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Constitutional law –
Interpretation – Loan -
Agreement - Breach of
constitutional obligations -
Perpetual injunction - Article
40(a), 57(3), 58(1)-(4) and 73
of the Constitution 1992 -
Violation of the oath of
allegiance – Whether or not
President of the Republic of
Ghana acted in
breach of
his constitutional obligations
under
article 40(a), 57(3), 58(1)-(4)
and 73 of the Constitution
- Whether or not the said
agreement was introduced in
Parliament in breach of the
1992Constitution - Whether or
not the President of the
Republic of Ghana acted in
wilful
violation of the oath of
allegiance and the
presidential oath set out in the
Second Schedule of the
Constitution 1992 - Whether or
not the reliefs sought by
plaintiff in his suit falls
within the exclusive original
jurisdictional of the Court -
Whether or not the requirement,
as stipulated in the Master
Facility Agreement that 60% of
the money to be borrowed be used
to hire Chinese Contractors is
discriminatory - Whether or not
the Master Facility Agreement
falls within the purview of
article 73 of the 1992
Constitution- Whether or not the
Judiciary has the power to
question the Executive’s acts
done within the ambit of its
authority.”
HEADNOTES
The plaintiff
by its writ claims as follows:
“A declaration that the
President
of the Republic of Ghana acted
in breach of his constitutional
obligations under article 40(a),
57(3), 58(1)-(4) and 73 of the
Constitution 1992 of the
Republic of Ghana when he caused
to be submitted to the
Parliament of the Republic of
Ghana for approval the
Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement, A declaration that
the purported approval by the
Parliament of the Republic of
Ghana of the Agreement between
the Republic of Ghana and the
China Development Bank known as
the Master Facility Agreement is
of no effect, null and void to
the extent that
it was
introduced in Parliament in
breach of articles 57(3),
58(1)-(4) and 108 of the
Constitution 1992 of the
Republic of Ghana., A
declaration that having
submitted to the Parliament of
the Republic of Ghana for
approval the Agreement between
the Republic of Ghana and the
China Development Bank known as
the Master Facility Agreement in
breach of articles 57(3),
58(1)-(4) and 108 of the
Constitution 1992 of the
Republic of Ghana as well as
section 18(7) of the
Petroleum
Revenue Management Act, 2011
(Act 815) the President of
the Republic of Ghana has acted
in a manner prejudicial or
inimical to the economy of the
state and has accordingly
violated article 69(1) (b) (ii)
of the aforesaid Constitution. A
further declaration that
the
President of the Republic of
Ghana acted in wilful violation
of the oath of allegiance and
the presidential oath set out in
the Second Schedule and or
is in wilful violation of
article 58(2) of the
Constitution 1992 of the
Republic of Ghana when he caused
to be submitted to the
Parliament of the Republic of
Ghana for approval the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement. A declaration that
having wilfully violated the
oath of allegiance and the
presidential oath set out in the
Second Schedule and is in wilful
violation of article 58(2) of
the Constitution 1992 of the
Republic of Ghana when he caused
to be submitted to the
Parliament of the Republic of
Ghana for approval the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement. An order of
perpetual
injunction restraining the
Parliament of the Republic of
Ghana from considering and
approval the documents listed
below subsequent to the
purported approval of the
Agreement between the Republic
of Ghana and the China
Development Bank known as the
Master Facility Agreement;
HELD
It is however
necessary to emphasise that
those parts of the plaintiff’s
claims and allegations that
touch and concern matters which
are grounds for the removal of a
President from office are to say
the least, mischievous and are
hereby struck out
STATUTES
REFERRED TO IN JUDGMENT
Constitution
1992
Petroleum
Revenue Management Act, 2011
(Act 815)
CASES
REFERRED TO IN JUDGMENT
Chokolingo v.
Attorney-General of Trinidad and
Tobago (1981) 1 All ER 244
Kwakye v.
Attorney-General (1981) GLR 944
S. C.
New Patriotic
Party v. National Democratic
Congress and Others (2000) SCGLR
461.
Canada
(Minister of Justice) v. Burns
(2001) 5 LRC 19, Canada, S.C.
Ghana Bar
Association v. Attorney-General
(Abban Case) (2003-2004) 1 SCGLR
250, Okudjeto Ablakwa v.
Attorney-General &
Obetsebi-Lamptey (2011) SCGLR
986.
