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NOTES AND COMMENTS: SALLAH v. ATTORNEY-GENERAL KELSEN AND OTHERS IN THE COURT
OF APPEAL [1970] VOL. VII NO. 2 UGLJ 142—156

TSATSU TSIKATA

FUI S. TSIKATA

THE recent case of Sallah v. Attorney-General,1 engrossed as it has been in political controversy,
involved quite a number of legal issues and a few comments may be worth while. The issues ranged
from a natural justice objection raised against two members of the panel to the complexities of
Kelsenite jurisprudence on which the Attorney-General relied for his main arguments in the substantive
suit.

The facts of the case may be set out briefly as follows: the plaintiff was a manager of the Ghana
National Trading Corporation, a statutory corporation first set up in 1961.2 On February 21, 1970, the
plaintiff received a letter from the Presidential Commission which informed him that his term of office in
the public service would come to an end on February 22, 1970, by reason of the provisions of section
9 (1) of the First Schedule to the Constitution, the Transitional Provisions. This subsection provided
that:

“Subject to the provisions of this section and save as otherwise provided in this Constitution, every
person who immediately before the coming into force of this Constitution held or was acting in any
office established

(a) by or in pursuance of the Proclamation for the Constitution of a National Liberation Council for the
administration of Ghana and for other matters connected therewith dated the twenty-sixth day of
February, 1966, or

(b) in pursuance of a Decree of the National Liberation Council, or

(c) by or under the authority of that Council.

shall, as far as is consistent with the provisions of this Constitution, be deemed to have been
appointed as from the coming into force of this Constitution to hold or to act in the equivalent office
under this Constitution for a period of six months from the date of such commencement, unless before
or on the expiration of that date, any such person shag have been appointed by the appropriate
appointing authority to hold or to act in that office or some other office.”

The letter to the plaintiff indicated that there was no intention of reappointing him. The plaintiff
therefore brought this suit challenging the action and seeking “a declaration that on a true and proper
interpretation of the provisions of section 9 (1) of the First Schedule o the Constitution (Part IV) the
Government of Ghana was not entitled to terminate the plaintiff’s appointment.”

The crux of the matter thus lay in the interpretation of the terms of section 9 (1), but two preliminary
objections had to be considered.

The first concerned the fact that the letter to the plaintiff came from the Presidential Commission
which, under section 1 of the Transitional Provisions, was carrying out the functions of the President. It
was argued that as the President was immune from proceedings in any court under Article 36 (6), the
plaintiff had no cause of action against the decision not to reappoint him.

Article 36 (6) Reads:

“Save as otherwise provided in article 47 of this Constitution [which lays down the procedure for
removing a President from office] and subject to the operation of the prerogative writs, the President
shall not be answerable to the National Assembly or be liable to any proceedings in any Court, for the
performance of his functions or for any act done or omitted to be done or purporting to be done in the
performance of his functions under this Constitution or any other law” [emphasis added].

The observation must immediately be made that this provision does not relate to mere personal liability
in a private capacity, for clause (7) of the same Article goes on to stipulate that “the President, while in
office, shall not be liable to any civil or criminal proceedings whatsoever in any civil or criminal
proceedings whatsoever in any court.”

In view of Article 37 (1), which vests the executive authority of the State in the President, if the
Attorney-General’s interpretation of Article 36 (6) were correct, it would lead to the startling proposition
that most acts of the executive cannot be challenged in court, even when they are patently
unconstitutional. This, clearly, would be contrary to Article 170 (1), which provides that claims against
the Government may be enforced as of right. (The definition Article—172—defines “Government” as
“any authority by which the executive authority of Ghana is duly exercised.”) It is respectfully submitted
that the court’s decision to overrule this objection was eminently sensible.

Admittedly, the wording of Article 36 (6) renders its exact scope and effect unclear. It is however
submitted that that clause relates solely to a matter of procedure: except where the President fails, for
example, in breach of the Constitution, to act in accordance with the advice of the Prime Minister (in
which case a writ of mandamus could be issued to compel him so to act), the body to be sued for the
alleged excesses of the executive is the Government as defined in Article 172. In the words of Sowah
J.A.:

“The President is the ‘fount of honour’ and the person occupying the seat must do so in dignity and
majesty. . . . So it is that the Constitution seeks to maintain that awe, dignity and majesty which
surrounds the office and to seek to insulate it as far as possible from the humdrum of legal processes
and even from the arena of political life....

