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Constitutional law
-Interpretation - 1992
Constitution - Articles 183 (2)
(a) - Bank of Ghana Act, 2002,
Section 4(1) (b) - Foreign
Exchange Rate - Mandamus -
Jurisdiction- Whether or not
the 2nd defendant has breach
Article 183(2) (a) of the 1992
Constitution - Whether or not
the Court is the proper forum
for the evaluation of economic
factors - Whether or not the
demands of the plaintiff will
amount to an infraction of the
law under section 3 (2) of Bank
of Ghana Act - Whether or
not the Plaintiff’s action
raises any issue for
interpretation
HEADNOTES
.The
Plaintiff alleges the Ghana
Cedi has depreciated against the
US dollar since July 2007 when
Ghana re-denominated its
currency for near parity with
the US dollar to January 2014 by
as much as 136% over a 7 year
span; averaging 19.3 percent per
year.
The
Plaintiff argues that: “by the
wording of Article 183(2) (a) of
the 1992 Constitution, and
Section 4(1) (b) of the Bank of
Ghana Act, 2002, (Act 612), the
2nd Defendant cannot
continuously employ a ‘floating
exchange rate regime’ to manage
the Ghanaian Cedi. 2nd
Defendant knows it lacks the
requisite reserves or exchange
rate stabilization fund or to
effectively intervene in the
market to give the Cedi a stable
value…The defendant’s inability
to manage the floating rate
regime put the Ghana Cedi in a
perpetual flux.”The Plaintiff
submits that by the wording of
the respective laws, the 2nd
Defendant “must migrate to a
Fixed Exchange Rate Regime in
order to fulfill its mandate of
promoting and maintaining a
stable currency within and
outside Ghana for the economic
progress of the country”.The
Plaintiff submits further that
the 2nd Defendant
will continue “to utilize its
unworkable monetary measures
unless this highest court grants
his reliefs”. Finally the
Plaintiff submits that until the
Supreme Court defines or
interprets ‘promoting and
maintaining a stable currency’,
the 2nd Defendant
will be in apparent breach of
Article 183(2) (a) of the 1992
Constitution, and continue to be
in breach The 1st
Defendant also raised an
objection to the propriety of
the writ before this Court. The
1st Defendants
submits that “the Plaintiff
presents his case, couched as an
application for interpretation
of the Constitution in order to
bring the action under articles
2(1) and 130 (1) of the 1992
Constitution when in fact there
is no cause warranting
invocation of the original
jurisdiction of this honorable
Court”. The 1st
Defendant contends this Court is
not the proper forum for the
evaluation of economic factors,
which are responsible for
inflation in the country. The
1st Defendant rejects the
Plaintiff’s assertion that the 2nd
Defendant has not maintained a
stable currency and has
therefore caused depreciation in
the value of the Ghana currency
on the basis that the Central
Bank does not have absolute
control over factors which cause
inflation. The 2nd
Defendant submits that “granted
for purposes of arguments the
alternate policies advanced by
Plaintiff (which we deny), the
proper place to commence the
action is not by seeking an
interpretation of Article 183(2)
(a) of the 1992 Constitution,
alongside section 4(1) (b) of
the Bank of Ghana Act, 2002,(Act
612)”
HELD :-
From the
foregoing, we hold that the
Plaintiff’s plea that: ‘Ghana
must have its determination of
what is a Stable Currency is,
and per our legal framework,
Plaintiff thinks this matter is
constitutional, therefore a
Supreme Court matter;” is
misplaced. We disagree that
determining what is a stable
currency is a matter for
interpretation and
justiciable.This Court is not
the best forum for formulating
currency and monetary policies.
