Constitutional Law®

PAHS 307
Constitutional Law
Session 1 – Constitutional Law
Lecturer: Dr. Peter Atupare, School of Law, UG

Contact Information: paatupare@ug.edu.gh
College of Education
School of Continuing and Distance Education
2014/2015 – 2016/2017
Session 1 Overview
• This session takes a look at the brief history of
constitutional rule in Ghana. It takes into account the
pre-colonial and post- colonial constitutional
arrangements. In this case, both civilian and military
regimes are examined.
Slide 2
Session 1 Outline
The key topics to be covered in the session are as follows:
• Pre-colonial era
• Colonial era
• Independent Ghana
• 1st Republic
• The National Liberation Council (NLC)
• 2ND Republic
• National Redemption Council (NRC)
• Supreme Military Council (SMC I)
• Supreme Military Council (SMC II)
• Armed Forces Revolutionary Council (AFRC)
• 3rd Republic
• Provisional National Defense Council (PNDC)
• 4th Republic
Slide 3
History Outlined
• The current Constitution is a reflection of our past and
history. See Preamble
• It is therefore necessary to understand the
constitutional history and how the current Constitution
developed.
• Note that current Ghana consists of 4 different
territories which have been put together. The Gold
Coast Colony; Ashanti; the Northern Territories and
Togoland under UK Trusteeship. The Constitutional
evolution of Ghana dates to the 1800’s.
Slide 4
Pre-colonial Era
• Executive: Executive power was vested in the chief, elders, the
body of youth and army; the chief acting as the Chief Executive.
• Legislature: Powers were vested in the chief, elders, and

representatives of all the major tribes. Chief and elder had
delegated legislative powers to make subsidiary laws. Major
legislative functions such as changing customary law rules
could be done only when the chief and elders were joined by
the representatives of the major tribes.
• Judiciary: Chief, elders with family heads serving as lawyers.

There were certain cases that the chief could sit alone in
judgement. In other instances, a council of elders was
constituted to hear appeal cases with the chief.
Slide 5
Colonial Era
• The introduction of British rule to Ghana started
somewhere in 1821 with British administration in
the forts and some parts of the coast outside the
fort. On 6th March, 1844, the Bond of 1844 was
signed by which the chiefs surrendered their
authority to the Queen. From this time, British
administration was exercised in the Gold Coast
which gradually expanded to include current day
Ghana. Constitutions at the time consisted of
Orders-in-Council, Royal Charters, Letters Patent
and Royal Instructions. The power of the Queen
was exercised on her behalf by a Governor.
Slide 6
Colonial Era Cont.
• Executive: Final executive power was vested in the
Crown while the Governor exercised that power on
behalf of the Crown. There were several changes
over the years – e.g. the formation of Executive
Council during the Burns Constitution but at all
material points the Crown was the final authority.
• Legislature: The British with the Governor-in-
Council exercising delegated legislative powers
• Judiciary: Final judicial power was vested in the
Judiciary consisting of courts in the Gold Coast,
the West African Court of Appeal (WACA) and the
Privy Council as the final court of appeal.
Slide 7
Independent Ghana (6th March 1957
to 30th June 1960
• Relevant laws:
• The Ghana (Constitution) Order in Council, 1957
• The Ghana Independence Act, 1957
• The Ghana (Office of Governor-General) Letters
Patent, 1957
Slide 8
Independent Ghana Cont.
• The Executive: Executive power was vested in the Queen and
could be exercised by the Queen or the Governor-General as
her representative. The Governor-General was the
Commander-in-Chief of the Armed Forces. Except where
otherwise provided by law, all powers, authorities and
functions vested in the Queen or the Governor-General were to
be exercised in accordance with constitutional conventions
applicable to the exercise of similar powers, authorities, and
functions in the United Kingdom by Her Majesty. Provision was
made for a Cabinet of Ministers of not less than 8 persons
drawn from [elected] Parliament. The Cabinet was charged
with the general direction and control of the Government of
Ghana and was collectively responsible to Parliament. The
Prime Minister was appointed by the Governor-General. The
Prime Minister took precedence over all Ministers and
presided over Cabinet meetings.
Slide 9
Independent Ghana Cont.
• The Legislature: Parliament – consisting of the
Queen and the National Assembly. National
Assembly consisted of the Speaker and not less
than 104 elected members of Parliament.
• Judiciary: Final judicial appeal authority vested

in the Courts of Ghana with the Privy Council as
the final court of appeal. Appeals to WACA were
abolished.
Slide 10
Republic of Ghana (1st July 1960 –
23rd February 1966)
• Relevant Laws:
• The Constitution of the Republic of Ghana 1960 (the
Republican Constitution
• Constitution (Amendment) Act, 1964 (Act 224)
• The Executive:
• Article 8(2) conferred executive power upon an elected
President. By the operation of Art 8(1 & 2), the Queen,
acting through the person of Her Governor-General, was
displaced as the Head of State and holder of executive
power.
• Art 8(3) also replaced the Governor-General with the
President as the Commander-in-Chief of the Armed
Forces. The President’s functions as the Commander-in-
Chief were spelt out in Art 54 to include:
Slide 11
Republic of Ghana Cont.
• Art 15(1) provided for the appointment of Ministers from among
Members of Parliament to assist the President in the exercise of his
executive power and to take charge under his direction of such
departments of State as he (the President) assigned. Appointment was
by the President
• Article 16(1) provided for a Cabinet consisting of the President and not
less than 8 Ministers appointed as members of the Cabinet by the
President
• Art 16(2) further charged the Cabinet with the general direction and
control of the Government of Ghana.
• By the provision of Art 18(1) as amended, There was appointed by the
President, a Presidential Commission of three persons to execute the
office of the President in accordance with the advice tendered by the
Cabinet in the event of – the death or resignation of the President
before the assumption of office of his successor; or the illness of the
President or his absence from Ghana during which he could not
conveniently perform the functions of his office; or the President being
adjudged incapable of acting
Slide 12
Republic of Ghana Cont.
• Legislature: Legislative power vested in Parliament made up of
the President and the National Assembly – the National
Assembly comprised the Speaker and Elected Members and
Appointed Members.
• Under Article 55, the 1st President had some limited legislative
power during his initial period of office defined in the clause 5
of Article 55 to be the period during which he remained in
office until some other person assumed the office of the
President. Art 55 (2) spelt out the limited legislative powers to
be the power to give direction by legislative instrument on any
matter of national interest. Art 55 (2) further provided that any
such instrument made under this clause could alter (whether
expressly or implicitly) any enactment other than the
Constitution.
• Judiciary: Art 42(1) vested final judicial power in the Courts of
Ghana. Appeals to the Privy Council were abolished.
Slide 13
The National Liberation Council –
24th February 1966 – 21st August
1969
• Relevant Laws:
• National Liberation Council Establishment Proclamation
• National Liberation Council (Proclamation) (Amendment)
Decree, (NLCD 1)
• National Liberation Council (Proclamation) (Amendment)
Decree, NLCD 183
• The Executive: Executive power was initially vested in the

