THE DOCTRINE OF NON-JUSTICIABLE

POLITICAL QUESTION IN GHANA

This doctrine was first pronounced in Marbury v Madison 5 us (1 Cranch)

137 (1803) by the United States Supreme Court when it held that the principle of
the separation of powers made certain questions non-justiciable because
adjudicating those questions would intrude into the powers of the political
branches of government .
The question which begs for an answer then is, when/how does a question become
non-justiciable ?

Simply, a question becomes non-justiciable if adjudicating such a question will

lead to intruding into the powers of a political branch of government.
The doctrine means that, when under the Constitution, the determination of a
particular matter is exclusively committed to one branch or branches of
government such as the Executive and the Legislature, another branch of
government, namely the Judiciary, cannot interfere with the determination of that
particular question.

This is to say that,where there is a textual commitment of a particular matter to a

co-ordinate organ of government,the Courts are excluded from questioning the
determination of that matter.

In the New Patriotic Party v Attorney General [1993-94] 2 GLR 35,SC Hayfron-
Benjamin JSC said at page 179:
“It seems to me therefore that by the nature of our Constitution the principle of a
non-justiciable political question can only arise where the Constitution , 1992
expressly commits a particular responsibility to some arm of government”

It is instructive to note that, a question must fall within a specific criteria before it
can be considered a political one. In the case of Baker v. Carr, 369 u.s 186 (1962),
which is considered to give the clearest articulation for the criteria for determining
what constitute a political question, Justice Brennam outlined the following six
criteria for assessing when a case may be dismissed under the political question
doctrine:
1. textually demonstrable constitutional commitment of the issue to a
coordinate political department:
 2. lack of judicially discoverable and manageable standard for resolving it

3. the impossibility of deciding without an initial policy determination of a

kind clearly for non-judicial discretion
4. the impossibility of a court undertaking independent resolution without
expressing lack of the respect due coordinate branches of government
5. an unusual need for unquestioning adherence to a political decision already
made
6. the potentiality of embarrasment from multifarious pronouncements by
various departments on one question.

EFFECTS OF NON-JUSTICIABLE POLITICAL QUESTION

DOCTRINE
The non-justiciability of a political question is primarily a
function of separation of powers (see Ghana Bar Association v.
Attorney General and Another [1995-96] 1 GLR 597 ). Thus,
the doctrine minimizes the claims and factors that have the
potential to undermine the principle of separation of powers. It
serves to prevent the Courts from intruding unduly into certain
policy choices and judgements that are constitutionally
committed to other branches of government.
Political questions are strictly decided by the political branches
and not the Courts.

THE DIFFIERENCE BETWEEN POLITICAL QUESTION

AND POLITICAL CASE
There is a sharp difference between a political question and a
political case. The Courts can properly inquire into all political cases
such as election petitions(e.g 2012 election petition, 2020 election
petition). This is to say that, when a political party like the NDC
goes into a parliamentary primaries and the results in the Anyaa
Sowutuom Constituency declares Mr. X the winner and Mr Y who
was also an aspirant in that election thinks the election was rigged,
Mr Y may bring an action to the Court and the Court has jurisdiction
to adjudicate such matter even though it is a political case.

In other words, if say, the NPP goes into an election to elect their
national party executives and Mr. A is declared the winner of the
National Chairman position and Mr. B who was also an aspirant
thinks the election was not fair, he may bring an action to the Court
and the Court has jurisdiction on that matter.

NB:
This is not to say that it takes only the persons involved in the
election to bring an action to the Court.

On the contrary, matters of political question cannot be determined

by the court. For instance, in the J.H Mensah v. Attorney General
case,the Court could go the extent of ruling that whenever the
President appoints a new Minister of Sate, he must have the prior
approval of Parliament. The Court could not determine how the
approval must be done as it considered that a political question. In
the case, when the plaintiff wanted the Court to equalize “prior
approval” to “vetting”, the Court could not do it. The Court admitted
that, the consent of Parliament must be sought in any legal way the
Parliament may want to go by and no Court could tell them how
their approval must be sought. Thus, how Parliament may want to go
by their approval is a political question which the Court could not
determine.
Similarly, in the case of Ghana Bar A ssociation v. Attorney General
(Abban case)[1995-96] 1 GLR 59, The plaintiffs sought a
declaration ,inter alia, that the second defendant, Mr Justice I K
Abban was not a person of high moral character and proven integrity
in terms of article 128(4) of the Constitution,1992. The plaintiffs
further sought a declaration the appointment of the second defendant
as the Chief Justice, as well as the advice of the Council of State and
the approval by Parliament, were done in contravention of articles
9(1) and (2) ,128(4) and 144(1) of the Constitution ,1992 and were
therefore null and void.
The defendant argued that his appointment
by the President was a matter which could not be determined by the
Court as the Constitution vested that power strictly in the Executive
in article 144(1). With this view, the defendant meant the matter of
his appointment was non-justiciable. The Court was pursuaded by
this argument and finally dismissed the action since it saw it non-
justiciable.

THE GHANAIAN COURTS AND THE POLITICAL QUESTION

DOCTRINE
The Supreme Court of Ghana has applied the doctrine with some inconsistency
under the 1992 Constitution. In some cases such as the New Patriotic Party v.
Attorney General ( the 31st December case) and the New Patriotic v. Attorney
General (the ciba case), the Court held that, the doctrine of political question is
inapplicable under the Constitution, 1992.
On the contrary, in cases such as the Ghana Bar A ssociation v. Attorney
General(the Abban case) the court admitted that the principle is
applicable under the Constitution 1992.

However, the position of the law is that, so far as the practice of

separation of powers is recognized by the Constitution, the principle
of political question doctrine forms part of our constitutional law.
Without this principle, how do we measure checks and balances and
make sure it does not lead to unnecessary interference ?

BOAKYE DJAN KWAKU

0597314088
djankwakub@gmail.com