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Constitutional law -
interpretation - 1992
Constitution - Articles 2(1) and
130(1) - Articles 258(1)(a) and
(b) and 265 – Public land -
Public interest -
Whether or not the Government
of Ghana possess the legal
authority to grant or allocate
any public Lland - Whether or
not Plaintiff’s case raises an
issue for the exercise of this
Court’s jurisdiction under
articles 2(1) and 130(1) of the
1992 Constitution - Whether or
not the establishment and
operations of the Hajj Board by
the Government and Government
support for and/or involvement
in the Ghana National Cathedral
Project are unconstitutional or
amount to an unconstitutional
entanglement by the State with
religion - Whether this case
discloses a genuine or real
interpretative issue - Whether
the original interpretative
jurisdiction of this Court has
been properly invoked.
HEADNOTES
The instant
suit is a
public interest
(constitutional) action wherein
the Plaintiff requests this
Honourable Court to conclude
that by the letter, spirit and
core values of the 1992
Constitution of Ghana, the
Republic of Ghana must
recognize, respect, safeguard
and promote the formal equality
of all religions practiced in
Ghana, and to that end, must not
confer benefits on one religion
to the exclusion of others.
Secondly, the Plaintiff submits
that Ghana is committed to the
value of “freedom of religion,
belief and conscience” which can
only be realized if the State
recognizes the formal equality
of all religions practiced in
Ghana. it is the humble
submission of the Plaintiff that
upon a careful examination of
the text and spirit of the
Constitution as well as core
values, principles and concepts
that undergird our
constitutional framework the
Republic of Ghana is a secular
state with no state or official
religion. Consequently, the
Republic of Ghana is
constitutionally required to
stay indifferent to or show
balance in dealing with all
faiths and non-faiths. A
fortiori, it is constitutionally
impermissible for the Government
of Ghana to confer any benefits,
advantages or privileges on one
religion to the exclusion of
other religions. The
Attorney-General [AG] submits
that the
Plaintiff’s case does not raise
an issue for the exercise of
this Court’s jurisdiction under
Articles 2(1) and 130(1) of the
Constitution and for that
matter there is absolutely no
cause of action. The AG
submits further that there is no
constitutional issue that is
legitimately raised around the
authority of the President to
allocate land for the
construction of the National
Cathedral by relying on article
257(1) that vests all public
lands in the President on behalf
of, and in trust for, the people
of Ghana. The A-G contends that
the President acted within his
constitutional right to allocate
public land for a specific
purpose in the public interest
HELD
In respect of
articles 258(1) and (2), and 265,
which form the basis of the
Plaintiff’s claim in Relief 1,
the provisions are also clear
and unambiguous and the
President in whom all public
lands are vested by virtue of
Article 257(1) can deal directly
with public lands through the
appropriate Ministry as was done
in this case. From the
foregoing, we do not find the
existence of a genuine issue for
interpretation in the
constitutional provisions relied
on for the institution of an
action under articles 2(1) and
130(1). The Plaintiff’s
invitation is therefore refused
The Lands
Commission though an independent
body is to work “in
co-ordination with the relevant
public agencies and governmental
bodies” in managing public lands
(Article .258 (1). The Plaintiff
has not demonstrated that the
allocation of the land was done
without the involvement of the
Lands Commission. The only
evidence proffered is that it is
the Minister responsible for
Lands and Natural Resources who
has been handling and
communicating on matters
relating to the land. Without
any evidence to the contrary we
presume everything was regularly
done by the President acting
through the appropriate ministry
to allocate the land in question
for the construction of the
National Cathedral, which when
completed was to be used for
public purposes by all
denominations From the foregoing
we do not find any
constitutional issue that is
legitimately raised around the
constitutional authority of the
President to allocate the land
for the purpose stated.
Accordingly the Plaintiff fails
the test for us to assume
jurisdiction on the claim.
We see
reliefs (3) and (4) as setting
out the particulars of the acts
of the government which the
Plaintiff alleges are excessive
entanglements in religion and
therefore invite a declaration
that such acts are
unconstitutional. These reliefs
raise enforcement issues and
this Court has a duty to
consider these claims regardless
of the words used or the manner
in which the reliefs are
couched. We will therefore
reject the A-G’s invitation to
throw out in limine the
Plaintiff’s case.
It is our
considered opinion that the acts
complained of i.e. the
construction of the National
Cathedral and the setting up of
the Hajj Board does not
contravene the guarantees of the
freedom of religion and
manifestation of beliefs of the
people of Ghana. The State is
free to lend support or aid to a
religious group if it deems such
beneficence to be for the good
of the nation.
