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Constitutional law -
Interpretation – Creation of
Municipalities Instrument, -
Whether or not any Executive
Instrument by which the
President declares any area
within Ghana to be a district
should be placed before
Parliament - Whether or not
executive order does not have
legislative effect and should
not, therefore, in principle be
laid before Parliament
HEADNOTES
The plaintiff
contends that the Creation of
Districts Instrument, 2011 (E.I.
80), the Creation of
Municipalities Instrument, 2011
(E.I. 81) and the Declaration of
Municipalities Instrument, 2011
(E.I. 82) which were made on 22nd
November, 2011 and gazetted on
the 25th November,
2011 were made in contravention
of the above-quoted Article
11(7) of the 1992 Constitution
and therefore should be declared
null and void. The main issue
in controversy is whether these
executive instruments are in the
nature of an “Order, Rule or
Regulation” made by a person or
authority under a power
conferred by a law. The
plaintiff relies on the
Interpretation Act, 2009 (Act
792) to sustain his
argument. His contention is
that the Constitution does not
contain a definition of “Order,
Rule or Regulation”. He submits
that there is an ambiguity as to
the meaning of the phrase, as
used in Article 11(7). There is
thus justification for resorting
to the Interpretation Act, 2009
to help ascertain the meaning of
the phrase. Seizing on a passage
from the Memorandum, the
plaintiff argues that the
framers of the Interpretation
Act, 2009 intended that the
meaning of “statutory
instrument” or “statutory
document” should be the
yardstick for determining the
applicability of Article 11(7).
A statutory instrument is
defined in section 1 of the
Interpretation Act, 2009 as: “an
instrument made, whether
directly or indirectly, under a
power conferred by an Act of
Parliament.” He therefore
concludes that an executive
instrument is a statutory
instrument and falls within the
category of Orders, Regulations
and Rules, within the intendment
of article 11(7). Accordingly,
E.I. 80, E.I. 81 and E.I. 82,
being statutory instruments
should have been laid before
Parliament, in compliance with
article 11(7).
HELD
The extent of
the impact of executive action,
which is highlighted in
paragraph 17 of the plaintiff’s
Supplementary Statement of Case
(supra), is no justification for
this court to transform the
legal character of the action
embodied in an executive
instrument from executive to
legislative. Accordingly, the
plaintiff’s arguments which
contend that, in the interest of
good governance, executive
instruments which have a wide
impact on the public should be
submitted to the article 11(7)
procedure are untenable.
In the result, we
would dismiss the plaintiff’s
action as being without legal
foundation. An executive
instrument is not an “Order,
Rule or Regulation” within the
intendment of article 11(7) of
the 1992 Constitution. Finally,
there is need to state for the
record that though the defendant
was served, he chose not to file
anything in response to the
plaintiff’s pleadings.
STATUTES
REFERRED TO IN JUDGMENT
Local
Government Act, 1993 (Act 462)
Interpretation Act, 2009 (Act
792)
CASES
REFERRED TO IN JUDGMENT
Amegatcher v
Attorney-General (SUIT NO
J1/8/2012, 26th July
2012
Republic v
Minister for the Interior; Ex
parte Bombelli. [1984-86] 1 GLR
204.
Republic v
High Court; Ex Parte
Attorney-General (Titiriku I &
Others Interested Party)
2007-2008 SCGLR 665
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
GODFRED DAME
YEBOAH FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE DEFENDANT.
J U D G M E N T
_____________________________________________________________________
DR. DATE-BAH
JSC:
This is the
unanimous judgment of the
Court. The basic issue raised
in this case is whether when the
Executive is authorised to issue
an executive instrument under
the enabling authority of a
statute, the Executive is
obliged to lay that executive
instrument before Parliament
before it can validly come into
force. This Court held in
Amegatcher v Attorney-General
(SUIT NO J1/8/2012, judgment
delivered on 26th
July 2012) that Parliament
had lawfully and
constitutionally authorised the
President to create districts by
executive action. Section 1(2)
of the
Local Government Act, 1993 (Act
462) provides that:
“(2) The
President may, by executive
instrument—
(a) declare
an area to be a district; and
(b) assign a
name to the district.”
The
contention of the plaintiff in
this case is that the
executive
instrument by which the
President declares any area
within Ghana to be a district
should be placed before
Parliament, because it comes
within the intendment of article
11(7) of the 1992 Constitution.
Article 11(7)
states that:
“(7) Any Order, Rule or
Regulation made by a person or
authority under a power
conferred by this Constitution
or any other law shall -
(a) be laid before Parliament;
(b) be published in the Gazette
on the day it is laid before
Parliament; and
(c) come into force at the
expiration of twenty-one sitting
days after being so laid unless
Parliament, before the
expiration of the twenty-one
days, annuls the Order, Rule or
Regulation by the votes of not
less than two thirds of all the
members of Parliament.”