National Liberation Council which was constituted of some
particular persons specified in S.1 of the NLC Establishment
Proclamation. Section 1A of NLCD 183 however amended the
Establishment Proclamation to set up an Executive Council, in
which was vested executive power. The Executive Council
was charged with the general direction and Control of the
Government of Ghana
Slide 14
The National Liberation Council
Cont.
• Legislature: section 3(1) of the Establishment
Proclamation degree vested legislative powers
in the NLC
• Judiciary. Section 2(3) Establishment
Proclamation degree continued in force all
courts in existence immediately before 24th
February 1966 with the same powers as they had
before the said date. All judges and person
holding offices in the judicial service were also
maintained with the same powers
Slide 15
The Second Republican Constitution
-22nd August 1969 – 12th January
•
1972
Relevant Laws :
• The 1969 Republican Constitution
• The Constitution (Consequential and Transitional Provisions)
Decree, 1966 (NLCD 406)
• The Proposals of the Constitutional Commission for a Constitution
for Ghana (1968) – The Akuffo Addo Commission
• Executive: while the President was the Head of State and
Commander-in-Chief of the Armed Forces and was vested with
executive authority as well, he could not exercise this authority
without the advice of Cabinet. The Prime Minister was the Head of
the Cabinet and Government and together with the Cabinet had real
executive authority. Art 37 vested executive authority (to be
exercised in accordance with the provisions of the Constitution) in
the President who was also the Head of State and Commander-in-
Chief of the Armed Forces in pursuant to Art 36(1). The Prime
Minister was also the leader in the National Assembly of the party
having the numerical strength of a majority of all the members.
Slide 16
The Second Republican Constitution
Cont.
• The Cabinet comprised the Prime Minister and not less
than 8 and not more than 17 other Ministers of State as
was appointed by the President on the advice of the Prime
Minister. All Ministers were appointed from the National
Assembly. Art 61(1) charged the Cabinet with the
determination of the general policy of the Government and
made the Cabinet collectively responsible to the National
Assembly. Art 61(3) made the responsibility of the Prime
Minister to communicate to and furnish the President with
the decisions of cabinet relating to the administration of
the affairs of Ghana and proposals for legislation.
• Legislature: Legislative Powers were vested in Parliament
– the National Assembly
• Judiciary: Art 102 vested judicial power in the judiciary of
which the Supreme Court was final court of appeal
Slide 17
13th January 1972 -23rd September
1979 – National Redemption
Council
• The Executive: section 24 (1) of the NRC
(Establishment) Proclamation, 1972 provided for the
appointment of an Executive Council comprising the
members of the NRC and such other persons as the
NRC thought fit and who according 24(3), held their
offices at the pleasure of the NRC. Section 24(2)
made the Chairman of the NRC the Chairman of the
Executive Council as well. Section 24(3) vested the
Executive Council with the executive power of the
State subject to the powers of the NRC. While the
Executive Council had not yet been formed, S. 25
made the NRC the Government and vested in it
executive powers.
Slide 18
National Redemption Council cont.
• Legislature: section 3(1) of the NRC
(Establishment) Proclamation vested legislative
power in the NRC - power to issue Decrees which
had the force of law. Section 3(2) continued in
force, enactments before 13th Jan 1972 but such
enactments could be revoked, repealed or
amended by an NRC Decree. Section 3(4) also
vested in the NRC, the power to repeal or amend
its own Decrees.
• Judiciary: All courts in existence before 13th
January 1972 were continued in force.
Slide 19
The Supreme Military Council I – 9th
October 1975 – 4th July 1978
• Executive: The National Redemption Council (Establishment)
Proclamation (Amendment) Decree, 1975 (NRCD 360) made
significant changes to the NRC Establishment Proclamation. By
the provision of S. 1 & 2 of NRCD 360 there established the
Supreme Military Council (SMC) in which was vested
administrative authority of Ghana and was responsible for the
general direction and administration of Ghana. It was the highest
administrative body. All members, except the Chairman held their
positions by appointments. There was also established a
National Redemption Council by the operation of S.3 to be in
charge of the day-to-day administration of the Government of
Ghana under the general direction of the SMC. This NRC was
different from the NRC established by the NRC (Establishment)
Proclamation, 1972 and comprised: The members of the SMC;
Commissioners of State appointed by the Chairman of the SMC
on the advise of the SMC; the Commander of the First Infantry
Brigade and the Commander of the Second Infantry Brigade.
Slide 20
The Supreme Military Council I Cont.
• Legislature: S. 2 of the NRCD 360 made the SMC
the highest legislative body in Ghana
• Judiciary: The Supreme Court was abolished and

replaced with the Full Bench of the Court of
Appeal.
Slide 21
Supreme Military Council II – 5th
July 1978 – 3rd June 1979
• Executive: Section 9(1) of Supreme Military
Council (Establishment) (Proclamation)
(Amendment) Decree, SMCD 168 vested executive
power in the SMC. Section 11 provided for the
delegation of executive powers to Commissioners
and such other persons as the SMC [II] deemed fit.
• Legislature: Legislative authority was vested in
the SMC [II]
• Judiciary: Full Bench of the Court of Appeal was
the final court of appeal
Slide 22
The Armed Forces Revolutionary
Council -4/6/ 1979 – 23/9/1979.
• Executive – AFRC
• Legislature – AFRC
• Judiciary – Same as SMC II
Slide 23
24/9/1979 – 30/12/ 1981 – The
Third Republican Constitution
• Relevant Laws/document:
• The 1979 Republican Constitution
• TA Mensah Commission Constitutional Proposal
• Executive: There was a departure from the
Parliamentary system of government to an executive
presidency. There was an Executive President in whom
was vested executive powers and who was the Head
of State, Head of Government and Commander-in-
Chief of the Armed Forces. For the first time, the 3rd
Republican Constitution introduced the position of the
Vice President. Other constituents of the executive
such as the Cabinet and Council of State were
maintained from the 1969 Constitution with some
modification.
Slide 24
The Third Republican Constitution
Cont.
• Legislature: There was a practice of strict
separation of powers.
• For the first time, the President was not part of
Parliament. All legislative powers were vested in
Parliament
• Judiciary: Judicial power was vested in the
judiciary
• The Supreme Court was re-established as the
final Court of Appeal
Slide 25
The Provisional National Defence Council
(PNDC) -31/12/1981 -6/1/1993
• Relevant Laws:
• PNDC (Establishment) Proclamation 1981
• PNDC (Establishment) Proclamation (Supplementary and
Consequential Provisions) 1982 (PNDCL 42)
• Executive: PNDCL – S. 3(4) of Establishment Proclamation – Council