Accordingly
we hold that the acts complained
of do not infringe the
constitutional provisions relied
on by the Plaintiff. In
conclusion, we do not see a
legitimate question of
constitutional interpretation
and enforcement such as would
justify our exercising our
original jurisdiction under
articles 2 (1) or 130(1) of the
Constitution. The Plaintiff’s
action fails. It is therefore
dismissed
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
Adjei-Ampofo
v. Accra Metropolitan Assembly &
Attorney-General (No.1)
[2007-2008] 1 SCGLR 610,
Federation of
Youth Association of Ghana
(FEDYAG) v. Public Universities
of Ghana & Others [2010] SCGLR
265
SAMUEL OKUDZETO ABLAKWA,DR.
EDWARD KOFI OMANE BOAMAH V THE
ATTORNEY-GENERAL,HON. JAKE
OTANKA OBETSEBI-LAMPTEY WRIT J1
/ 4 / 200922/05 /2012.
Kor v
Attorney- General & Justice
Douse [2015-2016] 1 SGLR 114 at
121
Mayor Agbleze
& 2 Ors v The Attorney General &
the Electoral Commission, Suit
No J1/28/2018 SC dated 28th
November 2018
Danso v.
Daaduam II & Another [2013-2014]
2 SCGLR 1570 at 1574,
Bimpong Buta
v General Legal Council & ors
[2003-2004] SCGLR 1200,
Edusei v
Attorney-General [1996-97] SCGLR
1.
REPUBLIC v. SPECIAL TRIBUNAL; EX
PARTE AKOSAH [1980] GLR 592-608
KOR v ATTORNEY-GENERAL & JUSTICE
DUOSE [2015- 2016] 1 SCGLR
National
Democratic Congress v Electoral
Commission [2001-2002]
SCGLR 954 @ 958
Adjei Ampofo
v. Attorney-General [2003-2004]
SCGLR 411,
Ghana Bar
Association v Attorney-General
and another (Abban Case)
[2003-2004] SCGLR 250 at 266 to
267
Tuffour v.
Attorney-General [1980] GLR 637
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ADINYIRA
(MRS.), JSC: -
COUNSEL
AZIZ BAMBA
FOR THE PLAINTIFF.
GODFRIED
YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL FOR THE
DEFENDANT WITH HIM MRS. HELEN
ZEWU, SOLICITOR GENERAL,
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY, GRACE OPPONG,
PRINCIPAL STATE ATTORNEY, MS.
YVONNE BANNERMAN, SENIOR STATE
ATTORNEY, MODESTA LEGIPO,
ASSISTANT STATE ATTORNEY AND
ORIEL ASARE BOATENG, ASSISTANT
STATE ATTORNEY.
ADINYIRA
(MRS.), JSC:
-
The Plaintiff
brings this action in his
capacity as a citizen of Ghana
to seek the interpretation
and/or enforcement of provisions
of the 1992 Constitution of
Ghana pursuant to articles 2(1)
and 130(1) thereof, claiming the
following reliefs:
1.
A
declaration that upon a true,
combined and contextual
interpretation of the letter and
spirit of the Constitution,
particularly articles 258(1)(a)
and (b) and 265 thereof, the
Government of Ghana does not
possess the legal authority to
grant or allocate any public
land, and consequently the
decision of the Government of
Ghana to allocate or grant 6.323
Ha of the public lands of Ghana
for the construction of the
Ghana National Cathedral to
serve as Ghana’s Mother Church,
is unconstitutional;
2.
A
declaration that by the core
values, basic structure and the
nature of the 1992 Constitution
of Ghana and upon a combined and
contextual interpretation of the
letter and spirit of the
Constitution, particularly
articles 21(1)(b)(c),
35(1)(5)(6)(a), 37(1) and/or 56
of the Constitution, it is
unconstitutional for the
Republic of Ghana through its
organs of Government,
ministries, agencies,
departments and/or authorized
representatives to purposely
aid, endorse, sponsor, support,
offer preferential governmental
promotion of, and/or be
excessively entangled in, any
religion or religious practice;
3.
A
declaration that the setting up
of a Hajj Board by the
Government of the Republic of
Ghana for the purpose of
coordinating, supporting and/or
aiding Ghanaian Muslims to
embark on the Muslim religious
pilgrimage to Mecca (“ Hajj’),
being one of the five pillars of
the religion of Islam, together
with the financial support the
Government of Ghana provides to
Muslims embarking on the Hajj,
amounts to the Government of
Ghana purposely aiding,
endorsing, supporting and/or
offering preferential
governmental promotion of,
and/or excessive entanglement of
the Republic of Ghana with, a
religion or religious practice,
and thus unconstitutional;
4.
A
declaration that the nature and
circumstances of the State’s
involvement or support for the
construction of the Ghana
National Cathedral to serve as
Ghana’s Mother Church, to be
used among others, for
presidential inaugurations,
amount to the Government of
Ghana endorsing, supporting
and/or offering preferential
governmental promotion of
religion, and/or excessive
entanglement of the Republic of
Ghana with religion, and thus
unconstitutional;
5.
Any
further or other orders as this
Honourable Court may deem fit.
