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Constitutional law - Invoke the
original jurisdiction of the
court - Interpretation - True
and proper construction -
Article 218(e) of the
Constitution
– Alleged or suspected
corruption and misappropriation
of public moneys by officials -
Scope of the mandate of a
constitutional body in the
performance of one its
constitutionally assigned
functions). - Whether or not
the Commission on Human Rights
and Administrative Justice has
the mandate to investigate a
private individual, entity
and/or person who is alleged to
be involved or implicated in an
act of bribery or corruption
allegedly committed (by) a
public official or officials and
who is/are being investigated by
the Commission - Whether or not
the action is moot because, in a
matter that came before the High
Court on an application for an
Order of Prohibition
HEADNOTES
The plaintiff
is an independent body that
Parliament has, under an
authority conferred on it by
article 216 of the 1992
Constitution, established to
protect human rights, to serve
as an ombudsman and to fight
corruption. Purporting to
exercise its mandate under
article 218 of the Constitution
to investigate alleged or
suspected corruption, the
plaintiff commenced
investigations into alleged or
suspected acts of bribery and
corruption involving the second
defendant and others. All the
others were public officers at
the time of the alleged or
suspected acts of corruption.
The allegations of
corruption referred to above
were made during investigations
by the United Kingdom’s Serious
Fraud Office into the overseas
business operations of Mabey and
Johnson, (hereafter referred to
simply as “M & J”) a
privately-owned British
engineering company, in various
countries, including Ghana. A
series of disclosures,
admissions of facts and pleas of
guilty by this British company
resulted in its conviction in
the unreported case of Regina v
Mabey and Johnson Limited and to
a sentence hearing on 25th
September 2009 before the
Southwark Crown Court in
London. The plaintiff has put
the transcript of the
proceedings of this Sentence
Hearing into evidence before
this court
HELD
It is in
recognition of the nexus between
transparency (honest dealing and
ethical conduct) and the desired
social order enshrined in the
Constitution, that CHRAJ was
established by the Constitution
itself as one of the key
institutional mechanisms for
assuring a level playing field
for all in the enjoyment of the
benefits that would flow from a
nation run on sound
constitutional principles. For
the court to accept the 2nd
Defendant’s invitation to place
a narrow interpretation on the
language of article 218(e),
would amount to doing grave
damage to both the language and
purpose of the provision and
would also result in placing on
CHRAJ functional limitations
that are not justified by the
ideals and principles underlying
the Constitution and so clearly
expressed in the Directive
Principles. Article 218(e)
includes in the functions of
CHRAJ, the duty to:- “...
investigate all instances
of alleged or suspected
corruption and the
misappropriation of public funds
by officials and to take
appropriate steps, including
reports to the Attorney General
and the Auditor General,
resulting from such
investigations.” If in the
course of investigating an
instance of alleged or suspected
corruption by public officials a
member of the private sector
(natural or corporate) becomes
enmeshed in the matter, CHRAJ
will be duty bound to extend the
scope of its investigation to
cover the activities of such
person, in order to plumb the
full and true depth of the
instance of ‘alleged or
suspected corruption ... by
officials’. It would be
derogating from the duty imposed
on it by article 218(e) to draw
any such artificial lines and
boundaries as have been
contended by the 2nd
Defendant. In the light of the
foregoing, and also for the more
extensive reasons set out in
Justice Date-Bah’s judgment,
this court will grant to the
Plaintiff the reliefs endorsed
on its writ herein and grant the
declarations as prayed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Interpretation Act, 2009
CASES
REFERRED TO IN JUDGMENT
Bilson v.
Attorney General, (1993-1994) 1
GLR 104.
Amidu v
Kufuor [2001-2002] 2 SCGLR 86 at
106
Bilson v.
Apaloo, [1981] GLR 24
New Patriotic
Party v. National Democratic
Congress, [2000] SCGLR 461
National
Democratic Congress v. Electoral
Commission, [2001-2002] SCGLR
954
The Republic
v. Special Tribunal; Ex Parte
Akosah, [1980] GLR 592
Asare v The
Attorney-General [2003-2004]
SCGLR 823
Agyei Twum v
Attorney-General and Anor
[2005-2006] SCGLR 732
Sam No.2 v
Attorney-General [2000] SCGLR
305
Apaloo v
Electoral Commission [2001-2002]
SCGLR 1,
Republic v
Yebbi & Avalifo [2000] SCGLR 149
Ampofo v
CHRAJ [2005-2006] SCGLR 227
Omaboe III v
Attorney-General & Lands
Commission [2005-2006] SCGLR
579
Lotto
Operators v National Lottery
Authority [2007-2008] SCGLR
1088;
Mettle-Nunoo
v Electoral Commission
[2007-2008] SCGLR 1250,
Republic v
High Court (Fast Track Division)
Accra; Ex parte CHRAJ (Anane
Interested Party) [2007-2008]
SCGLR 213;
Republic v
High Court, Accra; ex parte
Yalley (Gyane & Attor,
Interested Parties) 2007-2008]
SCGLR 512
Republic v
High Court, Accra (Commercial
Division); ex parte Hesse
[2007-2008] SCGLR 123
Danso-Acheampong v
Attorney-General & Abodakpi
[2009] SCGLR 453,
Republic v
High Court, Sunyani, Ex parte
Dauda,(Boakye-Boateng,
Interested Party) Civil 2009]
SCGLR 545
Republic v
High Court, Koforidua; Ex parte
Asare (Baba Jamal and Ors
Interested Parties) [2009] SCGLR
545,
National
Media Commission v
Attorney-General [2000] SCGLR 1
Republic v
High Court (Fast Track Division)
Accra; Ex Parte Commission on
Human Rights and Administrative
Justice (Richard Anane
Interested Party) [2007-2008]
SCGLR 213
S v
Makwanyane (1995) 3 S.A. 391
(CC)
S.R.
Chaudhuri v State of Punjab. AIR
2001 S.C.2707
Nationwide
News Pty. Ltd. v Wills (1992)
177 CLR 1
R v City of
London Court Judge [1892] 1QB
273
R.v Wimbledon
Justices, ex p. Derwent [[1953]
1 QB 380
R v Oakes
[1959] 2 QB 350
River Wear
Commissioners v Adamson (1877) 2
App. Cas. 743
Heydon’s Case
[(1584) 3 Co.Rep. 7a; 76 E.R.
637]
Sussex
Peerage Case [(1844) 11 Co. & F
85; 8 E.R. 1034]
Grey v
Pearson [(1857) 6 H.L.C.61; 10
E.R. 1216]
Attorney-General(no. 2) v Tsatsu
Tsikata (no.. 2) [2001-2002]
SCGLR 620
Republic v
High Court (Fast Track Division)
Accra; Ex parte Commission on
Human Rights and Administrative
Justice (Richard Anane
Interested Party) [2007-2008] 1
SCGLR 213
Tuffour v
Attorney-General [1980] GLR 637.
Agyei Twum v
Attorney-General & Akwettey
[2005-2006] SCGLR 732
Nationwide
News Pty. Ltd. v Wills (1992)
177 CLR 12;
Australian
Capital Television Pty. Ltd. v
Commonwealth (1992) 177 CLR 106
Theophanous v
Herald & Weekly Times Ltd.
(1994) 182 CLR 104;
Lange v
Australian Broadcasting Corp.
(1997) 189 CLR 520.)
McCulloch v
Maryland (1819) 17 US 316.)”
BOOKS
REFERRED TO IN JUDGMENT
Black’s Law
Dictionary (6th ed.),
Jain, Indian
Constitutional Law, 2009, at p.
1568):
Bennion
Statutory Interpretation, 4th
Edition,
DELIVERING
THE LEADING JUDGMENT
SOPHIA A. B. AKUFFO, JSC
COUNSEL
THADDEUS SORY
FOR THE PLAINTIFF WITH HIM K.
O. ACHEAPONG, NANA SEKYIWAA AND
AMA ADDO – FENING.
SAMUEL CODJOE
FOR THE 2ND
DEFENDANT.