shall exercise all Governmental powers.
• By the operation of S.1 of the Consequential Provisions, the Chairman
could exercise the powers of the Council in cases of emergency. His
acts in such cases were however subject to confirmation, revocation or
variation by the Council as soon as practicable.
• Legislature: PNDC – See 4 of Establishment Proclamation
• Judiciary: A parallel judicial system – the public tribunal – was created
to run parallel to the normal courts system. The public tribunal was
administered by the PNDC. Other relevant laws to the judiciary are –
PNDCL 161 and 228
Slide 26
Session 2: CONSTITUTION AND
CONSTITUTIONAL LAW
• This sessions takes on the definition of a
constitution. It also examines the various ways
by which a constitution may be classified. Finally,
the session considers the question what is
constitutional law? Overall, it introduces the
students to the concept of Constitution within
the whole set up of Constitutional Law. What is
thus covered are: what is Constitution?
Classification of Constitutions and what is
Constitutional Law?
Slide 27
What is Constitution?
• There may be two general definitions of a
Constitution; the broader definition and the narrow
definition. The broader definition of a Constitution
defines it as the whole system of government and
the collection of rules which regulate government.
It covers the body of rules, principles, practices,
usages and conventions which relates to a
system of government and the functions and
powers of a government. The narrow definition of
Constitution defines a constitution to be a
document or series of documents which contain
the rules that relate to a system of government.
Slide 28
What is Constitution? Cont
• This narrower definition restricts constitution to written documents, placing
much premium on the form as opposed to the substance. By this definition,
societies without a written constitution, like Britain will be said not to have a
constitution. But as recently held by the High Court in R(Miller) v Secretary of
State for Exiting the EU,
• “The United Kingdom does not have a constitution to be found entirely in a
written document. This does not mean there is an absence of a constitution
or constitutional law. On the contrary, the United Kingdom has its own form
of constitutional law as recognised in each of the jurisdictions of our four
constituent nations. Some of it is written, in the forms of statutes which
have particular constitutional importance. Some of it is reflected in
fundamental rules of law recognised by both parliament and the courts.
There are established and well recognised legal rules which govern the
exercise of public power and which distribute decision making authority
between different entities in the state and define the extent of their
respective powers. The United Kingdom is a constitutional democracy
framed by legal rules and subject to the rule of law. The courts have a
constitutional duty fundamental to the rule of law in a democratic state to
enforce rules of constitutional law in the same way as courts enforce other
laws.”
Slide 29
• While writers like Ridley have criticised British
writers of broadening the definition to create the
impression that Britain has a constitution, the
broader definition seems to be the most
preferred definition. Even for written
constitutions, it has consistently been argued
that it has its spirit which cannot be found in the
letter of the constitution
Slide 30
• As Sowah JSC in favour of the broader view of a constitution
states in Tuffour v Attorney General:
• “The Constitution has its letter of the law. Equally, the
Constitution has its spirit. It is the fountain-head for the
authority which each of the three arms of government
possesses and exercises. It is a source of strength. It is a
source of power. The executive, the legislature and the
judiciary are created by the Constitution. Their authority is
derived from the Constitution. Their sustenance is derived
from the Constitution. Its methods of alteration are specified.
In our peculiar circumstances, these methods require the
involvement of the whole body politic of Ghana. Its language,
therefore, must be considered as if it were a living organism
capable of growth and development Indeed, it is a living
organism capable of growth and development, as the body
politic of Ghana itself is capable of growth and development.”
Slide 31
• The two definition however give us the basic characteristics of a
constitution:
• It is a product of the constituents
• It establishes state institutions and divisions of government
• It is both law and the source of legal power
• It gives rise to rules and conventions.
• It also brings out the basic content of all constitutions, written or
unwritten:
• It contains the ideals and values of the constitution usually
mirroring down the history of the people and making
improvements on from the past.
• It deals with the structure and organization of government
• It deals with the distribution of functions and powers
• It deals with the rights and duties of the people
• It contains the rules of changing or amending its terms.
Slide 32
Classifications of a Constitution
• Rigid or Flexible – this classification is based on the
rules for amendment. Constitutions with easier or
flexible rules for amendment are termed flexible while
those with difficult or special rules for amendment are
termed rigid. The 1992 Constitution of Ghana employs
both - with some provisions (the entrenched provisions)
adopting a more sophisticated means of amendment
while other provisions (the non-entrenched provisions)
enjoys flexible means of amendment. Monarchical or
Republican – this classification is based on the head of
state of jurisdiction. Monarchical constitutions, like UK,
have a non-elected head of state who rises to office
usually through some hereditary means or some form of
inheritance. Republican constitutions, like USA usually
have a head of state elected by universal adult suffrage.
Slide 33
Cont.
• Presidential or Parliamentary – deals with the system of
government and the relationship between the executive and the
legislature. In Parliamentary constitutions, the executive is
directly answerable to the legislature and the legislature may
dismiss the executive government. Here, the head of government
is usually not elected but is the leader of the party with majority
in Parliament. In Presidential constitutions, the head of
government is elected directly by the electorate. The executive is
therefore not answerable to the legislature although they
exercise oversight responsibilities over each other. UK, France,
Italy are examples of Parliamentary constitutions while Ghana,
Nigeria, Sierra Leone and USA are examples of Presidential
constitutions. Unitary or Federal – classification is based on
division of power. Unitary constitutions have one central
authority while federal states have several autonomous regional
authorities arranged similarly to the central authority. Examples
of Federal systems are USA, Nigeria while Ghana, UK practice the
unitary system.
Slide 34
Cont.
• Single party or multiparty – classification based on the organization of
political parties. Some constitutions permit only one political party in
the state. This is the situation in Ghana between 1964 and 1966
following the amendment to the 1960 constitution that made CPP the
only official political party in the country. Multiparty party constitutions
like the 1992 Constitutions allow several political parties to operate in
the system affording all equal opportunities. Unicameral or Bicameral –
this classification is based on the organization of the legislature. Some
constitutions provide 2 chambers of the legislature; an upper chamber
and the lower chamber. These constitutions are termed bicameral. E.g.
UK, USA. On the other hand, constitutions that provide for only one
chamber of the legislature are termed unicameral. Written or unwritten
constitutions – this classification is based on whether the constitution
has been reduced into a document(s) which one can lay hands on as
the constitution like the 1992 Constitution of Ghana, the 1996
Constitution of South Africa or the 2010 Constitution of Kenya; or
whether this is made up of several rules of law both written or unwritten.
Slide 35
What is Constitutional Law?
• Constitutional law deals generally with the
fundamental principles by which the authority of
government is exercised. It is the collection of
those laws, rules and practices which define the
relationship between the state and its actors and
the relationship between the various actors in the
state; the Executive, the Legislature and the
Judiciary. Constitutional law does not deal only
with written constitution and thus states without
written constitutions may still have their
constitutional law.
Slide 36
What is Constitutional Law? Cont.
• As stated in the case of R(Miller) v Secretary of State for Exiting the
EU,
• “The United Kingdom does not have a constitution to be found in
entirely in a written document. This does not mean there is an
absence of a constitution or constitutional law. On the contrary, the
United Kingdom has its own form of constitutional law as
recognised in each of the jurisdictions of our four constituent
nations.” This is because the province of constitutional law extends
far beyond written constitutions. Even for states with written
constitutions, constitutional law is not limited to the study of the
written constitution alone. It encompasses the entire body politic of
the society, the distribution of power and functions, the use of the
power and its limits, the rights and duties of the citizens in the
country. Therefore, we can talk of constitutional law even in military
regimes. However, for countries with written constitutions, the
constitution enjoys a special place in the body politic of the society.
In most of those cases, the constitution becomes the supreme law
and any law inconsistent with it is deemed void.
Slide 37
Session 3: SOURCES OF LAW IN
GHANA
• This sessions highlights or examines the
sources of law in Ghana. That is, students are
taken through the various sources of law in
Ghana – where to look for law in Ghana’s Legal
system.
Slide 38
SOURCES OF LAW IN GHANA cont.
• Article 11 of the Constitution generally provides for sources of
law in Ghana. Headed laws of Ghana, it provides as follows:
• (1) The laws of Ghana shall comprise—
• (a) this Constitution;
• (b) enactments made by or under the authority of the
Parliament established by this Constitution;
• (c) any Orders, Rules and Regulations made by any person or
authority under a power conferred by this Constitution;
• (d) the existing law; and
• (e) the common law.
• (2) The common law of Ghana shall comprise the rules of law
generally known as the common law, the rules generally known
as the doctrines of equity and the rules of customary law
including those determined by the Superior Court of Judicature.
Slide 39
SOURCES OF LAW IN GHANA cont
• 3) For the purposes of this article, "customary law" means the
rules of law which by custom are applicable to particular
communities in Ghana.
• (4) The existing law shall, except as otherwise provided in clause
(1) of this article, comprise the written and unwritten laws of
Ghana as they existed immediately before the coming into force
of this Constitution, and any Act, Decree, Law or statutory
instrument issued or made before that date, which is to come
into force on or after that date.
• (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.
Slide 40
• (7) Any Order, Rule or Regulation made by a person
or authority under a power conferred by this
Constitution or any other law shall—
• (a) be laid before Parliament;
• (b) be published in the Gazette on the day it is laid
before Parliament; and
• (c) come into force at the expiration of twenty-one
sitting days after being so laid unless Parliament,
before the expiration of the twenty-one days, annuls
the Order, Rule or Regulation by the votes of not less
than two-thirds of all the members of Parliament.
Slide 41
• From this provision, sources of law in Ghana can be
summarized as follows:
• 1)The Constitution: The Constitution is the supreme law
of Ghana. Thus, any law, act or omission inconsistent with
any provision of this Constitution is void. See article 1(2)
and 2(1). Article 2 vests in the Supreme Court the power
to declare any enactment or provision in an enactment or
any act or omission of any person which is inconsistent or
in contravention with any provision in the Constitution
void. See NPP v Attorney General (31st December Case)
where the Supreme Court declared the celebration of 31st
December with public funds as a public holiday void as
being inconsistent with the Constitution.
Slide 42
• Enactments by Parliament: In the order of
hierarchy, enactments passed by Parliament is
the second highest of the laws of Ghana. They
are subject only to the Constitution. Thus, unless
they are inconsistent with the Constitution, they
are to be obeyed by all including the Courts. This
include laws passed by the military regimes, i.e.
Decrees made by NLC, NRC, SMC 1 & 2, AFRC
and the Laws made by PNDC.
Slide 43
• Subsidiary Legislation: Subsidiary legislations are legislations
not made directly by Parliament, but by some other authority
pursuant to an authority granted by the Constitution or
Parliament. E.g. Public Elections Regulations, 2016 (C.I. 94)
made by the Electoral Commission to regulate the conduct of
public elections and the Road Traffic Regulations, 2012 (L.I.
2180) made by the Minister for Transport to regulate road
traffic. They include: Constitutional Instruments – usually when
the power to make the law is derived from the Constitution;
Legislative Instruments – when the power to make the law is
derived from some other law other than the Constitution;
Executive Instruments – instruments made by the Executive
which are usually not legislative in nature. Used to impose
curfews, compulsorily acquire lands and to give some
administrative directives.
Slide 44
• Under article 11(7), subsidiary legislations must
be published in the Gazette, laid before
Parliament on the day it is published in the
Gazette and shall remain in Parliament for 21
sitting days of Parliament before it becomes law.
When it is laid in Parliament, Parliament has no
power to amend the law. Parliament may either
reject it or allow it to pass.
Slide 45
• The existing law: This refers to all the laws that were in
existence before the coming into force of the 1992
Constitution. They are to be construed in the light of the
Constitution and if they are found to be inconsistent with
the Constitution, then they are void. The common law of
Ghana: This includes: The rules of law generally known
as common law – a body of rules developed in England
and applicable in most common law jurisdictions; Equity
– a body of rules of law also developed in England to
deal with the injustice of the common law and also
applicable in most common law jurisdictions; Customary
Law – which is defined in article 11 (3) to mean the rules
of law, which by custom are applicable to particular
communities in Ghana
Slide 46
• Judicial Precedents: This is sometimes put as
part of the common law. It includes decisions of
higher courts on questions of law and are usually
binding on other courts.
• Writings of Jurists and Publicists: Authoritative

