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DR. DATE-BAH, J.S.C.:
The original jurisdiction of the
Supreme Court has been invoked
in this case by a reference made
by His Lordship Justice Abada
from the High Court, Accra. The
issue referred to us for
determination is: “whether Act
722 violates Articles 33(5),
35(1) and 36(2) of the 1992
Constitution”. The reference is
clearly made in accordance with
article 130 (2) of the
Constitution, which provides
that, where an issue that
relates to the enforcement or
interpretation of the
Constitution or to matters
arising as to whether an
enactment has been made in
excess of the powers conferred
on Parliament or any other
authority by law or under the
Constitution arises in any
proceedings in a court other
than the Supreme Court, the
court is obliged to stay
proceedings and refer the
question of law concerned to the
Supreme Court for determination.
The background to this reference
is that on 27th
December, 2006, the President
gave his assent to The National
Lotto Act, 2006. This Act
established the National Lotto.
The National Lottery Authority
was established under Part II of
the Act to conduct the National
Lotto. Section 4 of the Act
prohibits any person other than
the National Lottery Authority
from operating any form of
lottery. The second to seventh
plaintiffs are companies
established under the laws of
Ghana to operate private lotto
business. The first plaintiff
is also a company established
under the laws of Ghana whose
object is to foster a cordial
relationship among private lotto
operators and to assist
distressed lotto operators.
The plaintiffs’ complaint is
that after the establishment of
the defendant, it caused
newspaper announcements to be
issued in July 2007 about its
establishment. These
announcements publicised the
statutory provision that a
person other than the National
Lottery Authority (which will be
referred to subsequently in this
opinion as “the Authority”)
shall not operate any form of
lottery in Ghana. The
announcements also stated that:
“In view of the establishment of
the Board, all persons who
before the commencement of this
Act, possesses or own a machine
or equipment used for the
operation of lottery of any
kind, shall within fourteen days
after the commencement of this
Act surrender the machine or
equipment to the
Director-General by 14th
August, 2007. Section 58(4)”.
The plaintiffs were aggrieved by
the contents of these
announcements and therefore
issued a writ of summons against
the Authority on 13th
August 2007, claiming the
following remedies:
1.
“A declaration that the
directive from the Defendant to
private lotto operators to
surrender machines or equipment
used for the operation of
lottery to the Director-General
of the Defendant by the 14th
August 2007 is unconstitutional,
illegal and unreasonable.
2.
An order setting aside the
directive referred to in relief
(1) above.
3.
An order restraining the
Defendant itself, its agent(s),
servant(s) or any person(s)
howsoever described acting for
or purporting to act for the
Defendant from unlawfully,
unconstitutionally or
unreasonably interfering with
the property rights of the
Plaintiffs.
4.
An order restraining the
Defendant itself, its agent(s),
servant(s) or any person(s)
howsoever described acting for
or purporting to act for the
Defendant from interfering with
the private lotto operating
business of the Plaintiffs.
5.
A declaration that the National
Lotto Act, 2006 (Act 722) to the
extent that it outlaws the
operation of lotto business by
private lotto operators,
infringes the constitutionally
guaranteed right of the private
lotto operators to free economic
activity.
6.
A declaration that the creation
of the National Lottery
Authority to take over and
monopolise the operation of the
lotto business in Ghana
infringes the Constitutional
injunction to the government to
ensure a pronounced role of the
private sector in the economy.
7.
Any further order(s) as the
court may deem fit.”
After filing their writ and
statement of case, the
plaintiffs applied for an
interlocutory injunction to
restrain the defendant from
interfering with their property
rights or lotto business pending
the final determination of the
matters raised in their writ.
It was in the ruling of Abada J
on this application that he
decided to make the present
reference to the Supreme Court.
The reference
First Issue: Does Act 722
violate Article 33(5)?
Article 33(5) provides that:
“The rights, duties,
declarations and guarantees
relating to the fundamental
human rights and freedoms
specifically mentioned in this
Chapter shall not be regarded as
excluding others not
specifically mentioned which are
considered to be inherent in a
democracy and intended to secure
the freedom and dignity of man.”
The plaintiffs are not
altogether explicit about how
Act 722 violates Article 33(5).
Clarity requires that the
plaintiffs specify what rights
of theirs have been infringed by
Act 722 and which are not
mentioned in Chapter 5 of the
Constitution, but which should
nevertheless be regarded as
fundamental human rights or
freedoms. Evidence of such
rights can be obtained either
from the provisions of
international human rights
instruments (and practice under
them) or from the national human
rights legislation and practice
of other states. No such clear
evidence is provided in the
Statement of Case of the
plaintiffs. There is some
resort to the provisions of some
international human rights
instruments on the right to
work. (These include Art. 23(1)
of the Universal Declaration of
Human Rights; the International
Covenant on Economic, Social and
Cultural Rights, which the
plaintiffs claim Ghana has
signed and ratified; and the
African Charter on Human and
Peoples’ Rights..) The argument
does not appear, however, to be
made that the right to work is
what is being asserted under
article 33(5) and that Act 722
is in breach of such an imported
human right which is inherent in
a democracy. The core of the
plaintiffs’ complaint, rather,
it seems to us, relates to the
allegation that Act 722 stifles
private initiative. This has
more to do with article 36,
whose justiciability we will be
examining below. We do not
consider that the plaintiffs
have made out any legitimate
case that Act 722 violates
article 33(5) of the
Constitution.