_________________________________________________________________
J U D G M E N
T
SOPHIA A. B.
AKUFFO, JSC
On February 8th 2011,
we overruled the preliminary
objections raised by the 2nd
Defendant herein and stated that
the reasons therefor will be
incorporated in our judgment on
the substantive matter. In this
opinion, therefore, I will deal
with our reasons for overruling
the objection as well express,
very briefly, my views on the
substantive matter in respect of
which the unanimous decision of
the court is fully reflected in
the judgment by our highly
esteemed brother, Dr. Date-Bah,
JSC.
Brief
Background
The background
facts of this case are set out
in greater detail in Justice
Date-Bah’s judgement, and here,
I will only make reference to
such factual details as are, in
my view, necessary for giving
adequate perspective to the
ruling on the preliminary
objection.
By a writ filed on
May 26th 2010, by the
Commission for Human Rights and
Administrative Justice
(hereinafter referred to as
‘CHRAJ’ or ‘the Plaintiff’)
against the Attorney General
(hereinafter referred to as the
‘AG’ or ‘the 1st
Defendant) and Mr. Baba Kamara
(hereinafter referred to as ‘the
2nd Defendant’)
the Plaintiff
prayed the Court for
the following
reliefs:-
‘a. A
declaration that upon a
true and
proper construction and/or
interpretation of
Article
218(e) of the Constitution
... the
Commission on Human Rights and
Administrative Justice has the
mandate to investigate a private
individual, entity and/or person
who is alleged to be involved or
implicated in an act of bribery
or corruption allegedly
committed (by) a public official
or officials and who is/are
being investigated by the
Commission.
b. A declaration
that on a
true and proper interpretation
of Article 218(e) of the 1992
Constitution, the mandate of the
Commission on Human Rights and
Administrative Justice ‘to
investigate all instances of
alleged
or suspected corruption and
misappropriation of public
moneys by officials’ covers
situations in which an
individual, entity and/or person
though not a ‘public official’
is alleged to be involved or
implicated in an act of alleged
bribery or corruption involving
public officials and which is
under investigation by the
Commission.’
It is not in
controversy that the instant
writ arose out of investigative
proceedings commenced by CHRAJ
into alleged acts of bribery and
corruption involving certain
persons who, at the material
times, were public officials,
and the 2nd
Defendant. The 2nd
Defendant, who at all times
material to the matter under
investigation had been a private
businessman, challenged the
jurisdiction of CHRAJ to
investigate him on the grounds
that, by the provisions of
Article 218(e) CHRAJ had the
mandate to investigate only
public officials and not private
citizens such as himself. On the
basis of this challenge the 2nd
Defendant refused to submit
himself to CHRAJ and,
consequently, CHRAJ brought the
instant suit.
The
Preliminary Objection
On November 8th
2010, the
2nd Defendant filed a
Notice of Preliminary Objection
raising an objection against
this court’s continued hearing
of the case filed by CHRAJ, on
the grounds that:-
a.
The action is moot because, in a
matter that came before the High
Court on an application for an
Order of Prohibition,
in suit no. HRCM 46/10, Republic
v. Kwame Peprah, Alhaji Baba
Kamara, Alhaji Boniface
Saddique, Brig-Gen. Lord Attivor
and Dr. Ato Quarshie, the High
Court prohibited the Plaintiff
from investigating 2nd
Defendant and consequently,
b.
There is no useful purpose to be
served by hearing the action and
the same should therefore be
dismissed.
However, in
the Statement of Case in support
of the preliminary objection,
the 2nd Defendant,
without prior notice or leave of
the Court, added and argued
another ground of objection
that:-
‘Before one can
invoke
the original jurisdiction of
this court under article 2(1)
(b) of the Constitution of the
Republic of Ghana, it has to be
shown that an act or omission
has been done by a person be it
a corporate person or an
individual which breaches a
particular constitutional
provision. In the present case
there is no act or omission of
the 2nd Defendant
which can be said to be a breach
of the Constitution.’
We were
somewhat tempted to ignore this
additional ground of preliminary
objection which was added
without due form. However, since
it raised a fundamental question
of whether or not the court’s
original jurisdiction had been
properly invoked, we shall deal
with it, albeit only briefly,
after considering the original
grounds as notified, which are,
effectively, one ground, i.e.
whether or not the matter was
moot, in the light of the said
High Court judgement.
Mootness
In the
Statement of Case in support of
this ground of objection, (and
also from the judgment and order
of the High Court dated 11th
June 2010, on the said
application) it is evident that
the matter came before the High
Court by way of an application
to prohibit CHRAJ from
continuing with the aforesaid
investigative hearings because,
notwithstanding the pendency of
the same investigations,
according to the 2nd
Defendant’s said Statement of
Case, the Commissioner for
CHRAJ, “... Commissioner Short,
speaking on behalf of the
Plaintiff granted an extensive
interview on Metropolitan
Television, a television station
which by virtue of being on the
internet has a global reach in
which the said Commissioner
Short made very prejudicial
comments about 2nd
Defendant and the other
Applicants”.
There is no
dispute that the application was
successful, and that the learned
High Court Judge did make an
order prohibiting CHRAJ from
continuing with the
investigations on the ground of
bias, which decision is on
appeal in the Court of Appeal.
Does this make the matter moot?
It was argued
on behalf of the 2nd
Defendant herein that, in view
of the fact that, as at the
time, CHRAJ was prohibited from
investigating him and, until the
said decision of the High Court
is set aside, any decision given
by this court would be moot, no
useful purpose would be served
by continuing with the hearing
of the suit. In support of this
contention, the 2nd
Defendant referred to the
celebrated case of
Bilson
v. Attorney General, (1993-1994)
1 GLR 104.
However, it
is noteworthy that upon a close
analysis of the decision in
Bilson, it is discernible that
the primary basis for the
court’s conclusion was that:-
“.... Since on the
pleadings, the plaintiff was
seeking a declaration in a
vacuum, his writ had not
disclosed any cause of action.”
In this case
can one rightly say that CHRAJ
is seeking a declaration in a
vacuum? As is evident from the 2nd
Defendant’s own Statement of
Case in support of the
preliminary objection, the
action herein arose as a direct
result of his objection to
CHRAJ’s assumption of
jurisdiction to investigate him,
a private person (in the course
of an investigation into
incidents of alleged or
suspected corruption by certain
public officials), and his
refusal to submit himself to
such investigations. Therefore,
the action herein is within the
context of a dispute or
controversy between CHRAJ and
the 2nd Defendant
regarding the scope of CHRAJ’s
constitutional mandate under
article 218(e). As such,
therefore, the mere fact that,
the Plaintiff herein might be,
forever, unable to investigate
the 2nd Defendant, in
the event the Order of
Prohibition is upheld on appeal,
cannot render this present
matter moot. Mootness must
always be determined according
to the peculiar circumstances of
each case and even where the
question at issue in a
particular case might have been
overtaken by events and rendered
moot, yet, the court may still
proceed to determine the issue
if it is anticipated that it is
likely to be a recurring one. It
was noted by the esteemed Acquah
JSC (as he then was, of blessed
memory) in
Amidu
v Kufuor [2001-2002] 2 SCGLR 86
at 106 that:-
“.... As defined in
Black’s
Law Dictionary (6th
ed.), an action is generally
considered moot when it no
longer presents a justiciable
controversy because issues
involved have become academic or
dead. This may happen when the
matter in dispute has either
been resolved already and hence
there is no need for judicial
intervention, or events
happening thereafter have
rendered the issue no longer
live. In either situation,
unless the issue is a recurring
one and likely to be raised
again between the parties, the
courts would not entertain such
a dead issue.” (my emphasis)
Whilst we do
not intend to anticipate or
prejudge the outcome of the
Plaintiff’s appeal, yet, to the
extent that there is a
possibility of the matter
between the Plaintiff and the 2nd
Defendant herein raising its
head again, we cannot in this
instance conclude that it no
longer presents a justiciable
controversy. Furthermore, in our
view, the interpretation of a
constitutional provision does
not affect only the parties
before the court, or relate only
to the case in which it arose
(particularly in a matter such
as this, which involves the
scope of
the mandate of a constitutional
body in the performance of one
its constitutionally assigned
functions). Rather, it has
an intimate and indelible impact
on such provision and all
subsequent proceedings
thereunder; unless and until
such interpretation is varied by
this Court or such provision is
duly amended by the legislature.