The
Plaintiff’s case
In the
elucidation of his claim the
Plaintiff averred in paragraphs
6-10 of his amended statement of
case filed on 9/11/2018 as
follows:
6.
The instant
suit is a public interest
(constitutional) action wherein
the Plaintiff requests this
Honourable Court to conclude
that by the letter, spirit and
core values of the 1992
Constitution of Ghana, the
Republic of Ghana must
recognize, respect, safeguard
and promote the formal equality
of all religions practiced in
Ghana, and to that end, must not
confer benefits on one religion
to the exclusion of others.
Secondly, the Plaintiff submits
that Ghana is committed to the
value of “freedom of religion,
belief and conscience” which can
only be realized if the State
recognizes the formal equality
of all religions practiced in
Ghana.
7.
Thirdly, it
is the humble submission of the
Plaintiff that upon a careful
examination of the text and
spirit of the Constitution as
well as core values, principles
and concepts that undergird our
constitutional framework the
Republic of Ghana is a secular
state with no state or official
religion. Consequently, the
Republic of Ghana is
constitutionally required to
stay indifferent to or show
balance in dealing with all
faiths and non-faiths. A
fortiori, it is constitutionally
impermissible for the Government
of Ghana to confer any benefits,
advantages or privileges on one
religion to the exclusion of
other religions.
8.
But even if
the Republic of Ghana elects to
confer any benefits, advantages
or privileges on all religions
or belief systems it must do so
only under a law passed by
Parliament that is non-arbitrary
in purpose and scope, serves
legitimate State (and not
religious) purposes and/or must
not result in the excessive
entanglement of the State with
any religions or religious
practices.
9.
The Plaintiff
further submits that when the
Government(a symbol of national
unity):
a.
moots
the idea for the construction of
the Ghana National Cathedral to
serve as “Ghana’s Mother
Church”;
b.
describes the Ghana National
Cathedral Project as “a National
Cathedral for the state of
Ghana”;
c.
declares the construction of the
Ghana National Cathedral a
“priority among priorities”;
d.
allocates 6.323 Ha of prime
state land without due process
for the construction of the
Ghana National Cathedral to
serve as Ghana’s Mother Church
in an enclave reserved for State
buildings (symbols of national
unity) and at gargantuan cost to
the State without any
parliamentary approval;
e.
describes the Ghana National
Cathedral as a “legacy project”
to commemorate the 60th
Anniversary of Ghana’s
Independence;
f.
sets
up a Board of Trustees with
offices at the Jubilee House,
the seat of our President, to
coordinate the construction of
the Ghana National Cathedral;
g.
cuts
the sod for the construction of
the Ghana National Cathedral as
part of the programmes for the
60th Anniversary
celebrations of Ghana’s
Independence;
h.
unveils the architectural
drawings/designs of the Ghana
National Cathedral during the 61st
Anniversary of Ghana’s
Independence;
i.
stipulates that the Ghana
National Cathedral, a religious
symbol associated with a
particular religion, shall be
used, among others, for
“presidential inaugurations”,
which are national public events
meant for all Ghanaians
regardless of faith;
j.
seeks
to demolish state/public
buildings including bungalows of
superior courts judges, the
Judicial Training Institute, the
Ghana Scholarship Secretariat,
and other buildings belonging to
private persons, to make way for
the construction of the Ghana
National Cathedral;
k.
commits to build a “new
ceremonial route to the
Cathedral’s main entrance [to
be]…accessed through a generous
parkland created specifically as
a gift to the nation and its
visitors for leisure, recreation
and reflection.”
l.
the
Government of Ghana President
has conferred privileges and
benefits on one religion over
others; preferred, supported and
endorsed one religion over
others; and thus has crossed an
impermissible red line in the
relationship between the State
and Religion.
1O.
The
Plaintiff further submits that
when the Government of Ghana:
a.
sets up a
Hajj Board under the colour of
state authority to coordinate,
run and operate the Hajj, one of
the five pillars of Islam, and
provides public resources/ funds
to support or finance the
operations of the Hajj Board;
and
b.
offers
financial assistance to Muslims
embarking on the Hajj, when such
financial support contravenes
the teachings of Islam relating
to Hajj,
c.
the
Government of Ghana/President
has conferred privileges and
benefits on one religion over
others and/or has become
excessively entangled in Islam
by promoting, aiding and
facilitating breaches of
cardinal rules of Islamic law
relating to Hajj. It is the
respectful submission of the
Plaintiff that the above conduct
of the Government crosses an
impermissible red line in the
relationship between the State
and Religion.”
The
Defendant’s Case
The
Attorney-General [AG] submits
that the Plaintiff’s case does
not raise an issue for the
exercise of this Court’s
jurisdiction under Articles 2(1)
and 130(1) of the Constitution
and for that matter there is
absolutely no cause of action.
