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Constitutional law -
Interpretation - Civil
Service Code of
Conduct - article 12(2), article
21(3), article 21(1) (a) and
(d), article 35(6) (d), article
55(1), (2) and (10) and article
284 of the Constitution, 1992,
- whether persons holding civil
service positions are barred
from participating in political
activities - whether persons
holding civil service positions
have a right to join political
parties and hold executive
positions in political parties
HEADNOTES
By a letter dated 19th October,
2015, from the Head of Civil
Service and addressed to “All
Chief Directors” and “All Heads
of Departments”, the addressees
were requested to remind ‘all
staff members’ that persons
holding civil service positions
are barred from participating in
political activities The
Plaintiff, in its Statement of
Case hung its arguments on two
issues, to wit: Whether or not
on a true and proper
interpretation of the
Constitution, members of the
Civil Service and Local
Government Service have a right
to join political parties and
hold executive positions in
political parties; and Whether
or not on a true and proper
interpretation of the
Constitution members of the
Civil Service and Local
Government Service have a right
to contest Local Government
elections while still being
members of their respective
Services.-
HELD :-
Consequently,
we determine the issues set out
in the Memorandum of Agreed
Issues as follows:-On a true and
proper interpretation of the
Constitution, a member of the
Civil Service or
Local Government Service has a
right to join any political
party of his or her choice,
however, such a person does not
have the right to participate
overtly in political party
activities whilst still a member
of the Civil Service or Local
Government Service however, the
provisions of the Code of
Conduct for members of the Civil
Service or Local Government
Service enacted by the Councils
of the Civil Service or Local
Government Service and or any
other authority, barring a
member of the Civil Service or
Local Government Service from
being a member of a District
Assembly while still a member of
the Civil Service or Local
Government Service do not
contravene any provision of the
Constitution and the same are
not unconstitutional.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution Article
2(1) and 130(1) article 12(2),
article 21(3), article 21(1) (a)
and (d), article 35(6) (d),
article 55(1), (2) and (10) and
article 284
Civil Service Act, 1993 [PNDCL
327] section 87
Political Parties Act,
2000 (act 574) Section 26
Local
Government Act, 2016 (Act 936)
CASES REFERRED TO IN JUDGMENT
Kwadjoga Adra
v. National Democratic Congress,
Writ No. J1/13/2014 (unreported
Supreme Court Judgment dated
15th July, 2015)
Independent National
Electoral Commission and the
Attorney General v. Musa, [2003]
3 NWLR (part 806)
Osborne v. Canada
(Treasury Board), [1991] 2 S.C.R.
69
BOOKS REFERRED TO IN JUDGMENT
Civil Service Code of
Conduct (issued on 1st
November, 1999), section 12(1)
(b), (c) and (e)
Constitution members of
the Civil Service and Local
Government Service
DELIVERING THE LEADING JUDGMENT
AKUFFO (MS), JSC:-
COUNSEL.
ALI GOMDAH ABDUL-SAMAD FOR
THE PLAINTIFF
GRACE EWOAL, PRINCIPAL
STATE ATTORNEY FOR THE DEFENDANT
JUDGMENT
AKUFFO (MS), JSC:-
Brief Facts
The Plaintiff is the Civil and
Local Government Staff
Association of Ghana (CLOGSAG)
which is a registered Trade
Union and mouthpiece of workers
in the Civil and Local
Government Services. The
Attorney General is the
Principal legal advisor to the
Government and the pro-forma
Defendant for all civil
proceedings instituted against
the State. The second and third
Defendants are the bodies
regulating the activities of
Civil Servants and Local
Government Servants respectively
and are not necessary parties in
this matter since their interest
in this matter is not in
conflict with that of the
Attorney General.
By a letter dated 19th
October, 2015, from the Head of
Civil Service and addressed to
“All Chief Directors” and “All
Heads of Departments”, the
addressees were requested to
remind ‘all staff members’ that
persons holding civil service
positions are barred from
participating in political
activities including the
following:
a)
Attending political
rallies
b)
Wearing party
paraphernalia
c)
Subjecting one’s self for
party vetting
d)
Holding party membership
card and
e)
Standing for party
primaries etc.
The said letter made
reference to the provisions of
the Civil Service Code of
Conduct (issued on 1st
November, 1999), section 12(1)
(b), (c) and (e) of which read
as follows:
“12. (1) The Constitution of
Ghana confers rights on all
citizens of Ghana, including
Civil Servants to join any
political party or association
of their choice. However, by
virtue of the traditional role
of the Civil Service to serve
the Government of the day
loyally, and to maintain the
confidence of any future
Administration, a Civil Servant
may not:
a)
Accept any office paid or
unpaid, permanent or temporary,
in any political party or
organisation;
b)
Declare himself openly as
a registered member of a
political party or association;
c)
Indicate publicly his
support for any party, candidate
or policy
d)
Make speeches or join in
demonstrations in favour of any
political person, party, or
propaganda
e)
Engage in activities which
are likely to involve him in
political controversy.
(2) Notwithstanding, a Civil
Servant is entitled to his views
in political matters, and if so
qualified, may vote at
elections.”
The letter also advised
that any Civil Servant who
wished to participate in any
political activity should resign
from the service and warned to
deal with anyone who flouted the
directive.