textbooks sometimes serve as a guide to
interpretation and application of the law.
Slide 47
Session 4: STANDING AND
ENFORCEMENT OF THE
CONSTITUTION
• This session examines the concept of standing
in enforcing the Constitution. That is, it
introduces students to the requirements of
standing for litigants and how that may aid in the
enforcement of the Constitution. It answers the
basic question: who may approach the court to
enforce the Constitution of Ghana?
Slide 48
Enforcement of the Constitution
• The Constitution being the supreme law, any other law
which is inconsistent with it is void. The enforcement
provision of the Constitution is directed at persons
whose acts, omissions or conducts are in conflict with
any the provisions of the Constitution. Articles 2 and
130 generally guide the enforcement of the
Constitution. Article 2 in part states—Enforcement of
the Constitution. (1) A person who alleges that— (a) an
enactment or anything contained in or done under the
authority of that or any other enactment; or (b) any act
or omission of any person, is inconsistent with, or is in
contravention of a provision of this Constitution, may
bring an action in the Supreme Court for a declaration
to that effect.
Slide 49
cont.
• Article 130 on the other hand states as follows:
• (1) Subject to the jurisdiction of the High Court in the
enforcement of the Fundamental Human Rights and Freedoms
as provided in article 33 of this Constitution, the Supreme
Court shall have exclusive original jurisdiction in— (a) all
matters relating to the enforcement or interpretation of this
Constitution; and (b) all matters arising as to whether an
enactment was made in excess of the powers conferred on
Parliament or any other authority or person by law or under this
Constitution. (2) Where an issue that relates to a matter or
question referred to in clause (1) of this article arises in any
proceedings in a court other than the Supreme Court, that
court shall stay the proceedings and refer the question of law
involved to the Supreme Court for determination; and the court
in which the question arose shall dispose of the case in
accordance with the decision of the Supreme Court.
Slide 50
cont.
• Articles 2 and 130 gave the Supreme Court an exclusive
jurisdiction to enforce the Constitution against all
persons whose act, omission or conduct is repugnant to
the Constitution except the fundamental human rights
provisions of the Constitution. As the Supreme Court
explains in Okudzeto Ablakwa v Obetsebi Lamptey and
Attorney General, Article 2 (1) imposes on the Supreme
Court the duty to measure the actions of both the
legislature and the executive against the provisions of
the Constitution. This includes the duty to ensure that
no public officer conducts himself in such a manner as
to be in clear breach of the provisions of the Constitution.
It is by actions of this nature that give reality to enforcing
the constitution by compelling its observance and
ensuring probity, accountability and good governance.
Slide 51
cont.
• The jurisdiction conferred on the Supreme Court
by these provisions is also to interpret the
Constitution in addition to enforcing obedience
to its terms. Thus, unless an action genuinely
calls for an interpretation or enforcement of the
Constitution, the Supreme Court will not assume
jurisdiction
Slide 52
cont.
• The test as to whether a question calls for an interpretation
has been given by the case of Republic v Special Tribunal; ex
parte Akosa as follows:
1. where the words of the provision were imprecise or unclear
or ambiguous;
2. where rival meanings had been placed by the litigants on the
words of any provision of the Constitution;
3. where there was a conflict in the meaning and effect of two
or more articles of the Constitution and the question was
raised as to which provision should prevail; and
4. where on the face of the provisions, there was a conflict
between the operation of particular institutions set up under
the Constitution.
• But note that the Supreme Court also has jurisdiction to
enforce the provisions of the Constitution even where there is
no question of interpretation.
Slide 53
Standing
• Standing refers to the capacity by which a
person comes to court. Every person who
invokes the jurisdiction of the Court must have
capacity to commence the action. In respect,
enforcement of the Constitution, the Courts have
held that every citizen has a duty to protect and
defend the Constitution; thus, every citizen has
capacity or standing to invoke the jurisdiction of
the Court to enforce the constitution.
Slide 54
Standing Cont.
• Thus, in Tuffour v Attorney General, the Court held that
although the plaintiff had no private interest in the matter, he
had capacity to commence the action. The Court explained
that:
• “There is a right, a duty cast upon every citizen of Ghana to go
to the Supreme Court for determination whether a person or
persons is, or are, seeking to abolish the constitutional order
established by the Constitution. There is a controversy
regarding the status of the incumbent Chief Justice, the
determination of which depends upon an interpretation of the
Constitution. Once there is a controversy, a justiciable issue,
we believe that under the wing of interpretation as contained
in paragraph (a) of clause (1) of article 1 1 8, the court has
jurisdiction to entertain the issue raised by the plaintiff's writ.
And the plaintiff is thus properly before this court”.
Slide 55
Standing Cont.
• In Sam (No. 2) v Attorney General, the Supreme Court affirmed
this earlier position holding that in cases of interpretation and
enforcement of the constitution, every citizen has standing to
commence the action. Bamford Addo JSC explained that:
• “The Law is that any person who goes to Court must have
standing before the court and the standing of persons entitled
to apply to the Supreme Court under its original interpretative
jurisdiction is provided in Article 2(1) and Article 130(1) of the
constitution. Under these any person who is citizen is entitled
to bring a suit to the Supreme Court if he alleges that an
enactment or anything contained in that enactment is
inconsistent with or in contravention of the constitution and to
obtain a declaration to that effect. If this allegation is
successfully proved the Supreme Court, would under Article
1(2) declare that particular enactment null and void”.
Slide 56
Standing Cont.
• In law, a person includes a body corporate. Thus,
it has been held by the Court that the power to
invoke the jurisdiction of the Court to enforce the
Constitution is equally vested in body corporates.
Thus, in NPP v Attorney General (CIBA Case), the
Supreme Court held that since the NPP was a
body corporate incorporated under the laws of
Ghana, it had capacity to commence the action.
Slide 57
Standing Cont.
• The definition of a person under article 2 has also
been extended to include unincorporated body of
persons. Thus, unincorporated body of persons.
Thus, a body of persons even if not incorporated
as a body corporate may still invoke the
jurisdiction of the Court to enforce the
Constitution. Thus, in FEDYAG v Public
Universities of Ghana, the Supreme Court held that
although FEDYAG was not a body corporate, as an
unincorporated body of persons, they still had
capacity to commence the action.
Slide 58
UGBS 302
Constitutional Law
Session 1 – Constitutional Law
Lecturer: Dr. Peter Atupare, School of Law, UG

