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Constitutional Law -
Interpretation or Enforcement -
article 71 (2) (b) (ii) and (d)
of the Constitution -
Determination of certain
emoluments - Superior Court
Judges -Presidential Committee
Report - Whether
the instant suit raises any
issue(s) of constitutional
interpretation and/or
enforcement - Whether in
determining the salaries
including gratuities of the
Chief Justice and Superior Court
Judges, the President is
entitled to vary the
recommendations of the Committee
set up pursuant to Article 71
(1) (b) of the 1992 Constitution
- Whether the President in
determining the gratuities of
the Superior Court Judges acted
outside the recommendations of
the Committee set up under
article 71 (1) - whether the
original jurisdiction of this
court has been properly invoked
- Whether an action can be
brought to the Supeme Court to
enforce a clear provision of the
Constitution
HEADNOTES
The facts of this case are that,
by letter dated the 4th day
of January 2013, signed by the
Chief of Staff on his behalf the
President of Ghana, His
Excellency, John Dramani Mahama
approved the implementation of
the report of the Professor
Marian Ewurama Addy Presidential
Committee on the emoluments of
the Superior Court Judges,
subject to a variation that
Gratuity shall be calculated as
four months consolidated salary
for each year (or fraction
thereof) served. The Plaintiff
by his writ challenges the power
of the President to vary the
said report.The second
defendant, Justice Isaac Delali
Duose, a retired Court of Appeal
Judge, having initiated an
action in the High Court for
reliefs relating to this same
matter was on his application,
joined to this suit as the 2nd defendant.
Both defendants, inter alia,
contend that article 71 is clear
and unambiguous and therefore
raises neither an interpretation
or enforcement issue within the
original jurisdiction of this
court -
HELD -
it cannot
be said that the President acted
outside the recommendations of
the Committee in determining the
gratuities of the Superior Court
judges under article 71 (1). On
our construction of that
provision the determination of
those emoluments is the product
of the interactive powers of the
President and the Committee
within reasonable bounds. Since
it has not been contended nor
could it have been reasonably
contended that the margin of
variation by the President was
gravely unreasonable In any
event even if it can be said
that the President acted outside
the recommendations of the
Committee he validly did so
within a permissible range.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
CASES REFERRED TO IN JUDGMENT
Osei Boateng v National Media
Commission & Appenteng [2012] 2
SCGLR1038
Akufo-Addo v Quashie-Idun [1968]
GLR 667 CA (Full Bench),
Okorie alias Ozuzu and Another v
The Republic (1974) 2 GLR 272
Gbedemah v Awoonor-Williams
(1969) 2 G&G 438
Yeboah v Mensah [1998-99] SCGLR
492
Brown v Attorney-General (Audit
Service case) [2010] SCGLR 183
Bodner v Alberta [2005] 2 SCR
286
BOOKS REFERRED TO IN JUDGMENT
The proposals of the
Constitutional Commission For a
Constitution For Ghana, 1968
DELIVERING THE LEADING JUDGMENT
ATUGUBA JSC
COUNSEL
ABDUL BAAZIT BAMBA
ESQ. WITH HIM REINDOF TWUMASI
ANKRAH AND SANYE MORRISON FOR
THE PLAINTIFF.
SYLVESTER WILLIAMS
(CHIEF STATE ATTORNEY) FOR THE 1ST
DEFENDANT.
BENSON NUTSUKPUI ESQ. WITH HIM
KWESI ANOKYE GYIMAH FOR THE 2ND
DEFENDANT
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
ATUGUBA JSC
THE FACTS
The facts of this case are that,
by letter dated the 4th
day of January 2013, signed by
the Chief of Staff on his behalf
the President of Ghana, His
Excellency, John Dramani Mahama
approved the implementation of
the report of the Professor
Marian Ewurama Addy Presidential
Committee on the emoluments of
the Superior Court Judges,
subject to a variation that
“Gratuity shall be calculated as
four months consolidated salary
for each year (or fraction
thereof) served”.
The Plaintiff by his writ
challenges the power of the
President to vary the said
report.