“Though the Presidency cannot be inducted into the legal arena, the Government of Ghana can be,
and is answerable for the lawful performance of the executive powers vested in the President.”3

If this is accepted, it can hardly be disputed that the legal representative of this entity the Attorney-
General-is the proper person to be served with process when its acts are being challenged.

The second objection sought to disqualify two members of the panel hearing the substantive suit. It
was alleged that Apaloo J.A. was an intimate friend of the plaintiff, while Sowah J.A. was a brother-in-
law to someone also affected by the construction put on section 9 (1), and he was further alleged to
have made representations to a Minister of State on behalf of his brother-in-law. Another panel of the
Court of Appeal heard the motion and rejected the objection by a four-to-one majority. In its ruling read
by the presiding judge of the court, Amissah J.A., the majority concluded that the proper test was
whether a “real likelihood of bias” existed. A mere allegation against a judge was not enough to
disqualify him and the maxim “justice must not only be done but must manifestly be seen to be done
“did not mean that all steps must be taken even to satisfy the views of the unreasonable, for otherwise,
frivolous objections would make it impossible to do justice at all. The majority rightly, it is submitted,
rejected dicta in certain cases which would seem to suggest that the suspicions of unreasonable
people could suffice.4 It is submitted, however, that it is inaccurate to label the distinction between the
two tests as one between a “real likelihood of bias” and a “reasonable suspicion,” for “reasonable
suspicion” should be interpreted as suspicion based on reasonable grounds-in the circumstances the
grounds would be reasonable only if they raised a real likelihood of bias. The dictum of Devlin L.J. in
R. v. Barnsley Justices 5 that: “we have to satisfy ourselves that there was a real likelihood of bias not
merely satisfy ourselves that there was the sort of impression that might reasonably get abroad” does
not reject “reasonable suspicions” so much as suspicions (based on mere impressions) which might be
widely known. Devlin L.J. was thus emphasising that the widespread nature of the suspicions was not
the determining factor.5a

It is submitted that although Siriboe J.A., in his minority opinion, purported to use the test of the
reasonable litigant, it is doubtful whether such a litigant would have some of the characteristics the
learned judge impliedly attributed to him in the following passage:

What would a reasonable litigant think, if he gets to hear of matters such as have been alleged
[emphasis added] in this motion.... There is no doubt that he will, without the slightest hesitation, form
the impression that his case would not be given an unbiased hearing. This is particularly so in our
society, where most litigants frown upon mere conversation between counsel retained by them and
others for the opposite side. It is in this light, that I have considered the motion before us.”6

With respect, morbid litigants can hardly throw light on a matter such as this and significantly, their
frowning on conversation between opposing counsel hardly deters counsel from consulting amicably
and indeed referring to each other as “my learned friend”! Though a litigant may well feel uneasy on
hearing of such allegations, he would be unreasonable to rely on them without checking on their
accuracy. The point is that the “reasonable litigant” test is not necessarily different from that of “real
likelihood”—a reasonable litigant would be expected to base his objections on the existence, in the
circumstances, of a real likelihood of bias.

To return to the ruling of the majority, the most significant part is expressed in one sentence. “What
may lead to a real likelihood of bias in one type of case may not have the same tendency in another.”7
Thus, their Lordships were not denying that “ordinary friendship” or blood relationship may in some
circumstances, disqualify a judge. Their ruling was rather a plea for a flexible approach towards
questions of disqualification on the ground of bias. The basis of the argument seems to be that the real
purpose of such disqualification is to further the ends of justice. At the same time, one must bear in
mind the danger, if too lax a test is adopted, of crippling the machinery of judicial decision-making by
the elimination of all available judges—which would itself not be in the interests of justice. To illustrate:
after they had found on the facts that Apaloo J.A. and the plaintiff were no more than “ordinarily
friendly,” the question for the majority was whether the degree of friendship shown was enough in the
circumstances of this case to disqualify him. Amissah J.A., in the following passage clearly shows what
factors he and his brothers considered significant:

“The substantive matter before the Court is not some ordinary litigation between two private citizens,
one of whom is known to the judge and the other not.…It is a constitutional issue between the
Government of the country, to which all judges of the realm owe allegiance and from which they derive
their appointment on the one hand and a citizen. The issue is not one in which the credibility of one
side as against the other is relevant. The operative facts are not in dispute. It is substantially and
without question one of pure interpretation of the Constitution which we all judges have sworn to
uphold.”8

The point is also made that

“Ghana is, in a manner of speaking, a small community where everyone of any consequence
practically knows every other such person. This phenomenon is even more marked amongst public
servants of a certain seniority. And our family system is such that if the argument put forward by
Government in this application is carried to its logical conclusion there would probably be no judge
competent to sit on Article 9 of the Transitional Provisions.”9
We respectfully approve of the flexibility inherent in this approach. Obviously, reasonable minds will
disagree as to whether the circumstances of a particular case warrant disqualification or not.

However, even in the majority ruling an unnecessary limitation on the flexible approach is introduced.
The learned judges say at p. 10: “we are of the view that the ‘real likelihood of bias is the proper test to
apply in these cases and we adopt that test.” If this is meant to indicate that ‘real likelihood of bias’ is
the proper test for cases with circumstances more or less similar to the one at bar, there is no quarrel
with it. However, if it is meant to suggest that whenever a judge’s qualification to hear a case is
challenged, this is the proper test, then we would suggest that that statement is unduly wide. For, the
situation could arise in which on the application of this test all the judges of a particular court could be
disqualified from hearing a case. If such circumstances arose, it is suggested that the proper approach
is to try to see where the balance tilts, on the particular facts, as between the desire that justice be
seen to be done, and the necessity for carrying on the judicial machinery. After weighing these
elements, a court may well decide to disqualify the judges involved. The point, however is that such a
decision must not be made once and for all in advance of concrete cases: it must, on each occasion,
be made to depend on the particular facts before the court. A somewhat similar point is made by the
American “doctrine of necessity” which is expressed in the case of Higer v. Hansen.10 In that case, the
Idaho Supreme Court, in declaring null and void a constitutional provision explicitly affecting judges’
salaries, said:

“Some criticism may arise from the fact that the justices of this court are individually interested in the
question involved, and accordingly, it may be urged they are disqualified . . . but since the, machinery
of the law furnishes no other means or tribunal to hear and determine the same, we must deal with the
subject as best as we can, and with the means at our disposal.”11

The substantive suit also involved argument of considerable, interest. The main issue, as mentioned
earlier, was the interpretation of section 9 (1) of the Transitional Provisions. The Attorney-General,
basing himself on Kelsen’s theory of revolutions, contended that the military coup d’etat of February
24, 1966, brought about a new legal order which displaced the old one; a new basic norm was
instituted and all norms of the new order derived their validity from the new norm. The norms
establishing the public services, it was argued, like any others owed their legal authority to the new
basic norm, which, presumably, was the Proclamation issued by the National Liberation Council on
February 26, 1966. This Proclamation was said to have re-enacted all the laws of Ghana and re-
established all the Public Services and all the offices within them. The plaintiff’s office was thus said to
fall squarely within section 9 (1) of the Transitional Provisions. It is proposed to examine briefly the
main points of Kelsen’s theory on revolutions with a view to considering its relevance to this case.

The following extracts from Kelsen s General Theory of Law12 give an insight into Kelsen’s views:

“From a juristic point of view, decisive criterion of a revolution is that the order in force is overthrown
and replaced by anew order in an way in which the former had not itself anticipated. Usually, the new
men whom a revolution brings to power annul only the constitution and certain laws of paramount
political significant putting other norms in their place. A great part of the old legal order ‘remains’ valid
also within the frame of the new order. But the phrase ‘they remain valid’ does not give an adequate
description of the phenomenon. . . . The laws which in the ordinary inaccurate parlance continue to be
valid are, from a juristic viewpoint, new laws whose import coincides with that of the old laws. They are
not identical with the, old laws because the reason for their validity is different. . .Thus, it is never the
constitution merely but always the entire legal order that is changed by a revolution.”13

The basic norm of the legal order whose validity, according to Kelsen, is presupposed14 validates the
historically first constitution which in turn confers norm-creating power. Thus

“The hierarchical structure of the legal order of a State is roughly as follows: presupposing the basic
norm, the constitution is the highest level within national law. The constitution is here understood, not
in a formal, but in a material sense. The constitution it the material sense consists of those rules which
regulate the creation of the general legal norms, in particular the creation of statutes.”