The right to work may be a human
right that international human
right instruments recognize.
For instance, Article 6 of the
International Covenant on
Economic, Social and Cultural
Rights, 1966 provides that:
“(1) The States Parties to
the present Covenant recognize
the right to work, which
includes the right of everyone
to the opportunity to gain his
living by work which he freely
chooses or accepts, and will
take appropriate steps to
safeguard this right.
(2)
The steps to be taken by a State
Party to the present Covenant to
achieve the full realization of
this right shall include
technical and vocational
guidance and training
programmes, policies and
techniques to achieve steady
economic, social and cultural
development and full and
productive employment under
conditions safeguarding
fundamental political and
economic freedoms to the
individual.”
However, the plaintiffs do not
show with any clarity the extent
to which such a right should be
imported into Ghanaian law. But
even assuming that a right to
work should be imported into
Ghanaian law under article
33(5), would such a right
include a right to engage in the
gambling business? The business
of gambling is regulated in
almost all jurisdictions.
Accordingly, it would be
unreasonable to construe a right
to work as including a right to
engage in the private lottery
business, with an unregulated
right to enter the business.
Governments have to be given
some space to determine how to
realize the right to work under
their national conditions.
Second issue: Is Act 722 in
breach of Article 35(1)?
Article 35(1) provides as
follows:
“Ghana shall be a democratic
state dedicated to the
realization of freedom and
justice; and accordingly,
sovereignty resides in the
people of Ghana from whom
Government derives all its
powers and authority through
this Constitution.”
This is a general provision
which vests sovereignty in the
people of Ghana. We do not see
how Act 722 could possibly be in
breach of it. The plaintiff’s
statement of case does not spell
out how Act 722 breaches Article
35(1). Accordingly, we have no
hesitation in arriving at the
opinion that Act 722 does not
breach Article 35(1), even if it
is justiciable, which is an
issue that we will consider next
in connection with the third
issue set out below.
Third Issue: Is Act 722 in
breach of article 36(2)(b)?
To determine this issue, it is
necessary first to establish
whether the provisions in
article 36(2)(b) are
justiciable. Article 36 is
contained in Chapter 6 of the
Constitution which has the
title: “The Directive
Principles of State Policy.”
The text of article 36(2) (b)
reads as follows:
“The State shall, in particular,
take all necessary steps to
establish a sound and healthy
economy whose underlying
principles shall include
(a)…
(b) affording ample
opportunity for individual
initiative and creativity in
economic activities and
fostering an enabling
environment for a pronounced
role of the private sector in
the economy;”…
By way of context, it should be
mentioned that the title of
article 36 is: “economic
objectives” and the first
paragraph of article 36 provides
that:
“The State shall take all
necessary action to ensure that
the national economy is managed
in such a manner as to maximize
the rate of economic development
and to secure the maximum
welfare, freedom and happiness
of every person in Ghana and to
provide adequate means of
livelihood and suitable
employment and public assistance
to the needy.”
The justiciability of article
36(2)(b)
An issue is justiciable if it is
capable of being settled by a
court. Prima facie, one
would have thought that
everything in a Constitution
should be justiciable. The
Constitution is a legal document
containing the most important
rules on political governance.
The courts have the
responsibility of ensuring that
these rules are complied with.
To my mind, therefore, the
starting point of analysis
should be that all the
provisions in the Constitution
are justiciable, unless there
are strong indications to the
contrary in the text or context
of the Constitution. We
therefore have much sympathy
with the position of Adade JSC,
as he then was, in New
Patriotic Party v
Attorney-General (The 31st
December case) [1993-94]
2GLR 35 at pp. 65-66 when he
said:
“As stated earlier, the
plaintiff relies, inter alia, on
articles 35 and 41 of the
Constitution, 1992. Both these
articles come under chapter 6 of
the Constitution, 1992 titled:
“The Directive Principles of
State Policy.” It has been
maintained in certain quarters
that these directive principles
are not justiciable, and
therefore cannot avail the
plaintiff.
I am aware that this idea of the
alleged non-justiciability of
the directive principles is
peddled very widely, but I have
not found it convincingly
substantiated anywhere. I have
the uncomfortable feeling that
this may be one of those cases
where a falsehood, given
sufficient currency, manages to
pass for the truth.
I do not subscribe to the view
that chapter 6 of the
Constitution, 1992 is not
justiciable: it is. First, the
Constitution, 1992 as a whole is
a justiciable document. If any
part is to be non-justiciable,
the Constitution, 1992 itself
must say so. I have not seen
anything in chapter 6 or in the
Constitution, 1992 generally,
which tells me that chapter 6 is
not justiciable. The evidence
to establish the
non-justiciability must be
internal to the Constitution,
1992, not otherwise, for the
simple reason that if the
proferred proof is external to
the Constitution, 1992, it must
of necessity conflict with it,
and be void and inadmissible:
we cannot add words to the
Constitution in order to change
its meaning.”
The impression that some
(including Bamford-Addo JSC (infra)
have that Chapter 6 is not
justiciable is probably
attributable to the fact that it
deals with directive principles
of state policy. These
principles have been treated in
India as not being in and of
themselves justiciable.
