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Constitutional law -
1992 Constitution -
Interpretation - articles 2(1)
and 130(1) - articles 258(1)(a)
and (b) and 265 – Whether or not
the Government of Ghana does not
possess the legal authority to
grant or allocate any public
land - Whether or not 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 - Whether or
not 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 -
Whether or not the President
acted within his constitutional
right to allocate public land
for a specific purpose in the
public interest.
HEADNOTES
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
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 and 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
HELD
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 & Another v
The Attorney-General & Another.
WRIT J1 / 4 /
200922/05 /2012
Kor v Attorney-
General & Justice Douse
[2015-2016] 1 SGLR 114
Mayor Agbleze & 2 Ors v The Attorney
General & the Electoral
Commission, Suit No J1/28/2018
SC dated 28th
November 2018, unreported.
Danso v. Daaduam II & Another
[2013-2014] 2 SCGLR 1570
Bimpong Buta v General Legal Council &
ors [2003-2004] SCGLR 1200,
Edusei v Attorney-General [1996-97]
SCGLR 1
EX-PARTE
AKOSAH (1980) GLR 592 C.A
KOR v ATTORNEY-GENERAL & JUSTICE
DUOSE [2015- 2016] 1 SCGLR 114.
National Democratic Congress v
Electoral Commission [2001-2002]
SCGLR 954
Adjei Ampofo v. Attorney-General
[2003-2004] SCGLR 411
Ghana Bar Association v
Attorney-General and another
(Abban Case) [2003-2004] SCGLR
250
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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