This passage, it may be remarked, renders inaccurate the suggestion by Archer J.A.15 that in
countries with written constitutions “Kelsen will identify the written constitution as the basic norm,” for
that is a use of the formal sense of “constitution.” Rather the basic norm authorises the “fathers of the
Constitution.” Nor does Kelsen’s theory invite us to look for “the grundnorm of the grundnorm “ as
Archer J.A. again suggested 16 since the grundnorm is the ultimate rule, though one can ask why a
particular grundnorm should be accepted and not another. To this question Kelsen’s answer, briefly,
would be that that was the basic norm to which the efficacious legal order can be correctly referred.17
Furthermore, it is respectfully submitted that the difficulties Archer J.A. imagined would arise in
examining the legal validity of the N.L.C. Proclamation were illusory. Referring to section 12 (3) he
says, “Although this Transitional Provision in effect clearly forbids the generation of future controversy
by legal proceedings or judicial pronouncement, over the . . . 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.”18 With respect, that subsection does not really clamp down on the court's
inquiring into the validity of the National Liberation Council regime, because that would mean no
decision could even be taken applying any N.L.C. decrees since this would involve deciding on their
validity. It seems to exclude decisions on, for example, actions brought against soldiers who actually
took part in overthrowing the previous regime and other actions brought on matters connected with the
actual execution of the coup d’etat. The legal validity of the N.L.C. regime has been on the whole
accepted in Ghana and even though Archer J.A. claimed to “refuse to open my lips on the legal validity
of the

Proclamation itself”19 he has undoubtedly since the coup for example, by applying N.L.C. decrees,
assumed the validity of the N.L.C. regime and the Proclamation. The courts in Ghana were spared the
difficult problem of deciding whether and when the revolution succeeded in overthrowing the previous
government.20

On a Kelsenite analysis, therefore, the new basic norm established a new constitution with the N.L.C.
as the supreme law-making body; the Proclamation which set up the N.L.C. could thus be regarded as
the “constitution in the material sense;” Since every norm in the system, according to Kelsen, must be
created by people authorised to do so by some higher norm, the Attorney-General’s argument was that
every valid norm after the coup was created either by the N.L.C. itself or by people authorised by it.
But this seems too simple a view of Ghana's legal system after the coup. For instance it would mean
as Archer J.A. pointed out, that one would have to attribute the creation of customary legal norms to
the authority of the N.L.C. Kelsen himself does discuss customary law and the following passage
expresses his views21:

“If within a legal order, there exists by the side of statutory also customary law, if the law-applying
organs, especially the courts, have to apply not only the general norms created by the legislative
organ, the statutes, but also the general norms created by custom then custom is considered to be a
law-creating fact just as is legislation. This is possible only if the constitution—in the material senile of
the word—institutes custom, just as it institutes legislation, as a law-creating procedure . . . If a legal
order has a written constitution which does not institute custom as a form of law-creation, and if
nevertheless the legal order contains customary law besides statutory law, then in addition to the
norms of the written Constitution, there must exist unwritten norms of constitution, a customarily
created norm according to which the general norms binding the law-applying organs can be created by
custom.”