By which judicial standard shall
we determine a stable currency
for Ghana, bearing in mind the
divergent views and opinions in
the management of the economy,
In any event the Court has no
institutional competence to
direct the 2nd Defendant, even
if we had the authority, which
we doubt. This Court should be
able to make a determination
based on judicially discernable
and manageable standards which
is lacking here. Consequently we
hold that the determination of
the issues before the Court
involves more than an
interpretation of the
Constitution. The difficulty of
fashioning reliefs that involve
an initial policy determination
of a kind clearly for non
judicial discretion fall outside
the constitutional interpretive
and enforcement role of this
Court. In the result, this Court
should decline jurisdiction and
dismiss the Plaintiff’s writ.
The preliminary legal objection
to our jurisdiction is upheld.
Plaintiff’s action is dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Bank of Ghana Act, 2002, Act 612
CASES REFERRED TO IN JUDGMENT
Ghana Bar
Association v Attorney-General
and another (Abban Case)
[2003-2004 SCGLR 250
Okudzeto Ablakwa &
Another v Attorney-General &
Obetsebi-Lamptey [2011] 2 SCGLR
986
Sumaila Bielbiel
(No1) v Adamu Daramani &
Attorney-General (No 1)
[2011]1SCGLR 132 at 146
Yiadom I v Amaniampong [1981] 2
GLR 3
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ADINYIRA
(MRS), JSC :
COUNSEL
PLAINTIFF APPEAR FOR HIMSELF.
GRACE MBROKOR – EWOAL (MRS) (PRINCIPAL
STATE ATTORNEY)
FOR THE 1ST DEFENDANT.
SAMUEL CODJOE ESQ. WITH HIM
THEOPHILUS KPORVIE FOR THE 2ND
DEFENDANT.
---------------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------------
ADINYIRA (MRS), JSC
:
The
original jurisdiction of this
Court is stated in article 130
(1) of the Constitution thus:
“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; and
b)
All matters 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
(2)Where an issue that relates
to a matter or question referred
to in clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.”
Dr. John
Ephraim Baiden, the Plaintiff
herein describes himself as “a
citizen of Ghana who has lost
wealth through Foreign Exchange
Rate losses”. Per his writ filed
on 7 March 2014 against the
Attorney-General and the Bank of
Ghana, the first defendant, and
the second defendant
respectively; the Plaintiff
claims the following reliefs:
1.
A declaration that upon a true
and proper interpretation of
articles 183(2) (a) of the 1992
Constitution and Bank of Ghana
Act, 2002, Section 4(1) (b), The
Bank of Ghana has neither
promoted nor maintained a stable
currency for the Republic of
Ghana.
2.
A Writ of Mandamus to issue on
Bank of Ghana or its Governor
and the Board of Directors
ordering the following:
a.
To Provide the Republic of Ghana
a Stable Currency.
b.
A change from a floating
exchange regime to a fixed
exchange rate regime or a
reasonable adjustable peg
regime.
3.
An order on 2nd
Defendant to abrogate the
present Dual Exchange Rate or
Multiple Exchange Rate System to
a Single Exchange Rate System.
4.
An Order on 2nd
defendant to provide the
Republic of Ghana with a 1:1 or
nearer relationship with the
Leading Global Reserve Currency,
thus the U.S. Dollar, as the
Republic had in July 2007.
5.
A Perpetual injunction on 2nd
defendant against deferring to
Floating Exchange Rate Regime in
the conduct of their Monetary
Policy.
6.
Any further reliefs or
directions which the court may
deem appropriate to give full
effect or to enable effect to be
given to the letter and Spirit
of the 1992 Constitution in this
matter generally and
particularly Article 183(2) (a)
of the 1992 Constitution, and
also Bank of Ghana Act, 2002,
Section 4(b).
The 2nd
Defendant upon service of the
writ on it immediately launched
a preliminary legal objection to
the action on grounds of
jurisdiction. These are:
1.
‘The action has been wrongly
commenced in the Supreme Court
in that the complaint of
Plaintiff is basically to the
effect that 2nd
Defendant has not maintained a
stable currency and has caused a
depreciation in the value of the
Ghanaian currency but
deliberately couched as an
application for interpretation
of the constitution in [order]
to bring the action under the
ambit of Article 2(1) and 130 of
the Constitution.
