J H Mensah Vrs Attorney-General

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J H MENSAH
vs.
ATTORNEY-GENERAL
[SUPREME COURT, ACCRA]
[1996-97] SCGLR 320
DATE: 28 MAY 1997
COUNSEL
HON NANA AKUFO-ADDO, MP WITH HIM AKOTO AMPAW FOR THE
PLAINTIFF
HON DR OBED ASAM(LAH, ATTORNEY-GENERAL WITH HIM HON MARTIN
MIDU DEPUTY ATTON,EY-GENERAL AND CS 4 AVAH CHIEF STATE ATTORNEY
FOR THE DEFENDANT
CORAM
AIKINS JSC, CHARLES HAYFRON-BENJAMIN JSC, AMPIAH JSC, ACQUAH JSC,
ANSOPHIA AKUFFO JSC
JUDGMENT
AIKINS JSC.
Lord Patrick Devlin in his renowned book titled The Judge, Oxford University Press, 197
9 wrote at page 4 thus:
"If a judge leaves the law and makes his own decision, even if in substance they are just,
he loses the protection of the law and sacrifices the appearance of impartiality which
is given by adherence to the law. He expresses himself personally to
the dissatisfied litigant and exposes himself to criticism. But if the stroke
is inflicted by law, it leaves no sense of individual injustice; the losing party is not a
victim who has been singled out; it is the

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same for everybody, he says. And how many a defeated litigant
has salved his wounds with the thoughts that the law is an ass."
It is with these words of wisdom operating on my mind that I have set off on
the journey of writing this opinion.
Introduction
On 7 February 1997, the plaintiff issued out a writ against the defendant claiming a
declaration that:
"(i) on a true and proper interpretation of the Constitution
particularly articles 57(3), 58(1) and (3), 66(1), 76(1) and (2), 78(1), 79(1), 80, 81, 97(1)(a),
100(1), 113(1) and (3) thereof, no person can after 6 January, 1997, act as Minis
ter or Deputy Minister of State, without the prior approval by the Second Parliament of
the Fourth Republic of his appointment.
(ii) accordingly, any person who has not been so approved and appointed cannot
lawfully act or hold himself out as a Minister or Deputy Minister of State."
A copy of the writ together with a copy of the accompanying affidavit was served on
the defendant, and a further copy was made available to the Speaker of Parliament.
Later the plaintiff officially laid a copy before
Parliament. Meanwhile, it had been announced that Mr Kwame Peprah, Minister of Fin
ance and Economic Planning
would appear before Parliament to present the 1997 Budget Statement on that very day t
he copy of the writ was laid before Parliament, ie 7 February
1997. With this information, the Leader of Parliament, Honourable JH Owusu-
Acheampong, announced to Parliament that in view of the pendency
of the action before
court, the purported appearance before the House of Mr Kwame Peprah,
to present the Budget Statement, or any other person describing himself

as a minister but whose appointment had not received the prior approval of the Second
Parliament of the Fourth Republic would be subjudice and would be deferred.
By virtue of Order 172(2) of the Standing Orders of Parliament,
it is the duty of the Appointments Committee of Parliament to recommend to
Parliament for approval or
otherwise persons nominated by the President for appointment as ministers and deputy
ministers. By his letter Ref OP/ S 807 dated IO February, the
President brought to the notice of the Speaker of Parliament that he had decided to retain
seven Ministers of State.
The Appointments Committee of Parliament met on 13 February 1997
to deliberate on the matter and decided that where an incumbent minister or deputy
minister is retained as a minister or deputy minister by the
President, it shall not be necessary for the minister or deputy minister to
be summoned to appear before the Appointments Committee for recommendations
to be made to Parliament for re-approval of the minister or deputy minister in view of
the previous parliamentary approval.

The following
day 14 February 1997, the Chairman of the Appointments Committee, Honourable Mr D
zirasah, who is also the First Deputy
Speaker of Parliament, introduced a motion in Parliament calling on Parliament to accept
the decision of the Appointments Committee mentioned above. There
upon Parliament resolved that if a person has been appointed a minister or
deputy minister with the approval of a previous Parliament, and as an incumbent

minister or deputy minister, he is retained by the President, it shall not be necessary for
Parliament, ie the current Parliament, to give another approval of such minister
or deputy minister. The said ministers were never made to appear
before Parliament for the necessary approval mechanisms to be followed. The Speaker o
f Parliament by his letter Ref
No 2033 dated 18 February 1997 addressed to the President in reply to his letter
aforementioned dated 10 February 1997, conveyed the resolution of Parliament
as follows:
"If a person has been appointed a minister or deputy minister
with the approval of Parliament and as an incumbent minister or deputy minister,
he is retained by the President, it shall not be necessary for Parliament to give another
approval of such minister or deputy minister. In accordance with this Resolution therefo
re the underlisted Ministers of State stand approved by Parliament:
1. Mr Richard Kwame Peprah - Minister of Finance
2. Mr J H Owusu-Acheampong - Minister of Parliamentary Affairs
3. Dr Eunice Brookman-Amissah - Minister of Health
4. Mr Cletus Avoka (MP) - Regional Minister, Upper East Region

5. Mr Edward Saliah - Minister of Transport & Communications
6. Mrs Vida A Yeboah (MP) - Minister of Tourism
7. Dr Kwabena Adjei (MP) - Minister of Lands and Forestry."
The same day, 18 February the plaintiff filed a motion for interim injunction to stop Mr
Kwame Peprah from reading the Budget the following day 19 February but in the
event that motion was never listed for hearing, and Mr Kwame Peprah had the
opportunity to read his Budget.
Amendment of the plaintiff's writ
On 4 March 1997, the plaintiff sought leave of the court to amend his writ and statement
of claim to insert as a new relief (ii) the following:
(ii) "a necessary incident of prior approval is the consideration and vetting of each
nominee for ministerial appointment by the Second Parliament of the Fourth
Republic."
And to insert a new paragraph 8 of the statement of the plaintiff's case the following:
"(8) The plaintiff says that a necessary incident of prior approval is the consideration
and
vetting of each nominee for ministerial appointment by the Second Parliament of the Fo
urth Republic, which had not been effected with regard to the ministers and deputy
ministers of State appointed by the President of the Fourth Republic."
The Attorney-General opposed this application, and said he found it a little odd that
this application should be made after the court had ordered that the parties
should file their submissions. Counsel for the plain tiff moved the court in terms of
the motion paper and supporting affidavit, and drew the court's attention to the fact
that the Attorney-General had responded to the amendment at paragraph 118 of his
written submissions. In reply the Attorney-General submitted that the application
would change the nature of this case, and for that reason the application should
be rejected.
We granted the application, but reserved our reasons to be embodied
in the main judgment. I now give my reasons for concurring in the decision of the court
to allow the amendment. This court has power to allow either party under rule 49 of
the Supreme Court Rules, 1996 (CI 16), to

amend its writ or statement of case at any time with leave of the court on
such terms as the court may determine. We were satisfied
that the application did not change the nature of the case, and that since the defendant h
ad in his statement of case responded to the amendment sought, we granted it, and
ordered that it should be taken as admitted and served on the defendant. We permitted
the defendant to file an amended statement of his case within one week if he so wished.
The plaintiff was further ordered to file his submissions within two weeks from that
date and that the defendant should be at liberty to respond within one
week of service of the plaintiff's submission on him.
, Issues that call for determination
The issues that call for determination in this case are:
(i) whether the term of office of ministers and

deputy ministers of State appointed by the First President of the Fourth Republic
ended on 6 January 1996;
(ii) whether prior approval of the Second Parliament of the Fourth Republic is
required before a minister or deputy minister appointed by the First President of
the Fourth Parliament can legally act or hold himself out as minister or deputy
minister of State;
(iii) whether a necessary incident of prior approval is the consideration and
vetting of each nominee for ministerial
appointment by the Second Parliament of the Fourth Republic;
(iv) whether the requirement of prior parliamentary approval extends to
all persons, whether new or retained as ministers or deputy ministers;
(v) whether prior approval is "a term of art;" and if so, what meaning can
be attached to it.
Argument that the plaintiff's action be struck out
The Attorney-General submitted that the plaintiff's action be struck out for
the following reasons:

(a) by the plaintiff's case there is no defendant before this court;
(b) no issue of interpretation has legitimately been raised;
(c) the action in certain respects seeks to involve the court in deciding questions
which are within the competence of other organs of government; and
(d) the questions raised for determination are moot.
Arguing the first leg of his objection the Attorney-General is of the

view that the plaintiff is in a quandary by suing him as a defendant, and submits that if
the Attorney-General is not a minister then there is no
defendant before the court and the action must be thrown out, but if he is a minister
then the defendant has no case. He contends that the plaintiff cannot claim
that the term of office of ministers ended on 6 January but single out the Attorney-
General as continuing in office for purposes of his writ. I
think that contention is, with respect, misconceived. Whether the Attorney-
General is a minister or not, he is properly before the court as a defendant because the
plaintiff is suing his office under clause 5 of article 88 of the Constitution which requires
that all civil proceedings against the State shall be instituted against the Attorney-
General.
I agree with Nana Akufo-Addo counsel for the plaintiff that it is not the individu.al
personality of the Attorney-General which is the object of proceedings against the
Attorney-General. He only acts as a nominal
representative of the State and Government. As a result where a judgment is
given against the Attorney-General, it is not against him personally but

