exceptions necessary

to bring it into conformity with the provisions of this Constitution, or otherwise to
give effect to, or enable effect to be given to, any changes effected by this
Constitution.”
Put simply, this last provision means that the existing law is subject to the
Constitution, 1992.
When the Nkrumah regime was overthrown in a coup d’etat on 24 February 1966,
the new government made 24 February a public holiday in place of 21 September,
Nkrumah’s birthday, and it was celebrated with pomp and pageantry until
democracy was restored in 1969. When the Busia Government was overthrown in a
coup d’etat on 13 January 1972, the new regime declared 13 January of each year a
public holiday. Again, that date ceased to be observed as a public holiday when
democracy was restored. What we still have with us is 31 December which marks
the day the democratically-elected government of Limann was overthrown.
The frequency with which we overthrow Constitutions and change our laws on
public holidays reminds one of the aftermath of the murder of Julius Caesar in 44
BC when one adventurer after another succeeded in making himself master of
Rome. To perpetuate his memory, each incoming dictator would set up his statue
in public places. Unfortunately, no sooner had he crowned himself than another
would-be emperor appeared on the scene to murder or depose him. In good time,
someone had the bright idea that instead of erecting new statues to the new
emperor, the head of the former ruler should be knocked off the statues and the
head of the new emperor put in their place! But for us, it is a serious question
whether the law that compels us to observe 31 December as a public holiday is
consistent with the Constitution, 1992.
It was contended on behalf of the defendant that in making the announcement

that 31 December 1993 was to be observed as a public holiday, the government was
only giving notice to the public of what the law required without necessarily
compelling anyone to observe it as such. This was by no means the case. Section 5
of PNDCL 220 imposes penalties, including fines and imprisonment, on those who
act in breach of the Law. In other words, if, on a day declared to be a public holiday,
a worker, whether self-employed or not, who does not come within the exempted
categories, goes to his workplace and engages in any labour for profit, he risks
being arrested, charged with the commission of an offence and, if found guilty,
fined or imprisoned. The question, therefore, whether that part of the Law dealing
with 31 December is consistent with the Constitution, 1992 is not an academic one,
but a very serious issue touching on the right to work.
It was further contended that the action was incompetent because it asked for a
declaration that the observance of the day as a public holiday is inconsistent with
the provisions of the Constitution, 1992 whereas the real complaint concerned the
validity of PNDCL 220. The short answer is this. If the observance of 31 December
as a public holiday is inconsistent with the provisions of the Constitution, 1992, so
must the enactment, or, that part thereof, which makes the day a public holiday be
inconsistent with the provisions of the Constitution, 1992. In any case, since this
court has power under article 130 to interpret and enforce the Constitution, 1992,
whether the issue is raised before it or before another court, and whether it arises
directly or is incidental to the determination of some other matter, this court is
competent to deal with the complaint now before it and make a pronouncement on
the validity or otherwise of that part of PNDCL 220 which makes the day a public
holiday.
A comparison was sought to be made between the celebration of 31 December as a

public holiday and the celebration of 4 July in the United States, and of 14 July in
Finance. No doubt the architects of the coups of 24 February and 13 January were
also certain that their work would endure. I would urge those who hold this view to
show a little modesty and leave it to future generations to determine their place in
history. Let them remember that Caligula made his horse Consul of Rome, and
Nero played the lyre as Rome burned: they thought they were gods; we know they
were not.
It was also said that the issue is a political one and that the plaintiff ought to have
its complaint to Parliament. Perhaps, if it had been represented in Parliament it
might have sought an amendment or repeal of the offending legislation. However,
there was nothing to stop it making a legal issue of it and coming to this court for
redress. Parliament now has no uncontrolled right to pass laws on public holidays,
any more than it has to declare a “one-party state, or make a party leader President
for life or crown him emperor. As the fundamental or basic law the Constitution,
1992 controls all legislation and determines their validity. It is for the courts, as the
guardians of legality, to ensure that all agencies of the State keep within their
lawful bounds.
Article 3(3) of the Constitution, 1992 makes it the offence of high treason for any
person to suspend, overthrow or abrogate the Constitution by violent or other
unlawful means, or to aid and abet any other person in such acts. Article 3 (4) of the
Constitution, 1992 places on every citizen the duty, and gives him the right, to
defend the Constitution, and to resist any person who might seek to overthrow it
and, in case the Constitution 1992 is overthrow, to do all he can to restore the
Constitution. The message is clear: we have had enough of coups d’etat; we want
no more; no one should be permitted to disturb the orderly progress of the nation
by resorting to force as a means of achieving political office. There can be little
doubt that the members of the Constituent Assembly inserted these unusual
provisions in the Constitution, 1992 because they were appalled by the case with
which past governments have been overthrown and the indifference shown by our
people in defending their rights. For my part, I do not see how a law which requires
all of us to celebrate with fanfare, feasting and dancing the overthrow by force of
arms of a democratically-elected government can exist side by side with these
constitutional provisions.
It was for these reasons that I concurred in the orders made.
AIKINS JSC
On or about 14 December 1993 there was a publication in the print and other media
in this country that the government had decided to celebrate the 31 December 1981
revolution in Accra, the highlight of which was reported to include a route march
by the security services and various voluntary organisations, followed by a wreath-
laying ceremony at the Revolutionary Square. The publication added that the
celebration would be rounded off by a musical carnival at the Trade Fair Centre in
the afternoon. Believing rather strongly that the celebration was unconstitutional,
the plaintiff, the New Patriotic Party, issued out a writ in this court on 21 December
1993, invoking the original jurisdiction of the court pursuant to articles 2 (1) (b) and
130 (1) of the Constitution, 1992—
(a) to declare that the said celebration and financing of it from public funds is
inconsistent with, or in contravention of the letter and spirit of the Constitution,
1992; and
(b) an order directing the Government of Ghana to cancel all preparations hitherto
made for the celebration aforesaid and to refrain from carrying out any such
celebration financed from public funds.
The burden or gravamen of the plaintiff’s argument is that by the combined effect
of clauses (3), (4), (5), (6) and (7) of article 3 and articles 35 (1) and 41 (b) of the
Constitution, 1992 the public celebration of the overthrow of the legally constituted
government on 31 December 1981, and the financing of such celebration from
public funds, is inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992. The plaintiff contends that such celebration, route march and
musical carnival cannot be held without financing from public funds since, for
example, the security forces comprising the personnel of the Police Service, the
Prisons Service and the Armed Forces of Ghana are paid directly from the
Consolidated Fund or directly out of moneys provided by Parliament. The plaintiff
further contends that the financing of such celebration from public funds offends
against the very existence of the Constitution, 1992, that it is an affront to
democracy and democratic constitutional rule, and is subversive of the
Constitution, 1992.
Article 3 of the Constitution, 1992 contains provisions in defence of the

Constitution, whereby all citizens of Ghana are enjoined to defend the
Constitution, 1992, resist any person or group of persons seeking to overthrow or
abrogate the Constitution, 1992 by any violent or unlawful means. Article 35 (1) of
the Constitution, 1992 declares Ghana to be a democratic state dedicated to the
realisation of freedom and justice, a State in which sovereignty resides in the
people from whom the government derives its powers and authority, and article 41
(b) imposes a duty on all citizens of this country to uphold and defend the
Constitution, 1992.
The constitutional history of this country shows that similar provisions are
contained in the Constitutions, 1969 and 1979. Article 3 of the Constitution, 1979
which deals with defence of the Constitution is a reproduction of article 3 of the
Constitution, 1969. Thus, it is specifically provided that any activity of any person
or group of persons which suppresses or seeks to suppress the lawful political
activity of any other person or persons shall be an unlawful act, and the
punishment attached to that offence is an injunction by the Supreme Court against
that person or group of persons from further carrying on any such activity and be
bound over to be of good behaviour for a period of five years. For a second or
subsequent offence, such person or group of persons are liable to imprisonment for
a term not exceeding ten years, and in addition such person so convicted would be
ineligible for election to Parliament or for election to a local government council,
or for appointment to any public office for a period of ten years beginning from the
date of the expiration of the term of imprisonment.
But for the indemnity provision contained in section 15(1) of the transitional
provisions of the Constitution, 1979, all persons who took part or assisted in
bringing about the change of government which took place on 4 June 1979 would
have been liable to be prosecuted under article 3 of the Constitution, 1969 on the
coming into force of the Constitution, 1979 because effluxion of time is no bar to
criminal prosecution. Similarly, the indemnity provision contained in section 34 of
the transitional provisions of the Constitution, 1992 saved all persons who took
part or assisted in bringing about the change of government which took place on 4
June 1979 and 31 December 1981 from criminal prosecution under article 3 of the
Constitution, 1979 on the coming into force of the Constitution, 1992. Yet, in spite
of this immunity, the defence would want to stretch section 34 of the transitional
provisions of the Constitution, 1992 to cover 4 June and 31 December by
contending that section 34 makes the two processes legal and as such prevents any
person from questioning the legality of the two processes. This submission, in my
view, is preposterous and infantile, with all due respect to the learned Deputy
Attorney-General. I fail to see the force of this argument. The two processes are
definitely illegal, and I have not come across any rule or law that legalises them.
Section 34 of the transitional provisions of the Constitution, 1992 does not do so
either.
Clauses (2), (3), (4) and (5) of section 34 of the transitional provisions of the
Constitution, 1992 are completely different from the letter and spirit of the body of
the Constitution, 1992 itself, and are certainly not in conformity with justice, but
have been introduced into the Constitution, 1992, to quote the language of Charles
Crabbe JSCin the case of Kwakye v Attorney-General [1981] GLR 944 at 1030, SC
where he referred to section 15 of the transitional provisions of the Constitution,
1979 which have been reproduced in identical terms in section 34 of the
transitional provisions of the Constitution, 1992:
“. . .To perpetrate an illegality, if an illegality there be, under the guise of

constitutionality. To perpetuate an injustice, if an injustice there be, under the
colour of the supremacy of the Constitution . . .
Nor are the actions called in question in conformity with the laws under which
they were done. To use the instrumentality of the Constitution to cloak such
actions with the semblance of legality is to do violence to decency and embarrass
the Constitution—nay justice herself . . . That is the gravamen of our situation.
That is the predicament in which we find ourselves today.”
It is equally an offence against the State, namely treason, punishable with death
under section 180 of the Criminal Code, 1960 (Act 29) as amended by section 19 of
the Constitution (Consequential and Transitional Provisions) Decree, 1969 (NLCD
406). Section 180 (2) defines treason by adopting the meaning assigned to it in
clause (16) of article 20 of the Constitution, 1969 which states as follows:
“(16) . . . treason shall consist only
(a) in levying war against Ghana or assisting any state or person or inciting or
conspiring with any person to levy war against Ghana; or
(b) in attempting by force of arms or other violent means to overthrow the organs
of government established by or under this Constitution; or
(c) in taking part or being concerned in, or inciting or conspiring with any person
to make or take part or be concerned in, any such attempt.”
As at 31 December 1981 this law had not been amended or repealed, and although
the Constitution, 1969 was suspended by paragraph 2 of the Armed Forces
Revolutionary Council (Establishment) Proclamation, 1979, paragraph 3 (2) of the
Proclamation continued in force any enactment or rule of law in force in Ghana.
Thus section 180 of Act 29 continued in force. In like manner, although section 18
(1) of the transitional provisions of the Constitution, 1979 abrogated the
Constitution, 1969 which had been suspended, section 18 (3) states that:
“. . . notwithstanding the abrogation of the said Constitution and the repeal of the
said Proclamation [ie Armed Forces Revolutionary Council (Establishment)
Proclamation] any enactment or rule of law in force immediately before the
coming into force of this Constitution shall in so far as it is not inconsistent with a
provision of this Constitution, continue in force as if enacted, issued or made
under the authority of this Constitution.”
It means, therefore, that any person or group of persons who took part in the 31
December 1981 uprising that toppled the Limann administration of the Third
Republic committed the offence of treason for which they could be prosecuted and
sentenced to suffer death upon conviction.
Having said that, I come to article 3 of the Constitution, 1992 which contains
provisions in defence of the Constitution. Clauses (2), (3) and (4) of that article
provide as follows:
“(2) Any activity of a person or group of persons which suppresses or seeks to

suppress the lawful political activity of any other person or any class of persons, or
persons generally is un1awful.
(3) Any person who—
clause; commits the offence of high treason and shall, upon conviction, be
sentenced to suffer death.
and
overthrown, or abrogated as referred to in clause (3) of this article.”
These clauses frown on any interference with the lawful political activity of any
person, or the overthrow or abrogation of the Constitution, 1992 by violent means,
and bestow upon all citizens the right to defend the Constitution, 1992. No doubt
the purpose behind the enactment of these provisions is to remind those who took
part in the 4 June and 31 December processes and those who intend to follow suit
that it is a high crime to undertake such a venture, and that they do so at their own
peril.
The only exception that exonerates any person who overthrows or attempts to
overthrow the organs of government from committing an offence is an act which
aims at procuring by constitutional means an alteration of the law or of the policies
of the government as contained in clause (18) of article 19(18) of the Constitution,
1992. Does it, therefore, accord with logic, reason and constitutional norm to
submit that persons who have committed such high offence as treason should be
allowed to celebrate the commission of their crime with moneys provided from the
Consolidated Fund, and to proceed further to declare the days set aside for such
celebration public holidays? The answer is definitely “no.” The declaration of such
days as public holidays and the expenditure of public funds to aid the celebration
are inconsistent with and a contravention of the letter and spirit of the
Constitution, 1992. The expenditure involved is no doubt a misuse and a waste of
public funds and property contrary to article 41 (f) of the Constitution, 1992 which
imposes a duty on every citizen of this country to protect and preserve the public
property and expose and combat misuse and waste of public funds and property.
The argument therefore that since the government has already started expending
money in preparation for the celebration it should be allowed to undertake the
celebration is therefore misconceived. If the expenditure so far is unconstitutional,
should further expenditure to complete the cycle be allowed? Certainly not.
I need not reiterate that the celebration itself as a public holiday is unfair to those
who were adversely affected by the uprising, and who have become impotent to
resort to court action by reason of the indemnity provision in section 34 (2) of the
transitional provisions of the Constitution, 1992. I agree with the plaintiff that it is
an affront to democracy and democratic constitutional rule. The financing is
totally unconstitutional and subversive of the Constitution, 1992.
In my view, the 4 June and 31 December processes occasioned a breakdown of law

and order, the negation of the rule of law and a circumscription of the fundamental
human rights and freedoms of the individual which the Constitution seeks to
protect and preserve by its preamble. The stability of the nation was shattered and
polluted. There is truth in the contention that the celebration has the propensity of
sending wrong signals to the youth of this country that the overthrow of the
constitutional order by means of a coup d’etat is glorious, and incites and excites
disorder to institutional settlement, and a disrespect to constitutional authority. It
tends to elate the security services into thinking that the overthrow of a duly
constituted government enhances the prestige and status of the individual soldier
partaking in such an act, and that he stands to be wealthy and respected. It is
argued that there is no provision in the Constitution, 1992 that specifically
proscribes or condemns the 31 December revolution, and for that matter the
celebration is not inconsistent with the letter and spirit of the Constitution, 1992. I
must say that what the plaintiff is seeking here is a declaration which raises an
issue as to the interpretation of certain provisions of the Constitution, 1992. By
virtue of article 3(4) of the Constitution, 1992 every citizen of Ghana has the right,
constitutional or otherwise, to protect the constitutional order as established by
the Constitution, 1992 so that it is not abolished or sought to be abolished. To
enable this to be done the citizen has to seek “for an interpretation of the
Constitution as to the meaning or the effect of a particular provision or provisions
of the Constitution“: see Tuffour v Attorney-General [1980] GLR 637 at 649—650,