The second defendant, Justice
Isaac Delali Duose, a retired
Court of Appeal Judge, having
initiated an action in the High
Court for reliefs relating to
this same matter was on his
application, joined to this suit
as the 2nd defendant.
Both defendants, inter alia,
contend that article 71 is clear
and unambiguous and therefore
raises neither an interpretation
or enforcement issue within the
original jurisdiction of this
court.
The pursuant memorandum of
agreed issues is as follows:-
1.
“Whether the Plaintiff has
properly invoked the
jurisdiction of the Supreme
Court.
2.
Whether the instant suit
raises any issue(s) of
constitutional interpretation
and/or enforcement.
3.
Whether the determination
by the President of the salaries
including gratuities of the
Chief Justice and Superior Court
Judges should be done in
accordance with the advice of
the Council of State.
4.
Whether in determining the
salaries including gratuities of
the Chief Justice and Superior
Court Judges, the President is
entitled to vary the
recommendations of the Committee
set up pursuant to Article 71
(1) (b) of the 1992
Constitution.
5.
Whether the President in
determining the gratuities of
the Superior Court Judges acted
outside the recommendations of
the Committee set up under
article 71 (1) (b).
6.
Whether a Superior Court
Judge who retires from 7th
January 2009 is entitled to have
his/her gratuity calculated on
the basis of the new formula in
Exhibit D (a) from the date of
his/her appointment or (b) from
7th January 2009.
7.
Whether the conduct of any
of the parties in obtaining and
using public/official documents
in sustaining their case or
defence should be deplored.”
ISSUES 1 AND 2
The first two issues raise the
question whether the original
jurisdiction of this court has
been properly invoked. The
contention is that, as laid down
in Osei Boateng v National
Media Commission & Appenteng
[2012] 2 SCGLR1038 no action can
be brought in this court to
enforce a clear provision of the
Constitution
With celestial respect to the
proponents of this view the
converse of the matter is rather
true. It is rather trite law
that no action can be brought in
this court to interpret a clear
and unambiguous provision of the
Constitution.
The original jurisdiction of
this Court is governed by
articles 2 and 130 of the
Constitution. They are as
follows:-
2. “Enforcement of the
Constitution
(1)
A person who alleges that -
(a) an enactment or anything
contained in or done, under the
authority of that or any other
enactment; or
(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.
(2) The Supreme Court shall,
for the purposes of a
declaration under clause (1) of
this article, make such orders
and give such directions as it
may consider appropriate for
giving effect, or enabling
effect to be given, to the
declaration so made.
(3) Any person or group of
persons to whom an order or
direction is addressed under
clause (2) of this article by
the Supreme Court, shall duly
obey and carry out the terms of
the order or direction.
(4) Failure to obey or
carry out the terms of an order
or direction made or given under
clause (2) of this article
constitutes a high crime under
this Constitution and shall, in
the case of the President or the
Vice President, constitute a
ground for removal from office
under this Constitution.
(5) A person convicted of a
high crime under clause (4) of
this article shall-
(a) be liable to imprisonment
not exceeding ten years without
the option of a fine; and
(b) not be eligible for
election, or for appointment, to
any public office for ten years
beginning with the date of the
expiration of the term of
imprisonment. “
130. “Original
jurisdiction of the Supreme
Court
(1)
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.
(2) Where an issue that relates
to a matter or question referred
to in clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.”
It
will be seen that article 2 of
the Constitution is headed “Enforcement
of the Constitution” and the
ensuing provisions are meant to
attain the enforcement of the
Constitution. There is therefore
express authority in the
Constitution itself for the view
that the enforcement
jurisdiction of this court is a
conspicuously independent item
of jurisdiction of this court.
Indeed, though it will be
erroneous to say that a
declaratory action cannot be
brought within article 2
towards the enforcement of an
ambiguous provision of the
Constitution, it appears that
while the enforcement purpose of
that article is clear on the
face of its provisions, its
interpretative purpose is
comparatively latent.
The ratio constitutionis
for an action to invoke the
enforcement jurisdiction of this
court under article 130 (a) is
stated in article 2 to be that
the event specified in its
clauses (1) (a) and (b) “ is
inconsistent with, or is in
contravention of a provision of
this Constitution.”