Contact Information: paatupare@ug.edu.gh
College of Education
School of Continuing and Distance Education
2014/2015 – 2016/2017
SESSION 5: CONSTITUTIONALISM
• According to Wheare, constitutionalism or
constitutional government means more than
government according to the terms of a
Constitution. It is possible to have a government
according to the terms of a constitution where
the Constitution establishes the government and
leave them to act according to their whims and
caprices. Under such circumstances, we cannot
be talking of constitutionalism.
Slide 2
What is Constitutionalism?
• According to Wheare, constitutionalism is “government
according to rule as opposed to arbitrary government; it
means government limited in the terms of a constitution,
not government limited only by the desires and capacities
of those who exercise power.”
• Kumado, also defines it as the art of providing a system of
effective restraints on the exercise of governmental power.
• This is so because the original idea behind a constitution
is limiting government and requiring those who govern to
conform to rules and laws. In some cases, these
limitations may be supplied by conventions and usages.
What is essential is that rulers are subject to a body of
rules and principles that limit the exercise of their power.
Slide 3
• Thus, although constitution forms an integral part of
constitutionalism, the presence of a constitution alone is
not proof of constitutionalism. There must be in addition
to this a set of activities operated on behalf of the people
and subject to restraints which attempts to ensure that
the power of government is not abused.
• In like manner, constitutionalism is not synonymous with
democracy. As Carl Friedrich notes, constitutionalism can
be monarchical or democratic and it has indeed been both.
A society may practice democracy but without the
requisite limitations so as to be termed constitutionalism.
In some countries, elections are always organised and yet
only one person always win overwhelmingly through some
other means. Such countries may be practising
democracy but not necessarily constitutionalism.
Slide 4
• The 1st Republican Constitution of Ghana, may be an
example of this. While elections were organised
throughout the country to elect a President and
Members of Parliament, several issues militated against
constitutionalism; among them
• • PDA (unenforceable human rights provisions). See the
case of Re Akoto & 7 Others where the Court held that
the Preventive Detention Act under which the appellants
are detained vests plenary discretion in the Governor-
General, (now the President), if satisfied that such order
is necessary. The court could not therefore enquire into
the truth of the facts set forth in the grounds on which
each appellant has been detained
• • One party state by the amendment made in 1964
• • Executive control of the judiciary
Slide 5
• True constitutionalism therefore involves the art of providing
effective restraint on the exercise of governmental powers. It is a
system in which sovereignty resides in the people. See Article
1(1). Thus, in Shalabi v Attorney General, the Court recognised
that even military regimes would have to bind themselves by
these principles. The Court explained as follows:
• “Even though they were military men, the National Liberation
Council did not rule by martial law; they did not set up military
tribunals to execute the laws of the land as was done in Pakistan
in 1958 under Ayub Khan. They did not even set up a military
regime side by side with the civilian authority such as was done
in Ireland during the disorders in the year 1919 to 1921. They
dismissed the then President from office and also from office as
the Commander-in-Chief; they dismissed all his Ministers; they
dissolved the National Assembly and the Convention People's
Party. The only direct amendment made in the 1960 Constitution
was to abolish the Presidential Commission otherwise that
constitution was merely suspended”.
Slide 6
• Constitutionalism does not also depend on whether
a government is federal or unitary. Both federal and
unitary governments may practice constitutionalism
if there are effective restrains to ensure that
government carried out according to pre-determined
rules which also restrain governmental activity.
Constitutionalism dates back to the time of Plato in
such of justice. It was understood simply at the time
to mean limiting government. And so those who
govern exercise their powers on behalf of the people.
The liberty and interest of the people is thus
supreme. There must therefore be limitations on the
exercise of the powers of government.
Slide 7
Limitations: Institutional
• Institutional limitations – limitations placed on
institutions in the exercise of the powers conferred
on them. E.g. Article 78 which places some
limitations on the power of the President to appoint
Ministers. The provision requires that the majority of
them be appointed from Parliament and the
appointment must be made with the prior approval
of Parliament.
• See J.H. Mensah v Attorney General where the
Supreme Court held that the President is bound to
seek the prior approval of Parliament even if the
persons being appointed have been Ministers before
and thus any appointment made without
parliamentary approval is void.
Slide 8
Procedural limitation
• Procedural limitations – limitations imposed by the
procedure for exercising powers. E.g. article 106 and
article 11(7) of the Constitution specify the procedure to
be followed in passing legislation. Thus, although
Parliament is vested with the legislative power to make
laws, it must comply with the procedural rules
established under article 106. Any law passed without
following the procedure in article 106 will be void. See
cases like Okane v Electoral Commission and Attorney
General; and Opremreh v Electoral Commission and
Attorney General. In both cases the Supreme Court held
that there are procedural limitations on parliament’s
legislative powers and accordingly parliament cannot
amend subsidiary legislation laid before it.
Slide 9
Substantive Limitation
• Substantive limitations – substantive limitations
prohibiting government from exercising certain
powers. E.g. article 3(1) prohibits Parliament
from making a law to establish a one-party state.
Thus, although parliament has legislative powers,
there are certain laws it cannot pass at all.
Slide 10
Elements of Constitutionalism
• Government according to the constitution – constitutionalism requires that
the powers of government must be exercised within the limits of the
Constitution. There should be no extra-constitutional government and no
person should exercise powers beyond the powers conferred by the
constitution. In Professor Stephen Kwaku Asare v Attorney Geenral (2015),
Dotse JSC explained that:
• “the principle of constitutionalism… simply connotes the fact that the said
powers of government are to be “exercised in the manner and within the
limits laid down in this Constitution.” Briefly stated, it means that, any of the
arms of government and institutions of state created by and under the
authority of the Constitution 1992 are limited in the powers that it has and
that, the said institutions of state can only exercise those powers that have
substantively and procedurally been granted them. The Constitution 1992
does not give absolute power to any of the arms of government or of the
many institutions of state created therein. The people have been recognized
as the source of all power, which they exercise through a representative
government which in turn exercises those powers within constitutional
limits, on their behalf, be it by the President, the legislature through their
elected representatives in Parliament and by the Judiciary on behalf of the
people”.
Slide 11
• Separation of powers – essential to limitation of
governmental powers is the concept of
separation of powers. This is essential to prevent
tyranny and abuse of power. As Lord Acton said
long ago, power corrupts and absolute power
corrupts absolutely. See case like Tuffour v
Attorney General where the court held that the
Courts have no power to interfere in the internal
affairs of Parliament.
Slide 12
• Popular sovereignty and democratic government
– sovereignty must reside in the people.
Expressed through universal adult suffrage,
freedom of speech, assembly, among others.
Article 1(1) of the Constitution states that
sovereignty resides in the people of Ghana. In
Ransford France v Attorney General, Atuguba JSC
explained that:
• “This provision means that all arms of government,
the Judiciary inclusive, must exercise their powers
solely with the view to achieving the welfare of the
sovereign people of Ghana with regard to any
matter”.
Slide 13
• Judicial review – The very idea of limitations of governmental powers requires that there
must be a body responsible for checking that the various institutions of government
operate within their limits and do not exceed the powers conferred on them by the
Constitution. The power of judicial review is therefore a necessary power for the courts to
check executive and legislative powers. Thus, in Amidu v Presient Kufour, the Supreme
Court held that no institution established by the constitution or any other law is beyond
the judicial review powers of the Supreme Court. The Court explained as follows:
• There is no doubt that the 1992 Constitution prescribes a government consisting of three
branches: the legislative, executive, and the judicial. Each playing a distinct role. Apart from
these three branches of government, the Constitution also establishes a number of offices,
bodies and institutions. Now each of these branches of government, offices, bodies and
institutions is, of course, subject to the Constitution, and is therefore required to operate
within the powers and limits conferred on it by the Constitution. And in order to maintain
the Supremacy of the Constitution and to ensure that every individual organ of state, body
or institution operates within the provisions of the Constitution, authority is given in article
2 thereof, to any person who alleges that the conduct or omission of anybody or institution
is in violation of a provision of the Constitution to seek a declaration to that effect in the
Supreme Court….
• It follows therefore that no individual nor creature of the Constitution is exempted from the
enforcement provision of article 2 thereof. No one is above the law. And no action of any
individual or institution under the Constitution is immuned from judicial scrutiny if the
constitutionally of such an action is challenged.
Slide 14
• Independent judiciary – the Judiciary should be independent
and from any interference from the executive so as to allow
free hand to execute its mandate. Article 127 of the
Constitution guarantees the independence of the Judiciary.
• Individual rights – adequate provision for human rights and
access to the courts for breaches. Civil liberties are the very
essence of constitutionalism. There must therefore be
adequate provisions for human rights and this must meet
international standards. In addition to this there must be a right
to access the court to vindicate infringement on the rights.
Thus, Chapter 5 of the Constitution guarantees fundamental
human rights and the right to access the court for violation of
these rights. See cases like Martin Kpebu v Attorney General
on the right to liberty and presumption of innocence and NPP v
IGP on freedom of assembly
Slide 15
Forces that work against
Constitutionalism
• 1. War – wars usually create situations where
governments assume unlimited powers
• 2. State of emergency in cases of famine,
drought, disaster. But note this; Article 3(10) –
nothing done under authority of parliament in a
state of emergency shall be held to be
inconsistent with the Constitution
• 3. Absolutism – government of absolute power
– including totalitarianism and dictatorship.
Their powers are essentially unlimited.
Slide 16
SESSION 6: THE CONCEPT OF RULE
OF LAW
• Rule of law deals with governance according to law as
opposed to arbitrariness. It deals with the core values
underpinning a constitution; the recognition of each individual
of his role in ensuring the rules in the society work.
• Every society is governed by rules. But not every society lives
under rule of law. Rule of law is not just about the presence of
the rules in the society. Likewise, the fact that the process of
law making being duly followed is not a justification of rule of
law. There must be some fundamentals presence in the
society for there to exist rule of law.
• Rule of law is about the institutions, processes, roles, which
allow all persons to live in security, peace and dignity. It
subjects every person under the authority of the law so that no
