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Constitutional law –
Interpretation - Supreme Court
- Invoking the original
jurisdiction - Creation of
District Assemblies - Article
241 (2) and 106 (1) of the 1992
Constitution – Whether or not
section 1(2) of the Local
Government Act, 1993 (Act 462)
is inconsistent with article 241
(2) and 106 (1) of the 1992
Constitution and is consequently
void - Whether or not it is the
representative of the people
through Parliament that was
vested with the power of
Creation of District Assemblies
- Whether or not the power
vested in Parliament under the
1992 Constitution to make law
for redrawing the boundaries of
districts or for reconstituting
districts in Ghana can be
validly delegated by it to other
institutions - Whether or not
section 3(1) and (2) of the
Local Government Act, 1993 (Act
462) which grants powers to the
Minister of Local Government to
establish an Assembly for each
district, municipality and
metropolis is consistent with
articles 241(2) and 106(1) of
the 1992 Constitution.
HEADNOTES
The
plaintiff’s writ invoking the
original jurisdiction of this
Court, filed was originally
issued against the
Attorney-General, the Speaker of
Parliament, the Electoral
Commission and the Minister of
Local Government. however, this
Court struck out the Speaker of
Parliament and the Minister of
Local Government, relying on
article 88(5) of the 1992
Constitution. Accordingly, the
reliefs set out in the
plaintiff’s writ are now against
the Attorney-General seeking a
declaration that section 1(2) of
the Local Government Act, 1993
(Act 462) is inconsistent with
article 241 (2) and 106 (1) of
the 1992 Constitution and is
consequently void – Ordering and
restraining the President from
making any Executive instrument
pursuant to section 1 (2) of the
Local Government Act, 1993 (Act
462) -
HELD
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution.
Local
Government Act, 1993 (Act 462)
CASES
REFERRED TO IN JUDGMENT
BOOKS
REFERRED TO IN JUDGMENT
Dictionary
(current English, 4th
edition)
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH JSC;
COUNSEL
NENE
AMEGATCHER [WITH HIM MRS.
VICTORIA BATH, DOMINIC BRENYA
OTCHERE, KWASI KELLY DELATA AND
MELLESA AMARTEIFIO] FOR THE
PLAINTIFF.
SYLVESTER
WILLIAMS FOR THE 1ST
DEFENDANT.
JAMES QUASHIE – IDUN [WITH HIM
ANTHONY DABI FOR THE 2ND
DEFENDANT
___________________________________________________________
J U D G M E N T
DR. DATE-BAH JSC;
The plaintiff’s writ invoking
the original jurisdiction of
this Court, filed on 6th
February, 2012, was originally
issued against the
Attorney-General, the Speaker of
Parliament, the Electoral
Commission and the Minister of
Local Government. By a
ruling on 9th May,
2012, however, this Court struck
out the Speaker of Parliament
and the Minister of Local
Government, relying on article
88(5) of the 1992 Constitution.
Accordingly, the reliefs set out
in the plaintiff’s writ are now
against the Attorney-General as
first defendant and the
Electoral Commission as second
defendant. Those reliefs
are as follows:
i.
“A declaration that section 1(2)
of the Local Government Act,
1993 (Act 462) which provides
that the President may declare
an area a district and assign a
name to the district by
executive instrument is
inconsistent with article 241
(2) and 106 (1) of the 1992
Constitution and is consequently
void.
ii.
An order restraining the
President from making any
executive instrument pursuant to
section 1 (2) of the Local
Government Act, 1993 (Act 462)
or pursuant to any other section
or provision in any enactment.
iii.
A declaration that section 1 (3)
and section 2 of the Local
Government Act, 1993 (Act 462)
which provides that the
President shall in the exercise
of the power under subsection 2
(a) of section 1 of the Local
Government Act, 1993 (Act 462)
direct the Electoral Commission
and or request the Electoral
Commission to review areas of
authority of unit committees,
town, area, zonal, urban and
sub-metropolitan district
councils and districts,
municipal and metropolitan
assemblies and make such
recommendations as it considers
appropriate to the President is
inconsistent with articles 45,
46, 241 (2) and 106 (1) of the
1992 Constitution and is
consequently void.
iv.
An order restraining the
Electoral Commission from acting
in any way whatsoever pursuant
to directions made by the
President in furtherance of
section 1 (3) of the Local
Government Act 1993 (Act 462).
v.
A declaration that sections 3
(1) and 2 of the Local
Government Act, 1993 (Act 462)
which provides that the Minister
shall, by legislative
instrument, establish an
Assembly for each district,
municipality and metropolis
which, in accordance with clause
(3) of Article 241 of the
Constitution shall constitute
the highest political authority
in the district and also provide
for what shall be specified in
the said legislative instrument
respectively, are inconsistent
with article 241 (2) and 106 (1)
of the 1992 Constitution and are
consequently void.
vi.
An order restraining the
Minister responsible for Local
Government or any other
Minister, from laying in
Parliament any legislative
instrument made pursuant to
section 3 of the Local
Government Act, 1993 (Act 462)
or pursuant to any other section
or provision in any enactment or
if laid prior to the
commencement of this action, a
mandatory injunction directed at
the Minister responsible for
Local Government to withdraw any
such Legislative Instrument from
Parliament pending the hearing
and determination of the
constitutionality of the
Instrument.
vii.
An order restraining the Speaker
of Parliament of the Republic of
Ghana from permitting to be laid
in Parliament for the
consideration of Parliament by
the Minister responsible for
Local Government or any other
Minster, any legislative
instrument made pursuant to any
other section or provision in
any enactment or if laid prior
to the commencement of this
action, a mandatory injunction
directed at the Speaker of
Parliament to cause to be
withdrawn any such Legislative
Instrument from Parliament
pending the hearing and
determination of the
constitutionality of the
Instrument.
viii.
Any further order(s) that this
Honourable Court may deem fit.”
In the light of these reliefs,
it is germane to set out the
provisions of section 1 of the
Local Government Act, 1993 (Act
462):
“Section 1—Creation of
Districts.
(1) The districts in existence
immediately before the coming
into force of the 1992
Constitution shall continue as
districts for the purposes of
this Act.
(2) The President may by
executive instrument—
(a) declare any area within
Ghana to be a district;
(b) assign a name to the
district.
(3) The President shall in the
exercise of his powers under
sub-section (2) (a) direct the
Electoral Commission to make
appropriate recommendations.
(4) The Electoral Commission
shall, before making
recommendations to the President
under sub-section (3), consider
factors including—
(a) in the case of—
(i) a district, that there is a
minimum population of
seventy-five thousand people;
(ii) a municipality, that the
geographical area consists of a
single compact settlement and
that there is a minimum of
ninety-five thousand people;
(iii) a metropolis, that there
is a minimum of two hundred and
fifty thousand people; and
(b) the geographical contiguity
and economic viability of the
area, namely, the ability of an
area to provide the basic
infrastructural and other
developmental needs from the
monetary and other resources
generated in the area.”
Article 241(1) and (2) of the
1992 Constitution provide as
follows:
“(1) For the purposes of local
government, Ghana shall be
deemed to have been divided into
the districts in existence
immediately before the coming
into force of this Constitution.
(2) Parliament may by law make
provision for the redrawing of
the boundaries of districts or
for reconstituting the
districts”
Article 106(1) of the
Constitution in turn states
that:
“(1) The power of Parliament to
make laws shall be exercised by
bills passed by Parliament and
assented to by the President.”