CA sitting as SC.
There is a controversy before us, and that controversy is whether the celebration of
the 31 December revolution offends the Constitution, 1992 and the determination
of this issue depends upon the interpretation of the Constitution, 1992. This raises
a justiciable issue which this court has jurisdiction under article 2 of the
Constitution, 1992 to adjudicate upon, and make such orders and give such
directions as it may consider appropriate. It is therefore an abysmal misconception
to argue that the said celebration involves a political decision which is best left to
the electorate and Parliament to consider, and not a constitutional matter
requiring interpretation by the Supreme Court.
In effect, it is being argued that this court ought not to enter the political thicket.
This is wrong. There is no party politics in this, and the Supreme Court is not in the
least dabbling in politics. Advancing his argument in this field, the learned Deputy
Attorney-General relied on the English case of Scranton’s Trustee v Pearse [1922] 2
Ch 87, CA and the American case of Baker v Carr, 369 US 186 at 217 (1962) to support
his contention. I have read these two cases, and in my view, the Baker case (supra)
is irrelevant to the issue under consideration. Baker v Carr (supra) was an
apportionment case involving a constitutional challenge to a state’s districting of
its state legislature. Even in the United States the political question doctrine is said
to be in a state of confusion.
Learned counsel’s reliance on the Scranton case (supra), especially on Lord

Sterndale MR’s opinion at 123 of the report, is to invite this court to look at the
whole case, in particular PNDCL 220, see how the Law came to be passed, and
whether it formed part of the public policy of this country, and if it did then we
should say that we have no jurisdiction to go into the matter. In my view, even
though Parliament has the right to legislate, this right is not without a limit, and
the right to enact a law that 4 June and 31 December should be declared public
holidays cannot be left to linger in the realm of public policy. Such legislation must
be within the parameters of the power conferred on the legislature, and under
article 1(2) of the Constitution, 1992 any law found to be inconsistent with any
provision of the Constitution (the supreme law) shall, to the extent of such
inconsistency, be void. This constitutional criterion is what is used to test the
validity or otherwise of all statutes or laws, and it is against this criterion that
PNDCL 220 must be tested.
The plaintiff need not specifically plead the unconstitutionality of PNDCL 220
before this court can consider it. The declaration sought by the plaintiff is quite
referable to section 1(1) of PNDCL 220, read in conjunction with the Schedule
thereof, which declares 4 June and 31 December public holidays, and since this is
inconsistent with the letter and spirit of articles 3, 35 (1) and 41 (b) of the
Constitution, 1992, that portion of PNDCL 220 is to the extent of the inconsistency
null and void by virtue of article 1 (2) of the Constitution, 1992, and for that matter
any court of competent jurisdiction or judge thereof is under a legal obligation to
set it aside either suo motu or on application by the party affected. No judicial
discretion arises here. The power of this court to set aside such provision is derived
both from article 1(2) of the Constitution, 1992 and the inherent jurisdiction of the
court: see Mosi v Bagyina [1963] 1 G LR 337, SC. That portion of PNDCL 220 should
therefore be set aside as null and void, and it is hereby set aside.
An attempt was made to equate the 31 December revolution, 1981 with the French
Revolution, 1789, and the defence is contending that because that revolution is
celebrated as a national day, 31 December should as well be so celebrated. This is
all unfortunate comparison. Learned counsel did not particularise the similarities.
However important this appears to the defence, I think this is not very relevant to
the issue under consideration. However, since he has raised the issue, I would like
to make a comment.
The grounds for staging the 4 June 1979 and the 31 December 1981 coups d’etat or
revolutions for that matter are well-known to Ghanaians—alleged corruption of
high officials, cheating, greed, charges of amassing wealth at the expense of the
poor and needy, abuse of office for private profit, and dishonest acquisition of
property, etc, the authenticity of which accusations was unfortunately never tested
in any court of competent jurisdiction in this country. With respect to the 4 June
1979 coup d’etat, Sowah JSC(as he then was) when delivering his opinion in the
case of Kwakye v Attorney-General (supra) at 961-962 had this to say:
“The successful mutineers established a government under the name of the Armed
Forces Revolutionary Council . . .
During the early period of the new regime, the degree of violence and barbarity
exhibited by it and some members of the Armed Forces were such that persons
apprehensive of danger to their lives fled the country. Amongst those who fled
were persons wanted by the council . . .
There was no provision for arraignment of accused persons before the court. A
great number of persons were apprehended in their homes and taken to court. The
other mode of enforcing presence in the court was by announcement of names of
persons wanted on the radio and television requesting them to report at Burma
Camp ‘with immediate effect’.”
As to the procedure adopted in prosecuting the offences, the crimes of a number of

persons arrested were not properly investigated before the accused were
purportedly tried and convicted. Archer JSC(as he then was) had occasion in the
Kwakye case (supra) at 973 to comment: “I must confess that this is the first time
that I have come across a criminal conviction based on a mere perusal of the
prosecution’s file without reliance on any sworn evidence.” Anin JSChad this to say
at 987:
“Having been sworn on the cross, Flt.-Lt. Rawlings explained that during the
administration of the A.F.R.C., of which he was chairman, special courts were
established to try certain offences under A.F.R.C.D. 3 He continued, ‘I cannot give
you the specifics; but I know they were tried. The trial of the S.M.C. members
executed was incomplete.’”
Anin JSCcontinued at 988:
“In answer to the court’s question whether he could give specific details about
Kwakye’s case without reference to the documents, the witness replied, ‘No, I
cannot.’ Finally, he explained that when he stated in his evidence-in-chief that the
trial of those S.M.C. members who were executed was incomplete, he meant that
they had not completed investigations into their assets.”
The French Revolution, on the other hand, emanated from different premises. It
was based on liberty, equality and fraternity. Inequalities were met everywhere and
stopped all progress. The nobles and clergy were exempt from direct taxes, whereas
most taxes were paid by the third estate—a class which included peasants,
artisans, merchants and professional men. Even among these groups taxes were
not equal. There were social and economic as well as political inequalities: see
Compton’s Encyclopaedia And Fact-Index Edit at p 441. Here in Ghana a
constitutional order was already in existence before 31 December 1981.
What is rather disturbing is the heinous means adopted to effect the French
change. A comparison that a renowned Prussian author, Friedrich von Gentz,
makes between the American and French Revolutions makes very fascinating,
reading, and illuminates the modus operandi of the French Revolution during the
process of take over. He says in his treatise titled, The French and American
Revolutions Compared at p 63:
“The French revolution was offensive in its origin, offensive in its progress,
offensive in its whole compass, and in every single characteristic moment of its
existence. As the American revolution had exhibited a model of moderation in
defence, so the French one displayed an unparalleled example of violence and
inexorable fury in attack. As the former had always kept the vigour of its defensive
measures in vigorous proportion to the exigency, so the latter, from the weakness
of the resistance made against it, became more and more violent and terrible, the
more cause it had to grow wilder.”
And at p 67 the author continued:
“As the American revolution was a defensive revolution, it was of course finished,
at the moment, when it had overcome the attack, by which it had been occasioned.
The French revolution, true to the character of a most violent offensive revolution,
could not but proceed so long as there remained objects for it to attack, and it
retained strength for the assault.
The American revolution, at every stage of its duration, had a fixed and definite
object, and moved within definite limits and by a definite direction towards this
object. The French revolution never had a definite object; and in a thousand
various directions, continually crossing each other, ran through the unbounded
space of a fantastic arbitrary will, and of a bottomless anarchy.”
I am encouraged to believe that the Ghana Government is not all that enthused by
a situation of this nature as to lure it to clamour for the national celebration of its
31 December 1981 revolution. If, however, it is so infatuated to celebrate it, this

court would justifiably discountenance it as much as the Constitution, 1992 frowns
on it.
I find it difficult to appreciate the niceties of the defence argument that the
celebration of the 31 December 1981 revolution is to be restricted to the historical
values that the revolution stood for. There is nothing in the publication admitted
in paragraphs (2), (5) and (11) of the defendant’s statement of case as well as in
section 1 (1) of PNDCL 220 that supports that contention. A historical account of
the 31 December revolution cannot be complete if its aims and modus operandi are
divorced from its historical values. An account of the atrocities and brutalities that
characterised the take over and the early stages of the revolution must definitely be
highlighted. The three form a composite unit, and it is this unit that operates on
the mind of the citizen. The argument, therefore, that it is only the historical values
of the revolution that the government intends to celebrate is untenable, and in my
view, it is calculated to deceive this court. I reject it.
Further, the use of public funds to finance the celebration cannot be constitutional
for the reason, as the defence puts it, that provision for that expenditure had been
made in the 1993 budget which was authorised by the Appropriation (1993
Financial Year) Law, 1993 (PNDCL 314). Though sections 18 and 19 of the
transitional provisions to the Constitution, 1992 continued in force the
Consolidated Fund the Contingency Fund in existence before the coming into
force of the Constitution, 1992, together with the financial estimates in operation
for the financial year in being at the coming into force of the Constitution, 1992,
section 36 thereof emphasises that application or enforcement of such expenditure
must not be inconsistent with any provision of the Constitution, 1992.
In my judgment, the application of funds so provided which is intended to be

utilised for the celebration of the 31 December revolution is equally
unconstitutional having regard to the conclusions already reached by me on the
celebration itself.
Finally, the submission that this court has no jurisdiction to issue an injunction
against the government in constitutional cases should fail, because though article
57 (4) of the Constitution, 1992 exempts the President, while in office, from liability
to proceedings in any court for the performance of his functions under the
Constitution, 1992 or any other law, article 2 (2) of the Constitution, 1992 empowers
this court for purposes of any declaration under clause (1) of the article to make
any order and give such directions as this court may consider appropriate for
giving effect to the declaration so made. And article 2(4) of the Constitution, 1992
creates an offence of high crime under the Constitution against any person who
disobeys or fails to carry out the terms of any such order or direction given by this
court. In this wise, neither the President nor the Vice-President is exempted;
failure on their part to obey or carry out the terms of any such order or direction
constitutes a ground for removal from office under the Constitution, 1992. The
Constitution, 1992 therefore requires all persons including the President to obey
and carry out such orders and directions made by this court under article 2 of the
Constitution, 1992 or suffer the sanctions so imposed.
It is for the above reasons that I agreed to grant the declaration sought by the
plaintiff, and indorsed the decision that 31 December shall no longer be declared
and observed as a public holiday, and celebrated as such out of public funds.
MRS JOYCE BAMFORD-ADDO JSC
The plaintiff invoked the original jurisdiction of the Supreme Court under articles
2 (1) and 130 (1) of the Constitution, 1992 for a declaration:
“(1) That the public celebration of the overthrow of the legally constituted
Government of Ghana on 31 December 1981, and the financing of such celebration
from public funds is inconsistent with or in contravention of the letter and spirit of
the Constitution, 1992 and more particularly articles 3 (3), (4), (5), (6) and (7) and 35
(1) and 41(b) thereof.
I shall set out in extenso the relevant provisions on which the plaintiff ‘s claim is
based for ease of reference, Articles 3 (3), 51 (1) and 41 (b) of the Constitution, 1992
provide:
clause:
commits an offence of high treason and shall, upon conviction, be sentenced to

suffer death.
and
Article 35 (1) of the Constitution, 1992 provides:
Article 41 (b) of the Constitution, 1992 states:
every citizen—
(b) to uphold and defend this Constitution and the law.”
Articles 3(3), (4), (5), (6) and (7) as well as 35(1) and 41(b) of the Constitution, 1992
quoted above, are the specific provisions of the Constitution, 1992 on which the
plaintiff based this claim for the reliefs sought, namely: “that the public
December 1981 is inconsistent or in contravention of the letter and spirit of the
Constitution, 1992.”
The plaintiff’s grounds in support of the claim are contained in the statement of
case filed as well as on viva voce arguments of counsel, Mr. Peter. Ala Adjetey in
court. These submissions are briefly that since the Constitutions 1960, 1969 and
1979 were not changed in accordance with the provisions for change spelt out in
those Constitutions, those changes were unconstitutional. Counsel referred to
section 34 (2) of the transitional provisions of the Constitution, 1992 and stated that
it is true that by virtue of that section it is not lawful for any court or tribunal to
entertain any action or take any decision or make any order or grant any remedy or
relief in any proceedings instituted against the Government of Ghana in respect of
any act or omission relating to or consequent upon the coup of 1981, but this action
has not been instituted in respect of section 34 (2) of the transitional provisions of
the Constitution, 992 and therefore the court can say that the change in
government in 1981 was unconstitutional.
I think it would be convenient to pause here to answer this submission

straightaway. This submission has two parts to it; the first part is that since the
Constitutions, 1960, 1969 and 1979 were not changed in accordance with the
constitutional provisions spelt out in those Constitutions, the changes were
unconstitutional. This is a correct statement of fact. The second submission,

however, is not legally correct because for section 34 (2) of the transitional
provisions of the Constitution, 1992 to have effect, it is not necessary that the
plaintiff’s action should have been instituted under the said section. In whatever
garb a clams is clothed, if it can be said to fall within the provision of section 34 (2)
of the transitional provisions of the Constitution, 1992, that section would have
automatic operation and the court would be effectively precluded from taking any
decisions concerning matters specified therein or granting any remedy or reliefs.
This means that even if coups are unconstitutional this court cannot pronounce on
such unconstitutionality for the purpose of granting any reliefs.
According to Mr Adjetey, the grant of immunity to coup makers means they are
wrongdoers and therefore reliefs could have been sought against the Government
of Ghana, that is why the immunity was provided. This deduction cannot be
challenged. He then referred to article 3 (3) (a) and (b) of the Constitution, 1992
which says that coups are illegal and said that this is what took place on 31
December 1981 which abrogated the Constitution, 1979. He submitted:
(1). That there had been some coups before 31 December and if those dates are not
celebrated as public holidays it would be discriminatory to celebrate only 31
December which is not even worth celebrating.
(2). That celebrating that day as a holiday would send wrong signals to citizens of
Ghana that the overthrow of a constitutional government is the highest
achievement that any one can attain.
(3). That the celebration would remind Ghanaians of the atrocities committed by
soldiers as a result of the 31 December coup and for these reasons the celebration is
inconsistent with the provisions of articles 3 (3), (4), (5), (6) and (7) and also 35 (1)
and 41 (b) of the Constitution, 1992 therefore it should be declared null and void.
He said further that the celebration of 31 December from public funds is also
inconsistent with Constitution, 1992 and totally unconstitutional.
Whether the financing of the celebration from public funds is also

unconstitutional, I believe, would depend on the finding whether the declaration
that 31 December be observed as a public holiday is unconstitutional. If it is not

unconstitutional then there would be no need to consider this issue.
The Deputy Attorney-General, Mr Amidu, for the defendant denies that the
celebration of 31 December mandated as a public holiday under the Public
Holidays Law, 1989 (PNDCL 220) is unconstitutional or null and void. Paragraphs
(15) and (16) of the defendant’s statement of case states:
“(15) The defendant maintains that what the plaintiff is seeking to do is question
the constitutionality and legality of 31 December Revolution, and the events which
gave rise to that revolution on 31 December 1981 which should not be entertained
by the court by virtue of section 34 particularly subsection (2) of the transitional
provisions scheduled to the Constitution, 1992.
(16) The defendant says in the premise that the plaintiff is not entitled to the reliefs
sought or at all.”
It seems to me that there are three important issues calling for a decision in this
case. They are:
(1). Whether PNDCL 220, regarding the part declaring 31 December as a public
holiday, is inconsistent with or in contravention of the letter and spirit of the
Constitution, 1992, particularly article 3 (3), (4), (5), (6) and (7) and also articles 35
(1) and 41 (b) of the Constitution, 1992.
(2). Whether the plaintiff’s case is substantially based on the overthrow of the
Constitution, 1979 or the 31 December 1981 coup—by the PNDCL.
(3). Whether even if the 31 December coup was unconstitutional, this court has the
jurisdiction to grant the reliefs sought by plaintiff.
The answers to these questions, would, I believe, resolve this case. Article 2 of the
Constitution, 1992 provides that:
(a) An enactment or anything contained in or done under the authority of that or