Furthermore, the Code of
Conduct for Staff of Local
Government Service contains
statements of principles on
Anonymity and Permanence in the
following terms:-
Anonymity
“officers and staff of the Local
Government Service shall serve
the State with neutrality and
anonymity in the national and
local government processes”
Permanence
“The Local Government Service is
a constitutionally mandated
Public Service institution and
owes allegiance only to the
State and community. The
permanence of the Local
Government Service is integral
to the achievement of the
objectives of the Local
Government Authorities....”
On the foundation of these
two principles the said Code of
Conduct sets out, in Canon 1, a
set of Minimum Standards of
Conduct, which are to be adhered
to by officers and staff of the
Local Government Service ‘in the
discharge of their roles or
functions in any project or
task’, the most pertinent for
our purposes being those set out
in sub-canons 1.1, 1.5, 1.6 and
1.7 as follows:
1.1 not put themselves in a
position where personal interest
conflicts or is likely to
conflict with the performance of
the functions of their office.
1.5 never to act as an agent of
or for the interest of a
political, social, ethnic,
gender or interest group.
1.6 not to seek election to
office as member of an Assembly.
1.7 not to attend or support
the functions, programs and
activities of political, social,
ethnic or gender interest group
in a private capacity and name
or in circumstances unrelated to
the discharge of the projects
and tasks of the Local
Government Service.”
According to the
Plaintiff, the Heads of the
Civil Service and Local
Government Service,
respectively, have in the past
subjected members of the
Plaintiff association to
disciplinary proceedings for
their engagement in political
party activities.
Now, by a letter dated 23rd
September, 2015, one Alexander
Hedidor, an Assistant Director
at the Prestea-Huni Valley
District Assembly, was
interdicted for involving
himself in active party politics
when he filed his nomination to
contest the Suaman Constituency
Parliamentary primaries, on the
ticket of the National
Democratic Congress (NDC), which
was considered a contravention
of the provisions of the Code of
Conduct of the Local Government
Service. Consequently, by a writ
filed on 29th of
April, 2016 the Plaintiff,
pursuant to Article 2(1) and
130(1) of the Constitution,
invoked the jurisdiction of this
Court for the reliefs set out
below:
The Plaintiff’s Action Herein
1. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6) (d), article
55(1), (2) and (10) and article
284 of the Constitution, 1992, a
member of the Civil Service has
a right to join any political
party of his choice whilst still
a member of the Civil Service.
2. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6) (d), article
55(1), (2) and (10) and article
284 of the Constitution, 1992, a
member of the Civil Service has
a right to manifest his or her
political affiliation whilst
still a member of the Civil
Service.
3. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Civil Service has a right
to contest for elections for
political party office and to
hold political party office
whilst still a member of the
Civil Service.
4. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Civil Service has a right
to remain a member of the Civil
Service until he/she resigns
prior to his/her nomination by a
political party or otherwise to
contest as a member of
Parliament.
5. A declaration that the
provisions of the code of
conduct for members of the Civil
Service enacted by the Council
of the Civil Service and/or any
other authority barring a member
of the Civil Service from
engaging in political party
activities is unconstitutional.
6. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6) (d), article
55(1), (2) and (10) and article
284 of the Constitution, 1992, a
member of the Civil Service has
a right to contest local
government elections whilst
still a member of the Civil
Service.
7. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6) (d), article
55(1), (2) and (10) and article
284 of the Constitution, 1992, a
member of the Civil Service has
a right to remain a member of
the Civil Service after being
sworn in as a member of a
district assembly.
8. A declaration that the
provisions of the code of
conduct for members of the Civil
Service enacted by the Council
of the Civil Service and/or any
other authority barring a member
of the Civil Service from
contesting and/or being a member
of the Civil Service is
unconstitutional.
9. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Local Government Service
has a right to join any
political party of his or her
choice whilst still a member of
the Local Government Service.
10. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Local Government Service
has a right to contest for
elections for political party
office and to hold political
party office whilst still a
member of the Local Government
Service.
11. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Local Government Service
has a right to remain a member
of the Local Government Service
until he/ she resigns prior to
his/ her nomination by a
political party or otherwise to
contest as a member of
Parliament.
12. A declaration that the
provisions of the code of
conduct for members of the Local
Government Service enacted by
the Council of Local Government
Service and/ or any other
authority barring a member of
the Local Government Service
from engaging in political party
activities is unconstitutional.
13. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Local Government Service
has a right to contest in local
government elections whilst
still a member of the Local
Government Service.
14. A declaration that upon a
true and proper interpretation
of article 12(2), article 21(3),
article 21(1) (a) and (d),
article 35(6)(d), article 55(1),
(2) and (10) and article 284 of
the Constitution, 1992, a member
of the Local Government Service
has a right to remain a member
of the Local Government Service
after being sworn in as a member
of a District Assembly.
15. A declaration that the
provisions of the code of
conduct for members of the Local
Government Service enacted by
the Council of Local Government
Service and/ or any other
authority barring a member of
the Local Government Service
from contesting and/ or being a
member of a district assembly
whilst still a member of the
Local Government Service is
unconstitutional.
Plaintiff's Case
Although the Plaintiff, in
its statement of case adverted
to the question of the
Jurisdiction of this court in
this matter, as well as the
plaintiff’s capacity to bring
this action, these are not
contested issues and the Court
has no doubt that it has
jurisdiction herein and the
Plaintiff, as an incorporated
association of Civil and Local
Government Staff of Ghana, has
the capacity to bring this
action on its own behalf and on
behalf of its members.