The note of caution expressed by
the learned Kpegah, JSC., in
Bilson v. The Attorney General
(supra, at page 110) still holds
true that:-
“The judicial authority
of which this court is the
beneficiary or endowed with is
essentially a jurisdiction to
deal with real or substantial
disputes which affect the legal
rights or obligations of parties
who appear before us, and whose
interests 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.”
However, our
view is that, in the instant
matter, there is nothing
hypothetical about the task we
have been called upon to
perform. Hence, unlike the
circumstances underlying Bilson
v The Attorney General, we are
not being called upon to
undertake an academic exercise
of no practical significance, or
merely render an advisory
opinion in a vacuum.
Consequently, the matter before
the court was not rendered moot
by the judgement of the High
Court or for any reason
whatsoever.
Jurisdiction
In his
Statement of Case in support of
the Preliminary Objection
herein, the 2nd
Defendant asserted that ‘before
one invokes the original
jurisdiction of this court under
article 2(1) of the
Constitution, it is mandatory
and a condition precedent that
there has to be an act or
omission of a person complained
of which said act or omission is
said to be unconstitutional and
by implication a breach of a
particular provision of the
constitution’. He, therefore,
submitted that:-
a. when properly invoked
Article 2(1) (b) should be
invoked ‘together with a failure
of an identifiable
constitutional provision’
because article 2(1) (b) ‘is the
vehicle by which a breach of a
constitutional provision is
remedied, and in this matter the
plaintiff does not allege any
such breach.
b. article 130 only
provides the venue where one
goes for a remedy and,
therefore, insofar as CHRAJ does
not show that any particular
Article of the constitution has
been breached, the writ is
misconceived.
In support of
these submissions, the 2nd
Defendant referred to
Bilson
v. Apaloo, [1981] GLR 24,
New Patriotic Party v. National
Democratic Congress, [2000]
SCGLR 461 and National
Democratic Congress v. Electoral
Commission, [2001-2002] SCGLR
954 and concluded that,
since the ‘2nd
Defendant has not engaged in any
positive act or omission which
can be said to be a breach of an
Article of the Constitution we
urge this court to dismiss the
writ on this ground.’ It is our
view that these authorities are
not entirely relevant to the
resolution of the issue arising
in this aspect of the matter
before us.
Article 2(1)
(b) of the Constitution reads as
follows:-
“(1) A person who alleges that -
(a) ….
(b) any act or omission of any
person;
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect”
And article
130(1) provides that:-
“Subject to the jurisdiction of
the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in
“(a) all matters relating to the
enforcement or interpretation
of this Constitution; and
“(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.”
In its
Statement of Case in response to
the 2nd Defendant’s
statement in support of the
Preliminary Objection, the
Plaintiff sought, in part, to
assert that the 2nd
Defendant’s refusal to submit to
its jurisdiction is tantamount
to an act or omission on the
part of the 2nd
Defendant. The Plaintiff,
therefore, contended, inter
alia, that ‘...by resisting the
Plaintiff’s constitutional
mandate to investigate him and
refusing to ‘submit himself to
the Plaintiff’s jurisdiction’,
the 2nd Defendant
undermined the very letter and
spirit of article 218 of the
constitutional provision that
confers the mandate on the
Plaintiff to investigate all
instances of alleged
[corruption].’ With all due
respect to counsel for the
Plaintiff, this submission may
be stretching matters rather too
far. When a person denies the
jurisdiction or the mandate of a
person does such denial
constitute a breach or
contravention of the
constitutional or statutory
provision under which the
mandate is claimed? The answer
is ‘no’. Rather, what such
denial does is to create a
controversy as to the proper
meaning of the provision.
Indeed, it is
very clear from the instant writ
and the pleadings that, although
the Plaintiff places its action
under both articles 2(1) and
130(1)(a) of the Constitution,
in fact, the action is,
essentially, for the
interpretation of article 218(e)
rather than one for enforcement
in stricto sensu, although it is
arguable that every action for
interpretation of a provision of
the Constitution is also one for
assuring the effective
application of that provision
and, therefore, in the long, run
its enforcement. It is now a
trite observation that articles
2(1) and 130(1) are two sides of
the same coin. Article 2(1)
establishes the principle that
where the general enforcement of
the supreme law of the land is
concerned, a person may bring an
action directly to this court
(subject of course to the High
Court’s specific jurisdiction
under article 33), and article
130 (1) establishes the Supreme
Court’s original jurisdiction
over certain specific matters.
The exclusive original
jurisdiction to interpret the
Constitution is one such
specific matter that has been
placed under the original
jurisdiction of the court. And
whilst there are various fences
that have been built over the
years to forestall the abuse of
process, interpretation of the
Constitution still remains a
distinct part of the exclusive
original jurisdiction of this
court and, in relevant cases,
may be invoked separately or (as
is often done) in conjunction
with the enforcement
jurisdiction.
The guiding
principles for our exercising
our interpretative jurisdiction
were encapsulated long time ago
in The
Republic v. Special Tribunal; Ex
Parte Akosah, [1980] GLR 592,
wherein the Court of Appeal,
per Anin, J.A., after reviewing
the existing case law,
summarised the position as
follows:-
“... an issue of
enforcement or interpretation of
a provision of the
Constitution... [arises] in any
of the following eventualities:
(a) where the words of the
provision are imprecise or
unclear or ambiguous. Put in
another way, it arises if one
party invites the court to
declare that the words of the
article have a double meaning or
are obscure or else mean
something different from or more
than what they say;
(b) where rival meanings
have been placed by the
litigants on the words of any
provision of the Constitution;
(c) where there is a
conflict in the meaning and
effect of two or more articles
of the Constitution, and the
question is raised as to which
provision shall prevail;
(d) where on the face of
the provisions there is a
conflict between the operation
of particular institutions set
up under the Constitution and
thereby raising problems of
enforcement and of
interpretation.
From the pleadings
filed in the case, and even from
the 2nd Defendant’s
Statement of Case in support of
the Preliminary Objection, it is
evident that the crux of the
matter between the parties
herein is the proper meaning of
article 218(e). From its
Statement of Case, the Plaintiff
is convinced, for stated legal
reasons, that when it is
performing its duty
investigating alleged or
suspected corruption by public
officials, the scope of its
mandate under article 218(e)
includes the investigation of
private persons, individuals or
entities that are involved or
implicated in the alleged or
suspected corruption. On the
other hand the 2nd
Defendant, from his Statement of
Case, is equally convinced that,
since at all material times, he
had not been a public official,
CHRAJ cannot, under any
circumstances, investigate him
for corruption and that, at
best, if the State is inclined
to investigate him, there are
other statutory courses of
action it may take to bring him
to account. If this situation
does not raise a controversy
concerning the interpretation of
a constitutional provision we do
not know what does. It gives
rise to a proper recourse to the
interpretative jurisdiction of
this court, to settle the matter
once and for all. It is only
after an authoritative
interpretation of this provision
that the scope of Plaintiff’s
mandate under article 218
(particularly with regard to
private persons) would be
clarified, the controversy
between the Plaintiff and the 2nd
Defendant resolved and future
such disputations forestalled.
Furthermore,
CHRAJ is a constitutional body
whose existence and mandate are
prescribed within specific
provisions of the Constitution.
It is charged under article 218
with responsibility to perform
certain functions which are
essential to good governance and
healthy national development.