Therefore a cause of action
thereupon accrues for access to
this court for enforcement of
the Constitution.
Indeed it is difficult to see
how the requirement of ambiguity
can necessarily arise
particularly in respect of the
provisions of article 2 (1) (b)
relating to “any act or
omission of any person.”
(e.s)
Long ago it was held in
Akufo-Addo v Quashie-Idun
[1968] GLR 667 CA (Full Bench),
that the courts will not
tolerate breaches of the law.
As
particularly explained by Azu
Crabbe CJ, delivering the
judgment of the Court of Appeal
in Okorie alias Ozuzu and
Another v The Republic
(1974) 2 GLR 272 at 282, the
basis for enforcing a
constitutional provision is that
“Any breach of the provisions
of the Constitution carries with
it “not only illegality,
but also impropriety,
arbitrariness, dictatorship,
that is to say, the breaking of
the fundamental law of the land”;
see The proposals of the
Constitutional Commission For a
Constitution For Ghana, 1968,
p.22, para 88. The statements in
exhibits A and K, were obtained
in violation of the second
appellant’s constitutional
rights, and consequently, we
hold that they were inadmissible
in evidence at the trial of the
second appellant.” (e.s)
Similarly in Gbedemah v
Awoonor-Williams (1969) 2
G&G 438 at 440 the Court of
Appeal (sitting as the Supreme
Court) held as follows:-
“The pith of the plaintiff’s
claim… is that on 5th
September, 1969, the
defendant took his seat as a
Member of the National Assembly,
notwithstanding the fact that he
was not qualified so to do by
virtue of article 71 (2) (b)
(ii) and (d) of the
Constitution, and that the
defendant intends to continue to
sit in the said National
Assembly. If the matter rests
here, then prima facie there has
been an infringement of the
Constitution, and an alleged
threat to continue such
infringement. This would
constitute a mischief, and it
would become the inescapable
duty of the Supreme Court to
suppress it by enforcing the
Constitution.”
Though this court held in
Yeboah v Mensah [1998-99]
SCGLR 492 that the action in
that case was rather cognisable
by the High Court and not the
Supreme Court, the reasoning
therein concerning the occasion
for the invocation of the
enforcement jurisdiction of this
court holds good.
As
Apaloo C.J, delivering the
judgment of the Supreme Court in
Yiadom v Amaniampong
(1981) GLR 3 at 8 said, inter
alia, “To enforce a provision
of the Constitution is to
compel its observance.”
Certainly, it cannot be said
that this court cannot compel
the observance of a provision of
the Constitution unless it first
acquires the murkiness of
ambiguity and is processed in
the interpretative refinery of
this court.
For all the foregoing reasons we
would on this issue adopt the
well-reasoned editorial note to
the decision of this court in
Osei-Boateng v National Media
Commission & Appenteng,
supra and depart from that
decision.
We
therefore hold that the
Plaintiff has properly invoked
the enforcement jurisdiction of
this court and as will presently
appear, also the interpretative
jurisdiction of this court since
the wording of article 71 (1) is
not free from ambiguity contrary
to the defendants contentions.
ISSUE 3
Even though the formulation of
article 71 (1) is somewhat
rambling, we do not think that
it requires the President to
determine the emoluments of the
Chief Justice and Superior Court
Judges in accordance with the
advice of the Council of State.
It
provides thus:
“71. Determination of
certain emoluments
(1)
The salaries and allowances
payable, and the facilities and
privileges available, to-
(a) the Speaker and
Deputy Speakers and members of
Parliament,
(b) the Chief Justice and the
other Justices of the Superior
Court of Judicature,
(c) the
Auditor-General, the Chairman
and Deputy Chairmen of the
Electoral Commission, the
Commissioner for Human Rights
and Administrative Justice and
his Deputies and the District
Assemblies Common Fund
Administrator,
(d) the Chairman,
Vice-Chairman and the other
members of-
(i) a National
Council for Higher Education
howsoever described;
(ii) the Public
Services Commission,
(iii) the National
Media Commission,
(iv) the Lands
Commission, and
(v) the National
Commission for Civic Education,
being expenditure charged on the
Consolidated Fund, shall be
determined by the President on
the recommendations of a
committee of not more than five
persons appointed by the
President, acting in accordance
with the advice of the Council
of State.”