The Plaintiff, in its
Statement of Case hung its
arguments on two issues, to wit:
a. Whether or not on a
true and proper interpretation
of the Constitution, members of
the Civil Service and Local
Government Service have a right
to join political parties and
hold executive positions in
political parties; and
b. Whether or not on a
true and proper interpretation
of the Constitution members of
the Civil Service and Local
Government Service have a right
to contest Local Government
elections while still being
members of their respective
Services.
On the first issue, the
Plaintiff made reference to
articles 12(2) and 55(1), (2)
and (10) of the Constitution
which, respectively, provide as
follows:
“12(2) Every person in Ghana,
whatever his race, place of
origin, political opinion,
colour, religion, creed or
gender shall be entitled to the
fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest.”
“55(1) The right to form
political parties is hereby
guaranteed
“(2) Every citizen of Ghana
of voting age has the right to
join a political party.
"(10) Subject to the provisions
of this Constitution, every
citizen of voting age has the
right to participate in
political activity intended to
influence the composition and
policies of the Government.”
The Plaintiff asserted
that the effect of the
provisions of Article 12(2) is
that the rights guaranteed by
the provisions of Chapter 5 of
the Constitution are enjoyable
as of right by all persons’
subject only to the rights and
freedoms of others and public
interest. The Plaintiff then
referred to section 12(1) of the
Civil Service Code of Conduct
(already quoted supra)and noted
that although the provisions of
this Code acknowledges the right
of Civil Servants to join
political parties, “there is an
attempt to limit the scope of
the right to join political
parties and even hold political
views”. The Plaintiff therefore
questioned the efficacy of
joining a group “if one cannot
openly display membership,
ideals, philosophies and views
of that group”. The Plaintiff
moreover, referred to Article
21(3) which provides that:
“All
citizens shall have the right
and freedom to form or join
political parties and to
participate in political
activities subject to such
qualifications and laws as are
necessary in a free and
democratic society and are
consistent with this
Constitution.”
The Plaintiff argued,
although this might appear to
permit limitations on the scope
of article 12(2), because of the
expression “are
consistent with this
Constitution”
any
limitation ‘must not only be
necessary for a free and
democratic society, but must
also be in sync with the letter
and spirit of the Constitution”
and that in any case article 55
does not contain any ‘such
apparent limitation’ as in
Article 21(3). The Plaintiff
cited the decision of this court
in the case of Kwadjoga Adra
v. National Democratic Congress,
Writ No. J1/13/2014 (unreported
Supreme Court Judgment dated
15th July, 2015) and quoted the
dictum of Baffoe-Bonnie, JSC
that:
“The right to participate in
political activities is a right
specifically guaranteed by the
Constitution, and any law or
constitutional provision that
seeks to limit this right must
be clear and unequivocal.”
According to the
Plaintiff, the freedom of
association, which is among the
fundamental freedoms enshrined
in article 21 of the
Constitution, necessarily
entails the freedom to manifest
and express membership of an
association to which a person
belongs and that therefore the
right to join a political party
necessarily carries with it the
right to manifest such
affiliation, just as in the case
of freedom of assembly
expression and conscience,
whereas section 12 of the Civil
Service Code of Conduct attempts
to limit the scope of the right
to join political parties and
‘even hold political views.
In support of its case in
this regard, counsel for the
Plaintiff sought to persuade
this court by referring to the
Nigerian case of Independent
National Electoral Commission
and the Attorney General v.
Musa, [2003] 3 NWLR (part 806)
wherein (on the scope of section
40 of the Nigerian Constitution)
the Supreme Court of Nigeria
upheld the view that since the
provision contained no exception
or proviso, “every person”,
including public office holders
and civil servants have the
freedom to assemble freely and
associate with other persons to
form or belong to any political
party or trade union etc. In
that case, Ayoola JSC in his
concurring opinion stated that:-
“There is nothing reasonably
justifiable in a democratic
society in the interest of
defence, public safety, public
order, public morality or public
health in prohibiting a member
of the public service or civil
service ... from eligibility to
be registered as a member of a
political party.”
Therefore, according to
the Plaintiff, where any
constitutional right or freedom
is expressed to be subject to
limitations as are necessary in
a free and democratic society,
such limitations must be
discernible from the
constitution itself or
provisions that do not derogate
from democratic society.
The Plaintiff also relied
on the case of Osborne v.
Canada (Treasury Board), [1991]
2 S.C.R. 69to persuade us of
the argument that any limitation
on a civil servant’s right to
join a political party is in
violation of their freedom of
expression and freedom of
association. In the said case,
several public servants
challenged a statutory
prohibition on political
activity on the grounds that it
violated their freedom of
expression and freedom of
association under the Charter
(Constitution of Canada). The
majority of the Supreme Court of
Canada held that the prohibition
on political party activity was
not a reasonable limit (as
permitted under section 1 of the
Canadian Constitution) on the
freedom of expression. Whilst
the Canadian court recognized
the constitutional convention of
public service neutrality, it
but struck down the legislated
restrictions on political
activities of civil servants for
the reason that the legislation
was over-inclusive, as it did
not account for the distinctions
between the types of work at
different levels of
responsibility within the Civil
Service.
Plaintiff herein,
therefore, argued that the
question of neutrality, which is
the reason for the bar against
Civil and Local Government
employees is untenable as only a
minute fraction of the Civil and
Local Government Services
perform tasks that may require
their political impartiality
and, thus, a general ban on
active political activity is a
fetter on the constitutional
right of association of
political activism.