Based on these legal provisions,
the plaintiff’s argument in
support of her writ is that the
power to create districts is
vested in Parliament by the
Constitution, and not the
President. This power is
to be exercised by Parliament by
making laws. The mode of
making this law, in her view,
should, as prescribed by article
106(1) of the 1992 Constitution,
be by a bill passed by
Parliament and assented to by
the President. She
contends, therefore, that
section 1(2) of the Local
Government Act, 1993 (Act 462)
by giving power to the President
to create a district breaches
article 241(2) of the
Constitution and is therefore
void.
She further elaborates on the
rationale for her position as
follows in her Statement of
Case:
“12. The
plaintiff further avers that
when one uses the purposive
approach to interpretation, one
will arrive at the same
conclusion that Parliament is
responsible for creating
districts. The reason
being when one contrasts the
limited role of Parliament in
subsidiary legislation with the
role of Parliament in making
law, it is clear that the
framers of the 1992 Constitution
wanted the people through their
representatives to create
districts and Parliament may in
its process of making law accept
and consider memorandum from the
public.
13.
A review of the history of the
creation of districts in Ghana
over the past forty years will
reveal that it is the
representative of the people
through Parliament that was
vested with the power and not
the President. Paragraph
658 of the Memorandum on the
Proposals for a Constitution for
Ghana, 1968 recommended that “considering
the several factors to be taken
into account in determining the
area of a District Council, we
propose that this should be left
to Parliament to determine the
areas of District Councils by or
under an Act of Parliament which
should as far as possible take
account of factors such of (sic)
ethnicity, demography,
economic viability and
geographical contiguity.”
Article 156(3) of the 1969
Constitution adopted the
proposals by providing that “Subject
to the provisions of this
article, Parliament may, by or
under an Act of Parliament,
establish rural, urban,
municipal or other local
government councils or area
committees”.
14.
Similarly, paragraph 269 of the
Proposals of the Constitutional
Commission for Constitution for
the Establishment of a
Transitional (Interim) National
Government for Ghana, 1978
stated that “We have not
proposed provisions on the
criteria for determining the
size, population and boundaries
of the areas of authority for
local government councils.
We consider that this is a
subject most suitable for
determination by Parliament by
or under an Act of Parliament.”
Article 182(1) of the 1979
Constitution also adopted the
proposals by providing that
“For the purposes of local
government in Ghana there shall
be established by an Act of
Parliament district and other
local government councils.”
15.
Also in paragraph 337(2) of the
Report of the Committee of
Experts (Constitution) on
Proposals for a Draft
Constitution of Ghana, 1991, the
committee proposed that
“Parliament should by law make
provision for the alteration of
the boundary or name of a
District or its abolition”
This recommendation resulted in
the provisions made in Article
241(2) to the effect that “Parliament
may by law make provision for
the redrawing of the boundaries
of districts or for
reconstituting the districts.”
16.
The philosophical reason for the
constitutional provision
allowing Parliament to make laws
for the demarcation of local
government and not the President
under Article 241(2) of the
Constitution is because of the
fact that a President can abuse
such a power by creating local
government areas for partisan
political purposes without the
necessary safeguards which
Parliament is equipped to
undertake.”
The first defendant vigorously
refutes these arguments of the
plaintiff. He contends
that the plaintiff’s contention
that Parliament is required to
create districts is incorrect,
and that rather what the
Constitution enjoins Parliament
to do is to make provision for
the redrawing of boundaries of
districts or the reconstitution
of districts. He
accordingly argues that on a
true and proper interpretation
of the 1992 Constitution and
sections 1(2), 1(3), 2, and 3(1)
and (2) of the Local Government
Act, 1993 (Act 462), these
provisions are not inconsistent
with article 241(2) of the 1992
Constitution.
In response to the plaintiff’s
resort to the history of the
provisions enabling the
establishment of districts in
Ghana, the first defendant also
gives his account of the history
as follows (in his Statement of
Case):
“9.
A critical (not a chronological)
review of the history of the
creation of districts in Ghana
since its independence will
reveal both continuities and
discontinuities in the legal
formulation of the vesting of
the power to bring new districts
into being in particular persons
and/or institutions.
10,
The Ghana (Constitution) Order
in Council, 1957 in Article
65(2) maintained existing Local
Government Councils that were
provided for by law (Ordinances
of 1953) and subsequent Councils
were to be by provision
made in that regard. The
1960 Republican Constitution did
not expressly provide for
district Administrative Units.
However, the Constituent
Assembly in
The Regions of Ghana Act, 1960
in section 3 specified existing
Councils in the first column of
the first Schedule of the Act as
sub-regional Units under their
respective regions. The
said Units were constituted by
statutory instruments between
1952 and 1960.
11.
A departure was made in the 1969
Constitution in Article 156(3)
where Parliament was expressly
enjoined by an Act of Parliament
to establish
rural, urban, municipal and
other local government councils
and area committees. The
1979 Constitution similarly, in
article 182(1) provided for
Parliament to by an Act of
Parliament establish
district and other local
government councils.
12.
The formulation in the 1992
Constitution in Article 241(2),
taking its source from paragraph
337(2) of the Committee of
Experts (Constitution) proposals
of 1991, (departing from the
1969 and 1979 constitutional
formulations) enjoins Parliament
to by law make provision for
the redrawing or reconstitution
of districts.
13.
It is submitted that to
establish a district by an
Act of Parliament as contained
in the 1969 and 1979
Constitutions is not the same as
to make provision for
the redrawing of district
boundaries and reconstitution of
districts. According to
the Oxford Advanced Learner’s
Dictionary (current English, 4th
edition) the meaning of the word
establish is to set
something up on a permanent or
firm basis while the phrase
make provision for means
a preparation that is made to
meet future needs or in
case something happens.
In the latter case therefore
Parliament enacted the Act to
create districts etc.
14.
There is no philosophical reason
that can be gleaned from any of
the background documents to the
framing of Article 241(2) in the
1992 Constitution to the effect
that it was to forestall
possible abuse by a President
for partisan political purposes.
Judicial notice can be taken of
the fact that the Government of
the National Democratic Congress
(NDC) created a number of
districts between 1993 and 2000
and lost national elections.
Likewise, the New Patriotic
Party Government between 2004
and 2007 created 70 districts
and municipalities and lost
elections in 2008.”
After the exchange of Statements
of Case between the plaintiff
and the first defendant, the
parties agreed on the following
Memorandum of Issues:
1.
“Whether or not section 1(2) of
the Local Government Act, 1993
(Act 462) which confers powers
on the President to create or
declare an area a district and
assign a name to it by Executive
Instrument is not inconsistent
with article 241(2) and 106(1)
of the 1992 Constitution.
2.
Whether or not the power vested
in Parliament under the 1992
Constitution to make law for
redrawing the boundaries of
districts or for reconstituting
districts in Ghana can be
validly delegated by it to other
institutions.
3.
Whether or not sections 1(3) and
2 of the Local Government Act,
1993 (Act 462) which purport to
give power to the President to
direct and or request the
Electoral Commission to review
areas of authority of district,
municipal and metropolitan
assemblies, town , area, zonal,
urban and sub-metropolitan
district councils, and unit
committees do not violate
articles 45, 46, 241(2) and
106)(1) of the 1992
Constitution.
4.
Whether or not section 3(1) and
(2) of the Local Government Act,
1993 (Act 462) which grants
powers to the Minister of Local
Government to establish an
Assembly for each district,
municipality and metropolis is
consistent with articles 241(2)
and 106(1) of the 1992
Constitution.
5.
Whether or not any acts done or
being done pursuant to sections
1(2), 1(3), 2 and 3(1) and (2)
of the Local Government Act,
1993 (Act 462) by Parliament or
the Electoral Commission of
Ghana are inconsistent with the
1992 Constitution and should be
declared null and void and same
struck down as
unconstitutional.”
These issues will next be
considered seriatim.