The AG
submits further that there is no
constitutional issue that is
legitimately raised around the
authority of the President to
allocate land for the
construction of the National
Cathedral by relying on article
257(1) that vests all public
lands in the President on behalf
of, and in trust for, the people
of Ghana. The A-G contends that
the President acted within his
constitutional right to allocate
public land for a specific
purpose in the public interest.
The AG also
contends that reliefs 3 and 4
relating to the setting up of a
Hajj Board and the construction
of a National Cathedral are the
only substantive reliefs sought
by the Plaintiff to be declared
as unconstitutional. The AG
however submits that the
Plaintiff has formulated the
reliefs in a manner without
identification of the specific
provisions that have been
allegedly breached by the State
and they therefore do not
disclose a cause of action.
Issues for
Determination
On the 1st
of November 2018, the parties
filed a joint memorandum of
issues and same were adopted by
this court as follows:-
a.
Whether or not Plaintiff’s case
raises an issue for the exercise
of this Court’s jurisdiction
under articles 2(1) and 130(1)
of the 1992 Constitution;
b.
Whether or not the Republic of
Ghana has a constitutional
obligation to recognize, respect
and/or promote the formal
equality of all religions and
belief systems practiced in
Ghana; and
c.
Whether or not the establishment
and operations of the Hajj Board
by the Government and Government
support for and/or involvement
in the Ghana National Cathedral
Project are unconstitutional or
amount to an unconstitutional
entanglement by the State with
religion.
ISSUE 1
Whether or not the Plaintiff’s
case raises an issue for the
exercise of this Court’s
jurisdiction under articles 2(1)
and 130(1) of the 1992
Constitution
Jurisdiction
of the Supreme Court
Articles 2(1)
and 130(1) (a) of the
Constitution provide:
2(1) A Person
who alleges that...
(a) an
enactment or anything contained
in or done under the authority
of that or any other enactment;
or
(b) any act
or omission of any person;
is
inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.
130(1)
Subject to the jurisdiction of
the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in.
(a)
all
matters relating to the
enforcement or interpretation of
this Constitution.
(b)
all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
The Plaintiff
in this case has turned to this
Court to seek the interpretation
and/or enforcement of certain
provisions of the 1992
Constitution of Ghana which turn
on the constitutional
relationship between the
government and religious bodies
in Ghana. In effect he is first
seeking interpretation of those
constitutional provisions and
then their enforcement.
The
Interpretative Jurisdiction of
the Supreme Court
The plaintiff
submits that this case is a
public interest action and is
therefore within this Court’s
jurisdiction by relying on our
decisions in such cases as
Adjei-Ampofo v.
Accra Metropolitan Assembly &
Attorney-General (No.1)
[2007-2008] 1 SCGLR 610,
Federation of Youth Association
of Ghana (FEDYAG) v. Public
Universities of Ghana & Others
[2010] SCGLR 265 and
Samuel Okudzeto Ablakwa &
Another v The Attorney-General &
Another.
The Plaintiff
did not reveal his religious
affiliation, but this action is
certainly of public interest as
they relate to issues that
affect the two major Ghana,
Christianity and Islam, However
public interest is not the sole
criteria for invoking the
interpretative jurisdiction of
the Supreme Court. The deciding
factor is whether there is a
real and genuine issue of
interpretation.
“It is now
trite law that no action can be
brought to interpret a clear and
unambiguous provisions of the
1992 Constitution.” per Atuguba
JSC in Kor v Attorney-
General & Justice Douse
[2015-2016] 1 SGLR 114 at 121.
The Supreme Court has
consistently guarded against the
invitation to assume
jurisdiction in a matter which
could clearly be discerned that
the plaintiff has attempted
cleverly, to create a case of
interpretation, whereas no issue
of interpretation genuinely
arises upon a careful scrutiny
of same.
A
constitutional issue is not
raised on account of a
plaintiff’s absurd, strained and
far-fetched understanding of
clear provisions in the
Constitution. For a person to
assert a manifestly absurd
meaning contrary to the very
explicit meaning and effect of
clear words in the Constitution
does not mean that a genuine
issue of interpretation of some
relevant constitutional
provision has arisen. See our
recent decision in Mayor
Agbleze & 2 Ors v The Attorney
General & the Electoral
Commission, Suit No J1/28/2018
SC dated 28th
November 2018, unreported.
The Supreme
Court has also guarded against
enforcement of human rights
actions masquerading as
interpretation cases. It
has also rejected the invocation
of its jurisdiction, which turns
the highest court of this land,
into a forum for the original
adjudication of ordinary civil
disputes. See Danso v.
Daaduam II & Another [2013-2014]
2 SCGLR 1570 at 1574, Bimpong
Buta v General Legal Council &
ors [2003-2004] SCGLR 1200,
Edusei v Attorney-General
[1996-97] SCGLR 1.