person has power to act arbitrarily or capriciously according to
their whims.
Slide 17
THE CONCEPT OF RULE OF LAW
• There is no single definition of the concept of rule of law. However, Professor
Walker in his book The Rule of Law: Foundations of Constitutional
Democracy, posits that most of the content of democracy can be summed
up in two points.
A. That the people and the government should be ruled by law and obey it;
and
B. The law should be such that people will be able and willing to be guided by
it.
• Professor Friedmann, in his book The State and the Rule of Law in a Mixed
Economy, conceives of the rule of law as consisting primarily of standards
formulated by the state to ensure a just and fair balance between public and
private economic activities in the mixed economy and also to provide
redress to private groups and citizens against arbitrary administrative
decisions affecting their legitimate economic interests. Administrative
justice thus is the heart of Friedmann's concept of the rule of law in this book.
The rule of law for him connotes the exertion of some control over the power
of the state when the state, in its various ways, intervenes in the economy.
Slide 18
THE CONCEPT OF RULE OF LAW
• The Rule of Law, in its most basic form, is the principle
that no one is above the law. The principle is intended to
be a safeguard against arbitrary governance, whether by
a totalitarian leader or by mob rule. Thus, the rule of law
is hostile both to dictatorship and to anarchy.
• Inherent in the notion of rule of law is transparency. Rule
of Law cannot exist without a transparent legal system,
the main components of which are a clear set of laws
that are freely and easily accessible to all, strong
enforcement structures, and an independent judiciary to
protect citizens against the arbitrary use of power by the
state, individuals or any other organization.
Slide 19
A. V. Dicey and the Rule of Law
• Modern usage of the terms is credited to A.V. Dicey. He
studied the British constitution and came up with 3 basic
ideas that must underpin a rule of law.
1. No one should be punished without breaching an
existing law in a trial before Court. This concept has
been enshrined in Article 19(11) and 19(5)). Article
19(11) provides as follows:
• “No person shall be convicted of a criminal offence
unless the offence is defined and penalty for it is
prescribed in a written law.”
• Article 19(5) of the other hand states that:
• “A person shall not be charged with or held to be guilty of
an offence which is founded on an act or omission that
did not, at the time it took place constitute an offence”.
Slide 20
• The cumulative effect of the two provisions is that before one
can be charged with an offence, the offence must be written
and the penalty prescribed for it and that the act or omission
constituting the offence should have been done after the law
has been written. The written law must also define in clear
terms what act or omission constitutes the offence so that
people may be informed and organize their lives accordingly.
• See Tsatsu Tsikata v Republic where the court held that the
definition does not mean every single word in the offence
must be defined. It is enough if a reasonable man knows
exactly what is required of him and where the words are not
clearly defined, dictionary meaning may suffice. The Court
again affirmed that the act constituting the offence must have
been done after the written law had come into force.
Slide 21
2. Equality before the law. No one should be above the law
• Inherent in the concept of rule of law is the fact all persons
must be equal before the law. Article 17 of the Constitution
guarantees equality before the law. All persons must therefore
be entitled to equal treatment under the law. As the Supreme
Court explained in In Abdul Rahman Giwa v Baba Ladi (Civil
Appeal No. J4/36/2013, Supreme Court, dated 29th July 2013),
the Court speaking through Benin JSC held that “Any decision
that is given based on inequality between persons for
whatever reason will not be allowed to stand.”
• Certain forms of “discrimination” are however permissible in
law, but same must be justified to be lawful. As Date-Bah JSC
explains in Asare v Attorney General [2012] 1 GLR 460, “The
determinative issue is whether the differentiation in their
rights is constitutionally justifiable by reference to the object
that is sought to be served.”
Slide 22
3. Rights should be protected by the regular courts.
Where there are rights but there is no opportunity
to enforce them against breaches, then the rights
become an illusion. See the case of Re Akoto & 7
Others. Thus, article 33 provides effective means
of enforcing the rights enshrined in the
Constitution.
Slide 23
Conditions for the Principles of Rule
of Law
• In 1958, about 185 judges, lawyers and law professors from
about 53 countries met in New Delhi to discuss the principles
of rule of law. The conference dubbed International
Commission of Jurists brought up the Declaration of New
Delhi which specifies the conditions that must be present all
societies practising rule of law. 1. The right of the people to a
responsible and representative government.
• A responsible government refers to a government which is
accountable to the people. Such a government does not act
arbitrary, but minded of his accountability to the people
executes the mandate of the people. Closely related to this is a
representative government which is a government chosen by
the people themselves in exercise of their sovereign right. A
responsible and representative government ensures that if the
government does not carry out the mandate of the people, the
people have a right to change him as they wish
Slide 24
of Law
• Right to a remedy.
• For every breach of a right or the law, there must be a
remedy available to the party who suffers that breach.
Article 33 of the Constitution provides an effective
means of remedying breaches of the fundamental
human rights.
• Fair and public trial
• For every trial, there must be a fair and public hearing of
the trial. The requirement of the trial to be public is to
ensure that justice is done and all persons see that
justice has been done. However, under certain
circumstances especially for public morality, the
protection of children and the vulnerable and matters of
state security, private trials may be permitted. See article
19(14) and 19(15)
Slide 25
of Law
• Respect for the rights and freedoms of others. Every person
has a right. However, the rights of every person is subject to
the rights of others. Thus, while enjoying ones right, it is
imperative to respect the rights of other people. See article
12(2)
• Independent and impartial judiciary
• An independent judiciary is necessary to keep in checks
obedience to the law. See article 125 and 127
• Control of the executive by the judiciary
• The judiciary must be able to control the executive to prevent
abuse of power
Active media
• An active media is necessary to be a check on all state
institutions by critiquing their work. See chapter 12 and
especially article 162 of the Constitution
Slide 26
of Law
• Other principles of rule of law
• 1. Sovereignty of law over man
• 2. Protection of fundamental human rights
• 3. certainty and predictability of law
• Prohibition of retroactive application of law
• 4. State must be bound by law
Slide 27
SESSION 7: THE CONCEPT OF
SEPARATION OF POWERS
The concept of Separation of Powers connotes the
distribution of powers between the various arms of
government with different powers and functions. It is
generally accepted that there are basically three
arms of government:
• The Legislature – to legislate and make laws for
the nation
• The Executive to execute and implement the laws
passed by the Legislature; and
• The Judiciary – to interpret and adjudicate by
applying the laws passed by Parliament.
Slide 28
THE CONCEPT OF SEPARATION OF
POWERS
• Thus in Youngstown Sheet & Tube Co. v Sawyer,
the US Supreme Court held that he President has
no power to undertake a function which has been
expressly reserved for the legislature. The
explained that:
• “we cannot with faithfulness to our constitutional
system hold that the Commander in Chief of the
Armed Forces has the ultimate power as such to
take possession of private property in order to
keep labor disputes from stopping production.
This is a job for the Nation's lawmakers, not for its
military authorities”.
Slide 29
POWERS
• As John Locke notes, it will be dangerous for those who have
power to make laws to also have power to execute them. Thus,
there must at least be a differentiation between those who make
the laws and those who execute them. The concept however
sometimes invokes more than what is generally termed
separation of the functions of the various arms of government.
• Conceptually, separation of powers may involve differentiating
the various bodies or arms of government and assigning
different functions. In other words, where the Constitution or the
laws recognize different arms of government with different
powers and functions, we may say that is separation of powers.
• Separation of powers may also involve separation or
differentiation of the office and office holders of the various arms
of government. In other words, it involves different people
manning the different arms of government such that no one
person holds office in more than one arm of government.
Slide 30
POWERS
• The doctrine of the separation of powers finds its roots in the ancient
world, where the concepts of governmental functions, and the theories
of mixed and balanced government, were evolved. These were
essential elements in the development of the doctrine of the
separation of powers.
• Modern development of the concept is credited to John Locke and
Montesquieu. John Locke, basing his concept on the workings of the
British government and the functioning of British democracy was
emphatic that the people who make laws should not be the same
persons to execute the laws. By this, he advocated for separation of the
executive arm of government from the legislative arm of government.
• Montesquieu, having travelled around Europe, he decided to write down
his experiences about the various systems of government practised
around Europe. The book, The Spirit of the Laws, contained a detailed
analysis of his experience of the various government and on political
liberty. He does not specifically mention the three arms of government.
He however posited that legislative power and executive power should
not be placed in the hands of the same persons.
Slide 31
Separation of Powers under the
1992 Constitution
• Separation of powers is at the heart of the 1992 Constitution.
As Date-Bah explains in Amegatcher v Attorney General:
• “One of the fundamental principles of the 1992 Constitution is
that of separation of powers between the Executive, the
Legislature and the Judiciary. Although the separation is not
absolute, it is one of the cornerstones of the Constitution.
Another fundamental principle is that of checks and balances,
according to which certain bodies created by the Constitution
are given relative autonomy to enable them to maintain
oversight responsibility over other organs of State. It follows
that the Constitution should be so construed as to preserve
and not undermine these fundamental principles”.
• Thus, although article 88 provides that all civil actions against
the State shall be brought against the Attorney General, the
Court held that the principle of Separation of Powers makes it
possible for the various constitutional bodies and organs of
government to sue and be sued in their own right.
Slide 32
1992 Constitution
• There are several provisions in the Constitution which gives effect
and credence to the concept of separation of powers. The first
striking feature of this separation is to be found in the separate
chapters dedicated to the various arms of government. Thus, while
Chapter 8 deals with the Executive arm of government, Chapters 10
and 11 deals with the Legislature and the Judiciary respectively.
• The second striking feature is the separation of the functions of the
various arms of government. Article 58 specifically vests in the
President all executive authority to be exercised by him or his
subordinates in accordance with the Constitution. Legislative power
on the other hand has been vested in Parliament under article 93(2)
and final judicial power is vested in the Judiciary by the virtue of
article 125(3). Thus, the three arms of government have been given
separate and distinct functions under the Constitution. The Courts
have therefore consistently held that it is empowered to make
policy issues and thus will decline jurisdiction in any matter which
seeks to invite them to exercise the powers of the executive.
Slide 33
1992 Constitution