(b) any act or omission of any person;

bring an action in the Supreme Court for declaration to that effect.”
(The emphasis is mine.) Even though the plaintiff in its claim, did not rely directly
on PNDCL 220 which enacted that 31 December, was to be a public holiday, in
actual fact, this is the enactment or the authority under which the government
acted to declare the said date as a public holiday, and should be the enactment to
which the plaintiff’s complaint refers. Now the question is, is PNDCL 220
inconsistent with article 3 (3), (4), (5), (6) and (7) of the Constitution, 1992 having
regard to articles 35 (1) and 41 (b) thereof?
I shall proceed to interpret the Constitution, 1992 as I see it, in accordance with the
rules of constitutional construction or interpretation. It is a fact that the 31
December coup, was the overthrow of a constitutional government under the
Constitution, 1979. It is also true that the change of government was not effected in
accordance with chapter 25 thereof, so therefore for purposes of argument only, it
can be said that the change in 1981 was unconstitutional. But even if the 31
December 1981 action was unconstitutional, which as I have said above, this court
has no jurisdiction to decide upon, it does not follow automatically, that PNDCL
220 declaring 31 December as a public holiday should also be unconstitutional and
null and void, the unconstitutionality of that Law must be satisfactorily proved.
In 1989 when PNDCL 220 was passed by the ruling PNDC Government, that
government was the de facto and de jure Government of Ghana. The Provisional
National Defence Council (Establishment) Proclamation, 1981 established the
PNDC which was mandated to exercise all powers of government and was given
power to make laws to regulate the affairs of the Republic of Ghana. For this reason,
PNDCL 220 was a Law properly enacted by the PNDC in 1989 when the
Constitution, 1979 had been abrogated. Later, the Constitution, 1992 came into
force on 7 January 1993, and from that date the prospective constitutional
provisions became operative but not with retrospective effect whether in whole or
in part. This point must not be lost sight of.
The Constitution, 1992 also saved all existing laws in operation on 7 January 1993:
see article 11 (1) (d) and (5) which provides:
“11. (1) The laws of Ghana shall comprise—
(d) the existing law . . .
(5) subject to the provisions of this Constitution, the existing law shall not be
affected by the coming into force of this Constitution.”
Therefore PNDCL 220 will continue to be part of the laws of this country until in
accordance with article 2 of the Constitution, 1992 the Supreme Court declares it or
part of it, inconsistent with the Constitution, 1992 and therefore null, and void.
This is what the plaintiff is seeking to do. To succeed, the plaintiff must
satisfactorily prove its case otherwise it would not be entitled to the reliefs sought
in its writ. The provision of article 2 (1) of the Constitution, 1992 affects all existing
laws of this country including those passed by the PNDC government as well as
those passed or to be passed by the present government or by any future
governments.
This has to be so, because the Constitution, 1992 is the basic and supreme law
which embodies the will of the people of this country, and it must rightly be the
criteria by which the legality or constitutionality of all laws of this country should
be tested. Thus article 1 (2) of the Constitution, 1992 states that:
“(2) This Constitution shall be the supreme law of Ghana and any other law found
to be inconsistent with any provision of this Constitution shall, to the extent of the
inconsistency, be void.”
The plaintiff has by its writ challenged the part of PNDCL 220 which declares 31
December a public holiday, and is relying on article 2(1)(a) of the Constitution, 1992
to get a declaration to the effect that, that portion of PNDCL 220 is inconsistent
with article 3(3), (4), (5), (6) and (7) of the Constitution, 1992 and therefore null and
void. It is important that a thorough comparison be made between article 3(3), (4),
(5), (6) and (7) of the Constitution, 1992 and PNDCL 220 to see whether there is an
inconsistency between the two enactments. I have taken pains to scrutinise the
two and I cannot by any stretch of the words in article 3(3), etc of the Constitution,
1992 say that the two are inconsistent. A correct literal interpretation of the
wording of article 3(3) of the Constitution, 1992 is that any person or persons who
unlawfully overthrows the government or, “suspends or overthrows or abrogates
this Constitution, [1992] or any part of it” or any person who aids or abets in any
manner such an enterprise commits the offence of high treason punishable on
conviction by death. This article refers specifically to this Constitution, 1992 (not
any past Constitution) and makes the operation of the Constitution, 1992
prospective not retrospective. It is concerned with future coups not past coups and
seeks to ensure that no government in this country after 7 January 1993 is
unlawfully removed or the Constitution, 1992 abrogated. I am unable to find words
in article 3(3) of the Constitution, 1992 which outlaws the public celebration of any
past coups, eg the 31 December coup for which reason the celebration of same can
be said to be either in contravention of or inconsistent with the provision of article
3(3), etc of the Constitution, 1992. Indeed, if as I said before, by virtue of section 34
(2) of the transitional provisions of the Constitution, 1992 we are not permitted to
hold an inquiry into matters pertaining to the 31 December coup of 1981, or to
borrow the words of Archer JSC(as he then was) in the case of Kwakye v Attorney-
General [1981] GLR 944 at 981, SC if we are “prevented from conducting any
transillumination” into PNDC coup affairs, then we cannot make any decisions as
to the unconstitutionality of the 1981 coup upon which we can rely to judge the
unconstitutionality or otherwise of PNDCL 220. We must look only within the four
walls of the Constitution, 1992 to make such a judgment, having regard to the letter,
ie words and the spirit of the Constitution, 1992 as contained in chapter 6 thereof.
Or in this case, as can be deduced from articles 35(1) and 41 (b) of the Constitution,
1992. I might however be tempted to hold such a view if the celebration of 31
December as a public holiday can be said to be subversive of the Constitution 1992,
in that it is an intended attempt to overthrow the NDC Government or induce
others to do so. But then can this be the intention of the government, to commit
political suicide? I think not. It seems to me rather that it should be the ardent or
passionate desire of this government to prevent coups through upholding the
provision of article 3(3) of the Constitution, 1992 as it is in duty bound to do under
article 3(4), which duty has particular reference only to article 3(3) of the
Constitution, 1992. I am convinced that by the letter of article 3(3) of the
Constitution, 1992 the provisions of PNDCL 220 as regards the celebration of 31
December as a public holiday, cannot be said to be inconsistent with or in

contravention of the letter of article 3(3), etc of the Constitution, 1992 and I so hold.
Now I come to the spirit of the Constitution, 1992. The plaintiff, apart from article 3,
relied also on articles 35(1) and 34(b) of the Constitution, 1992, provisions under the
“Directive Principles of State Policy” to ground its claim. But the said principles are
not justiciable and the plaintiff has no cause of action based on these articles.
Those principles were included in the Constitution, 1992 for the guidance of all
citizens, Parliament, the President, judiciary, the Council of State, the cabinet,
political parties or other bodies and persons in applying or interpreting the
Constitution, 1992 or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society. The judiciary is to be
guided, while interpreting the Constitution, 1992 by only the specific provisions
under chapter 6.
The reasons for these principles which the Consultative Assembly relied on in
formulating chapter 6 of the Constitution, 1992, are stated at paragraphs 94—97 of
the Report of the Committee of Experts on Proposals for a Draft Constitution
Ghana as follows:
“94. The NCD report speaks of the need to include in the new Constitution ‘core
principles around which national political, social and economic life will revolve.’
This is precisely what the Directive Principles of State Policy seeks to do. Against
the background of the achievements and failings of our post-independence
experience, and our aspirations for the future as a people, the principles attempt to
set the stage for the enunciation of political, civil, economic and social rights of our
people. They may thus be regarded as spelling out in broad strokes the spirit or
conscience of the constitution. The Committee used Chapter Four of the 1970
Constitution as a basis for its deliberations on this subject.
95. By tradition Directive Principles are not justiciable; even so, there are at least
two good reasons for including them in a constitution. First, Directive Principles
enumerate a set of fundamental objectives which a people expect all bodies and
persons that make or execute public policy to strive to achieve. In the present
proposals, one novelty is the explicit inclusion of political parties among the
bodies expected to observe the principles. The reason for this is that political
parties significantly influence government policy. A second justification for

including Directive Principles in a constitution is that, taken together, they
constitute, in the long run, a sort of barometer by which the people could measure
the performance of their government. In effect they provide goals for legislative
programmes and a guide for judicial interpretation.
96. On the basis of the foregoing considerations, the Committee proposes as

follows: The Directive Principles of State Policy are for the guidance of Parliament,
the President, the Council of Minister, Political Parties and other bodies and
persons in making and applying public policy for the establishment of a just and
free society. The Principles should not of and by themselves be legally enforceable
by any Court. The Court should, however, have regard to the said Principles in
interpreting any laws based on them.
97. In view of the fact that the Principles are not justiciable, it becomes necessary to
provide a standing reminder to an incumbent Government that it is expected to
take necessary measures to achieve them. For this purpose, the Committee
considered it adequate to adopt the provision in the 1979 Constitution stipulating
that, at least once a year, the Government should report to Parliament all the steps
it has taken towards achieving the policy objectives; particularly, towards the
realization of a healthy economy, the right to work, the right to good health care
and the right to education.”
(The emphasis is mine.) It is under chapter 6 that we find the spirit or conscience of
the Constitution, 1992 and it seems to me that the plaintiff’s argument and reasons
for suing are based mainly, according to it, on the spirit of articles 35(1) and 41(b).
For emphasis and ease of reference, I quote again the provision of article 35(1) of
the Constitution, 1992 which comes under political objectives and states:
Article 41 (b) of the Constitution, 1992 comes under duties of a citizen and it states:
every citizen— . . .
Articles 35(1) and 41(b) of the Constitution, 1992 quoted above, merely provide that
it is the duty of all citizens of this democratic State to uphold this Constitution in
any way, including by virtue of article 3(4) resisting future coups and obeying the
precepts of the Constitution, 1992. It is my duty to give faithful interpretation to the
words having regard to the spirit of the Constitution, 1992 as I see them, my
political or moral views or that of any other person however right notwithstanding.
As I said above, I am unable to find direct or indirect words in article 3(3) or any
other provision of the Constitution, 1992 to the effect that the celebration of 31
December as a public holiday should be unconstitutional. This also applies to the
words of articles 35(1) and 41 (b) of the Constitution, 1992 and for this reason, I
cannot interpret those constitutional provisions as we are being urged to do. The
Constitution, 1992 must be interpreted according to both the letter and spirit
together.
In Sallah v Attorney-General G & G (Vol 11, Pt 2) 493, SC Sowah JA (as he them was)
said at 506:
“I consider that the best guide to interpretation is the letter and spirit of the
Constitution if the intention of the Assembly (which drafted the Constitution) can
be collected from the words used and if that intention, when so collected, is in
consonance with the spirit of the Constitution, then there is no need for further
aids.”
See also holding (5) of the headnote of the case of Tuffuor v Attorney-General
[1980] GLR 637, CA sitting as SC where it was held:
“(5) The duty of the court in interpreting the provisions of article 127(8) and (9) was
to take the words as they stood and to give them their true construction having
regard to the language of the provisions of the Constitution, always preferring the
natural meaning of the words involved, but nonetheless giving the words their
appropriate construction according to the context.”
Sowah JSC(as he then was) also said at 648:
“And so a construction should be avoided which leads to absurdity. And when a

particular interpretation leads to two, shall we say ‘inconsistent’ results, the spirit
of the Constitution would demand that the more reasonable of the two should be
adhered to.
We must have recourse to the Constitution as a whole.”
The rule is that the plaintiff must state the basis of its claim specifically and prove
same if it is to succeed in its claim. I am afraid the plaintiff has not been able to do
so. In view of the fact that there were no specific words making PNDCL 220
inconsistent with article 3 (3), etc of the Constitution, 1992 it is incumbent on the
plaintiff to have called evidence in support of its case. It failed to do this and it
should not have obtained judgment in its favour in a case based only on counsel’s
own notions or speculations on the possible effects of the celebration of 31
December as a holiday.
I now move on to consider the validity of the plaintiff’s counsel’s arguments in