If
it can be contended that this
provision as it stands is
capable of requiring the
President to determine the
salaries and allowances of the
enumerated persons in accordance
with the advice of the Council
of State, it is also capable of
requiring the President in
appointing the Committee upon
whose recommendations he is to
determine them to act in
accordance with the advice of
the Council of State.
That being so it would be
awkward and incoherent for that
provision to be construed as
requiring the President to act
in accordance with the advice of
the Council of State when
appointing the said Committee
and thereafter act in accordance
with the advice of the Council
of State when determining these
emoluments on the
recommendations of the said
Committee. That construction
would render virtually futile
the role of the Committee that
is to make the recommendations
relating to the said emoluments,
for they would have been, in
effect, superseded by the advice
of the Council of State.
What then would have been the
purpose of involving the Council
of State in the appointment of
the body that is to make the
recommendations as to the said
emoluments?
Again it is noticeable that it
is the same committee that is
adopted in clause 2 of article
71 to make recommendations as to
the emoluments of the persons
therein enumerated inclusive of
the Council of State itself.
This clearly shows that the
recommendations of the said
Committee can and are meant to
stand independently of the
Council of State, for clearly,
clause 2 does not require
Parliament in determining the
emoluments of the enumerated
persons to act in accordance
with any advice of the Council
of State. It would plainly have
been absurd, since the Council
of State is one of the
enumerated persons and
institutions in clause 2.
Plainly it would be rational and
non discriminatory to hold that
clauses 1 and 2 of article 71
have set out to make use, in
common, of the Committee that
has been set up by the
President in accordance with the
advice of the Council of State.
That this is so is strengthened
by the reference made in
paragraph 44 of the 2nd
defendant statement of case
relating to the 1978
Constitutional Commission, as
follows:-
“44. Under the heading
“Remuneration of Members of
Parliament”, in paragraphs 163,
164, 165 and especially 166 and
167, the commission dealt with
the reason behind the
predecessor of the current
Article 71 which is Article 58
of the 1979 Constitution
paragraphs 166 and 167 state as
follows:-
“166. We feel that it would be
undesirable to give to
Parliament itself the power to
fix the salaries and allowances
of Members of Parliament. That
would put an unfair temptation
in the way of members. On the
other hand, we do not
consider it would be proper or
acceptable to leave the
determination of these salaries
and allowances to the Executive
alone, since that might
encourage the Executive to use
the power of the purse to
attempt to influence Parliament.
167. We think that the
best way out is to have these
salaries and allowances
determined by a relatively
independent and uninterested
body, accordingly, we
propose that the salaries,
allowances and facilities of
Members of Parliament (and a
number of other public officers)
should be determined by the
President acting on the
recommendations of a Committee
appointed in that behalf
by the President acting in
accordance with the advice of
the Council of State. The
Committee referred to above
will have the responsibility
of advising on the levels of
remuneration and allowances of a
large number of important State
office holders, and it can,
therefore, be expected that, in
fixing these salaries, it will
be in a position to consider the
appropriate and necessary
relativities and thus ensure
that there is a rational and
easily understood or explainable
scheme of salaries and
emoluments.” (emphasis added).
It
is trite knowledge that the
Committee of Experts which
prepared the proposals for the
1992 Constitution stated that it
largely maintained the
provisions of the 1969 and 1979
Constitutions of Ghana. Mutatis
mutandis this has been
re-enacted in article 71 of the
1992 Constitution.
It
is therefore the appointment of
the Committee that has to be
done in accordance with the
advice of the Council of State.
ISSUE 4
The question whether the
President can vary the
recommendations of the Committee
set up under article 71 (1) (b)
of the 1992 Constitution does
not permit of a cut and dry
answer.