against the State and the Government he represents. The argument of the Attorney-
General is therefore unimpressive and spineless.
The next point is the contention that no issue of interpretation has legitimately
been raised. The Attorney-General draws a distinction be-
tween this case and the case of Tuffour v Attorney-General [1980] GLR 637, SC and
argues that whereas the Tuffour Case was concerned with the interpretation of the
phrase "shall be deemed" in clause 8 of article 127 of the 1979 Constitution and the court
had recourse to its use in other
provisions of the Constitution to give it meaning, in the instant case, the
court is being asked to add to article 81 another basis for the determination of the
office of a minister by reference to the provisions relating to the terms of the President
and Parliament. I think the Attorney-General has missed the point
of the plaintiff's thinking. It seems to me the plaintiff is asking for a declaratory
relief that on a true and proper interpretation of the Constitution particularly article 81
and other articles of the Constitution mentioned by
him, no person can after 6 January 1997 act as Minister or
deputy minister of State without the prior approval by the Second Parliament of the
Fourth Republic of his appointment. Article 81 pro
vides for circumstances under which the office of a minister or a deputy
minister shall become vacant. The question
is whether there is a controversy between the parties. If there is, the court will have to fi
nd out whether a duty, right and liability can be established. I think there is a
controversy regarding the status of a minister or deputy minister of State as at 7 January
1997, the determination of which depends on interpretation. Once there is a
controversy, a justiciable issue, the court has jurisdiction to entertain the issue raised by
the plaintiff's writ, in which case, in my view, the plaintiff can be said to be properly
before the court: see the Tuffour Case (supra).
The third point relates to the action seeking to involve the
court in deciding questions which are within the competence of other organs of
Government, ie the political question doctrine. This matter will be dealt
with when I come to consider oneof the main issues in this case. The last point relates
to questions raised for determination which the Attorney General contends are moot.
Are the questions moot?
The learned Attorney-General's point is that the matter should be dis missed because
the questions raised for determination are moot since the President, out of caution,
is currently submitting the names of retained
ministers to Parliament, and that Parliament has evolved a procedure for
approval. The issue is said to be moot because of the uncertainty
clouding it. In other words, a case is moot "when the issues presented are no
longer "live" or the parties lack a legally cognizable interest in the out-
come: see the United States case of Powell v McCormack 395 US 486; L Ed 2d 491,
89 Set 1944 at 502 per Chief Justice Warren delivering the opinion of the court.
In that case the petitioners' complaint named the official responsible for the payment of
congressional salaries and asked for both mandamus and an injunction against
the official. Chief Justice Warren, giving his opinion about circumstances leading to
dismissal of a cause as moot, said at p 503 of the judgment of the court:
"... even if respondents are correct that the petitioners' averments as to injuncture relief
are not sufficiently definite, it does not follow that this litigation must be dismissed
as moot. Petitioner Powell has not been paid his salary by virtue of an allegedly
unconstitutional House resolution. That claim is still unresolved and hotly contested by
clearly adverse parties. Declaratory relief has been requested, a form of relief
not available when Alejandrina was decided. A court may grant declaratory relief even
though it chooses not to issue an injunction or mandamus ... A declaratory judgment
can then be used as a predicate to further relief, including an injunction."
Distinguishing the Alejandrina Case from the Powell Case, the Chief
Justice continued to say that Alejandrina stands only for the proposition that, where
one claim has become moot and the pleadings are insufficient to determine whether
the plaintiff is entitled t9 another remedy the action should be dismissed as moot,
but there was no suggestion
that petitioners' averments as to declaratory relief are insufficient and Powell's allegedly
unconstitutional deprivation of salary remained unresolved.
In my view, the issue in the instant case is still live, and
the fact that the President is submitting names of retained ministers to Parliament is of
no moment. I reject the Attorney-General's proposition that mootness of a
"primary" claim requires a conclusion that all "secondary" claims are moot. It confuses
mootness with whether Mensah has established the right to a declaration

that Parliament's action is unconstitutional, a question which it is inappropriate
to treat at this stage of litigation. It is still unresolved and is hotly contested, and there is
no suggestion that his averments as to declaratory relief are insufficient.
In the result, I on my part find it unreasonable to accede to the request of the Attorney-
General to strike out the plaintiff's action. I would reject it.
Term of tenure of office of a Minister
L
Learned counsel for the plaintiff, Nana Akufo-Addo submits that a presidential
nominee for ministerial appointment requires the prior approval
of Parliament before he can act or hold himself out as minister or deputy
minister of State, and relies on the provisions of articles 78(1) and 79(1)
of the Constitution. The Attorney-General, Dr Obed Asamoah does not
appear to dispute this as far as appointment of new ministers and deputy ministers of
state is concerned. He concedes that on first appointment, all ministers and deputy
ministers need parliamentary approval before assuming office in accordance with the
provisions of article 78(1) of
the Constitution, but contends that with regard to the tenure of office of ministers and de
puty ministers retained from a previous administration, they need no re-approval by
Parliament for them to continue in office. He submits that there is no law currently in
force in Ghana which calls for
vetting, and that the process by which Parliament exercises its sovereign
powers cannot be questioned by the courts. The contention of the Attorney-General is
that the term of office of minister or deputy minister of State is not limited, as
it is the case of the President who appointed him and that of Parliament which
approved his appointment; and
he buttresses his stance with article 81 which deals with how the office of a minister or h
is deputy becomes vacant, and contends that the term of office of minister ends only
with occurrence of one of the four conditions contained in that article, and that since
article 81 does not stipulate that a minister's term ends with the end of the term of
the President or Parliament, it is untenable to argue that the term of minister appointed
by the President during his first term ends with that term.
Article 78(1) stipulates as follows:
"78(1) Ministers of State shall be appointed by the President with the prior approval of
Parliament from among members of Parliament or persons qualified to be elected as
members of Parliament, except that the majority of
Ministers of State shall be appointed from among members of Parliament." (The
emphasis is mine.)
And article 79(1) reads:
"The President may, in consultation with a Minister of
State, and with the prior approval of Parliament, appoint one or more Deputy Ministers to
assist the Minister in the performance of his functions." (The emphasis is mine.)
r
Article 81 also states:
"The office of a Minister of State or a Deputy Minister of State shall become vacant if -
(a) his appointment is revoked by the President;
(b) he is elected as a Speaker or Deputy Speaker; or

(c) he resigns from his office; or
(d) he dies."
The wording of article 78(1) is clear. Since ministers are appointed by the President with
the prior approval of Parliament, it stands to reason that when both the President and
Parliament leave the scene, ie when their term of office ends, the minister cannot be
perpetually left behind to work on his own. His role was to assist the President, so
when the President leaves the scene does the Minister who receives instructions from
the President remain a pillar by himself? I don't think so. The same situation applies
to the deputy minister under article 79(1) though in his case instruction can issue to him
by his minister.
I agree with the Attorney-General that the language of article 81 is clear and there is
no issue calling for its interpretation, especially as the
plaintiff also has not called for its interpretation. I do not understand the plaintiff by
his argument to mean that any additional words should be
introduced into the article. His submission is simply that by the combined effect of
articles 58(1) and (3), 78(1) and (2), 79(1) and (2), 80, 97(1), 100(1) and 113(1), not only is
there a term of the tenure of office of a minister but also that term is coterminous with
the term of Parliament and the President that approved his nomination and appointed
him respectively. Counsel's point is that since under article 58(1) the executive
authority of Ghana vests with the President, and the functions performed by any
minister or deputy minister are functions of the President, such minister or deputy
minister acts on behalf and in the name of the President when acting as such
by virtue of clause 4 of article 58. As a result, ministers or deputy ministers

have no independent existence. He is merely an agent, auxiliary, arms, legs, feet and
then parts of the President, and lives and dies with the President. He submits that as
the President's term of office is four years his ministers' and deputy ministers'
term of office a fortiori ends at the end of the four year term of the President. This may
be self-evident, but can one forcefully maintain that it is because of this that the framers
of the Constitution made no provision in the Constitution? I wonder. It seems to me
that if this situation is so obvious, self evident and important
the framers of the Constitution would have definitely made a provision in

the Constitution. How superfluous would it have been, and to what extent?
Counsel wonders how while the two organs that form the basis of the
existence of minister and deputy minister of
State, ie President and Parliament ceased to exist after four years, their foetus, the minist
ers, which continue to depend for their lives on the existence of these two organs of
State, can enjoy independent lives of their own beyond those of
Parliament and the President, without any express provision of the Constitution to that e
ffect. I also wonder! But counsel explains it off by contending
that this makes a mockery of the republican principle on which the Constitution is built
to suggest that whilst President and Members of Parliament are duly accountable to the
electorate at the end of their term if they
seek to continue in office, their creature, the minister of State, who is not directly elected
by the people, and is for that reason required to be endorsed into office by the elected
representatives of the people, has no such
obligation of accountability to continue in office. This is quite an ingenious argument,
but is the act constitutional? I do not believe so.

On this issue counsel for the plaintiff finally submits (and I agree with him) that where
the President in his second term wishes
to reappoint such persons as ministers or deputy ministers of State, he must do so, in
the express and unambiguous words of article 78(1) and 79(1),
"with prior approval of Parliament," that is of the second or current Par liament.
Meaning of prior approval
I now come to the third question, ie the meaning of the phrase "prior approval of
Parliament" mentioned in articles 78(1) and 79(1) of the Constitution. Counsel submits
that this phrase is a term of art having a technical meaning of: screening, assessing,
questioning and vetting when one takes into consideration the history
of this country, the debates in the Constituent Assembly (1978-79) and the Consultative
Assembly (I 991- 92), the views of the Committee of Experts in deleting the need
for approval by Parliament of persons nominated as Chief Justice or Justices of the
Supreme Court, and the guiding constitutional principle of probity
and accountability to which the people of this country solemnly declare and affirm
their commitment to, in the preamble to the Constitution. He contends that there is
implicit in the process of approval, a judgment based on evaluation
and enquiry namely, assessment, scrutiny, vetting
to determine whether what is being approved meets the requisite standard. He
buttresses his contention with the definition of the word "approval" as contained
in Blacks Law Dictionary (Abridged 6th ed), 1991:

"The act of confirming, ratifying, assenting, sanctioning,
or consenting to some act or thing done by another. 'Approval' implies knowledge
and exercise of discretion after knowledge."
And also Websters
New International Dictionary (3rd ed Language unabridged) 1968 defining approval as: "t
he act of approving" and the verb
"approve" as defined at p 106, among other things as: (a) make or show
to be worthy of approbation or acceptance and (b) to judge and find commendable

oracceptable.
In the light of the above counsel contends further
that the Constitution enjoins Parliament to give its prior approval (ie
consider, examine and vet) to each person nominated by the President for ministerial
office, and that it is each Parliament's duty to perform this function, involving
the independent judgment of Parliament which the Constitution forbids one Parliament
to shirk by substitution for it another Parliament's judgment. In other words, this
requirement cannot be carried by any procedure or resolution by Parliament that "hold-
over Ministers" do not need
to be vetted because a constitutional requirement cannot be overruled by Parliament
under cover of Parliament being master of its own internal
procedures. This would mean, he asserted, that an individual member of
the Appointments Committee of Parliament who would want to pose questions to the
"holdover Minister" - as to his competence or integrity - would be prevented by the
edict of the majority.

The Attorney-General, however, thinks that the point is ill-founded. Essentially
he contends that the requirement of prior parliamentary
approval does not apply to "holdover Ministers," and that the phrase "with
prior approval of parliament" does not mean the consideration and vet ting of such
ministers, nor is it meant to "institute a regime of witch
hunting and malicious slander under the cover of absolute parliamentary privileges."
He supports his contention with articles 89(6), 124(5) and
174(2) among others and maintains that the phrase as used in these articles cannot
support the views of counsel for the plaintiff. For convenience, I quote the articles:
"89(6) The appointment of a member of the Council of
State may be terminated by the President on grounds of stated misbehaviour or of
inability to perform his functions arising from infirmity of body or mind, and with the
prior approval of Parliament. "
"124(5) The Parliamentary Service Board shall, with the prior
approval of Parliament, make regulations, by constitutional
instrument, prescribing the terms and conditions of service of the officers and other
employees in the Parliamentary Service and generally for the effective and
efficient administration of the Parliamentary Service."
"174(2) Where an Act, enacted in accordance with clause (1) of this article, confers powe
r on any person or authority to waive or vary a tax imposed by that Act, the exercise of
the power of waiver Or variation, in favour of any per son or authority, shall be subject
to the prior approval of Parliament by resolution." (The emphasis is mine.)