However, there is a good reason
for this position in Indian
law. Article 37 of the Indian
Constitution says, in relation
to the directive principles of
state policy, that:
“The provisions contained in
this Part shall not be
enforceable by any court, but
the principles therein laid down
are nevertheless fundamental in
the governance of the country
and it shall be the duty of the
State to apply these principles
in making laws.”
Thus, it contains an explicit
non-justiciability provision, in
contrast to the Ghanaian
Constitution, where, in the
absence of such express
exclusion of the courts, any
non-justiciability conclusion
has to be reached by
interpretation and
implication. Any such
interpretation requires an
assessment and determination of
the purpose of Chapter 6.
The relevant provision of the
1992 Constitution on which a
presumption of justiciability
could, with some justification,
be based is Article 34(1), which
is in the following terms:
“The Directive Principles of
State Policy contained in this
Chapter shall guide all
citizens, Parliament, the
President, the Judiciary, the
Council of State, the Cabinet,
political parties and other
bodies and persons in applying
or interpreting this
Constitution or any other law
and in taking and implementing
any policy decisions, for the
establishment of a just and free
society.”
Is this is a sufficient basis
for asserting the enforceability
in the courts of the
principles? The courts have to
accept the obligation of being
guided by the principles “in
applying or interpreting” the
Constitution. Is this
equivalent to a call on them to
enforce the principles? If one
is guided by the principles in
applying the Constitution, is
that not equivalent to enforcing
the principles? There is need
to refer for guidance to the
Proposals for a Draft
Constitution of Ghana of the
Committee of Experts who
formulated the draft provisions
on the basis of which the
Consultative Assembly formulated
the 1992 Constitution. In
paragraphs 94 to 96, the
Committee explains its position
on the directive principles as
follows:
-
“The NCD report speaks of
the need to include in the
new Constitution “core
principles around which
national political, social
and economic life will
revolve.” This is precisely
what the Directive
Principles of State Policy
seeks to do. Against the
background of the
achievements and failings of
our post-independence
experience, and our
aspirations for the future
as a people, the Principles
attempt to set the stage for
the enunciation of
political, civil, economic
and social rights of our
people. They may thus be
regarded as spelling out in
broad strokes the spirit
or conscience of the
constitution. The Committee
used Chapter Four of the
1979 Constitution as a basis
for its deliberations on
this subject.
-
By tradition Directive
Principles are not
justiciable; even so, there
are at least two good
reasons for including them
in a constitution. First,
Directive Principles
enunciate a set of
fundamental objectives which
a people expect all bodies
and persons that make or
execute public policy to
strive to achieve. In the
present proposals, one
novelty is the explicit
inclusion of political
parties among the bodies
expected to observe the
principles. The reason for
this is that political
parties significantly
influence government
policy. A second
justification for including
Directive Principles in a
constitution is that, taken
together, they constitute,
in the long run, a sort of
barometer by which the
people could measure the
performance of their
government. In effect they
provide goals for
legislative programmes and a
guide for judicial
interpretation.
-
On the basis of the
foregoing considerations,
the Committee proposes as
follows: The Directive
Principles of State Policy
are for the guidance of
Parliament, the President,
the Council of Ministers,
Political Parties and other
bodies and persons in making
and applying public policy
for the establishment of a
just and free society. The
Principles should not of and
by themselves be legally
enforceable by any court.
The Courts should, however,
have regard to the said
Principles in interpreting
any laws based on them.”
It is important to note that an
important element in the
Committee’s recommendation was
omitted from the provisions in
the Constitution on the
directive principles as
ultimately adopted. There is no
language in the Constitution
stating that the principles are
not of and by themselves legally
enforceable by any court. The
Committee put forward in
Appendix D of its report
specific language on the
Directive Principles of State
Policy which included clause
1(2) (at p. 224 of the Report)
which provided as follows:
“The principles shall not of and
by themselves be legally
enforceable by any court.”
This language does not, however,
appear in the final version of
the 1992 Constitution. With
language such as that set out
above, the Committee could
legitimately assume that the
principles would not be
enforceable. However, with the
omission of that language in the
Constitution, we do not think
that it is necessarily to be
assumed that the provisions in
Chapter 6 are not intended to be
justiciable. There is a
significant departure from the
original proposal by the
Committee.
Furthermore, even if the
original intent of the Committee
was that the principles should
not be justiciable, that intent,
though important, is not
necessarily determinative of the
outcome of the interpretation of
article 34 by this Court. We
would here like to recall an
argument that was made in
Asare v Attorney-General
[2002-2004] SCGLR 823 (at p.
834-5) in the following passage:
“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.
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. A poignant illustration
of objective purpose is to be
found in the Australian case of
Theophenous v Herald Weekly
Time Ltd. (1994) 182 CLR
104. In this case, the High
Court of Australia was faced
with the issue of whether the
court could construe an implied
Bill of Rights into the
Australian Constitution, the
Constitution being silent on a
Bill of Rights. Was the
intention of the original
framers of the Australian
Constitution to be conclusive on
the determination of this issue?