The Plaintiff did
acknowledge that there is,
indeed, a need for political
neutrality in the Civil service
as an institution, however, they
averred that this need is
adequately addressed in the
Constitution, in article 284, as
well as other instruments, such
as the obligation, stated in
clause 37 of the Code of
Conduct, to maintain
confidentiality even after a
civil servant has left office;
section 87 of the Civil Service
Act, 1993 [PNDCL 327] which
prohibits a civil servant from
placing herself in a position of
conflict of interest or
potentially conflicts with the
performance of her office;
section 91 of PNDCL 327 which
requires Civil Servants to, upon
recruitment to take the
prescribed oath of allegiance,
oath of secrecy and the official
oath.
On the second issue argued
by the Plaintiff, i.e., whether
or not on a true and proper
interpretation of the
Constitution members of the
Civil Service and Local
Government Service have a right
to contest Local Government
elections while still being
members of their respective
Services, the Plaintiff made
arguments similar to those
advanced in respect of the first
issue and in effect argued
further that since the right to
join political parties and
participate in its activities,
the indulgence in active
participation necessarily
includes the right to hold
executive position in such
party. The Plaintiff submitted
that article 55(8) of the
Constitution, which proscribes
political parties from having a
founding member, leader or
executive member who is not
qualified to be elected a member
of parliament, must not be
interpreted or applied so as to
disqualify a member of the Civil
Service or Local Government from
holding an executive position in
a political party. The reason
for the Plaintiff's position is
that article 94, which
stipulates the requirements for
qualification and eligibility
for election to Parliament,
makes a distinction between
eligibility and qualification.
The plaintiff notes that article
94(1) and (2), which list the
criteria for qualification to be
elected to Parliament, do not
exclude members of the Civil or
Local Government services.
Rather it is in 94(3), which
lists those excluded from
eligibility, that members of the
Civil Service are mentioned. The
plaintiff therefore concludes
that under the constitution of a
civil servant is qualified to be
a Member of Parliament but not
eligible, consequently, such a
civil servant is permitted under
the Constitution to be an
executive member of a political
party. Thus the Plaintiff
submitted that Section 26 of the
Political Parties Act, 2000 (act
574) which fuses qualification
with eligibility to bar Civil
and Local Government employees
is unconstitutional.
They further submitted
that in light of their foregoing
submissions, a member of the
Civil or Local Government is
also entitled to remain as such
member and undergo political
party primaries for
participation as member of the
Local government.
The Plaintiff furthermore
relied on article 35 (6) (d) of
the 1992 Constitution (part of
the Directive Principles of
State Policy), which states
that:
“Towards the achievement of the objectives stated in clause (5) of
this article, the State shall
take appropriate measures to -
“(d) make democracy a reality by decentralizing the administrative
and financial machinery of
government to the regions and
districts and by affording all
possible opportunities to the
people to participate in
decision-making at every level
in national life and in
government; …
and submitted that in view
of this principal objective of
the Constitution, which is a
call on the citizenry to
participate in decision making
processes at local level (as
well as national level), it
would be absurd to enjoin any
class of persons just because
they are officially working in
the local government
administration.
Defendant's Case
The Defendant was ad idem with
the Plaintiff with respect to
the core issues for
determination namely:
i.
Whether or not on a true and
proper interpretation of the
Constitution, members of the
Civil Service and Local
Government Service have a right
to join political parties and
hold executive positions in
political parties; and
ii.
Whether or not on a true and
proper interpretation of the
Constitution members of the
Civil Service and Local
Government Service have a right
to contest Local Government
elections while still being
members of their respective
Services.
The Defendant
referred to the hereinbefore
quoted provisions of Article 12
of the Constitution and
submitted that the rights
guaranteed under the
Constitution are not absolute
but, rather, are subject to a
limitation test as far as the
rights of other persons and the
larger public interest is
concerned as prescribed by
Article in 12(2). In that vein
the Defendant cited Articles
21(3), 94(3) and 284 of the 1992
Constitution which state:
“21(3) All citizens shall have
the right and freedom to form or
join political parties and to
participate in political
activities subject to such
qualifications and laws as are
necessary in a free and
democratic society and are
consistent with this
Constitution.
“94(3) A person shall not be
eligible to be a member of
Parliament if he -
(a)
is prohibited from
standing election by a law in
force in Ghana by reason of his
holding or acting in an office
the functions of which involve a
responsibility for or are
connected with the conduct of,
an election or responsibility
for, the compilation or revision
of an electoral register; or
(b)
is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service,
the Civil Service, the Audit
Service, the Parliamentary
Service, the Statistical
Service, the Fire Service, the
Customs, Excise and Preventive
Service, the Immigration
Service, or the Internal Revenue
Service; or
(c) is a Chief.
“284.A public officer shall not
put himself in a position where
his personal interest conflicts
or is likely to conflict with
the performance of the functions
of his office.”
The Defendant
urged that the combined effect
of Articles 21(3), 94(3) and 284
of the 1992 Constitution is to
oust the members of the Civil
Service and Local Government
Service from participating in
political activities. This is
because the nature of a Civil
Servant’s role is such that he
or she must, at all times,
maintain neutrality in political
matters in order to ensure
political impartiality and gain
public confidence in the
Service. She submitted that the
Code of Conduct for the Ghana
Civil Service recognizes the
rights of all citizens to
participate in political
activities as contained in
Section 12(1) of the Civil
Service Code. According to the
Defendant, the restrictions
placed on Civil Servants in
relation to politics and
political activity are designed
to ensure that the actions of a
Civil Servant do not give rise
to a perception of bias or
influence from political party
motives.