The plaintiff contends that the
Creation of Districts
Instrument, 2011 (E.I. 80), the
Creation of Municipalities
Instrument, 2011 (E.I. 81) and
the Declaration of
Municipalities Instrument, 2011
(E.I. 82) which were made on 22nd
November, 2011 and gazetted on
the 25th November,
2011 were made in contravention
of the above-quoted Article
11(7) of the 1992 Constitution
and therefore should be declared
null and void. The main issue
in controversy is whether these
executive instruments are in the
nature of an “Order, Rule or
Regulation” made by a person or
authority under a power
conferred by a law.
The plaintiff relies on the
Interpretation Act, 2009 (Act
792) to sustain his argument.
His contention is that the
Constitution does not contain a
definition of “Order, Rule or
Regulation”. He submits that
there is an ambiguity as to the
meaning of the phrase, as used
in Article 11(7). There is thus
justification for resorting to
the Interpretation Act, 2009 to
help ascertain the meaning of
the phrase.
The Memorandum to the
Interpretation Bill, 2009 states
as follows, in relation to
Article 11(7) of the
Constitution:
“Each of these instruments would
fall under the definition of
statutory instrument or
statutory document as specified
in clause 1 of the Bill. There
are other instruments not
mentioned under article 11 of
the Constitution, such as
Bye-Laws and Proclamations. The
express mention of Orders,
Regulations and Rules excludes,
by necessary implication, the
other statutory instruments or
statutory documents not so
mentioned. These instruments,
therefore, do not fall within
the ambit of article 11.”
Seizing on this passage from the
Memorandum, the plaintiff argues
that the framers of the
Interpretation Act, 2009
intended that the meaning of
“statutory instrument” or
“statutory document” should be
the yardstick for determining
the applicability of Article
11(7). A statutory instrument
is defined in section 1 of the
Interpretation Act, 2009 as: “an
instrument made, whether
directly or indirectly, under a
power conferred by an Act of
Parliament.” He therefore
concludes that an executive
instrument is a statutory
instrument and falls within the
category of Orders, Regulations
and Rules, within the intendment
of article 11(7). Accordingly,
E.I. 80, E.I. 81 and E.I. 82,
being statutory instruments
should have been laid before
Parliament, in compliance with
article 11(7).
This interpretation is not
persuasive. For a start,
section 10(2)(b) of the
Interpretation Act, 2009 states
merely as follows:
“A Court may,
where it considers the language
of an enactment to be ambiguous
or obscure, take cognizance of
(a)…
(b) the
explanatory memorandum as
required by article 106 of the
Constitution and the arrangement
of sections which accompanied
the Bill;”.
The
memorandum is thus merely an aid
to interpretation and nothing in
it is binding on this Court, as
counsel for the plaintiff sought
to argue. Thus this Court does
not inexorably have to accept
the plaintiff’s argument (based
on his reading of the Memorandum
to the Interpretation Bill,
2009) that the E.I.s referred to
above, being statutory
instruments, but not being
Bye-laws or Proclamations, must
necessarily be construed to come
within the ambit of article
11(7) of the 1992 Constitution.
There are
sound reasons for this Court to
exclude executive instruments
from the ambit of the Order,
Rule or Regulation referred to
in article 11(7) of the
Constitution. To begin with,
the Interpretation Act, 2009, in
section 1, defines an executive
instrument as:
a)
“an instrument specified by an
Act of Parliament as an
executive instrument; or
b)
a statutory instrument which is
of an administrative character
or of an executive character and
is not an instrument
i.
of a judicial character, or
ii.
of a legislative character;”
It is clear
from this definition that
executive instruments are not of
a legislative character.
Granted that this is so, what is
the purpose to be served in
placing this executive act
before the legislature. It is
clear from the context and
spirit of the Constitution that
the framers could not have
intended that executive
instruments should be placed
before Parliament in accordance
with article 11(7).
Koranteng-Addow J. came to a
similar conclusion in
Republic
v Minister for the Interior; Ex
parte Bombelli. [1984-86] 1 GLR
204. Her Ladyship there
said (at p. 211):
“This is a
convenient point to deal with
the second ground of the
application, ie whether EI 27 of
1980 passes the test in article
4 (7) of the Constitution, 1979.