2.
That the Supreme Court in the
exercise of its original
jurisdiction is not the proper
forum for the interpretation of
an Act of parliament and it is
therefore wrongful for plaintiff
to have invoked Articles 2(1)
and 130 to seek an
interpretation of Section 4(1)
(b) of the Bank of Ghana Act,
Act 612 in the Supreme Court.
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. See
Ghana Bar Association v
Attorney-General and another
(Abban Case) [2003-2004 SCGLR
250 at 266 to 267, per
Bamford-Addo JSC. We therefore
ordered the 1st and 2nd
Defendants to file their
respective statements of case.
The
Plaintiff’s case
The
Plaintiff contends that this
instant suit requires the true
and proper interpretation of
particularly article 183(2) (a)
of the 1992 Constitution,
alongside section 4(1) (b) of
the Bank of Ghana Act, 2002,
(Act 612) which would affect how
the Bank of Ghana conducts
monetary policy or manages the
Ghana Cedi.
The
Plaintiff alleges the Ghana
Cedi has depreciated against the
US dollar since July 2007 when
Ghana re-denominated its
currency for near parity with
the US dollar to January 2014 by
as much as 136% over a 7 year
span; averaging 19.3 percent per
year.
The
Plaintiff argues that: “by the
wording of Article 183(2) (a) of
the 1992 Constitution, and
Section 4(1) (b) of the Bank of
Ghana Act, 2002, (Act 612), the
2nd Defendant cannot
continuously employ a ‘floating
exchange rate regime’ to manage
the Ghanaian Cedi. 2nd
Defendant knows it lacks the
requisite reserves or exchange
rate stabilization fund or to
effectively intervene in the
market to give the Cedi a stable
value…The defendant’s inability
to manage the floating rate
regime put the Ghana Cedi in a
perpetual flux.”
The
Plaintiff submits that by the
wording of the respective laws,
the 2nd Defendant
“must migrate to a Fixed
Exchange Rate Regime in order to
fulfill its mandate of promoting
and maintaining a stable
currency within and outside
Ghana for the economic progress
of the country”
The
Plaintiff suggests that in the
alternative “Ghana can adapt
another country’s currency that
is stable altogether”.
The
Plaintiff submits further that
the 2nd Defendant
will continue “to utilize its
unworkable monetary measures
unless this highest court grants
his reliefs”.
Finally
the Plaintiff submits that until
the Supreme Court defines or
interprets ‘promoting and
maintaining a stable currency’,
the 2nd Defendant
will be in apparent breach of
Article 183(2) (a) of the 1992
Constitution, and continue to be
in breach
1st
Defendant’s Case
The 1st
Defendant also raised an
objection to the propriety of
the writ before this Court. The
1st Defendants
submits that “the Plaintiff
presents his case, couched as an
application for interpretation
of the Constitution in order to
bring the action under articles
2(1) and 130 (1) of the 1992
Constitution when in fact there
is no cause warranting
invocation of the original
jurisdiction of this honorable
Court”.
The 1st
Defendant contends this Court is
not the proper forum for the
evaluation of economic factors,
which are responsible for
inflation in the country. The
1st Defendant rejects the
Plaintiff’s assertion that the 2nd
Defendant has not maintained a
stable currency and has
therefore caused depreciation in
the value of the Ghana currency
on the basis that the Central
Bank does not have absolute
control over factors which cause
inflation.
The 1st
Defendant concludes that “the
Plaintiff’s request of the court
that Article 183(2) (a) of the
1992 Constitution, and section
4(1) (b) of the Bank of Ghana
Act, 2002, (Act 612) be
interpreted to affect how the 2nd
Defendant should conduct
monetary policy or manage the
currency of the Republic if
granted, will amount to an
infraction of the law
considering the provision under
section 3 (2) of Bank of Ghana
Act, which among others, is to
the effect that the 2nd
Defendant “shall operate
independent of instructions from
the Government or any other
authority.”