J.H. Mensah
v. Attorney-General (1996-97)
SCGLR 320
BOOKS
REFERRED TO IN JUDGMENT
The Role of
the Supreme Court in the
Development of
Constitutional Law in Ghana
Dr. S.Y. Bimpong-Buta
DELIVERING
THE LEADING JUDGMENT
ATUGUBA, AG.
C.J
COUNSEL
THADEUS SORY
(WITH HIM CYNTHIA FRIMPOMAA)
FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY) FOR THE DEFENDANT
J U D G M E N T
___________________________________________________________________
ATUGUBA, AG.
C.J
The plaintiff
by its writ claims as follows:
1.
“A declaration that the
President of the Republic of
Ghana acted in breach of his
constitutional obligations under
article 40(a), 57(3), 58(1)-(4)
and 73 of the Constitution 1992
of the Republic of Ghana when he
caused to be submitted to the
Parliament of the Republic of
Ghana for approval the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement.
2.
A declaration that the purported
approval by the Parliament of
the Republic of Ghana of the
Agreement between the Republic
of Ghana and the China
Development Bank known as the
Master Facility Agreement is of
no effect, null and void to the
extent that it was introduced in
Parliament in breach of articles
57(3), 58(1)-(4) and 108 of the
Constitution 1992 of the
Republic of Ghana.
3.
A declaration that having
submitted to the Parliament of
the Republic of Ghana for
approval the Agreement between
the Republic of Ghana and the
China Development Bank known as
the Master Facility Agreement in
breach of articles 57(3),
58(1)-(4) and 108 of the
Constitution 1992 of the
Republic of Ghana as well as
section 18(7) of the Petroleum
Revenue Management Act, 2011
(Act 815) the President of the
Republic of Ghana has acted in a
manner prejudicial or inimical
to the economy of the state and
has accordingly violated article
69(1) (b) (ii) of the aforesaid
Constitution.
4.
A further declaration that the
President of the Republic of
Ghana acted in wilful violation
of the oath of allegiance and
the presidential oath set out in
the Second Schedule and or is in
wilful violation of article
58(2) of the Constitution 1992
of the Republic of Ghana when he
caused to be submitted to the
Parliament of the Republic of
Ghana for approval the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement.
5.
A declaration that having
wilfully violated the oath of
allegiance and the presidential
oath set out in the Second
Schedule and is in wilful
violation of article 58(2) of
the Constitution 1992 of the
Republic of Ghana when he caused
to be submitted to the
Parliament of the Republic of
Ghana for approval the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement.
6.
An order of perpetual injunction
restraining the Parliament of
the Republic of Ghana from
considering and approval the
documents listed below
subsequent to the purported
approval of the Agreement
between the Republic of Ghana
and the China Development Bank
known as the Master Facility
Agreement;
(i)
The
Off taker
Agreement.
(ii)
The Security being the Charge
over Accounts Agreement.
(iii)
The Accounts Agreement.
(iv)
The Form of Subsidiary
Agreement; and
(v)
The Five Party Agreement.”
At the close
of pleadings the following
memorandum of issues was filed
by the plaintiff, namely:
(i)
“Whether
or not the reliefs sought by
plaintiff in his suit falls
within the exclusive original
jurisdictional of this Court?
(ii)
Whether or not the Master
Facility Agreement falls within
the purview of article 73 of the
1992 Constitution?
(iii)
Whether or not the requirement,
as stipulated in the Master
Facility Agreement that 60% of
the money to be borrowed be used
to hire Chinese Contractors is
discriminatory?”
That filed by
the defendant is as follows:
“Whether
or not the Judiciary has the
power to question the
Executive’s acts done within the
ambit of its authority.”
Although not covered by the
memorandum of issues in quite
the same way it was extensively
argued that the plaintiff’s
action is premature as certain
aspects of the impugned
agreement have not yet been
referred to Parliament. The
contention fastened much on the
word “done” in article 2 of the
Constitution. However, it must
always be borne in mind that the
Constitution like any other
statute means what the courts
with competent jurisdiction hold
it to mean, see
Chokolingo v. Attorney-General
of Trinidad and Tobago (1981) 1
All ER 244. In this case it
is not disputed that the
President has had the Master
Agreement covering the loan
submitted to Parliament and
approved. It is a matter of
course that the interconnecting
agreements or steps would follow
suit. This court entertains
actions in respect of completed
acts as well as quia timet
actions, see
Kwakye v.