• In Centre for Public Interest Law v Attorney General the Court
held that it is within the executive power to enter into
international agreements and when this has validly been done
in accordance with the law, the Courts have no role to play
under such circumstances.
• Similarly, in John Ephraim Baiden v Attorney General the Court
held that it has no jurisdiction to issue policy directives. The
plaintiff had commenced an action in the Supreme Court
seeking orders of the Court to compel the Bank of Ghana to
conduct its affairs in a particular manner so as to stabilize the
cedi. The Court held that:
• “In assuming jurisdiction over this matter, we shall certainly
be entering into policy determination for which judicially
manageable standards are not available, even though we are
committed to uphold the Constitution and to defend and
protect economic rights of the people among other
fundamental human rights and freedoms”.
Slide 34
1992 Constitution
• The Courts have also stressed that legislative power has been
reserved for Parliament and although other persons may
participate in this, the core legislation function must be
performed by Parliament. As was explained by the Chief
Justice in the case of Asare v Attorney General (2015):
• “the 1992 Constitution vests the legislative power of
government in Parliament. Thus, in conformity with the well-
known doctrine of separation of powers, among the three
separate and yet inter-dependent organs of State, Parliament
is the repository of legislative authority. This means that the
core legislative function, namely, the actual implementation of
the mechanics, namely, the processes and procedures for
carrying through, and effectuating and bringing into being
legislation, including constitutional amendments, as
envisaged under Chapter 25, is vested in Parliament”.
Slide 35
1992 Constitution
• Another reflection of separation of powers in the
Constitution is the question of checks and balances.
The Constitution through various means ensures
that the different arms of government serves as a
check on each other. For example, under article 59,
the President cannot travel outside Ghana without
first notifying the President. Article 67 also requires
the President to present presidential messages
Parliament. Any international agreement signed by
the President is to be ratified by Parliament before it
becomes valid (article 75) and any loan or any
international business agreement to which the
government is a party requires the approval of
Parliament.
Slide 36
1992 Constitution
• Other checks on the executive include subjecting the president’s
power of appointment to parliamentary approval. Thus, in J.H.
Mensah v Attorney General, the Court held that any such
appointment which does not receive parliamentary approval is
void.
• The judiciary also checks the executive through its powers of
judicial review by declaring acts done by the executive which are
ultra vires void. See cases like NPP v Attorney General (31st
December); NPP v IGP; Amartey v Elecoral Commission and
Attorney General; Clement Apaak v Electoral Commission and
Attorney General
• The Legislature is also checked by the Court through its power of
judicial review by striking down legislation that has been made
by Parliament in contravention of the Constitution. See for
example the case of Adjei-Ampofo v President of the National
House of Chiefs where the Supreme Court struck down a law
which made failure to attend to a chief’s call criminal.
Slide 37
1992 Constitution
• The Executive’s check on the legislature could be seen in
article 98 which gives the power to determine the emoluments
of the members of Parliament to the Executive and article 108
which reserves the privilege to present certain Bills only to the
Executive.
• The Judiciary are checked basically by their appointments
which is usually done by the President and sometimes with the
approval of Parliament. See article 144 of the Constitution. In
the performance of this function, the President is not bound by
the advice of any person or body of persons although in some
cases, he must seek such advice. See the case of Ghana Bar
Association v Attorney General. In addition, the executive
determines the salaries and allowances payable to the judges
acting upon the recommendation of a committee established
by him in Emmanuel Noble Kor v Attorney General (2016), the
Court held that the president is not bound by the
recommendations of the Committee.
Slide 38
1992 Constitution
• Separation of powers under the 1992 constitution also involves
some overlap of persons. In other words, persons holding offices
in one arm of government are not precluded from performing
functions in the other arms of government. Under article 78 for
example, majority of Minister who are members of the executive
are to be appointed from among members of Parliament. Again,
article 60(8) creates a situation where the Speaker of Parliament
who is the head of the Legislature also assumes power as the
head of the executive. In Agyei-Twum v Attorney General, the
Supreme Court held that this does not violate the principles of
separation of powers deeply enshrined in the constitution. See
also Samuel Atta Mensah v Attorney General where the Court
held that the Speaker is bound to subscribe the Presidential oath
any time he performs the functions of the President. Also article
111 allows the Vice-President and any Minister or Deputy
Minister to participate in the proceedings of Parliament although
they have no vote.
Slide 39
SESSION 8: NATURAL JUSTICE
• Natural justice deals with the fundamental rules
of justice developed by the Courts to safeguard
the rights of individuals and ensure that
substantial justice is done. The principles of
natural justice are termed natural because they
are deemed to be inherent in nature. Thus,
everyone is entitled to be accorded justice. The
rule encompasses two basic principles.
• 1. Nemo iudex in causa sua (no one should be a
judge in his own cause)
• 2. Audi alteram partem (listen to the other side)
Slide 40
Nemo iudex in causa sua
• This rule of natural justice requires that a person shall not
be a judge in his own cause. Thus, where one has a
proprietary or financial interest or a relation interest in the
subject matter or a party, the person shall not be involved
in the decision making process. This rule also applies to
Courts, quasi-judicial bodies and administrative bodies.
• For proprietary interest see Dimes v Proprietors of Grand
Junction Canal where the Lord Chancellor who had shares
in the defendant company sat on an appeal involving the
company. It was held that although he might not have
been biased, the decision will be set aside since he had a
proprietary interest in one of the parties to the case.
Slide 41
• For financial interest see R v Sussex Justices; ex
parte McCarthy where the clerk of one of the
judges belonged to a firm of solicitors who were
prosecuting a civil claim in respect of the same
case which the defendant stood trial. The clerk
retired with the justices and the defendant was
found guilty. The Court held that as the clerk who
had a financial interest in the matter had gone
inside with the judges, the decision will be set
aside. This was so even though the clerk did not
actually take part in the decision making and was
not consulted by the judge in reaching a decision.
Slide 42
Nemo iudex in causa
• The rule also applies where the decision maker is
related to one of the parties to the case. See the
cases of Republic v High Court, Denu; ex parte
Agbesi Awusu (No. 1) where the High Court judge
had held meetings with one of the factions to the
dispute in respect of the same matter. The
principle also applies where a person has made a
predetermination of the issue or where the person
has made up his mind before hearing the parties.
This may be manifested in comments, gestures or
attitudes of the decision maker.
Slide 43
• The principle also applies where the judge has foreknowledge
of the facts in issue. Foreknowledge of facts – foreknowledge
of facts will disqualify a judge from sitting since the judge
ought to be impartial and deal with the facts presented before
him. See Republic v High Court, Denu; ex parte Agbesi Awusu
(No. 1) – “where the trial judge has foreknowledge of the
issues of fact to be determined that would disqualify him from
sitting.” Foreknowledge of law – foreknowledge of law does
not amount to a breach of this rule of natural justice. Indeed, a
judge is deemed to know the law. See Kwami v Quaynor –
where the plaintiff alleged that Ollennu while at the Bar had
dealt with some cases involving Osu Alata lands and thus
should not be allowed to sit. It was held that foreknowledge of
law does not preclude a judge from sitting.
Slide 44
• The test applicable in Ghana in establishing that a
person has an interest in a case is the test of “Real
likelihood of bias.” There must be a real likelihood (as
opposed to a suspicion) that the decision-maker will
be biased. Thus, in Attorney General v Sallah, the Court
held that mere suspicion of bias is not enough to
disqualify a judge from sitting on a case. See also
Republic v High Court, Denu; ex parte Agbesi Awusu
(No. 1) and (No. 2). It is a question of fact whether
there is a real likelihood of bias and this must be
satisfactorily established by evidence - Mere suspicion,
no matter how reasonable it may be will not suffice -
Republic v Constitutional Committee Chairman; ex
parte Barimah .The fact that the judge knows a party
is not enough – AG v Sallah; Quist v Kwantreng
Slide 45
• The fact that the judge has tried to settle the
matter between the parties is also not enough to
establish a real likelihood of bias or to preclude a
judge from hearing the matter if it comes before
him. Quist v Kwantreng – Ollennu had tried to
settle the matter between the parties out of
court but it failed. Subsequently a writ was
issued and the case came before him - held that
the fact that he has tried settlement does not
amount to bias.
Slide 46
Audi Alteram Partem
• Where a decision affects the right, interest or
legitimate expectation of a person, that person
must be given a hearing before any decision is
taken. This rule of natural justice therefore
requires that no person is to be condemned
unless he has been heard in his defence. The
rule applies to Judicial bodies; Quasi-judicial
bodies e.g. Commissions of Inquiry – and
Administrative bodies.
Slide 47
Audi Alteram Partem
• The right to be heard includes
• a. The right to be given reasonable notice of the
case. This includes giving enough information about
the case and enough time to prepare. See Republic v
Ghana Railway Corporation; Ex parte Appiah [1981]
GLR 752 where the Court explained that: The core
idea implicit in the natural justice principle of audi
alteram partem was simply that a party ought to
have reasonable notice of the case he has to meet
and ought to be given the opportunity to make his
statement in explanation of any question and answer
any arguments put forward against it.
Slide 48
Audi Alteram Partem
• a. The right to make representation: the parties
must be given adequate notice of the place, date
and time for the hearing or any manner by which
representations may be made. See Republic v
Ghana Railway Corporation; Ex parte Appiah [1981]
GLR 752
• b. The right to legal representation: the right to a
lawyer of your choice not a right to a particular
lawyer.
• c. Adequate time and opportunity to defend
• d. The right to cross-examine witnesses
Slide 49
Exceptions to the Rules
• 1.Statutory duty – where a statute imposes a duty on someone,
he must perform same even if it will amount to a breach of the
rules of natural justice. In Akufo-Addo v Quarshie Idun, the
Court explained that
• “In our judgment, where a statute clearly enjoins a person to
perform an act, he has to do it even if its performance is
incompatible with the strict rules of natural justice. Reliance
was placed by counsel on the seventeenth century English
case of Day v. Savage (1614) Hob. 85 at p. 87 in which
appears a pronouncement by Hobart C.J. that where a statute
conflicts with the principles of natural justice, the latter is to
prevail. But that was an opinion of doubtful validity even at
the time of its utterance, and no English court has cared to
follow it since. We are of the opinion that where the clear
terms of a statute conflict with natural justice it is the latter
which has to yield.”
Slide 50
• Acquiescence – a person who perceives bias or a
threatened breach of the rules of natural justice must act
timeously to prevent the breach. If the person does not
and wait for the proceedings to continue knowing of the
breach, he would be deemed to have acquiesced to the
proceedings and thus waived his right.
• Necessity – where it is necessary that an action be done

