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Constitutional law -
Interpretation - 1992
Constitution - Article 144
clauses (2) and (3) - Whether or
not the constitutional
requirement that the President
of the Republic of Ghana must
obtain the advice of the
Judicial Council in the process
of appointing Superior Court
Justices - Whether or not the
advisory function of the
Judicial Council invests the
Council with the constitutional
power to nominate persons for
appointments as justices of the
Superior Courts?
HEADNOTES
The plaintiffs contend that to
secure the independence and best
quality of the Judiciary the
advice of the Judicial Council
on appointments to the Supreme
Court should be binding on the
President. They inter alia,
rely on paragraph 2.20 of the
Memorandum on the Proposals for
a Constitution for Ghana 1968 in
which it was “proposed that
appointments to the Judiciary
shall be by the President, and
not on the advice of the Prime
Minister. It was noted that
this proposal is “the most
effective way of ensuring that
political considerations and
influences shall not be allowed
to dictate these appointments.
One major limitation on the
President’s power is in the area
of appointments to public
offices. We concede and accept
that the President should have
some freedom in appointing the
team with which to formulate and
implement his programs and
policies. We feel, however,
that this discretion should not
be untrammeled, particularly in
the appointment of persons to
perform certain sensitive
functions in which a degree of
impartiality and independence
from executive is considered
essential
HELD
. The common basis for these
actions is heated public debate
on the issues raised in them in
the Media. There is no
allegation of a breach or
threatened breach of any
constitutional provision in any
of them. It is therefore crystal
clear that these writs severally
seek an advisory opinion as to
the said issues from this court
such advisory opinion is the
work of a solicitor not this
Court. The said writs are
accordingly, as to each of them,
dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Special Criminal Division
Instrument, 1963 (EI 161).
CASES REFERRED TO IN JUDGMENT
Tuffour v Attorney-General
(1980) GLR 634 C.A
New Patriotic Party v Inspector
General of Police (1993-94)2 GLR
459
State v Otchere [1963]2 GLR 463
Wuaku v
Attorney-General(1993-94)2 GLR
393 SC
Hansen v Ankrah (1987-88) GLR
639
Republic v High Court,
Bolgatanga and Hajia Fati Seidu;
Ex parte Hawa Yakubu, Civil
Motion No. 2/2001
Republic v High Court,
Bolgatanga, Ex parte Hawa
Yakubu, CM No 2/2001, 16
January 2001
Heydon’s Case (1854) 3 Co Rep 7a
Therrien v Canada (2001)5 LRC
575
Republic v Mensa-Bonsu; Ex parte
Attorney-General (1995-96)1 GLR
377, SC
Emmanuel Noble Kor v The
Attorney-General and Justice
Delali Duose, Suit no.
J1/16/2015 dated 10/3/2016,
Tema Development Corporation v
Atta-Baffuor (2005-2006) SCGLR
121,
Ghana Bar Association v
Attorney-General (1995-96)1 GLR
598
Ghana Commercial Bank v
Commission on Human Rights and
Administrative Justice
(2003-2004)1 SCGLR 91,
Republic v District Magistrate,
Accra Ex parte Adio (1972)2 GLR,
125 C.A, Yailey v Yakom (1992)1
GLR 499
Wetminster City Council v
Greater London Council (1986)2
AllER 278
Bilson v Attorney-General
(1993-1994) GLR 105 SC
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, 9th
Ed, by Bryan
Thoughts on Government by John
Adams,
DELIVERING THE LEADING JUDGMENT
ATUGUBA, JSC
COUNSEL
THADEUS SORY FOR PLAINTIFFS IN
WRITS NO. J1/26/2015.
ALEXANDER KWABENA AFENYO MARKIN
FOR THE PLAINTIFF (WITH HIM
KORKOR OKUTU) IN WRIT NO.
J1/21/2015.
KWASI DANSO ACHEAMPONG FOR
HIMSELF IN WRIT NO. J1/22/2015.
DR. DOMINIC AYINE (DEPUTY
ATTORNEY-GENERAL) FOR THE
DEFENDANTS IN ALL THE WRITS WITH
HIM MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY), MRS.
ANGELA HEDO (ASSISTANT STATE
ATTORNEY ) AND MS ZEINAB AYARIGA
(ASSISTANT STATE ATTORNEY).
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
ATUGUBA, JSC:
These three suits were
separately initiated but by
reason of certain basic
commonalties between them were
subsequently consolidated by
this court. We now proceed to
dispose of them seriatim.
Writ No. J1/26/2015
The plaintiffs by their writ
dated the 30th day of
June 2015 claim against the
defendants as follows:
“1. A declaration that upon a
true and proper construction of
Article 144 clauses (2) and (3)
of the Constitution 1992 all
appointments made by the
president of the Republic of
Ghana to the Superior Courts are
valid only to the extent that
such appointments are made in
strict accordance with the
advice of the 2nd
Defendant herein, the Judicial
Council.
2. A declaration that upon a
true and proper interpretation
of Article 144 (2) and (3) of
the Constitution 1992, a
constitutional trust is created
in the 2nd Defendant
herein, the Judicial Council, to
make nominations of persons best
qualified to serve as Justices
of the Superior Courts of
Judicature, and the 2nd
Defendant is required to ensure
that such nominations are
actually submitted by the
President to Parliament for
approval after due consultations
with the Council of State.