On 7th
March 2017, the parties herein
filed a Memorandum of Agreed
Issues setting out the following
for determination:-
ISSUES
1. Whether or not on a true
and proper interpretation of the
Constitution of Ghana 1992, a
member of the Civil Service or
Local Government Service has
right to join any political
party of his or her choice and
to participate in political
party activities whilst still a
member of the Civil Service or
Local Government Service.
2. Whether or not on a true
and proper interpretation of the
Constitution of Ghana, 1992 a
member of the Civil Service or
Local Government Service has a
right to contest for elections
for political party office and
to hold political party office
whilst still a member of the
Civil Service or Local
Government Service.
3. Whether or not on a true
and proper interpretation of the
Constitution, 1992 a member of
the Civil Service or Local
Government Service has a right
to remain a member of the Civil
Service or Local Government
Service until he/she prior to
his/her nomination by a
political party or otherwise to
contest as a member of
parliament.
4. Whether or not the
provisions of the code of
conduct for members of the Civil
Service or Local Government
enacted by the Councils of the
Civil Service and the Local
Government Service and/or any
other authority barring a member
of the Civil Service or the
Local Government Service from
engaging in political party
activities is unconstitutional.
5. Whether or not on a true
and proper interpretation of
articles 12(2), 21(3), 21(1) (a)
and (d), 35(6) (d), 55(1), (2)
and (10); and 284 of the
Constitution, 1992 a member of
the Civil Service or Local
Government Service has the right
to contest in local government
elections whilst still a member
of the Civil Service or Local
Government Service.
6. Whether or not on a true
and proper interpretation of
articles 12(2), 21(3), 21(1) (a)
and (d), 35(6) (d), 55(1), (2)
and (10); and 284 of the
Constitution, 1992 a member of
the Civil Service or Local
Government Service has the right
to remain a member of the Civil
Service or Local Government
Service after being sworn in as
a member of a district assembly.
7. Whether or not the
provisions of the code of
conduct for members of the Civil
Service or the Local Government
Service enacted by the Councils
of the Civil Service and Local
Government Service and/or any
other authority baring a member
of the Civil Service or Local
Government Service from
contesting and/or being a member
of a district assembly whilst
still a member of the Civil
Service or Local Government is
unconstitutional.
Although the
list of issues is longer than
the two issues both parties
focused on in their respective
statements of case, a close
analysis of the same shows that
the memorandum merely
particularizes the sub-issues
that arise from the matters
argued in the statements.
Analysis
The parties
herein are in general agreement
that the rights and freedoms
guaranteed under the
Constitution are not absolute
but subject to limitations
and/or restrictions consistent
with provisions of the
Constitution. It is, therefore,
not in contention whether or not
the Constitution permits
restrictions or places
limitations on the exercise of
the Plaintiff’s freedom of
association, particularly
political association. The core
question at issue is whether or
not the limitations sought to be
imposed on the political
activities of the Plaintiff by
the Civil Service Code of
Conduct and the Local Government
Service Code of Conduct (as well
as section 26 of Act 574) are
consistent with the
Constitution.
Prima facie,
constitutional rights and
freedoms are to be enjoyed fully
but subject to the limits which
Constitution itself places
thereon, in the terms of Article
12(2). However, in recognition
of the fact that the enjoyment
of political rights must be also
governed by certain regulations
and standards Article 21(3)
makes room for ‘laws and
qualifications’ so as to assure
that, in the enjoyment of the
fundamental freedom to form or
join political parties, there
will be order as well as proper
service to the public good. This
is an important aspect of good
governance. Hence, in
determining the validity of any
statutory or other limitation
placed on a constitutional
right, the questions that need
to be determined are:
a. Is the
limitation necessary? In other
words is the limitation
necessary for the enhancement of
democracy and freedoms of all,
is it for the public good?
b. Is the
limitation proportional? Is the
limitation over-broad such as to
effectively nullify a particular
right or freedom guaranteed by
the constitution?
Necessity and Proportionality
For ease of
reference I set out again
provisions of Articles 12,
21(3), 94(3), 284as well as 295,
for these are, in my view the
provisions that properly govern
limitations and restrictions.
“12 (1) The fundamental human
rights and freedoms enshrined in
this chapter shall be respected
and upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
this Constitution.
"(2) Every person in Ghana,
whatever his race, place of
origin, political opinion,
colour, religion, creed or
gender shall be entitled to the
fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest".
and
Articles 21(3), 94(3) and 284,
respectively, state as follows:
"21(3) All citizens shall have
the right and freedom to form or
join political parties and to
participate in political
activities subject to such
qualifications and laws as are
necessary in a free and
democratic society and are
consistent with this
Constitution.
"94(3) A person shall not be
eligible to be a Member of
Parliament if he -
(c)
is prohibited from
standing election by a law in
force in Ghana by reason of his
holding or acting in an office
the functions of which involve a
responsibility for or are
connected with the conduct of,
an election or responsibility
for, the compilation or revision
of an electoral register; or
(d)
is a member of the Police
Service, the Prisons Service,
the Armed Forces, the Judicial
Service, the Legal Service,
the Civil Service, the Audit
Service, the Parliamentary
Service, the Statistical
Service, the Fire Service, the
Customs, Excise and Preventive
Service, the Immigration
Service, or the Internal Revenue
Service; or
(c) is a Chief.