support of this case. His first submission was that since there had been coups
before 31 December, if those dates are not also celebrated now as public holidays, it
would be discriminatory to celebrate only 31 December as a public holiday. It is a
fact that the dates of past coups as well as some political events have been
celebrated as public holidays by various governments since 1960 to date. Any
government in the exercise of its executive powers can in its discretion, specify any
day to be celebrated as a public holiday. The Public Holidays Act, 1960 (Act 23)
passed by the Nkrumah Government made National Founder’s Day (21 September)
as well as other specified dates public holidays. The holidays under Act 23 were
according to the Schedule as follows:
“New, Year’s Day (1st January)
Ghana Independence Day (6th March)
Good Friday
The Saturday next following Good Friday
Easter Monday
Republic Day (1st July)
National Founder’s Day (21st September)
Christmas Day,
Boxing Day.”
Section 1(2) and (4) of Act 23 provided that:
“(2) In addition to the Public holidays prescribed by subsection (1) of this section,
the President may by executive instrument, declare and other day to be a public
holiday and may by the same instrument limit its observance to any area or place
in Ghana . . .
(4) The President may by legislative instrument amend the schedule to this Act”
(The emphasis is mine.) In 1972 the Public Holidays Decree, 1972 (NRCD 18) was
passed by the Acheampong Government. It repealed Act 23 and provided certain
dates to be celebrated as public holidays. That list excluded National Founder’s
Day, 21 September and Republic Day, 1 July, and substituted National Redemption
Day (13 January), the date of Acheampong’s coup, and the First Monday in August
as public holidays. Even though 24 February, the date of the NLC coup, was not
listed in the Schedule to NRCD 18, the Government of the NRC by the Public
Holidays (No 2) Order, 1973 (EI 17 of 1973) declared that day a public holiday by
virtue of section 2 of NRCD 18 which gave the government power to declare other
dates as public holidays. Later, the Public Holidays Decree, 1974 (NRCD 262)
repealed NRCD 18 and provided a new list of public holidays. This Law excluded
First Monday in August and in its place substituted again Republic Day (1 July) as
was earlier provided in Act 23.
NRCD 262 which contained the date of 13 January, the date of Acheampong’s coup,
continued to be the law governing public holidays in this country from 1974 until it
was repealed by the PNDC in 1989 by PNDCL 220 despite the taking over of a
constitutional government in 1979.
PNDCL 220 also sets out a list of public holidays as amended by the Public
Holidays (Schedule Amendment) Law, 1992 (PNDCL 274) and repealed NRCD 262.
That list included, among others, new dates, namely 31 December, 4 June and
Farmers’ Day (First Friday in December). It can be seen that the fixing of a date for
celebration as a public holiday is a policy decision of the government, an executive
act, and can be changed whenever that or any other government deems it
expedient to do so by legislation. It seems to me therefore that the 31 December
public holiday, unless unconstitutional, which I have said it is not, can only be
deleted from the list of public holidays by any government which desires this as a
policy decision, to take necessary legislative action to delete this date from the list
provided in PNDCL 220. It is during the debate on such a matter in Parliament that
arguments such as were canvassed here could properly be made to influence
Parliament to repeal any date, eg 31 December from the list specified in the
Schedule to PNDCL 220. In that forum, but not here, policy issues could rightly be
canvassed and considered.
Since the dates of all past coups have been celebrated at one time or other
depending on which government is in power, the argument that the celebration of
31 December is discriminatory is, in my view, not a valid point, unless of course it is
counsel’s case that if all the dates of past coups are celebrated as public holidays
then the celebration of 31 December would be constitutional. The flaw in this
argument is obvious, and counsel’s submission on this issue is not his strongest
point and does not advance his case forward one bit, I reject it.
The second submission was that celebrating that day as a holiday would send
wrong signals to citizens of Ghana that the overthrow of the constitutional
government is the highest achievement any one can attain.
I doubt the soundness of this reasoning. I have said earlier that it cannot be the
intention of the government to send those signals inviting a coup against itself nor
do I think that any reasonable person in a trotro in Ghana today would consider the
celebration as sending signals to people to stage a coup, in view of the strong
stipulation in article 3(3) of the Constitution, 1992 that any future coups would be
punished by death of the coup maker. Indeed, counsel’s conclusion on this issue
seems to me to be too far-fetched to be reasonable or valid.
The third submission is that the celebration would remind Ghanaians of the
atrocities committed by soldiers in executing the 31 December coup. I, speaking for
myself, in all fairness to the defendant, do not think that the government’s
intention of celebrating 31 December is to remind or induce Ghanaians to relive the
horrors of the early days of the coup, especially when the injuries resulting from
that coup have been regretted by the Government of the PNDC. Indeed, counsel for
the defendant said it was the gains of the 31 December revolution that was being
remembered and celebrated as a historical event. To carry counsel for the
plaintiff’s argument to its logical conclusion would result in an absurdity. It would
mean that because the mention of 31 December reminds some people of the
horrors of the coup, anything, whether beneficial or not done by the PNDC
Government ought to be declared unconstitutional and therefore null and void. To
accept this reasoning would mean that all laws passed by the PNDC Government
since 1981 (even though article 11 of the Constitution, 1992 saves them as forming
part of the laws of Ghana) because they remind people of 31 December, should all
be declared null and void as being unconstitutional. This ground advanced by
counsel to support the plaintiff’s claim is also unmeritorious. This leads me to the
proper effect of counsel’s whole arguments and submissions as I see them.
It seems to me, considering the real import of the plaintiff’s counsel’s arguments,
that he is calling upon us to judge this case by the application or some moral or
political policy consideration, or that he is propounding a novel policy issue for our
guidance here. However right such a policy consideration may be, this court
cannot be guided by it in our interpretative duty. The only policy issues permitted
to be considered by us are those state policy considerations set out specifically in
chapter 6 of the Constitution, 1992. I am afraid if they have no application to this
case, no extra constitutional ones can be considered. It is not for the judiciary to
formulate public policy issues, but for the executive or the legislature, and we
cannot usurp their function either directly or indirectly. To accept the plaintiff’s
counsel’s submissions so as to give judgment for it would be to open wide the
floodgates to litigants who seek to influence our decisions in this court with their
ideas or ideals of what public policy ought to be. It would be dangerous to accede to
this request as I shall explain hereunder.
Generally, in interpretation of statutes, public policy considerations cannot be

used as a guide by judges or to influence their decisions, except those apparent in
an enactment under consideration, or those in, eg contracts, which have
crystallised into principles or rules of law or equity. This is because of the dangers
inherent in the use of “changing” public policy. Public policy has been said to be a
“very unruly horse” in Richardson v Mellish (1824) 2 Bing 229 at 252 where
Burrough J said:
“If it be illegal, it must be illegal either on the ground that it is against public
policy, or against some particular law. I, for one, protest, as my Lord has done,
against arguing too strongly upon public policy; —it is a very unruly horse, and
when once you get astride it you never know where it will carry you. It may lead
you from the sound law. It is never argued at all but when other points fail.”
As stated also in Egerton v Brownlow (Earl) (1853) 4 HL Cas 1 at 123 HL where Parke
B warned:
“‘ . . . public policy’ is a vague and unsatisfactory term, and calculated to lead to

uncertainty and error, when applied to the decision of legal rights; it is capable of
being understood in different senses; it may, and does, in its ordinary sense, mean
‘political expedience,’ or that which is best for the common good of the
community; and in that sense there may be every variety of opinion, according to
education, habits, talents, and dispositions of each person, who is to decide
whether an act is against public policy or not. To allow this to be a ground of
judicial decision, would lead to the greatest uncertainty and confusion. It is the
province of the statesman, and not the lawyer, to discuss, and of the legislature to
determine, what is the best for the public good, and to provide for it by proper
enactments. It is the province of the judge to expound the law only; the written
from the statutes: the unwritten or common law from the decisions of our
predecessors and of our existing courts, from text - writers of acknowledged
authority, and upon the principles to be clearly deduced from them by sound
reason and just inference; not to speculate upon what is the best, in his opinion, for
the advantage of the community. Some of these decisions may have no doubt been
founded upon the prevailing and just opinions of the public good; for instance, the
illegality of covenants in restraint of marriage or trade. They have become a part of
the recognised law, and we are therefore bound by them, but we are not thereby
authorised to establish as law everything which we may think for the public good,
and prohibit everything which we think otherwise. The term ‘public policy’ may
indeed be used only in the sense of the policy of the law, and in that sense it forms
a just ground of judicial decision . . . But we are clearly of opinion that this cannot
be shown here.”
In Re Mirams [1891] 1 QB 594 at 595 Cave J observed that, “. . . judges are more to be
trusted as interpreters of the law than as expounders of what is called public
policy.” In Janson v Driefontain Consolidated Mines Ltd [1902] AC 484 at 500, HL
Lord Davey said, “Public Policy is always an unsafe and treacherous ground for
legal decision, and in the present case it would not be easy to say on which side the
balance of convenience would incline.” In Ewart v Ewart [1958] 3 WLR 680 at 687
Lord Merriman P said: “. . . the court in face of the plain words of the statute is not
concerned with questions of public policy which are said to have prevailed before
it as passed.” In Besant v Wood (1879) 12 ChD 605 at 620, Jessel MR said of public
policy thus:
“This is a branch of law which depends upon what is commonly called ‘public
policy.’ Now you cannot lay down any definition of the term ‘public policy,’ or say it
comprises such and such a proposition, and does not comprise such and such
another: that must be, to a great extent, a matter, of individual opinion, because
what one man, or one Judge, and perhaps I ought to say one woman also in this
case, might think against public policy, another might think altogether excellent
public policy. Consequently it is impossible to say what the opinion of a man or a
Judge might be as to what public policy is.”
The position in this country as regards statutory interpretation is no different. The

Constitution, 1992 however has set out in chapter 6 the policy of the State,
regarding political objectives, economic objectives, social objectives, educational
objectives, cultural objectives and also state policy in relation to international
relations and duties of a citizen which should be used as a guide by the judiciary in
the interpretation of the Constitution, 1992. Article 35(1) of the Constitution, 1992
which the plaintiff referred to deals with political objectives. I will quote it again
for emphasis. It says that:
I have considered this provision and I am unable to see how in the spirit of these
words I can interpret the letter of article 3(3), (4), (5), (6) and (7) to enable me to
hold that there is an inconsistency between PNDCL 220 and article 3(3) of the
Constitution, 1992. As far as I am concerned, only the presence in the Constitution,
1992 of specific words capable of being interpreted to this effect would convince me
to accept the interpretation which I am being invited to put on articles 35(1) and
3(3), etc.
The other article which plaintiff referred us to, ie article 41 (b) says:
every citizen—. . .
The meaning of this provision also, does not seem to me to accord with the
interpretation which counsel is suggesting to us. The fact that all Ghanaians have a
duty to defend and uphold the Constitution, 1992 does not by its spirit lead me to
the conclusion that article 3(3), etc should be interpreted to mean that the
celebration of 31 December is unconstitutional and that day should not be
celebrated ever as a public holiday. Such an interpretation would be far-fetched
and wrong. As I see it, none of the other articles in chapter 6 of the Constitution,
1992 can be so construed. I am not also prepared to admit any policy issues not
specifically mentioned within the four walls of the Constitution, 1992 to guide me
in my interpretative duty, which, as I said before, appears to me to be what counsel
is asking us to do.
I am bound to interpret constitutional provisions applying only the directives of

state policy contained in the four walls of the Constitution, 1992 as specified in
chapter 6 thereof. I think it would be wrong to allow policy issues outside those
specified in the Constitution, 1992 to influence us here, in view of the fickle nature
of public policy and the dangers inherent in doing so, as already stated above.
In my judgment, the language of article 3(3), (4), (5), (6) and (7) of the Constitution,
1992 does not outlaw in clear unambiguous language past coups, but only seeks to
prevent future such actions, and the spirit of articles 35(1) and 41(b) of the
Constitution, 1992 cannot result in such a conclusion. I am afraid I am precluded

from interpreting article 3(3), etc of the Constitution 1992 in the manner urged
upon us by counsel for the plaintiff.
I now move to the provisions of section 34(2) of the transitional provisions of the
Constitution, 1992 and its effect and impact on this case. Section 34(2) of the
transitional provisions of the Constitution, 1992 states in clear words thus:
“(2) It is not lawful for any court or tribunal to entertain any action or take any
decision or make any order or grant and remedy or relief in any proceedings
instituted against the Government of Ghana or any person acting under the
authority of the Government of Ghana whether before or after coming into force of
this Constitution or against any person or persons acting in concert or individually
to assist or bring about the change in Government which took place on the twenty-
fourth day of February 1966, on the thirteenth day of January 1972, on the forth day
of June 1979 and on the thirty-first day of December 1981 in respect of any act or
omission relating to, or consequent upon—
(a) the overthrow of the government in power before the formation of the National
Liberation Council, the National Redemption Council, the Supreme Military
Council, the Armed Forces Revolutionary Council and she Provisional National
Defence Council; or
(b) the suspension or abrogation of the Constitutions of 1960, 1969 and 1979; or
(c) the establishment of the National Liberation Council the National Redemption
Council, the Supreme Military Council which took office on the ninth day of
October 1975, the Supreme Military Council established on the fifth day of July
1978, the Armed Forced Revolutionary Council, or the Provisional National
Defence Council; or
(d) the establishment of this Constitution.”
(The emphasis is mine.) The emphasised portion has particular relevance to this
case. It means as regards this case that this court is precluded or its jurisdiction is
ousted from making any order or granting any remedy or relief to the plaintiff, if
the basis or foundation of the case is in respect of, or “consequent upon” the
overthrow of Hilla Limann’s Government on 31 December 1981 by the PNDC. I have

to interpret section 34 (2)(a) of the transitional provisions of the Constitution, 1992
in the same way and manner I have done in respect of article 3(3) of the
Constitution, 1992 so as to give effect to every word in section 34(3)(a). It is worthy
of note that the same word, namely overthrow was used by the plaintiff in its writ
and also by section 34(2) of the transitional provisions of the Constitution, 1992.
The plaintiff seeks in relief (1) of the writ:
constituted Government of Ghana on 31 December 1981, . . . is inconsistent with or
in contravention of the letter and spirit of the Constitution, 1992 more particularly
articles 3(3), (4), (5), (6) and (7) and 35(1) and 41 (b) thereof.”
Section 34(2)(a) of the transitional provisions of the Constitution, 1992 also says
that any act in respect of or “consequent upon” the overthrow of the government
on 31 December 1981, cannot to be inquired into for the purpose of granting any
reliefs sought against the government I have to decide whether the plaintiff’s case
is “consequent upon” the 31 December coup. The whole basis or foundation of the
plaintiff’s case is that the 31 December coup—or in otherwords the overthrow of
the government in power on 31 December, by the PNDC was unconstitutional, and
therefore that by virtue of the letter and spirit of articles 3(3), 35(1) and 41 (b) of the
Constitution, 1992 the celebration of 31 December as a public holiday as enacted in
PNDCL 220 is also unconstitutional and is null and void. I am firmly of the view
that the plaintiff’s case is caught by the clear and unambiguous provisions of
section 34(2)(a) of the transitional provisions of the Constitution, 1992. The
ordinary meaning of the words consequent upon according to the Oxford
Advanced Learner’s Dictionary is following as a consequence. If the declaration of
31 December—which is really the coup of 1981—as a public holiday, as enacted in
PNDCL 220, is not consequent upon the overthrow of the Limann Government, I
do not know what it is consequent upon.
We have to ask this question for the proper answer. What was the reason for
declaring 31 December a public holiday? The answer is obvious; it is to
commemorate the 31 December coup which overthrew the Limann administration
in 1981 by the PNDC. I do not think that this can seriously be challenged. The
words “consequent upon” was used in a similar provision of the Constitution, 1969.
Section 13(3) of the transitional provisions of the Constitution, 1969 like section
34(2) of the transitional provisions of the Constitution, 1992 provided in exact
words:
“(3) For the avoidance of doubts, it is hereby declared that no Court shall entertain
any action or take any decision or order or grant any remedy or relief in any
proceedings instituted against the Government of Ghana, or any person acting
under the authority of the Government of Ghana whether before or after coming
into force of this Constitution or against any person or persons acting in concert or
individually to assist or bring about the change in government which took place on
the twenty-fourth day of February, 1966, in respect of any act or omission retating
to, or consequent upon,
Liberation Council; or
(b) the suspension of the Constitution which came into force on the first day of
July, 1960, or any part thereof, or
(c) the establishment of the National Liberation Council; or
(d) the establishment of this Constitution.”
In the case of Donkor v The Republic [1971] 1 GLR 30, SC the Supreme Court, coram
Apaloo, Siriboe, Sowah, Anin and Archer JJA (as they then were) were called upon
to give the interpretation of the phrase “consequent upon.” The facts as stated in
the headnote are that:
“After the 1966 February coup, two cars belonging to the plaintiffs in this
consolidated suit were seized on the orders of the National Liberation Council. In
July of the same year the National Liberation Council (Impounded Vehicles)
Decree, 1966 (N.L.C.D. 61), was passed with retroactive effect to give good title to
people to whom unbounded vehicles had been sold, provided money was owed on
these vehicles to the government or the Ghana Commercial Bank. The plaintiffs
brought this action against the government in the High Court for damages for
wrongful seizure. The trial judge referred the matter to the Court of Appeal sitting
as the Supreme Court under the Transitional Provisions of the Constitution to