3. A declaration that
accordingly, upon a true and
proper construction of article
144 clauses (2) and (3) of the
Constitution 1992 the Judicial
Council of the Republic of Ghana
has a constitutional obligation
to specifically advice the
president of the Republic of
Ghana as to which specific
person(s) is/are suitable for
appointment to serve as
Justice(s) of the Superior
Courts of the Judicature, in
accordance with which advice the
President is mandatorily
required to exercise his powers
of appointment.
4. A declaration that an
appointment or non-appointment
by the President of the Republic
of Ghana of a Justice of the
Superior Court in a manner out
of accord with the advice of the
Judicial Council is
unconstitutional, null, void and
of no effect.”
The joint memorandum of issues
of the parties to the
consolidated suits, as far as
relevant to this writ are as
follows:
“(i) Whether or not
the constitutional requirement
that the President of the
Republic of Ghana must obtain
the advice of the Judicial
Council in the process of
appointing Superior Court
Justices means that the
President is bound by the advice
of the Judicial Council?
(ii) Whether or not the
doctrine of separation of powers
is undermined if the President
of the Republic of Ghana is held
to be bound by the advice of the
Judicial Council in his
appointment of Justices of the
Superior Courts?
(iii) Whether or not a holding
that the President of the
Republic of Ghana is bound by
the advice of the Judicial
Council in his appointment of
Superior Court Justices will
produce absurd constitutional
results?
(iv) Whether or not the
advisory function of the
Judicial Council invests the
Council with the constitutional
power to nominate persons for
appointments as justices of the
Superior Courts?”
Before delving into the merits,
the defendants have in paragraph
4 of their statement of case
dated 19/10/2015 contended that
though the plaintiffs have
averred that since 1992 all
Presidents of the Republic of
Ghana have not acted fully on
the advice of the Judicial
Council in the appointment of
Supreme Court judges in
particular, they have led no
evidence thereon and that
consequently the plaintiffs “On
their pleading,…… are seeking
declarations in a vacuum.”
However upon scrutiny the
defendants have plenarily
pleaded in paragraph 13 of their
said statement of defence thus:
“The only instance cited by
the Plaintiffs is contained in
paragraph 2.36 of their
Statement of Case where they
state in respect of the recent
appointments to the Court of
Appeal and the Supreme Court
that “in as much as the
President picked some names and
rejected others from the list
advised by the 2nd
Defendant, the President did not
follow the advice of the 2nd
Defendant which was binding on
him thus making the appointments
made in breach of Article 144
Clause 2 and 3 of the 1992
Constitution of the Republic of
Ghana.” What the Plaintiffs
failed to point out in this
instance is whether the
President disregarded in toto
the advice rendered by the
Judicial Council. In light of
the fact that the entire case of
the Plaintiffs rests on the
proposition that the President
is bound, as if he were a clerk
of Parliament, to transmit all
the names contained in the
advice of the Judicial Council
to Parliament without more, it
makes sense for them to contend
that he violated the advice by
transmitting some names and
leaving others. In that case, a
good question would be whether
there are any numerical
limitations to the number of
“nominees” that the Judicial
Council can send to the
President? Going by the
argument of the Plaintiffs,
if the Judicial Council, in
exercise of its newly found
constitutional power to nominate
justices for mandatory
appointment by the President,
decides to nominate one hundred
persons for appointment as
Supreme Court judges, then the
President has no choice but to
send the one hundred names to
Parliament without due
consideration to the resources
to compensate these persons for
the work they would be doing as
justices of the Supreme Court.
Indeed, the Plaintiffs must
be aware that the logical effect
of their argument is that any
person meeting the
constitutional minima can be
appointed a justice of the
Supreme Court once their name is
transmitted to the President by
the Judicial Council.”(e.s)
Quite clearly the defendants
have by this pleading indulged
in confession and avoidance.
That being so since the
avoidance is only a question of
law as to whether there should
be no numerical limitations with
regard to the list(s) of
recommended persons for
appointment it cannot be said
that the plaintiffs have failed
in respect of their factual
allegation regarding
presidential failure to appoint
to the extent of the full number
of persons recommended by the
Judicial Council for appointment
to the Supreme Court, at least
in respect of “the recent
appointments to the Court of
Appeal and the Supreme Court.”
That single instance suffices to
ground the plaintiffs’ action
herein.
ISSUE I
(i) Whether or not the
constitutional requirement that
the President of the Republic of
Ghana must obtain the advice of
the Judicial Council in the
process of appointing Superior
Court Justices means that the
President is bound by the advice
of the Judicial Council?
This issue is the kernel of this
action. The plaintiffs contend
that to secure the independence
and best quality of the
Judiciary the advice of the
Judicial Council on appointments
to the Supreme Court should be
binding on the President. They
inter alia, rely on paragraph
2.20 of the Memorandum on the
Proposals for a Constitution for
Ghana 1968 in which it was “proposed
that appointments to the
Judiciary shall be by the
President, and not on the advice
of the Prime Minister. It
was noted that this proposal is
“the most effective way of
ensuring that political
considerations and
influences shall not be
allowed to dictate these
appointments.”