Justice Deane observed in the
Theophenous v Herald Weekly Time
Ltd. case (supra)
(at p 106) that:
“The present legitimacy of the
Constitution as the compact and
highest law of our nation lies
exclusively in the original
adoption (by referenda) and
subsequent maintenance (by
acquiescence) of its provisions
by the people. While they
remain unaltered, it is the duty
of the courts to observe and
apply those provisions,
including the implications which
are legitimately to be drawn
from their express terms or from
the fundamental doctrines which
they incorporate and implement.
There is absolutely nothing in
the provisions of the
Constitution which suggests an
intention on the part of the
people either that the ordinary
rules of construction should be
ignored or that the failure to
include a detailed list of their
constitutional “rights” should
be treated as somehow precluding
or impeding the implication of
rights, privileges and
immunities from either the
Constitution’s express terms or
the fundamental doctrines upon
which it was structured and
which it incorporated as part of
its very fabric. That being so,
even if it could be established
that it was the unexpressed
intention of the framers of the
Constitution that the failure to
follow the United States model
should preclude or impede the
implication of constitutional
rights, their intention in that
regard would be simply
irrelevant to the construction
of provisions whose legitimacy
lay in their acceptance by the
people. Moreover, to construe
the Constitution on the basis
that the dead hands of those who
framed it reached from their
graves to negate or constrict
the natural implications of its
express provisions or
fundamental doctrines would
deprive what was intended to be
a living instrument of its
vitality and adaptability to
serve succeeding generations.”
If one adopts an originalist
approach (to borrow a term from
United States constitutional
law), that is, if one looks no
further than the framers’
intention, one could make a case
for the non-justiciability of
the principles. This case is
however weakened by the fact
that the language proposed by
the framers (in this case, the
Committee of Experts) to carry
out their intent was not adopted
by the Consultative Assembly.
Accordingly, the inference may
legitimately be drawn that the
Consultative Assembly was of a
different view. Moreover,
reliance on original intent is a
method which does not
necessarily produce the right
interpretative results, as the
quotation from the
Theophenous case (supra)
demonstrates. While the 1992
Constitution has not yet endured
for even two decades, it is
nonetheless not safe to rely on
this mode of interpretation
exclusively or even
predominantly. A more modern
approach would be to see the
document as a living organism.
As the problems of the nation
change, so too must the
interpretations of the
Constitution by the judiciary.
Interpreting the Constitution as
a living organism implies that
sometimes there may be a
departure from the subjective
intention of the framers of it.
The objective purpose of the
Constitution may require an
interpretation different from
that of the original framers of
it. I think that the issue of
the enforceability of Chapter 6
of the Constitution probably
illustrates the divergence
between subjective and objective
purpose, if one is inclined to
the conclusion that the framers’
intent was against
justiciability.
The oft-repeated words of Sowah
JSC, as he then was, in
Tuffuor v Attorney-General
[1980] GLR 637 provide support
for the living organism approach
to constitutional interpretation
in this jurisdiction. He there
said (at p. 647):
“The Constitution has its letter
of the law. Equally, the
Constitution has its spirit….Its
language, therefore, must be
considered as if it were a
living organism capable of
growth and development. Indeed,
it is a living organism capable
of growth and development. A
broad and liberal spirit is
required for its
interpretation. It does not
admit of a narrow
interpretation. A doctrinaire
approach to interpretation would
not do. We must take account of
its principles and bring that
consideration to bear, in
bringing it into conformity with
the needs of the time.”
The rights set out in chapter 6,
which are predominantly the
so-called ESC rights, or
economic, social and cultural
rights, are becoming, by
international practice and the
domestic practice in many
jurisdictions, just as
fundamental as the rights in
chapter 5. The enforceability
of these ESC rights is a
legitimate purpose for this
court to seek to achieve through
appropriate purposive
interpretation. We therefore
think that the interpretation
that we give to Article 34
should take into account this
purpose of achieving an
expansion of the range of
enforceable human rights in
Ghana. The doctrine of a living
Constitution implies, as already
pointed out above, that there is
not a slavish adherence to the
original subjective intent of
the framers, but rather that the
interpreter takes the
constitutional text as is and
interprets it in the light of
the changing needs of the time.
For instance, in the United
States, the living Constitution
approach to interpretation had a
powerful influence during the
period of President Roosevelt’s
New Deal in the 1930s when there
was overwhelming public
sentiment that the Constitution
should be interpreted in the
light of the needs of the time.
Similarly, in the light of our
history, culture and legal
system, we consider the
elaboration and enforcement of
ESC human rights in Ghana as a
need of our time. To the extent
that the semantic possibilities
of the text of Article 34 enable
this need to be met, we think
that this Court should fulfil
that need.