determine whether on the proper interpretation of section 13(3) of the Transitional
Provisions of the Constitution (Sched. 1) the court had any jurisdiction to entertain
the suit. Counsel or the government argued that since the seizures were traceable
in one way or the other to the overthrow of the former government, they were the
types of acts envisaged by section 13(3). But counsel for the plaintiffs replied that
the National Liberation Council could not have contemplated the seizure of the
cars to assist or bring about the events contemplated by section 13(3).
Held: the ordinary interpretation of the phrase ‘consequent upon’ in section 13(3)
of the Transitional Provisions of the Constitution suggests that the seizures
followed as a result of the coup and that the National Liberation Council must have
considered the acts necessary for its own purposes. Proceedings instituted against
the government before the promulgation of the Constitution in respect of acts
which were consequent upon the overthrow of the former government are
forbidden by the peremptory provisions of section 13(3) of the Transitional
Provisions of the Constitution and therefore the High Court has no jurisdiction to
entertain the suits which should be struck out.”
(The emphasis is mine.) In the result, I find that the celebration of 31 December as a
public holiday is “consequent upon” the overthrow of the Government of Limann
by the PNDC in 1981 and I so hold. Consequent upon this finding, section 34(2)(a)
of the transitional provisions of the Constitution 1992 automatically comes into
effect.
I am of the view that even if I had found that the celebration of 31 December as a
public holiday is unconstitutional as being inconsistent with any provision of the
Constitution, 1992 and therefore null and void,
—still section 34(2)(a) of the transitional provisions of the Constitution, 1992 would
operate to oust the jurisdiction of this court from granting the relief sought by the
plaintiff. Article 299 of the Constitution, 1992 provided that: “The transitional
provisions specified in the First Schedule to this Constitution shall have effect
notwithstanding anything to the contrary in this Constitution.”
By the effect of article 299 of the Constitution, 1992 section 34(2)(a) of the
transitional provisions of the Constitution, 1992 clearly override the other
constitutional provisions in certain circumstances as stated in section 34(2) of the
transitional provisions of the Constitution, 1992. It is not for me to pass judgment
on the merits and demerits of these provisions, my duty is to give judicial
interpretation to the words as I find them. In this exercise, I have derived much
support from the case of Kwakye v Attorney-General (supra) in which the Supreme
Court considered the effect of similar provisions in the transitional provisions of
the Constitution, 1979 as regards the effects of the ouster provisions. Sections 15
and 16 thereof are equivalent to sections 34 and 35 of the transitional provisions of
the Constitution, 1992. That was a case in which the plaintiff issued a writ in the
Supreme Court for a declaration that he was never tried, convicted or sentenced by
any special court established under the Armed Forces Revolutionary Council
(Special Courts) Decree, 1979 (AFRCD 3) and that the purported imprisonment of
25 years imposed on 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 plaintiff also filed a statement of his case in accordance with rule 46 of the
Supreme Court Rules, 1970 (CI 13). The Attorney-General, however, did not file any
statement of defence as required by CI 13 but instead moved to have the plaintiff’s
action struck out in limine on the ground, inter alia, that on the facts as pleaded by
the plaintiff himself, the AFRC took or at least purported to have taken a judicial
action against him, accordingly sections 15 and 16 of the transitional provisions of
the Constitution, 1979, particularly section 15(2) forbade the court from
entertaining the plaintiff’s action or granting the plaintiff any remedy. In the
court’s ruling: see Kwakye v Attorney-General [1981] GLR 9, SC the Supreme Court
unanimously held that the defendant who was claiming that the jurisdiction of the
Supreme Court had been ousted by the provisions of section 15(2) of the
transitional provisions of the Constitution, 1979 ought to provide factual basis for
the application of those ouster, provisions, and gave the defendant all opportunity,
notwithstanding his lateness, to relate his version of the facts by filing a statement
of his case within seven days. The defendant obliged and at the subsequent trial,
led both oral and documentary evidence with a view to showing that a judicial
action or purported judicial action was taken against the plaintiff by the special
court within the meaning of section 15(2) of the transitional provisions of the
Constitution, 1979. On the evidence, the Supreme Court had to decide on the issue
whether the court’s jurisdiction to grant the declaration sought by the plaintiff was
ousted by the said ouster clause, ie section 15(2) and (3) of the transitional
provisions of the Constitution, 1979. The court held in Kwakye v Attorney-General
(supra), as stated in the headnote at 949 holding (2), dismissing the plaintiff’s
action per Apaloo CJ, Archer, JSC(as he then was), Charles Crabbe and Adade
JSC(Anin and Taylor JSCdissenting):
“(2) The effect of section 15(3) of the transitional provisions was to prevent non-
compliance with ‘any procedure prescribed by any law’ being used as a necessary
pre-condition for the operation of the ouster clause in section 15(2). In other words,
irregularities in the mode of trial would not prevent the ouster clause from having
its intended effect.”
In that case, the dissenting judges did not deny the intended effect of section 15(2)
of the transitional provisions of the Constitution, 1979. They found that since there
was no “purported” action, section 15(2) of the transitional provisions of the
Constitution, 1979 did not apply to oust the jurisdiction of the court. Apaloo CJ
said at 957-958:
“On the evidence, is it reasonable to conclude that the Armed Forces Revolutionary
Council took or purported to take judicial action against the plaintiff? That
immediately requires the correct interpretation of section 15(2) of the transitional
provisions which we have already quoted. That section contains what lawyers call
an ouster clause, ousting the normal jurisdiction of the courts. This particular
ouster clause does not arise from an ordinary statute but is a constitutional
provision. Moreover, article 217 of the Constitution, 1979, gives the transitional
provisions effect notwithstanding anything to the contrary contained in the
Constitution.
In the exercise of the interpretative jurisdiction of this court, it is obvious that we

should go beyond statutory interpretation since we are concerned with the most
fundamental issues of our jurisdiction . . . I think originality is required of us in the
exercise of our original jurisdiction if we are to attend to the letter and spirit of the
Constitution as the basic law of our land. That originality must, of course, be
judicial and must not do damage to the plain and obvious meaning of the words
used nor is it the province of this court to be astute to find some reason or other for
depriving the constitutional provision of an effect clearly intended.”
Archer JSC(as he then was) also stated at 981:
“Considerations of want of jurisdiction, excess of jurisdiction, errors of law or fact

on the face of the record have been rendered totally irrelevant by sections 15(2) and
(3) and 16 of the transitional provisions, The effect of these sections can best be
ascertained by taking into account the political antecedents of the present
Constitution. Our political leaders had to negotiate with those who had seized
power in connection with their handing over to a civilian government and the
reinstatement of our liberties. These political facts are so notorious trial they
should not be judicially overlooked. The courts have been prevented from
conducting any transillumination into the affairs of the A.F.R.C. And I think the
matter should rest there.”
Charles Crabbe JCAso observed at 1031:
“A Constitution is something more than a mere Act of Parliament. All the organs of
government derive their authority and their sustenance from the Constitution.
Thus a cardinal principle in the interpretation of a Constitution is to avoid a
construction which renders meaningless or inoperative any provision of the
Constitution. The same principle applies to the words of the Constitution. Every
word must be construed to make it operative and not idle or nugatory. The express
intent of the framers—as disclosed by the words used—must be respected. The
purpose and intent of the framers—as disclosed by the words used—must be given
their true signification. And so, I must reiterate the clear words of article 217. It
states clearly that: ‘The transitional provisions specified in the First Schedule to
[the] Constitution shall have effect notwithstanding anything to the contrary
contained in [the] Constitution.’ Among those provisions contained in the First
Schedule which shall have effect notwithstanding anything to the contrary
contained in the Constitution, are sections 15 and 16 of the First Schedule. There is
no ambiguity about the words of article 217 of the Constitution. Effect must be
given thereto.”
And Adade JCAso stated at 1038:
“Be that as it may, section 15(2) seeks to protect not only perfect judicial actions,
but imperfect ones also, such as, in my view, ‘the trial’ described by Squadron
Leader Segbefia. It was a purported trial; a judicial action purported to have been
taken by the Armed Forces Revolutionary Council Special Court.
Accordingly, section 15(2) operates to remove the action from the jurisdiction of the
court. The action cannot be ‘questioned in any proceedings whatsoever . . . and it
will be unlawful to grant any remedy or relief in respect thereof.’ Indeed, having
regard to the provisions of article 217 of the Constitution, 1979, it will be
unconstitutional to grant any such remedy.”
I associate myself completely with the above quoted passages contained in the
opinions given by my learned and respected brothers as to the interpretation and
effect of the ouster clauses in sections 15 and 16 of the transitional provisions of the
Constitution, 1979. They are perfectly right. For the important and relevant words
of section 15(3) of the transitional provisions of the Constitution, 1979 I would
substitute section 34 of the transitional provisions of the Constitution, 1992.
Section 34(2)(a) of the transitional provisions of the Constitution, 1992 needs to be
referred to again for convenience and emphasis. It provides:
“(2) It is not lawful for any court or tribunal to entertain any action or take any
decision or make any order or grant any remedy or relief in any proceedings
instituted against the Government of Ghana or any person acting under the
authority of the Government of Ghana whether before or after the coming into
force of this Constitution . . . in respect of the any act or omission relating to, or
consequent upon—
Liberation Council, the National Redemption Council, the Supreme Military
Council, the Armed Forces Revolutionary Council and the Provisional National
Defence Council.”
(The emphasis is mine.) See also as to the effect of the transitional provisions
contained in article 176 of the Constitution, 1969 which was considered in the case
of Sallah v Attorney-General (supra) per Anin JA (as he then was). He said at 502:
“Article 176 provides that the ‘transitional provisions specified in the First Schedule
to this Constitution shall have effect notwithstanding anything to the contrary
contained in this Constitution.’ I would have thought that this article 176 should be
held to override any inconsistent rules in the Transitional Provisions, which deal
with matters of a temporary or fleeting nature. In fact, article 177 ensures that in
the next reprinting of the Constitution within five years, the whole of the
Transitional Provisions should disappear. from the printed Constitution. The
reason is clear: the Transitional Provisions would by then have become effete and a
spent force. Be that as it may, I hold that the references to the Constitution in
section 9(1) are cancelled out by the clear, unambiguous provisions of article 176.
As in the case of an estoppel against estoppel the matter is put at large; and, in my
opinion, effect ought to be given to section 9(1) of the Transitional Provisions
without reference to any contrary article in the main Constitution.”
He dismissed the action.
In view of my earlier finding that the plaintiff’s case is consequent upon the
overthrow of the Limann Government by the PNDC in 1981, this case is
automatically caught by the provisions of section 34(2)(a) of the transitional
provisions of the Constitution, 1992 and effect must be given to that section. This
court is precluded from granting the remedy sought by the plaintiff.
I repeat, my duty is to interpret the Constitution, 1992 as well as the transitional

provision in the First Schedule thereof together, and to uphold the Constitution as
I find it. I can only discharge this duty by refusing to grant the reliefs sought in the
plaintiff’s writ for the reasons given above, namely that I do not find any patent or
latent inconsistency between the relevant portion of PNDCL 220 and the articles
specifically mentioned in the plaintiff’s writ, or any other articles in the
Constitution, 1992. Even though it is my opinion that by the correct interpretation
of the Constitution, 1992, the 31 December holiday is not tainted by
unconstitutionality, this does not mean that PNDCL 220 cannot be legislatively
amended to exclude that date from the list in the Schedule to the said enactment if
such a result is desired by this or any other government. However, in this case, it
would be very wrong to allow the achievement of this result through constitutional
rather than legislative means. This is the justice of the matter and I say so without
fear or favour, affection or ill will.
It is for the above reasons that I disagreed with the majority judgment in this case.
CHARLES HAYFRON-BENJAMIN JSC
In the American case of Gibbons v Ogden, 22 US (9 Wheat) 1 at 221-222 (1824),

Justice William Johnson of the United States Supreme Court commenced his
opinion contributed for that judgment in words of such great felicity as represent
my attitude to the hearing and determination of this constitutional matter in
particular and generally with regard to my approach to the determination of all
constitutional matters; said the learned judge:
“The judgment entered by the Court in this cause, has my entire approbation; but
having adopted my conclusions on views of the subject materially different from
those of my brethren, I feel it incumbent on me to exhibit those views. I have, also,
another inducement: in questions of great importance and great delicacy I feel my
duty to the public best discharged, by an effort to maintain my opinions in my own
way.
In attempts to construe the constitution, I have never found much benefit resulting
from the inquiry, whether the whole, or any part of it, is to be construed strictly, or
literally. The simple, classical, precise, yet comprehensive language, in which it is
couched, leaves, at most, but very little latitude for construction; and when its
intent and meaning is discovered, nothing remains but to execute the will of those
who made it, in the best manner to effect the purposes intended.”
On 29 December 1993 I cast my vote in favour of granting the amended

declarations. I did so—and I believe my learned and respected sister and brethren
did the same in their own ways—after having seriously digested the arguments
advanced by the parties. Again the novelty of the declarations sought was enough
to excite such attention as would warrant the expression of views which may be
materially different but nevertheless reaching the same conclusions. My
conclusions therefore agree with the majority of my learned and respected sister
and brethren but my reasoning may be entirely different.
In the Gibbon’s case (supra) the United States Supreme Court was considering the
interaction between the federal and state laws regarding inter-state commerce. It is
not necessary for my purposes here to set out the facts. But the concurring
judgment of Mr Justice Johnson to which I have referred postulated that it was not
necessary for the court (ie the US Supreme Court) to construct constitutional
provisions literally or strictly. The court’s duty was simply to discover the intent
and meaning and then to give effect to the will of those who made it—that is the
will of the framers of the Constitution—and so say I.
Within our municipality, the matter has been put very succinctly in the words of
Sowah JSC(as he then was) in Tuffuor v Attorney-General [1980] GLR 637 at 647—
648, CA sitting as SC when speaking of the language of the framers of the
Constitution, 1979—which I say should apply with equal force to our attitude to the
present Constitution, 1992 that:
“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.
And so must take cognisance of the age-old fundamental principle of

constitutional construction which gives effect to the intent of the framers of this
organic law. Every word has an effect. Every part must be given effect.”
My duty therefore was to discover the “intent and meaning” of the presentations
made to us in the present case with respect to our Constitution, 1992 and apply “a
broad and liberal spirit” in its interpretation. There is no benefit in these modern
times in applying a strict interpretation of modern democratic Constitutions. So to
do would mean that we forget that Constitutions are made by men for the
governance of men. The Constitution, 1992 is therefore the sum total of our hopes,
disappointments, experiences, aspirations and expectations as a nation. If we
therefore forget the historical development of our Constitution, 1992 then we fail to
recognise that “it is a living organism capable of growth.”
A serious examination of the pleadings in this case clearly shows that the
statement of the defendant’s case virtually admitted the facts as stated in the
plaintiff’s statement of case. True, the defendant’s case contained examples of

what is called in pleadings, “confession and avoidance.” But it must be admitted
that a “confession and avoidance” is not a denial. However, by that technique the
defendant has raised certain matters of law which will be dealt with in this
opinion. For my part, I do not consider it necessary to set out the facts of this case.
Suffice it to say that some of my learned and respected sister and brethren have
done so in their opinions.
The main issues for consideration by this court were (1) whether it was
constitutionally permissible for the 31 December 1981 action to be celebrated as a
public holiday, and if so (2) whether state funds should be used in the celebration
of that holiday. No difficulty arises with the second issue. For if it is
constitutionally permissible to celebrate 31 December as a public holiday then the
State would be at liberty to furnish funds for its celebration. Yet again if it was not
constitutionally permissible to celebrate 31 December as a public holiday by reason
of the inconsistency of such celebration with any provision of the Constitution,
1992, then the plaintiff was entitled to the declarations sought. I need not remind
myself that 31 December 1981 was the day on which the lawful civilian government
established under the Constitution, 1979 of the Third Republic was violently
overthrown.
In argument before us the Deputy Attorney-General, Mr Martin Amidu, conceded

with characteristic frankness that “the action of 31 December 1981 was violent.” It
must however be said in his favour that he distinguished this day of violence from
“the gains of the revolution” which had culminated in the framing and
promulgation of the Constitution, 1992 of the Fourth Republic.
In my respectful opinion, the Deputy Attorney-General was right in making the

distinction between “the action of 31 December 1981 “ which was “violent” and the
“gains of the revolution” which it must be conceded have given us the best
democratic Constitution which our country has ever had. The Deputy Attorney-
General, however, missed the point when he referred to revolutions in other parts
of the world as parallels to the 31 December revolution in this country. His
references to the American and French Revolutions not proving convincing
enough, the honourable gentleman more in jest than in exasperation referred to
“Guy Fawkes Day” celebrated in the United Kingdom. Of course “Guy Fawkes Day”
is not celebrated in the United Kingdom as a holiday.
I am not minded to discuss these revolutions referred to by the Deputy Attorney-