They also rely on paragraph 123
of the Proposals Of the
Constitutional Commission For A
Constitution For the
Establishment of A Transitional
(interim) National Government
For Ghana 1978 as
follows;
“123. One major limitation on
the President’s power is in the
area of appointments to public
offices. We concede and accept
that the President should have
some freedom in appointing the
team with which to formulate and
implement his programs and
policies. We feel,
however, that this discretion
should not be untrammeled,
particularly in the appointment
of persons to perform certain
sensitive functions in which a
degree of impartiality and
independence from executive is
considered essential…”
Apart from these excerpts from
the Proposals for the 1969 and
1979 Constitutions we have to
bear in mind the recent history
and realities concerning
appointments to the superior
courts, particularly the Supreme
Court to ascertain further the
spirit or core values that
should inform our interpretation
of article 144(2) and by
extension clause 3 thereof, as
counselled by Tuffour v
Attorney-General (1980) GLR
634 C.A (sitting as the Supreme
Court) and a plethora of
well-known subsequent decisions
of this court.
In New Patriotic Party v
Inspector General of Police
(1993-94)2 GLR 459 at 469
Amua-Sekyi JSC, commenting on
the statutory reversal of an
acquittal and retrial of certain
leading personalities on a
charge of treason, bluntly said:
“Acquitted in proceedings
intituled State v Otchere
[1963]2 GLR 463, SC the verdicts
were set aside by executive
order: see Special Criminal
Division Instrument, 1963 (EI
161). Put back on trial before
a more pliant bench,
the executive had the
satisfaction of seeing them
convicted and sentenced to death.
Mercifully, the sentences were
not carried out; but a grave
precedent had been set. The
judges were not spared:
Korsah CJ was removed from
office, and a constitutional
amendment cleared the way for
the dismissal of Adumua-Bossman
J (as he then was) and other
judges whose loyalty to the
Absolutist State was now called
in question.”(e.s)
Again in Wuaku v
Attorney-General(1993-94)2
GLR 393 SC at 396 Amua-Sekyi JSC
trenchantly stated as follows:
“After the overthrow of the
Nkrumah regime, the judiciary
came in for much criticism for
the role it had played while the
previous government was in
power. It was said that it
had departed from its
traditional role as an
independent arm of government
and had become a willing tool of
repression in the hands of the
executive. It was also said
that some of the appointments
to the bench had been
politically motivated in that
persons with known sympathies
for the regime had been favoured
over those who exhibited an
independent frame of mind.
Worse still, it was said that
some of the judges had become so
depraved and demoralized that
they habitually took bribes.
The answer of the new
administration was the wholesale
dismissal of judges – cleaning
the Augean stables, as it were –
and appointing new ones to take
their place. But it was soon
realized that merely changing
personnel would not be enough:
what was required was a
reappraisal of the role of the
judge in the body-politic and
the creation of the conditions
necessary for the proper
exercise of his functions.”(e.s)
In Hansen v Ankrah
(1987-88) GLR 639 at 667 Sowah
JSC said:
“Before I am done I consider it
ethically and judicially
unacceptable the comments on
the composition of the panel in
this appeal. If my brother
Taylor JSC had reservations, he
should have made them abundantly
clear before the hearing and not
after opinions have been
rendered which are contrary to
his own. And in any event the
judges referred to are by all
standards, including their
knowledge of the law and
integrity, competent to adorn
the Supreme Court bench. It is
by sheer accident of past
politics that they have not
taken precedence over some
members of the Supreme Court.”(e.s)
This longstanding skepticism of
the independence of the
judiciary and now the Supreme
Court in particular led to the
issuance of the following
Practice Direction on
empanelment in the Supreme Court
reported in (2000) SCGLR 586 as
follows:
“PRACTICE DIRECTION
PRACTICE IN EMPANELLING JUSTICES
OF THE SUPREME COURT
10 January 2001
Practice and procedure – Supreme
Court – Constitutional cases –
Empanelling of court by Chief
Justice – Practice in – Chief
Justice to empanel all available
justices of the Supreme Court or
at least seven justices in
constitutional matters –
Rationale for empanelling all
available Justices of Supreme
Court in such matters –
Constitution, 1992 arts 125(4)
and 144(6).
It is provided by the
Constitution, 1992, arts 125(4)
and 144(6) that:
“125(4) The Chief Justice shall,
subject to this Constitution, be
the Head of the Judiciary and
shall be responsible for the
administration and supervision
of the Judiciary.”
“144(6) Where the office of the
Chief Justice is vacant, or
where the Chief Justice is for
any reason unable to perform the
functions of his office –
(a)
until a person has been
appointed to, and has assumed
the functions of, that office;
or
(b)
until the person, holding that
office has resumed the functions
of that office; as the case may
be,
those functions shall be
performed by the most senior of
the Justices of the Supreme
Court.”
[In exercising the functions
of his office under articles
125(4) and 144(6) of the 1992
Constitution, His Lordship, the
Ag Chief Justice, per his letter
dated 10 January 2001 addressed
to all the Justices of the
Supreme Court and copied to the
Judicial Secretary and the
Registrar of the Supreme Court,
directed as follows:]
“In order to minimize the
mounting criticisms and the
persistent public outcry against
the Judiciary in our justice
delivery and to restore public
confidence, it is my desire
that where practicable and
especially in constitutional
matters, all available Justices
of the Supreme Court have a
constitutional right to sit, or
at least seven (7) justices of
the court.
In view of the above and in the
instant case [ie Republic v
High Court, Bolgatanga and Hajia
Fati Seidu; Ex parte Hawa
Yakubu, Civil Motion No.