and there is no other means of doing the act, then a
person empowered to act may still act even if it amounts
to a breach of the rules of natural justice. See Marbury v
Madison – where Chief Justice Marshall had to sit to
form a quorum although he had been deeply involved in
the matters leading to the litigation.
Slide 51
• Where a person makes it impossible to be heard. A person
who makes it impossible for him to be given a hearing cannot
complain of not being heard. In Bonsu @ Benjilo v Republic,
the appellants absconded after trial had begun and they were
tried in absentia. They raised the issue of natural justice on
appeal. The Court held that there was no breach of the rules of
natural justice since they themselves choose to abscond
instead of defend themselves. Also, in Musama Disco Christo
Church v Prophet Miritaiah Jona Jehu-Appiah, the appellant
was invited by an investigative committee to respond to
allegations of rape but he declined and insisted he will pray and
fast. The committee found the allegations established against
him and proceeded to remove him as the head of the church.
He alleged that he was not given a hearing. The Court held that
there was no breach of the rules of natural justice as he
himself had declined an invitation to be heard.
Slide 52
SESSION 9: CONSTITUTIONAL
AMENDMENT
• Like all laws, constitutions may be subject to
amendment at various times to reflect the needs
and aspirations of the people. Thus, where a
constitutional provision has outlived its
usefulness or no longer in tune with the needs of
the people, such provision may be amended by the
people. The mode of amendment differs from
society to society and it is one of the means of
classifying a constitution as rigid or flexible. In
Ghana, Chapter 25 deals with amendment of the
Constitution.
Slide 53
CONSTITUTIONAL AMENDMENT
• Under article 289, the Constitution may be
amended by an Act of Parliament. However, this
is a special Act of Parliament. It requires that,
the sole purpose of this Act be the amendment
of the Constitution and must comply with the
other provisions of Chapter 25. In other words,
although article 106 generally provides for the
means of making legislation by Parliament, in
respect of amendment of the Constitution,
special procedures are to be followed.
Slide 54
• The establishment of the Constitutional Review Commission and the
Constitutional Implementation Commission was met with some challenges
as to who is the proper person to set in motion the amended procedure. In
Professor Stephen Kwaku Asare v Attorney General, the plaintiff challenged
the power of the President to use a Commission of Inquiry to set in motion a
constitutional amendment. The Court held that while the actual amendment
lies solely in the province of Parliament, any person including the executive
may set in motion the amendment procedure. As Wood CJ explains:
• “Amending a constitution is not an event, but a whole process, which may
include, information gathering, discussions among various interest and
stakeholder groups, public engagement, coalition and consensus building,
legitimate grassroots or direct lobbying, and advocacy efforts, formulating
draft amendment bills etc. These are included in activities that I would for
the sake of brevity describe as the pre- amendment or pre-legislative
activities, or to some extent, frontend activities going by the Plaintiff’s
labeling of such core pre-legislative amendment function…. I hold the view
that reposing pre-legislative amendment activity in Parliament alone, to the
total exclusion of any other person, or group of persons or organisation is,
employing the implied doctrine theory or the predicate-act canon, cannot be
justified in the circumstances of this case.”
Slide 55
• Thus while the pre-amendment or pre-legislative
stage may be commenced by any organ of
government, the legislative part is the sole
province of Parliament. There are two ways of
amending the provisions of the constitution
depending on whether the provision is an
entrenched provision or a non-entrenched
provision.
Slide 56
Amendment of Entrenched
Provisions of the Constitution
• The entrenched provisions of the Constitution are those provisions
of the constitution which are at the core of the very essence of the
Constitution. They are so fundamental that any change in those
provisions goes to the heart of the constitutional rule. Article 290(1)
lists the provisions of the Constitution which are entrenched. They
are:
• (a) The Constitution: articles 1, 2 and 3;
• (b) The Territories of Ghana: articles 4 and 5;
• (c) The Laws of Ghana: article 11;
• (d) Fundamental Human Rights and Freedoms: Chapter 5;
• (e) Representation of the People: articles 42, 43, 46, 49, 55, and 56;
• (f) The Executive: Chapter 8;
• (g) The Legislature: articles 93 and 106;
• (h) The Judiciary: articles 125, 127, 129, 145 and 146;
• (i) Freedom and Independence of the Media: article 162, clauses (1)
to (5);
Slide 57
• (j) Finance: articles 174 and 187;
• (k) Police Service: article 200;
• (l) The Armed Forces of Ghana: article 210;
• (m) Commission on Human Rights and Administrative
Justice: articles 216 and 225;
• (n) National Commission for Civic Education: article 231;
• (o) Decentralization and Local Government; articles 240
and 252;
• (p) Chieftaincy: article 270;
• (q) Code of Conduct for Public Officers: article 286;
• (r) Amendment of the Constitution: Chapter 25; and
• (s) Miscellaneous: articles 293 and 299
Slide 58
• The amendment of any of these provisions follow a special procedure outlined
as follows:
• a. The Bill for the amendment of the Constitution is prepared and laid before
Parliament.
• b. The Speaker refers the Bill to the Council of State for its advice
• c. The Council of State delivers its advice within 30 days
• d. The Bill is then published in the Gazette
• e. Six months after the publication in the Gazette, the Bill is introduced into
Parliament.
• f. The Bill is read for the first time and then referred to a referendum
• g. At the referendum, at least 40% of the registered voters must vote and at
least 75% of the persons who voted must have voted in favour of the
amendment.
• h. If the amendment is approved at the referendum, Parliament shall then
proceed to pass the Act amending the Constitution.
• i. The Speaker sends the Bill to the President accompanied by a certificate of
the Electoral Commission stating that the Bill was approved at a referendum.
• j. The President shall then assent to the Act after it has been passed.
Slide 59
Amendment of the Non-Entrenched
• The non-entrenched provisions of the
Constitution are those provisions of the
constitution that are not so fundamental or that
do not affect the very structure and legal order
created by the Constitution. All the provisions of
the constitution apart from those listed above
are non-entrenched. The procedure for amending
non-entrenched provision is simpler as it does
not require any referendum.
Slide 60
Amendment of the Non-Entrenched
The procedure may be summed as follows:
• a. The Bill to amend the non-entrenched provision is published in the
Gazette
• b. The Bill is published a second time after three months of the first
publication.
• c. Ten days after the second publication, the Bill is introduced into
Parliament.
• d. Parliament takes the first reading of the Bill
• e. The Speaker then refers it to the Council of State for its advice
• f. The Council of State renders its advice within 30 days.
• g. Parliament then proceeds to pass the Bill
• h. At least 2/3rd of the Members of Parliament must vote in favour of the
amendment.
• i. The Speaker sends the Bill to the President with a certificate that the Bill
has been passed in accordance with the provisions of the Constitution.
• j. The President then assents to the Bill after it has been passed.
Slide 61

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PAHS 307

Session 1 – Constitutional Law

Lecturer: Dr. Peter Atupare, School of Law, UG

• Legislature: Powers were vested in the chief, elders, and

• Judiciary: Chief, elders with family heads serving as lawyers.

• Judiciary: Final judicial appeal authority vested

• The Executive: Executive power was initially vested in the

• Judiciary: The Supreme Court was abolished and

• Executive: PNDCL – S. 3(4) of Establishment Proclamation – Council

• Writings of Jurists and Publicists: Authoritative

Session 1 – Constitutional Law

Lecturer: Dr. Peter Atupare, School of Law, UG

• Necessity – where it is necessary that an action be done

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