It can hardly be doubted that custom has long been recognised as a law-creating fact in the Ghanaian
legal system (see presently Article 126 of the Constitution). Neither the N.L.C. nor the Proclamation
could meaningfully be said to have established customary law norms even though after February 1966
the N.L.C. became the supreme legislative authority. In the same way when the territories that now
constitute Ghana came under British colonial rule, they could in Kelsenite language be said to have
had a revolutionary change of basic norm which made the British Parliament the supreme law- making
authority, but there was hardly any sense in which the British Parliament could be said to have
established the customary laws that continued to be applied in these areas. Bringing the matter closer
to the case in hand, it would seem absurd to suggest that the office of chiefs or other traditional offices
created by customary law, were offices established either by the Proclamation or the N.L.C. The
N.L.C., a body created in 1966, could hardly be held responsible for the coming into existence of an
office which has existed from time immemorial, even though as the supreme legislative body in post-
coup Ghana the N.L.C. could have abolished the office. Article 153 of the Constitution significantly
refers to “the institution of chieftaincy ... as established by customary law. . . .”

A similar argument could be made with regard to norms created by the common law or equity, also
acknowledged sources of law in Ghana. The establishment of such norms could hardly be attributed to
the N.L.C. as the supreme legislators after the coup though the N.L.C. could have varied or even
nullified their effect.

It is not proposed to go into all the difficulties of Kelsen’s notion of all things. as it were, becoming new
after a revolution, but it is sufficient to point out how unrealistic it is especially when used in a case
such as this. For indeed this argument is more far-reaching than seems to have been envisaged: in
Kelsen’s theory norms created out of private transactions like a contract also fall into the hierarchy and
existing contracts also presumably become new after a revolution. As regards the present case,
therefore, offices established by private contracts would also have to be attributed to the N.L.C. since
private transactions also derive their validity from the basic norm. There would therefore be no reason
to draw the line at public offices.

It is interesting to observe that Kelsen in his recent article “On the Pure Theory of Law”22 reduces his
concept of a basic norm to a “fiction in the sense of Vaihinger’s Philosophie des Als-Ob” (Philosophy of
As-If). In other words, in our juristic interpretation of a legal order we must postulate the basic norm as
if it existed.” This would seem also to undercut considerably the theory that revolutions literally create
everything anew.

It is respectfully submitted that the attitude of the majority of the Court of Appeal in treating the matter
straightforwardly as one of interpretation without putting on Kelsenite spectacles was the correct
one.23 Kelsen’s doctrine, in so far as it means that the legality of measures of the new regime cannot
be determined by reference to the constitution of the old order, is unassailable. But the suggestion that
everything becomes new can be no more than fictional and to such a fiction, it is submitted, is not
relevant to such a practical matter of constitutional interpretation.24 Kelsen’s doctrine hardly takes
account of. We different degrees of revolutionary change in different situations: a coup d’etat which
removes the legitimate government in a hitherto monarchic state and introduces a republican form of
government (the example of revolution Kelsen mentions)25 involves much more substantial change
than one which changes only the personnel in a system. Thus in the Rhodesian issue it seems to have
been considered relevant that the regime not only needed to establish its authority in the territory but
also to cut itself effectively off from the mother state. It is also worth observing that to Kelsen the basic
norm of a national legal order may lose its primacy when seen in the light of international law.26 Thus,
says Kelsen from the point of view of the international legal order a victorious revolution does not
change the legal order as long as its territorial sphere of validity remains essentially the same.27 Nor
does Kelsen seem to consider whether there can be a revolutionary change of the international legal
order and whether in that case too all norms of international law become new.”

An examination of section 9 of the Transitional Provisions amply confirms the view that Kelsen’s theory
is irrelevant to its interpretation. If, as argued by the Attorney-General, the section had been based on
a Kelsenite analysis so that section 9 (1) (a) referred to all offices, as these had been newly
established after the coup, then there would have been no need whatsoever for section 9 (1) (b) and
(c). the sweeping revolutionary effect would have been sufficient. The expression “office established”
clearly used “established” in the same sense as various other Articles of the Constitution dealing with
the setting up of new institutions (e.g. Arts. 54. 100, 154, 155, 160). It is submitted that section 9 (1) (a)
clearly refers to offices specifically established by the Proclamation (the office of the N.L.C. itself),28 or
“in pursuance” of it. i.e. offices established in carrying out the terms of the Proclamation this would
include offices established by N.L.C. decrees (the Proclamation provided that legislation would be
carried out through decrees and the decrees were expressed to have been made “in pursuance of the
Proclamation”). Section 9 (1) (b) takes the matter up from there and refers to offices established in
carrying out the provisions of an N.L.C. decree, and section 9 (1) (c) refers in general, residuary terms
to offices established “by or under the authority of that Council” thus covering for example offices
established by the N.L.C. in the exercise of its executive authority. Admittedly the wide terms of section
9 (1) (c) can be interpreted as covering offices established by the N.L.C. decrees but these latter
constitute a specialised class which can conveniently put in their separate category.