2/2001], by virtue of the
powers conferred on the Chief
Justice by article 125(4) and on
me by article 144(6), I have
decided that Hon Justice Sophia
Akuffo and myself, ie Hon
Justice E K Wiredu, Ag Chief
Justice, be added to the
justices already paneled. (e.s)
Signed
Hon. Mr. Justice E K Wiredu
Ag Chief Justice.”
[Editorial Note. In
pursuance of the above
Directive, a panel of seven
Justices of the Supreme Court,
coram: Edward Wiredu Ag CJ,
Adjabeng, Acquah, Atuguba,
Sophia Akuffo, Lamptey and Adzoe
JJSC in Republic v High Court,
Bolgatanga, Ex parte Hawa
Yakubu, CM No 2/2001, on 16
January 2001 unanimously granted
(reserving the reasons), the
application by Madam Hawa Yakubu
for an order of certiorari to
quash the proceedings and order
of the High Court, Bolgatanga,
dated 6 January 2001, in an
electoral petition resulting
from the 7th December
2000 Parliamentary Elections for
Bawku Central Constituency. In
the respectful view of the
Editor, the above Practice
Direction, issued by His
Lordship the Hon Ag Chief
Justice, is to be most welcomed
by all members of the Bench and
Bar and the general public; and
it may also be considered as
very appropriate and long
overdue. The Practice
Direction, in the form of a
letter to all the justices of
the Supreme Court, makes the
empanelling of the Supreme Court
for the determination of
constitutional cases more
transparent; and more
importantly, the Direction is in
line with the democratic
aspirations of all Ghanaians and
the sustenance of the rule of
Law in the country. It also has
the obvious merit of insulating
and freeing the high Office of
the Chief Justice from all
imaginary and unproven but
disturbing allegations of
political bias in the
empanelling of the Justices of
the Supreme Court.]”
This skepticism, as noted at
128-129 of Dr. Date-Bah’s
formidable book, Reflections on
the Supreme Court of Ghana, has
persisted under the current
Chief Justice. He thereat
states as follows:
“The Chief Justice’s power to
empanel judges confers on him or
her, arguably, the opportunity
or potential to influence the
outcome of particular cases.
The Chief Justice’s knowledge of
an individual judge’s track
record on particular issues or
his or her judicial inclinations
on particular issues may
give the Chief Justice this
potential. This, rightly or
wrongly, has attracted
unfavourable comment from people
in political circles, in
relation to politically
controversial decisions. It
is in reaction to such comments
that Chief Justice Georgina Wood
decided that she would,
during her tenure, empanel, as a
matter of practice, a bench of
nine justices to hear all
constitutional cases.
On this current practice, the
Constitution Review Commission
commented that it finds in
regard to Ghana’s judicial
practice that no law has ever
prescribed the maximum number of
Justices of the Supreme Court
that should sit on a case
brought before the Court, though
it has been the practice to
specify the quorum. It has
noted that this is a deliberate
policy on the part of the law
makers to allow the highest
court a certain flexibility and
freedom in deciding when to
field a full complement of
members depending on the gravity
of the case and the need for a
reconsideration of the law. It
acknowledges that this practice
has helped ensure that in the
adjudication of matters of
importance, as many judicial
minds as possible would be
involved in settling the law and
making a definitive
pronouncement. In this regard,
the Commission commends the
emerging practice by which 9
justices of the Supreme Court
are empanelled to sit on
constitutional cases.”
The legal colossus, Dr. Date-Bah
JSC (rtd.), at 201 of his said
book has further observed as
follows:
“A perception and conviction
by the public of the Supreme
Court’s impartiality between
parties in its adjudication is
vital to its fulfillment of its
broader role. Nevertheless,
there has in recent years
been a degree of controversy in
the media as to the impartiality
of the judiciary in general in
disputes between the Government
(by which is meant the
Executive) and the individual.
This has been a
challenge that the Supreme
Court, along with other courts,
has had to live with. The
challenge has arisen from the
highly competitive nature of
Ghanaian party politics in the
last decade and the
perceived tendency for a party
in government to prosecute
politicians belonging to the
opposition. The courts have
been caught in the middle of
this conflict and in their
endeavour to do justice between
parties before them have
incurred the wrath of political
party activists of the governing
party who have alleged that the
judiciary is biased against the
government. The best
response to this challenge is
for the conduct of the judiciary
to manifest its indubitable
impartiality.”
In the light of this ample
context of this matter, the
celebrated golden rule of
construction, which after all is
the harbinger of the reigning
purposive rule of construction
comes handy. As has been stated
in the classic and oft-cited
Heydon’s Case (1854) 3 Co Rep
7a:
“For the sure and true
interpretation of all statutes
in general (be they penal or
beneficial, restrictive or
enlarging of the common law)
four things are to be discerned.
(1st) What was the
common law before the making of
the Act/ (2nd)
What was the mischief and defect
for which the common law did not
provide? (3rd) What
remedy the Parliament hath
resolved and appointed to cure
the disease of the
Commonwealth? And (4) The true
reason of the remedy; and then
the office of all judges is
always to make such construction
as shall suppress the mischief
and advance the remedy, and
to suppress subtle inventions
and evasions for continuance of
the mischief, and pro privato
commodo, and to add force and
life for the cure and remedy,
according to the true intent of
the makers of the act, pro bono
publico.”(e.s)
This court therefore has to
construe the relevant provisions
relating to the appointment of
the justices of this court so as
to ensure as far as possible
their image of “indubitable
impartiality.”