Included in these functions is
the investigation of “...all
instances of alleged or
suspected corruption....” If in
the course of carrying out this
function, or indeed any of its
other functions, the scope of
its mandate is challenged, to
the extent that a person CHRAJ
wishes to include in its
investigations refuses to
subject himself to its
jurisdiction, what ought to be
the prudent course of action
for CHRAJ to take? Should it
abandon the investigation of
that person, even though it is
convinced that it has the
constitutional mandate to
include that person in the
investigation? Should it proceed
with the investigation in the
teeth of the person’s objections
and contentions? even if, in the
circumstances, protracted
litigation, at the needless
expense of the taxpayer, might
result from such a course of
action? In the circumstances, we
believe that, the reasonable and
proper course of action open to
CHRAJ is what it has taken and,
therefore, we found that the
court’s interpretative
jurisdiction under article
130(1) has been properly
invoked.
The Substantive
Matter
I join my
learned brethren in supporting
the judgment of my esteemed
brother Justice Date-Bah. All I
wish to add is a reminder to all
that a national Constitution is
a crucial and valuable tool for
sound socio-economic
development. It is for this
reason that, in order to foster
a well-balanced society, the
Constitution, whilst affording
to the individual far-reaching
rights and freedoms also imposes
on the individual certain
duties. Thus in the Chapter 6,
dealing with the Directive
Principles of State Policy, the
Constitution in article 37(1)
declares certain social
objectives which remain as fresh
and pertinent as they did when
they were first adopted, i.e.:-
“The State shall
endeavour to secure and protect
a social order founded on the
ideals and principles of
freedom, equality, justice,
probity, and accountability as
enshrined in Chapter 5 of this
Constitution; and in
particular, the State shall
direct its policy towards
ensuring that every citizen has
equality of rights, obligations
and opportunities before the
law.” (my emphasis)
The
Constitution then proceeds, in
article 41, to spell out,
broadly, the concomitant duties
of a citizen of Ghana, which
include the duty:-
“to promote
the prestige and good name of
Ghana ....
“to uphold
and defend [the] Constitution
and the law....
“to respect the
rights, freedoms and legitimate
interests of others, and
generally refrain from doing
acts detrimental to the welfare
of other persons;
“to work
conscientiously in his lawfully
chosen occupation....”
Corruption is
most inimical because it
militates against the rights and
freedoms of others and all sound
principles of good governance.
It is now generally considered,
by all right thinking persons,
to be a practice which raises
serious moral and political
concerns, undermines good
governance and economic
development, and distorts
competitive conditions. On the
part of participating citizens,
it amounts to a dereliction of
the abovementioned
constitutional duties because it
has a tendency to distort and
even destroy the national
potential for the realisation of
the ideals and principles
declared in article 37. It is a
real threat to the enjoyment of
the wealth of the nation, by
each citizen, in that it gives
unfair advantage to the
undeserving, whilst stultifying
healthy competition. The high
costs of public sector
procurement of services,
provisions and facilities are
often the result of prices that
have been inflated through
corruption and corrupt
practices.
It is in
recognition of the nexus between
transparency (honest dealing and
ethical conduct) and the desired
social order enshrined in the
Constitution, that CHRAJ was
established by the Constitution
itself as one of the key
institutional mechanisms for
assuring a level playing field
for all in the enjoyment of the
benefits that would flow from a
nation run on sound
constitutional principles. For
the court to accept the 2nd
Defendant’s invitation to place
a narrow interpretation on the
language of article 218(e),
would amount to doing grave
damage to both the language and
purpose of the provision and
would also result in placing on
CHRAJ functional limitations
that are not justified by the
ideals and principles underlying
the Constitution and so clearly
expressed in the Directive
Principles. Article 218(e)
includes in the functions of
CHRAJ, the duty to:-
“... investigate
all instances of alleged
or suspected corruption and the
misappropriation of public funds
by officials and to take
appropriate steps, including
reports to the Attorney General
and the Auditor General,
resulting from such
investigations.”
If in the course
of investigating an instance of
alleged or suspected corruption
by public officials a member of
the private sector (natural or
corporate) becomes enmeshed in
the matter, CHRAJ will be duty
bound to extend the scope of its
investigation to cover the
activities of such person, in
order to plumb the full and true
depth of the instance of
‘alleged or suspected corruption
... by officials’. It would be
derogating from the duty imposed
on it by article 218(e) to draw
any such artificial lines and
boundaries as have been
contended by the 2nd
Defendant.
In the light of
the foregoing, and also for the
more extensive reasons set out
in Justice Date-Bah’s judgment,
this court will grant to the
Plaintiff the reliefs endorsed
on its writ herein and grant the
declarations as prayed.
SOPHIA A. B. AKUFFO [MS.]
JUSTICE
OF THE SUPREME COURT
DR. DATE BAH
JSC:
Introduction
On the 8th
of February 2011, this Court
dismissed a preliminary
objection to this Court hearing
this action. The objection had
been raised on behalf of the
Second Defendant.
The court indicated that it
would give its reasons for
overruling the objection today.
The court laid out these reasons
in the judgment just delivered
of the esteemed President of
this Court, Her Ladyship Sophia
Akuffo JSC. My own judgment
will deal exclusively with the
substantive action before this
court. It is delivered on
behalf of the whole court.
The facts of
this case cry out for purposive
interpretation of the enactment
in issue. Section 10(4) of the
Interpretation Act, 2009 (Act
792) constitutes a legislative
stamp of approval of that
approach to judicial
interpretation. It has indeed
become entrenched in this
jurisdiction. The section
provides as follows:
“Without
prejudice to any other provision
of this section, a Court shall
construe or interpret a
provision of the Constitution or
any other law in a manner
(a)
that promotes the rule of law
and the values of good
governance,
(b)
that advances human rights and
fundamental freedoms,
(c)
that permits the creative
development of the provisions of
the Constitution and the laws of
Ghana, and
(d)
that avoids technicalities and
niceties of form and language
which defeats the purpose and
spirit of the Constitution and
the laws of Ghana.”
In my
judgment in the recent case of
Brown v Attorney-General (unreported
judgment of the Supreme Court
with suit number J1/1/2009,
delivered on 3rd
February 2010), I endeavoured to
highlight some of the recent
judgments of this court which
apply a purposive approach to
interpretation, as follows:
“As I said in
Asare v
The Attorney-General [2003-2004]
SCGLR 823 at p. 834, when
delivering the unanimous view of
the Supreme Court:
“The
subjective purpose of a
constitution or statute is the
actual intent that the authors
of it, namely, the framers of
the constitution or the
legislature, respectively, had
at the time of the making of the
constitution or the statute. On
the other hand, the
objective purpose is not what
the author actually intended but
rather what a hypothetical
reasonable author would have
intended, given the context of
the underlying legal system,
history and values, etc. of the
society for which he is making
law. This objective purpose
will thus usually be interpreted
to include the realisation,
through the given legal text, of
the fundamental or core values
of the legal system.”
In consonance
with this approach, this Court
held in
Agyei Twum v Attorney-General
and Anor [2005-2006] SCGLR 732
that where a literal reading of
a constitutional provision would
lead to an absurd result or to
undesirable public policy
consequences which are
incompatible with the core
values of the Constitution, this
Court would apply a purposive
approach to reach an
interpretative result more in
tune with the core values of the
Constitution. From the
following other recent judgments
of this Court (decided within
the last decade), it can now be
safely asserted that, in the
right context, the preferred
approach of this Court to
constitutional interpretation is
the purposive: NPP v
Attorney-General (CIBA case)
[1997-98] GLR 378, especially at
p. 386 per Bamford-Addo JSC ;
Sam No.2
v Attorney-General [2000] SCGLR
305, especially at p. 523
per Bamford-Addo JSC;
Apaloo v
Electoral Commission [2001-2002]
SCGLR 1, especially at pp.