The real test
is whether the words in the
constitutional provisions sought
to be interpreted are ambiguous,
imprecise, and unclear and
cannot be applied unless
interpreted. If it were
otherwise, every conceivable
case may originate in the
Supreme Court by the stretch of
human ingenuity and the
manipulation of language to
raise a tangible constitutional
question. Practically every
justifiable issue can be spun in
such a way as to embrace some
tangible constitutional
implication. The Constitution
may be the foundation of the
right asserted by a plaintiff,
but that does not necessarily
provide the jurisdictional
predicate for action in the
Supreme Court.
Does a Real,
Genuine Interpretative Issue
Arise in this Case?
We now
examine whether this case
discloses a genuine or real
interpretative issue and whether
the original interpretative
jurisdiction of this Court has
been properly invoked.
The Plaintiff
submits in paragraph 9 of legal
arguments filed on 19 November
2018 that:
“…the
Plaintiff’s action raises
genuine and substantial
questions of interpretation
within the context of the
decisions in
EX-PARTE
AKOSAH
(1980) GLR 592 C.A
and
KOR v ATTORNEY-GENERAL & JUSTICE
DUOSE
[2015- 2016] 1 SCGLR 114.The
pith and substance of the
Plaintiff’s case is captured in
paragraphs 6-10 of his Amended
Statement of Case filed on 9th
November 2018. It is
respectfully submitted that the
correctness or validity of the
legal propositions advanced by
the Plaintiff at the said
paragraphs 6-10 of his Amended
Statement of Case cannot be
determined without an
ascertainment of the meaning,
legal effect and/or scope of
application of numerous
provisions of the Constitution
including
articles17,21(1)(b)(c),
35(1)(5)(6)(a), 37(1), 56, 58(1)
and (2), 258(1) and (2), and
265. And as the Plaintiff’s
discussion of Issues 2 and 3
will show, the parties disagree
on the true and proper
construction of some of these
constitutional provisions,
particularly, articles 17, 21
and 56 of the Constitution.
We will
therefore examine
articles 17, 21(1)(b)(c),
35(1)(5)(6)(a), 37(1), 56, 58(1)
and (2), 258(1) and (2), and
265, to determine
whether there is ambiguity,
imprecision or lack of clarity
in these provisions calling for
a genuine interpretation or
enforcement, and if there has
been a breach of any of them by
the establishment of the Hajj
Board and the idea of
constructing a National
Cathedral.
Article 17(2)
which is of relevance in quite
mandatory terms endorses a very
important element of secularism
– equality of all persons of any
religious persuasion provides:
“A
person shall not be
discriminated against on grounds
of gender, race, ethnic origin,
religion, creed or social or
economic status”
Article 21(1)
(b) and (c)
provision dealing with general
fundamental freedoms of the
citizen including religious
freedom provides:
“(1) All persons shall have
the right
to-
(b) freedom of thought,
conscience and belief which
shall include academic freedom
(c) freedom
to practice any religion and to
manifest such practice”.
Article 35(1)
(5)
and 37 (1) are provisions
under Chapter Six of The
Directive Principles of State
Policy.
Article
35(1) sets out the political
objectives of the Constitution
for the State to promote the
integration of the people by
providing:
35. (1)
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.
Article 35(5)
also sets out the duty of the
State to promote the integration
of the peoples of Ghana and
prohibits discrimination in
terms of Article 21(1) (b) by
providing:
(5) The State
shall actively promote the
integration of the peoples of
Ghana and prohibit
discrimination and prejudice on
the grounds of place of origin,
circumstances of birth, ethnic
origin, gender or religion,
creed or other beliefs.
Article 37(1)
reinforces the objectives and
duties of the state by providing
37. (1)
The State shall endeavor to
secure and protect a social
order founded on the ideals and
principles of freedom, equality,
justice, probity and
accountability as enshrined in
Chapter 5 of this Constitution;
and in particular, the State
shall direct its policy towards
ensuring that every citizen has
equality of rights, obligations
and opportunities before the
law.
Article 56
prohibits Parliament from
enacting laws imposing one
religion or a political party on
the people of Ghana by providing
as follows:
56. “Parliament shall have no
power to enact a law to
establish or authorize the
establishment of a body or
movement with the right or
power to impose on the people of
Ghana a common program or set of
objectives of a religious or
political nature”.
[Emphasis supplied]
Articles
58(1) and (2), 258(1) and (2),
and 265
refer to the executive authority
of the President, the functions
and authority of the Lands
Commissioner in respect of State
and public lands. These are set
out in extenso below.
Article 58
(1):
The executive authority of
Ghana shall vest in the
President and shall be exercised
in accordance with the
provisions of this Constitution.
(2)The
executive authority of Ghana
shall extend to the execution
and maintenance of this
Constitution and all laws made
under or continued in force by
this Constitution.
Article 258
(1) (a):
There
shall be established a Lands
Commission which shall, in co-
ordination with the relevant
public agencies and governmental
bodies, perform the following
functions– (a) on behalf of the
Government, manage public lands
and any lands vested in the
President by this Constitution
or by any other law or any lands
vested in the Commission;
Article 265:
Except as otherwise provided in
this constitution or in any
other law which is not
inconsistent with this
Constitution, the Lands
Commission shall not be subject
to the direction or control of
any person or authority, in the
performance of its functions.