The Honourable Deputy
Attorney-General, Dr. Dominic
Akuritinga Ayine, has in
paragraphs 13-14 of the
aforementioned statement of case
on behalf of the defendants made
submissions that appear to be
well reflective of the
compelling considerations we
have set out, ut supra,
regarding the proper
interpretation of article
144(2). They are as follows:
“17. Your Lordships, the
purpose of the article 144
appointment clauses, while
ensuring the independence of the
various branches of government,
reflect a careful set of checks
and balances. It places the
power to appoint in the
President and the ability
to check that power in certain
ways in the Judicial Council,
Council of State and parliament.
x x x
The provision, read as a whole
and within the context of
separation of powers enshrined
in our Constitution,
anticipates that some choice
must be left to the appointing
authority.
18. We further respectfully
submit that the argument that
the advice of the Judicial
Council once given is binding on
the President would produce
absurd constitutional results.
This is because within the
overall context of the
Constitution, it is clear that
the President is the appointing
authority but does the
appointments on the advice of
the Judicial Council and in
consultation with the Council of
State with the prior approval of
Parliament. The fundamental
rationale for requiring the
advice, consultation or approval
of these other constitutional
bodies is so that they can act
as a restraint on improper
appointments by the President
and not as a substitute for
the power of the president to
appoint the officeholders in
question.”(e.s)
On the other hand Dr. Date-Bah
JSC (rtd.) in his aforementioned
book, states at 211-212
regarding this matter thus:
“The mode of appointment of
Justices of the Supreme Court is
specified by article 144 of the
1992 Constitution. It provides
for their appointment by the
President, acting on the advice
of the Judicial Council, in
consultation with the Council of
State and with the approval of
Parliament. Thus both the
executive and the legislature
are involved in the process.
The intention of the framers of
the Constitution, as confirmed
by practice, appears to be that
nominations should be made by
the Judicial Council, although
the appointment is by the
president. The names of
nominees recommended by the
Judicial Council are forwarded
to the President who places them
before the Council of State for
their views. If the views of
the Council of State are not
negative, the president then
forwards the names to the
Speaker of Parliament for
Parliamentary vetting.
It should be noted, however,
that Presidents in the Fourth
Republic have not considered
themselves bound by the advice
of the Judicial Council in
relation to nominations for
appointment to the Supreme
Court. Presidents have on
occasion refused to accept some
nominees recommended by the
Judicial Council. Though
the Council has expressed regret
at this, it has not challenged
the legality of such refusal in
court. There is thus no
Judicial decision clarifying the
meaning of “acting on the advice
of the Judicial Council” in
article 144(2). Under a
Constitution on the Westminster
model, such as that in force in
Ghana between 1957 and 1960, the
Governor-General was obliged to
follow the advice given him on
judicial appointments. However,
this convention and
understanding have not survived
into the Republican era.
Ordinarily, Presidents tend to
accept the nominees of the
judicial Council as, it has to
be remembered, the
Attorney-General (the
President’s principal legal
adviser) and four nominees of
the President serve on the
Judicial Council. The President
thus has ample opportunity to
influence the nominations by the
Judicial Council. The
appointment process for Supreme
Court Justices therefore enjoys
a degree of independence from
the executive, but it is not
hermetically sealed from the
influence of the executive.
Furthermore, because the
constitutional provision
requires parliament’s prior
approval, Parliament has a
veto power over the appointment
of any Supreme Court Justice.
Although the above shows that,
roles are assigned to both the
President and Parliament in the
appointment process of Supreme
Court Justices, the crucial role
of the Judicial Council ensures
that the judiciary and the Bar
play important roles as well in
the process. The appointment of
Justices of the Supreme Court
thus involved an interactive
process between stakeholders
identified by the
Constitution.”(e.s)
We think that none of these
views, is absolutely right. We
think that (1) the cardinal
principle for appointments to
the Supreme Court in article
144(2) is based on the common
law principle that granted
professional competence, a judge
should be impartial and be
capable of being regarded as
such by the public, see
Therrien v Canada (2001)5
LRC 575 a decision of the
Canadian Supreme Court,
Republic v Mensa-Bonsu; Ex parte
Attorney-General (1995-96)1
GLR 377, SC and Dr Date-Bah JSC
(rtd.), in his aforementioned
book.
(2) This principle is deeply
embedded in article 144(2) read
in conjunction with article
128(4) as follows:
“(4) A person shall not be
qualified for appointment as a
Justice of the Supreme Court
unless he is of high moral
character and proven integrity
and is of not less than fifteen
years’ standing as a lawyer.”
(3) The involvement of the
Judicial Council, the Council of
State and Parliament are meant
to be restraints on the
appointing power of the
President, see Emmanuel Noble
Kor v The
Attorney-General and Justice
Delali Duose, Suit no.
J1/16/2015 dated 10/3/2016,
unreported, (4) The contrast
between the expressions “shall…
acting on the advice of the
Judicial Council” and “in
consultation with the
Council of State, ” shows that
the restraining effect of the
Judicial Council’s
recommendation on the President
is greater than that of the
Council of State. In other
words if the recommendation of
the Judicial Council cannot be
flawed on the requirements of
article 128(4) the consultation
with the Council of State cannot
warrant its rejection by the
President. However if the
President for the purposes of
consulting the Council of State
unearths information which he
puts before the Council of State
which can unsettle the
recommendation of the Judicial
Council in terms of article
128(4) he can reject the
recommendation of the Judicial
Council even if the Council of
State advises otherwise.