284. A public officer shall not
put himself in a position where
his personal interest conflicts
or is likely to conflict with
the performance of the functions
of his office.
Additionally, Article 295
states:
"public interest"
includes any right or advantage
which enures or is intended to
enure to the benefit generally
of the whole of the people of
Ghana;
"public office"
includes an office the
emoluments attached to which are
paid directly from the
consolidated Fund or directly
out of moneys provided by
Parliament and an office in a
public corporation established
entirely out of public funds or
moneys provided by Parliament;
"public service"
includes service in any civil
office of Government, the
emoluments attached to which are
paid directly from the
Consolidated Fund or directly
out of moneys provided by
Parliament and service with a
public corporation;
Distilled into their barest
essence, these provisions show
that:
i.
Fundamental
human rights and freedoms are
subject to respect for the
rights and freedoms of others
and for the public interest
ii.
The public
interest is not defined in any
particular way and is founded on
the overall benefit of the
people of Ghana. Thus its
interpretation and application
is necessarily situational and
environmental.
iii.
Political
rights and freedoms are subject
to such qualifications and laws
as are necessary in a free and
democratic society and are
consistent with this
Constitution
iv.
Civil Servants
are part of the exclusion list
with respect to eligibility for
members of Parliament and
although the exclusion list in
article 94 makes a distinction
between qualification and
eligibility, yet, at the same
time, being qualified to become
a member of Parliament does not
make a member of the Civil or
local government Service
Eligible.
v.
Public
Officers, which includes Civil
Servants, are enjoined to avoid
conflict of interest situations
in the performance of their
official duties.
As Sowah, JSC. (as he then was)
famously noted, every
constitution has its letter, as
well as its spirit, which is
gleaned from the intention of
the framers of the constitution.
Clearly, if the framers of the
Constitution had intended the
enjoyment of the fundamental
human rights and freedoms to be
absolute, they would have
expressly stated same. Granting
limitations on the exercise of
these rights is a clear
indication that the framers of
the Constitution must have
contemplated certain overriding
interests i.e. the public
interest in respect of the
exercise of these rights as well
as the public interest in the
assurance that public officers
will as much as possible serve
the public rather than political
interests.
Whilst facts in the Canadian
case of
Osborne v. Canada (Treasury
Board), [1991] 2 S.C.R. 69appear
similar to the ones herein, it
is crucial not to lose sight of
its socio-political context
which formed the basis of the
majority opinion regarding
proportionality. On the issue of
necessity, the Canadian court
did acknowledge, nevertheless,
that the legislative objective
of maintaining neutrality in the
Public Service is of sufficient
importance to justify some
limitation on freedom of
expression and association.
That is the position we also
take in this matter, and ad we
have already noted above, such
limitations are known and
inherent in the enjoyment of
rights, provided they are
proportional enough as not to be
overbroad.
In this matter, the
determination of whether the
limitations on the enjoyment of
political rights by members of
the Civil and Local Government
Services are proportional, it is
essential to take into account
the Statutory role of the Civil
Service (pursuant to article
190) and the constitutionally
determined function of the Local
Government Service in the
overall governance structure in
Ghana. Sections 2 and 3 of the
Civil Service Act, 1993 (PNDCL
327) provide as follows:
"2. Object of the Service
The object of the Service is to
assist the Government in the
formulation and implementation
of government policies for the
development of the country.
"3. Functions of the Service
(1) For the purposes of
achieving its object, the
Service shall
(a) initiate and formulate
policy options for the
consideration of the Government,
(b) initiate and advise on
government plans,
(c) undertake the necessary
research for the effective
implementation of government
policies,
(d) implement government
policies,
(e) review government policies
and plans,
(f) monitor, co-ordinate and
evaluate government policies and
plans,
It is clear from the foregoing functions that a large measure of
apparent political anonymity or
neutrality is required in order
for the Civil Service to
function satisfactorily and
effectively as part of the
national government machinery.
To be effective, the work of a
Civil Servant in Ghana, no
matter the level of operation,
requires some expectation of
efficiency, discretion, loyalty
and public trust. At this stage
or our socio-political
development, when political
discourse is all pervasive and
rivalry can easily trigger a
whole range of reactions,
including even violence, it
would be most unhealthy to
countenance Civil and Local
Government servants who publicly
proclaim their partisan leanings
in the public space. Whilst
their membership of a party is
their right, the open
manifestation of such leanings
in cannot augur well for a
neutral workplace, and
demonstrable assurance of
transparency and
anonymity/neutrality in
decision-making or execution of
functions. Otherwise a public
perception of political
corruption in all its forms,
including bias, nepotism, abuse
of position, opacity and lack of
accountability will be
engendered, thereby weakening
the effectiveness of these
government services, to the
detriment of the nation as a
whole. In this regard, the
following reasoning in the
dissenting opinion of Stevenson
J., in the Osborne case (supra)
is quite persuasive:
".... An effective civil service
is essential to modern day
democratic society and a measure
of neutrality is necessary in
order to preserve that
effectiveness. No civil servant
must owe, or be seen to owe,
appointment or promotion to
partisan activities since
visible partisanship by civil
servants would severely impair,
if not destroy, the public
perception of neutrality. In
that context, section 33(1) (a)
of the Act is an acceptably
proportional response to
Parliament's objective. The
section does not suffer from
over-breadth and meets the
"minimal impairment" test. The
proposed less restrictive means,
which distinguish between
various levels of public
servants (and thus abandon any
restraint on the so-called lower level
civil service), would not
satisfy the objective of
preserving the civil service's
political neutrality. Finally,
there is an appropriate
proportionality between the
effects of the measure and the
objective. The provision does
not deny freedom of expression.