Issue 1
The first of the agreed issues
to be addressed in this case
relates to whether the
President’s power under section
1(2) of the Local Government
Act, 1993 to create districts
falls within the limits of
permissible legislative
authorisation of executive
action. In other words,
are there limits to the
executive action that Parliament
may authorize and does the
President’s power under section
1(2) fall outside those limits.
Clearly, there are limits to the
executive power. The
very notion of constitutionalism
implies that there are limits to
the power of the executive.
Those limits are set in the
Constitution, both expressly and
impliedly. However, it is
very normal constitutional
practice for the legislative
branch of Government to give the
executive branch power to carry
out an activity under an
enabling authority set out in a
statute. The mere fact
that Parliament delegates such
authority to the executive does
not make it unconstitutional.
Indeed, it is the remit of the
Executive to carry out laws
enacted by the legislature.
There is nothing unusual in
that. In this connection,
it should be noted that article
58(2) of the 1992 Constitution
provides that:
“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.”
The plaintiff’s complaint can
thus be hardly that the
President acted
unconstitutionally by doing what
Parliament had entrusted to him
by statute. Her argument,
to be credible, would have to be
rather that the language of
Article 241(2) does not
authorise Parliament to delegate
to the President the power to
create districts. Issue
number one thus becomes one of
interpretation of the language
in article 241(2), rather than
an argument about exceeding the
bounds of permissible
legislative authorisation of
executive action. It is true,
though, that the execution of
laws made under or continued in
force under the 1992
Constitution is subject to a
limiting constraint, already
referred to above, which is
spelt out in article 58(1) to
the following effect:
“(1) The executive authority of
Ghana shall vest in the
President and shall be exercised
in accordance with the
provisions of this
Constitution.”
The limitation which is evident
from this provision is that the
execution of the laws must be in
accordance with the provisions
of the Constitution. Thus
any unlawfulness will not come
from the fact that Parliament
does not itself execute a task
that the Constitution enables it
to do, but rather from whether
the delegation of that task to
the executive breaches a
provision of the Constitution.
The fact of delegation
simpliciter, to my mind, is
not a lawful basis for
challenge. The challenger
needs to go further to indicate
what specific provision of the
Constitution has been breached.
As seen above, article 241(2)
authorises Parliament to “make
provision” by law for the
redrawing of the boundaries of
districts or for their
reconstitution. I am
persuaded by the first
defendant’s argument that
making provision for the
redrawing of boundaries is
different from
creating districts.
Thus article 241(2) gives
authority to Parliament to
exercise the legislative power
of Ghana to provide for the
redrawing of the boundaries of
districts, including the
enabling authority for the
executive to carry out this
exercise. That enabling
authority could have been
exercised by Parliament passing
legislation to vest the power of
creation in itself.
However, Parliament chose not to
do so in the Local Government
Act of 1993. Rather, it
chose to vest enabling authority
in the President to carry out
the redrawing of the boundaries.
This is an approach that appears
to be within the constitutional
authorisation to make provision
by law for the redrawing of the
boundaries of districts or for
their reconstitution.
However, the plaintiff thinks
otherwise and has made extensive
submissions on the issue as
follows, in paragraphs 17 to 21
of her Statement of Case:
17.
“The expression “make provision
for” has been used five times in
the Constitution and once in the
Transitional Provision. Article
9 (1) and (5) mandated
Parliament as follows:
“(1)
Parliament may make provision
for the acquisition of
citizenship of Ghana by persons
who are not eligible to become
citizens of Ghana under the
provision of this Constitution.
(5)
Parliament may make provision
for the renunciation by any
person of his citizenship of
Ghana”
18.
Parliament consequently passed
the
Citizenship Act, 2000 (Act 591)
in which Parliament itself made
provision for the acquisition
and renunciation of Citizenship
but in the administration of the
procedures for the acquisition
and renunciation gave that
responsibility to the Minster
for Interior and the President.
Similarly, Articles 108 (b), 252
(2) and section 8 (3) of the
Transitional Provision had the
phrase used as follows:
“108. Parliament
shall not, unless the bill is
introduced or the motion is
introduced by, or on behalf of,
the President-
(b)
proceed upon a motion, including
an amendment to a motion, the
effect of which, in the opinion
of the person presiding, would
be to make provision
for any of the purpose
specified in paragraph (a) of
this article.”
“252 (1) There
shall be a fund to be known as
the District Assemblies Common
Fund.
(2) Subject to the provision
of this Constitution, Parliament
shall annually make provision
for the allocation of not
less than five percent of the
total revenues of Ghana to the
District Assemblies for
development; and the amount
shall be paid into the District
Assemblies Common Fund in
quarterly installments.”
“8 (3) This section
shall be without prejudice to
any powers conferred by or under
this Constitution or any other
law not being inconsistent with
any provision of this
Constitution, upon any person or
authority to
make provision for the
abolition of office, for the
removal from office of persons
holding or acting in any office
and for requiring those persons
to retire from office.”
19.
It is submitted that in all
provisions of the Constitution
where the phrase was used,
Parliament acted to create or
establish the body, law or
institution charged by the
Constitution leaving the
procedures to a Minister or some
other person appointed to
administer the law passed by
Parliament.
20.
Other words used in Article 241
(2) are “redrawing” and
“reconstitution”. In their
ordinary meaning, redrawing
means to remark, recreate,
delineate, outline, reframe.
Reconstituting in its ordinary
meaning means form, account for,
make up, compose, comprise,
inaugurate, establish, initiate,
create, set up, organize,
develop and commission. In
effect the role given by the
Constitution to Parliament under
Article 241 (2) is to pass an
Act to create, delineate, set
up, make establish and form new
district assemblies and their
boundaries and not to pass a law
to delegate that responsibility
assigned to it by the Supreme
law of the land to the
President, a Minister or any
other person.
21.
Constitution are to be read as a
whole to make up the intention
of the framers and in this case
if this is done it will lead one
to the same conclusion that it
is Parliament that has the power
to create a district. It is
submitted that when the
Constitution wanted the
President to have a role in
matters relating to the
territories of Ghana it said so
specifically in article 5 of the
Constitution by giving the
President power to create new
regions.”
With respect, the fact that in
the situations listed by
plaintiff above, Parliament has,
in her view, acted directly to
create or establish the body,
law or institution concerned
does not necessarily mean that
the expression “make provision
for” should be interpreted as
meaning that Parliament cannot
delegate or allocate to the
executive the carrying out of an
activity for which Parliament is
responsible for making
provision. What the
plaintiff is attempting to do is
to construct an inaccurate (and
logically flawed) definition by
enumeration.
It is dangerous, from a public
policy standpoint, to construe
the legislative authority of
Parliament too restrictively,
since this is likely to
incapacitate it from dealing
with exigencies and
contingencies in relation to
which the public interest may
require it to take legislative
action, of necessarily different
kinds within a wide range.
Undesirable legislation needs to
be distinguished from
unconstitutional legislation.
The plaintiff clearly prefers
that districts should be created
by Parliament itself and that
task not delegated or allocated
to the President. (This was
indeed the situation under the
1969 Constitution.) This
preference should not, however,
necessarily mean that such
delegation or allocation is
unconstitutional.
Parliament should have the
option to choose what the
plaintiff prefers or what is
embodied in the Local Government
Act, 1993. To proscribe
the option adopted in the Act
would be tantamount to limiting
the plenitude of the legislative
authority of Parliament too
narrowly. According to
article 93(2) of the 1992
Constitution:
“(2) Subject to the provisions
of this Constitution, the
legislative power of Ghana shall
be vested in Parliament and
shall be exercised in accordance
with this Constitution.”