The 1st
Defendant therefore urged that
this Court declines the reliefs
sought by the Plaintiff per his
writ.
The 2nd
Defendant’s case
The 2nd
Defendant submits “there is no
issue of ambiguity about Article
183(2) (a) which calls for
interpretation. The real
complaint of Plaintiff is that
in his opinion, 2nd
Defendant has not managed the
monetary policy of Ghana
properly, with the effect that
the Ghanaian cedi has
depreciated over 134% since
2007.”
The 2nd
Defendant submits that “granted
for purposes of arguments the
alternate policies advanced by
Plaintiff (which we deny), the
proper place to commence the
action is not by seeking an
interpretation of Article 183(2)
(a) of the 1992 Constitution,
alongside section 4(1) (b) of
the Bank of Ghana Act, 2002,(Act
612)”
The 2nd
Defendant submits further that
the real complaint of Plaintiff
is not about an interpretation
of Article 183(2) (a) of the
1992 Constitution. What the
Plaintiff has done is to couch
his claim as one seeking an
interpretation of Article 183(2)
(a) so as to enable him invoke
the original jurisdiction of
this Court.
The 2nd
Defendant submits further that:
“the present suit is
misconceived in that the duty
required of 2nd
Defendant under the said Article
183(2) (a) is one which is not
justiciable and therefore
outside the control of the
judiciary. The 1992 Constitution
has laid down duties and rights
of the 3 (three) arms of
government namely the judiciary,
the legislator and the
executive. This is in line with
the doctrine of separation of
powers which allocates specific
functions to the various arms of
government. … What it implies is
[that] as much as possible, the
various arms of government would
be allowed to perform their
assigned duties. At best the
complaint of Plaintiff is what
was referred to as ‘The
principle of non-justiciable
political question’.”
Consideration of the Preliminary
legal objection
We will
quickly dispose of the 2nd
ground of objection which to us
is of no consequence. This
ground is to the effect that:
“The Supreme Court in the exercise of
its original jurisdiction is not
the proper forum for the
interpretation of an Act of
parliament and it is therefore
wrongful for plaintiff to have
invoked Articles 2(1) and 130 to
seek an interpretation of
Section 4 (1) (b) of the Bank of
Ghana Act, Act 612 in the
Supreme Court.”
The
Plaintiff combined Article
183(2) (a) and section 4(1) (b)
of the Act, in his application
requesting an interpretation by
this Court. It is correct that
the Supreme Court in the
exercise of its original
jurisdiction is not the proper
forum for the interpretation of
an Act of parliament. However as
the Plaintiff correctly puts it,
Article 183 and section 4(1) (b)
of the Bank of Ghana Act are
pari material.
Article
183 (2) (a) provides:
“The Bank of Ghana shall promote
and maintain the stability of
the currency of Ghana and direct
and regulate the currency system
in the interest of the economic
progress of Ghana”
Section
4(1) (b) of the Bank of Ghana
Act, provides:
(1) In addition to the functions
under Article 183 (2) (a) of the
Constitution the Bank shall for
purpose of section 3
(b) promote by monetary
measures the stabilization of
the value of the currency within
and outside Ghana
Looking
at the two provisions, the
statute has some nexus with the
said article and we do not think
combining the said statute with
the Article 183(2) (a) of the
Constitution to invoke our
original and exclusive
jurisprudence in interpreting
Article 183(2) (a) is fatal.
We will
therefore dismiss the
preliminary objection on ground
2
Is the
Plaintiff’s Action a Masquerade?
The most
serious matter to be considered
is ground 1; which is:
“The action has been wrongly
commenced in the Supreme Court
in that the complaint of
Plaintiff is basically to the
effect that 2nd
Defendant has not maintained a
stable currency and has caused a
depreciation in the value of the
Ghanaian currency but
deliberately couched as an
application for interpretation
of the constitution in [order]
to bring the action under the
ambit of Articles 2(1) and 130
of the Constitution.”