What is clear however is that
all the authorities involved in
the process for appointment of
Supreme Court Justices are bound
in the exercise of their various
powers by articles 128(4), and
296(a) and (b) of the
Constitution. See further
Tema Development Corporation v
Atta-Baffuor (2005-2006)
SCGLR 121, Ghana Bar
Association v Attorney-General
(1995-96)1 GLR 598 at 606-608
per Edward Wiredu JSC (though
dissenting), Ghana Commercial
Bank v Commission on Human
Rights and Administrative
Justice (2003-2004)1 SCGLR
91, Republic v District
Magistrate, Accra Ex parte Adio
(1972)2 GLR, 125 C.A, Yailey
v Yakom (1992)1 GLR 499.
As to whether the President is
bound to appoint any number of
justices duly qualified and
recommended to him by the
Judicial Council it is quite
clear that there is here
contemporanea expositio
whereunder the number of Supreme
Court Justices has never
exceeded 14. A radical
departure from this situation is
therefore not within
contemplation. In any case
there is a settled presumption
against statutory absurdity, see
Brown v Attorney-General
(2010) SCGLR 183.
ISSUES II AND III
Issues ii and iii do not arise
in view of our decision on issue
(i).
ISSUE IV
(iv) Whether or not the
advisory function of the
Judicial Council invests the
Council with the constitutional
power to nominate persons for
appointment as justices of the
Superior Courts.
This issue is also settled by
the contemporanea expositio
under article 144(2) and its
predecessors. This is also a
rule of construction. That
there is such a practice is
captured to some extent by Dr.
Date-Bah JSC (rtd.), in his book
aforementioned. That Practice
is that nominations for
appointment to the Supreme Court
come mainly from the
Attorney-General, the Ghana Bar
Association and the Chief
Justice and the Judicial Council
sends their recommendations on
successful candidates to the
President, who then pursues the
process to completion. An
advisory body proceeds on advice
sought from it, see
Wetminster City Council v
Greater London Council
(1986)2 AllER 278, and articles
91(1) and (2).
Though that practice may have
its challenges, yet since
constitution after constitution
has not abrogated it and it can
augment the intended check on
apprehended abuse of the
President’s appointing power, it
should stay.
However it must be emphasized
that no appointment can be made
by the President to the Supreme
Court without a recommendation
to that effect by the Judicial
Council pursuant to which the
appointment can then be made
after consultation with the
Council of State and the
approval of Parliament under
article 144(2).
The proper interpretation of
article 91(2) and(3) is that
article 91(3) relating to “any
matter being considered or dealt
with by the President” is a
general or residual clause
dealing with situations where
the President is, under the
terms of the relevant provision
requiring the advice, not bound
by the Council of State’s
advice.
The plaintiffs’ claims and the
defendant’s counterclaim stand
granted or refused respectively
according to the extent and
terms of this judgment.
We acknowledge the industry and
ingenuity of counsel in writ No.
J1/26/2015 which were of great
assistance to us and thank them
therefor.
Writs nos. J1/21/2015 and
J(1)/22/2015
The following issues concerning
these two writs stand on the
parties’ memorandum of agreed
issues:
“(v) Whether or not the
Council of State is the proper
institution to initiate and / or
nominate a person for the
position of an Electoral
Commissioner?
(vi) Whether or not the
President is bound by the advice
of the Council of State?
(vii) Whether or not the
nomination and appointment of
the Chairman of the Electoral
Commission and his/her Deputies
should involve public /
stakeholder consultations?
(viii) Whether or not there
is a justiciable case before the
Supreme Court in suit Nos.
J1/21/2015 and J1/22/2015?
(ix) Whether or not upon a
true and proper interpretation
of Article 70(2) of the 1992
Constitution the Council of
State is to initiate the process
of appointment of Chairperson
and other Commissioners of the
Electoral Commission and advise
the President on a suitable
candidate to be appointed?
(x) Whether or not the
advice of the Council of State
in the said appointments under
Article 70(2) of the
Constitution is binding on the
President?
(xi) Whether or not the
provisions of Article 91(3) are
applicable to the role of the
Council of State in Article
70(2) of the 1992 Constitution
notwithstanding the provisions
of Article 91(4) of the 1992
Constitution?”
However the resolution of issue
(viii) will dispose of these two
actions severally. The common
basis for these actions is
heated public debate on the
issues raised in them in the
Media. There is no allegation
of a breach or threatened breach
of any constitutional provision
in any of them.
It is therefore crystal clear
that these writs severally seek
an advisory opinion as to the
said issues from this court. As
held in Bilson v
Attorney-General (1993-1994)
GLR 105 SC such advisory opinion
is the work of a solicitor not
this Court.
The said writs are accordingly,
as to each of them, dismissed.
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
AKUFFO (MS) JSC:-
I have read the concurring
opinion of my brother Dotse JSC
and it is that opinion that I
agree with.
(SGD)
S. A. B AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
CONCURRING OPINION.
DOTSE JSC
I have had the opportunity of
reading the lead opinion
authored by my respected brother
Atuguba JSC. Even though I am in
agreement with the conclusion
reached therein in all three
consolidated suits, however,
because my reasons are somewhat
different, I deem it expedient
to set them out in this very
brief concurring opinion.