Attorney-General (1981) GLR 944
S. C. and New
Patriotic Party v. National
Democratic Congress and Others
(2000) SCGLR 461. The
aspects of this action
castigated as premature are
within the ambit of the quia
timet principle, hence there is
jurisdiction as to them.
The second issue is whether the
Master Facility Agreement falls
within the purview of article 73
of the 1992 Constitution?
Article 73 is as follows:
“INTERNATIONAL RELATIONS
73. The
Government of Ghana shall
conduct its international
affairs in consonance with the
accepted principles of public
international law and diplomacy
in a manner consistent with the
national interest of Ghana.”
The parties
haggle over a contention that
the loan
agreement in this case is a
commercial transaction and not a
treaty and that Article 73 deals
with the latter only. This is a
contention, at best, as to the
letter and not the spirit of the
legislation. However even in a
book of History entitled, The
History of Rome Up to the time
of Julius Caesar, published in
1896 the authors at 502 chastise
Clodius for following the letter
of a law but violating its
spirit, to the effect that
certain essentials of life
should be denied to a person who
put a Roman to death, without
trial when he sought to use it
in vengeance against Cicero who
saw to the execution of certain
Roman citizens whom the Senate
held were embarked on treason
against the Roman State even
though there was no trial.
It certainly
cannot usefully be argued that
the spirit of article 73 is that
the President, when dealing with
a matter that is not a treaty
can discount the national
interest. In any case article
1(1) covers such a situation. It
is as follows:
“1.(1) The
Sovereignty of Ghana resides in
the people of Ghana in
whose name and for whose welfare
the powers of government are to
be exercised in the manner
and within the limits laid down
in this Constitution.” (e.s.)
See also, inter alia,articles
40(a) and 58(1).
But I do not
think that even the letter of
that provision discounts the
national interest unless a
treaty is involved. In any event
in this case the Master Facility
Agreement’s recitals to be
presently quoted point to
international affairs between
Ghana and China. Accordingly the
substantial question which
should detain this court is the
third and last of the
plaintiff’s issues: namely
whether or not the requirement,
as stipulated in the Master
Facility Agreement that 60% of
the money to be borrowed be used
to hire Chinese Contractors is
discriminatory.
In
considering this issue it is
important to bear in mind the
following pleadings of the
plaintiff:
“2.6 The MFA
has two recitals. The recitals
set out what we would call the
“reason” for the MFA. The first
recital says that;
“(A) The
Government of the People’s
Republic of China and the
Government of the Republic of
Ghana are resolved to expand
bilateral relations through
harmonious, sustainable and
win-win economic co-operation
measures, in line with the
principles for the Forum on
China-Africa Co-operation.”
2.7 The
second recital says that;
“(B) Lender
seeks to apply its financial
support as a means to
enhance bilateral economic and
trade relations between
China and Ghana by extending “commercial
loans” to the Borrower, to
be applied by the Borrower on
the terms and conditions set out
in” the agreement.”
The plaintiff’s grievance is
centred mainly on the proviso to
clause 3.1 of the Master of
Facility Agreement to the effect
that::
“ PROVIDED
THAT a minimum of 60 per cent of
each of the Tranche A Facility
and the Tranche B Facility shall
be paid to PRC Contractors.”
The plaintiff
contends in paragraphs 2.14 to
2.15 of its statement of case
that this proviso has the effect
of tying the hands of the
Government of Ghana as to the
best options available to it in
terms of expending the money for
the purpose for which it
borrowed it. Particularly the
Government of Ghana is thereby
debarred from sourcing the best
expertise for carrying out the
areas of development for which
the loan was contracted. Another
perceived grievance is that all
materials required will have to
be purchased from China.
Therefore 60% of the loan will
mandatorily benefit Chinese
citizens to the detriment of
Ghana.
Obviously, if
it is appreciated that the
agreement is a commercial loan
intended to benefit both sides
in a win-win situation it must
follow that a certain part of it
must benefit China, even if
exclusively and likewise a
certain part of it must benefit
Ghana even if exclusively. But
as contended by the defendant
the proviso complained of by the
plaintiff does not require that
60% of the loan money be
reserved unto Chinese citizens
but unto Chinese contractors.
It is
practically inconceivable that
all materials inclusive of
things like water, sand, stone
etc will be purchased from China
and the agreement does not so
provide. Indeed the source of
purchase of these materials is
not covered by the agreement.