It is the mainstay of the
application. Was the minister
required to publish the order in
the Gazette, and lay it before
Parliament for 21 sitting days
before the order became
effective? Article (7) of the
Constitution provides that "Any
Orders, Rules or Regulations
made by any person or authority
under a power conferred in that
behalf " shall be laid before
parliament, etc. The question
here is therefore
whether
the executive instrument
ordering the deportation of the
applicant is an instrument which
should have been laid before
Parliament to be effective.
Although an "order", the
question is whether it falls
within the meaning of "Orders"
as contemplated by article 4 (7)
of the Constitution, 1979.
Going by the
wording of article 4 (7) one is
tempted to think that such an
order as the one issued by the
minister for the deportation of
the applicant falls within the
"orders" covered by article 4
(7). On a closer look and proper
interpretation of the
sub-article it becomes obvious
that such an order as the one
issued by the minister falls
outside the scope of article 4
(7). By the canon of
interpretation, namely the
principle of the rule noscitur a
sociis one readily sees that the
word "Orders" in article 4 (7)
can only mean "orders" in the
form of rules and regulations -
not a command such as the order
issued by the minister.
According to this rule of
interpretation, a word takes its
meaning from the company it
keeps, and "orders" in article 4
(7) should be interpreted as
"orders" such as rules and
regulations. To fall within the
definition of article 4 (7) an
order must be a legislative
order. Although a statutory
instrument, an executive
instrument is neither
legislative nor an instrument of
a judicial nature. Section 5 of
the Statutory Instruments Act,
1959 (No 52 of 1959) defines
executive instruments as
"Statutory Instruments other
than legislative instruments or
instruments of a judicial
character." Since executive
instruments do not partake of
the nature of rules and
regulations I would think they
fall outside the orders which
are to be laid before Parliament
before they become effective. It
definitely cannot be in the
public interest to publish it or
lay before Parliament for 21
days. If such orders were to be
published for 21 days then the
minister cannot exercise that
power in times of emergency.”
Although
Justice Korangteng Addow did
express this view, she in the
end referred the issue on which
she had indicated her opinion to
the Supreme Court for its
authoritative interpretation.
Her view was thus not finally
authoritative, being the view of
a High Court and being
tentative, pending a binding
determination by the Supreme
Court. The view of the Supreme
Court, if it expressed one, does
not appear to have been
reported. The view of Koranteng
Addow J in the High Court is
certainly not binding on this
Court. Nevertheless, the
opinion that she expressed was a
sound one. The purpose for
laying subsidiary legislation
before Parliament is for it to
mature into a binding
enactment. This purpose is
alien to an executive order. An
executive
order does not have legislative
effect and should not,
therefore, in principle be laid
before Parliament. The
arguments of the plaintiff to
the contrary have not persuaded
us that this position of
principle has been altered by
any of the legal materials that
he relies on. Accordingly, our
interpretation of Article 11(7)
of the 1992 Constitution is that
it does not apply to executive
instruments. Accordingly, the
executive instruments impugned
by the plaintiff are valid.
The arguments
by which the plaintiff seeks to
assert that article 11(7) of the
1992 Constitution applies to the
impugned executive instruments
manifests a dogged refusal to
accept the ratio decidendi of
Amegatcher v Attorney-General
(supra). In that case, this
Court held that it was
constitutional for Parliament to
have chosen the option of
conferring on the President the
power to create districts by
executive action. Given that
decision by this Court, when the
President creates districts, he
is deploying the executive
authority of the State; not a
power of subsidiary legislation.
Thus the
plaintiff refuses to accept
legal reality when he contends
as follows in his Supplementary
Statement of Case (in paragraph
15):
“…The Constitution of Ghana
provides as follows:
“241.
(1) For the purposes of local
government, Ghana shall be
deemed to have been divided into
the districts in existence
immediately before the coming
into force of this Constitution.
(2) Parliament may by law make
provision for the redrawing of
the boundaries of districts or
for reconstituting the
districts.
(3) Subject to this
Constitution, a District
Assembly shall be the highest
political authority in the
district, and shall have
deliberative, legislative and
executive powers.”
Pursuant to
this power assigned to
Parliament to make provision by
law for the redrawing of
boundaries of districts and to
reconstitute new districts,
Parliament enacted the Local
Government Act, 1993 (Act 462)
which affirmed the
constitutional measure of
legalizing the districts in
existence immediately before the
coming into force of the
Constitution, 1992 and also made
provision for how new districts
can be created. Act 462
assigned the power to create new
districts by subsidiary
legislation, to the President.”