The legislative power thus
vested in Parliament should be
expansively interpreted in the
interest of the effective
representative democratic
governance of this country.
Parliament should be regarded as
authorised to pass any
legislation on any matter so
long as in doing so it does not
breach any express or implied
provision of the Constitution.
This is axiomatic! Were
the legislative power of
Parliament to be restricted
beyond what the provisions of
the Constitution require, this
would be an assault on the
sovereignty of the people, whose
representatives constitute
Parliament. To me
therefore, it is clear that
Parliament has the fullest of
legislative power, subject only
to what the Constitution
prohibits, expressly or
impliedly. Democratic
principles demand this
conclusion.
Of course, to say this does not
imply that Parliament is
sovereign under our
Constitution. The 1992
Constitution is supreme and
limits the legislative power
conferred on Parliament, for
instance, through the provisions
of Chapter 5, our Bill of
Rights, and Chapter 6, which
sets out the Directive
Principles of State Policy.
However, the plaintiff has not
constructed any submissions
based on these Chapters.
Where persuasive arguments of
unconstitutionality have been
made, this Court has not shirked
its responsibility of striking
down enactments that are in
conflict with the Constitution,
as witness the recent case of
Adjei-Ampofo v Attorney-General
and President of the National
House of Chiefs [2011] 2
SCGLR 1104 and a string of other
decisions. (See, for
instance,
Adofo v Attorney-General
& Cocobod [2005-2006] SCGLR
42, Sam (No.2) v
Attorney-General [2000]
SCGLR 305 and Mensima v
Attorney-General [1996-97]
SCGLR 676.)
Another matter that is clear is
that executive power is at its
most legally authoritative level
when it is backed by
legislation, as it is on the
facts of this case. This
is an insight that Justice
Jackson of the United States
Supreme Court communicates, in
relation to the powers of the
United States President, in his
famous concurring judgment in
the
Youngstown Sheet & Tube
Co. et al v Sawyer (The Steel
Seizure Case) (1952) 343 US
579. (The issue in this
well-known case was whether the
President of the USA was acting
within his constitutional power
when he issued an order
directing the Secretary of
Commerce to take possession of
and operate most of the steel
mills in the US). Justice
Jackson there said, inter
alia:
“….The actual art of governing
under our Constitution does not
and cannot conform to judicial
definitions of the power of any
of its branches based on
isolated clauses or even single
Articles torn from context.
While the Constitution diffuses
power the better to secure
liberty, it also contemplates
that practice will integrate the
dispersed powers into a workable
government. It enjoins upon its
branches separateness but
interdependence, autonomy but
reciprocity. Presidential powers
are not fixed but fluctuate,
depending upon their disjunction
or conjunction with those of
Congress. We may well begin by a
somewhat over-simplified
grouping of practical situations
in which a President may doubt,
or others may challenge, his
powers, and by distinguishing
roughly the legal consequences
of this factor of relativity.
1. When the President acts
pursuant to an express or
implied authorization of
Congress, his authority is at
its maximum, for it includes all
that he possesses in his own
right plus all that Congress can
delegate. In these
circumstances, and in these
only, may he be said (for what
it may be worth) to personify
the federal sovereignty. If his
act is held unconstitutional
under these circumstances, it
usually means that the Federal
Government as an undivided whole
lacks power. A seizure executed
by the President pursuant to an
Act of Congress would be
supported by the strongest of
presumptions and the widest
latitude of judicial
interpretation, and the burden
of persuasion would rest heavily
upon any who might attack it.
2. When the President acts in
absence of either a
congressional grant or denial of
authority, he can only rely upon
his own independent powers, but
there is a zone of twilight in
which he and Congress may have
concurrent authority, or in
which its distribution is
uncertain. Therefore,
congressional inertia,
indifference or quiescence may
sometimes, at least as a
practical matter, enable, if not
invite, measures on independent
presidential responsibility. In
this area, any actual test of
power is likely to depend on the
imperatives of events and
contemporary imponderables
rather than on abstract theories
of law.
3. When the President takes
measures incompatible with the
expressed or implied will of
Congress, his power is at its
lowest ebb, for then he can rely
only upon his own constitutional
powers minus any constitutional
powers of Congress over the
matter…. “
Whilst I am not suggesting that
this Court should allow itself
to be bogged down by the
specificities of United States
constitutional law (and it
should be said that Justice
Jackson’s opinion has been much
analysed), it is useful to take
a cue from Justice Jackson to
the effect that where the
Executive branch of government
acts with the authorisation of
the legislature, one would be
hard put to question the
authority of the executive,
unless, of course, the
legislature itself exceeded its
constitutional authority in
enacting the enabling power for
the executive.
Scrutinising the legal
enactments relied on by the
plaintiff, I do not see any such
excess of authority by
Parliament.
To sum up on Issue 1, where
executive action is authorised
expressly by legislation, a
rebuttable presumption of
regularity and constitutionality
is to be made in its support.
To rebut this presumption, the
person impugning the executive
action will need to demonstrate
clearly that the authorising
legislation is inconsistent with
the Constitution. This the
plaintiff has failed to do on
the basis of the legal
submissions that she has
advanced in this case.
Issue 2
The position that I have adopted
in relation to Issue 1
practically disposes of Issue 2
as well. It is clear that
I am of the view that the power
vested in Parliament under the
1992 Constitution to make law
for redrawing the boundaries of
districts or for reconstituting
districts in Ghana is a basis
for a valid allocation to the
President of the task of
creating or reconstituting
districts. The language of the
agreed memorandum on this issue
is somewhat misleading and
therefore I have not repeated
it. However, the substance
of what it intends to convey is
what I have expressed my view
on. The power vested in
Parliament to make law for the
redrawing of boundaries of
districts cannot itself be
delegated. What can be
delegated is either the power of
subsidiary legislation or
executive action to carry out
the redrawing of the boundaries
of districts or their
reconstitution.
Indeed, it is, strictly
speaking, inaccurate to refer to
the allocation of responsibility
to the President by Parliament
in this context as being an act
of delegation. What
Parliament has done is to use
its enabling authority to make
provision for the determination
of districts to choose the
option of authorising executive
action by the President to
achieve this purpose.
The situation on the facts of
this case is therefore different
from that in Professor Kwaku
Asare v Attorney-General
(WRIT J1/6/2011, decided
on 22nd
May 2012).
In that case I said:
“If the Minister by the exercise
of his or her discretion
excludes dual nationals from
such a wide range of public
office as to impair their right
to participate in political
activity intended to influence
the composition and policies of
the Government, then that would
be unconstitutional. But beyond
this, there is a serious
question as to whether section
16(2)(m) of Act 591 is
constitutional. It is
against the spirit of the
Constitution for Parliament to
delegate to the Minister the
authority which Parliament
itself had received by
delegation from the
Constitution. This is
against the sound policy
embodied in the maxim:
delegatus non potest delegare.
In other words, my
interpretation of article
8(2)(g) of the 1992 Constitution
is that the mandate it gives to
Parliament to specify offices
from which dual nationals are
excluded does not include a
mandate to further delegate that
authority to a Minister to
exercise by Legislative
Instrument. I am thus
inclined to adjudge section
16(2)(m) to be unconstitutional,
but I will say more about this
later.”
The plaintiff has seized on this
passage to argue that it is
authority for saying that
Parliament cannot delegate the
performance of functions imposed
on it by the Constitution.
In the plaintiff’s reply to the
1st
defendant’s Statement of Case,
she says:
“When the framers of the
constitution used the phrase
“make provision for” in article
241(2) of the Constitution, they
intended to impose an exclusive
obligation on Parliament to use
its law-making devices and
procedures under article 106 to
redraw or reconstitute
boundaries of districts whenever
the need arises. This
power to so redraw and
reconstitute district boundaries
may not be delegated.”