12 and 19-22 per Bamford-Addo
JSC, and pp. 38-39 per Kpegah
JSC;
Republic v Yebbi & Avalifo
[2000] SCGLR 149, especially
at p. 159 per Acquah JSC, as he
then was;
Ampofo v
CHRAJ [2005-2006] SCGLR 227,
especially at pp. 236-237 per
Twum JSC and at p. 237, per
Date-Bah JSC;
Omaboe
III v Attorney-General & Lands
Commission [2005-2006] SCGLR
579, especially at pp. 589
and 592 per Modibo Ocran JSC;
Ghana
Lotto Operators v National
Lottery Authority [2007-2008]
SCGLR 1088; Mettle-Nunoo v
Electoral Commission [2007-2008]
SCGLR 1250, especially at p.
1261 per curiam;
Republic
v High Court (Fast Track
Division) Accra; Ex parte CHRAJ
(Anane Interested Party)
[2007-2008] SCGLR 213; Republic
v High Court, Accra; ex parte
Yalley (Gyane & Attor,
Interested Parties) 2007-2008]
SCGLR 512 per Wood CJ and
per curiam;
Republic
v High Court, Accra (Commercial
Division); ex parte Hesse
[2007-2008] SCGLR 1230 per Wood
CJ and per curiam;
Danso-Acheampong v
Attorney-General & Abodakpi
(Unreported Supreme Court
Judgment of 5th
November 2008, Suit No.
J1/3/2007, to be reported in
[2009] SCGLR 453, especially
at pp. 458-9;
Republic
v High Court, Sunyani, Ex parte
Dauda,(Boakye-Boateng,
Interested Party) unreported
Supreme Court decision of 8th
April 2009 (Civil
Motion No. J5/12/2009) to be
reported in [2009]
SCGLR 545;
Republic
v High Court, Koforidua; Ex
parte Asare (Baba Jamal and Ors
Interested Parties), Civil
Motion No. J5/23/2009,
unreported judgment of the
Supreme Court delivered on 15th
July 2009, to be reported in
[2009]
SCGLR 545, where Atuguba JSC
quoted with approval the
following passage from the
judgment of Acquah JSC, as he
then was, in
National
Media Commission v
Attorney-General [2000] SCGLR 1
at p. 11:
“Accordingly,
in interpreting the
Constitution, care must be taken
to ensure that all the
provisions work together as
parts of a functioning whole.
The parts must fit together
logically to form rational,
internally consistent
framework. And because the
framework has a purpose, the
parts are also to work
dynamically, each contributing
towards accomplishing the
intended goal.”
The purposive
approach permeates the other
judgments read in the case. The
approach of this Court,
reflected in this long (but not
exhaustive) line of recent
cases, set out above, is summed
up well by Prof. Ocran JSC in
Omaboe III v Attorney-General &
Lands Commission (supra) where
he says (at p. 592):
“We hereby
recognise, as we did in the
Asare case, the utility of the
purposive approach to the
interpretation of the
Constitution, but with the clear
understanding that it does not
rule out the legitimacy of other
techniques of interpretation in
appropriate circumstances”.
In this
inclination towards purposive
interpretation in the right
context, this Court is in the
good and illustrious company of
several outstanding apex courts
of Commonwealth jurisdictions.
In
Republic v High Court (Fast
Track Division) Accra; Ex Parte
Commission on Human Rights and
Administrative Justice (Richard
Anane Interested Party)
[2007-2008] SCGLR 213, I
cited the case of
S v
Makwanyane (1995) 3 S.A. 391
(CC) to illustrate the
approach of the South African
Constitutional Court. In this
case, I would like to refer to
the Indian Supreme Court case of
S.R.
Chaudhuri v State of Punjab. AIR
2001 S.C.2707, where the
court observed (at p. 2717,
quoted in
Jain, Indian Constitutional
Law, 2009, at p. 1568):
“Constitutional provisions are
required to be understood and
interpreted with an object
oriented approach. A
Constitution must not be
construed in a narrow and
pedantic sense. The words used
may be general in terms but,
their full impact and true
meaning, has to be appreciated
considering the true context in
which the same are used and the
purpose which they seek to
achieve. We must remember that
a Constitution is not just a
document in solemn form, but a
living framework for the
Government of the people
exhibiting a sufficient degree
of cohesion and its successful
working depends upon the
democratic spirit underlying it
being respected in letter and
spirit.”
The second
apex court to whose purposive
approach I would like to make a
brief reference is the High
Court of Australia which, in
Nationwide News Pty. Ltd. v
Wills (1992) 177 CLR 1, held
that freedom of political
discussion was part of the basic
structure of the Australian
Constitution and therefore an
implied fundamental right even
though the Australian
Constitution does not contain a
Bill of Rights. It accordingly
declared unconstitutional an
Australian statute that
infringed this freedom.”
In spite of
the statutory provision and the
overwhelming weight of the case
law referred to above, the
second defendant in this case
has urged this court in his
Statement of Case “to adopt the
literal approach and decline the
invitation by Plaintiff to
interpret the provision of
Article 218(e) by adding private
person to the category of
persons who are to be
investigated.” This
unsustainable position of the
second defendant necessitates
further discussion of this
matter of the right
interpretative approach for this
court to adopt in this case.
But before proceeding to engage
in that discussion, I will first
set out the facts in this case.
The facts
The plaintiff
is an independent body that
Parliament has, under an
authority conferred on it by
article 216 of the 1992
Constitution, established to
protect human rights, to serve
as an ombudsman and to fight
corruption. Purporting to
exercise its mandate under
article 218 of the Constitution
to investigate alleged or
suspected corruption, the
plaintiff commenced
investigations into alleged or
suspected acts of bribery and
corruption involving the second
defendant and others. All the
others were public officers at
the time of the alleged or
suspected acts of corruption.
The
allegations of corruption
referred to above were made
during investigations by the
United Kingdom’s Serious Fraud
Office into the overseas
business operations of Mabey and
Johnson, (hereafter referred to
simply as “M & J”) a
privately-owned British
engineering company, in various
countries, including Ghana. A
series of disclosures,
admissions of facts and pleas of
guilty by this British company
resulted in its conviction in
the unreported case of Regina v
Mabey and Johnson Limited and to
a sentence hearing on 25th
September 2009 before the
Southwark Crown Court in
London. The plaintiff has put
the transcript of the
proceedings of this Sentence
Hearing into evidence before
this court. In these
proceedings, counsel for the
Crown alleged that:
“But in the
cases of Ghana and Jamaica
agents employed or paid
commissions were not only paid
legitimate commissions but were
paid other funds by Mabey and
Johnson, either for their own
uses or in order to pass on to
politicians or civil servants.
Direct bribes were deducted from
the overall commission to be
paid to the agent with respect
to Jamaica, and equally direct
bribes were generally deducted
from the agent’s commission for
Ghana. In short, the Serious
Fraud Office’s case is that the
company in those jurisdictions
employed known bribers as
agents.”
The SFO
further alleged that a notional
fund of 750,000 pounds was
created by M & J from which it
paid bribes amounting to
470,792.60 pounds to some
Ghanaian public officials in
order to secure contracts in
Ghana.
The Sentence
Hearing referred to above and
the Prosecution Opening Note,
which was also put in evidence
before this court, are, of
course, in the public domain.
Consequently, the Ghanaian media
gained access to them.
Considerable discussion of them
was generated. The plaintiff
has indicated that it was on the
basis of various publications
and discussions of these
allegations in the Ghanaian
media that it commenced
investigations into the conduct
of the second defendant and six
other persons. Also the
Coalition for Democratic Forces
(“CDF”), in a complaint dated 12th
October, 2009, requested the
plaintiff to “investigate the
circumstances in which [ M & J]
won its contract in the country,
all activities that [M & J] was
involved in, and all officials
who one way or the order (sic)
had dealings with [M & J]…” The
President of the Republic also
invited the plaintiff, by a
letter of 13th
October, 2009, written on his
behalf by the Secretary to the
President, to undertake a
thorough investigation of the M
& J matter.
The second
defendant is currently the High
Commissioner of Ghana to
Nigeria. He asserts that prior
to his appointment to that
public office he had never held
public office and had never been
a public official. Until the
said appointment, he was the
Managing Director of Kamara
Limited, a construction
company. By a letter dated the
4th November, 2009,
the plaintiff informed the
second defendant that it was “
investigating allegations of
corruption against some public
officials in Ghana, including
you.” It provided particulars
of the allegations of corruption
against the second defendant as
follows:
i.