The Attorney-General further argues that even if this court accepts
the dictionary meaning referred to by counsel for the plaintiff as the ordinary meanin
g of the word "approval," the
process or procedure by which Parliament gives approval is not the business of this court
The plaintiff then poses the following questions for consideration by the court namely
whether:
(1) a presidential nominee for ministerial appointment
requires prior approval of Parliament before he can act or hold him self out as
minister or deputy minister of State;
(2) the requirement of prior parliamentary approval applies to all persons, whether r
etained or "new."
(3) a necessary incident of prior approval of Parliament under
the Constitution is the consideration and vetting by Parliament of each nominee;
(4) Parliament
cannot by the manipu1ation of its own procedures grant "prior approval "in a
manner
in which the elements of consideration and vetting of each nominee are excluded.
After examining closely submissions of both counsel, it seems to me incontestable
that the phrase "prior approval of Parliament" is not used as a
term of art throughout the various provisions of
the Constitution, but it is a convenient portmanteau term for what is usually
the situation one way or the other, that it may mean assessment, scrutiny or vetting to
determine whether what is being approved meets the requisite standard,
as contends by Nana Akufo-Addo, counsel for the plaintiff, or as in the three examples
given by the Attorney-General, counsel for the defendant,
with the three situations given above, namely articles 89(6), 124(5) and
174(2). It cannot be said with all seriousness that the termination
of appointment of a member of the Council of State by the President in article
89(6) with the prior approval of Parliament means vetting and scrutiny;
neither can it be said that the making of regulations by the Parliamentary Service Board
in article 124(5) with the prior approval of Parliament
means vetting; nor the exercise of power of or variation in favour
of any person or authority, in article 174(2) subject to the prior approval of Parliament
by resolution means vetting. It seems to me that it is a convenient term for describing
the usual triangular situation that arises in these cases.
However, the argument of the Attorney-General
that requirement of prior approval does not apply to "holdover Ministers," ru1d that the
phrase does not mean the consideration and vetting of such ministers is untenable. It is
unambiguously clear that the appointment of ministers and deputy ministers of
State by the President under articles 78(1) and 79(1) shall be with the prior approval of
Parliament, and Parliament here should mean current Parliament and not previous
Parliament. If the framers
of the Constitution had intended to refer to the erstwhile Parliament they
would have stated so. It stands to reason that when a new Parliament and a new Presid
ent are sworn in all such ministers intended to assist the President in his deliberations
must be appointed in accordance with the provisions of article 78(1) before
they assume office as such officers. If

the presidential candidate for the New Patriotic Party (NPP) or Peoples'
Convention Party (PCP) had won the elections it would be absurd to suggest that the
ministers and deputy ministers of the previous regime should be retained to avoid crea
ting a power vacuum.
This type of argument is far-fetched. In view of the reasoning above, it is my judgment
that the answers for the first three questions posed by
counsel for the plaintiff, Nana Akufo-Addo should be in the affirmative, that is to say:
(1) A presidential nominee for ministerial appointment
requires the prior approval of Parliament before he can act or hold himself out as
minister or deputy minister of State.
(2) The requirement of prior parliamentary approval of Parliament applies to all
persons, whether "retained" or "new."
(3) A necessary incident of
"prior approval of Parliament" under the Constitution is the consideration and ve
tting by Parliament of each nominee.
The second part of the question posed in 3 which I have put down as 4 will be dealt
with later in this judgment.
The political question doctrine

I now tum to the second question posed by the Attorney-General that the
process by which Parliament exercises its sovereign power cannot be questioned by the
courts - the allegedly political question doctrine. Admittedly, the principle of a non-
justiciable political question is an American formulation that is steadily creeping into
the Ghanaian legal jurisprudence. In the American
case of Baker v Carr 39 US 186, 198 7L ED 2d 663,674, 82 S Ct 691 (1962) the court
discussed the political question doctrine and noted that political questions are
not justiciable primarily because of the question of separation of

powers. It pointed out in 1987L ED 2d at 674 that in deciding generally whether
a claim is justiciable, a court must determine whether "the duty asserted can
be judicially identified and its breach judicially determined, and whether protection for
the right asserted can be judicially molded."
But in Powell v McCormack 395 US, 486; 23 L Ed 2d 491 (1969) the court said in order to d
etermine whether there is a textual commitment to a coordinate department of
government, the Constitution must be interpreted to
determine first what power the Constitution confers upon the House through article l cl
ause 5 before the court can determine to what extent, if any, the exercise of that power is
subject to judicial review.
In the instant case, if examination of the provision of a particular article gives
Parliament judicially unreviewable power to decide questions which are within
its competence, further review by the court may be said to be barred by the political
question doctrine. To determine whether there has been a textual commitment
to Parliament, a co-ordinate department of the government, the court
must interpret the Constitution. In other words, the court must first determine
what power the Constitution confers on Parliament before it can determine

to what extent if any, the exercise of that power is subject to judicial review. That is
if, as in this case, articles 78(1) and 79(1) entitle Parliament to give prior approval to a
nominee of the President before he is appointed by him as a minister or
deputy minister of State further consideration by the court will be necessary to
determine the extent and scope of that power and whether the action exceeds or is in
conformity with whatever authority has been committed. This in itself is a delicate
exercise in constitutional interpretation, and is the responsibility of the court as the
ultimate interpreter. In order to determine the scope of any "textual commitment" under
articles 78(1) and 79(1), we must necessarily determine the meaning of the phrase "with
the prior approval of." The court cannot justifiably avoid its constitutional
responsibility, and it will be palpably wrong to suggest that the court will be usurping
the constitutional function of Parliament if the
court exercises its original and exclusive jurisdiction to interpret and en force the
Constitution, as the Attorney-General seems to contend. The fact that such matter
involves a political question does not necessarily mean that it cannot be adjudicated
upon as is illustrated by Powell v McCormack (supra).
Facts of Powell v McCormack
A brief narration of the facts of the Powell Case will assist in appreciating
the foregoing opinion. In this case the petitioner Adam Clayton
Powell Jnr, had been elected to the US Congress to represent the Harlem Area
of New York. When the 90th Congress met to organize in January 1967,
Powell was asked to step aside while oath was administered to the other members-
elect. The House discussed the procedure to be followed in determining whether
Powell was eligible to take his seat. After some debate

the House adopted House Resolution No 1, by a vote of363 to 65, which provided that
the Speaker appoint a Select Committee to determine Powell's eligibility.
The Select Committee, composed of nine lawyer-members, invited Powell to testify
before the committee. The invitation letter stated that the
scope of the testimony and investigation would include Powell's qualification
as to age, citizenship, and residency; his involvement in a civil suit (in which he had
been held in contempt), and other matters relative to alleged official

misconduct since 3 January 1961. During his testimony
Powell, upon advice of counsel, only gave an information relating to his
age, citizenship, and residency.
The Select Committee later, on 10 February 1967, issued another invitation informing
Powell that its responsibility under the House Resolution extended to determining not
only whether he met the standing qualifications of article 1 clause 2, but also to inquire
into the question of whether he should be punished or expelled pursuant to the powers
granted the House under article 1, section 5 of the Constitution. Powell did not appear
at the next hearing, but was represented by his attorneys who informed the committee
that Powell would not testify about matters other
than his eligibility under the standing qualifications of article 1, clause 2. Powell's
attorneys re-asserted Powell's contention that the standing
qualification were the exclusive requirements for membership, and they further urged t
hat punishment or expulsion was not possible until a member had been seated.
The committee in its report found that Powell met the standing qualifications of article 1
clause 2, but reported further that Powell has asserted an unwarranted privilege and
immunity from the process of the courts of
New York; that he had wrongfully diverted House funds for the use
of others and himself; and that he made false reports on expenditures of foreign
currency to the committee on House Administration. The committee recommended
that Powell be sworn and seated as a member of the 90th Congress but that he
be censured by the House, fined $40,000 and be deprived of his seniority.
The House debated the Select Committee's
proposed resolution, but rejected a motion to bring the resolution to a vote. An amendm
ent to the resolution No 278 was adopted excluding Powell and directing that the
Speaker notify the Governor of New York that the seat was vacant.
Powell and thirteen voters of the Eighteenth Congressional District instituted
this suit in the United States District Court for the District
of Columbia, alleging that House Resolution No 278 violated the Constitution, and
requested, among other things, a declaratory judgment that Powell's exclusion
was unconstitutional.
The district court granted the respondent's motion to dismiss the complaint "for want of
jurisdiction of the subject matter. ''This decision was
affirmed by the Court of Appeals for the District of Columbia Circuit on
somewhat different grounds, with each judge of the panel filing a
separate opinion. The Supreme Court granted certiorari, and held, inter alia,
that the House of Representatives lacks power to exclude from its membership a
person who has been duly elected as a Congressman and who
meets the age, citizenship, and residence requirement specified in article 1, clause 2, of
the Federal Constitution; and such person, after being
excluded from membership by a House of Representatives Resolution, is entitled to a
declaratory judgment that his exclusion was unlawful. In other words, the US Supreme
Court concluded that:
"Article 1 clause 5 is at most textually demonstrable

commitment to Congress to judge only the qualifications expressly set
forth in the Constitution. Therefore the textual commitment formulation of the political
question doctrine does not bar federal courts from adjudicating the Petitioner's action."
Concerning other aspects of the political question doctrine which were urged upon the
US Supreme Court, the court succinctly and correctly held thus at p 535, 23L Ed 2d that:
"Respondents' alternative contention is that the case presents a political question
because judicial resolution of the petitioner's
claim would produce a potentially embarrassing confrontation between coordinate
branches of the Federal Government. But, as
our interpretation of article 1 clause 5 discloses, a determination
of petitioner Powell's right to sit would require no more than an interpretation of the
Constitution. Such a determination falls within the traditional role accorded courts to
interpret the law and does not involve a "lack of respect due (a) coordinate (branch) of
government nor does it involve an initial policy determination of a kind clearly for non-
judicial discretion ... Our system of government requires that federal courts on occasion
interpret the Constitution in a manner at variance with the construction given
the document by another branch. The alleged conflict that such an adjudication may
cause cannot justify the courts' avoiding their constitutional responsibility."
What I gather from the foregoing opinion is that the fact that the matter is a political
question does not determine the matter. It is rather the
power vested in a particular branch of government, and it is the interpretation of the Co
nstitution that determines the question, and the tribunals that are constitutionally
appropriate and responsible to perform that function are the federal courts. In Ghana
the situation is not different. The case of New Patriotic Party v Attorney-General (31st
December Case), Supreme Court, 29 December 1993 and 8 March 1994 unreported, con
firmed that the Supreme Court was entitled to decide questions of a political nature
since in Ghana it is the Constitution and not Parliament
which is supreme, as distinct from the British Constitution which makes Parliament
Supreme and operated without the limitation of a
written constitution. In our situation, it is the Constitution and not Parliament which
is supreme, and accordingly any Act passed by Parliament which is in consistent with
the Constitution can be declared null and void, even though
the Act dealt with a political question. This was founded on article 93(2) which
provides:
"Subject to the provisions of this Constitution the legislative power
of Ghana shall be vested in Parliament and shall be exercised in accordance with
this Constitution."
To hold otherwise will be subverting the Constitution and the rule of law.
Exercise of Parliament :S powers of approval
The Attorney-General argues rather strongly that there can be no legal
challenge to the resolution on the approval process by Parliament. In other words that
how Parliament goes about exercising its powers of
approval cannot be questioned in this court. He seems to be emphatic in his position
because in his view this is a matter of internal
procedure in Parliament, and he supports his contention with Tuffour v Attorney-General