Simply
put, we have to consider whether
the Plaintiff’s action raises
any issue for interpretation of
article 183(2) (a) of the 1992
and Bank of Ghana Act, 2002,
Section 4 (1) (b), thus
warranting the exercise of the
original and exclusive
jurisdiction of this Court, or
it is a mere masquerade.
The
nature of the 1st
relief sought by the Plaintiff
is as follows:
“A declaration that upon a true
and proper interpretation of
article 183(2) (a) of the 1992
Constitution and Bank of Ghana
Act, 2002, Section 4 (1) (b),
The Bank of Ghana has neither
promoted nor maintained a stable
currency for the Republic of
Ghana.”
The
latter part of his claim implies
that the 1st
Defendant has failed in its duty
to maintain a stable currency as
the Constitution and the Act
required, accordingly we see the
Plaintiff’s claim not merely as
a request for interpretation but
also as one for enforcement.
The 1st
Defendant contends that
considering the independence of
the Bank of Ghana as stipulated
in section 3(2) of the Bank of
Ghana Act, were the Supreme
Court to interpret and enforce
Article 183(2) (a), alongside
section 4 (1) (b) of the Act,
2002, would be an infraction of
the Act. We think this
submission is misplaced. No arm
of government and no organ
deriving its authority and
independence from the
Constitution can claim immunity
from any action commenced in the
Supreme Court by any person who
alleges that an enactment or
anything contained in or done
under the authority of that or
any other enactment or any act
or omission of any person is
inconsistent with or in
contravention of the
Constitution. An action for such
a declaration is maintainable
under article 2(1) (a) and (b).
For purposes of clarity I set
out article 2(1) (a) and (b:
“2 (1) A person who alleges
that-
a)
an enactment or anything
contained 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.”
In
Okudzeto Ablakwa & Another v
Attorney-General &
Obetsebi-Lamptey [2011] 2 SCGLR
986 at 1020 I had reason to
say thus:
“Article 2(1) of the 1992
Constitution imposes on the
Supreme Court the duty to
measure the actions of both the
legislature and the executive
against the provision of the
Constitution. This includes the
duty to ensure that no public
officer conduct himself in such
a manner as to be in clear
breach of the provisions of the
Constitution. It is by actions
of this nature that gives
reality to enforcing the
Constitution by compelling its
observance and ensuring probity,
accountability and good
governance. In this respect, I
share the views expressed by the
majority of the Supreme Court
(per my brother Gbadegbe JSC)
in Sumaila Bielbiel (No1) v
Adamu Daramani &
Attorney-General (No 1)
reported in [2011]1SCGLR 132
at 146 to the effect that:
‘In our view, it is important
that we do nothing to undermine
the confidence that the ordinary
person has in our ability to
compel observance of the
Constitution by invalidating in
appropriate cases not only
enactments that are in breach of
it but also acts of, among
others, constitutional office
holders that do not derive their
legitimacy from the Constitution
in terms of article 2(1)’.”
Where a
person or authority is not by
the provisions of the
Constitution or any other law
subject to the direction or
control of any person or
authority in the performance of
his duties or functions, the
Court is not precluded from
examining the correctness or
otherwise of the exercise of
such duties or functions. We
recall Article 295 (8) which
states:
“No provision of this
Constitution or any other law to
the effect that a person or
authority shall not be subject
to the direction or control of
any other person or authority in
the performance of any functions
under the Constitution or that
law shall preclude a court from
exercising jurisdiction in
relation to any question whether
that person or authority has
performed those functions in
accordance with this
Constitution or law”
Consequently, though the 2nd
Defendant is an independent body
not subject to the direction or
control of anyone in the
performance of its functions,
[just like all other independent
created under the Constitution
such as the Electoral
Commission, Commission on Human
Rights and Administrative
Justice, National Commission for
Civic Education, National Media
Commission, Public Service
Commission among others;] it
does not enjoy absolute
independence and is subject to
the Constitution from which it
derives its powers. So as the
Plaintiff correctly put it in
answer to the 1st
Defendant’s brief, the 2nd
Defendant is not above the law
and is subject to the
Constitution.