“M & J created a notional fund
of about £750,000 which was
called the Ghana Development
fund, from which direct payments
to public officials, both
elected politicians and civil
servants, in Ghana were made in
order to secure and maintain
contracts in Ghana;
ii.
You were an agent of M & J in
Ghana;
iii.
That you introduced M & J to Mr.
Kwame Pepra, then Minister for
Finance;
iv.
You were the political overseer
for the Ministry for Roads and
Highways;
v.
As agent of M & J you influenced
the allocation of an extra 1.3
million sterling for the Tano
Bridge and 4.5 million
allocations for the Priority
Bridge Programme, and
vi.
You were paid commissions
typically ranging between 5 and
15 per cent of a contract
price, which commissions
included direct bribes meant for
some public officials in Ghana.”
The letter
requested the second defendant
to submit to the plaintiff his
comments and any relevant
documents or information on
these allegations.
On receipt of
this letter, the second
defendant by a letter dated 19th
November, 2009 protested that he
was not a public officer between
1993 and 2000. He informed the
plaintiff that Kamara Limited,
of which he was the Managing
Director, was, until his
appointment as High
Commissioner, the agent of M &
J. He indicated that he was
unaware of any position known as
‘Political Overseer’ in the
Ministry of Roads and Transport
and that he had never held any
such position. He further
informed the plaintiff that
until the termination of the
agency, his company had provided
services required of it to M &
J.
It is because
of the second defendant’s
objection to the jurisdiction
claimed by the plaintiff to
investigate him in connection
with the M & J allegations that
the plaintiff issued a writ on
24th May 2010 to
invoke the original jurisdiction
of this court to grant the
following reliefs:
1.
“A declaration that upon a true
and proper construction and/or
interpretation of article 218 of
the Constitution 1992 of the
Republic of Ghana, the
Commission On Human Rights and
Administrative Justice has the
mandate to investigate a private
individual, entity and/or person
who is alleged to be to be (sic)
involved or implicated in an act
of bribery or corruption
allegedly committed a (sic)
public official or officials and
who is/are being investigated by
the Commission.
2.
A declaration that on a true and
proper interpretation of
articles 218(e) of the 1992
Constitution, the mandate of the
Commission On Human Rights and
Administrative Justice “to
investigate all instances of
alleged or suspected corruption
and misappropriation of public
moneys by officials” covers
situations in which an
individual, entity and/or person
though not a “public official”
is alleged to be involved or
implicated in an act of alleged
bribery or corruption involving
public officials and which is
under investigation by the
Commission.”
The Law
The
constitutional provision which
needs to be interpreted in order
to decide this case is thus
Article 218 of the 1992
Constitution which reads as
follows:
“The functions of the Commission
shall be defined and prescribed
by Act of Parliament and shall
include the duty
(a) to investigate complaints of
violations of fundamental rights
and freedoms, injustice,
corruption, abuse of power and
unfair treatment of any person
by a public officer in the
exercise of his official duties;
(b) to investigate complaints
concerning the functioning of
the Public Services Commission,
the administrative organs of the
State, the Armed Forces, the
Police Service and the Prisons
Service in so far as complaints
relate to the failure to achieve
a balanced structuring of those
services or equal access by all
to the recruitment of those
services or fair administration
in relation to those service;
(c) to investigate complaints
concerning practices and actions
by persons, private enterprises
and other institutions where
those complaints allege
violations of fundamental rights
and freedoms under this
Constitution.
(d) to take appropriate action
to call for the remedying,
correction and reversal of
instances specified in
paragraphs (a), (b) and (c) of
this clause through such means
as are fair, proper and
effective, including -
(i) negotiation and compromise
between the parties concerned;
(ii) causing the complaint and
its finding on it to be reported
to the superior of an offending
person;
(iii) bringing proceedings in a
competent Court for a remedy to
secure the termination of the
offending action or conduct, or
the abandonment or alteration of
the offending procedures; and
(iv) bringing proceedings to
restrain the enforcement of such
legislation or regulation by
challenging its validity if the
offending action or conduct is
sought to be justified by
subordinate legislation or
regulation which is unreasonable
or other wise ultra vires;
(e) to investigate all instances
of alleged or suspected
corruption and the
misappropriation of public
moneys by officials and to take
appropriate steps, including
reports to the Attorney-General
and the Auditor-General,
resulting from such
investigations;
(f) to educate the public as to
human rights and freedoms by
such means as the Commissioner
may decide, including
publications, lectures and
symposia; and
(g) to report annually to
Parliament on the performance of
its functions.”
Before
considering the literal approach
recommended by the Second
Defendant for the interpretation
of this provision, we would like
to quote a few judicial dicta
from the English jurisdiction
which manifest this approach.
In R v
City of London Court Judge
[1892] 1QB 273 at p. 290,
Lord Esher MR said: “If the
words of an Act are clear, you
must follow them, even though
they lead to a manifest
absurdity. The court has
nothing to do with the question
whether the legislature has
committed an absurdity.”
Similarly, Lord Goddard CJ said
in R.v
Wimbledon Justices, ex p.
Derwent [[1953] 1 QB 380 at
384: “A court cannot add words
to a statute or read words into
it which are not there.”
Finally, Lord Parker CJ said in
R v Oakes
[1959] 2 QB 350 at 354
that: “It seems to this court
that where the literal reading
of a statute…produces an
intelligible result, clearly
there is no ground for reading
in words or changing words
according to what may be the
supposed intention of
Parliament.”
All these
dicta reflect the literal
approach to interpretation which
requires that the literal
meaning of an enactment be
applied, no matter the
consequences and however
unlikely it is that these
consequences were intended by
Parliament or the framers of the
Constitution. By the “literal
meaning” is here meant the
grammatical meaning. This
grammatical meaning of an
enactment is, according to
Bennion
in his Statutory
Interpretation, 4th
Edition, p. 382: “its
linguistic meaning taken in
isolation from legal
considerations, that is the
meaning it bears when, as a
piece of English prose, it is
construed according to the rules
and usages of grammar, syntax
and punctuation, and the
accepted linguistic canons of
construction.”
It has,
however, never been the
generally accepted common law
position to apply this literal
approach alone to
interpretation, because even
before the modern trend towards
purposive interpretation, the
traditional learning on
statutory interpretation was
that it was aided by three rules
of interpretation: the literal
rule; the golden rule; and the
mischief rule. We do not
consider it necessary to re-hash
the received learning on these
extrinsic aids to
interpretation. We only mention
the three rules in order to
demonstrate the unsustainability
of the Defendant’s preferred
approach to interpretation, as
articulated in the Conclusion to
his Statement of Case.
Indeed,
earlier in his Statement of
Case, the defendant appears to
be espousing the golden rule,
rather than the literal rule
when he states that: “one can
only resort to constitutional
interpretation when there is an
ambiguity or when the words if
literally interpreted would give
rise to an absurdity.” Even by
the golden rule, the defendant’s
position is not sustainable,
since, in our view, the
interpretation he is insisting
on would lead to a manifest
absurdity, namely, that in
relation to the same corrupt
transaction involving a public
servant, on the one hand, and a
private individual, on the other
hand, two different agencies of
state would have to be deployed
to investigate the matter. This
absurd result is insisted upon
for purely linguistic reasons.
In our
opinion, Lord Blackburn provided
the right insight into this
matter of interpretation when he
said in
River Wear Commissioners v
Adamson (1877) 2 App. Cas. 743
at 763 that:
“In all cases
the object is to see what is the
intention expressed by the words
used. But, from the
imperfection of language, it is
impossible to know what that
intention is without inquiring
farther, and seeing what the
circumstances were with
reference to which the words
were used, and what was the
object, appearing from those
circumstances, which the person
using them had in view; for the
meaning of words varies
according to the circumstances
with respect to which they were
used.”