Chief Justice Aharon Barak of
Israel has extra-judicially
supported the view that the
subjective intent of the framers
of a Constitution should not be
decisive. He has written in his
book, Purposive
Interpretation of Law
(2005), at pp. 386-7 that:
“Subjective purpose is not
decisive. Judges should not
ignore it, but nor should they
give it a central role in their
formulation of ultimate
constitutional purpose. Legal
systems in many countries adopt
this approach. Canada’s Supreme
Court, for example, accords only
minimal weight to the intent of
the constitutional authors in
its interpretation of the
constitution. In a case
discussing a provision of the
Canadian Charter providing that
every person has a right to
life, liberty, and security, and
that these rights cannot be
denied, “except in accordance
with the principles of
fundamental justice,” a question
arose as to whether “fundamental
justice” is procedural (natural
justice) or substantive. The
court heard arguments that the
subjective intent was procedural
– that the authors of the
Charter, aware of the
controversy over “due process”
in the United States,
intentionally avoided using the
American phrase to signal their
reference to procedural, not
substantive, justice. The
Canadian court decided not to
accord significant weight to
subjective intent, holding, in
an opinion by Justice Lamer,
that
Another danger with casting the
interpretation of s. 7 in terms
of the comments made by those
heard at the Special Joint
Committee Proceedings is that,
in so doing, the rights,
freedoms and values embodied in
the Charter in effect
become frozen in time to the
moment of adoption with little
or no possibility of growth,
development and adjustment to
changing social needs…. If the
newly planted “living tree”
which is the Charter is
to have the possibility of
growth and adjustment over time,
care must be taken to ensure
that historical materials … do
not stunt its growth. Re
R.C. Motor Vehicle Act
[1985] 2 S.C.R. 486, 504.”
A presumption of justiciability
in respect of Chapter 6 of the
Constitution would strengthen
the legal status of ESC human
rights in the Ghanaian
jurisdiction. Of course, there
may be particular provisions in
Chapter 6 which do not lend
themselves to enforcement by a
court. The very nature of such
a particular provision would
rebut the presumption of
justiciability in relation to
it. In the absence of a
demonstration that a particular
provision does not lend itself
to enforcement by courts,
however, the enforcement by this
Court of the obligations imposed
in Chapter 6 should be insisted
upon and would be a way of
deepening our democracy and the
liberty under law that it
entails.
In effect, one is saying that
article 34 should be so
interpreted as to realize the
objective purpose of Chapter 6.
(See Attorney-General v Asare
(supra) at p. 834 of the
Report). Since the language of
the text provides the semantic
basis for it, it should be
interpreted to realize the
fundamental or core values of
the legal system. It is our
view that the strengthening of
the enforcement of fundamental
human rights is a core value of
our current legal and
constitutional system.
Therefore, to the extent that
there is an ambiguity in the
language of article 34, it
should be resolved in favour of
a greater protection of
fundamental human rights.
Accordingly, the provision in
article 34(1) that the Directive
Principles of State Policy
should guide, inter alios,
the judiciary “in applying or
interpreting the Constitution”,
although ambiguous, can
reasonably be interpreted to
mean that the judiciary should
enforce these principles.
However, it should be recognized
that the enforceability of
economic, social and cultural
rights need not be implemented
in the same way as the political
and civil rights embodied in
Chapter 5. This Court will need
to be flexible and imaginative
in determining how the
provisions of Chapter 6 are to
be enforceable.
A view contrary to what has been
elaborated above is, however,
put forward by Bamford-Addo JSC
in New Patriotic Party v
Attorney-General (the CIBA
case). [1997-98] 1GLR 378 at
pp. 393-394., where she said:
“The question which should be
posed is whether the provisions
of chapter 6 have any separate
existence of their own, i.e.
whether they are of and by
themselves justiciable or
enforceable? Most of those
provisions relate to the
enjoyment of the guaranteed
fundamental rights and freedoms
set out in chapter 5 of the
Constitution, 1992. As stated
by the drafters of the
Constitution, 1992 the directive
principles have no separate
existence; they are measures by
which laws are judged for
constitutionality and they
afford a yardstick by which
policy decisions are to be taken
and implemented for the
establishment of a just and free
society. This means that until
they are read and applied in
conjunction with any substantive
guaranteed human rights and
freedoms set out in chapter 5 of
the Constitution, 1992, they
remain only guidelines, and are
not enforceable rights by
themselves, see Report para 96,
at p. 49…
(After quoting the passage, she
continues as follows:)
In general therefore it is
correct to say that the
directive principles are
principles of state policy which
taken together constitute a sort
of barometer by which the people
can measure the performance of
their government. That they
provide goals for legislature
programmes and a guide for
judicial interpretation but are
not of and by themselves legally
enforceable by any court.
However, there are exceptions to
this general principle. Since
the courts are mandated to apply
them in their interpretative
duty, when they are read
together or in conjunction with
other enforceable parts of the
Constitution, 1992, they then in
that sense, become enforceable.
But as clearly explained in the
Report, standing independently
they are not justiciable: see
also article 34 of the
Constitution, 1992.”
It ought to be pointed out,
first, that this view was
expressed after the
pronouncement by Adade JSC of
his view on the issue (supra)
and therefore his view should
have been followed or the
earlier case distinguished. It
might be argued that the failure
in the subsequent case to follow
Adade JSC’s view should bring
into play issues relating to the
doctrine of per incuriam.
But this is not really so.
For, Bamford-Addo JSC has an
explanation for her position.
This is what she says (at p. 396
-7 of the Report):
“In the case of New Patriotic
Party v Attorney-General
[1993-94] 2 GLR 35, SC, I echoed
the relevant parts of the Report
to support my general
observation that the directive
principles are not justiciable.