[1980] GLR 637 particularly at p 650 where Sowah JSC (as he then was ) had this to say:
"This then brings us to the question of how far the courts can
question what, under our constitution, has been done in, and by,
Parliament. There is a long line of authorities which establishes two important principle
s governing the relationship that subsists or should exist between Parliament and the
courts:
(a) that the courts can call in question a decision of Parliament,
but that the courts cannot seek to extend their writs into what happens in
Parliament; and
(b) that the law and custom of Parliament is a distinct body of law and as
constitutional experts put it, "unknown to the courts."
And therefore the courts take judicial notice of what happened in Parliament. The court
s do not, and cannot, inquire into how Parliament went about its business."
He continues:
"These constitute the state of affairs, as between the legislature
and the judiciary which have been crystallized in articles 96, 97, 98, 99, 103 and 104 of
the Constitution. Of particular importance to us are the provisions of article 96 of the
Constitution. They confer on Parliament freedom of speech, of debate and of
proceedings in Parliament. The Article also states categorically

'that freedom shall not be impeached or questioned in any court or place out of
Parliament.' The court cannot therefore inquire into the legality or illegality of
what happened in Parliament."
It is pertinent to note that shortly after this statement, his lordship said:
"In so far as Parliament has acted by virtue of the powers conferred upon it by the provisions
of article 91(1), its actions within Parliament are a closed book." (The emphasis is mine.)
In that case the plaintiff issued out a writ against the Speaker of
Parliament and the Attorney-General before the Court of Appeal sitting
as the Supreme Court for a declaration that: (a) on the coming into force
of the Constitution, Justice Apaloo was deemed to have been appointed Chief Justice
and as such became president and a member of
the Supreme Court; and (b) the application of the procedure in article 127(1) to
Justice Apaloo and his purported vetting and rejection by Parliament were in
contravention of the Constitution.
The Attorney-General argued that the procedure in article 127(1)
was mandatory and Justice Apaloo's rejection by Parliament was in exercise
of the power& conferred upon it by article 127(1) and therefore proper.
This clause provided that:
"(1) The Chief Justice and other Justices of the Supreme Court shall be appointed by
the President by warrant under his hand and the Presidential seal,
(a) in the case of the Chief Justice, acting in consultation with the Judicial Council;
(b) in the case of other justices of the Supreme Court, acting on the advice
of the Judicial Council and with the approval of Parliament." (The emphasis is mine.)
The court having dismissed the preliminary objections founded
on lack of jurisdiction and capacity in the plaintiff and having dismissed the Speaker as n
ot a competent party, proceeded to determine the plaintiff's writ and held, upholding
the plaintiff's claim that:
(i) the court had jurisdiction to entertain the plaintiff's writ but that
(ii) the court did not, and could not inquire into how Parliament went about its
business, as that constituted the state of affairs, as between
the legislature and the judiciary which had been crystallized in article 66-99, 102
and 104 of the Constitution as stated by Sowah JSC above.

The Attorney-General relied on article 96 of the 1979 Constitution in
support of his argument, which provided that "there shall be freedom of
speech, debate and proceedings in Parliament and that freedom shall not
be impeached or questioned in any court or place out of Parliament." It was upon
rejecting the Attorney-General's objection that the Court of Appeal held as in the
passage by Sowah JSC (supra).
It must be noted that the plaintiff in the Tuffour: Case sought in his pleadings to
get the court to extend its writ to what happened in Parliament in addition
to the declaration sought vis-a-vis the instant case where
the plaintiff is only asking for a declaration as regards the interpretation of certain
provisions of the Constitution. What is important is the conclusion arrived at by the
court at p 651 that; "In so far as Parliament has acted by virtue of the powers conferred
upon it by the provisions of article 91(1), its actions within Parliament are a closed book.
"In other words Parliament must be seen to have acted in accordance with, and not in
contravention of the powers conferred upon it by the provisions of the
article. Article 91(1) reads: "91(1) Subject to the provisions of this Constitution,
Parliament may regulate its own procedures." It will
be seen therefore that the absolute terms which the two principles relied on in the Tuffour
Case as stated are thus subject to qualification.
Article 110(1) of the present Constitution is in identical terms. It reads:
"Subject to the provisions of this Constitution, Parliament may, by standing orders,
regulate its own proceedings." This article makes whatever procedure Parliament
adopts subject to the provisions of the Constitution. In other words the Standing Orders of
Parliament, dealing
with its internal procedures, must be in conformity with the spirit and
letter of the Constitution or, as Nana Akufo-Addo, counsel for the plaintiff rightly
put it, "run the risk of being struck down as unconstitutional, and accordingly null and
void." It means therefore that if Parliament's procedures are so regulated in such a way
that can be shown to be contrary to any provision of the Constitution, the
fact that "the law and custom of Parliament" is a distinct law "unknown to the Courts"
would be of no moment.
It would be the law of the Constitution known only to the Supreme Court that the court
would be pronouncing upon.
It must be pointed out that articles 96, 97, 98, 103 and 104 of the
Constitution, 1979, mentioned in the Tuffour Case dealt with privileges and immunities
of Parliament. It is clearly in respect of these that the court said that "Courts do not, and
cannot inquire into how Parliament
went about its business," and continued to say that "These constitute the state of
affairs"(ie in that case), as between the legislative and the judiciary which has been
"crystallized" in articles 96-99, 103 and 104 of the 1979 Constitution. The court
particularly mentioned article 96 whose
provisions confer on Parliament freedom of speech, of debate and of proceedings in
Parliament and which freedom shall not be impeached or questioned in any court or
place out of Parliament.
In the instant case the Attorney-General thinks the opinion of the
court (supra) is reinforced by article 115 of the Constitution 1992 upon

which he relies. This article speaks in identical terms as article 96 of the Constitution
1979. It says:
"115 There shall be freedom of speech, debate and proceedings
in Parliament and that freedom shall not be impeached or questioned in any court or
place out of Parliament."
This article together with articles 116, 117, 118, 119, 120 and 121
also falls under "Privileges and Immunities" of Parliament. The matter
dealt with in the Tuffour Case under article 96 and related articles under Privileges and
Immunities therefore is of a restricted nature and when that court expressed
itself in very broad terms, especially in a constitutional matter, the breadth of
the language must be construed to apply to the specific facts of that case and no more,
because it is not the function
of the court to decide on issues not before it. This is the well-established principle of
law.
Counsel for the plaintiff cites article I06 (1) which spells out the mode
by which Parliament exercises its legislative power, to buttress his point.
He argues that if Parliament purported to exercise its legislative power in a
manner contrary to article 106(1) could it hide under the shield that what goes
on in Parliament is a closed book to perpetuate such illegality,
and would the Supreme Court be barred from pronouncing on such act?
He thinks this cannot be, and I agree with him. This clearly shows that
there are constitutional limits to the principle that proceedings in Parliament cannot be c
alled in question in any court. On this point the decision in Tuffour v Attorney-
General (supra) is clearly distinguishable from the instant case.
Under article 172(2) of the Standing Orders of Parliament, the
Appointments Committee of the House is obligated
to make recommendations to Parliament for approval or otherwise of
persons nominated by the President for appointment as ministers
or deputy ministers. The committee at its meeting held on 13 February 1997 rather decid
ed that where
an incumbent minister or deputy minister is retained by the president, it shall not be
necessary for the minister or deputy minister to be
summoned to appear before the Appointments Committee for recommendations to
be made to Parliament for re-approval in view of
the fact that the previous or erstwhile Parliament had given approval for their appoint
ment. If therefore Parliament, instead of acting in accordance with the provisions of
articles 78(1) and 79(1), chose to ignore the mandatory provisions of those articles,
but decided to accept the recommendations
of the Appointments Committee, and resolved that it was not necessary to give another
approval of such minister or deputy minister, can such a resolution be
proper and constitutional? I believe not. In my view, Parliament has by this resolution
refused to perform its constitutional function, and there fore acted unconstitutionally,
with the result that the said resolution is unconstitutional and therefore null and void.
The answer to the fourth
question posed by the plaintiff that Parliament cannot by the manipulation of its own pr
ocedures grant prior approval in a manner in which the elements of consideration
and vetting of each nominee are excluded, is therefore definitely yes.

In the result the plaintiff's action succeeds, and I would grant the reliefs sought.
CHARLES HAYFRON-BENJAMINJSC.
The opinions and conclusions expressed and arrived at in the very able and erudite
judgment of my learned and respected brother Acquah JSC have my approbation. I
would, however, like to make brief comments on the general approach by

counsel to the interpretation and construction of our Constitution which
often, if adopted by our courts would lead to absurdity. Such absurdities
could arise not from want of guidelines by the courts, but by the persistence of litigants
in limiting the scope of the various articles thereof. There are, of course, many
authoritative dicta which run counter to
this attitude. I would, for the sake of brevity, refer to the dictum of Apaloo CJ in Kwakye
v Attorney-General [1981] GLR 944 at 958 where his Lordship clearly stated the
guidelines when he said:
"In the exercise of the interpretative jurisdiction of this court, it is obvious that
we should go beyond statutory interpretation since
we are concerned with the most fundamental issues of our jurisdiction. We must have r
egard to the terms of our particular Constitution whose specific reference points are
largely unique to
our national history. In this area, more than others, judicial pronouncements in other
jurisdictions on the particular facts of their experience are not
likely to be of much assistance; the range of judicial wisdom embodied in them
will, of course, influence our judicial reflections. I think originality is required of us in t

he exercise of our original jurisdiction if we are to attend to the letter
and spirit of the Constitution as the basic law of our land. That originality must, of
course, be judicial and must not do
damage to the plain and obvious meaning of the words used nor
is it the province of this court to be astute to find some reason or other for depriving
the constitutional provision of an effect clearly intended."
Then again more recently Abban JSC (as he then was) in Ghana Bar Association
v Attorney-General, Writ No 14/93, 7 February 1995, and now reported as [1995] 1 GSCJ 1 at
page 13 said:
"It must also be borne in mind that in construing any statute, for
that matter any of the provisions of the Constitution, the duty of
the court is to stick to the ordinary meaning of the actual words
used. After ascertaining the general purport and the meaning of the provision in
question from the words used, effect must be given to it, unless by so doing it would
be at variance with the intention of the Jaw makers or could result in or lead to some
obvious absurdity."
Thus in my respectful opinion, the expression
"prior approval" appearing in article 78(1) of the Constitution and the variant
forms of the expression appearing in other parts of the Constitution are not "terms of
art." They must be given their ordinary meaning as the context would permit but
always bearing in mind the necessity to avoid absurdity.