This agreement does not exclude
the hiring of Ghanaian or other
expertise and it is
inconceivable that no labour
component in any constructional
or other type of development
project will come from Ghana. It
is in short impossible to
contend that the proviso is
meant to benefit Chinese
citizens exclusively to the
detriment of Ghana.
It must not
be forgotten that the projects
covered by the loan agreement
are meant to be productive and
self servicing. After the loan
is serviced the residue of these
development projects will
definitely continue to benefit
Ghana and no portion of such
revenues is contracted for
payment to China.
I have no
knowledge of Economics as a
science but common sense hints
me that Ghana cannot readily
generate an amount as colossal
as $3 billion to fund needed
development projects and if it
is to accumulate such an amount
of that grandeur its purchasing
value would fall so much due to
global inflationary trends that
the margin of interest over 15
years charged on this loan by
China would still be very much
preferable and favourable to
Ghana. In constitutional
construction a court will
consider the effect of changed
circumstances and global trends
relevant to the matter to be
decided, see
Canada
(Minister of Justice) v. Burns
(2001) 5 LRC 19, Canada, S.C.
Impeaching
administrative discretion
The courts have expressed
themselves in various terms
concerning how judicial control
over executive or administrative
powers should be exercised. The
Wednesbury principle of
reasonableness, the deference
principle, etc come into play.
However I think that the 1992
Constitution has laid down its
yardsticks in articles 1(1), 23,
36, 40 and 296 concerning this
issue. Applying these principles
and matching them against the
facts sifted above, always
bearing in mind that the
separation of powers is intended
to have effect on such matters
as this, I conclude that the
loan impugned here is
constitutionally sustainable.
Violation of
the Petroleum Revenue Management
Act, 2011 (Act 815)
The plaintiff also charges that
the President breached articles
57(3), 58(1)-(4) and 108 of the
Constitution by the Chinese loan
agreement to which he has made
Ghana a party since Clause 3 of
the Charge Over Accounts
Agreement requires that our oil
proceeds be charged for a period
of 15 instead of a maximum of 10
years in terms of “Tranche A”
thereof, contrary to section
18(7) of Act 815. A question
arises whether an alleged breach
of Act 815 is a matter within
the Supreme Court’s jurisdiction
since it is an ordinary statute
whereas our jurisdiction relates
to the provisions of the
Constitution. To the extent that
the President is enjoined inter
alia by article 57(1) to execute
the laws of Ghana it is a
constitutional duty imposed on
him. At the same time if the
President acts in violation of
an ordinary statute his act, if
done in his official capacity,
can be challenged under the
statute concerned by suing the
Attorney-General. In such a
situation the Practice Direction
of this court would require the
plaintiff to proceed first in
the ordinary courts or else this
Court may dismiss his action.
However, where the issue arises
out of the same agreement or act
as here, I do not think it would
be appropriate to hold the
Practice Direction against him.
But as the defendant has
demonstrated in his statement of
case, that charge is not borne
out by the terms of the said
agreement in that none of the
said terms relates to the
proceeds of Ghana’s oil.
It is
however necessary to emphasise
that those parts of the
plaintiff’s claims and
allegations that touch and
concern matters which are
grounds for the removal of a
President from office are to say
the least, mischievous and are
hereby struck out. It is
quite clear that a special
procedure has been provided as
to them in article 69 and that
should govern them. See
Ghana Bar
Association v. Attorney-General
(Abban Case) (2003-2004) 1 SCGLR
250, Okudjeto Ablakwa v.
Attorney-General &
Obetsebi-Lamptey (2011) SCGLR
986.
The last issue is the
defendant’s issue as to “whether
or not the Judiciary has the
power to question the
Executive’s acts done within the
ambit of its authority.” I do
not think that the formulation
of this issue reflects its
intendment. However, in so far
as this issue has any truck with
the doctrine of political
question the answer is that no
act whatsoever is outside the
provisions of articles 1(1), 23,
36, 58(1) and 296 (subject to
this court’s construction to the
contrary) aforesaid of the
Constitution. This in effect is
the conclusion reached by
Dr. S.Y.
Bimpong-Buta in his classic work
The Role of the Supreme Court in
the Development of
Constitutional Law in Ghana
at 143 to 168. The learned
author’s approval at 167 of his
book of the views of Aikins JSC
in J.H.
Mensah v. Attorney-General
(1996-97) SCGLR 320 at
326-327 when carefully
considered has the same effect
as what I have stated regarding
this matter of political
question.
For all the foregoing reasons I
dismiss the plaintiff’s action.