In. his dissenting judgment Anin J.A. suggested that section 9 (1) (a) referred to “(i) any office in the
Public Service established or created by the Proclamation: and (ii) any office in the Public Service
deriving its legal validity and continued existence from the Proclamation.”29 But this is clearly reading
into the section words which cannot be regarded as being implied. As examples of offices established
in pursuance of the Proclamation, Anin J.A. cites offices established by N.L.C. Decree 16,29a but that
those were offices established by the N.L.C. is non dispute. The issue concerns an office established
before the N.L.C. came into existence. The learned judge also justifies his restriction of “any office” to
“any office in the public service” by reference to section 9 (4) which specifically mentions “a public
officer to whom the provisions of subsections (1) and (2) of this section apply”; but this is hardly a
sufficient justification since section 9 (4) (which dealt with retiring benefits) could have been limiting the
wider class of section 9 (1)—the same terms could have been used in both provisions if the same
category was intended. In actual fact the N.L.C. may not have established any offices in the private
sector but that is beside the point—what is here being argued is that such offices are not excluded
merely by the terms of section 9 (1). Indeed, suppose the N.L.C. had authorised a private firm to
perform some services and in the exercise of their authority the firm set up certain offices for the job
these would be “offices established under the authority of the N.L.C.”

The terms of the Proclamation which for instance, provided for the public services to “continue, as they
existed” could hardly be said to amount to an establishment of all the public services. Apaloo J.A.
expressed the matter in characteristically emphatic terms:

“The various pieces of legislation from which the Public Services owe their existence were
acknowledged and suffered to continue by sub-paragraph 3 [of the Proclamation]. The Public Service’s
themselves, whose officers mainly serviced the three arms of Government, were also suffered in, like
manner to continue.... Yet the Attorney-General would have us say that an entity whose existence was
acknowledged and left undisturbed was in fact ‘established’ by the entity that acknowledges it. To
permit a thing to continue is to acknowledge its prior existence and it is an abuse of language to say
that the person who permitted its continuance in fact created it.”30

Sowah J.A. also referred to the wording of paragraph 1 of the Ghana National Trading Corporation
Instrument 1965 (L.I. 395) as lending further support to the majority’s view. That paragraph provided
that “The Ghana National Trading Corporation established by the Instrument of Incorporation of the
Ghana National Trading Corporation (E.I. 203 of 1961) is hereby continued in existence as a body
corporate . . .”thus distinguishing between “establishing” and 4 continuing in existence.” Sowah J.A.
also observed that later N.L.C. decrees did not seem to share the view that the coup abolished and re-
created all offices for example paragraph 85 of the N.L.C.D. 84 reads: “The Courts Act 1960 (C.A. 9),
as subsequently amended, is hereby repealed, and the courts established under that Act are abolished
with effect from the date of the commencement of this Decree.”

Our judges have sometimes been accused of too slavish an adherence to the literal meaning of words,
to the exclusion of what are vaguely called policy considerations. It should therefore be interesting to
investigate how far such an allegation would be justified in the Sallah case. Anin J.A., reading the
dissenting judgment obviously attached some importance to the need to infuse into the Public Service
“a new sense of urgency and dedication drawing its inspiration from a sound morale and high standard
of efficiency, integrity and honesty “(quoting from paragraph 614 of the Proposals of the Constitutional
Commission on which the Constitution was based). “In the second place, “the learned judge said,” it
can hardly be contended with any justification that persons holding offices established before the
overthrow of the Nkrumah regime are ipso facto more efficient, honest or forward-looking than their
counterparts first appointed to their offices by that band of devoted and well-meaning patriots the
National Liberation Council.”31 The judgments of the majority in turn took notice of the fact that this
Constitution obviously sought to give more protection from arbitrary dismissal to Public Officers than
they had ever had before. It was therefore difficult to accept that the Constitution in section 9 (1) of the
Transitional Provisions, then “in one fell swoop dismissed each and every member of the Public
Services.” The contention was also accepted that section 9 (1) “was designed to enable a new
administration to have a fresh look at posts created by an interim Government and rid itself of such
offices if it thought fit.”32