All the
same, this Court has to resolve
whether there is a question of
interpretation involved in
relief (1). Where the words in
the Constitution are plain and
unambiguous and there is no
dispute in their meaning, the
question of constitutional
interpretation does not arise
and the Court will decline to
give an interpretation in such
circumstances.
In Yiadom I v Amaniampong
[1981] 2 GLR 3 at 8 Apaloo
CJ in delivering the ruling of
the court said:
“The plain truth of the matter
is the original jurisdiction of
this court has wrongly been
involved. We will accordingly
accede to the challenge to our
jurisdiction. Perhaps we should
point out, at least for the
benefit of the profession, that
where the issue sought to be
decided is clear and is not
resolvable by interpretation; we
will firmly resist any
invitation to pronounce on the
meaning of constitutional
provisions. It would, we think,
be a waste of mental effort and
thoroughly pointless”
The
Plaintiff invites us to
interpret article 183 (2) (a) of
the 1992 Constitution together
with Section 4 (1) (b) of the
Bank of Ghana Act, 2002, Act
612.
Article
183 (2) (a) provides:
(2) The
Bank of Ghana shall-
(a) promote and maintain the
stability of the currency of
Ghana and direct and regulate
the currency system in the
interest of the economic
progress of Ghana
Section 4
(1) (b) of the Act provides:
(1) In addition to the functions
under Article 183 (2) (a) of the
Constitution the Bank shall for
purpose of section 3
(b) promote by monetary
measures the stabilization of
the value of the currency within
and outside Ghana
The Plaintiff has strained
himself in an attempt to
persuade us that: “the phrase
stable currency is not uniform
in meaning but abstract or
ambiguous, and therefore the
need for an interpretation by
this Honorable Court.”
The Plaintiff submits further
that the question before this
Court is a mixed question of law
and fact. “It is a question of
fact because the answer to the
question “whether
2nd defendant has
promoted and maintained a stable
currency for Ghana must be
derived or inferred from market
data of Cedi Dollar exchange
rate from past to present. It is
also a question of law because
the question as to whether 2nd
defendant has promoted and
maintained a stable currency for
Ghana must be answered from the
interpretation of article 183
(2) (a) of the 1992 Constitution
by this Supreme Court.”
The
Plaintiff maintains that until
the Supreme Court defines or
interprets ‘promoting and
maintaining a stable currency’,
the 2nd Defendant
will be in apparent breach of
Article 183(2) (a) of the 1992
Constitution, and continue to be
in breach.
If all that was involved in the
Plaintiff’s writ was a mere
constitutional interpretation
this Court will not shy away
from the issue as it is our
constitutional duty. Is there
then a controversy as to the
meaning of the said article? If
there is a controversy and it is
a justiciable issue, the Court
has jurisdiction to entertain
the issue raised by the
Plaintiff’s writ. In this regard
the 1st and 2nd
defendants however assert there
is no question of interpretation
as the words are plain and
unambiguous.
It is
therefore the duty of the Court
to examine the true nature of
the Plaintiff’s claim, however
camouflaged or disguised in
another form, in order to decide
whether it is clothed with the
requisite jurisdiction to
entertain that case under
articles 2(1) and 130(1) of the
1992
Constitution.
We
cannot deny that the wording in
article 183(2) (a) is plain and
unambiguous, yet there are
multifarious pronouncements and
opinions on this one question of
what is a stable currency.