“All public
lands in Ghana shall be vested
in the President on behalf of
and in trust for, the people of
Ghana.”
We do not
find any ambiguity in the above
constitutional provisions which
are clear and unambiguous.
The constitutional
provisions as articulated in
articles 17, 21(1) (b) (c),
35(1) (5) (6) (a), 37(1), 56,
guarantee freedom of religion in
no uncertain terms. The wordings
are explanatory, simple and easy
to appreciate their import and
admit of no ambiguity.
The combined
effect of the letter and spirit
of these provisions guarantees
the fundamental freedoms of the
citizen including the right to
practice any religion and to
manifest such practice. By the
letter and spirit of these
provisions religious pluralism
and diversity which are features
of a secular state are clearly
recognised and thereby
discrimination on any ground is
prohibited. By the Directive
Principles of State Policy in
articles 35 and 37, the State is
to actively promote, within
reasonable limits; and
facilitate the aspiration and
opportunities by every citizen
to exercise his fundamental
freedoms as a way of ensuring
national cohesion.
In respect of
articles 258(1) and (2), and
265, which form the basis of
the Plaintiff’s claim in Relief
1, the provisions are also clear
and unambiguous and the
President in whom all public
lands are vested by virtue of
Article 257(1) can deal directly
with public lands through the
appropriate Ministry as was done
in this case.
From the
foregoing, we do not find the
existence of a genuine issue for
interpretation in the
constitutional provisions relied
on for the institution of an
action under articles 2(1) and
130(1). The Plaintiff’s
invitation is therefore refused.
Issue B
From the
foregoing issue b. does
not arise.
Issue C
“Whether or
not the establishment and
operations of the Hajj Board by
the Government and Government
support for and/or involvement
in the Ghana National Cathedral
Project are unconstitutional or
amount to an unconstitutional
entanglement by the State with
religion”
Issue C
definitely raises enforcement
issues. Which we pose as
follows:
Does the
Plaintiff’s suit nevertheless
raise any issues of
constitutional enforcement
within the terms of article 2(1)
and 130(1) (a)?
It is the
Plaintiff’s case that the
setting up of a Hajj Board to
facilitate the pilgrimage of
Muslims to Mecca and the
provision of a piece of land for
the construction of a National
Cathedral (which would serve
public purposes including State
thanksgiving services, State
funerals etc among other things)
are excessive entanglement by
the State in religion and also
amount to unequal and unfair
treatment of religions in Ghana
and these acts contravenes the
constitutional principles of
equality or neutrality of
religion.
Articles 2
(1) and 130(1) empower the
Supreme Court to ensure
compliance of the Constitution.
Accordingly, a person who
invokes the Court’s jurisdiction
must demonstrate clearly that
the acts or omission complained
of are inconsistent with the
particular provisions of the
Constitution he alleges have
been contravened.
The A-G
submits that reliefs 3 and 4 are
the only substantive reliefs
sought by the Plaintiff to be
declared as unconstitutional.
The A-G however submits that the
Plaintiff did not identify the
specific provisions that have
been allegedly breached by the
state by the proposal to build a
National Cathedral and the
setting up of a Hajj Board. The
A-G contends that the State has
not engaged in acts that should
lead the Plaintiff to conclude
that the State is excessively
entangled with religion.
It has been
the position of this Court that:
“where an act
or omission of any person is
challenged under article 2 of
the 1992 Constitution, such an
act or omission must be shown to
have taken place, and it must be
shown that such act or omission
falls foul of a specific
provision of the Constitution,
or at the very least, the spirit
of an actual provision.”
Per Wiredu JSC (as he then was)
in National Democratic
Congress v Electoral Commission
[2001-2002] SCGLR 954 @
958.
Similarly,
Sophia Akuffo JSC (as she then
was) in the case of Adjei
Ampofo v. Attorney-General
[2003-2004] SCGLR 411,
reiterated this position of the
law as follows at page 418:
‘’And
although we wholeheartedly
acknowledge that a Constitution,
as a living document, has in
addition to its written words,
also a spirit, when called upon
to exercise our jurisdiction to
interpret or enforce the
constitution, we must first be
referred to a specific provision
therein.’’
Another way
of looking at the issue is found
in the dictum of Bamford-Addo
JSC in Ghana Bar
Association v Attorney-General
and another (Abban Case)
[2003-2004] SCGLR 250 at 266 to
267 which is as
follows:
“In deciding
the issue of jurisdiction,
matters to take into
consideration include the
statute which invests
jurisdiction as well as the true
nature of the claim having
regard to the pleadings, issues
and reliefs sought or the actual
effect of the reliefs,
regardless of words used or the
manner in which the claims and
reliefs are couched.”