That statement was made while
considering some articles under
chapter 6 of the Constitution,
1992 which the plaintiff in that
case was relying upon in support
of his case. My said statement
should be qualified to mean that
in general the directive
principles standing by
themselves are not
justiciable as the relevant part
of the Report which I quoted
therein clearly state. In that
case I did not dismiss the suit
but went on to consider those
provisions of the directive
principles relied upon by the
plaintiff, in interpreting the
Public Holidays Law, 1989 (PNDCL
220) vis-à-vis the Constitution,
1992. On that occasion
justiciability of the directive
principles was not an issue for
determination and was not
therefore fully argued as has
been done in this case before us
now. Having now fully
considered the arguments on both
sides on this issue, I am of the
firm view that as stated in the
Report, and quoted by me in the
above mentioned case, the
principles are generally “of
and by themselves” not
justiciable. However, the
necessary implication in those
emphasised words “of and by
themselves”, as I explained
before, implies that where those
principles are read in
conjunction with other
enforceable provisions of the
Constitution, 1992 by reason of
the fact that the courts are
mandated to apply them, they are
justiciable. Further, where any
provision under chapter 6 of the
Constitution, 1992 dealing with
the directive principles can be
interpreted to mean the creation
of a legal right, ie a guranteed
fundamental human right as was
done in article 37(2)(a) of the
Constitution, 1992 regarding the
freedom to form associations,
they become justiciable and
protected by the Constitution,
1992. In conclusion, having
regard to the above stated
criteria or test for
justiciability of any particular
provision under chapter 6 of the
Constitution, 1992 it is my view
that each case would depend on
its peculiar facts and on the
facts of this case article 37(2)
of the Constitution regarding
freedom to form an association
free from state interference is
a right which is justiciable.”
On this issue of justiciability,
the court was unanimous, for
Ampiah, Kpegah, Atuguba and
Akuffo JJSC delivered concurrent
judgments. Indeed, Akuffo JSC
expressly adverted to the views
of Adade JSC and Aikins JSC in
the earlier N.P,P v
Attorney-General (31st
December) case and failed
to follow them. In the
Defendant’s Statement of Case
filed in this reference, it
purported to explain the refusal
of the later court to follow the
majority view in the NPP v
A-G (31st December
case) as a decision to
depart from the Court’s earlier
decision. Whilst the CIBA
case was certainly a de facto
departure from the 31st
December case, it is not at
all clear that the Supreme Court
was purporting to exercise its
right under article 129(3) of
the Constitution to depart
deliberately from its previous
decision.
It will be noticed, upon
reflection, that the position
propounded by the Bamford-Addo
JSC in the quotation above is
not vastly different from what
we have articulated above. We
think that our preferred
approach of a rebuttable
presumption of justiciability in
relation to the provisions of
Chapter 6 provides a better
framework of analysis of, and
protection for, ESC rights, than
the rather relativistic, case by
case approach stated by the
learned judge. The two
positions are convergent in
that, if a particular provision
of chapter 6 does not lend
itself to enforcement by action
in court, then in our preferred
approach, the presumption of
justiciability would be
rebutted, while, similarly, the
case by case approach of Justice
Bamford-Addo would result in the
court finding that the provision
in question does not create an
enforceable right. The
advantage of the presumption of
justiciability is that it
provides a clear starting rule
that is supportive of the
enforcement of fundamental human
rights.
Secondly, it should be pointed
out that Bamford-Addo JSC was in
the minority dissenting group in
the earlier 31st
December case (supra).
Her view that the justiciability
of chapter 6 was not an issue
for determination is thus a
controversial one. The
majority, for whom Adade JSC
spoke, considered that the
justiciability of Chapter 6 was
an issue in that case.
Certainly, the editor of the
Ghana Law Report was of the same
view since he formulates the
second holding in the case as
follows:
“(2) The Directive Principles of
State Policy contained in the
constitution, 1992, chp 6 were
justiciable because:
(a) the Constitution, 1992 as a
whole was a justiciable document
and accordingly, if any part was
non-justiciable, the
Constitution itself had to
indicate it. But no provision in
the Constitution had indicated
that chapter 6 was not
justiciable. Yet, the evidence
to establish the
non-justiciability of the
principles had to be internal to
the Constitution otherwise it
would be in conflict with it and
thus be void and inadmissible.
Dicta of Lord Halsbury LC in
Hilder v Dexter [1902] AC 474 at
477, HL and of Lord Wright in
Assam Railways and Trading Co
Ltd v Commissioners of Inland
Revenue [1935] AC 445 at 458, HL
approved;
(b) articles 1(2) and 2(1) of
the Constitution, 1992 which
rendered any law, enactment or
anything done under its
authority, any act or omission
of any person inconsistent with
any provision or a provision of
the Constitution null and void
and empowered the Supreme Court
so to declare, did not express
any exception in favour of
chapter 6; and
(c) the provision in article
34(1) of the Constitution that
the directive principles should
guide the judiciary "in applying
or interpreting" the
Constitution obliged the Supreme
Court to apply the directive
principles to assist or
facilitate the performance of a
citizen's duty or the
enforcement of his rights under
the Constitution.”
Indeed, Adade JSC considered the
issue in great detail before
reaching his conclusion. The
following passage from his
judgment shows the meticulous
attention to detail that he
applied in reaching his result
(see p. 69 of the Report):
“I concede that in its report,
the Committee of Statutory
Experts appointed in 1991 by the
PNDC to make proposals for a
draft Constitution did say at p
49, para 95 that: "By tradition
Directive Principles are not
justiciable." (The emphasis is
mine.) The committee did not say
what that tradition was or is.