When reference is made to the
genesis of the proposals
relating to the provisions of
article 71, supra, it is
noticeable that there was some
incoherence in the formulation
of the proposal. In the one
breath the committee stated
thus:-
“We do not consider it would be
proper or acceptable to leave
the determination of these
salaries and allowances to the
Executive alone.” (e.s)
Pausing here one would notice
that the concern was that the
Executive should not have the
exclusive power to determine the
emoluments involved. This
contemplates therefore a
participatory role for the
Executive in the decision making
process relating to these
emoluments. Yet in the next
breath the Committee stated
“that the best way is to have
these salaries and allowances
determined by a relatively
independent and uninterested
body.” This evinces
exclusive power in the matter in
favour of the body therein
referred to.
The pursuant enactment however
consigns the determination of
the said emoluments to the
President though acting on the
recommendations of the Committee
to be set up by the President in
accordance with the advice of
the Council of State.
All told, the following
considerations emerge, for the
proper construction of article
71, with some logical
repercussions for some closely
interconnected provisions.
First, it is reasonable to hold
(1) that the President is not
excluded from the determination
of the emoluments (2) that such
determination should be
dependent upon the
recommendations of the Committee
set up by the President acting
on the advice of the Council of
State (3) that such a Committee
is one of persons with
considerable weight and
expertise. Accordingly we would
conclude that the President in
determining the said emoluments
must bear in mind the factor of
restraint that the Committee’s
recommendations are intended to
bear upon his power to determine
the same.
We
do not think that the President
is inflexibly bound by the
recommendations of the Committee
otherwise the power conferred on
him to determine those
emoluments would be otiose since
he would then have nothing
really to determine. Such
inflexible duty to determine a
matter arises under article 130
(2) of the Constitution. But
clearly there, the power to
determine a matter referred to
the Supreme Court is a matter
for the exclusive jurisdiction
of the Supreme Court. Such
is not the scenario here.
We
conclude that the President
being the determining official
of the said emoluments can vary
the recommendations of the said
Committee but having regard to
the intent, spirit and policy
behind the wording of article 71
(1) the President’s variation
should neither contravene
article 127 (5), nor exceed
reasonable bounds, see by
analogy the celebrated case of
Brown v Attorney-General
(Audit Service case) [2010]
SCGLR 183, holding (2).
ISSUE 5
In
view of our holding on issue 4
supra, it cannot be said that
the President acted outside the
recommendations of the Committee
in determining the gratuities of
the Superior Court judges under
article 71 (1). On our
construction of that provision
the determination of those
emoluments is the product of the
interactive powers of the
President and the Committee
within reasonable bounds. Since
it has not been contended nor
could it have been reasonably
contended that the margin of
variation by the President was
gravely unreasonable, cadit
quaestio.
In
any event even if it can be said
that the President acted outside
the recommendations of the
Committee he validly did so
within a permissible range.
ISSUE 6
The aforementioned, formula (in
exhibit D), for calculating the
gratuity of a retired Superior
Court Judge applies in respect
of retirements occurring from 7th
January 2009 based on the term
of service of the judge
concerned as from the date of
his appointment, subject to the
provisions of article 155. It
should be noted that the said
formula relates to the retiring
stage of the Judge and the
retirement is based on his
period of service as a Superior
Court Judge without losing sight
of article 155 aforesaid.
The 2nd defendant
prays that in the event of
upholding his claim to
retirement based on a gratuity
of “four months consolidated
salary for each year (or
fraction thereof served)”,
we should give him judgment for
his claims in his action for the
same pending in the High Court.
With grave respect we do not
think we can do so. The power
under article 129 (4) relates to
a matter within our jurisdiction
and the pursuant judgment or
order. Since the action here is
not based on the action before
the High Court, we cannot grant
the 2nd defendant’s
said prayer. But obviously he is
bound to succeed in the High
Court, consequent upon our
decision herein.
CONCLUSION
For all the foregoing reasons
and subject to the caveats
expressed in this judgment, we
dismiss the plaintiff’s action.
(SGD) W. A.