General. It will however be enough to point out two important distinctions
between these revolutions and “the action of 31 December 1981.” First, no one who
rook part in those revolutions was granted an indemnity. Secondly, save that these
revolutions gave rise to the modern concepts of democracy, none of them evolved a
political philosophy as is the case here in this country. The four pillars of the 31
December revolution are firmly rooted in our present Constitution, 1992 and are
denominated: freedom, justice, probity and accountability.
The defendant contends in paragraph (14) of his statement of case that:
“The President of the Republic who is also the chairman and leader of the 31
December Revolution and the members of Parliament of the NDC Party to which
the President belongs, were elected on the party manifesto whose underpinning
was continuity of the good works and values of the 31 December revolution.”
He is correct. The averment only goes to confirm my view that the “gains of the
revolution” constitute a political philosophy which remains to be tested under a
multy-party democratic Constitution. It makes no difference that the philosophy is
being spearheaded by a particular party. As was said of early Christianity by
Gamaliel, a doctor of the law in Acts 5, 38—39 “ . . . if this counsel or this work be of
men, it will come to nought but if it be of God, ye cannot overthrow it; lest happy ye
be found even to fight against God.” For my part, I can conceive a clear distinction
between this laudable political philosophy and the “action of 31 December 1981.”
In argument before us, learned leading counsel for the plaintiff, Mr Peter Ala
Adjetey, referred us to the provisions of section 34 of transitional provisions to the
Constitution, 1992 which mentions 31 December 1981. Also the statement of the
case for the defence referred to the Public Holidays Law, 1989 (PNDCL 220) which
mentions 31 December.
I believe I heard in conference a proposition that the plaintiff’s writ had failed to
pin-point specifically any relevant provision of the Constitution, 1992 which was
inconsistent with the proposed celebration to mark the twelfth anniversary of 31
December 1981 (Revolution Day). In the proponents’ view, the plaintiff having so
failed, it was out of court and the writ should be dismissed.
Of course I disagree with such a formulation. Not only is it the adoption of a strict
construction of the Constitution, 1992—which I say is contrary to modern concepts
of constitutional interpretation—but it also wholly ignores the letter and spirit of
the Constitution, 1992. If I understand the case of the plaintiff correctly, it contends
that the proposed celebration of the 31 December holiday runs counter, to the letter
and spirit of the Constitution, 1992 as illustrated by references to certain articles of
the Constitution, 1992 and in particular to section 34 of the transitional provisions
of the Constitution, 1992 which has declared 31 December 1981 and other dates dies
horribillis and for which certain classes of persons have been indemnified.
The defendant sought refuge in PNDCL 220 and contended: “that 31 December like
all public holidays in Ghana is a public holiday by the provisions of section 1 . . . “
There could be no quarrel with that pleading if 31 December was a day unknown to
the Constitution, 1992. But, as it is, that date is mentioned in section 34 of the
transitional provisions to the Constitution, 1992. It is therefore wrong for the
proponents of the strict interpretation or construction principle to say that the
actions complained of do not offend against any article of the Constitution, 1992.
The transitional provisions to the Constitution, 1992 are part of the Constitution,
1992. In fact the superior efficacy of the transitional provisions is clearly
demonstrated by the provisions of article 299 of the Constitution, 1992 which
provides that: “The transitional provisions specified in the First Schedule to this
Constitution shall have effect notwithstanding anything to the contrary in this
Constitution.”
In Kuenyehia v Archer [1993-94] 2 GLR 525, SC I had occasion to consider briefly

the intendments of article 299 of the Constitution, 1992. Then I said at 000 that
“there is a severe injunction placed on us by the Constitution, 1992 as to how wide
we can extend our researchers.” I concluded that the true intendment of article 299
of the Constitution, 1992 prevents the Constitution and the transitional provisions
from being read together. What I meant was that the transitional provisions have
been superimposed on the Constitution, 1992 and if there was reference in the
former affecting any matter, then notwithstanding anything to the contrary in the
latter the former shall prevail. I think the plaintiff demonstrated by its statement of
case and argument advanced before us by learned counsel that it was properly
before us. This court has said times out of number that it will not allow
technicalities to becloud or stultify the need to do justice to the parties appearing
before it. I think that in constitutional matters it is the clear duty of this court to
gather the issues from the four corners of the statements of the case for the parties,
discover the intent and meaning of the letter and spirit of the Constitution, 1992 or
of any relevant article therefore and “to execute the will of those who made it, in
the best manner to effect the purpose intended.”
It is clear from the plaintiff’s amended writ that it was invoking the provisions of
article 2 of the present Constitution, 1992. A similar provision in the Constitution,
1979 came up for consideration by the Supreme Court on 22 March 1981 in the case
of Kwakye v Attorney- General [1981] GLR 9, SC. Delivering the ruling of the court
Apaloo CJ at 13 of the report said of article 2(1)(b) of the Constitution, 1979:
“That the Constitution, 1979, clothes this court with jurisdiction to make the
declaration sought by the plaintiff in a fit case is hardly in doubt . . .
It is precisely that complaint that the plaintiff makes. If we construct article 2(1) (b)
alright, he is entitled to invoke the jurisdiction of this court as soon as the act
complained of was committed or even threatened .. . Indeed the ‘unconstitutional’
act may be one which demands the timeous intervention of this court.”
Article 2 of the Constitution. 1992 like the same article in the Constitution, 1979
deals with two situations. First, where any enactment is inconsistent with or is in
contravention of a provision thereof, and secondly, where any act or omission
similarly is inconsistent with or in contravention of the Constitution. In my
respectful opinion, any date mentioned in section 34 of the transitional provisions
to the Constitution, 1992 is to the extent of such mention inconsistent with the
letter and spirit of the Constitution and void.
By paragraph (15) of the defendant’s statement of case, the defendant states:
“(15) The defendant maintains that what the plaintiff is seeking to do is to question
the constitutionality and legality of the 31 December revolution and the event
which gave rise to the revolution of 31 December 1981 which should not be
entertained by the court by virtue of section 34, particularly subsection (2) of the
transitional provisions scheduled to the Constitution.”
I think that the subsection which the defendant wanted to refer to was subsection
(3) of section 34 of the transitional provisions of the Constitution, 1992. Certainly, I
find no difficulty with the interpretation of section 34(2). The protection or
indemnity granted to the classes of persons described in that subsection is limited
to persons who individually or in concert did., “assist or bring about the change in
Government” on these specified days in respect of any act or omission relating to
or consequent upon the matters stated in the clauses on that subsection.
I would ordinarily pass over that objection as being irrelevant. But with the
knowledge that what the defendant meant was a reference to section 34(3) of the
transitional provisions of the Constitution 1992, I think it is but fair that I give him
the benefit of the correction and proceed to express myself on the quality of that
averment.
Section 34(3) and (4) of the transitional provisions of the Constitution, 1992 are in
similar terms as section 15 (2) and (3) of the transitional provisions of the
Constitution, 1979. The latter provisions found construction in Kwakye v Attorney-
General [1980] GLR 944, SC.
In that case, Archer JSC(as he then was) said at 976:
“The true meaning of section 15(2) appears to be that whenever the court is
satisfied that the A.F.R.C. took or purported to take an executive, legislative or
judicial action, then that court shall not question the validity, the correctness, the
fairness or the justice of that decision or action.”
(The emphasis is mine.) Then Taylor JCAso said at 1059:
“Section 15(2) and (3) of the transitional provisions saved executive, legislative and
judicial acts taken or purported to be taken by the Armed Forces Revolutionary
Council or its lawful agent from being questioned in court.”
Yet again in the Kwakye case (supra) at 1071 Taylor JSCsaid:
“I must remark that section 15(3) of the transitional provisions is clearly

inapplicable as it merely saved procedural defects. Where the defects are of
substantive legal requirements, they cannot be considered as procedure prescribed
by law.”
The Kwakye case (supra) was a split decision—5 to 2—the majority voting in favour
of dismissing the case. But reading the opinions of their lordships, it is clear that
they all appreciated that there was no carte blanche indemnity granted as
generally understood by the popular and untutored world. Speaking for myself, I
think that there is no difficulty in the interpretation of section 34 of the
transitional provisions of the Constitution, 1992. I have already delivered myself on
my views on subsection 2 of that section. What appears not to commend itself to
easy rendering is the expression “action” in section 34(3) of the transitional
provisions of the Constitution, 1992. In my respectful opinion, the expression
“action” within the intendment of that subsection means any function in the
semblance of an executive, legislative or judicial process exercised or purported to
have been exercised by any of the military regimes mentioned in that subsection. I
think it is only in this sense that the majority view can claim to be correct.
The plaintiff’s writ therefore cannot be caught by section 34(2) and (3) of the
transitional provisions of the Constitution, 1992. If I read that section correctly, as
indeed I have already so done, the subsections are clearly saying that all those
dates mentioned therein were days when illegalities in the eyes of the Constitution
were committed against the established constitutional order, but that in the spirit
of and commitment of the Constitution, 1992 to the “unity and stability of our
Nation” (see the preamble to the Constitution) the perpetrators shall not be liable
to civil action or criminal prosecution and no action or proceedings may be
instituted against the lawful government for any such defaults.
By his statement of case the defendant contended that:
“ . . . whether or not public funds should be appropriated for the celebration of the
31 December revolution is a political question which is best left to the electorate
which votes a government into power and a Parliament which can by law decide
what public holidays in Ghana shall be.”
In argument before us, the Deputy Attorney-General extended the ambit of the
above-stated averment and submitted that his contention of the principle of non-
justiciability on the grounds of the political question included the 31 December
holiday itself. In his view, the court had no jurisdiction to embark on the inquiry on
hand as it was more competent for another arm of government to resolve. Further,
that there were overriding public policy considerations which should prevent this
court from adjudicating on the matter. In short, on the grounds of a non-justiciable
political question and on the ground of public policy we should declaim
jurisdiction.
The Deputy Attorney-General referred us to a number of English and United States

cases which he submitted were in point and supportive of the stand which he had
taken. I have since our judgment of 29 December 1993 had opportunity to examine
almost all the cases so cited and I am confirmed in my mind that my decision was
right. The English cases dealt mainly with matters of public policy. The case which
commends itself to my attention is Scranton’s Trustee v Pearse [1922] All ER Rep
764, CA. In this case, the headnote reads:
“A trustee in bankruptcy sought under the provisions of the Gaming Act, 1835, to
recover from a bookmaker certain sums which the bankrupt had paid by cheque to
the bookmaker in respect of betting losses.
Held:
Since the trustee was seeking to enforce a claim in respect of a debt which was a
chose in action and, by the Bankruptcy Act, 1914, s. 18, was made part of the assets
of the bankrupt which vested in the trustee, and since there was nothing in the
doctrine laid down in Ex parte James (1874) 9 Ch. App. 609, which entitled the
court to say that, in such a case as this, it was dishonourable or improper or
unconscionable for the trustee, as an officer of the court, to enforce it, the trustee’s
position not being the same as that of the bankrupt if he had remained solvent and
had brought the action himself, the trustee was entitled to succeed.”
I could not immediately fathom the relevance of this case to the defendant’s
presentation. But I find in the dictum of Warrington LJ at 772-773 of the report
perhaps something useful. Said the learned law lord:
“All I can say is, if we are to decide cases depending on statute on any such footing
as that, we are, as judges, not administering the law but administrating that which
has been vaguely referred to as the general policy of this country. That is not what
we are here for. We are here to administer the law as it stands. It is the legislature
which has to do with the policy of the country, and not the judges, who administer
the law. Therefore, in this case where, as I have said, the trustee is only exercising a
right which is vested in him by statute, a right which he is entitled to exercise, and
which I think I may go further and say he is bound to exercise, for the benefit of the
creditors amongst whom the property is divisible, it would be wrong to interfere
with that right by prohibiting the trustee from bringing the action which he is
entitled to bring.”
By this and the other English decisions, the Deputy Attorney-General was
submitting that on matters of the administration of “the general policy of this
country” judges are not fitted to pronounce thereon. In the words of Warrington LJ
“it is the legislature which has to do with the policy of the country.”
I think Deputy Attorney-General misunderstands the context in which the dictum

was pronounced. First, the English—or should I say the British—pride themselves
on not having a written Constitution. Next, Parliament in British is supreme. Third,
the judge’s duty is to apply the law. Clearly, commentary on any aspect of public
policy by a British judge is uncalled for. As Lord Sterndale MR said in the same case
at 770 of the report:
“I think all this court can do is to look at the Act of Parliament and see to the best of
its ability what it said, and, having found that out, to obey it and give effect to it,
and it ought not to consider whether, in the opinion of the court, the legislation is
consistent with the general trend of opinion in the country.”
Not so in this country we have a written Constitution which is the supreme law of
the land. All laws and acts or omissions which are inconsistent with or in
contravention of any provision of the Constitution are void and this court is
empowered by the Constitution to make declarations to that effect. In the area of
public policy, it was the Deputy Attorney-General himself who referred this court
to article 35(1) of the Constitution, 1992. I think he meant to refer us to article 34(1)
of the Constitution, 1992. Chapter 9 of the Constitution, 1992 of which article 34(1)
forms part deals with “the Directive Principles of State Policy.”
For the sake of brevity article 34(1) of the Constitution, 1992 reads:
“‘34. (1) The Directive Principles of State Policy contained in this Chapter shall
guide all citizens, Parliament, the President, the Judiciary, the Council of State, the
Cabinet, political parties and other bodies and persons in applying or interpreting
this Constitution or any other law and in taking and implementing any policy
decisions, for the establishment of a just and free society.”
In my respectful opinion, nothing in the Constitution, 1992 precludes this court—

or indeed any court—from pronouncing on matters of public policy. This court is
therefore, even on the grounds of public policy, entitled to decide whether the 31
December holiday is inconsistent with the letter and spirit of the Constitution,
1992.
The final submission of the Deputy Attorney-General emanating from the