That statement could,
unintentionally, be misleading.
In the Consultative Assembly, it
was recognised that the
Constitution, 1979 was the first
of our several Constitutions in
Ghana (1957; 1960 (amended in
1964); 1969) to introduce the
idea of directive principles.
Both the Committee of Statutory
Experts and the Consultative
Assembly relied almost entirely
on chapter 4 of the
Constitution, 1979 for the
debates on, and form of, the
directive principles contained
in chapter 6 of the
Constitution, 1992. The
Committee of Experts
acknowledged this much at p 49,
para 94 of their report: "The
Committee used Chapter 4 of the
1979 Constitution as a basis for
its deliberations." From which
acknowledgement, it would appear
that the tradition the committee
had in mind was that commenced
by or traceable to the
Constitution, 1979.
If the committee contemplated
any other tradition, it did not
indicate it. In any case, as at
the time the committee was
appointed in 1991, Ghana had, in
this respect, a tradition, in
the Constitution, 1979, it is
legitimate to conclude, in the
absence of contrary evidence,
that the committee meant the
Ghana tradition. By that
tradition, viz in the
Constitution, 1979, the
directive principles were
justiciable, which clearly
contradicts the committee's
statement. There was nothing in
the Constitution, 1979 which
said they were not. For purposes
of confirming this
interpretation, reference may be
made to the parliamentary
history of the chapter, which is
a permissible practice.
The question of the
justiciability of the chapter on
the Directive Principles of
State Policy was debated at
length in the 1979 Constituent
Assembly. At its twentieth
sitting on Friday, 2 February
1979 the assembly expressly
resolved to make the chapter
justiciable:
"MR. CHAIRMAN [Justice VCRAC
Crabbe]: Now I am going to put
the question. And the question
is the amendment as proposed by
Mr. Zwennes that we should make
chapter four non-justiciable be
accepted by the house."
The question was then put. The
result of the exercise was:
"Question put and negatived."
Therefore the house rejected the
idea that the directive
principles should be
non-justiciable. In other words,
that they should be justiciable.
Given the importance of the
subject to the assembly a member
after the voice vote, asked for
a head-count, and then a
recording of names. In both,
the justiciable group defeated
the non-justiciable group: see
sheets 64-67 of the manuscripts
of the Official Report of the
Constituent Assembly Debates of
2 February 1979, from the
Archives of Parliament. A
member then tried to get the
whole chapter removed from the
Constitution, 1979. That attempt
was also defeated.
The debates confirm the
interpretation that in the
absence of anything in the
Constitution to the contrary,
chapter 4 (The Directive
Principles of State Policy) of
the Constitution, 1979 was
justiciable. By the same
yardstick chapter 6 of the
Constitution, 1992 is also
justiciable.
The 1992 Consultative Assembly,
obviously misled by the
Committee of Statutory, Experts,
assumed wrongly that the
"Directive Principles of State
Policy are traditionally
non-justiciable." (Observe the
similarity in language).
Apparently not satisfied with
the perceived character of the
directive principles, the
assembly endeavoured to upgrade
them to what they termed "a
higher moral level" to make them
"imperative", which everybody is
"required mandatorily to
observe." This was on a motion
to change "are for the guidance
of" in the original draft of
article 34(1) to "shall guide"
as we now have it: see the
Consultative Assembly Debates,
22 January 1992, col 1593. It
seems clear that but for the
statement of the Committee of
Statutory Expects, different
considerations might have
prevailed in the Consultative
Assembly.
In any case, even if the debates
in the Consultative Assembly may
charitably be interpreted as
exhibiting some intention to
make the directive principles
non-justiciable, that intention
was not carried into the
Constitution, 1992. The debates
themselves are inadmissible to
contradict the language of the
Constitution. That is not
permissible.”
The next point we wish to stress
is that Bamford-Addo JSC fails
(as do the other members of the
court who agreed with her) to
consider the implication of the
fact that the Committee of
Experts’ proposal of explicit
language proclaiming that the
principles should not be in and
of themselves enforceable by the
courts was not accepted by the
Consultative Assembly. We think
the omission of that language is
a strong pointer in favour of
the Adade viewpoint.
As far as this present Court is
concerned, we are of the view
that, because there is a
conflict between two previous
Supreme Court decisions, we are
free either to choose between
the two decisions or to
formulate a different rule that
is right in our view, since
there is currently no binding
precedent. We would humbly
submit that that right rule is a
presumption of justiciability in
relation to the provisions of
Chapter 6 of the Constitution,
1992, as outlined above.
Applying this presumption of
justiciability, our view is that
the economic objectives laid out
in Article 36 of the
Constitution are legally binding
and are not merely a matter of
conscience for successive
governments of our land. The
objectives have, though, to be
liberally construed in order not
to interfere with the democratic
mandates of successive
governments. Where, however, a
government introduces
legislation which is flagrantly
at odds with any of the
objectives set out in the
Article, we believe that this
Court has jurisdiction to strike
down the provisions in the
legislation which are
incompatible with the objectives
concerned. In short, article
36(2)(b) is justiciable.