(SGD) W. A. ATUGUBA
ACTING
CHIEF JUSTICE
CONCURRENT OPINION
DR. DATE-BAH
JSC:
I agree that
this action should be
dismissed. I am in full
concurrence with the lucid
judgment just read by my brother
the Acting Chief Justice. I
wish, however, to add some
general comments to supplement
the lead judgment in this case.
One of the issues arising from
this case is the extent to which
the courts should be the
instrument for securing the
accountability of the President
for his executive acts in
relation to an international
economic transaction or loan
transaction, assessed against
imprecise accountability
criteria such as the promotion
and protection of the interests
of Ghana (article 40(a) of the
1992 Constitution); observing
the oath of allegiance and the
presidential oath set out in the
Second Schedule of the 1992
Constitution; and “accepted
principles of public
international law and diplomacy
in a manner consistent with the
national interest of Ghana”
(article 73 of the 1992
Constitution) . The courts
generally, and the Supreme Court
in particular, will not
necessarily be the best means,
in all contexts, of securing
accountability measured against
such imprecise criteria.
Political accountability
measures, such as general
elections, also have their role
to play. The particular context
will determine which
accountability mechanisms have a
comparative advantage. The
courts would do well to give
recognition to the political
accountability measures which
run parallel to the judicial
modes of securing
accountability.
A range of
opinions may validly be held
about what is in the national
interest or what promotes and
protects the interest of Ghana.
If the courts allow themselves
to be drawn too easily into
making judgments on these
matters, they could be sucked
into the zone of party political
policymaking and competition.
This would be invidious. On the
other hand, the courts cannot
completely wash their hands of
making determinations on the
basis of these criteria, where
there is objective
incontrovertible evidence on the
basis of which a decision can be
founded. Depending on the
particularities of specific
situations, the courts or the
electorate may have a
comparative advantage regarding
reaching a judgment as to what
is in the national interest or
what promotes the interest of
Ghana.
Judging the
validity of the acts and
contracts impugned by the
plaintiff in this case raises
this issue of comparative
advantage. Should it be the
Supreme Court or the electorate
that determines whether the
particular economic transaction
entered into by the President is
in the national interest and
promotes the interest of Ghana?
This, to my mind, is the central
issue raised by this case. I
am, however, in no way
advocating a return to the nadir
reached by the Supreme Court in
Re Akoto [1961] GLR 523, when it
said (per Korsah CJ,), in
relation to the President’s
declarations, pursuant to
Article 13 of the 1960
Constitution, on assumption of
office, that: “The declarations
however impose on every
President a moral obligation,
and provide a political
yardstick by which the conduct
of the Head of State can be
measured by the electorate. The
people's remedy for any
departure from the principles of
the declaration, is through the
use of the ballot box, and not
through the courts.”
What is in
the national interest or
promotes the interest of Ghana
is justiciable (and is not a
matter of mere moral
obligation). However, firm
evidence has to be produced
before this court can
legitimately invalidate
executive acts as being in
breach of such broad norms.
This Court would also do well to
recognize that it is possible to
have a range of legitimate views
as to what is in the national
interest. In reaching a
judgment on such issues, the
Court should bear this
consideration in mind in making
its decisions. In other words,
merely because a judge does not
consider a particular
transaction to be in the
national interest, for example,
should not result necessarily in
its invalidation. The better
test would be whether all
reasonable observers would reach
the same conclusion. The
executive needs to be given some
space to try out its political
and economic judgment, even if
this does not coincide with that
of the judges. It is only if
the executive is reaching
perverse decisions that the
courts ought to intervene.
Otherwise, the courts would end
up in effect running an aspect
of the executive power, which
would be anathema to our system
of government which has
separation of powers at its
root.
To put this
thought in other words, there is
danger in the Supreme Court
displacing the electorate as the
final arbiter of what contracts
entered into by the Executive
are in the national interest or
promote the interest of Ghana.
This danger should constantly be
borne in mind by this Court. I
am, however, satisfied that in
this particular case, in
reaching the decision announced
by the Acting Chief Justice, we
have borne this consideration in
mind.
( SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) S. A. B. AKUFFO
(MS.)
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA(MRS.)
JUSTICE OF THE SUPREME COURT
(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
THADEUS SORY
(WITH HIM CYNTHIA FRIMPOMAA)
FOR THE PLAINTIFF.
SYLVESTER
WILLIAMS ( PRINCIPAL STATE
ATTORNEY) FOR THE DEFENDANT.
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