ATUGUBA
JUSTICE
OF THE SUPREME COURT
CONCURRING OPINION
GBADEGBE JSC:
I have had the advantage of
reading in draft the judgment of
my worthy brother, Atuguba JSC
and hereby express my agreement
with him on the conclusion
reached in the matter herein. I
do, however wish to express my
own reasons for reaching the
same conclusion with him in
respect of two questions for our
determination in the action
herein. The said questions are
issues 4 and 6. While issue (4)
concerns the variation by the
President of part only of the
recommendations of the Committee
set up under article 71(1) to
determine the emoluments of
specified persons, the other
issue relates to the formula for
computing the retirement
benefits of superior court
judges.
I shall in this short delivery
deal with the issues in the
order in which they arose in the
memorandum of issues. In my
view, it is unreasonable to
contend that the President in
whom the executive power of the
state is vested cannot after
appointing the committee
specified in article 71(1) vary,
alter or modify the
recommendations but is obliged
to give effect to same. That
contention seems to undermine
the authority of the President
and leaves in the hands of an
unaccountable body, the
committee so appointed the sole
responsibility of determining
the emoluments of article 71
employees. Pausing here, I wish
to say at once that in my view
the version of the matter
pressed on us by the plaintiffs
is unreasonable as it seeks to
recognize the position of the
President as the one in whom by
article 58 of the constitution,
the executive power of the state
is vested, and yet seeks to
withhold from him the means by
which he can give effect to such
power. I think that by the
clear provisions of article
71(1), the determination of the
emoluments of the specified
public officers is a matter for
the President subject to
receiving recommendations from a
committee appointed by him for
that purpose. As the committee
is only to make recommendations
to him, it seems from a fair
reading of the applicable
constitutional provision that
the determination of the
emoluments, is his
constitutional mandate. The only
limitation on the exercise of
his power under the said article
concerns only the process by
which the President constitutes
the membership of the committee;
which he is required to do in
accordance with the advice of
the Council of State. When the
recommendations are submitted to
him as the appointing authority,
the constitution leaves to him
alone the determination of what
the emoluments should be. In my
opinion if it was intended that
the Council of State play any
further role in the matter,
express provision would have
been made to that effect.
In my thinking by the use of the
words “…… shall be determined
by the President on the
recommendations of a committee…”
makes it quite clear that the
determination of the emoluments
is a matter left to the
discretion of the President
subject to him taking the
recommendations that are
submitted to him into account.
It is plain from the formulation
of article 71(1) that the
reference to the Council of
State is limited only to
advising the President on the
membership of the committee to
be appointed; once the committee
is appointed by him under
article 71 (1), the Council of
State does not have any function
conferred on it by the
constitution in regard to the
determination of the emoluments.
It is observed that the words
“acting on the advice of the
Council of State”, which are
contained in part of article 71
(1) are in relation to the
appointment of the committee of
not more than five persons to
make recommendations to him to
facilitate his determination of
the emoluments of the specified
public office holders.
Accordingly, any construction of
the article which subjects the
determination of the emoluments
by him to be in accordance with
the advice of the Council of
State is a strained meaning
which I refuse to give effect
to.
The next issue for my
consideration is the computation
of the retirement benefits of
superior court judges. Before
us, it has been contended that
the correct mode of computing
the benefits should not include
any period served by such
retiring judges before January
07, 2009. It is further
contended that in the premises,
the formula contained in the
letter signed by the Chief of
Staff dated January 04, 2013 by
which four months consolidated
salary is to be used for each
year or part thereof served by
retiring superior court judges
can only be utilized in relation
to periods of service effective
from January 07, 2009 and not
before such date. In my view,
the said contention undermines
the concept of judicial
independence, which in its
nature is not only limited to
protecting judges from
interference in the exercise of
their functions as judges but
also extends to affording such
judges parity in treatment in
their conditions of service such
as salaries and retiring
benefits. In the Canadian case
of Bodner v Alberta
[2005] 2 SCR 286, the Supreme
Court of Canada confirmed that
financial security in its
institutional and individual
components is with security of
tenure and administrative
independence, one of the three
core characteristics of judicial
independence. Financial
security, it seems to me is a
means by which judicial
independence is attained and
therefore nothing should be done
to compromise it as in the long
run , its attainment endures to
the benefit of the public by
ensuring that competent persons
are attracted to the bench.