Following the
Abban Case we
proceed to examine the reliefs
sought by the Plaintiff to
determine whether our
enforcement jurisdiction has
been properly invoked.
Relief (1)
Under the
first relief which turns on
articles 258(1) and (2), and
265, the claim by the Plaintiff
is that the government has no
authority to allocate any public
land to the churches to
construct the National
Cathedral. As indicated earlier,
the said provisions are clear
and unambiguous and need no
interpretation. However the
relevant constitutional
provision dealing with public
lands is Article 257.
Article 257
(1) unequivocally states:
“All public lands in Ghana shall
be vested in the President on
behalf of and in trust for, the
people of Ghana.” Further,
article 257(5) gives the right
to the government to vest in
itself of any land required in
the public interest for public
purposes. These prime lands that
the government allocated for the
purpose of building the National
Cathedral are already public
lands vested in the President by
virtue of Article 257 (1).
The Lands
Commission though an independent
body is to work “in
co-ordination with the relevant
public agencies and governmental
bodies” in managing public lands
(Article .258 (1). The Plaintiff
has not demonstrated that the
allocation of the land was done
without the involvement of the
Lands Commission. The only
evidence proffered is that it is
the Minister responsible for
Lands and Natural Resources who
has been handling and
communicating on matters
relating to the land. Without
any evidence to the contrary we
presume everything was regularly
done by the President acting
through the appropriate ministry
to allocate the land in question
for the construction of the
National Cathedral, which when
completed was to be used for
public purposes by all
denominations
From the
foregoing we do not find any
constitutional issue that is
legitimately raised around the
constitutional authority of the
President to allocate the land
for the purpose stated.
Accordingly the Plaintiff fails
the test for us to assume
jurisdiction on the claim.
Reliefs (2),
(3), and (4)
can be considered together
It is evident
from the wording of his relief
(2),that the Plaintiff relies
on Articles 17, 21(1)
(b) (c), 35(1) (5) (6) (a),
37(1), 56, and invites this
Court to make a declaration
that:
“It is
unconstitutional for the
Republic of Ghana through its
organs of Government,
ministries, agencies,
departments and/or authorized
representatives to purposely
aid, endorse, sponsor, support,
offer preferential governmental
promotion of, and/or be
excessively entangled in, any
religion or religious practice.”
We see
reliefs (3) and (4) as setting
out the particulars of the acts
of the government which the
Plaintiff alleges are excessive
entanglements in religion and
therefore invite a declaration
that such acts are
unconstitutional. These reliefs
raise enforcement issues and
this Court has a duty to
consider these claims regardless
of the words used or the manner
in which the reliefs are
couched. We will therefore
reject the A-G’s invitation to
throw out in limine the
Plaintiff’s case.
Are the acts
complained of excessive
entanglement by the state in
religion and hence
unconstitutional?
Before
embarking on this task we are
mindful of the oft-quoted dictum
of the Court of Appeal sitting
as the Supreme Court in
Tuffour v. Attorney-General
[1980] GLR 637, that a
National Constitution “mirrors
the history of the people” that
reflect “the basic aspirations
of the people” for which the
Constitution was enacted.
The 2010
Population and Housing Census
(Summary Report of Final
Results) gives the statistics of
religious affiliation in Ghana
as follows: Christianity as the
dominant faith at 71.2 percent
of the population with Islam at
17.6 percent and traditional
religion at 5.2 percent. Only
5.2 percent reported having no
religious affiliations. There
are other smaller religious
groups including Eckankar,
Hinduism, Buddhism and Bahai
Faith, making up the remaining
0.8 percent of the population.
Historically,
the state in Ghana recognized
the existence and importance of
religious identity and
affiliation in the Ghanaian
society and encouraged their
open and lawful expression even
at national events. There has
been collaboration between the
state and religion in Ghana by
the establishment of educational
institutions, medical facilities
and agricultural projects by all
groups of Christian and other
faiths in the country and thus
contributing immensely to the
socio-economic growth of the
country. In some remote areas of
Ghana, it is the religious
bodies that pioneered the
establishment of schools and
health facilities before the
state recently ventured in those
areas.
The church
has been a transforming agent,
contributing to the development
of the moral character of people
and impartation of knowledge.
While acknowledging that there
are other pressing national
issues that deserved attention
and resources, there are and
will always be pressing needs
for medical and educational
facilities and infrastructures
such as roads, electricity and
good drinking water. The reasons
and the need for establishing
the Hajj Board, and the
construction of the National
Cathedral cannot be overlooked,
given the diversity and
peculiarities of the various
religious groups and the
heterogeneous nature of the
Ghanaian society.
The
Constitution of the 4th
Republic, while secular in
nature, affirms and maintains
the historical, cultural, and
religious or atheist character
of Ghanaian society.