These words
are among the many which have
laid the foundation for the
purposive approach to
interpretation.
The
Memorandum to the
Interpretation Act, 2009
which informed Parliament’s
deliberation on the Bill
contains a forthright
endorsement of the purposive
approach to interpretation in
the following terms (at p. iv):
“The general
rules for the construction or
interpretation used by the
Courts were formulated by the
Judges and not enacted by
Parliament. From the Mischief
Rule enunciated in
Heydon’s
Case [(1584) 3 Co.Rep. 7a; 76
E.R. 637] to the Literal
Rule enunciated in the
Sussex
Peerage Case [(1844) 11 Co. & F
85; 8 E.R. 1034] to the
Golden Rule enunciated in
Grey v
Pearson [(1857) 6 H.L.C.61; 10
E.R. 1216] the Courts in the
Commonwealth have now moved to
the Purposive Approach to the
interpretation of legislation
and indeed of all written
instruments. The Judges have
abandoned the strict
constructionist view of
interpretation in favour of the
true purpose of legislation.
The Purposive
Approach to interpretation takes
account of the words of the Act
according to their ordinary
meaning as well as the context
in which the words are used.
Reliance is not placed solely on
the linguistic context, but
consideration is given to the
subject-matter, the scope, the
purpose and, to some extent, the
background. Thus with the
Purposive Approach to the
interpretation of legislation
there is no concentration on
language to the exclusion of the
context. The aim, ultimately,
is one of synthesis.”
The same
Memorandum also contains the
following interesting background
or rationale for the
introduction of section 10(4) of
the Interpretation Act, 2009,
quoted at the beginning of this
judgment (at p.ii):
“Clause (2)
of article 1 of the Constitution
1992 places the Constitution on
a pedestal high above that of
the ordinary law of the land.
The Constitution is the supreme
law. A law found to be
inconsistent with, or in
contravention of, a provision of
the Constitutionjn is void to
the extent of the inconsistency
or the contravention. The
Constitution is thus not an
ordinary law of the land. It is
a legal document as well as a
political testament. It
embodies the soul of our people
in a sense that the ordinary law
cannot achieve. It is organic
in its conception and thus
allows for the growth and
progressive development of its
own peculiar conventions.
Indeed, in obvious and suble
ways it is an instrument of
rights and limitations and not a
catalogue of powers.
But section 1
of the Interpretation Act 1960
subjects the interpretation of
the Constitution to that Act.
Thus an inferior law is made the
vehicle by which the
construction of the supreme law
of the land is determined. In
this sense the Constitution is
subordinated to an inferior
law. It detracts from the
Constitution’s supremacy. This
Bill seeks, among other things,
to do away with that concept.
By that
process the construction and
interpretation of the
Constitution, 1992, will not be
tied down by the Interpretation
Act but will take account of the
cultural, economic, political
and social developments of the
country without recourse to
amendments which can be avoided
if the spirit of the
Constitution is given its due
prominence. A Constitution is a
sacred document. It must of
necessity deal with facts of the
situation, abnormal or usual.
It will grow with the
development of the nation and
face challenging changes and new
circumstances. It must be
allowed to germinate and develop
its own peculiar conventions and
construction not hampered by
niceties of language and form
that would impede its singular
progress.
In musical
terms the interpretation and
construction of the Constitution
should involve the interplay of
forces that produce a melody and
not the highlighting of the
several notes.”
In other
words, the legislative intent
behind section 10(4) appears to
be to set the courts relatively
free from the usual aids to
construction of ordinary
enactments and to oblige the
courts to apply the purposive
approach outlined in that
provision, when construing the
Constitution.
The fulcrum
of this case, from the point of
view of the second defendant, on
which he has pivoted his central
submission is article 218(e) of
the Constitution, which provides
that among the functions of the
plaintiff is:
“to
investigate all instances of
alleged or suspected corruption
and the misappropriation of
public moneys by officials and
to take appropriate steps,
including reports to the
Attorney-General, resulting from
such investigations.”
The second
defendant wants this court to
interpret this provision
literally. He argues (at p. 15
of his Statement of Case) that:
“My Lords, I
would submit that there is no
issue for interpretation. The
words of Article 218(e) are very
clear, there are no words which
are in dispute, nor are there
rival meanings being put on
words in the said article
218(e). What Plaintiff wants
this court to do, is for the
court to amend article 218(e) by
adding the words ‘and all
persons’ so that article
218(e) would read as follows
to
investigate all instances of
alleged or suspected corruption
and the misappropriation of
public money by officials and
all persons…
We submit
that this invitation if done by
this court would be what an
English judge described as”a
naked usurpation of the
legislative function under the
thin disguise of
interpretation.”
Earlier in
the second defendant’s Statement
of Case, he relies on the words
of Acquah JSC, as he then was,
in
Attorney-General(no. 2) v Tsatsu
Tsikata (no.. 2) [2001-2002]
SCGLR 620 at p. 639
indicating that the words of
Article 139 were clear and
unambiguous and therefore:
“The
majority’s insistence on putting
words into article 139(3) of the
1992 Constitution when such
words are not in the article,
with a view to imposing
restrictions on the exercise of
the Chief Justice’s discretion,
is not a permissible exercise of
the judicial function.”
The second
defendant further relies on a
quotation from Justice Kludze’s
judgment in Republic v Fast
Track High Court, Accra; Ex
parte Daniels [2003-2004] SCGLR
364 at p.370 that:
“We cannot
under the cloak of
constitutional interpretation,
rewrite the Constitution of
Ghana. Even in the area of
statutory interpretation, we
cannot amend a piece of
legislation because we dislike
its terms or because we suppose
that the lawgiver was mistaken
or unwise. Our responsibility
is greater when we interpret the
Constitution. We cannot and
must not substitute our wisdom
for the collective wisdom of the
framers of the Constitution.
……That is a
fundamental rule of
constitutional and statutory
interpretation. We intend to be
faithful to the principle and
that tradition of
jurisprudence. We must not
insert our own words or remove
words from the legislation in
order to arrive at a conclusion
that we consider desirable or
socially acceptable. If we do
that, we usurp the legislative
function which has been
consigned to the legislator.
That is a prescription for
tyranny of the judicial branch
and a harbinger of
constitutional crisis, if not
chaos and anarchy.”
In contrast,
the plaintiff, in its Statement
of Claim, stresses its different
understanding of the position of
this court on the interpretation
of the Constitution. Its
understanding is that this Court
is inclined to purposive
interpretation. It quotes the
words of the learned Chief
Justice in
Republic
v High Court (Fast Track
Division) Accra; Ex parte
Commission on Human Rights and
Administrative Justice (Richard
Anane Interested Party)
[2007-2008] 1 SCGLR 213 at
p. 247 to the effect that:
“The
authorities show a clear shift
from the purely strict or
literalist or mechanical
approach in constitutional
interpretation, towards a more
purposive approach. This
court’s use of other expressions
or terminology such as
“context-based purposive”,
“benevolent”, “generous”,
“broad”, and “liberal” convey
the same idea. The locus
classicus on the broad,
benevolent or liberal approach
which was espoused by the then
Court of Appeal (sitting as the
Supreme Court), is the
well-known case of
Tuffour v
Attorney-General [1980] GLR
637.”
The
Statement of Case also relies on
this court’s judgment in
Danso-Acheampong v
Attorney-General [2009] SCGLR353
at 358 where it unanimously
expressed the view that:
“This reading
of the constitutional provisions
is very literal. These days, a
literal approach to statutory
and constitutional
interpretation is not
recommended. Whilst a literal
interpretation of a particular
provision may, in its context,
be the right one, a literal
approach is always a flawed one,
since even common sense suggests
that a plain meaning
interpretation of an enactment
needs to be checked against the
purpose of the enactment, if
such can be ascertained. A
literal approach is one that
ignores the purpose of the
provision and relies exclusively
on the alleged plain meaning of
the enactment in question.”