Judicial independence is
integral to the rule of law,
which is an essential condition
for the protection of rights of
individuals and therefore one
can say that as a core
characteristic of judicial
independence, financial security
is an essential pre-requisite to
the realization in any modern
society of the rule of law. It
follows that its absence creates
an environment in which one
cannot reasonably imagine
individuals having tangible
human rights capable of being
enforced against the state. The
existence of financial security
is thus as said earlier in the
course of this delivery is
beneficial to the public as it
provides a reasonable assurance
of impartiality by courts in
scrutinizing cases involving
human rights violations. While
conceding that it is consistent
with the concept of judicial
independence to pay different
salaries to judges depending on
which court they are appointed
to, it is unreasonable and
indeed, incompatible with it to
provide differential retirement
schemes for judges even at the
same level depending on whether
the period served was before or
after January 07, 2009.
Plainly, in my view, to accede
to the submission of the
plaintiff on this aspect of the
matter, is to say the least an
invitation to this court to
abandon its responsibility of
construing the constitution to
advance the purpose of its
provisions and embark upon a
purely mechanical construction
that does not concern itself
with the fundamental principles
underlying the independence of
the judiciary. Inherent in the
meaning placed on the
computation of the retiring
benefits by the plaintiff is the
absence of any justifiable
reason for which judges
currently in the employment of
the Judiciary may be subject to
different retirement schemes.
I have tried in the course of
the instant proceedings to apply
my mind fairly by asking whether
there is in principle any reason
why the said meaning is being
urged on us but the more I give
thought to the question the more
tolerably clear it seem to me
that not only is there any but
that to yield to the said
contention will have the effect
of undermining the concept of
judicial independence. I cannot
discern why judges who do the
same work and suffer the same
deprivations and enjoy the same
privileges will be put apart
when it comes to their
retirement benefits. In my
opinion, article 155 envisages
equality of treatment to
superior court judges in their
retiring awards hence the
provision made in clause (1) (b)
of the article to provide parity
of treatment for judges who
would not have served at least
ten continuous years as superior
court judges before their
retirement by taking into
account twenty years’ service in
the public sector of which five
continuous years would have been
as superior court judges. It is
to be observed that such a
scheme of differential
retirement scheme would
naturally be adverse to some
superior judges and detracts
from the constitutional
provision contained in article
127(5) that precludes their
salaries, pension and other
conditions of service from being
varied to their disadvantage.
There can be no doubt that
judges who might be adversely
affected by the differential
scheme will go through moments
of financial anxiety and impact
on their ability to discharge
their functions impartially and
erode a core characteristic of
judicial independence namely
security of tenure. I am in
great difficulty comprehending
how we can be invited to gloss
over article 127 (5) which seeks
to secure equality in retiring
awards of judges as we attempt
to determine the question for
our decision which turns on the
issue numbered as 6 in the
matter herein. The said
provision should put us on an
inquiry by providing us with a
useful guide as to the clear
intendment of the constitution
in regard to equality of
retiring benefits to retiring
superior court judges.
Accordingly, I am of the view
that the formula approved for
the computation of the retiring
awards applies to all superior
court judges who retire after
the effective date of January
07, 2009.
Subject to the above, I agree
with the judgment of my esteemed
brother Atuguba JSC in the
matter herein.
.
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V. J.
M. DOTSE
JUSTICE
OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO - BAMFO (MRS)
JUSTICE
OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
ABDUL BAAZIT BAMBA
ESQ. WITH HIM REINDOF TWUMASI
ANKRAH AND SANYE MORRISON FOR
THE PLAINTIFF.
SYLVESTER WILLIAMS
(CHIEF STATE ATTORNEY) FOR THE 1ST
DEFENDANT.
BENSON NUTSUKPUI
ESQ. WITH HIM KWESI ANOKYE
GYIMAH FOR THE 2ND
DEFENDANT. |