This view, with respect, is
incorrect for the reasons
already demonstrated in the
discussion under Item 1 above.
Furthermore, one should repeat,
for emphasis, that the power
allocated by Parliament to the
President is not strictly
speaking a delegation of its
power of primary legislation,
but rather the assignment of an
executive task to the President.
The power of primary legislation
is retained by Parliament; only
the executive action needed for
the determination of the
districts is assigned. If
my dictum
referred to above gives the
impression that an executive
task cannot be given or
“delegated” to the executive
branch of government by
Parliament, then it is clearly
erroneous and it is hereby
corrected. On the facts of
Professor Kwaku Asare v
Attorney-General, what was
there delegated was the
legislative task of expanding
the categories of offices from
which dual citizens are
excluded. That was a task
that went beyond executive
action.
Issue 3
It will be recalled that this
issue relates to whether or not
sections 1(3) and 2 of the Local
Government Act, 1993 (Act 462)
which purport to give power to
the President to direct and or
request the Electoral Commission
to review areas of authority of
district, municipal and
metropolitan assemblies, town,
area, zonal, urban and
sub-metropolitan district
councils, and unit committees do
not violate articles 45, 46,
241(2) and 106)(1) of the 1992
Constitution.
Article 46 provides as follows:
“Except as provided in this
Constitution or in any other law
not inconsistent with this
Constitution, in the performance
of its functions, the Electoral
Commission shall not be subject
to the direction or control of
any person or authority.”
Thus though Article 46 prohibits
the subjection of the Electoral
Commission to the direction or
control of any other person or
authority, it seems to
contemplate, by way of
exception, the possibility of a
law other than the Constitution
providing for direction of the
Electoral Commission, provided
that that law is not
inconsistent with the
Constitution. The issue
that arises then is whether the
direction provided for in
section 1(3) of the Local
Government Act, 1993 is
inconsistent with the
Constitution. It could be
argued that the independence of
the Electoral Commission that is
protected relates to electoral
matters. On those matters,
it is unconstitutional for any
direction or control to be
exerted over the Commission.
However, on non-electoral
matters, there could be scope
for direction provided for by
statute, so long as such
direction does not reduce or
imperil the efficacy of the
Electoral Commission in the
discharge of its electoral
responsibilities. It is in
this context that one should
assess the constitutionality of
section 1(3) of the Local
Government Act, 1993, which, it
will be recalled, states that:
“(3) The President shall in the
exercise of his powers under
sub-section (2) (a) direct the
Electoral Commission to make
appropriate recommendations”.
In my view, this direction is
unlikely to impair the
performance of the Electoral
Commission’s electoral
responsibilities, whilst, on the
other hand, it may improve the
quality of the President’s
decision-making in the
declaration of new areas as
districts. On balance,
therefore, I am inclined to
decide that the President’s
power of direction under section
1(3) of the Local Government
Act, 1993 is not
unconstitutional. The
argument laid out above would
apply equally to section 2 of
the Act, which provides as
follows:
“The Electoral Commission shall
at the request of the President
review areas of authority of
unit committees, town, area,
zonal, urban and
sub-metropolitan district
councils and district, municipal
and metropolitan assemblies and
make such recommendations as it
considers appropriate to the
President.”
Issue 4
Sections 3(1) and (2) of the
Local Government Act, 1993 (Act
462) grants powers to the
Minister of Local Government as
follows:
“Section 3—Establishment of
District Assemblies, Etc.
(1) The Minister shall by
legislative instrument establish
an Assembly for each district,
municipality and metropolis and
the Assembly shall constitute
the highest political authority
in the district.
(2) The instrument establishing
a District Assembly, shall
specify—
(a) the name of the Assembly and
the area of authority of the
Assembly;
(b) the number of persons to be
elected to the Assembly and the
number of persons to be
appointed to the Assembly by the
President;
(c) the jurisdiction, functions,
powers and responsibilities of
the Assembly;
(d) the place where the
principal offices of the
Assembly are to be situated; and
(e) such other matters as are
required by this Act to be
included in the instrument or
are consequential or ancillary
to it.”
The question under Issue 4 is
whether this provision is
consistent with articles 241(2)
and 106(1) of the 1992
Constitution. Clearly,
this question has already been
answered by the discussion under
Issue 1. The Minister is
part of the executive and acts
for the President and therefore
the discussion under Issue 1
relating to whether the language
used in article 241(2) provides
a sufficient legal basis for
lawful legislative delegation of
executive action applies here
also, mutatis mutandis.
Accordingly, on Issue 4, I would
hold that sections 3(1) and 3(2)
of the Local Government Act,
1993 (Act 462) are not
unconstitutional.
Issue 5
Issue 5, it will be remembered,
relates to whether or not any
acts done or being done pursuant
to sections 1(2), 1(3), 2 and
3(1) and (2) of the Local
Government Act, 1993 (Act 462)
by Parliament or the Electoral
Commission of Ghana are
inconsistent with the 1992
Constitution and should be
declared null and void and same
struck down as unconstitutional.
It follows from the foregoing
discussion that any acts done
pursuant to the statutory
provisions mentioned above by
the Parliament or the Electoral
Commission of Ghana is not
inconsistent with the 1992
Constitution. Accordingly,
no such act needs to be struck
down as unconstitutional.
Conclusion
In sum, the plaintiff’s action
fails and the same is hereby
dismissed.
[SGD]
DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
ATUGUBA J.S.C
I have had the advantage of
reading the transcendent
judgment of my ultra
distinguished brother Dr.
Date-Bah JSC whose legal ability
and sheer mental power act like
a quarry, able to grind to fine
sand the biggest and hardest
rocks of legal problems. But
even generals have batmen and so
with much diffidence I venture
the pursuant concurring opinion.
The first storm rages around the
proper construction of article
241(2) as follows:
“241(2) Parliament may by law
make provision for the
redrawing of the boundaries of
districts or for reconstituting
the districts.” (e.s.)
It is difficult to think that
the making of provision for
something to be done is the same
thing as doing that thing. I
should have thought that the
first expression is preparatory
whereas the second one is direct
effectuation. In any case I have
come to realise that statutes do
construe themselves inherently.
That is the intendment of Lord
Denning MR in Buchanan & Co.
Ltd v. Babco Forwarding &
Shipping (UK) Ltd (1977) 1
All ER 578 C.A. at 522 – 523
when he said, with
characteristic originality as
follows:
“ … judges do not go by the
literal meaning of the words
or by the grammatical
structure of the sentence.
They go by the design or
purpose which lies behind it.
When they come upon a
situation which is to their
mind, within the spirit –
but not the letter of the
legislation they solve the
problem by looking at the
design and purpose of the
legislation – at the
effect it was sought to achieve.
They proceed then to interpret
the legislation so as to
produce the desired effect
…” (e.s.)
The Constitution itself can be
said to have made provisions for
certain things to be done and in
doing so has, inter alia,
identified the person or persons
who are to take certain steps
towards the realisation of the
objective sought to be achieved.