It is obvious
from our earlier remarks in this
case that the Plaintiff’s
understanding of this Court’s
preferred approach to
constitutional interpretation
coincides with our own. What
needs to be addressed next is
whether it is ever justifiable
to read words into the
Constitution, against the
admonition contained in the
dicta from Acquah JSC and Kludze
JSC quoted in the second
defendant’s statement of case.
As a counterbalance to those
dicta, we would like to refer to
a passage from the lead judgment
of Date-Bah JSC in
Agyei
Twum v Attorney-General &
Akwettey [2005-2006] SCGLR 732
at 761-2, where he said:
“The
principle that I derive from
Sasu v Amua Sakyi is that, in
exceptional cases, additional
text may be imported into an
enactment in order to give
effect to its purpose.
It is not
unprecedented for a common law
court to imply a provision into
a Constitution to give it
efficacy in relation to its
purpose. For instance, the High
Court of Australia has implied a
bill of rights into the
Australian Constitution. (See,
for instance,
Nationwide News Pty. Ltd. v
Wills (1992) 177 CLR 12;
Australian Capital Television
Pty. Ltd. v Commonwealth (1992)
177 CLR 106;
Theophanous v Herald & Weekly
Times Ltd. (1994) 182 CLR 104;
Lange v Australian Broadcasting
Corp. (1997) 189 CLR 520.)
In Canada also an implied Bill
of Rights was recognised by the
Canadian Supreme Court before
the enactment of the Canadian
Charter of Rights and Freedoms.
(See Reference re Secession of
Quebec [1998] 2 S.C.R. 217).
The United States Supreme Court
has long recognised that though
the US Constitution lists
expressed powers for each branch
of government, it also confers
“implied powers” that arise out
of the language and intent of
the Constitution. (See
McCulloch
v Maryland (1819) 17 US 316.)”
In other
words, one has to keep in mind
the trite learning that not
everything in a written
constitution is written!
Accordingly, although we would
agree with Prof. Kludze JSC that
this court has no mandate to
re-write the Constitution, we
would not consider the making
explicit of words necessarily
implied in the text of the
Constitution to be a re-writing
of the Constitution, where a
purposive interpretation
requires the making explicit of
those words.
This is the
context in which we are going to
assess the plaintiff’s argument
which seeks to bring within its
investigative mandate private
individuals who necessarily need
to be investigated if its
mandate to investigate public
officials under article 218 is
to be realistically achievable.
It is an invocation of a
purposive interpretation of the
whole of Article 218 and not
only of its paragraph (e). Its
arguments thus relate to the
first relief endorsed on its
writ and are set out in
paragraphs 46, 47 and 49 of the
plaintiff’s Statement of Case as
follows:
“46. The reason for
which we contend that the 2nd
defendant’s view of article 218
of the Constitution 1992 of the
Republic of Ghana is erroneous
is because if the 2nd
defendant’s view is accepted as
correct it would defeat the
Commission’s mandate to
investigate acts of bribery or
corruption alleged against
public officials the reason
being that in almost every
situation in which bribery or
corruption is alleged against a
public official, a private
individual is at the centre.
Invariably, acts of bribery and
corruption are for want of a
better expression a
public/private partnership.
47. Accordingly, it
is our submission that where in
the discharge of its
constitutional mandate of
investigating public officials
on grounds of alleged or
suspected corruption, a private
individual is named as involved
in the alleged or suspected acts
of corruption, that private
individual cannot use his or her
private status as a shield to
bar the plaintiff from
discharging its constitutional
mandate of investigating the
suspected or alleged acts of
corruption. It is must (sic) be
pointed out here that there is
no dispute from the facts and
allegations which form the
subject matter of plaintiff’s
proceedings that the 2nd
defendant was mentioned as
personally involved in the acts
of corruption committed by the
public officials being
investigated by plaintiff.”
….
49.
“My Lords, to sum up our case on
the first relief, it is
plaintiff’s submission that in
the discharge of its
constitutional mandate of
investigating public officials
under Article 218 of the
Constitution, a private
individual who is alleged or
suspected to be involved in the
alleged acts of corruption by
the public officials cannot
object to the plaintiff
investigating him alongside the
public officials on the basis
that he is not a public official
especially where as in this
case, he is allegedly implicated
or named as being involved in or
central to the act of bribery or
corruption, the subject matter
of the investigation. It is our
view that to uphold such an
objection challenging the
investigative mandate or powers
of plaintiff to investigate a
private individual in such
circumstances is not only
untenable, but is contrary to
public policy. Such an
objection carries with it the
grave danger of frustrating and
stultifying the constitutional
mandate of plaintiff to
investigate all instances of
alleged or suspected
corruption. …”
We consider
that the plaintiff’s argument on
this issue is irresistible. To
insist that the plaintiff’s
mandate relates exclusively to
an investigation of public
officials, even where a public
official has participated in a
corrupt transaction with a
private individual in a
situation where a comprehensive
investigation of the transaction
is needed in order to expose the
corruption, would be similar, in
a sense, to asking of Shylock in
Shakespeare’s Merchant of
Venice to take his pound of
flesh, but not to spill any
blood. It is singularly
unrealistic!
Shakespeare
lovers will recall that in his
Merchant of Venice, in
the courtroom confrontation
between Shylock and Portia,
Shylock’s merciless deployment
of the literal approach to the
interpretation of the bond
between him and Antonio to
demand his pound of flesh was
defeated by the brilliant
riposte of Portia. The riposte
appears to be equally
literalist, but deeper analysis
of it reveals it to be
purposive, intended to achieve
the purpose of mercy and justice
for Antonio. When Shylock
insists that:
“The pound of
flesh which I demand of him
Is dearly
bought. ‘Tis mine, and I will
have it.
If you deny
me ,fie upon your law:”.
(Act 4, Scene
1, lines 98-100).
Portia’s
response is:
“Tarry a
little. There is something
else.
This
bond doth give thee here no jot
of blood.
The
words expressly are ‘a pound of
flesh’.
Take
then thy bond. Take thou thy
pound of flesh.
But in the
cutting it, if thou dost shed
One drop of
Christian blood, thy lands and
goods
Are by the
laws of Venice confiscate
Unto the
state of Venice.”
(Act 4, Scene
1, lines 302-309.)
The deeper
purpose embedded in Portia’s
wise judicial position is,
however, lacking in the second
defendant’s case.
The second
defendant’s argument seems to us
to be intended stultify a
significant part of the
investigative operations of the
plaintiff. It is intended to
defeat one of the purposes for
which the Constitution made
provision for the establishment
of the plaintiff. From the
language and context of article
218, it is indubitable that one
of its purposes is to enable the
plaintiff’s effective
investigation of corruption by
public officials. Accordingly,
in our view, a purposive and
holistic interpretation would
require words to be implied into
article 218 enabling the
plaintiff to investigate private
persons alongside public
officials, even if private
persons are not expressly
specified in any particular
paragraph of the article, where
such investigation of a private
person is necessary in order to
expose the total picture of the
corruption in which the public
official is alleged to have
participated. Such implication
is needed to give efficacy to
the intention and purpose of the
framers.
This argument
in support of the plaintiff’s
first relief applies equally to
the plaintiff’s second relief,
namely, a declaration that on a
true and proper interpretation
of article 218(e) of the 1992
Constitution the mandate of the
plaintiff “to investigate all
instances of alleged or
suspected corruption and
misappropriation of public
moneys by officials” covers
situations in which an
individual, entity and/or person
though not a “public official”
is alleged to be involved or
implicated in an act or alleged
bribery or corruption involving
public officials and which is
under investigation by the
Commission.
Conclusion
Accordingly,
for the reasons set out above,
we consider that the plaintiff
should be granted both the
declaratory reliefs endorsed on
its writ.
[SGD]
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME
COURT
[SGD] S. A.
BROBBEY
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] B. T.
ARYEETEY
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:
THADDEUS SORY
FOR THE PLAINTIFF WITH HIM K.
O. ACHEAPONG, NANA SEKYIWAA AND
AMA ADDO – FENING.
SAMUEL CODJOE
FOR THE 2ND
DEFENDANT.
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