Does Act 722 in fact contravene
Article 36(2)(b)?
Given our view that article
36(2)(b) is justiciable, the
next step is to determine
whether in fact the provisions
of Act 722 infringe that
constitutional provision. An
indication of the nature of the
plaintiffs’ case on this issue
can be gleaned from the
following paragraphs from their
statement of claim before the
trial court:
21.
“The Plaintiffs also aver that
insofar as the National Lotto
Act, 2006 (Act 722) seeks to
restrict the Plaintiffs in the
exercise of their economic
rights, it is inconsistent with
the provisions of the 1992
Constitution.
22.
The Plaintiffs further
asseverate that insofar as the
National Lotto Act, 2006 (Act
722) seeks to stifle private
individual initiative and
creativity in economic
activities, as well as to create
a reduced role of the private
sector in the economy, it is
inconsistent with the provisions
of the 1992 Constitution.”
Also, in paragraphs 5.14 to 5.16
of the plaintiffs’ statement of
case filed with this court, they
argue that:
“5.14 Unfortunately,
Parliament seeks to subvert
these constitutional orders by
taking away the right of lotto
operators to carry on their
trade of lotto and also removing
the opportunity for individual
initiative and creativity in
lotto business, and abolishing
the environment for a pronounced
role of the private sector in
lotto business, a sector of the
Ghanaian economy.
5.15
Parliament through sections 1, 2
and 4 of Act 722, is subverting
the constitutional order by
abolishing private lotto
business thereby providing a
state monopoly of lotto
business. This state monopoly
of lotto business created for
the NLA takes away the work of
the Plaintiffs and this has the
tendency to push them into a
state of indignity.
5.16
Several persons including the
Plaintiffs will be reduced to
live a life of indignity having
lost their work, the directing
minds and employees of the
Plaintiff companies will lose
their ability to fend for their
families, educate their children
and provide shelter among other
basic needs.”
Sections 1, 2 and 4 of Act 722
of which the plaintiffs complain
provide as follows:
“Establishment of National
Lotto
1. There is established
by this Act National Lotto.
Objects of National Lotto
2. (1) National
Lotto shall be conducted for the
purpose of raising revenue for
the nation and for other
purposes stated in this Act.
(2) The
National Lottery Authority
established under Part II shall
be the institution to conduct
National Lotto.
(3) There
shall be conducted as part of
the operation of National Lotto,
a lottery with the object of
providing care and protection
for the physically or mentally
afflicted, the needy, the aged,
orphans and destitute children.
(4) The
Authority may, in consultation
with the Minister, operate any
other game of chance or enter
into collaboration, partnership
or joint venture with any
person, society, association or
corporate entity, to operate a
game of chance in accordance
with existing laws, but losses
from the game of chance, the
collaboration, partnership or
joint venture shall not be
compensated for by the State or
from the Lotto Account provided
for under section 32.
…
Prohibition of lottery
4. (1) A
person other than the Authority
shall not operate any form of
lottery.
(2) A person
who contravenes subsection (1)
commits an offence and is liable
on summary conviction to a fine
of not more than two thousand
and five hundred penalty units
or imprisonment for a term of
not more than three years or
both.”
Do these provisions of Act 722
infringe article 36(2)(b) of the
Constitution? To use a
hackneyed expression, we think
that the plaintiffs are crying
wolf! If the above provisions
were an infringement of article
36(2), it would imply that the
government had virtually no
regulatory authority over
private enterprise. The
licensing regime over banks and
insurance companies, for
example, would be
unconstitutional! That would be
an absurd result, if ever there
was one. To afford the citizens
and residents of Ghana an
opportunity for individual
initiative and creativity in
economic activities does not
imply the denial to the Ghanaian
State of the normal regulatory
authority exercised by
democratic states the world
over. The plaintiffs’ claim in
effect is that they have an
untramelled right to operate
their private lotto business,
free from any licensing regime
established by Parliament. The
argument against this position
is put thus in the defendant’s
statement of case (at para. 13):
“My Lords, a person has no
fundamental human right to carry
on private lotto or for that
matter a fundamental right to
carry on a particular business
of his choice. Lotto is a form
of gambling and there is also no
right at common law or anywhere
else for any person to engage in
gambling. It is a state
regulated business and one can
only participate at the mercy of
the state. The plaintiffs were
allowed to participate in
private lotto by the passage of
the PNDCL 223. That did not
elevate the right to a
fundamental human right, which
cannot be interfered with.”
This analysis by the defendant
is largely correct, except that
the plaintiffs are not at the
mercy of the State in seeking to
participate in the state
regulated lottery industry. The
licensing regime has to conform
to the standards set in article
296 of the Constitution. The
National Lottery Authority has a
duty to be fair and candid in
allocating licences to those who
wish to participate in the
lottery business. It also has
to publish regulations governing
the exercise of its
discretionary power.
Conclusion
In conclusion, therefore, we
wish to state in response to the
reference by the learned trial
judge that Act 722 is not in
breach of Articles 33(5), 35(1)
and 36(2) of the 1992
Constitution.
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME COURT
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
ANIN-YEBOAH
JUSTICE OF THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
Aurelius Awuku for the Plaintiff
Kizito Beyuo for the Defendant.
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