My learned and respected brother Acquah JSC has rightly pointed out in his judgment
that the provision for an interregnum between any two successive elections of the
Presidency and Parliament as contained in article 64(3) of the 1969 Constitution
does not exist. It must be borne in mind that the 1969 Constitution did not create or
adopt an executive Presidency. Parliament was Supreme and the Presidency largely
ceremonial. It may be said, perhaps with hindsight, that had this Constitution contained
a similar article such problems as we now encounter in this writ would be largely
academic.
However, such is the nature of our 1992 Constitution that every President and every
Parliament are assigned definite terms of office and no more. There is no provision in
the Constitution for an interregnum or "caretaker government." Consequently in order
to prevent a failure of government reasonable time must be allowed after
the inauguration of the President and Parliament to enable the new institutions to
be set in place and ensure smooth administration to avoid
absurdity and unconstitutional action. Thus speaking for myself, I would incline to the
view that not until the expiry of a reasonable time after a general and presidential
election, ministers and deputy ministers may hold over their respective offices. For our
fledgling Constitution it will be useful to remind our
selves of the need for constitutional conventions. Professor O Hood Phillips in his
learned treatise entitled Constitutional and Administrative
Law defines "Constitutional Conventions" as:
'Rules of political practice which are regarded as binding
by those to whom they apply, but which are not laws as they are not enforced by
Courts..."
In my respectful opinion this case only arises because the Constitution does not provide
for a sufficient time to intervene between the actual constituting of Parliament and a
subsequent inauguration of the President.
AMPIAH JSC. I have had the opportunity to read beforehand the
leading judgment of my brother Acquah JSC and I am in full agreement with his
opinion. I however have this little to add to his.
Perhaps the issues in this case having exhausted themselves, they have become moot
and need no further determination. Firstly because the plaintiff has since the issuance of
the writ taken part in proceedings he described as unconstitutional and secondly
because had the issue of the capacity of a minister or
deputy minister of State been adhered to strictly, there would not
have been any defendant before the court, for, the defend ant as the Attorney-General is
not only the "principal legal advisor" to the Government but also "a Minister
of State" who has to be appointed by the President with the prior approval of
Parliament: vide articles 88(1)
and 78(1) of the 1992 Constitution. As stated by my brother Acquah
JSC in hisopinion, it is not the office of the Attorney-General
which was sued, but the person of the Attorney-General.
However, moot as the matter may be, because there seems to be no longer
"live" disputes to be determined, I am of the opinion that there exists issues
which are capable of determination for future conduct of the framers of

the Constitution, the legislature and the executive: see US v Concentrated
Phosphate Exp Assn 393 US 201 and US v WT Grant Co
345 us 629.
Some of the situations which have arisen in this case, had come about firstly because,
happily this is the first time that the country has had a succession of a
civilian government without the intervention of a military regime abrogating
or suspending an existing Constitution. Secondly some

of the issues which have arisen were not anticipated or envisaged by the framers of
the Constitution or the issue had been overlooked.
Thus article 81 provides that:
"The office of a Minister of State or a Deputy Minister shall become vacant if –
(a) his appointment is revoked by the President; or
(b) he is elected as Speaker or Deputy Speaker; or
(c) he resigns from office; or
(d) he dies."
Does it mean then that a minister or deputy minister of State, would
continue to hold office in perpetuity unless one of the incidents set down
in article 81 occurs? Could it be said that such a minister would continue
in office despite the fact that the President who appointed him has been displaced
by another President of whose political party the minister no longer represents? The
Constitution, art 66(1) provides that:
"A person elected as President shall, subject to clause (3) of this article, hold office for a
term of four years beginning from the date on which he is sworn in as President."
The proviso for the termination of the life of a President under clause 3 of article 66 is
"(3)The office of President shall become vacant
(a) on the expiration of the period specified in clause (1) of the article; or
(b) if the incumbent dies or resigns from office or ceases to hold office under article
69 of this Constitution."
Article 113(1) also provides that: "Subject to Clause (2) of this article,
Parliament shall continue for four years from
the date of its first sitting and shall stand dissolved." Article 97(1) of
the Constitution provides for the vacation of the seat of a member of Parliament.
These are:
(a) " upon a dissolution of Parliament; or
(b) If he is elected as Speaker of Parliament;

(c) if he is absent, without the permission in writing of the Speaker and he is
unable to offer a reasonable explanation to the Parliamentary Committee
on Privileges from fifteen sittings of a meeting of Parliament during any period
that Parliament has been summoned to meet and continues to . meet; or
(d) if he is expelled from Parliament after having been
found guilty of contempt of Parliament by a committee of Parliament; or
(e) if any circumstances arise such that, if he were not a member of Parliament,
would cause him to be disqualified or ineligible for election, under article 94 of

this Constitution; or
(f) if
he resigns from office as a member of Parliament by writing under his hand addr
essed to the Speaker; or
(g) if he leaves the party of which he was a member at the time
of his election to Parliament to join another party or seeks to remain
in Parliament as an independent member; or
(h) if he was elected a member of Parliament as an independent candidate and joins
a political party."
By law, some of the ministers and deputy ministers of State must
necessarily be members of Parliament: see article 78(1) of the Constitution. Does a minis
ter or deputy minister of State continue to hold office
even when Parliament has been dissolved or that person has ceased to be
a member of Parliament? In view of the existing law, it would be absurd
for such a minister or deputy minister to continue in office when both the
Presidency and Parliament have come to an end by operation of the law.

I have no doubt in my mind that, the framers of the Constitution had intended that
the office of these ministers and deputy ministers should
terminate with the life of the President and Parliament. Unfortunately, no provision
was made in the Constitution. The fundamental rule of interpretation of statutes and for
that matter all documents is that what is intended
by the framers of an act must be expressed in the words used in
the statute or document. What is intended and what is actually expressed are two differ
ent things. If the expressed intention is unfortunately different
from what was really desired, so much the worse for those who wish
the actual intention to prevail: see Kidder v West (1684) 3 Lev 167. In our Constitution, ev
en though Parliament shall be dissolved within four
years, such a period may be extended. Thus article 113 of the Constitution provides
that:
(1) " Subject to clause (2) of this article, Parliament shall continue for four years
from the date of its first sitting and shall then stand dissolved.
(2) At any time when Ghana is actually engaged in
war, Parliament may, from time to time by resolution supported by
the votes of not less than two-thirds of all the members of Parliament, extend the
period of four years specified
in clause (1) of this article for not more than twelve months at a time, except that
the life of Parliament shall not be ex tended under this clause for more than four
years.
(3) Where, after a dissolution of Parliament but before the
holding of a general election, the President is satisfied that owing to the existence
of a state of war or of a state of public emergency in Ghana or any

part of Ghana, it is necessary to recall Parliament, the President shall cause to
be summoned the Parliament that has been dissolved to meet.
(4) Unless the life of Parliament is extended under the provisions of clause (2) of this
article, the general election of members of Parliament shall proceed and
the Parliament that has been recalled shall, if not sooner dissolved, again
stand dissolved on the date appointed for the general election."
If the life of a minister or deputy minister was expected to go beyond the life of the
President or Parliament it should, like the provisions of article 113, have been so
expressed. Unfortunately, though this may have been the intention of the framers of the
Constitution, no provision was made to that effect. We only have the strict
interpretation of article 81 which interpretation alone, is bound to end in absurdity.
I think, however,
that though the minister or the deputy minister's office may not come to
an end abruptly there must be a reasonable time to allow new ministers
and deputy ministers to be appointed by the President
after he had been sworn in. There should not be a vacuum created in
these offices as such a situation would result in chaos. What a "reasonable time" is must
be determined by Parliament itself.
The next issue is, do the ministers and deputy ministers require "prior approval"
by Parliament before their appointment? Article 78(1) of the Constitution provides:
"Ministers of State shall be appointed by the President with the prior approval of
Parliament from among members of Parliament or persons qualified to be elected as

members of Parliament, except that the majority of Ministers of State shall be appointed
from among members of Parliament."
And article 79(1) also provides:
"The President may, in consultation with a Minister of State, and
with the prior approval of Parliament, appoint one or more Deputy Ministers to assist
the Minister in the performance of his functions."
I have no doubt in my mind that before a minister or deputy minister takes up an office
he or she needs to have the prior approval of Parliament. Any appointment by
the President without the prior approval of Parliament would be unconstitutional and
this court would have the power to so declare that appointment.
What is the meaning of "prior approval?" Reference has been made to proceedings in
the Consultative Assembly, the framers of the Constitution, to interprete what is
meant by those words. I on my part, supported in my view by the Interpretation Act,
1960 (CA 4) do not think it is
necessary to resort to words used at the Consultative Assembly as aid to the
interpretation of the words "prior approval." These are not terms of
art; they are ordinary words which must be interpreted in their ordinary sense. The
words "prior approval" and "approval" appear at various
portions of the Constitution. The word "prior" means - coming before in time, order
or importance; "approval" means - feeling or showing or saying that one thinks somethi
ng is good or acceptable or satisfactory:

see The Oxford Advanced Learners Dictionary. The words "prior approval" therefore
means simply that before the President appoints a minister or deputy minister he/she
must be put before Parliament to feel, show or say that such a person is good,
acceptable or satisfactory. While the word
"prior" connotes acceptance before an appointment becomes valid; "approval" simpliciter
connotes, an acceptance after appointment.
How then does Parliament certify the prior approval? As stated be fore, it is my
considered opinion that ministers or deputy ministers whether
new or retained must have the approval of Parliament. The evidence before us show
that there is an "Appointments Committee of Parliament which sits on persons
submitted by the President to Parliament for approval." As stated before, the
question of "retained" ministers or
deputy ministers arose because for the first time in the history of
this country we have a legitimate succession of a civilian government by a civilian gover
nment and in our current situation, the succeeding
civilian government happens to be a government of the previous government. Thus, so
me of the ministers and deputy ministers of the previous government were in tended
to be ministers and deputy ministers in the new government; in other words, they were
to be retained.
Under those circumstances the Appointments Committee which includes members of
the Opposition,
decided that those "retained" ministers and deputy ministers need not be "vetted"
"scrutinised,""investigated" "assessed" or "examined" before approval and
that for such persons a vote by Parliament would be enough. In the

light of such decision, Parliament sat on the names submitted by
the President and approved by show of hands or other means. It is unfortunate that the
Opposition had to criticise this manner of voting. But it must not be forgotten that our
Constitution is a democratic one and that it
is the people represented in Parliament who decide; it is unfortunate that
the minority did not find favour with this manner of voting for approval. It is provided
by article 104(1) of the Constitution that:
"Except as otherwise provided in this Constitution, matters in Parliament
shall be determined by the votes of the majority of
members present and voting with at least half of all the members of Parliament
present."
It is also provided by article 110(1) that: "Subject to the provisions of
this Constitution, Parliament may ...by standing orders, regulate its own
procedure." And under article 115 of the constitution:
"There shall be freedom of speech, debate and proceedings in Parliament and that
freedom shall not be impeached or questioned in any court or place out of Parliament."
Provided "approval" is given to the nominees of the President, in
accordance with orders regulating parliament's procedure, such exercise of a right coul
d not be unconstitutional. The Constitution itself has not regulated the procedure for ap
proval. It is a different matter if no approval at all is given for such appointments.