The assertion
in the last sentence is palpably
incorrect. Amegatcher v
Attorney-General did not hold
that the President was to create
new districts by subsidiary
legislation, but rather by
executive action duly authorised
previously by Parliament. The
plaintiff continues in his
refusal to accept the authority
of Amegatcher in the following
vein (paragraph 16):
“It is our
respectful submission that a
true and proper construction of
Article 241 will reveal
that basis for the existence of
districts in the country is
legal. The framers of the
Constitution, undoubtedly aware
of the fact that a district in
Ghana will require some legal
basis for its existence,
constitutionally sanctioned in
Article 241 the division
of the country into districts
and further made provision for
how new districts can be
created. Pursuant to this,
Act 462 was passed by
Parliament and same accorded to
the President the power to
create new districts and redraw
the boundaries of new districts
by an executive instrument.
Effectively, it is accurate to
say that this power of His
Excellency the President to
create new districts, is an
exercise by the executive of the
power of subsidiary
legislation.”
Wrong again!
The creation of districts by
executive instruments issued by
the President is not an exercise
of the power of subsidiary
legislation. It is rather the
exercise of executive power, in
contradistinction from the
exercise of legislative power.
This, with respect, is the
erroneous analysis which has
driven the plaintiff’s
persistence in maintaining that
the impugned executive
instruments should comply with
the requirements of article
11(7). Executive instruments do
not constitute subsidiary
legislation, even though they
are statutory instruments. As
already noted, a statutory
instrument is defined in section
1 of the Interpretation Act,
2009 as: “an instrument made,
whether directly or indirectly,
under a power conferred by an
Act of Parliament.” Executive
instruments, clearly, fall
within this definition.
However, simply because
executive instruments are
statutory instruments does not
mean they constitute subsidiary
legislation. To be subsidiary
legislation, they have to be of
a legislative nature. The
definition of an executive
instrument in section 1 of the
Interpretation Act, 2009 shows
that it must not be of a
legislative character. This
simple truth is what makes
fallacious the central assertion
in the following passage from
the plaintiff’s Supplementary
Statement of Case (paragraph
17):
“Respectfully, to avoid an
application of article 11(7)
merely because the creation of
districts is an executive act,
will strike in absurdity. This
will be so when account is taken
of the fact that certain
executive decisions of the
President to the extent that it
affects a majority of the people
in this Republic, are enjoined
to the Constitution to receive
the sanction of Article
11(7). For example, even
though the creation of regions
under article 5 is a pure
executive act as held in the
seminal case of
Republic v High Court; Ex Parte
Attorney-General (Titiriku I &
Others Interested Party)
2007-2008 SCGLR 665, the
President is required to do so
by a constitutional instrument
which undoubtedly is laid before
Parliament. The only difference
is that the instrument by which
the President creates new
regions is characterized as a
constitutional instrument, by
virtue of its enactment pursuant
to powers conferred on the
President by the
Constitution, 1992.”
The
instrument by which the
President exercises his power of
creating new districts is
expressly characterised in the
statute that gives him that
power as an executive
instrument. Executive
instruments, according to their
definition in the Interpretation
Act, 2009, are not of a
legislative character.
Therefore, for us, they do not
have to comply with article
11(7) of the 1992 Constitution.
It is thus not permissible for
this Court to accept the
invitation from the plaintiff to
accord a differential treatment
to particular kinds of executive
instruments. All kinds of
executive instruments are the
means for implementing executive
authority. There is no
credible justification for
requiring such instruments to be
laid before Parliament, when
they do not have a legislative
character. A contextual and
purposive interpretation of
article 11(7) of the 1992
Constitution leads inevitably to
the conclusion that it is
intended to apply to instruments
of a legislative nature.
The extent of
the impact of executive action,
which is highlighted in
paragraph 17 of the plaintiff’s
Supplementary Statement of Case
(supra), is no justification for
this court to transform the
legal character of the action
embodied in an executive
instrument from executive to
legislative. Accordingly, the
plaintiff’s arguments which
contend that, in the interest of
good governance, executive
instruments which have a wide
impact on the public should be
submitted to the article 11(7)
procedure are untenable.
In the
result, we would dismiss the
plaintiff’s action as being
without legal foundation. An
executive instrument is not an
“Order, Rule or Regulation”
within the intendment of article
11(7) of the 1992 Constitution.
Finally, there is need to state
for the record that though the
defendant was served, he chose
not to file anything in response
to the plaintiff’s pleadings.
(SGD) DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME
COURT
(SGD) J.
ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) S. O.
A. ADINYIRA (MRS.)
JUSTICE OF THE SUPREME
COUR
(SGD) ANIN -YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE- BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO –
BAMFO (MRS.)
JUSTICE OF THE
SUPREME COURT
COUNSEL
GODFRED DAME
YEBOAH FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY ) FOR THE DEFENDANT.
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