averment contained in his statement of the defendant’s case was that the plaintiff’s
case raised a non-justiciable political question. Simply put, if the matter in issue
could be dealt with by any other arm of government and the Constitution, 1992
said so, then the court must decline jurisdiction. His contention was that since it
was Parliament which under the doctrine of separation of powers had the
responsibility for controlling legislation it was fully within its authority to make a
law abolishing 31 December as a public holiday. He did not, however, touch on the
issue of whether if the said legislation was claimed to be inconsistent with or in
contravention of the Constitution which arm of the State under the Constitution
had the authority to so declare. He however relied principally on the United States
case of Baker v Carr, 369 US 186 (1962).
In the Baker case (supra), the plaintiff, Baker, sought through the federal courts to
obtain the reapportionment of the voting districts in the State of Tennessee on the
ground that since the 1901 census, the population had grown at different rates in
different voting districts. Consequently, there was unequal representation which
he considered unconstitutional. The state legislature as then composed would not
pass a constitutional amendment to rectify the situation. The plaintiff lost his case
in the lower federal courts on the grounds of non-justiciability. He appealed.
The issue before the United States Supreme Court was whether the courts possess
jurisdiction over a constitutional challenge to a legislative apportionment? The
clear answer was “Yes.” I cannot do better than cite a short portion of the opinion
of the court delivered by Justice Brennan which illustrates the circumstances in
which the issue of a political question may arise. At 217, he said:
“It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it; or the impossibility of deciding without
an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for
unquestioning, adherence to a political decision already made; or the potentiality
of embarrassment from multifarious pronouncements by various departments on
one question.
Unless one of these formulations is inextricable from the case at bar, there should
beHIGH
noLdismissal
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for +FOL D E R
nonjusticiability SHAR E
on the ground FIND
of a political question’sDOWN LOA D
presence.”
Case
Another United States case which amply illustrates the principle under
consideration is Powell v McCormack, 395 US 486 (1969). Mr Adam Claton Powell,
Jnr, a Negro, was duly elected a representative to the 90th Congress of the United
States. However, pursuant to a resolution of the house, he was not permitted to
take his seat. He sued McCormack, the Speaker and other officials of the house
claiming that since he had met all the formal requirements under the United States
Constitution for membership of the house, and the house had specifically found
that he had met those requirements, the resolution of the house excluding him
from membership was invalid. The district court dismissed the complaint “for
want of jurisdiction of the subject matter” and the Court of Appeal affirmed the
decision of the district court. He appealed to the Supreme Court.
Before the United States Supreme Court the issue was whether the federal court
was prevented from reviewing the congressional exclusion of a duly elected
member by the prohibition against deciding political questions. The court
answered in the negative. The defendants had contended that there is a “textually
demonstrable constitutional commitment” to the house of its “adjudicatory
power” to determine Mr Powell’s qualifications. In answer, the court said it had the
duty to interpret the Constitution in order to determine the existence and scope of
such a power. In the view of the court, Mr Powell was right in his contention that
the house had no authority to exclude him or any person if he satisfied the
membership requirements. It was the duty of the Congress to determine the
compliance with the qualifications set forth in the Constitution, but the courts
were not debarred from reviewing congressional judgments that extended beyond
these qualifications.
Further, the defendants submitted that they feared a potentially embarrassing

confrontation between co-ordinate branches of the federal government and
contended that by that reason the case presented a political question. But the court
said that the alleged conflict which such an adjudication might cause could not
justify the court avoiding its constitutional duty of interpretation.
The whole principle of a non-justiciable political question is an American

formulation. While it may be relevant to our situation because it is a development
from a written democratic Constitution, I think there are so few parallels between
the two Constitutions on this principle that its application to our Constitution, 1992
must necessarily be limited.
By article 2 of our Constitution, 1992 this court has the exclusive jurisdiction to
determine whether any statute, act or omission is inconsistent with or in
contravention of any provision of the Constitution. Next, by article 130 of the
Constitution, 1992 this court has exclusive original jurisdiction in all matters
relating to the enforcement or interpretation of our Constitution. The original
jurisdiction extends to all matters “arising as to whether an enactment was made in
excess of the powers conferred on Parliament or any other authority or person by
law or under this Constitution.” Again, constitutional matters which arise in the
lower courts must as provided under article 130(2) of the Constitution, 1992 be
referred to this court—the Supreme Court—”and the court in which the question
arose shall dispose of the case in accordance with the decision of the Supreme
Court.” It seems to me therefore that by the nature of our Constitution the principle
of a non-justiciable political question can only arise where the Constitution, 1992
expressly commits a particular responsibility to some arm of government. A clear
example may be the power of the President to appoint ambassadors under article
74(1) of the Constitution, 1992.
In the present case, the principal issues were (1) whether the celebration of the 31
December holiday was inconsistent with or in contravention of a provision of the
Constitution, 1992; and (2) whether public money should be used in its celebration.
No political question arose. The matter was firmly within the jurisdiction of this
court.
Having this discovered the “intent and meaning” of the framers of the
Constitution, 1992, who were largely composed of the representatives of the
revolutionary organs, I think the public interest was best served by “executing the
will of the framers of the Constitution “in the best manner to effect the purposes
intended.”
AMPIAH JSC
On 29 December 1993 this court gave judgment for the plaintiff and ordered that 31
December of each year should not be celebrated as a public holiday. Reasons for
the judgment were reserved. It was unfortunate that I could not agree with the
majority of my brothers on the judgment. In my opinion, the plaintiff’s claim
should fail. I now proceed to give reasons for my dissent.
By its writ of summons as amended, the plaintiff claimed:
constituted Government of Ghana on 31 December 1981 and the financing of such
and (7) and 35(1) and 41(b) thereof.
(The emphasis is mine.) This action has been brought by the invocation of the
original jurisdiction of the Supreme Court under articles 2(1)(a) and 130(1) of the
Constitution, 1992 and rule 45 of the Supreme Court Rules, 1970 (CI 13).
The plaintiff is a political party registered under the laws of this country, and the
defendant is the representative of the Government of Ghana through whom all
actions against the government are brought.
Under article 2(1) of the Constitution, 1992:
(a) an enactment or anything contained in or done under the authority of that or

(b) any act or omission of any person;

bring an action in the Supreme Court for a declaration to that effect.”
Article 130(1)(a) gives the Supreme Court exclusive original jurisdiction in—
(a) “all matters relating to the enforcement or interpretation of this Constitution;

and
(b) all matters arising as to whether an enactment was made in excess of the
powers conferred on Parliament or any other authority or person by law or under
this Constitution.”
By its first claim the plaintiff had contended that the celebration of 31 December as
a public holiday would be “inconsistent with or in contravention of the letter and
spirit of the Constitution, 1992 and in particular articles 3(3), (4), (5), (6) and (7),
35(1) and 41(b) of the Constitution, 1992.” (The emphasis is mine.) I would refer to
these articles seriatim for their full force and effect. These articles state:
clause;
commits offence of high treason and shall, upon conviction, be sentenced to suffer
death.
and
Article 35(1) of the Constitution, 1992 states:
And article 41 of the Constitution, 1992 provides:
every citizen—
(a) to promote the prestige and good name of Ghana and respect the symbols of the
nation;
(b) to uphold and defend this Constitution and the law;
(c) to foster national unity and live in harmony with others;
(d) to respect the rights, freedoms and legitimate interests of others, and generally
to refrain from doing acts detrimental to the welfare of other persons;
(e) to work conscientiously in his lawfully chosen occupation;
(f) to protect and preserve public property and expose and combat misuse and
waste of public funds and property;
(g) to contribute to the well-being of the community where that citizen lives;
(h) to defend Ghana and render national service when necessary;
(i) to co-operate with lawful agencies in the maintenance of law and order;
(j) to declare his income honestly to the appropriate and lawful agencies and to
satisfy all tax obligations; and
(k) to protect and safeguard the environment.”
Counsel for the plaintiff took the court through the political history of this country
since the attainment of her independence. He said there had been four major
overthrows of lawfully constituted governments, namely the 24 February 1966

overthrow of the First Republican Government; the 13 January 1972 overthrow of
the government of the Second Republic; the 4 June 1979 overthrow of the National
Redemption Council (NRC) Government which had itself overthrown the
government of the Second Republic; and the last but not the least was the 31
December 1981 overthrow of the Third Republican Government. Counsel
contended that since all these overthrows were illegal, the people of Ghana should
not be reminded of such events, and jubilation by way of celebration of the dates of
the overthrows, in particular 31 December, would be inconsistent with and in
contravention of the “letter and spirit” of the Constitution, 1992 and in particular
the provisions referred to above which seek to stamp out all attempts at
overthrowing legally constituted governments. Such a celebration, he continued,
would, if allowed, encourage others to try and overthrow legitimate governments
in order to make themselves heroes, if the attempt was successful; such conduct
would destabilise the country. He however submitted that nothing prevented
individuals from celebrating the day privately, provided no public funds were used
for that purpose. He contended further that 31 December as a public holiday was
discriminatory and against the spirit of the Constitution, 1992.
Counsel for the defendant in reply, submitted that whether or not a particular day
should be observed as a public holiday was a matter entirely for the government of
the day. He said it was not for the court to decide which days should be public
holidays, since sovereignty resided in the people from whom the government
derived its powers. He stressed that since the Constitution, 1992 itself absolved all
those who had taken part in the unlawful overthrow of legitimate governments
from their acts, it would be wrong to refer to those illegal acts with regard to the
celebration, The true spirit of the Constitution, 1992, he contended, was that these
atrocities must be taken as having been done properly without any attachment of
punishment; in other words, the activities themselves must be forgotten. Counsel
said that 31 December was being celebrated not as to what had happened on that
day, but as an eventful day in the history of this country. He cited an example of 4
July being celebrated by the French as the day of their revolution. As to the use of
public funds for the celebration, he said the Appropriation Bill was an act of
Parliament which body alone could decide which moneys should be used for what.
The plaintiff, he submitted, had every opportunity to put its case across to
Parliament but it disabled itself from doing so by refusing to go to Parliament.

Once that amount had been approved by Parliament, it could be used for that
purpose only. He concluded that 31 December as a public holiday had been
included in the Public Holidays Law, 1989 (PNDCL 220) and was now accepted by
the Constitution, 1992 as part of the laws of this country. This court, he said, had no
power to take out specific dates from the Law unless Parliament decided to do so.
I am satisfied and I hold that the acts of 24 February 1966, 13 January 1972 and 31
December 1981 by which the then legally constituted governments of this country
were overthrown were unlawful and therefore unconstitutional. Query, the acts of
4 June 1979? When a group of disgruntled persons overthrows a legally constituted
government either peacefully or violently, that action is unconstitutional because
it seeks to effect a chance of government otherwise than by laid down procedure
for the change of government. If, however, the overthrow succeeds, the
government arising from the overthrow, although illegal, is accorded recognition
either de facto or de jure by the people themselves or by the international
community. In pursuance of such recognition, the government so far constituted
makes laws for the governance of the people, however obnoxious or resentful these
laws may seem to the people or a section of them. The Provisional National
Defence Council (PNDC) was one of such governments having taken over power to
govern by overthrowing the government of the Third Republic.
In pursuance of the Provisional National Defence Council (Establishment)

Proclamation Law, 1981, PNDCL 220 was made. Included in the holidays declared
under this Law was 31 December, the day on which the legitimate Third Republican
Government of Ghana was overthrown. That day has been celebrated and
continues to be celebrated as a public holiday without any valid protestation or
objection from the people of this country. It cannot however be said that the non-
objection to the celebration has created an estoppel against any person or persons
as the present application has been the only opportune occasion for the exercise of
one’s right under the Constitution, 1992 which came into force on 7 January 1993.
Articles 3(3), (4), (5), (6) and (7), 35(1) and 41(b) of the Constitution, 1992 can only
refer to acts done after the coming into force of the Constitution, 1992. Article 11 of
the Constitution, 1992 makes existing laws part of the laws of Ghana. And article
11(5) and (6) of the Constitution, 1992 specifically provides:
“(5) Subject to the provisions of this Constitution, the existing law shall not be
affected by the coming into force of this Constitution.
(6) The existing law shall be construed with any modifications, adaptations,
qualifications and exceptions necessary to bring it into conformity with the
provisions of this Constitution, or otherwise to give effect to, or enable effect to be
given to, any changes effected by this Constitution.”
PNDCL 220, as an existing Law of Ghana, is part of the laws of Ghana. There has not
been any modifications, adaptations, qualifications and exceptions necessary to
bring it into conformity with the provisions of the Constitution, 1992. The
Constitution, 1992 which provides for the inclusion of existing laws of the country,
is the supreme law of Ghana and any law found to be inconsistent with any
provision of the Constitution shall, to the extent of the inconsistency, be void—
vide article 1(2) of the Constitution, 1992.
The plaintiff has not sought the revocation of PNDCL 220. Neither was it
demonstrated clearly that the wording of the provisions of PNDCL 220 was
inconsistent with any provision of the Constitution, 1992. Counsel for the plaintiff
submitted that by the “letter and spirit” of the Constitution, 1992 the celebration of
31 December was inconsistent with or in contravention of the Constitution, 1992.
Counsel contended that since the Constitution, 1992 has specifically proscribed the
unlawful overthrow of governments and prescribed punishment for those engaged
in such unlawful activities and also placed a duty on all citizens of Ghana to defend
the Constitution against such overthrows—vide article 3—any act such as the
celebration of 31 December would be inconsistent with or in contravention of the
letter or spirit of the Constitution, 1992. By the wording or letter of these
provisions, I do not find any inconsistency or contravention of the Constitution,
1992. The spirit of the Constitution can only be found from the intentions of the
framers of the Constitution and to that effect, the whole of the Constitution, 1992
must be examined for such an interpretation; this cannot be done on guesswork or
mere assumptions.
As in the case of documents, the Constitution, 1992 should be construed in a

manner to carry out the intention of the legislature or the framers. The
Constitution, 1992, like any statute, must be read as a whole and the construction
made of all the parts together. The meaning of the Constitution, 1992 and the
intentions of the framers can only properly be derived from a consideration of the
whole of it in order to arrive, if possible, at a consistent plan. It is wrong to start
with some a priori idea of that meaning or intention and to try by construction to
work that idea into the words of the Constitution. The spirit, intention or object of
the Constitution, 1992 must first be derived from the words used in the
Constitution itself. If plain, they will indicate either directly or impliedly the
intention with which the Constitution was made and the object to be attained by it.
If the words are not clear, the policy of the framers and the scope and object of the
Constitution, where these can be discovered, will show the intention which may
further be brought to light by applying the various rules and presumptions of
construction. “Intention of the legislature” has been described by a high authority
as “a common but slippery phrase”: see Salomon v Salomon [1897] AC 22 at 38, HL.
As Lord Halsbury said in Leader v Duffey (1888) 13 App Cas 294 at 301, HL:
“But I agree that you must look at the whole instrument, and, inasmuch as there
may be inaccuracy and inconsistency, you must, if you can, ascertain what is the
meaning of the instrument taken as a whole in order to give effect, if it be possible
to do so, to the intention of the framer of it. But it appears to me to be arguing in a
vicious circle to begin by assuming an intention apart from the language of the
instrument itself, and having made that fallacious assumption to bend the
language in favour of the assumption so made.”
The intention of the legislature or framers of the instrument must not be assumed
or surmised. What has been said above can properly be said of a Constitution. The
danger of these rules concerning “intention”, “subject”, “policy” and so on is that
they may open the door to individual bias or opinion or result in guessing at the
intention: see Lumsden v Inland Revenue Commissioners [1914] AC 877 at 892, HL.
See also Inland Revenue Commissioners v Dowdall, O’Mahoney & Co Ltd [1952] AC
401 at 426, HL in which Lord Radcliffe observed: “The beliefs or assumptions of
those who frame Acts of Parliament cannot make the law.” Similarly, we may say
that the beliefs and assumptions of the framers of the Constitution, 1992 cannot
make the Constitution, 1992.
The preamble to the Constitution, 1992 may be a guide to the spirit or intention of
the framers. See also the preamble to the Constitution, 1969. It may be necessary to
seek assistance for the determination of the spirit of the Constitution also from the
Directive Principles of State Policy, ie of the Constitution, 1992, art 34, but the
whole of the Constitution, 1992 must be considered. Though article 17 of the
Constitution, 1992 frowns upon discriminatory conduct, clause (4) of the article
provides:
“(4) Nothing in this article shall prevent Parliament from enacting laws that are
reasonably necessary to provide— . . .
(d) for making different provisions for different communities having regard to their
special circumstances not being provision which is inconsistent with the spirit of
this Constitution.”
PNDCL 220 makes provision for public holidays which are seemingly
discriminatory, eg Good Friday, Easter Monday and 25 December. These provisions
made before the coming into force of the Constitution, 1992 may be said to be
inconsistent with the Constitution, 1992 but, the Constitution, 1992 itself allows
such laws to be made. In article 17(5) of the Constitution, 1992 it is provided that:
“(5) Nothing shall be taken to be inconsistent with this article which is allowed to
be done under any provision of this Chapter.” The Constitution, 1992 allows for the
making of discriminatory acts provided these act, are not inconsistent with the
Constitution, and nothing can be inconsistent with the Constitution which the
Constitution, 1992 itself allows to be made. The celebration of 31 December as a
public holiday cannot be said to be against the letter and spirit of the Constitution.
The fact that the Constitution, 1992 frowns on the overthrowing of legitimate
governments, cannot be the basis for arriving, at the “spirit of the Constitution“,
otherwise the provision of indemnity clauses in the transitional provisions of the
Constitution, 1992 which “shall have effect notwithstanding anything to the
contrary in this Constitution” (vide article 299 of the Constitution, 1992), would be
meaningless.
The overthrow of a legitimate government or attempts to overthrow it is a criminal

act which is provided for already in our existing laws: see section 180 of the
Criminal Code, 1960 (Act 29) as amended by the Constitution (Consequential and
Transitional Provisions) Decree, 1969 (NLCD 406). In fact, the Constitution, 1969
made the attempt and overthrow of governments a treasonable offence. Article