It must also be observed that when judges are being criticised for too slavish an adherence to literal
meanings, the point must be borne in mind that words do have ordinary meanings, and that there is
something to be said for some sort of presumption that the ordinary meaning is intended unless the
context otherwise indicates.

Apaloo J.A. raised another point of some interest.33 Referring to aids to interpretation which courts are
permitted to use under section 19 of the Interpretation Act 1960 (C.A. 4), he remarks that “the section
expressly forbids any reference to the debates in the Assembly.” This is obviously based on section 1
of that Act which reads, in the relevant part: “Each provision of this Act applies to every enactment
being (a) the Constitution, an Act . . . of the Constituent Assembly or of the Parliament of the Republic
of Ghana.” Presumably this is based on the argument that the word “Constitution” as used in section 1
must not he restricted to the 1960 Republican Constitution.34

It may be useful to consider here the rationale of the rule and to discuss its desirability. British courts
unlike their American counterparts, have tended to exclude debates in cases of statutory interpretation;
the Australian High Court has done the same even in Constitutional issues of major importance..…35
It may be thought difficult to justify this exclusion, especially when judges purport to be looking for the
legislator’s intention, but the American experience, for instance, seems to show that consultation of
debates produces a great increase in the volume and complexity of the materials and considerations
before the court, sometimes without clarifying the issues any more since there may have been no
settled intention expressed relevant to the situation in hand. (Incidentally, a careful reading of the
Constituent Assembly debates on section 9 (1) will reveal how unrewarding such an exercise can be
for the courts and thereby illustrate the point being made.) There is also the problem of members of
the legislature introducing speeches in debates with a view solely to influencing later court
interpretation.36 It may be objected that these difficulties do not constitute such an obstacle in the
case of debates of a Constituent Assembly which had only one session. But if resort to the debates is
to be allowed, will this apply to amendments made by Parliament in accordance with Article 169? If it
will, the earlier arguments will still be valid. On the other hand, it would obviously he absurdly legalistic
to apply different rules to different parts of the Constitution depending on whether they had ever been
amended or not.

A final aspect of this case worth commenting on concerns the announcement by Siriboe J.A. at the
end of his dissenting judgment on the natural justice objection that: “it follows from the conclusion I
have reached in this motion that I consider myself unable to continue with the original panel selected to
hear the substantive case, not unmindful of the stage it has so far reached.” With respect, it is difficult
to see how his purported withdrawal “follows from” his dissent, for a judge who dissents from his
brothers’ ruling on a preliminary objection is not thereby disabled from sitting on the rest of the case
with them especially when all that remains is the reading of the judgment in the case. This action
however, it is submitted, did not make the court that announced the decision an improperly constituted
one so as to nullify the decision. To suggest otherwise would amount to saying that a judge can, as it
were, hold his brothers to ransom any time he disagrees with them by refusing to deliver judgment.
With respect, such action on the part of a judge seems to constitute such “misbehaviour” as could lead
to the setting in motion of the process for removing him under Article 116 of the Constitution. And
behaviour which could lead to such grave consequences must not be allowed, if possible, to interfere
with the judicial process.

Even if this point were not accepted, in this case three judges would, in fact, be sufficient for the court
to be properly constituted within the terms of the Constitution. It is true the Court of Appeal was sitting
as the Supreme Court, and under Article 103 (2) not less than five justices of the Supreme Court are
required for it to be duly constituted for its work. However, section 8 (Part III) of the Transitional
Provisions provides that until the appointment of enough justices to the Supreme Court the Court of
Appeal as established pursuant to the provisions of Article 102 (4) shall perform the functions of the
Supreme Court as contained in Article 106 only. Article 106 deals with the original jurisdiction of the
Supreme Court in matters of constitutional interpretation-and similar matters. The Court of Appeal
according to Article 109 (2), is duly constituted by any three justices thereof and there seems no
reason why this should not apply when it was sitting as the Supreme Court. It must also be noted that
Article 109 (2) does not say that a Court of Appeal with more than three justices sitting at once is
improperly constituted. Any attempt to imply such a restriction would have to produce cogent policy
considerations in its support.