INTRODUCTION
The matter before this court
consists of three consolidated
suits, which turn on the meaning
“shall acting on the advice
of the Council of state, appoint
the Chairman, Deputy
Chairmen and other members of
the Electoral Commission”
reference article 70 (2) of the
Constitution and “the other
Supreme Court Justices shall
be appointed by the
President acting on the
advice of the Judicial Council,
in consultation with the
Council of State and
with the approval
of Parliament” reference article
144 (2) of the Constitution
1992.
A preliminary issue which arises
is whether the Plaintiffs’ suits
as filed is properly before this
Court in invoking its original
jurisdiction and whether the
Plaintiffs have in real terms
established a breach of the
Constitution.
In my assessment of writ number
J1/26/2015, which is the Ghana
Bar Association suit, I hold the
view as was stated by the
President of this Court Atuguba
JSC that the Plaintiff’s therein
have crossed that threshold as
they have indeed stated in their
statement of case, breach of
article 144 (2) of the
Constitution by Presidents in
the 4th Republic,
especially in the last
appointment of Supreme and Court
of Appeal Judges.
However, the situation is not so
clear in writ numbers J1/21/2015
the Richard Sky case and
J1/22/2015, Kwasi Danso
Acheampong cases respectively.
I will therefore proceed to
discuss this opinion in respect
of the Ghana Bar Association
case Suit No. J1/26/2015 as in
my view apart from the factual
evidence pleaded, there is
sufficient ambiguity in the said
provisions of article 144 (2) of
the Constitution for this Court
to be called upon to interpret.
On the appointment of Supreme
Court Justices, article 144 (2)
sets out a three tier system of
appointment process prior to the
appointment by the President.
A literal reading of the article
suggests that, it is the
President who makes the
appointment, in other words, the
President is the appointing
authority of Supreme Court and
Court of Appeal Judges.
But this position can only be
actualized if the President acts
on the advice of the Judicial
Council and consults the Council
of State with the approval of
Parliament.
From a contextual reading and
understanding of the article
144 (2) provisions of the
Constitution, it is clear that,
the President receives the
advice of the Judicial Council
and also consults with the
Council of State before the
nominations are made public for
the Parliamentary approval. The
approval of the nominees by
Parliament is the last leg of
the appointment process.
Under these circumstances, three
basic issues come up for
discussion namely:-
1.
Must the President seek the
advice of the Judicial Council?
2.
Must he also consult the Council
of State?
3.
Is the President bound by the
opinions given in this advice or
consultation?
The answer to the first and
second questions are fairly easy
and straightforward.
Yes, the President must have
this advice from the Judicial
Council and also consult with
the Council of State.
Black’s Law Dictionary, 9th
Ed, by Bryan A. Garner defines
the word “advice” on page
63 as “guidance offered by
one person to another”.
However, the phrase acting on,
in the context in which it has
been used means “stick to,
adhere to, or to follow.”
When the two words and phrases
e.g. acting on the advice are
put together, a clearer meaning
of the role of the Judicial
Council giving an advisory
opinion is apparent and this
therefore in my opinion makes
such an advice in the true
meaning of the words not
binding. Therefore, a simple,
ordinary and common sense
reading of these provisions
indicates that the President
must at all cost have this
advice from the Judicial Council
and if he does not have this
advice, the appointments of the
Justices will not be valid. But
at all times, this remains an
advice and the President, in my
opinion is not bound to follow
it.
On the other hand, the word,
consult, is defined in Chambers,
21st Century
Dictionary, Revised Edition at
page 294 as follows:-
“to ask the advice of, to
consider, consult with someone,
to have discussions with them.”
Black’s Law Dictionary, 9th
ed, by Bryan A. Garner on page
358 also defines consultation as
“the act of asking the advice
or opinion of someone e.g. a
lawyer.”
In all these, what is clear is
that, “in consultation with
the Council of State”
connotes that, before the
Justices of the Supreme Court
for example are appointed, the
President must have
consultations with the Council
of State on the nominees being
considered for such appointment.
It is therefore right and or
correct to state that, whilst
the President is mandated by the
express provisions of the
Constitution in articles 144 (2)
and (3) to seek the advice of
the Judicial Council before
appointments to the Supreme
Court and Court of Appeal are
made, and similarly consult with
the Council of State on the
appointment process of the
Supreme Court Judges, he is
nonetheless not bound by the
advice or opinion of these
bodies. My understanding however
is that, if these bodies did not
recommend a particular candidate
or nominee, the President cannot
go behind that advice to appoint
someone else. It also follows
that, if the Judicial Council
recommends a particular person
and the President does not feel
obliged to appoint that person,
there is infact no obligation on
the President to have that
person appointed.
As a matter of fact, the
President is not bound by any
such advice. The only thing is
that, the President can also not
go outside the names or lists of
persons recommended to him by
these bodies.
A perusal of the Constitution
1992 gives the clearest of
intentions about the structured
position of the President’s
appointment processes and
powers.
1.
For example, there are times
when there are no limitations on
his appointment powers,
reference article 89 (2) (d)
where the President appoints
eleven (11) members of the
Council of state.
2.
At other times, the President is
required to act in consultation
with various Councils, i.e.
Council of State, reference
article 70 (1) of the
Constitution where the President
in consultation with the Council
of State appoints all those
constitutional office holders
mentioned therein, e.g.