Thus in Commission on Human
Rights and Administrative
Justice v. Attorney-General &
Baba Kamara
[2011] SCGLR 746 it is stated as
per holding 3 of the head note
in response to the second
defendant’s contention that
CHRAJ’s mandate cannot be held
to extend to the investigation
of private individuals involved
in a scheme of alleged
corruption which engulfs both
private and public officials, as
follows:
“The Supreme Court would grant
the first declaratory relief
endorsed on the plaintiff’s writ
because the contention by the
second defendant as to the
mandate of the plaintiff
commission under article 218(e)
of the 1992 Constitution was
intended to stultify a
significant part of the
investigative operations of the
plaintiff. It was intended to
defeat one of the purposes for
which the Constitution had made
provision for the establishment
of the Commission on Human
Rights and Administrative
Justice. …”
The articles of the Constitution
which can be said to have made
provision for the establishment
of CHRAJ are as follows:
“CHAPTER EIGHTEEN
COMMISSION ON HUMAN RIGHTS AND
ADMINISTRATIVE JUSTCE
216. There shall be
established by Act of Parliament
within six months after
Parliament first meets after the
coming into force of this
Constitution, a Commission on
Human Rights and Administrative
Justice which shall consists
of –
(a) a Commissioner for Human
Rights and Administrative
Justice; and
(b) two Deputy Commissioners for
Human Rights and Administrative
Justice.
APPOINTMENT OF MEMBERS OF
COMMISSION
217. The President shall appoint
the members of the Commission
under article 70 of this
Constitution.
FUNCTIONS OF COMMISSION
218. The functions of the
Commission shall be defined
and prescribed by Act of
Parliament and shall include
the duty –
(a) to investigate complaints of
violations of fundamental rights
and freedoms, injustice,
corruption, abuse of power and
unfair treatment of any person
by a public officer in the
exercise of his official duties;
(b) to investigate complaints
concerning the functioning of
the Public Services Commission,
the administrative organs of the
State, the Armed Forces, the
Police Service and the Prisons
Service in so far as complaints
relate to the failure to
achieve a balanced
structuring of those
services or equal access
by all to the recruitment of
those services or fair
administration in relation to
those services ; …
” (e.s.)
Again in Fattal v. Minister
for Internal Affairs
(1981) GLR 104 S.C. at 128
Taylor JSC said:
“The Constitution, 1979, has
made elaborate provisions
spelling out the
circumstances under which, and
the authority by which a
person who is a citizen by
naturalisation can be deprived
of his citizenship. The
provisions contained in article
17(3) are:
"17. (3) The High Court of
Justice may, on an
application made in that
behalf by the Attorney-General,
deprive a person who is a
citizen of Ghana, otherwise than
by birth, of that citizenship on
the ground -
(a) that the activities of that
person are inimical to the
security of the State or
prejudicial to public morality
or the public interest; or
(b) that that citizenship was
acquired by fraud,
misrepresentation or any other
improper or irregular practice."
Article 17 (3) (a) is virtually
identical with section 10 of the
Ghana Nationality Act, 1971 (Act
361), which provides:
"10. The High Court of
Justice may, on an application
made in that behalf by the
Attorney-General, deprive
any person who is a citizen of
Ghana, otherwise than by birth,
of that citizenship on the
ground that the activities of
any such person are inimical to
the security of the state or
prejudicial to public morality
or the public interest."
Under the constitutional scheme
contained in article 17 (3) the
authority to deprive a
naturalised person of his
citizenship is neither the
executive nor the legislature.
It is the judiciary acting by
the High Court and upon
constitutionally specified and
proven grounds.
This provision is not new;
article 17 (3) was substantially
culled from article 10 (3) of
the Constitution, 1969.” (e.s.)
Quite clearly Taylor JSC here is
saying that the Constitution,
1979 made provisions for the
deprivation of citizenship by
naturalisation and in so doing
had identified the authority
that is to effect the
deprivation, i.e. the High Court
of Justice.
Similarly in
Director of Buildings and Lands
v. Shun Fung Ironworks Ltd
(1995) 3 LRC 179 P.C. at 199
Lord Nicholls said concerning
the assessment of the rate of
interest payable for
compulsorily purchased property:
“The fourth issue concerns the
rate of interest payable on the
compensation. Under s 17(3) of
the Resumption Ordinance money
payable as compensation
automatically carries interest
(‘shall bear interest’)
from the date of resumption of
the land. Section 17(3A)
makes provision concerning the
rate of interest, in these terms:
“The rate of interest for the
purposes of subsection (3) shall
be such rate as the Lands
Tribunal may fix having
regard to the lowest rate
payable from time to time
by Members of the Hong Kong
Association of Banks on time
deposits.’” (e.s.)
That in making provision for
something to be done a
Constitution or other law can
co-opt the services or functions
of any suitable person or
authority is abundantly made
clear by article 17 (4) of the
1979 Constitution as follows:
“
(4) There shall be published in
the Gazette by the
appropriate authority
and within three months thereof
the name, particulars and other
details of a person who,
pursuant to the provisions of
this article –
(a)
applies to be registered as a
citizen of Ghana; or
(b)
has been registered as a citizen
of Ghana.” (e.s.)
It is axiomatic that these
provisions of the 1979
Constitution are the same as
their counterparts under the
1992 Constitution.
Clearly then Parliament cannot
be faulted for following the
model precedents of the
Constitution itself regarding
the mechanics of making
provision for something to be
done.
The only rider to all this is
that as Dr. Date-Bah JSC, the
owner of the Laws, has
discerned, the co-opted
authority is one that can
appropriately be co-opted having
regard to the provisions of the
Constitution or other relevant
law.
The question that arises is
whether the President has been
validly and appropriately
co-opted by section 1(2) of the
Local Government Act, 1993(Act
462) to create and ascribe a
name to a District.
As my invaluable brother Dr.
Date-Bah JSC has already
demonstrated the creation of a
District is an executive
function. Clearly, if the 1992
Constitution in article 5 views
the creation of a region of
Ghana as an executive act which
the President can perform then
it follows that the creation of
a District which is only a
sub-division of a region is also
an executive act which can be
properly performed by the
President. The maxim Magnus
continet in se minus is
apposite here.
In any case article 58(1) and
(2) of the 1992 Constitution
provides as follows:
“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 the Constitution.”
(e.s.)
Clearly therefore since the
creation of a District is a
matter of the executive
authority of Ghana, Parliament
has properly mandated the
President to create a District
under section 1(2) of Act 462
and the President is
constitutionally bound under
article 58(2) to execute the
same.
As Lord Reid (Lords Morris and
Guest concurring), said in
Westminster Bank Ltd v. Minister
of Housing and Local Government
(1970) 2 WLR 645 H.L. at 651:
“When we are seeking the
intention of Parliament that
may appear from express words
but it may also appear by
irresistible inference from the
statute read as a whole.”
(e.s.)
The inference that the creation
of a district is an executive
one flows from the framework of
the Constitution. The
Constitution itself makes such
inferences. For example in
consequence of the provisions of
article 297(a) that an
appointing authority is the
authority to exercise
disciplinary control over or
remove an appointee from office
and the President being the
appointing authority for
superior court judges, article
146(3) has no doubt as to whom a
petition for the removal of such
a justice should be made. It
straightaway provides thus:
“146(3) If the President
receives a petition for the
removal of a Justice of a
Superior Court other than
the Chief Justice or for the
removal of the Chairman of a
Regional Tribunal, he shall
refer the petition to the Chief
Justice, who shall determine
whether there is a prima
facie case. ….” (e.s.)
Other deductions as to the
location of statutory power from
the framework of a statute are
the series of cases beginning
from Akufo-Addo
v.Quarshie-Idun (1968) GLR
667, Kuenyehia v. Archer
(1993-94) 2 GLR 525 S.C. etc
which held that since the Chief
Justice has the constitutional
power to oversee the proper
administration of the Judiciary
the power to empanel a court
being an administrative act,
belongs to him/her.
Similarly, in Amlalo v. The
Republic (1979) GLR 162 C.A.
it was held that though the
Criminal Procedure Act 1960 (Act
30) did not specify who is to
file amended indictments
or endorse the order of
the court for separate trial on
the bill of indictment, these
duties fell to be performed by
the Prosecution and the
Registrar of the court
respectively. This flow of
judicial reasoning enriches the
similar deduction in this case
that the President being the
head of the Executive is
eminently suited to perform the
administrative act of creating a
District under the provisions of
article 241(2).