20(16) of that Constitution states, inter alia:
“(16) For the purposes of this article and subject to the provisions of clause (17) of
this article, treason shall consist only
(b) in attempting by force of arms or other violent means to overthrow the organs
of government established by or under this Constitution; or
(c) in taking part or being concerned in, or inciting or conspiring with any person
to make or take part or be concerned in, any such attempt.”
The punishment for the offence is death. And, the Constitution, 1979 contains
similar provisions under article 26(16). It can therefore not be said that the
provision against the overthrow of governments has just been introduced under
this Constitution to make it the spirit of the Constitution, 1992.
Ironically, it is the illegitimate governments which have made more use of these
provisions against the overthrow of governments. The provision thus, is not new to
our Constitution, 1992. In fact, section 34(3) and (4) of the transitional provisions of
the Constitution, 1992 specifically provides:
“(3) For the avoidance of doubt, it is declared that no executive, legislative or

judicial action taken or purported to have been taken by the Provisional National
Defence Council or . . . a member of the Provisional National Defence Council or . . .
by any person appointed by the Provisional National Defence Council or. . . in the
name of either the Provisional National Defence Council . . . shall be questioned in
any proceedings whatsoever and, accordingly, it shall not be lawful for any court or
other tribunal to make any order or grant any remedy or relief in respect of any
such act.
(4) The provisions of subsection (3) of this section shall have effect
notwithstanding that any such action as is referred to in that subsection was not
taken in accordance with any procedure prescribed by law.”
Among the statutes made by the PNDC, is PNDCL 220. This was a legislative action
taken by the PNDC or a member of it. Besides, there are numerous enactments
made by not only the PNDC but also governments which had overthrow legally
constituted governments. The existence of these laws may remind us of the
unlawful acts or events of the unlawful overthrows, yet they still exist as part of the
laws of this country. Could these laws be described as inconsistent with or in
contravention of the Constitution? And, does the Constitution itself prevent
persons who have taken part in the overthrow of constitutional governments from
standing for election and holding high offices in the State? If the spirit of the
Constitution were what counsel for the plaintiff would have the court believe, none
of the provisions referred to above would have been tolerated by the Constitution.
The Constitution, 1992 was accepted by the people of Ghana with full awareness of
the contents of the Constitution and without any misconception as to what the
spirit of the Constitution was. Perhaps it is our ardent wish and unfettered
determination that there should not again be such overthrows of legitimate
governments but certainly that could not be the spirit of the Constitution! In any
case, do we condemn all overthrows of governments? It may depend on which side
of the fence one is. Reference was made to the yearly celebration of the French
Revolution: That commemorative day marked the overthrow of a legitimate
government albeit monarchical. That day is celebrated not to stage a revolution but
to mark an important event in the political history of the French people. As long as
the people accept it, it would continue to be celebrated. Coming back home, we
may refer to the preamble of the Constitution, 1969 which tells us in no uncertain
terms how the people praised the illegal overthrow of the First Republican
Government. The preamble states in no uncertain terms the condemnation of the
overthrown legitimate government. It states:
“IN THE NAME OF ALMIGHTY GOD from Whom all authority is derived and to
Whom all actions both of men and States must be referred
WE THE CHIEFS AND PEOPLE OF GHANA HAVING experienced a regime of

tyranny REMEMBERING with gratitude the heroic struggle against oppression
HAVING solemnly resolved never again to allow ourselves to be subjected to a like

regime
DETERMINED to secure for all of us a Constitution which shall establish the

SOVEREIGNTY OF THE PEOPLE and the RULE OF LAW as the foundation of our
society and which shall guarantee
FREEDOM of thought, expression and religion
JUSTICE — social, economic and political
RESPECT for the dignity of the individual; and
EQUALITY of opportunity
DO HEREBY IN OUR CONSTITUENT ASSEMBLY AND IN EXERCISE OF THE

POWERS CONFERRED ON THIS CONSTITUENT ASSEMBLY BY PARAGRAPHS 1
AND 2 OF THE CONSTITUENT ASSEMBLY (AMENDMENT) DEGREE, 1969
(N.L.C.D. 380) ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION
THIS TWENTY-SECOND DAY OF AUGUST, 1969
THIS CONSTITUTION SHALL COME INTO FORCE AS THE CONSTITUTION OF

GHANA ON THE TWENTY-SECOND DAY OF AUGUST, 1969.”
This was a clear show of appreciation for those who had “gallantly” overthrown a
legitimate government. Monuments were erected for some of these “gallant”
soldier’s to perpetuate their memory, eg “Kotoka International Airport” and trusts
were also created for some of them, eg The General Kotoka Trust Decree, 1969
(NLCD 339) which was amended in 1971 by The General Kotoka Trust Decree, 1969
(Amendment) Act, 1971 (Act 365) under a civilian regime. We made this illegitimate
government a caretaker government in the Constitution, 1969 and provided in
section 14(3) and (4) of the transitional provisions thereof that:
“(3) On or soon after the coming into force of this Constitution every person who
served as a member of the National Liberation Council shall be paid, as a token
mark of the Nation’s gratitude such gratuity by way of a terminal award as shall be
determined by the Government under this Constitution which immediately
succeeds the National Liberation Council.
(4) Any member of the National Liberation Council who retires from public service
at any time before or after the coming into force of this Constitution shall be paid a
pension equivalent to the gross emolument to which he was or is entitled at the

time of such retirement and any such pension shall be in lieu of any other pension
to which any such member may otherwise be entitled on his retirement from the
public service.”
And, we entrenched these provisions in section 14(5) of the transitional provisions

of the Constitution, 1969 to the effect that:
“(5) Notwithstanding anything in article 169 of this Constitution or in any other

provision of this Constitution, until the death of all members of the National
Liberation Council, Parliament shall have no power to amend this subsection or
subsection (4) of this section.”
The day on which the government of the First Republic was overthrown was
celebrated not only during the era of the military regime but also during the period
of the civilian government (the Second Republic) in 1970 and 1971. Ironically, it
took another illegitimate government to erase that day from our calendar of public
holidays and to substitute its own day, ie 13 January 1972 as a public holiday. Of
course, when that government was subsequently overthrown by another
illegitimate government, 13 January ceased to be a public holiday; in its place was
substituted 4 June 1979, the day on which the illegitimate government of Col
Acheampong was itself overthrown. As if that was not enough, members of the
legitimate First Republican Government which had violently been overthrown as
well as functionaries or party activists of the party in power were disqualified from
standing at elections for ten years and from holding public offices, vide the
Elections and Public Officers Disqualification Decree, 1969 (NLCD 332). From our
conduct can we honestly say then that all overthrows of legitimate governments
are bad, or that some are bad and some are good or that all are bad but some are
worse? People have accepted overthrows of government as liberating them from
the shackles of tyrannic regimes; as redeeming them from oppressive regimes or as
defenders of their civic rights.
To my mind whether or not the day of an overthrow of a government should be

celebrated as a public holiday is a matter for the people through their governments
to decide: see article 1 (1) of the Constitution, 1992 which states:
“1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and
for whose welfare the powers of government are to be exercised in the manner and
within the limits laid down in this Constitution.”
When the Constitution, 1992, speaks of We the People of Ghana it does not
necessarily mean all the people; it could only refer to the majority who have
accepted the Constitution. The “We the People of Ghana” in the preamble could
only refer to the majority of the people! How could it include those who had been
disqualified from taking part in active politics? When the majority have declared
their intentions, it would be undemocratic to undermine that authority as this
would amount to undermining the principle of democracy. The people act through
the government. I think it would be wrong on the part of the courts to interfere
with the exercise of that authority unless such exercise is inconsistent with or is in
contravention of the Constitution. Such an interference would be in breach of the
provisions of section 34 of the transitional provisions of the Constitution, 1992.
The celebration of 31 December as a public holiday is supported by the conduct of

the people who voted back into power the very people who had illegitimately
overthrown a properly constituted government. It is a confirmation of the trust
they have in those who had violently or otherwise overthrown the legitimate
government to defend the peoples’ rights. Only Parliament representing the people
can validly erase the day for the celebration of the overthrow from the laws of
Ghana. Article 35(1) the Constitution, 1992 provides that:
whom Government derives all its powers and authority through this Constitution”
With regard to the use of public funds the celebration, moneys for public functions
of state are provided for under an Appropriation Bill. Section 19 of the transitional
provisions to the Constitution, 1992 provides:
“19. Notwithstanding any law to the contrary, the financial estimates in operation
for the financial year in being at the coming into force of this Constitution shall,
until provision is otherwise made by Act of Parliament, continue and shall have
full effect.”
The place to validly attack the bill is in Parliament. Provided the function is
accepted as a public one by the government or for that matter, the people and,
moneys have properly been allocated for that purpose, any outside cry against the
use of that money may receive sympathetic reconsideration but would not
invalidate the allocation.
I did not find the celebration of 31 December as a public holiday inconsistent with
or in contravention of the letter or the spirit of the Constitution, 1992 or of any
provisions therein. As was stated in Hoani Te Heuheu Tukino v Aotea District
Maori Land Board [1941] AC 308 in the holding at 309, PC: “. . . it is not open to the
court to go behind what has been enacted by the legislature and to inquire how an
enactment has come to be made . . .”
It was for these reasons that I dissented.
APPEARANCES
PETER ALA ADJETEY (WITH HIM SAM OKUDZETO KOJO AFRAM ASIEDU AND WILLIAM
ADDO) FOR THE PLAINTIFF; MARTIN A. AMIDU DEPUTY ATTORNEY-GENERAL (WITH HIM
MRS ADUSA AMANKWAH CHIEF STATE ATTORNEY) FOR THE DEFENDANT.

NPP V Attorney General 31st December Case

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5/31/2020 NEW PATRIOTIC PARTY V.

ATTORNEY-GENERAL | Legal Research for Commonwealth Lawyers | JUDY

NEW PATRIOTIC PARTY

SUPREME COURT · 8 MAR 1994 · GHANA

The British colonial government introduced public holidays here because

Christ’s Church, to be determined and assigned orderly in every Country by the

“(3) Any person who —

Wherein lies the spirit of a Constitution? Is it embedded in the whole document?

Now what about the other relief sought?

(i). the imposition of taxation or the alteration of taxation otherwise than by

(b) proceed upon a motion, including an amendment to a motion, the eﬀect of

I have quoted this article in extenso to demonstrate the procedure the

My opinion is based purely on the doctrine of separation of powers as regards

“Revolutions are ambiguous things. Their success is generally proportionate to

On 31 December 1981 the Government of Ghana, established under the

On 14 December 1993 the Ghanaian Times, a state-owned daily newspaper,

“A release issued by the Information Services Department in Accra said the

The celebrations would be rounded oﬀ with non-denominational thanksgiving

On or about 19 December 1993, the government, acting by the Minister of Interior,

“Holidays—The Ministry of the Interior has announced that Saturday December

Clips of the publications referred to above were annexed to the defendant’s

“A declaration that the public celebration of the overthrow of the legally

“2. (1) A person who alleges that—

(a). an enactment or anything contained in or done under the authority of that or

(b). any act or omission of any person;

is inconsistent with, or is in contravention of a provision of this Constitution, may

(The emphasis is mine.)

It is necessary therefore to look at these articles with a view to ascertaining

“(3) Any person who—

(The emphasis is mine.)

(The emphasis is mine.)

(b) the suspension or abrogation of the Constitutions of ... 1979”.

2. It makes no diﬀerence whether such incumbent of the Presidential oﬃce be

(The emphasis is mine.) The court proceeded:

(The emphasis is mine.)

(The emphasis is mine.) The Court then concluded:

Therefore the United States decision in Mississippi (supra) has no relevance

“In determining whether a question falls within the category of ‘political

The court then concluded at 210-211:

“The non justiciability of a political question is primarily a function of the

committed by the [Federal] Constitution to another branch of government, or

(The emphasis is mine.)

The conclusion is inescapable, that in this country we have no doctrine of “political

document. Almost every matter of interpretation or enforcement which may arise

In its Report on a Proposed Constitution for Ghana, the Akufo-Addo Commission

(The emphasis is mine.)

This is a compendious provision, grouping together a whole host of state

As was observed in Tuﬀuor v Attorney-General [1980] GLR 637 at 649-650, CA

The 1992 Consultative Assembly, obviously misled by the Committee of Statutory,

“But on principle no such evidence [ie recommendations from a report of a Royal

We are advised in Maxwell on Interpretation of Statutes (10th ed) at pp 27-28 that:

Reading the relevant provisions of the Constitution, 1992 as a whole, the

The defendant says, however, that celebrating 31 December cannot be said to be

Squadron Leader (Rtd) C M K Sowu, speaking on what he termed “the mechanics of

See the Consultative Assembly Debates, 15 January 1992, col 1429.

Section 34 of the transitional provisions of the Constitution, 1992 on indemnity is

makers, dead or alive, who overthrow governments on 24 February 1966, 13

Interestingly, in the case of the President, he swore additionally:

The Constitution, 1992

The power to strike down constitutional anachronisms or aberrations, is not

The Letter and Spirit of the Constitution

A constitutional document must be interpreted sui generis, to allow the written

“A written Constitution such as ours is not an ordinary Act of Parliament. It