Commissioner of CHRAJ,
Auditor-General etc.
3.
Thirdly, there are those
appointments that he makes with
the prior approval, e.g. Article
78 where Ministers of States are
appointed by the President with
the prior approval of
Parliament.
4.
Then there are the classes of
appointments that are made
subject to advice and
consultation and the approval of
Parliament. Examples of this are
the appointment of the Chief
Justice and other Justices of
the Supreme Court, reference
articles 144 (1) and (2) of the
Constitution for example.
What is the purpose of these
different appointment processes
and powers of the President in
these very important
constitutional offices?
PURPOSIVIST ANALYSIS
The President is directly
elected by the people and
therefore accountable to the
people of Ghana. He is to be
enabled to direct the affairs of
Government through persons who
believe in his ideology,
philosophy and are competent to
deliver his goals and
objectives. But checks and
balances are very important to
ensure that certain basic
principles of competence,
independence and merit such as
are incorporated in
international principles which
have been adopted by the
Commonwealth, known as the
(Latimer House) Principles are
not overlooked. These Latimer
House principles on Judicial
Appointments states as follows:-
“Jurisdictions should have an
appropriate independent process
in place for judicial
appointments. Where no
independent system already
exists, appointments should be
made by a Judicial Services
Commission (established by the
Constitution or by statute) or
by an appropriate officer of
state acting on the
recommendation of such a
commission.
The appointment process, whether
or not involving an
appropriately constituted and
representative Judicial Services
Commission, should be
designed to guarantee the
quality and independence of mind
of those selected for
appointment at all levels of the
Judiciary.
Judicial appointments to all
levels of the Judiciary should
be made on merit with
appropriate provision for the
progressive removal of gender
imbalance and of other historic
facts of discrimination.
Judicial appointments should
normally be permanent; whilst in
some jurisdictions contract
appointments may be inevitable,
such appointments should be
subject to appropriate security
of tenure.
Judicial vacancies should be
advertised.” Emphasis
In Ghana, the Constitution 1992,
has in articles 153 to 154
provided for the composition and
functions of the Judicial
Council, which as stated in
various articles of the
Constitution, performs very
important roles in the
appointment process of Judges at
all levels.
This indeed satisfies the
Latimer House Principles just
referred to in extenso.
The framers of the Constitution
1992 must be commended for
ensuring that the Judicial
Council has been given these
very important roles in
recommending persons found
suitable for appointments to the
Bench. Indeed, Looking at the
composition of the Judicial
Council, one is left in no doubt
that it is a highly competent
body composed of legal
luminaries and well qualified
persons outside legal practice
who perform these important
roles assigned them under the
Constitution.
The Judicial Council as
established under the
Constitution 1992 in my opinion
is very well suited and capable
of performing the arduous tasks
and roles it has been requested
to do.
In conclusion, I want to
reiterate the point that, whilst
the President is mandated to
seek the advice of the Judicial
Council, and consult with the
Council of State in the
appointment process of Supreme
Court Judges with the approval
of Parliament, those advisory
opinions are not binding on the
President.
He is entitled to disregard the
advice, but he can also not
appoint any person who has not
gone through the three tier
process of recommendation, i.e.
Judicial Council, Council of
State and Parliamentary
approval. Care must always be
taken to ensure that the Latimer
House Principles which have been
adopted in our Constitution are
complied with.
This in my opinion will
practicalise and actualise the
words of John Adams, a former
U.S. statesman when he stated in
his “Thoughts on Government”
on page 177-178 in “The
Quotable Founding Fathers”
edited by Buckner Melton, as
follows
“Judges, therefore, should be
always men of learning and
experience in the laws, of
exemplary morals, great
patience, calmness, coolness and
attention. Their minds
should not be distracted with
jarring interests, they
should not be dependent upon any
man or body of men.”
Emphasis
I think it is in the pursuit of
the above objectives that Judges
should be independent and really
seen to be independent in the
discharge of their work. This is
why it is prudent to have the
appointment process somewhat
insulated against excessive
executive control and inter
meddling. It is only in this
way, that the independence of
the Judiciary, which is a very
important principle and takes
it’s root from the separation of
powers as embodied in articles
125 (1) and 127 (1) and (2) of
the Constitution will be
complied with.
Save for the above clarification
made to the lead opinion of my
respected brother Atuguba JSC in
respect of writ No. J1/26/2015,
I agree with the conclusions and
reasons stated by him in respect
of the other two suits namely
J1/21/2015 and J1/22/2015.
(SGD)
V. J .M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
(SGD)
N. S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL:
THADEUS SORY FOR PLAINTIFFS IN
WRITS NO. J1/26/2015.
ALEXANDER KWABENA AFENYO MARKIN
FOR THE PLAINTIFF (WITH HIM
KORKOR OKUTU) IN WRIT NO.
J1/21/2015.
KWASI DANSO ACHEAMPONG FOR
HIMSELF IN WRIT NO. J1/22/2015.
DR. DOMINIC AYINE (DEPUTY
ATTORNEY-GENERAL) FOR THE
DEFENDANTS IN ALL THE WRITS WITH
HIM MRS. DOROTHY AFRIYIE ANSAH
(CHIEF STATE ATTORNEY), MRS.
ANGELA HEDO (ASSISTANT STATE
ATTORNEY ) AND MS ZEINAB AYARIGA
(ASSISTANT STATE ATTORNEY).
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