In the circumstances, I agree entirely with my brother Acquah JSC.
ACQUAH JSC. My Lords, soon after the swearing in on 7 January 1997 of His
Excellency J J Rawlings as the President of Ghana for a second term of four years, it
was announced that the President had decided to retain in office, some of his
previous ministers and
deputy ministers of state; and that since these retained ministers and deputy ministers
had been approved by the previous Parliament of the First term of the
Fourth Republic, they would not be presented to the new Parliament for their approval.
For in the Government's view, only fresh appointees for ministerial office
need the prior approval of the Second Parliament of the Fourth Republic. One of
these retained Ministers is the Hon Mr Kwame.
Peprah of the Ministry of Finance and Economic Planning. The minority group in
Parliament vehemently opposed this idea - arguing that under the 1992
Constitution of Ghana, no one can be appointed or act as a minister or deputy
minister of state during the second term of the Fourth
Republic without being vetted by the new Parliament, since the tenure of office of
previous ministers and deputy ministers of State end with the dissolution of
that Parliament. And in this case 6 January 1997.
Now in the midst of this controversy, it was announced that Mr Kwame
Peprah was going to present to the new Parliament on 7 February 1997,
in his capacity as the Minister of Finance in the second term of the Fourth Republic,
the nation's budget. But at the dawn of the scheduled
presentation, the Parliamentary Minority Leader, the Hon Mr J H Mensah, filed
the instant action for a declaration, as later amended, that:

"(i) On a true and proper interpretation of the Constitution particularly articles 57(3), 58
(1) and (3), 66(1), 76(1) and (2),78(1), 79(1), 80, 81, 97(1), 100(1), 113(1) and (3) thereof,
no person can after January 6 1997 act as minister or deputy
minister of State without the prior approval of the Second Parliament of the Fourth
Republic of his appointment.
(ii) A necessary incident of prior approval is the consideration and vetting of
each nominee for ministerial appointment by the Second Parliament of the Fourth
Republic.
(iii) Accordingly any person who has not been so approved and appointed cannot
lawfully act or hold himself out as a Minister or Deputy Minister of State."
From their respective pleadings and statements, the issues set down by the plaintiff
for determination are:
(1) Does a presidential nominee for a ministerial appointment
require the prior approval of Parliament
before he can act or hold himself out as a minister or deputy minister of State?
(2) Does the requirement of prior parliamentary approval ex tend to all persons
whether retained or new?
(3) Is prior approval a term of art? If so what is the meaning?

The Attorney-General in his written submission, however, raises two
preliminary points which deserve to be commented upon. First, he con tends that going
by the plaintiff's case that retained ministers who had not received prior parliamentary
approval of the second Parliament, can not act or hold
themselves out as such, the instant action cannot be instituted against the Attorney-
General since the person acting in that capacity is also a retained minister who
has a lso not had such prior approval. The plaintiff's brief reaction to this submission is
that it is not the individual personality that matters, and that the Attorney-
General only acts as a nominal defendant for the State and the Government.
Does it mean that in respect of the office of the Attorney-General,
anyone who had not had prior approval of the second Parliament of the Fourth
Republic in the words of the plaintiff, can "act or hold himself out as" such?
Emphatically No! Because article 88(1) of the 1992 Constitution unambiguously
shows that the individual personality of the one holding that
office is paramount. For that person "shall be a Minister of State and the principal legal a
dvisor to the Government." (The emphasis
is mine.) And as a minister of state, the person who is or acts as the Attorney-General,
falls into the same category as any other minister of state. Indeed the objection to
Mr Peprah and the other retained ministers acting as such ministers,
was not against their respective offices but against each personally for not receiving
the requisite prior approval of the second Parliament. Thus going by the plaintiff's
own case, one would have expected that even though the Attorney-
General is constitutionally a nominal defendant, the plaintiff would have objected
to Hon Dr Obed Asamoah and his deputy, Hon Mr Martin Amidu, signing the pleading
s and appearing in court in their alleged capacities as Ag Attorney-General and Deputy

Attorney-General respectively. For at the time they filed the pleadings
and appeared in court, they had not had the prior parliamentary approval complained
of. The plaintiff did not object to their representations, not withstanding the undisputed
fact that the two honourable men were in
the same position as those sought to be excluded. What is good for the goose is equally
good for the gander.
This preliminary objection, vindicates a proposal, which was of course rejected, of

the 1968 Constitutional Commission, recommending that the Attorney-
General be insulated from the ministers of the Government. In
the Memorandum of the Commission, they proposed that though the tenure of
the Government should be five years, and the President eight years, the Attorney-
General: ·
"should hold office for seven years and should be eligible for re election. The person to
be appointed Attorney-General should be qualified to be appointed a judge of
the Supreme Court and he may be removed from office exactly in the same way that a
judge of superior court of record, other than the Chief Justice, may be removed."
(see pages 104 to 105 of the 1968 Memorandum.)
The other preliminary objection is that the questions raised for determination are moot
since the Government has retracted its position by
submitting the names of the retained ministers to the second Parliament
for its prior approval. There are thus no live questions to be determined. The principle
guiding the court in refusing to decide moot questions is quite settled. If the
question, though moot, is certainly not likely to re occur, the courts will not waste their
time to determine questions and issues which are dead and buried forever. But where
it is not so established, the courts would go into the questions to forestall a multiplicity
of suits. Thus for a court to decline deciding a moot question, it must be established or
shown that:
"subsequent events made it absolutely clear that the allegedly wrong behaviour could
not reasonably be expected to recur.: see US v Concentrated Phosphate Exp Assn 393 US
201; and US v WT Grant Co 345 US 629."
No such proof has been established in this case, neither am I certain that the issue may
not re-occur.
Now whatever be the merits of these preliminary objections, it cannot be denied that the
tension that this dispute caused both in and outside
Parliament and in the nation as a whole, makes it prudent that this court determines
the questions in issue for the guidance of future Governments and Parliaments.
The first issue is whether a nominee for ministerial or deputy ministerial office requires
prior parliamentary approval. On the plain language of articles 78(1) and 79(1), the
Attorney-General cannot and does not
indeed give a negative answer to this question. For in articles 78(1) and 79(1) it is
provided that the President shall appoint his ministers and deputy ministers
with the prior approval of Parliament. Thus nominee for ministerial or deputy
ministerial office undoubtedly requires prior parliamentary approval.
Does the requirement of prior parliamentary approval extend to all persons, whether retained or
new?
The plaintiff contends that by the combined effect of articles 58(1),(2)

and (4), 78(1) and (2), 79(1) and (2), 80, 97(1), 100(1) and 113(1) of the
1992 Constitution, the tenure of office of a minister or deputy minister
is coterminous with the term of
the President and the Parliament. And that on the expiry of
the term of the President and Parliament, the tenure of the minister or deputy minister
also come to an end. Accordingly on the inauguration of a fresh term of a
President and Parliament all the ministers and deputy ministers nominated
for office need the prior approval of that new Parliament irrespective of whether the
nominee was a minister or deputy minister in the previous term. He further contends
that articles
78(1) and 79(1) do not even recognize the concept of a "retained" minister or deputy
minister. Neither do the two articles exempt any nominee from the requirement of prior
parliamentary approval.
The Attorney-General on the other hand, contends that although a nominee for
ministerial or deputy ministerial appointment needs the prior approval of Parliament
this does not extend to persons who were ministers in the preceding term and therefore
had already had the prior approval of that Parliament. Furthermore, the Attorney-
General argues that, under article 81 of the 1992 Constitution, the tenure of a minister
or deputy minister does not come to an end on the dissolution of that Parliament which
gave prior approval to the appointment of that minister or deputy minister. Thus,
in his view, unless one of the events specified in article 81 occurs, a minister or
deputy minister will continue to be in
office. Accordingly in his written reply to the plaintiff's submission, the Attorney-
General writes:
"The defendant, however, submits that once a minister has been appointed with the
prior approval of Parliament his tenure is indefinite unless his office becomes vacant
under the Constitution." (The emphasis is mine.)
The Attorney-General finds solace in article 64(2)(a) of the
1969 Constitution of Ghana which provides, that a minister's office becomes vacant,
inter alia, on the dissolution of the National Assembly. In his view, once such a
provision is absent in article 81 of the 1992 Constitution, the dissolution of the National
Assembly in the first term of the Fourth Re public did not terminate the office of a
minister or deputy minister.
Now article 81 of the 1992 Constitution provides that the office of a minister or deputy
minister becomes vacant if:
(a) " his appointment is revoked by the President; or
(b) he is elected Speaker or Deputy Speaker; or
(c) he resigns from office; or
(d) he dies."
By the defendant's contention, it logically follows that a minister or
deputy minister in a previous government whose appointment is not revoked before
a new President comes into power, will continue to be a minister even under this new
President, unless the said President revokes the appointment. And even if
the succeeding President is of a different political
party from that of the previous minister, that previous minister will continue to be a mi
nister under the opposition party's President. And unless the new President revokes that
minister's appointment, the minister will continue to hold himself out
as such and be entitled to the salary and benefits attached to that office. Even when the
new President appoints his own ministers, the previous ministers whose appointments
still stand unrevoked by the new President (for the defeated President's man
date would have expired with his defeat) would, on the defendant's sub mission, be
deemed to be in office. Is this not absurd?
Certainly, the correct position is that, even if the same President is re-elected for a second
term, his previous ministers whose appointments were not revoked before he
was inaugurated for a second term, cannot
claim to continue indefinitely as such in the second term, unless they are re-
appointed by the President. Indeed the very fact that the President announced that som
e of his former ministers were to be retained, is an implied admission that none of
the previous ministers
has an indefinite tenure of office or an automatic right to continue as a minister in the se
cond term of the President. Otherwise why should the announcement be made if, subject
to article 81, the previous ministers hold an indefinite tenure of office?

