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Constitutional law ‑ Constitution ‑ Interpretation ‑ Plaintiff seeking interpretation of Constitution 1992 ‑ No grievance or remedy sought ‑ Whether court may grant declaration.

The plaintiff issued a writ of summons in the Supreme Court for certain declarations under section 34 of the transitional provisions of the Constitution 1992, of the Republic of Ghana. In his statement of claim the plaintiff explained that the meaning of the section was unclear, hence the action. The defendant contended that the writ did not disclose a cause of action and ought to be dismissed.

Held, the duty of the court was to interpret the constitution in the context of disputes, not to tender advice to prospective litigants, which was the role of solicitors in private practice. The plaintiff did not claim that his right had been infringed or threatened. The court could not make declarations in a vacuum. The plaintiff would have been entitled to seek an interpretation of the section if he had instituted the action against a particular person in respect of an act or omission and such person sought shelter under the section. On the pleadings, any declaration made would be in vacuo. The writ did not disclose a cause of action and would be dismissed.

ACTION by the plaintiff for declarations under the 1992 constitution of Ghana.

Obeng Manu (with Osei Acheampong) for the plaintiff.

Martin Amidu, Deputy Attorney-General (with Mrs Adusa-Amankwah) for the defendants.

ADADE JSC. By his writ filed on 26/8/93, the plaintiff seeks:

“(a) A declaration that upon the true and proper interpretation of section 34 of the transitional provisions of the Constitution of the Republic of Ghana 1992, only:

i. acts or omissions by persons which brought about the overthrow of the government of the 1st, 2nd and 3rd Republics of Ghana;

ii. acts or omissions of persons which occasioned the suspension or abrogation of the 1st, 2nd and 3rd constitutions of the Republic of Ghana;

iii. acts or omissions of persons which led to the establishment of the military regimes, namely, the National Liberation Council (NLC), the National Redemption Council (NRC), the Supreme Military Council (SMC I and II), the Armed Forces Revolutionary Council (AFRC) Provisional National Defence Council (PNDC) and persons who acted or omitted to act on the instructions or authority of any of the aforementioned regimes, that are indemnified but not otherwise.

(b) A declaration that it is part of the fundamental human rights and freedoms provided in Chapter Five of the Constitution of the Republic of Ghana 1992, that:

i. all persons in Ghana are equal before the law (article 17(1));

ii. persons aggrieved by the acts or omissions of others have the right to seek redress before a court or a tribunal (article 23);

iii. any enactment including the said section 34 of the transitional provisions which expressly or by necessary intendment seeks to impede the citizens’ access to the courts, or purports to take away the citizens’ right to seek redress before the courts or denies any citizen the benefit or enjoyment of the said constitutional provision of equality before the law is contrary to the rule of law, unconstitutional and void.”

The plaintiff attached to his writ a statement of his case, which, because of its brevity, I find necessary to reproduce in full.

“STATEMENT OF PLAINTIFF’S CASE

1. The plaintiff is a citizen of Ghana and lives in Kumasi, Ashanti.

2. The plaintiff is a medical practitioner and an industrialist.

3. The plaintiff brings this action in his capacity as a citizen of Ghana.

4. The plaintiff says that the defendant is a Minister of State, the Attorney-General and the principal legal adviser to the Government.

5. The plaintiff says that in the First Schedule of the transitional provisions of the Constitution of the Republic of Ghana 1992 is section 34, the side-note of which is one word, namely, ‘indemnity’.

6. The plaintiff says that this section 34 has as many as five (5) subsections whose meaning is unclear.

7. The plaintiff contends that upon the true and proper interpretation of the whole of the said section 34 persons whose acts and omissions are so indemnified are those specified in relief

(a) of the writ herein and not otherwise. Further it is in the plaintiff’s interest and the interest of the public generally that the said section be interpreted.

8. The plaintiff says that the said section 34 of the transitional provisions of the Constitution 1992 to the extent that it seeks either expressly or by implication to negate provisions relating to the fundamental human rights and freedoms in Chapter Five of the Constitution 1992, generally and in particular articles 17(1) and 23 and the rule of law in the preamble to the Constitution is void and of no effect whatsoever as specified in relief (b) of the writ herein.

9. Wherefore the plaintiff claims as per the writ the reliefs thereon endorsed under article 130(1)(a) and 2(1)(a) of the Constitution of the Republic of Ghana 1992.”

The defendant has filed a defence to this action, the main thrust of which is that the plaintiff’s writ does not disclose a cause of action, and should be dismissed. I read the plaintiff’s writ and statement of case, and I ask myself a simple question: Has any occasion arisen to necessitate the call for interpretation? Does the writ, or the writ and statement of case together, disclose any occasion? Take, for instance, the declaration sought under paragraph (b) of the writ. The plaintiff wants the court to declare that: “all persons in Ghana are equal before the law” and he himself says that the statement is in article 17(1) of the constitution. I agree that article 17(1) says so. But does the court have to declare that the article says so?

In any case, where will such a declaration take the plaintiff or anyone else? Again, has any person impeded the plaintiff’s access to the law courts? In the absence of an allegation to that effect, what is the point in merely repeating the second limb of article 23 in the form of a declaration? See claim (b)(ii).

Claim (b)(iii) and the whole of claim ie (a)(i), (ii) and (iii), are no more than section 34 of the transitional provisions, dismembered. Assembled together they constitute section 34. Here again agreeing with the plaintiff amounts to no more than saying that what he has written is indeed section 34 of the transitional provisions, which is not saying much.