It is true that statutes in
pari materia whether current
or expired are to be taken and
construed as one. This however
does not apply where the
provisions of the subsequent
statute are materially different
from those of the earlier one.
Even where a statute provides
that it should be read as one
with another statute, it is
established as was stated by the
Earl of Selborne L.C. delivering
the judgement of the Privy
Council in Canada Southern
Railway Co. v. International
Bridge Co (1883) 8 App. Cas.
723 at 727 that:
“It is to be observed that
those two Acts are to be read
together by the express
provision of the seventh and
concluding section of the
amending Act; and therefore
we must construe every part of
each of them as if it had been
contained in one Act, unless
there is some manifest
discrepancy, making it necessary
to hold that the later Act has
to some extent modified
something found in the earlier
Act.” (e.s.)
Applying these principles to
this case it is noticeable upon
the plaintiff’s own paragraphs
13 and 14 of her Statement of
Case that the 1969 Constitution
provided in article 156(3) as
follows:
“(3) Subject to the provisions
of this article, Parliament
may, by or under an Act of
Parliament, establish
rural, urban, municipal or other
local government councils or
area committees.”
And the 1979 Constitution
provided in article 182(1) as
follows:
“182.(1) For the purposes of
local government in Ghana
there shall be established by an
Act of Parliament district
and other local government
councils.”
However the 1992 Constitution
has in varied language provided,
aforesaid as follows:
“241(2) Parliament may by law
make provision for the redrawing
of the boundaries of districts
or for reconstituting the
districts.” (e.s.)
In Sallah v. Attorney-General
(1970) 2 G&G 493 the issue that
arose for determination by the
Supreme Court is captured in Dr.
S.Y. Bimpong-Buta’s invaluable
book: “The Role of the Supreme
Court in the Development of
Constitutional Law in Ghana” at
275 – 276 as follows:
“The plaintiff in this
case was on 16 October 1967
appointed as a manager of a
statutory corporation set up
under the Statutory Corporations
Act, 1961. His
appointment was subsequently
terminated by a letter issued by
the Presidential Commission in
purported exercise of its power
of dismissal under the
Constitution, 1969 Sched 1, s
9(1) which provided:
“9(1) Subject to provisions of
this section, and save as
otherwise provided in this
Constitution, every person who
immediately before the coming
into force of this Constitution
held or was acting in any
office established
(a)
by or in pursuance of the
Proclamation
for the constitution of a
National Liberation Council for
the administration of Ghana and
for other matters connected
therewith dated the twenty-sixth
day of February, 1996, or
(b)
in pursuance of a Decree of
the National Liberation Council,
or
(c)
by or under the Authority of
that Council,
shall, as far as is consistent
with the provisions of this
Constitution, be deemed to
have been appointed as from the
coming into force of this
Constitution to hold or to act
in the equivalent office under
this Constitution for a period
of six months from the date
of such commencement, unless
before or on the expiration of
that date, any such person shall
have been appointed by the
appropriate appointing authority
to hold or to act in that office
or some other office.”
The plaintiff therefore brought
an action before the Supreme
Court for a declaration that
on a proper and true
construction of section 9(1),
the government represented by
the Presidential Commission, was
not entitled to terminate his
appointment. At the hearing,
counsel for the plaintiff argued
that on a proper construction of
section 9(1) of the transitional
provisions, the plaintiff’s
appointment as a manager did not
fall within the phrase “in
any office established”
appearing in section 9(1).”
As carried at 277 of Dr.
Bimpong-Buta’s said book:
“The Supreme Court, by a
majority decision, rejected the
technical meaning and
interpretation sought to be
placed on the phrase “in any
office established.” The
majority held that the word
“established” in the context of
section 9(1) must be
construed as meaning that any
person who held or acted in
any office created or set up
by the NLC Proclamation, a
Decree of the NLC or under an
authority of the NLC was caught
by section 9(1). Since the
plaintiff’s appointment did not
fall under any of the above
heads, the termination of his
appointment was unlawful. The
majority did not mince its words
in rejecting the technical
meaning and interpretation
founded on Kelsen’s
jurisprudential theory of law.”
(e.s.)
I hold therefore that the word “establish”
in relation to the creation of
Districts, etc by Parliament in
the 1969 and 1979 Constitutions
has the same meaning as
expounded in the Sallah
case and that by their
replacement in the 1992
Constitution by the words of
limitation “may by law make
provision for the redrawing of
the boundaries of districts or
for reconstituting the
districts” the framers of
the 1992 Constitution did not
intend that Parliament should by
itself establish, create or set
up the Districts but that
Parliament should provide the
legislative machinery to enable
the boundaries of the Districts
to be redrawn or for the
Districts to be reconstituted.
That being so and having regard
to the framework of the
separation of powers under the
1992 Constitution between the
Executive, Legislature and the
Judiciary it should be clear
that the act of creating a
District is an executive matter
more suitable for the President
as an executive president than
any other arm of Government.
Since the Legislature or the
Constitution can provide
otherwise as it did in the 1969
and 1979 Constitution, the
Legislature had to create “the
Districts” but whereas the 1992
Constitution has departed from
that mode it clearly evinces a
change of mind on the issue and
the body that naturally can
effectuate that change of mind
is inferentially the Executive
branch of government headed by
the President.
Surely if the 1992 Constitution
changed its mind from empowering
Parliament to establish
Districts by itself as did the
1969 and 1979 Constitutions it
would defeat the intent or
purpose of making that change to
hold that it is still Parliament
that is to establish them. But
it may be, as Dr. Date-Bah JSC
has held that the 1992
Constitution left it open to
Parliament to decide who,
inclusive of itself, is to
establish them. In Labour
Commission v. Crocodile Matchet
J4/52/2011, dated 22/6/2011
S.C., unreported, this court
held that delegation of
statutory power can be allowed
either expressly or by necessary
implication by a statute.
Clearly if the different wording
of article 241(2) is to have any
new or changed effect then it
clearly evinces an intent that
with regard to the power therein
conferred Parliamentum potest
delegare if that were
necessary, to effectuate that
provision.
In any case a close look at the
contentions of the plaintiff in
paragraphs 17 to 21 of her
statement of case shows that
their effect as summarised in
paragraph 19 thereof, namely “It
is submitted that in all
provisions of the Constitution
where the phrase was used,
Parliament acted to create or
establish the body, law or
institution charged by the
Constitution leaving the
procedures to a Minister or some
other person appointed to
administer the law passed by
Parliament” is partly
fallacious. I have already given
the reasons on this score.
However a cursory look at
article 252 on the creation of
the District Assemblies Common
Fund and Grants-in-aid shows
that both Parliament and the
President have appropriate roles
to play therein and therefore
the appropriateness of the role
played is still the key test as
already stated at length.
As to whether sections 1(3) and
2 of Act 462 violate articles
45, 46 and 241(2) and 106(1) of
the Constitution the swiftest
answer is article 45(f) as
follows: -
“45 The Electoral Commission
shall have the following
functions –
X X X
(f) to perform such other
functions as may be
prescribed by law.”