I think it is now firmly settled that a better approach to the interpretation of a provision
of the 1992 Constitution is to
interprete that provision in relation to the other provisions of the Constitution so as to re
nder that interpretation consistent with the other provisions and the overall tenor or
spirit of the Constitution. An interpretation based solely on a particular
provision without reference to the other provisions is likely to lead to a wrong
appreciation of the true meaning and import of that provision.
Thus in Bennion's Constitutional Law of Ghana (1962) it is explained at page 283 that it
is important to construe an enactment as a whole:
"... since it is easy, by taking a particular provision of an Act in isolation, to obtain a
wrong impression of its true effect. The dangers of taking passages out of their context
are well known in other fields, and they apply just as much to legislation. Even
where an Act is properly drawn it still must be read as a whole. Indeed a well-drawn
Act consists of an inter-locking structure
each provision of which has its part to play. Warnings will often be there to guide
the reader, as for example, that an apparently categorical statement
in one place is subject to exceptions laid
down elsewhere in the Act, but such warnings cannot always be provided."
I am therefore of the considered view that having regard to the obvious absurdity
involved in determining the tenure of office of a minister or deputy minister solely
on article 81, a recourse must be made to the broad outline of the type of government
created in the 1992 Constitution. Our 1992 Constitution provides fora government, as
distinct from the legislature and the judiciary, of an Executive President (article
58(1) and (4); assisted by the Vice-President (article 60), ministers and deputy ministers
of state (articles 78 and 79). The President is both the Head of State and the Head of
the Government (article 57), and he is assisted in the determination of the general
policy of the Government by the Cabinet which is made of the above team minus the
non-cabinet ministers (article 76). Now because the ministers are part and parcel of the
Executive Presi dent's Government, article 58(5) acknowledges that the signature of a
minister is sufficient to authenticate any constitutional or statutory instrument made or
issued in the name of the President.
The 1992 Constitution therefore creates a government of
an Executive President. And thus the term of office of the Executive President is the
term of office of that government. Of course, where the Executive President dies before
the end of his term of office, the Constitution empowers his Vice-President to complete
that term. Accordingly, the term of office of the Executive President is the term of
office of those who constitute the government, that is the Vice-President, ministers
and deputy ministers. Thus understood, it
becomes clear that article 81 provides for circumstances under which the office of
the minister or deputy minister will become vacant within the tenure of office of
the government under which
that minister or deputy minister is serving. The term of office of a minister or deputy
minister does not extend beyond that of the Government
which appointed that minister. If that government is re-elected into power, the minister
or deputy minister may be reappointed to the same office. And that was why it was
necessary for the NDC Government to announce that some of the previous ministers
were going to be re-appointed or retained.

The contention therefore that unless the office of a minister or deputy minister becomes
vacant in any of the ways provided for in article 81, he has an indefinite term of office,
is certainly untenable and inconsistent with the governmental structure provided for in
the Constitution. I would therefore uphold the plaintiff's contention that the term of
office of a minister or deputy minister
is coterminous with that of the government which appointed the minister, and that in-
between that term, the minister or deputy minister may lose his office in any of the
ways specified in article 81.
Now articles 78(1) and 79(1) which provide that the President should appoint his
ministers and deputy ministers with the prior approval of Parliament, do not draw a
distinction between fresh and re-appointed candidates. The two articles do
not exempt any category of nominee from the requirement of prior approval
of Parliament. For just as an incumbent President who seeks a second
term of office has to obtain the approval of the people through the ballot box and
thereafter go through another swearing-in-ceremony, so is a previous minister or
deputy minister who is to be retained in the next government, has to obtain
the prior approval of the elected representatives of the people, as provided in articles
78(1) and 79(1) of the I992 Constitution.
What does "Prior Approval" mean? Is it a term of art?
The plaintiff argues that the meaning of the expression "prior approval"
arises for determination because the defendant in his written submission
contended that: (a) no law currently in force calls for vetting; and (b) the process
by which Parliament exercises its sovereign powers cannot be questioned by the courts
- the allegedly political question doctrine.
Now after extensive examination of the political question doctrine especially in the light
of the US Supreme Court's decision in Powell v McCormack 395 US 486, the plaintiff
submits that in the US the fact
that the matter is a political question does not determine the matter, and that the Ghana
Supreme Court had equally maintained such a stand in New Patriotic Party v Attorney-
General (31st December Case), Supreme Court, 29 December 1993 and 8 March 1994, and a
dictum of Sowah JSC in Tuffour v Attorney-General [1980] GLR 637, SC.
Now the political question doctrine which the US Supreme Court invoked
in 1946 in Colegrave v Green 328 US 549 to avoid addressing the issue of
legislative malapportionmentis one of the oldest of the court's rationales
for not deciding a case. Other concepts and doctrines devised by the court for the same
purpose, are the doctrines of mootness, ripe ness, and
locus standi. The court also refuses to offer advisory opinion, and rejects collusive
suits: see HJ Abraham The Judicial Process (6th ed) chap 9 for further details on this
aspect.
The US Supreme Court devised these doctrines to circumscribe the exercise of
its power of judicial review - a power that was not expressly provided for in the US
Constitution but was deduced by the court as a logical consequence of the nature of
the judicial function. Thus in the very case of Marbury v Madison 1 Cranch 137 wherein
the power of judicial review was authoritatively asserted,
Marshall CJ recognized and defined the concept of political question at page
170 as follows:
"The province of the court is solely to decide on the rights of
individuals, not to inquire how the executive or executive officers perform
their duties in which they have a discretion. Questions in the nature political, or which
are, by the constitutional laws, submitted to the executive can never be made in court."
And in 1849 Taney CJ in Luther v Borden 7 How l also said:
"It is the province of a court to expound the law, not to make it. And certainly it is no
part of the judicial functions of any court of the US to prescribe the
qualifications of voters in a state ... nor has it the right to determine what political
privileges the citizens of a state are entitled to, unless there is an established constitution
or law to govern its decisions."
But what exactly constitutes a political question has not received a
unanimously consistent formulation and understanding among the US judges
themselves. However, Justice Brennan pointed out in Baker v Carr 369
US 186 (1962) that the mere fact that a suit seeks protection of a political right does not
mean that it presents a political question. The case of Baker v Carr (supra)
made the first bold attempt to establish a clear doctrinal
base for determining political question. The majority opinion therein found
that the ruling in Colegrove v Green (supra) was based on too broad a
definition of political question. A controversy involves a political question, said Justice
Brennan in Baker v Carr (supra), where there is a "textually demonstrable constitutional
commitment of the issue to a co-ordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it." This decision in Bakerv Carr (s
upra) was subsequently adopted and applied successfully in a number of cases
including Gray v Sanders 372 US 368 (1963); Wesberry v Sanders 376 US 1 (1964); Reynolds
v Sims US 533; Avery v Midland Country 390
US 474; and Wells v Rockfeller 394 US 542.
But when later in 1969 in Powell v McCormack (supra) the respondents asked the court to
dismiss the suit because it asked a political question, meeting several of the criteria set
out in Baker v Carr, it refused to do so: The issue in Powell :S- Case was whether the
House of Representatives could vote to exclude a member - Mr Powell - on grounds
that he had allegedly engaged in unethical activities. The court in particular rejected
the contention that the dispute was one in which a "textually
demonstrable constitutional commitment" to the House existed, enabling it to determine
its own membership. Rather the Constitution permits the House only to judge
the "qualification expressly set forth in the Constitution," which Powell
met. The court also rejected the criteria in Baker v Carr noting that:
"Our system of Government requires that the federal courts on
occasion interpete the Constitution in a manner at variance with a construction
given the document by another branch."
But quite interestingly, as recently as 1993 in Nixon v United States 506 US 19, the court
relied heavily on Baker v Carr (supra) to examine a domestic issue, ie

the impeachment of a federal judge who claimed that
the Senate used unconstitutional procedures in trying his case. The court
unambiguously ruled that the procedures used by Congress to handle impeachments
are not subject to judicial review. For the Constitution grants the Senate the sole power
to try all impeachments, and how the Senate organizes itself to discharge
that duty constitutes a political question.
It is therefore evident from the above short exposition that the attributes of the
political question doctrine are quite variable. As one of the judges in
Bakerv Carr (supra) aptly observed at page 210, the attributes:
"in various settings diverge, combine, appear and disappear in seeming
disorderliness." Thus, for example, in Goldwater v Carter 444 US 996 (1979)
which presented a challenge to President Carter's unilateral
termination of US Treaty with Taiwan, Justice Rehnquist held that the case presented a
political question. In his view, it involved a foreign policy
matter on which the Constitution provided no definitive answer. As such, it "should
be left for resolution by the Executive and Legislative branches."
Justice Powell on the other hand, held that the dispute did not present a political
question under Bakers principle. In his view, the case
only "touched" foreign affairs, with the major issue being "constitutional division of p
ower between Congress and the President." He wrote:
"Interpretation of the Constitution does not imply lack of respect for a co-
ordinate branch. If the President and the Congress had reached irreconcilable positions,
final disposition of the question presented by
the case would eliminate rather than create, multiple constitutional interpretations."
Such is the lack of unanimity among the United States judges in establishing the
precise content and application of their doctrine of political question. Thus
Prof Peltason view political questions as "those which judges choose not to decide, and
a question becomes political by the judges refusal to decide it." (see page 10 of
his Federal Courts in the Political Process 1955).
Fortunately the Ghana Supreme Court is not in the same position as the US Supreme
Court in the exercise of the power of judicial review. For, as
pointed out earlier, whereas the latter's power of judicial review was not provided in
the US Constitution but acquired through case law and therefore thought it prudent to
devise doctrines to circumscribe
its use, the 1992 Constitution of Ghana expressly and in no ambiguous terms invests the
Ghana Supreme Court with the power of judicial review in articles 2 and 130(1) thereof.
In this wise, whatever limitations there may be on the
Ghana Supreme Court's power of judicial review will have to be
gathered from the language and wording of articles 2 and 130(1) of the Constitution.
Now article l (2) of the 1992 Constitution upholds the supremacy of the Constitution, w
hile 2(1) provides that:

"Any 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."
Under article 2(2), the Supreme Court is empowered to
make orders or give directions to secure the enforcement of the declarations made
under article 2(1). While article 2(3)- (5) deals with obeying and sanctions for disobeying
such orders and directions. And finally article 130(1) gives the Supreme Court original
jurisdiction in the assignment specified in
article 2, and in questions involving the constitutionality of any law. The
cumulative effect of all these provisions is to vest in the Supreme Court
an original jurisdiction to entertain all cases relating to the enforcement and
interpretation of any provisions of the Constitution, and all questions
relating to the constitutionality of any enactment or any act or omission by any person.
Explaining the import of this power, the Committee of
Experts appointed under the Committee of Experts (Constitution) Law, 1991 (PNDCL
252), in their Report dated 31 July 1991, stated at page 161 paragraph 354: "This involves
the power to pronounce any act of Parliament or any measure of
the Executive unconstitutional." Accordingly where one alleges that the conduct of
Parliament, eg in passing a law is inconsistent with a provision like article 106 of the
1992 Constitution, the political question doctrine cannot forbid the Supreme Court from
determining the authenticity of the allegation. For as explained in para
graph 63, page 25 of the 1978 Memorandum of the Constitutional Commission:
"Constitutional government requires that all persons and
authorities in the State shall accept that the Constitution, the supreme law of the
land, shall be the source of all state power, and
that the courts shall be the sole and final interpreters of the Constitution
- what it a1lows and what it forbids."
The 1992 Constitution of Ghana therefore vests the Supreme Court of Ghana
with a more substantial power of judicial review than what the US Supreme Court
acquired in Marbury v Madison (supra).
Accordingly if by the political question doctrine, it is meant that where the Constitution
allocates power or function to an authority, and that
authority exercises that power or function within the parameters of that
provision and the Constitution as a whole, a court has no jurisdiction to interfere
with the exercise of that function, then I entirely agree that the doctrine applies in our
Constitutional jurisprudence. For this is what is
implied in the concept of the separation of powers. But if by the doctrine, it is meant
that even where the authority exercises that power in violation of that
constitutional provision, a court has no jurisdiction to interfere
because it is the Constitution which allocated that power to that authority, then I
emphatically disagree.
For two reasons: First, articles 2(1) and 130(1) of the 1992 Constitution empower this Su
preme Court to declare as null and void not
only any enactment but also any act or omission of any person which is inconsist ent or
in contravention of the Constitution. Secondly, if even the power or
function is entrusted exclusively to an authority (like in Nixon v US (supra) and in the
exercise of that function the authority is subject to no direction
or control of anybody, article 295(8) of the 1992 Constitution still empowers
the Ghanaian courts to enquire into whether that authority