Judging from the numerous
newspaper articles the Plaintiff
and 2nd Defendant
attached as exhibits to their
statements there are divergent
views by the Ghanaian public on
what constitutes a stable
currency. We take judicial
notice of the fact that economic
and monetary experts worldwide
hold divergent views on what is
a stable currency, a fact the
plaintiff brings out in
paragraph 9 of his answer to 2nd
Defendant’s statement of case
where Plaintiff states:
“In fact there is no unanimous
interpretation of a stable
currency, as can be inferred
from paragraph 8 of Plaintiff’s
statement of case. The 2nd
Defendant states that there is
no ambiguity with what is a
stable currency. The debate as
to what constitutes a stable
currency is very evolutionary
and on-going. The debate on
stable currency or stable money
dates back to c. Since then the
Currency School, Banking School,
Ludwig von Misses, Irving
Fischer, Keynesian School,
Neo-Keynesian School, Chicago
School, Financial Stability
Forum (now Financial Stability
Board) have all influenced
respective jurisdictions as to
what is Stable Currency.
Currently most of the industrial
economies are utilizing Irving
Fischer’s Index Number Standard.
Index targeting is widely viewed
as a state of the art concept,
and criticism has largely been
confined to the issue of the
choice of the actual index.”
The
Plaintiff concludes that:
“Ghana
must have its determination of
what is a Stable Currency is,
and per our legal framework,
Plaintiff thinks this matter is
constitutional, therefore a
Supreme Court matter.”
But then taking a look at relief
1 together with his other
reliefs 2, 3, 4 and 5, it seems
to us that the request for
interpretation of the said
article is not the real
complaint of the Plaintiff. For
clarity they are restated below:
1.
A declaration that upon a true
and proper interpretation of
article 183(2) (a) of the 1992
Constitution and Bank of Ghana
Act, 2002, Section 4 (1) (b),
The Bank of Ghana has neither
promoted nor maintained a stable
currency for the Republic of
Ghana.
2.
A Writ of Mandamus to issue on
Bank of Ghana or its Governor
and the Board of Directors
ordering the following:
a)
To Provide the Republic of Ghana
a Stable Currency.
b)
A change from a floating
exchange regime to a fixed
exchange rate regime or a
reasonable adjustable peg
regime.
3.
An order on 2nd
Defendant to abrogate the
present Dual Exchange Rate or
Multiple Exchange Rate System to
a Single Exchange Rate System.
4.
An Order on 2nd
defendant to provide the
Republic of Ghana with a 1:1 or
nearer relationship with the
Leading Global Reserve Currency,
thus the U.S. Dollar, as the
Republic had in July 2007.
5.
A Perpetual injunction on 2nd
defendant against deferring to
Floating Exchange Rate Regime in
the conduct of their Monetary
Policy.
6.
Any further reliefs or
directions which the court may
deem appropriate to give full
effect or to enable effect to be
given to the letter and Spirit
of the 1992 Constitution in this
matter generally and
particularly Article 183(2) (a)
of the 1992 Constitution, and
also Bank of Ghana Act, 2002,
Section 4(b).
Notwithstanding the way in which
the Plaintiff has couched his
claim for interpretation, a look
at the nature of the reliefs and
the substance of the Plaintiff’s
statement of case and his
response to the preliminary
objection and to the 1st
and 2nd Defendants’
statements of case respectively,
we are of the view that the
Plaintiff’s case is in
substance an action to have
this Court declare the 2nd
Defendant had failed in its
monetary policies and for orders
to compel the 2nd
Defendant in the conduct of its
constitutional mandate to follow
the way the Plaintiff believes
the monetary policies of the
country should properly be
administered to stabilize the
Ghanaian currency. Obviously to
issue an order of mandamus to
the 2nd Defendant to
abandon its monetary policy and
adopt a particular one designed
by this Court on the Plaintiff’s
terms is to assume the
constitutional mandate reserved
for the2nd Defendant.
The Supreme Court nevertheless
has no concurrent jurisdiction
with the 2nd
Defendant in such matters. We do
not think it is necessary in
this ruling to discuss the
principle of the non-justiciable
political question raised by the
2nd Defendant.
In
assuming jurisdiction over this
matter, we shall certainly be
entering into policy
determination for which
judicially manageable standards
are not available, even though
we are committed to uphold the
Constitution and to defend and
protect economic rights of the
people among other fundamental
human rights and freedoms.