It imposes a limitation on
that freedom in the context of
partisan political activities
upon persons who must know, or
at least be deemed to know, that
employment in the public service
involves acceptance of certain
restraints.
In relation to the instant case, it is evident that political
neutrality is very important and
still relevant within the Public
Service. Best practices and
Ghana's socio-political
evolution require that no civil
servant or local government
servant should owe, or be
perceived to owe, appointment or
promotion to partisan
activities. Partisan activities
tend to be obvious and explicit
and they are more often than not
visible and known to those in
and out of the public service.
Once these commitments are
known, the principles of
neutrality, impartiality and
integrity are weakened and
endangered.
At this stage
of development of our democratic
development, it is always
crucial and necessary to
establish and safeguard a high
standard of neutrality and
objectivity in governance and
the delivery of public service,
so as foster and strengthen
public confidence in the
democratic process. The elements
necessary for knitting a nation
together, including in
particular the avoidance of the
abuse of discretionary power and
observance of mutual respect in
the public space, are still
evolving. Moreover, (and related
to the foregoing) the maturity
level of most stakeholders
within the Ghanaian governance
system are as yet at a growth
stage, and it is not surprising
that, nearly 30 years into our
Forth Republic, there are still
obvious sensitivities concerning
the stability of our democracy.
We need not burden the delicate
developmental process by the
removal of all forms of
legitimate restrictions and
limitations on the enjoyment and
exercise of fundamental human
rights and freedoms
particularly, the open
manifestation of such membership
and the mixing of public service
with overtly political office.
Our Constitution will continue
to serve us well only if the
application of its provisions is
supportive of the upward
evolution of the national ethos,
our hopes and aspirations.
With every
guaranteed human right under the
Constitution, comes an
overriding responsibility, which
is toward the public interest or
greater good. It is for this
reason that the framers of the
1992 Constitution placed
limitations on the exercise of
some human rights by certain
classes of persons, including
members of the Civil Service and
Local Government Service. These
Services have been long hallowed
institutions whose utility lie
entirely in their presumed
anonymity/neutrality and
permanence. From one political
administration to the next, the
Civil Service and Local
Government Service are expected
to remain in place, functioning
in a professional manner, to
assure continuity and process
integrity in the administration
of day to day governance.
Visible partisanship and overt
displays of lack of professional
neutrality and objectivity would
be a betrayal of the just
expectations of the People of
the Republic of Ghana and impair
(even further) the efficiency
and effectiveness of these key
governance services.
It is
therefore our view that the
Codes of Conduct of the Civil
Service and the Local Government
Service, in general do not deny
Civil and Local Government
Servants the freedom of
association, particularly the
right to join political parties
of their choice. They merely
seek to place a limitation on
the manifestation of that right
while in-service, in order to
maintain the neutrality of the
Civil and Local Government
Service and foster the
principles of anonymity and
permanence. What they say, in
sum is, if you wish to broadcast
or otherwise manifest your
political party allegiance
and/or run political office,
step away from the said
Services.
In the
particular case of the Local
Government Service, in addition
to the foregoing considerations,
it is important to bear in mind,
which we do, the following
factors:
a. Article 240(2)(d)
provides that "as far as
practicable, persons in the
service of local government
shall be subject to the
effective control of local
authorities"
b. By virtue of article
241(3) the District Assembly is
the highest political authority
in a district and has
deliberative, legislative and
executive powers.
c.
Under Article 245, the functions
of the District Assembly
includes:
"(a) the
formulation and execution of
plans, programmes and strategies
for the effective mobilization
of resources necessary for the
overall development of the
district
(b) the
levying and collection of taxes,
rates duties and fees."
In addition,
the Local Government Act, 2016
(Act 936) enumerates in greater
detail the scope and magnitude
of the functions of the District
Assembly, which leaves no doubt
in our minds that membership of
an Assembly is not a casual
position to be undertaken for
fancy or on a whim. Section 12
is as follows:
"Functions of District Assemblies
(1) A District Assembly
shall
(a) exercise
political and administrative
authority in the district
(b) promote
local economic development; and
(c) provide
guidance, give direction to and
supervise the other
administrative authorities in
the district as may be
prescribed by law.
(2) A District Assembly shall exercise deliberative,
legislative and executive
functions.
(3) Without limiting subsections (1) and (2), a District
Assembly shall
(a) be responsible for the overall development of
the district;
(b) formulate and execute plans, programmes and
strategies for the effective
mobilisation of the resources
necessary for the overall
development of the
district;
(c) promote and support
productive activity and social
development in the district and
remove any obstacles to
initiative and development;
(d) sponsor the
education of students from the
district to fill particular
manpower needs of the district
especially in the social sectors
of education and health, making
sure that the sponsorship is
fairly and equitably balanced
between male and female
students;
(e) initiate programmes
for the development of basic
infrastructure and provide
municipal works and services in
the district;
(f) be responsible for
the development, improvement and
management of human settlements
and the environment in the
district;
(g) in co-operation with
the appropriate national and
local security agencies, be
responsible for the maintenance
of security and public safety in
the district;
(h) ensure ready access
to Courts in the district for
the promotion of justice;
(i) act to preserve and
promote the cultural heritage
within the district;
(j) initiate, sponsor
or carry out studies that may be
necessary for the discharge of
any of the duties conferred by
this Act or any other enactment;
and
(k) perform any other
functions that may be provided
under another enactment.