is exercising that function in accordance with the Constitution. It reads:
"295(8) No provision of this Constitution or of any other law to
the effect that a person or authority shall not be subject
to the direction or control of any other person or authority in the
performance of any functions under this Con stitution or that law, shall preclude a court
from exercising jurisdiction in relation to any question whether that person
or authority has performed these functions in accordance with this Constitution or the law."
(The emphasis is mine.)
If the court finds that the function is being exercised in contravention of the
Constitution, then as empowered under articles 2(1) and 130(1) of the 1992 Constitutio
n, the Supreme Court has to declare the said exercise, null and void.
Our 1992 Constitution is clearly then unique in its marvellous detail.
And the Ghana Supreme Court's power of the judicial review
cannot therefore legitimately be subordinated nor even equated to that of

the US Supreme Court. Actually judicial review feeds on constitutional detail. For as
Lawrence M Friedman in his book A history of American Law (1973) at page 107 states:
"... the more clauses a constitution [contains], especially
clauses that [do] something more than merely set out the basic frame of government, the
more potential occasions for the exercise of the power of review."
Thus in Ghana, the very detailed nature of the 1992 Constitution,
coupled with: (i) the empowerment of any "person who alleges" to come to
court (article 2(1); (ii) the duty imposed on every citizen to uphold and
defend the Constitution and the law (article 41(b); (iii) the making of the Attorney-
General, a compulsory defendant in all such cases; and (iv) the availability of
legal aid to any such insolvent litigant (article 294) - can not effectively stem the
tide and contain the volume of judicial review litigation. Indeed no judicial self-
restraint doctrine can sufficiently assist the Ghana Supreme Court to refrain
from deciding cases involving the constitutionality or otherwise of a law or action or
omission of any authority. All that is required for the busy-body litigant is to allege
that a law or a provision thereof, or an action taken under that law, or an action or
omission of a person is inconsistent with the Constitution, and the stage is set to drag in
the Attorney-General as the defendant.
Now back to the meaning of the expression "prior approval."
The plaintiff, relying heavily on the debate at the Consultative Assembly which drew
up the 1992 Constitution, submits that it was clearly the intention of
the members of the Assembly that prior approval should imply "consideration and
vetting." He also makes references to the meaning of the word "approval" in various
dictionaries. The Attorney-General, on the other hand, demonstrates from other
provisions in
the 1992 Constitution where the expression is used, that the interpretation of the plaintif
f would not be applicable in all such cases. He refers in particular to articles 60(10),
89(6), 124(5), 174(2) and 180.
Now, the expression "prior approval" appearing in the various provisions of the
1992 Constitution is not defined anywhere in the Constitution. Black's Law
Dictionary abridged (6th ed) 1991, referred to by the plaintiff, defines "approval" as:
"The act of confirming, ratifying, assenting, sanctioning, or
consenting to some act or thing done by another. 'Approval' implies knowledge and
exercise of discretion after knowledge."
Again in Websters New International Dictionary (3rd ed) (The English Language
Unabridged) 1968, "approval" is defined as "act of ap proving." And the verb "approve"
is defined as:
1 " To demonstrate the truth or correctness, establish as a fact as being sound;
2 Test, try, experience;
3 Make or show to be worthy of approbation or acceptance;
4 To judge and find commendable and acceptable;
5 To express often formally agreement with and support of or commendation of as
meeting a standard."
Clearly in none of the above definition is "approval" defined as "consideration and
vetting." Then at the Consultative Assembly, it is evident from the passages quoted
by the plaintiff in his written submission that
members used other words like "screening," "approval," "assessed" and "scrutiny" in
addition to "vetting." Indeed the common sense implication of the expression "prior
approval" is to obtain the consent of the relevant
authority. As to how that body, and in this case Parliament, may proceed to give
this consent, article 110(1) provides: "Subject to the provisions of this Constitution,
Parliament may, by standing orders, regulate its own procedure."
In my view, the above provision empowers Parliament by standing orders to regulate
its own procedure provided same does not infringe a provision of
the Constitution. Thus the courts cannot intervene at the suit
of a person who desires a different procedure, if the one he objects to is equally
constitutional. For it is not the province of the court under articles 2 and 130(1) of the
1992 Constitution to direct Parliament or the Executive on how to conduct its
proceedings or perform its business if the procedure or action adopted
infringes no provision of the Constitution. As succinctly stated in Tuffour v Attorney-
General (supra) per Sowah JSC at page 6S1:
"In so far as Parliament has acted by virtue of the powers conferred upon it by the
provisions of article 91(1) [of the 1979 Constitution], its actions within Parliament are a
closed book." (The emphasis is mine.)

And Archer CJ also said in New Patriotic Party v Attorney-Genera/ (31st December
Case) (supra):
"The Constitution gives the Judiciary power to interprete and enforce the Constitution
and I do not think that
this independence enables the Supreme Court to do what it likes by undertaking
incursions into territory reserved for Parliament and the Executive. This court should
not behave like an octopus stretching its eight tentacles here and there to
grab jurisdiction not constitutionally meant for it."
Now based on the variety of definitions of the word "approve" and
the various expressions used at the Consultative Assembly, I cannot say
that the framers intended "prior approval" to imply nothing but "consideration and
vetting." Especially so, as such an interpretation cannot be applied consistently
in the remaining provisions of the Constitution where the expression "prior approval" is
used. For article 124(5), for example reads:
"The Parliamentary Service Board shall, with the prior approval
of Parliament, make regulations by constitutional instrument ..."
Consequently the contention that prior approval is a term of art and necessarily implies
"consideration and vetting" cannot be upheld.

Conclusion
In the end I hold that every presidential nominee for ministerial appointment, whether
retained or new, requires the prior approval of Parliament. And that prior approval is
not a term of art.
Accordingly I would refuse the plaintiff's second and third reliefs. In respect of
the first relief, I take judicial notice that a newly inaugurated
Parliament cannot immediately be ready with its various committees to approve
of presidential nominees. The 1969 Constitution of Ghana, in
article 64(3) thereof took care of the interim period from the inauguration of t
he President and Parliament to the time Parliament gets settled down
to approve nominees for ministerial appointments. There is no such pro
vision in the 1992 Constitution. But until Parliament acting under article
298, makes law to regulate the interim period, I would simply hold that on a
true and proper interpretation of the Constitution particularly
articles 57(3), 58(1) and (3), 66(1), 76(1) and (2), 78(1), 79(1), 80, 81,97(1), 100(1), and
113(1) and (3) no person can in each Parliament of the
Fourth Republic, after a reasonable time from that Parliament inauguration, act as a
minister or deputy minister of state without the prior approval of that Parliament.
SOPHIA AKUFFO JSC. I have previously had sight of the judgment of
my learned brother Acquah JSC and I do not believe that I have anything cogent to add
which he has not adequately touched upon. I, therefore, attach myself to his opinion
and I agree that:

(i) a nominee for ministerial appointment does, indeed, require the prior approval
of Parliament;
(ii) the requirement of prior parliamentary approval affects both new and holdover
ministers; and
(iii) the expression "prior approval" is not a term of art.
First relief of claim granted. Second and third reliefs dismissed.
SYBB

J H Mensah Vrs Attorney-General

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Xperts LAW ONLINE REPORT www.xpertslawgh.

9 wrote at page 4 thus:

is given by adherence to the law. He expresses himself personally to

victim who has been singled out; it is the

same for everybody, he says. And how many a defeated litigant

the journey of writing this opinion.

"(i) on a true and proper interpretation of the Constitution

the Fourth Republic of his appointment.

lawfully act or hold himself out as a Minister or Deputy Minister of State."

Later the plaintiff officially laid a copy before

ance and Economic Planning

he copy of the writ was laid before Parliament, ie 7 February

1997. With this information, the Leader of Parliament, Honourable JH Owusu-

Acheampong, announced to Parliament that in view of the pendency

of the action before

court, the purported appearance before the House of Mr Kwame Peprah,

to present the Budget Statement, or any other person describing himself

Parliament of the Fourth Republic would be subjudice and would be deferred.

By virtue of Order 172(2) of the Standing Orders of Parliament,

it is the duty of the Appointments Committee of Parliament to recommend to

Parliament for approval or

ministers. By his letter Ref OP/ S 807 dated IO February, the

seven Ministers of State.

The Appointments Committee of Parliament met on 13 February 1997

minister is retained as a minister or deputy minister by the

President, it shall not be necessary for the minister or deputy minister to

be summoned to appear before the Appointments Committee for recommendations

to be made to Parliament for re-approval of the minister or deputy minister in view of

the previous parliamentary approval.

day 14 February 1997, the Chairman of the Appointments Committee, Honourable Mr D

zirasah, who is also the First Deputy

Speaker of Parliament, introduced a motion in Parliament calling on Parliament to accept

the decision of the Appointments Committee mentioned above. There

upon Parliament resolved that if a person has been appointed a minister or

deputy minister with the approval of a previous Parliament, and as an incumbent

Parliament, ie the current Parliament, to give another approval of such minister

or deputy minister. The said ministers were never made to appear

f Parliament by his letter Ref

aforementioned dated 10 February 1997, conveyed the resolution of Parliament

"If a person has been appointed a minister or deputy minister

with the approval of Parliament and as an incumbent minister or deputy minister,

re the underlisted Ministers of State stand approved by Parliament:

1. Mr Richard Kwame Peprah - Minister of Finance

2. Mr J H Owusu-Acheampong - Minister of Parliamentary Affairs

3. Dr Eunice Brookman-Amissah - Minister of Health

4. Mr Cletus Avoka (MP) - Regional Minister, Upper East Region

5. Mr Edward Saliah - Minister of Transport & Communications

6. Mrs Vida A Yeboah (MP) - Minister of Tourism

7. Dr Kwabena Adjei (MP) - Minister of Lands and Forestry."

opportunity to read his Budget.

Amendment of the plaintiff's writ

of claim to insert as a new relief (ii) the following:

nominee for ministerial appointment by the Second Parliament of the Fourth

ministers of State appointed by the President of the Fourth Republic."

written submissions. In reply the Attorney-General submitted that the application

We granted the application, but reserved our reasons to be embodied

the Supreme Court Rules, 1996 (CI 16), to

such terms as the court may determine. We were satisfied

week of service of the plaintiff's submission on him.

, Issues that call for determination

The issues that call for determination in this case are:

(i) whether the term of office of ministers and