The
Plaintiff’s request for us to
order a policy change from a
floating exchange regime to a
fixed exchange rate regime or a
reasonable adjustable peg regime
is a task the Bank of Ghana is
constitutionally mandated to do.
It a task for the trained
professionals, subject to the
day-to-day control of the
responsible authorities of Bank
of Ghana, who, necessarily must
make comparative judgments on
the merits as to evolving
methods with respect to their
duties under the Constitution.
It is our considered opinion
that it would be inappropriate
for this Court to undertake this
responsibility in the unlikely
event that we possess the
requisite technical competence
to do so.
From the
foregoing, we hold that the
Plaintiff’s plea that: ‘Ghana
must have its determination of
what is a Stable Currency is,
and per our legal framework,
Plaintiff thinks this matter is
constitutional, therefore a
Supreme Court matter;” is
misplaced. We disagree that
determining what is a stable
currency is a matter for
interpretation and justiciable.
This
Court is not the best forum for
formulating currency and
monetary policies. By which
judicial standard shall we
determine a stable currency for
Ghana, bearing in mind the
divergent views and opinions in
the management of the economy,
currency, monetary and fiscal
policies? In any event the
Court has no institutional
competence to direct the 2nd
Defendant, even if we had the
authority, which we doubt. This
Court should be able to make a
determination based on
judicially discernable and
manageable standards which is
lacking here.
Consequently we hold that the
determination of the issues
before the Court involves more
than an interpretation of the
Constitution. The difficulty
of fashioning reliefs that
involve an initial policy
determination of a kind clearly
for non judicial discretion fall
outside the constitutional
interpretive and enforcement
role of this Court.
By way of
obiter, the effect of the
inflation is not lost on members
of this Court. It is a global
phenomenon resulting in
unemployment affecting even
giant economies like USA and
Germany. In Ghana we have been
faced by an economy which had
not been stable for a
considerable period of time.
Some causes of inflation
are fluctuation
in the energy markets, high
import rates and fluctuating
prices of our export
commodities, low revenue
generation insufficient to
manage recurrent expenditure and
services. Treasury bills rates
are high so industries/commerce
rather invest in treasury bills
rather than invest in capital.
The economy would be vibrant if
moneys are kept in banks in
Ghana here. We think it is
imperative to improve the
agricultural sector to bring
food imports down and also
patronize made in Ghana goods to
bring down our imports
expenditure.
There is
also the need for a radical
change of attitude to work. We
must reject mediocrity and
demand and meet deadlines.
Mitigation plans must be put in
place where deadlines are not
met. We must stop giving too
many excuses and be responsible
and accountable. This change
would improve productivity and
avoid waste and also contribute
to boost the economy.
It is
heartening to note that at the
time we were deliberating on
this case, the Ghana Cedi has
started stabilizing against
major trading currencies and we
pray it remains stable and
sustained.
In
conclusion, the lack of
satisfactory criteria for a
judicial determination of the
issues and policies involved in
the reliefs sought is a dominant
factor in our holding that this
is not a case which calls for
the interpretation of the
Constitution so as to cloth the
Supreme Court with the requisite
jurisdiction under articles 2(1)
and 130 (1), to entertain the
case. This is not the proper
forum for the Plaintiff to
ventilate his frustration with
the way the Ghana Cedi has been
fluctuating and his claims that
he has lost wealth through
foreign exchange losses.
In the
result, this Court should
decline jurisdiction and dismiss
the Plaintiff’s writ. The
preliminary legal objection to
our jurisdiction is upheld.
Plaintiff’s action is dismissed.
S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
A. A. BENIN
JUSTICE OF THE SUPREME COURT
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
PLAINTIFF APPEAR FOR HIMSELF.
GRACE MBROKOR – EWOAL (MRS) (PRINCIPAL
STATE ATTORNEY)
FOR THE 1ST DEFENDANT.
SAMUEL CODJOE ESQ. WITH HIM
THEOPHILUS KPORVIE FOR THE 2ND
DEFENDANT.
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