The plaintiff will be on course to seek an interpretation of section 34, or an aspect of it, if he moves against a particular person in respect of an act or omission of that person, and he, for a defence, seeks shelter under section 34. It is then that is will be profitable for the court to determine whether the defendant or his act or omission is covered by section 34 or not. It is then that an interpretation or a declaration may be called for. On the pleadings as they now stand, any declaration made will be an empty declaration, a declaration in a vacuum.

Ours is to interpret the constitution in the context of disputes. Ours is not to tender advice to prospective litigants; that is the role of solicitors in private practice.

I agree with the defendant in this case that the plaintiff’s writ does not disclose a cause of action. I will dismiss it. In the circumstances, it becomes unnecessary to discuss and determine the points of law raised by the defendant as to whether the plaintiff has capacity, or whether the transitional provisions are enactments or not.

WIREDU JSC. I agree.

KPEGAH JSC. By his writ invoking the original jurisdiction of this court, the plaintiff is seeking the following reliefs:

“(a) A declaration that upon the true and proper interpretation of section 34 of the transitional provisions of the Constitution of the Republic of Ghana 1992 only;

i. acts or omissions by persons which brought about the overthrow of the government of the 1st, 2nd and 3rd Constitutions of the Republic of Ghana;

ii. acts or omissions by persons which occasioned the suspension or abrogation of the 1st, 2nd and 3rd constitutions of the Republic of Ghana;

iii. acts or omissions of persons which led to the establishment of the Military Regimes, namely, the National Liberation Council (NLC), the National Redemption Council (NRC), the Supreme Military Council (SMC I and II), the Armed Forces Revolutionary Council (AFRC), Provisional National Defence Council (PNDC) and persons who acted or omitted to act on the instructions or authority of any of the aforementioned regimes, that are indemnified but not otherwise.

(b) A declaration that it is part of the fundamental human rights and freedoms provided in Chapter 5 of the Constitution of the Republic of Ghana 1992, that:

i. all persons in Ghana are equal before the law (article 17(1)).

ii. persons aggrieved by the acts or omissions of others have the right to seek redress before a court or tribunal (article 23);

iii. any enactment including the said section 34 of the transitional provisions which expressly or by necessary intendment seeks to impede the citizens’ access to the courts, or purports to take away the citizen’s right to seek redress before the courts or denies any citizen the benefit or enjoyment of the said constitutional provision of equality before the law is contrary to the rule of law, unconstitutional and void.”

The statement of the plaintiff’s case also filed the same day indicates in paragraphs 5, 6, 7 the reasons for seeking the reliefs quoted above. I will quote the said paragraphs.

“5. The plaintiff says that in the First Schedule of the transitional provisions of the Constitution of the Republic of Ghana 1992 is

6. The plaintiff says that section 34 has as many as five (5) subsections whose meaning is unclear.

7. The plaintiff contends that upon the true and proper interpretation of the whole of the said section 34 persons whose acts and omissions are so indemnified are those specified in relief (a) of the writ herein and not otherwise. Further it is in the plaintiff’s interest and the interest of the public generally that the said section be interpreted.”

The reasons given by the plaintiff which could be said to be the ground for seeking relief (b) is contained in paragraph 8 of the statement of case. This is what it says:

“8. The plaintiff says that the said section 34 of the said transitional provisions of the Constitution 1992 to the extent that it seeks either expressly or by implication to negate provisions relating to the fundamental human rights and freedoms in Chapter 5 of the Constitution 1992 generally and in particular article 17(1) and 23 and the rule of law in the preamble to the Constitution is void and of no effect whatsoever as specified in relief (b) of the writ herein.”

In effect, therefore, the plaintiff is saying that after reading section 34 of the transitional provisions he found the said provisions ambiguous and unclear. He then proceeded to give his understanding of the provisions of section 34 and is seeking the judicial blessing from this court, in the form of declaratory reliefs, that his formulated version is the correct interpretation of section 34 of the transitional provisions.

Although it may be right to say that there is no law which inhibits the jurisdiction of this court in matters involving the interpretation of the constitution, I think it will be worth while applying the concept of judicial self-governance or self-restraint in such matters.

The judicial authority of which this court is the beneficiary or endowed with is essentially jurisdiction to deal with real or substantial disputes which affect the legal rights or obligations of parties who appear before us, and whose interest are adverse to each other. These competing interests will necessarily call for specific reliefs through conclusive and certain judicial decree or decrees. In these circumstances the matter could be said to be justiciable and not otherwise. The principle of justiciability precludes us from giving advisory opinions based on hypothetical facts which are not part of an existing controversy.

The plaintiff is not claiming any right of his has been infringed or is being threatened with infringement. We cannot make a declaration in a vacuum. This is exactly what the plaintiff is asking us to do and we must decline any such invitation. The plaintiff, in my view, has no standing and his suit must be dismissed.

HAYFRON-BENJAMIN JSC. I am in agreement with the reasons given and the conclusion arrived at by my learned and respected brothers, Adade and Kpegah JJSC. The plaintiff invites this court to give him judgment upon proof of axioms. The answers to his plaints are obvious, self-evident and unambiguously stated in the various articles of the Constitution of 1992 to which the plaintiff himself has referred. This court cannot accede to sterile claims in which the defendant is bound to agree with the plaintiff.