Obviously secularism in the
context of the Ghana
Constitution must be understood
to allow, and even encourage
State recognition and
accommodation of religion and
religious identity. The
Plaintiff alleges the
setting up of ‘a Board of
Trustees with offices at the
Jubilee House to co-ordinate the
construction of the National
Cathedral’ is an example of the
government crossing ‘an
impermissible line in the
relationship between the state
and religion’. We do not see
this act as an excessive
entanglement by the state, as
the office can be relocated.
As noted
earlier the Constitution does
not specifically prohibit the
Government from supporting,
assisting or cooperating
with religious groups. What the
letter and spirit of the
constitutional provisions
forbids is the state hindering
freedom of worship, religion and
belief in the country and
discrimination on grounds of
religion The Constitution
specifically prohibits
Parliament from enacting a law
“to impose on the people of
Ghana a common program or set of
objectives of a religious or
political nature”.
The
Constitution guarantees the
equal right of all persons to
subscribe to the religious
belief and faith of their own
choosing without interference or
imposition by the State. The
State is thus prohibited from
discriminating against any
person on grounds of religion or
creed or the establishment of a
State religion, and also
preventing the free expression
of religious orientations.
In this
respect the benchmark for
determining whether any act or
omission of the President or any
other authority in Ghana
infringes any of the
constitutional provisions is
whether the actor omission
complained of, prevents any
person resident in Ghana to
practice any religion or belief
of his choice, or discriminates
against any person with
different religious persuasion.
It is our
considered opinion that the acts
complained of i.e. the
construction of the National
Cathedral and the setting up of
the Hajj Board does not
contravene the guarantees of the
freedom of religion and
manifestation of beliefs of the
people of Ghana. The State is
free to lend support or aid to a
religious group if it deems such
beneficence to be for the good
of the nation.
We rather see
the government’s plan to build a
National Cathedral and the
setting up of the Hajj Board as
the desire of the state to
provide for social cohesion and
unity in a country where 88.8
percent of its population is
predominantly Christian and
Islamic. We find this to be in
tune with the political and
social objectives as set out in
the Directive Principles of
State Policy under the
provisions of articles 35 and 37
of the Constitution, referred to
by the Plaintiff. We take note
that the Government has
maintained a consistent theme
about the unifying effects of
the Cathedral on Ghanaian
Christians. So far its
contribution is to provide land
for the cathedral, and the
actual construction to be
sponsored and financed by the
churches.
Counsel for
the Plaintiff contends further
that by his understanding of the
relevant constitutional
provisions, the Government is
supposed to be neutral but if
the Government is to assist or
support religious groups then
the support should be extended
to all known religious groups in
the country. In our opinion, the
Plaintiff by this submission is
making a statement of a case for
‘minority’ religions and a
request for equal treatment by
the government for all
religions.
If this is a
claim for minority rights then
it is misconceived as nowhere in
his brief has the Plaintiff
alleged a request by any
specified religious group for
any form of assistance which has
been denied by the State. The
Plaintiff does not allege or
allude to any action, policy or
legislation by the State which
seeks to project one religion
over the others. In our
considered opinion, lending a
helping hand to one religious
community does not mean a denial
or preclusion of similar or
other support/ assistance to
another in similar
circumstances. This support to
the Christians and Moslems is
not necessarily discriminatory
and would not necessarily have
the effect of indoctrinating the
citizens with a particular
religion. These acts by the
government are to satisfy the
particular needs of these
religious groups which
ultimately are for the public
good and interest.
Accordingly
we hold that the acts complained
of do not infringe the
constitutional provisions relied
on by the Plaintiff.
In conclusion, we do not see a
legitimate question of
constitutional interpretation
and enforcement such as would
justify our exercising our
original jurisdiction under
articles 2 (1) or 130(1) of the
Constitution. The Plaintiff’s
action fails. It is therefore
dismissed.
S. O.
A. ADINYIRA (MRS.)
(JUSTICE OF
THE SUPREME COURT)
DOTSE, JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
J. V. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
YEBOAH, JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
ANIN YEBOAH
(JUSTICE OF
THE SUPREME COURT)
GBADEGBE,
JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
AKOTO-BAMFO
(MRS.), JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
V.
AKOTO-BAMFO (MRS.)
(JUSTICE OF
THE SUPREME COURT)
BENIN, JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
MARFUL-SAU,
JSC:-
I agree with
the conclusion and reasoning of
my sister Adinyira, JSC.
S. K. MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
AZIZ BAMBA
FOR THE PLAINTIFF.
GODFRIED
YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL FOR THE
DEFENDANT WITH HIM MRS. HELEN
ZEWU, SOLICITOR GENERAL,
SYLVESTER WILLIAMS, CHIEF STATE
ATTORNEY, GRACE OPPONG,
PRINCIPAL STATE ATTORNEY, MS.
YVONNE BANNERMAN, SENIOR STATE
ATTORNEY, MODESTA LEGIPO,
ASSISTANT STATE ATTORNEY AND
ORIEL ASARE BOATENG, ASSISTANT
STATE ATTORNEY.
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