The judgments of the majority in this case resound with ringing assertions proclaiming the Judiciary's
commitment to upholding the Constitution and interpreting it justly without fear or favour. These
assertions offer hope that Ghana’s judiciary in the Second Republic will stand up to the role assigned
to them under the new Constitution as a really independent and responsible judiciary to do their utmost
w ensure Freedom and Justice.

FOOTNOTES

1. S.C. April 17, 20, 1970; (1970) C.C. 54, 55.

2. E.I. 203, 1961.

3. Judgments, pp. 34-35.

4. e.g. per Lord Esher, Eckersley v. Mersey Dock and Harbour Board [1894] 2 Q.B. 667, 670.

5. [1960] 2 Q.B. 167.

5a. For more discussion on the proper test to apply in cases of bias, see Metropolitan Properties Co.
(F.G.C.), Lid. v. Lannon (1968) 3 All E.R. 304, esp. at pp. 309-310 (per Lord Denning M.R.), 311 (per
Danckwerts L.J.), 313-314 (per Edmund Davies L.J.).

6. Ruling, p. 19.

7. Ibid.; p. 13.

8. Ibid., pp. 10-11.

9. Ibid., p. 12.

10. 67 Idaho 45, 170 P. 2d 411 (1946).

11. For other cases on the “doctrine of necessity” as applied to the judiciary, see Gelhorn and Byse,
Administrative Law: Cases and Comments (4th ed., 1960), p. 947.

12. Translated by Anders Wedberg, 1949.

13. Ibid., pp. 117-118.

14. See on this Hart, Concept of Law, pp. 105-107, 245-246.

15. Judgments, p. 8.

16. Ibid., p. 10.

17. Kelsen, op. cit., p. 120.

18. Judgments, p. 11.

19. Ibid., p. 11.

20. Cf. the Rhodesian courts and the Privy Council in Madzimbamuto v. Lardner-Burke: 1966 (4) S.A.
462; 1968 (2) S.A. 284; [1968] 3 All E.R. 561; the Pakistani Supreme Court in State v. Dosso, P.L.D.
1958 S.C. (Pak.) 533; and in Uganda, Uganda v. Commissioner of Police, ex p. Matovu [1966] 1
E.A.L.R. 514.

21. Op. cit. p. 126.

22. (1966) Israel Law Review 1, 6.

23. For discussions of Kelsen’s basic norm, see the recent book by Raz, The Concept of a Legal
System, pp. 64-66, 95-105, 136-138.

24. For other comments regarding the self-imposed limitations of Kelsen’s theory for practical judicial
decisions, see comments by Dr. J. M. Finnis on the Rhodesian Madzimbamuto case in Annual Survey
of Commonwealth Law (1967) pp. 92 et seq.; (1968) pp. 108 et seq.; (1969) volume still in proof stage.

25. Op. Cit., p. 11 8.

26. See Ibid., pp. 121, 366-378.

27. Ibid., pp. 220-221.

28. At Ibid., p. 369 he formulates the basic norm of international law in terms of custom.

29. Judgments, p. 25.

29a. Judgments, p. 24.

30. Ibid., pp. 56-57.

31. Ibid., p. 29.

32. Ibid., p. 61, per Apaloo J.A.

33. Ibid., p. 59.

34. On the principle that a statute must be taken to be always speaking, see Lord Thring, Practical
Legislation (2nd ed.), p. 83.

35. e.g., First Uniform Tax Case, S. Australia v. The Commonwealth (1942) 65 C.L.R. 373, especially
at pp. 409-410, per Latham C.J.

36. For some judicial discussion on the exclusion of Parliamentary debates as aids to interpretation,
see Beswick v. Beswick [1968] A.C. 58, especially pp. 73-74 (per Lord Reid).

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