(4) A District Assembly shall take the steps and measures that are
necessary and expedient to
(a) execute
approved development plans for
the district;
(b) guide,
encourage and support
sub-district local structures,
public agencies and local
communities to perform their
functions in the execution of
approved development plans;
(c) initiate
and encourage joint
participation with any other
persons or bodies to execute
approved development plans;
(d) promote or
encourage other persons or
bodies to undertake projects
under approved development
plans; and
(e) monitor
the execution of projects under
approved development plans and
assess and evaluate their impact
on the development of district
and national economy in
accordance with government
policy.
(5) A District Assembly shall co-ordinate, integrate and harmonise
the execution of programmes and
projects under approved
development plans for the
district and other development
programmes promoted or carried
out by Ministries, Departments,
public corporations and other
statutory bodies and
non-governmental organisations
in the district.
(6) A District Assembly in the discharge of its duties shall
(a) be subject to the general guidance and direction of the
President on matters of national
policy,
and
(b) act in co-operation with the appropriate public corporation,
statutory body or
non-governmental
organisation
….”
and
d. By virtue
of article 248 candidacy for
election to a District Assembly
is purely on an individual basis
and political parties are
proscribed from endorsing,
sponsoring offering a platform
to or in any way campaigning for
or against any such candidate.
Thus, where a
person who is a member of the
Local Government Service also
becomes a member of the District
Assembly, issues of anomaly and
conflict of interest are likely
to arise by virtue of Articles
240(2)(d), 241(3) and 245(a) and
(b). For example, how can the
person responsible for the
collection of fees in the
District be part of the
membership that fixed the fees
in the first place, and when
issues of accountability arise,
who will 'police the police' as
it were? Furthermore, since the
Assembly is the highest
authority in the District, in
the light of section 12 of Act
936, it is in the best interest
of the public that its members
be able to dedicate the optimal
amount of time to the execution
of its functions. Conversely and
at the same time, a member of
the Local Government Service is
also expected, and indeed
ethically and duty-bound, to
earn his or her salary through
dedicated and full time
performance of his or her
functional responsibilities.
Conclusion
Consequently,
we determine the issues set out
in the Memorandum of Agreed
Issues as follows:-
1.On a true
and proper interpretation of the
Constitution, a member of the
Civil Service or Local
Government Service has a right
to join any political party of
his or her choice, however, such
a person does not have the right
to participate overtly in
political party activities
whilst still a member of the
Civil Service or Local
Government Service.
2. On a true and proper
interpretation of the
Constitution, a member of the
Civil Service or Local
Government Service does not have
a right to contest for elections
for political party office or
hold political party office
whilst still a member of the
Civil Service or Local
Government Service.
3. On a true and proper
interpretation of the
Constitution, a member of the
Civil Service or Local
Government Service does not have
the right to remain a member of
the Civil Service or Local
Government Service after his or
her nomination by a political
party or otherwise to contest
for election as a member of
parliament. Moreover, such a
person shall resign from his or
her office immediately his or
her political activities become
overt.
4. The provisions of the
Code of Conduct for members of
the Civil Service or Local
Government Service, enacted by
the Councils of Civil Service or
Local Government Service and any
other authority barring a member
of the Civil Service or Local
Government Service from engaging
in political party activities
are not in contravention of the
Constitution and are therefore
not unconstitutional.
5. On a true and proper
interpretation of articles
12(2), 21(1)(a) and (d), 21(3),
35(6) 55(1),(2) and (10) and 284
of the Constitution, a member of
the Civil Service or Local
Government Service has the right
to contest in local government
elections whilst still a member
of the Civil Service or Local
Government Service.
6. However, on a true
and proper interpretation of
articles 12(2), 21(1)(a) and
(d), 21(3), 35(6) 55(1),(2) and
(10) and 284 of the
Constitution, a member of the
Civil Service or Local
Government Service does not have
the right to remain a member of
the Civil Service or Local
Government Service after being
sworn in as a member of a
District Assembly.
7. The provisions of the
Code of Conduct for members of
the Civil Service or Local
Government Service enacted by
the Councils of the Civil
Service or Local Government
Service and or any other
authority, barring a member of
the Civil Service or Local
Government Service from
contesting election to become a
member of a District Assembly,
while still a member of either
service, are not in consonance
with the provisions of the
Constitution and are therefore
unconstitutional;
HOWEVER, the
provisions of the Code of
Conduct for members of the Civil
Service or Local Government
Service enacted by the Councils
of the Civil Service or Local
Government Service and or any
other authority, barring a
member of the Civil Service or
Local Government Service from
being a member of a District
Assembly while still a member of
the Civil Service or Local
Government Service do not
contravene any provision of the
Constitution and the same are
not unconstitutional.
We so declare accordingly.
S.
A. B. AKUFFO (MS)
(JUSTICE OF
THE SUPREME COURT)
S.
O. A. ADINYIRA (MRS)
(JUSTICE OF
THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
AKOTO-BAMFO (MRS)
(JUSTICE OF
THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
ALI GOMDAH ABDUL-SAMAD FOR
THE PLAINTIFF
GRACE EWOAL, PRINCIPAL
STATE ATTORNEY FOR THE DEFENDANT |