In view of section 10(4) of the
Interpretation Act, 2006 (Act
792) and the Memorandum to that
Act it will be wrong to unduly
limit the scope of this
provision by any common law
canons of construction such as
ejusdem generis (except
when appropriate). It is
trite law, even at common law,
that the rules of the
construction of statutes cannot
be used to prejudice the scope
or effect of a statute where the
same is clear. Under section
10(4) of Act 792 the operative
consideration, inter alia, is
whether a particular
construction conduces to good
governance. Certainly the
Electoral Commission in carrying
out its functions under article
45(a) to (e) would have covered
the whole country and thereby
gained immense experience about,
inter alia, the
geographical and social factors
of the communities of Ghana
which can assist the president
in determining the creation of a
District and this conduces to
good governance. In giving that
Commission the directions
covered by section 1(3) and (2),
some functions are merely
conferred by the President on
the Commission. As to direction
in the form of controlling that
Commission, that notion is
exploded by the fact that under
those provisions the Electoral
Commission is entirely free as
to the kind of recommendations
it is to make to the President.
The Commission’s independence is
thereby wholly preserved and
should be applauded.
As to the role of the Minister
of Local Government in
establishing the District
Assemblies I have the support of
the plaintiff who upholds such a
role in some paragraphs of her
own statement of case. In
paragraph 18 the plaintiff
commenting on article 9(1) and
(5) concerning the powers of
Parliament to make provision for
the acquisition or renunciation
of citizenship referred to in
her preceding paragraph 17
states thus:
“Parliament consequently passed
the Citizenship Act, 2000
(Act 591) in which
Parliament itself made provision
for the acquisition and
renunciation of Citizenship but
in the administration of the
procedures for the acquisition
and renunciation gave that
responsibility to the Minister
for Interior and the President.
…” (e.s.)
Again in paragraph 19 referred
to supra the plaintiff states
thus:
“It is submitted that in all
provisions of the Constitution
where the phrase was used,
Parliament acted to create or
establish the body, law or
institution charged by the
Constitution leaving the
procedures to a Minister or some
other person appointed to
administer the law passed by
Parliament.” (e.s.)
In any case, article 78(2)
provides thus:
“78(2) The President shall
appoint such number of
Ministers of State as may be
necessary for the efficient
running of the State.”
(e.s.)
Surely if this provision is to
have ample effect such tasks as
are not inconsistent with the
Constitution are to be assigned
to such ministers by the
President or other appropriate
authority to ensure the smooth
running of the State. Certainly
in matters concerning Local
Government the sector Minister
must have a pivotal role,
inclusive of the setting up of
the District Assemblies in the
various Districts established by
the President. Some instances of
irresistible statutory
deductions have already been
given ut supra. In the
same vein in Merricks v.
Heathcoat-Amory (1955) 2 All
ER 453, section 1 of the
Agricultural Marketing Act, 1931
which fell for construction,
provided thus:
“A scheme regulating the
marketing of an agricultural
product by the producers
thereof may be submitted to
the Minister in accordance
with Part 1 of Sch. 1 to this
Act, and the Minister, may
subject to the provisions of
this section, approve the
scheme.”
At 455 it is stated thus:
“Counsel’s submission is that
this action is not against the
Minister in his representative
capacity but in another
capacity. He submits that
the Minister has two other
capacities: first, he may have
an official capacity, not as
representing the Crown but as
a person designated to carry out
certain functions prescribed by
Act of Parliament, that is
to say, a person designated
to carry out the function of
laying before each House of
Parliament a draft of the
scheme, and, if the scheme be
approved, of making an order.
That function, he submits, is
performed by the Minister as a
person designated and not as a
representative of the Crown.
Alternatively, he submits that
the functions of the defendant
are purely personal and not
performed in any official
capacity at all.” (e.s.)
Upjohn J, in rebuffing these
submissions stated poignantly at
456 thus:
“I have heard full arguments
from counsel for the plaintiff
and from the Attorney-General,
and I think in those
circumstances I can properly
express my own views as to the
capacity in which the Minister
acts in carrying out or
proposing to carry out the
relevant functions under s. 1 of
the Agricultural Marketing Act,
1931. It seems to be clear
that in carrying out his
functions under that section he
is acting as representative or
as an officer of the Crown. He
is the Minister of Agriculture
who is responsible for the
conduct of agricultural matters
in this country. As part of his
general responsibility, he is
the person who would naturally
be designated in the
Agricultural Marketing Act as
the person to carry out the
functions, purposes and policy
of that Act. It was no doubt
for that reason that it was the
Minister who was to approve any
scheme under s. 1 (1). It was
his duty, not , as I venture to
think, merely as a delegated
person, but acting in his
capacity as Minister of
Agriculture, that he had to
consider the scheme, that he had
to hear objections and
representations, and hold
inquiries, and he had the power
and duty of making such
modifications as he thought fit.
It was his duty in his capacity
as Minister of Agriculture and
not merely as a delegated person
that, if he were satisfied –
with the satisfaction he felt in
his capacity as Minister of
Agriculture and an official of
the Crown – that the scheme
would conduce to the more
efficient production and
marketing of the regulated
product, to lay before the
Houses of Parliament a draft
scheme, and so ultimately in the
same capacity to make an order
bringing the scheme into effect.
It seems to me that from
start to finish he was acting in
his capacity as an officer
representing the Crown.”
(e.s.)
CONCLUSION
It is important to stress that
since the Constitution has
vested the legislative power of
the State in the Legislature
under articles 93(2) and 106(1)
an Act of Parliament, if wrongly
declared as unconstitutional
would itself be a grievous
contravention of the
Constitution. On the other hand
one has to bear the admonition
to the Judiciary in the
Tanzanian case of Ndyanabo v.
Attorney-General (2002) 3
LRC 541 C.A., where at 551
Samatta CJ said:
“As was correctly stated by Mr.
Justice E.O. Ayoola, a former
Chief Justice of The Gambia, in
his paper presented at a seminar
on the Independence of the
Judiciary, in Port Louis,
Mauritius, in October 1998:
‘A timorous and unimaginative
exercise of the judicial power
of constitutional interpretation
leaves the Constitution a stale
and sterile document.’”
However, Samatta CJ qualified
this statement by stressing
that:
“ … until the contrary is
proved, legislation is presumed
to be constitutional. It is a
sound principle of
constitutional construction
that, if possible, legislation
should receive such a
construction as will make it
operative and not inoperative.
…[S]ince, as stated a
short while ago, there is a
presumption of constitutionality
of legislation, save where a
claw-back or exclusive
clause is relied upon as a basis
for constitutionality of the
legislation, the onus is upon
those who challenge the
constitutionality of the
legislation; they have to rebut
the presumption.”(e.s.)
The plaintiff here is contending
for an interpretation of
constitutional provisions which
by their letter, purport or
framework do not clearly and
necessarily, in substance at any
rate, compel the upholding of
the same against the impugned
legislation. She has therefore
failed to rebut the presumption
of the constitutionality of the
impugned provisions of Act 462.
For all the foregoing reasons I
concur in the fulsome and
translucent judgment of my
uniquely able brother Dr.
Date-Bah JSC dismissing the
plaintiff’s action.
[SGD]
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
[SGD]
S. A. B.
AKUFFO [MS]
JUSTICE OF THE SUPREME COURT
[ SGD]
S. O. A.
ADINYIRA [MRS]
JUSTICE OF THE SUPREME COURT
[SGD]
ANIN-YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD]
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD]
V. AKOTO-BAMFO [MRS]
JUSTICE OF THE SUPREME COURT
COUNSEL:
NENE AMEGATCHER [WITH HIM
MRS. VICTORIA BATH, DOMINIC
BRENYA OTCHERE, KWASI KELLY
DELATA AND MELLESA AMARTEIFIO]
FOR THE PLAINTIFF.
SYLVESTER WILLIAMS FOR THE 1ST
DEFENDANT.
JAMES QUASHIE – IDUN [WITH HIM
ANTHONY DABI] FOR THE 2ND
DEFENDANT.
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